In the United States Court of Federal Claims
                          OFFICE OF SPECIAL MASTERS

**********************
VICTOR FULLERTON,                        *
                                         *       No. 15-182
                    Petitioner,          *       Special Master Christian J. Moran
                                         *
v.                                       *       Filed: April 24, 2019
                                         *
SECRETARY OF HEALTH                      *       Attorneys’ Fees and Costs
AND HUMAN SERVICES,                      *
                                         *
                    Respondent.          *
* * * * * * * * * * * * * * * * * * * ** *

Mark T. Sadaka, Mark T. Sadaka, LLC, Englewood, NJ, for Petitioner;
Lisa A. Watts, United States Dep’t of Justice, Washington, DC, for Respondent.

                   UNPUBLISHED DECISION AWARDING
                     ATTORNEYS’ FEES AND COSTS1

       On January 14, 2019, petitioner Victor Fullerton moved for final attorneys’
fees and costs. He is awarded $66,262.11.

                                   *         *     *


      1
         The undersigned intends to post this Ruling on the United States Court of
Federal Claims' website. This means the ruling will be available to anyone with
access to the internet. In accordance with Vaccine Rule 18(b), petitioner has 14
days to identify and move to redact medical or other information, the disclosure of
which would constitute an unwarranted invasion of privacy. If, upon review, the
undersigned agrees that the identified material fits within this definition, the
undersigned will redact such material from public access. Because this unpublished
ruling contains a reasoned explanation for the action in this case, the undersigned
is required to post it on the United States Court of Federal Claims' website in
accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012)
(Federal Management and Promotion of Electronic Government Services).
       On February 26,2015, Victor Fullerton filed for compensation under the
Nation Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10 through 34.
Mr. Fullerton alleged that the tetanus-diphtheria-acellular pertussis vaccine he
received on March 8, 2012, which is contained in the Vaccine Injury Table, 42
C.F.R. § 100.3(a), caused him to suffer complex regional pain syndrome and reflex
sympathetic dystrophy. Petitioner further alleged that he suffered the residual
effects of this injury for more than six months. The parties submitted a joint
stipulation that was incorporated by a decision awarding petitioners compensation
in the amount of $375,000.00. Decision, issued July 2, 2018.

       On January 14, 2019, petitioner filed a motion for final attorneys’ fees and
costs (“Fees App.”). Petitioner requests attorneys’ fees of $60,121.25 and
attorneys’ costs of $16,233.72 for a total request of $76,354.97. Fees App. at 3.
Pursuant to General Order No. 9, petitioner warrants he has personally incurred
$192.80 in costs in pursuit of this litigation. Id.
       On January 28, 2019, respondent filed a response to petitioner’s motion.
Respondent argues that “[n]either the Vaccine Act nor Vaccine Rule 13
contemplates any role for respondent in the resolution of a request by a petitioner
for an award of attorneys’ fees and costs.” Response at 1. Respondent adds,
however that he “is satisfied the statutory requirements for an award of attorneys’
fees and costs are met in this case.” Id at 2. Additionally, he recommends “that
the special master exercise his discretion” when determining a reasonable award
for attorneys’ fees and costs. Id. at 3.

        On February 1, 2019, petitioner filed a Reply in which he reiterated his
earlier request for attorneys’ fees and costs while also requesting an additional
$374.90 as reimbursement for costs incurred by Mr. Kermit Huttenga, who
testified on petitioner’s behalf at the fact hearing held by the undersigned on April
7, 2016. Reply at 1.
                                   *      *       *

       Because petitioners received compensation, they are entitled to an award of
reasonable attorneys’ fees and costs. 42 U.S.C. § 300aa–15(e). Thus, the question
at bar is whether the requested amount is reasonable.

      The Vaccine Act permits an award of reasonable attorney’s fees and costs.
§15(e). The Federal Circuit has approved the lodestar approach to determine
reasonable attorneys’ fees and costs under the Vaccine Act. This is a two-step
process. Avera v. Sec’y of Health & Human Servs. 515 F.3d 1343, 1348 (Fed.

                                              2
Cir. 2008). First, a court determines an “initial estimate … by ‘multiplying the
number of hours reasonably expended on the litigation times a reasonable hourly
rate.’” Id. at 1347-48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)).
Second, the court may make an upward or downward departure from the initial
calculation of the fee award based on specific findings. Id. at 1348. Here, because
the lodestar process yields a reasonable result, no additional adjustments are
required. Instead, the analysis focuses on the elements of the lodestar formula, a
reasonable hourly rate and a reasonable number of hours.

       In light of the Secretary’s lack of objection, the undersigned has reviewed
the fee application for its reasonableness. See McIntosh v. Secʼy of Health &
Human Servs., 139 Fed. Cl. 238 (2018)

      A.     Reasonable Hourly Rates
       Under the Vaccine Act, special masters, in general, should use the forum
(District of Columbia) rate in the lodestar calculation. Avera, 515 F.3d at 1349.
There is, however, an exception (the so-called Davis County exception) to this
general rule when the bulk of the work is done outside the District of Columbia
and the attorneys’ rates are substantially lower. Id. 1349 (citing Davis Cty. Solid
Waste Mgmt. and Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot.
Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). In this case, all the attorneys’ work
was done outside of the District of Columbia.

      The undersigned has reviewed the requested rates and finds them consistent
with what Mr. Sadaka has previously been awarded for his work in the Vaccine
Program. Therefore, no adjustment is required.

      B.     Reasonable Number of Hours
      The second factor in the lodestar formula is a reasonable number of hours.
Reasonable hours are not excessive, redundant, or otherwise unnecessary. See
Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993).
The Secretary also did not directly challenge any of the requested hours as
unreasonable.

      The undersigned has reviewed the billing records and finds the number of
hours billed (214.9) to require some adjustment. The main issue is that Mr. Sadaka
and his paralegal billed a number of hours prior to filing the petition on legal
matters wholly unrelated to the Vaccine Program.


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       The Vaccine Act limits the amount of “compensation to cover petitioner’s ...
costs” to those “incurred in any proceeding on [a Vaccine Act] petition.”
§ 15(e)(1). Such costs often include those that form “‘an essential prerequisite
condition’ to obtaining an award that must ‘be fulfilled in order for [the] award to
be made.’” Bennett v. Sec’y of Health & Human Servs., No. 15-65V, 2017 WL
3816094, at *3 (Fed. Cl. Spec. Mstr. Aug. 7, 2017) (quoting Haber ex rel. Haber v.
Sec’y of Health & Human Servs., No. 09-458V, 2011 WL 839111, at *2 (Fed. Cl.
Spec. Mstr. Feb. 14, 2011)). Accordingly, special masters have consistently
declined to compensate petitioners and their attorneys for work billed on matters
outside of the Vaccine Program litigation which were not an essential part of
obtaining an award. See Bennett, 2017 WL 3816094, at *5 (disallowing fees and
costs associated with the administration of an estate); Lemon v. Sec’y of Health &
Human Servs., 19 Cl. Ct. 621, 623 (1990) (same); Sucher v. Sec’y of Health &
Human Servs., No. 07-58V, 2013 WL 5532179, at *15-16 (Fed. Cl. Spec. Mstr.
Sept. 17, 2013) (denying fees and costs incurred in connection with a state court
proceeding).

      Several years before the filing of the petition, the billing records indicate that
Mr. Sadaka spent a great deal of time assisting petitioner with legal matters wholly
outside the scope of the instant Vaccine Program litigation. For example, Mr.
Sadaka appears to have done work for petitioner concerning a disability claim
before the Michigan Social Security Administration,2 a medical malpractice claim,3
and a claim before the United States Department of Veterans Affairs for pension

      2
       E.g., an entry on 9/13/2012 for “Receive/review correspondence to
Michigan Social Security Administration re: disability claim,” an entry on
9/26/2012 for “Communicate with client re: advising client on expectations for
upcoming interview with Michigan Social Security Administration;” an entry on
10/26/2012 for “Review Michigan Social Security paperwork for the purpose of
completing required documentation.” Fees App. Ex. A at 3-4.
      3
         E.g., entries on 1/23/2013 for “Communicate with client re: identification
of a liability to pursue medical malpractice case; draft notes to file” and
“Communicate with Michigan attorney, Gary Krochmal re: case discussion and
filing medical malpractice claim; draft notes to file;” entries in February 2014 for
“Perform legal research re: medical malpractice procedures concerning federal tort
claim act; draft notes to file” and “Research rules and requirements concerning
notice of intent to file medical malpractice suit under federal tort claim act.” Fees
App. Ex. A at 8-9.

                                              4
benefits.4 The first billing entry for Mr. Sadaka that even references vaccine work
does not occur until February 20, 2015, when Mr. Sadaka began work on drafting
the petition, although it appears that work on the vaccine claim exclusively began
approximately in early December 2014, when Mr. Sadaka reached out to Infusion
Knowledge, Inc. for review of petitioners medical records concerning his complex
regional pain syndrome. Fees App. Ex. A at 14. Indeed, with the exception of the
first billing entry in which Mr. Sadaka billed for conducting an initial intake
interview with petitioner, it does not appear that any of the work he billed for prior
to contacting Infusion Knowledge, Inc. can be fairly attributed to the instant
litigation (or at least Mr. Sadaka has not identified it as such). Because time spent
assisting petitioner on other legal matters which, although they may stem from the
same injury that is the cause of this litigation, are not “incurred in any proceeding
on such petition” as contemplated by 42 U.S.C. § 300aa-15(e) is non-compensable,
the undersigned cannot compensate petitioner for any of the time billed by Mr.
Sadaka prior to December 4, 2014 other than time spent conducting the initial
intake interview. This results in a reduction of $9,249.28.
        The time billed prior to drafting the petition by Mr. Sadaka’s paralegal, Ms.
Keri Congiusti, also requires some adjustment, although it does not require a full
reduction. While Ms. Conguisti undoubtedly spent time on work directly related to
petitioner’s other legal matters (e.g., an entry on 12/3/2013 for “Communicate with
Department of Veteran Affairs re: status of claim and estimation of resolution;
draft notes to file”), she also billed time which would be considered directly
relevant to the Vaccine Program litigation, such as requesting, reviewing, and
summarizing medical records, even if that work was not performed exclusively in
furtherance of petitioner’s Vaccine Program litigation. Ultimately, it is impossible
to distinguish how much of the work done by Ms. Conguisti was in furtherance of
filing the vaccine petition versus any of petitioner’s other claims. Accordingly, the
undersigned will reduce the time billed by Ms. Conguisti up until February 20,
2015 by 33% to achieve rough justice. This results in a reduction of $1,411.28.5



      4
        E.g., entries on 3/17/2014 for “Communicate with client re: decision from
Department of Veteran Affairs on client’s claim for pension benefits;” entry on
11/4/2014 for “Draft correspondence to U.S. Department of Veterans Affairs re:
request for reconsideration of denial.” Fees App. Ex. A. at 10-11.
      5
        The total time billed by Ms. Congiusti prior to December 4, 2014 adds up
to $4,238.10. $4,238.10 * 0.333 = $1,411.28.

                                             5
      Concerning the time billed from February 20, 2015 until the end of the case,
the undersigned has reviewed the billing records and finds that time to be
reasonable and therefore it shall be fully compensated without further reduction.

      C.     Costs Incurred

      Like attorneys’ fees, a request for reimbursement of costs must be
reasonable. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed.
Cl. 1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). Petitioner requests a total of
$16,233.72 in costs, comprising of acquiring medical records, postage, travel
expenses related to the fact hearing held by the undersigned on April 7, 2016, and
the work of several experts: Ms. Kay Coulter of Infusion Knowledge, Inc. for
reviewing medical records concerning the relation between petitioner’s vaccination
and complex regional pain syndrome ($1,619.35), KJL Consulting, Inc. for
preparing a life care plan ($3,389.34), The Chalfin Group Inc. for preparing an
economic damages report ($4,800.00), and Dr. Robert Friedman for reviewing
medical records and submitting an expert report ($2,887.50).

       The undersigned has reviewed all of the submitted documentation for the
costs, including the billing records prepared by the various experts, and finds all
the costs to be reasonable and supported by adequate documentation.6 Accordingly,
petitioner is entitled to the full amount of costs sought.

       The undersigned will also consider the costs of Mr. Kermit Huttenga as part
of the overall request for attorneys’ costs. Mr. Huttenga incurred a total of $374.00
in costs related to his travel to attend the April 7, 2016 fact hearing. Petitioner has
submitted adequate documentation for Mr. Huttenga’s costs and shall reimburse
him in full.
      D.     Petitioner’s Costs

     Pursuant to General Order No. 9, petitioner warrants that he has personally
expended $192.80 in pursuit of this litigation. This amount is for various costs



      6
        Although the undersigned finds the overall amount billed by each expert to
be reasonable in light of the work performed for this case, the undersigned is not
assessing the reasonableness of any rate at which an expert billed. The undersigned
reserves the right to reconsider the reasonableness of an expert’s rate in future
cases in light of the work performed for that case.

                                              6
related to petitioner’s travel to the fact hearing site. Petitioner has provided
adequate documentation for his costs, and they shall be reimbursed in full.
      E.     Conclusion

       The Vaccine Act permits an award of reasonable attorney’s fees and costs.
42 U.S.C. § 300aa-15(e). Accordingly, I award a total of $66,069.31 (representing
$49,460.69 in attorneys’ fees and $16,608.62 in attorneys’ costs) as a lump sum in
the form of a check jointly payable to petitioner and his counsel, Mr. Mark Sadaka,
Esq., and a total of $192.80 for petitioner’s costs as a lump sum in the form of a
check payable to petitioner.

       In the absence of a motion for review filed pursuant to RCFC Appendix B,
the clerk of the court is directed to enter judgment herewith.7


             IT IS SO ORDERED.


                                                      s/Christian J. Moran
                                                      Christian J. Moran
                                                      Special Master




      7
        Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment
by filing a joint notice renouncing their right to seek review.

                                               7
