                In the United States Court of Federal Claims
                                OFFICE OF SPECIAL MASTERS
                                     Filed: August 26, 2019

* * * * * * * * * * *                      *   *
ANDREA FULLER, on behalf of her                *
Minor Child, B.F.,                             *       UNPUBLISHED
                                               *
                         Petitioner,           *       No. 15-1470V
                                               *
       v.                                      *       Chief Special Master Dorsey
                                               *
SECRETARY OF HEALTH                            *       Interim Attorneys’ Fees and Costs.
AND HUMAN SERVICES,                            *
                                               *
                         Respondent.           *
*   * *     *    *   *   * * * *       *   *   *

Curtis R. Webb, Twin Falls, ID, for petitioner.
Adriana R. Teitel, United States Department of Justice, Washington, DC, for respondent.

          DECISION AWARDING INTERIM ATTORNEYS’ FEES AND COSTS1

       On December 4, 2015, Andrea Fuller (“petitioner”) filed a petition in the National
Vaccine Injury Program2 on behalf of her minor child, B.F., alleging that the DTaP, Hepatitis B,
Hib, PCV, and IPV vaccines B.F. received on March 12, 2014, caused her to suffer from
epilepsy, seizures, and various developmental problems. Petition at 1, 3.

       An entitlement hearing was held in this matter on October 16-17, 2018. Subsequently, on
July 18, 2019, petitioner filed a motion for interim attorneys’ fees and costs, requesting


1
  Because this unpublished decision contains a reasoned explanation for the action in this case,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). This means the decision 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.
2
  The National Vaccine Injury Compensation Program is set forth in Part 2 of the National
Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended,
42 U.S.C. §§ 300aa-10 to -34 (2012) (“Vaccine Act” or “the Act”). All citations in this decision
to individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa.
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compensation for the attorney and paralegal who worked on her case.3 Petitioner’s Motion (“Pet.
Mot.”) dated July 18, 2019 (ECF No. 133). Petitioner’s request can be summarized as follows:

Attorneys’ Fees – $200,790.30
Attorneys’ Costs – $54,891.87
Petitioner’s Costs – $759.74

        Petitioner thus requests a total of $256,441.91. Respondent filed his response on August
1, 2019, stating that he “defers to the Chief Special Master as to whether to exercise her
discretion to award interim attorneys’ fees and costs at this time.” Respondent’s Response dated
Aug. 1, 2019 (ECF No. 134) at 4.

       This matter is now ripe for adjudication. For the reasons discussed below, the
undersigned GRANTS petitioner’s motion in part and awards $256,010.27 in attorneys’ fees and
costs.

I.     Discussion

         Under the Vaccine Act, the special master shall award reasonable attorneys’ fees and
costs for any petition that results in an award of compensation. § 15(e)(1). When
compensation is not awarded, the special master “may” award reasonable fees and costs “if the
special master or court determines that the petition was brought in good faith and there was a
reasonable basis for the claim for which the petition was brought.” Id. If a special master has
not yet determined entitlement, she may still award attorneys’ fees and costs on an interim basis.
Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008). Such awards
“are particularly appropriate in cases where proceedings are protracted and costly experts must be
retained.” Id. Similarly, it is proper for a special master to award interim fees and costs “[w]here
the claimant establishes that the cost of litigation has imposed an undue hardship and that there
exists a good faith basis for the claim.” Shaw v. Sec’y of Health & Human Servs., 609 F.3d 1372,
1375 (Fed. Cir. 2010).

        Over the past three years, petitioner’s counsel has expended significant time and
resources to advance this claim. The requested costs alone, which include expert fees and
travel expenses for the entitlement hearing, total over $50,000.00. Moreover, the claim
appears at this point to have been brought in good faith and built on a reasonable basis. The
undersigned thus finds that an award of interim attorneys’ fees and costs is appropriate here.

       A.      Reasonable Attorneys’ Fees

       The Federal Circuit has approved use of the lodestar approach to determine reasonable
attorneys’ fees and costs under the Vaccine Act. Avera, 515 F.3d at 1349. Using the lodestar
approach, a court first determines “an initial estimate of a reasonable attorneys’ fee by
‘multiplying the number of hours reasonably expended on the litigation times a reasonable

3
 This is petitioner’s second motion for interim fees and costs. On July 5, 2016, the undersigned
awarded petitioner $11,341.56 in fees and costs for her former counsel, Mr. Andrew Downing.
Decision dated July 5, 2016 (ECF No. 23).
                                                   2
hourly rate.’” Id. at 1347-48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). Then, the
court may make an upward or downward departure from the initial calculation of the fee award
based on other specific findings. Id. at 1348.

        Counsel must submit fee requests that include contemporaneous and specific billing
records indicating the service performed, the number of hours expended on the service, and the
name of the person performing the service. See Savin v. Sec’y of Health & Human Servs., 85
Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee requests hours that are
“excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health & Human Servs., 3
F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). It is
“well within the special master’s discretion to reduce the hours to a number that, in [her]
experience and judgment, [is] reasonable for the work done.” Id. at 1522. Furthermore, the
special master may reduce a fee request sua sponte, apart from objections raised by respondent
and without providing the petitioner notice and opportunity to respond. See Sabella v. Sec’y of
Health & Human Servs., 86 Fed. Cl. 201, 209 (2009).

       A special master need not engage in a line-by-line analysis of petitioner’s fee application
when reducing fees. Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl. 719, 729
(Fed. Cl. 2011). Special masters may rely on their experience with the Vaccine Act and its
attorneys to determine the reasonable number of hours expended. Wasson v. Sec’y of Health &
Human Servs., 24 Cl. Ct. 482, 484 (Fed. Cl. Nov. 19, 1991), rev’d on other grounds and aff’d in
relevant part, 988 F.2d 131 (Fed. Cir. 1993). Just as “[t]rial courts routinely use their prior
experience to reduce hourly rates and the number of hours claimed in attorney fee requests . . .
[v]accine program special masters are also entitled to use their prior experience in reviewing fee
applications.” Saxton, 3 F.3d at 1521.

      Here, petitioner requests the following hourly rates for the attorney and paralegal who
worked on this matter:

Curtis Webb – Attorney
       2016: $409.00
       2017: $424.00
       2018-2019: $440.00

Alexander Webb – Paralegal
      2016-2018: $100.00
      2019: $135.00

       The undersigned finds that the requested rates are reasonable and in accordance with the
guidelines set forth in McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL
5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). These rates also align with what the undersigned
has approved for Mr. Webb and his paralegal in the past. See, e.g., Jackson v. Sec’y of Health &
Human Servs., No. 17-682V, 2018 U.S. Claims LEXIS 1212 (Fed. Cl. Spec. Mstr. June 19,
2018); Kochman v. Sec’y of Health & Human Servs., No. 17-491V, 2018 U.S. Claims LEXIS
1110 (Fed. Cl. Spec. Mstr. May 15, 2018). The undersigned will therefore award the rates
requested.

                                                3
       Furthermore, the undersigned determines that the hours billed by Mr. Webb and his
paralegal are reasonable. While Mr. Webb certainly spend a substantial number of hours
advancing this claim, the undersigned is satisfied with the quality legal work that those hours
produced. Therefore, the undersigned will award the fees requested.

       B.      Costs

                i.     Attorneys’ Costs

                       a.      Expert Fees

        Petitioner requests $44,425.00 for work performed by Dr. Marcel Kinsbourne – 81.6
hours, billed at an hourly rate of $500.00, and 14.5 hours of travel, billed at an hourly rate of
$250.00. Pet. Mot., Attach. C at 2-4.

        Although an hourly rate of $500.00 is considered high in the Vaccine Program, the
undersigned will allow that rate here, based on the depth of Dr. Kinsbourne’s expert reports and
his participation in the hearing. The undersigned also notes that other special masters have found
this hourly rate appropriate. See, e.g., Jaafar v. Sec’y of Health & Human Servs., No. 15-267V,
2019 WL 2265329 (Fed. Cl. Spec. Mstr. Apr. 26, 2019); Pember v. Sec’y of Health & Human
Servs., No. 15-1005V, 2018 WL 3981514 (Fed. Cl. Spec. Mstr. June 28, 2018); Simon v. Sec’y
of Health & Human Servs., No. 05-941V, 2008 WL 623833 (Fed. Cl. Spec. Mstr. Feb. 21, 2008).
Therefore, the undersigned will award the full requested fee.

       As part of his bill, Dr. Kinsbourne documents $1,705.68 in expenditures related to
lodging, airfare, and ground transportation for the hearing. Pet. Mot., Attach. C at 4. The
undersigned will award these costs as well.

                       b.      Travel Costs

        Petitioner requests $6,977.50 for attorneys’ costs related to travel associated with the
hearing. See Pet. Mot. at 2; Pet. Mot., Attach. B at 23-34. This amount includes travel costs for
petitioner’s counsel, petitioner, petitioner’s mother, and petitioner’s infant son. Pet. Mot. at 12.
Although the hearing was scheduled to end on October 18, 2019, petitioner and her family did
not leave Washington, D.C., until two days later on October 20, 2019, apparently “because of the
difficulty with connections from and to Lewiston, Idaho, and the difficulty of traveling with a 1
year old.” Id.

        The undersigned understands petitioner’s desire to have an adult relative available to
provide childcare. But while the undersigned acknowledges the difficulties of traveling with a
young child, she does not find the prolonged hotel stay reasonable. See Broekelschen v. Sec’y of
Health & Human Servs., No. 07-137V, 2011 WL 2531199, at *13 (Fed. Cl. Spec. Mstr. June 3,
2011) (refusing to compensate petitioner’s counsel for an extra night’s hotel stay, when counsel
arrived two days before oral argument presumably “to accommodate time zone changes”), mot.
for review denied, 102 Fed. Cl. 719 (2011). This results in a reduction of $309.22, the cost of
the final night of the hotel stay.

                                                  4
                      c.      Miscellaneous Costs

       Petitioner requests $1,783.69 to cover her attorney’s other miscellaneous expenses,
including medical literature, medical records requests, Fed Ex costs, and the hearing transcript.
Pet. Mot. at 2; Pet. Mot., Attach. C at 35-66. The undersigned finds these costs reasonable and
well-documented, and she will award them in full.

                ii.   Petitioner’s Costs

        Petitioner also requests $759.74 in petitioner’s costs, which she incurred for filing fees
and travel expenses associated with the hearing. See Pet. Mot., Attach. D at 2. As discussed
above, the undersigned will not reimburse petitioner for the additional day spent in Washington,
D.C. Therefore, the undersigned will reduce the requested amount by $122.42, the food and
transportation costs incurred during petitioner’s extra day in D.C. See id. The undersigned finds
the remainder of petitioner’s requested costs reasonable, and she will award them in full.

II.    Conclusion

        Based on all of the above, the undersigned finds that it is reasonable to compensate
petitioner and her counsel as follows:

       Requested Attorneys’ Fees:                                           $ 200,790.30
       Awarded Attorneys’ Fees:                                             $ 200,790.30

       Requested Attorneys’ Costs:                                          $ 54,891.87
       Reduction in Attorneys’ Costs (Hotel):                               $ (309.22)
       Awarded Attorneys’ Costs:                                            $ 54,582.65

       Requested Petitioner’s Costs:                                        $ 759.74
       Reduction in Petitioner’s Costs (Additional Day in D.C.):            $ (122.42)
       Awarded Petitioner’s Costs:                                          $ 637.32

       Total Interim Attorneys’ Fees and Costs:                             $ 256,010.27

       Accordingly, the undersigned awards:

        A lump sum in the amount of $256,010.27, representing reimbursement for
reasonable interim attorneys’ fees and costs, in the form of a check payable jointly to
petitioner and petitioner’s counsel of record, Curtis R. Webb.

       In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
Court SHALL ENTER JUDGMENT in accordance with this decision.4



4
 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of
notice renouncing the right to seek review.
                                                 5
IT IS SO ORDERED.

                        /s/ Nora Beth Dorsey
                        Nora Beth Dorsey
                        Chief Special Master




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