   In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                         No. 09-867V
                                         April 30, 2013
                                      Not To Be Published

*************************************
CLARITZA and WILLIAM TORRES,                   *
as parents and natural guardians of            *
W.T.,                                          *
                                               *
               Petitioners,                    *     Attorneys’ Fees and Costs; Guardianship
                                               *     Costs; Special Needs Trust Costs
       v.                                      *
                                               *
SECRETARY OF HEALTH                            *
AND HUMAN SERVICES,                            *
                                               *
               Respondent.                     *
                                               *
*************************************
F. John Caldwell, Jr., Sarasota, FL, for petitioner.
Darryl R. Wishard, Washington, DC, for respondent.

MILLMAN, Special Master


                 DECISION AWARDING ATTORNEYS’ FEES AND COSTS1

        On December 16, 2009, petitioners filed a petition under the National Childhood Vaccine
Injury Act, 42 U.S.C. § 300aa–10-34, alleging that Menactra, DTaP, and Varivax vaccines
caused W.T.’s Guillain-Barré syndrome (“GBS”). On June 10, 2011, the parties filed a
stipulation, in which they agreed to settle the above-captioned case. The undersigned issued a
damages decision on June 10, 2011 and a redacted damages decision on June 14, 2011. On
January 9, 2012, petitioners filed an application for $25,511.97 in attorneys’ fees and costs and a
motion to stay their fee application because of an unresolved Pennsylvania state issue regarding
the administration of the settlement funds. The undersigned issued an order granting petitioners’
motion for a stay of their fee application on January 12, 2012. On November 9, 2012, petitioners

        1
          Vaccine Rule 18(b) states that all decisions of the special masters will be made available to the
public unless they contain trade secrets or commercial or financial information that is privileged and
confidential, or medical or similar information whose disclosure would constitute a clearly unwarranted
invasion of privacy. When such a decision is filed, petitioner has 14 days to identify and move to redact
such information prior to the document’s disclosure. If the special master, upon review, agrees that the
identified material fits within the banned categories listed above, the special master shall redact such
material from public access.
filed an order from the Philadelphia Orphans’ Court that designates Claritza Torres as the limited
guardian of W.T.’s estate for purposes of the above-captioned case.

I. Procedural History of Petitioner’s Fee Application

       On March 25, 2013, petitioners filed an application for attorneys’ fees and costs (“Fee
App.”).2 On March 26, 2013, respondent filed her response to petitioners’ application for
attorneys’ fees and costs (“Opp’n”).3 Petitioners filed a reply to respondent’s response (“Reply”)
on April 5, 2013.

        In their March 25, 2013 application for attorneys’ fees and costs, petitioners request
$26,000.00 for attorneys’ fees and costs incurred by Maglio Christopher & Toale, PA.
Petitioners also request reimbursement of $7,379.40 for costs incurred in Pennsylvania state
court, comprised of $3,000.00 in fees paid to Begley Law Group, PC for establishing a pooled
special needs trust through the Pennsylvania Court of Common Pleas and $4,379.40 in costs for
establishing Claritza Torres as the limited guardian of W.T.’s estate for purposes of the above-
captioned case.

II. Awarding Attorneys’ Fees and Costs

       The Vaccine Act permits an award of “reasonable attorneys’ fees” and “other costs.”
42 U.S.C. § 300aa–15(e)(1). The special master has “wide discretion in determining the
reasonableness” of attorneys’ fees and costs. Perreira v. Sec’y of HHS, 27 Fed. Cl. 29, 34
(1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994); see Saxton ex rel. Saxton v. Sec’y of HHS, 3 F.3d
1517, 1519 (Fed. Cir. 1993) (“Vaccine program special masters are also entitled to use their prior
experience in reviewing fee applications.”).

        Respondent does not object to petitioners’ request for reimbursement of $26,000.00 for
attorneys’ fees and costs incurred by Maglio Christopher & Toale, PA. Opp’n 1. However,
respondent does object to petitioners’ costs incurred to establish guardianship and a special needs
trust. Id. at 2-3.



        2
          With their fee application, petitioners filed seven exhibits in support of their request. See Fee
App., Ex. A (counsel’s billing invoices); Fee App., Ex. B (petitioners’ statement that they incurred
$7,379.40 in fees and costs); Fee App., Ex. C (the signed stipulation); Fee App., Ex. D (invoices from
Begley Law Group, PC); Fee App., Ex. E (a letter regarding fees from Kristen L. Behrens of the Begley
Law Group, PC); Fee App., Ex. F (the Pennsylvania order appointing Claritza Torres as limited guardian
of the estate of W.T.); Fee App., Ex. G (the Pennsylvania order establishing a pooled special needs trust
for the benefit of W.T.).
        3
         Respondent filed three exhibits in support of her opposition. See Opp’n, Ex. A (the
Pennsylvania order establishing a pooled special needs trust for the benefit of W.T.); Opp’n, Ex. B (the
docket for the Pennsylvania guardianship proceedings); Opp’n, Ex. C (the Pennsylvania and Philadelphia
Orphans’ Court Rules).
                                                     2
III. Analysis

   A. Costs Incurred Establishing Guardianship
         Respondent objects to the $4,379.40 in costs petitioner incurred establishing Claritza
Torres as the limited guardian of W.T.’s estate for purposes of the above-captioned case.
Respondent claims that the costs associated with establishing Claritza Torres’s temporary
guardianship of W.T. were not incurred in a proceeding on the vaccine, as required by 42 U.S.C.
§ 300aa–15(e)(1). Opp’n 2. Nonetheless, respondent recognizes that “in more recent cases,
special masters have interpreted the Vaccine Act’s fee provision to include reimbursement for
fees and costs incurred in obtaining a guardianship in state court.” Id. at 2-3; see, e.g., Cansler
ex. rel. Cansler v. Sec’y of HHS, No. 09-596V, 2011 WL 597791, at *2-3 (Fed. Cl. Spec. Mstr.
Feb. 2, 2011) (in which the undersigned awarded reimbursement of $3,210.59 for guardianship
costs); Gruber v. Sec’y of HHS, No. 00-749V, 2009 WL 2135739, at *10-11 (Fed. Cl. Spec.
Mstr. June 24, 2009) (awarding reimbursement of $4,027.00 for the establishment of a
guardianship), vacated on other grounds, 91 Fed. Cl. 773 (2010).

        The special masters award the amounts expended for petitioners to obtain representative
authority in their local state courts because representative authority is a condition precedent to
petitioners receiving a vaccine award. See, e.g., Cansler, 2011 WL 597791, at *3 (“This trend of
using common sense to award guardianship costs when they are mandated as a sine qua non of
receiving a vaccine damages award should continue.”). In the present case, the terms of the
damages stipulation require petitioners to obtain representative authority in order for respondent
to release the money to which the parties have stipulated in their agreement on damages. If
petitioners do not obtain said representative authority, they do not get paid. In the above-
captioned case, paragraph 13 of the stipulation reads:

       Petitioners represent that they presently are, or within 90 days of the date of
       judgment will become, duly authorized to serve as guardians of [W.T.’s] estate
       under the laws of the Commonwealth of Pennsylvania. No payments pursuant to
       this Stipulation shall be made until petitioners provide the Secretary with
       documentation establishing their appointment as guardians of [W.T.’s] estate. If
       petitioners are not authorized by a court of competent jurisdiction to serve as
       guardians of the estate of [W.T.] at the time a payment pursuant to this Stipulation
       is to be made, any such payment shall be paid to the party or parties appointed by
       a court of competent jurisdiction to serve as guardian of the estate of [W.T.] upon
       submission of written documentation of such appointment to the Secretary.

Paragraph 13 makes obtaining guardianship of W.T.’s estate a condition precedent to payment
pursuant to the stipulation. As such, the undersigned finds petitioners’ request for
reimbursement for establishing Claritza Torres’s temporary guardianship of W.T. to be
reasonable.

       In addition, based on the undersigned’s experience, the undersigned finds $4,379.40 to be
a reasonable amount for establishing guardianship. See Gruber, 2009 WL 2135739, at *11
                                                3
(awarding $4,027.00 for reimbursement of costs to establish guardianship); see also Sampt v.
Sec’y of HHS, No. 07-122V, 2011 WL 1629661, at *1-2 (Fed. Cl. Spec. Mstr. Mar. 29, 2011)
(the undersigned awarded reimbursement of $4,442.80 for costs to establish petitioner as the
representative of the decedent’s estate, as required by the stipulation).

   B. Costs Incurred Establishing a Special Needs Trust
        Respondent objects to the $3,000.00 petitioners request for establishing a special needs
trust for W.T.’s benefit and having a Pennsylvania court authorize the trust. Respondent states
that the costs associated with establishing a special needs trust were not incurred in a proceeding
on the vaccine, as required by 42 U.S.C. § 300aa–15(e)(1). Opp’n 3. Petitioners claim that the
$3,000.00 was incurred in “fulfilling their obligations under the stipulation.” Reply 4. While the
stipulation requires petitioners to obtain representative authority, there is no requirement in the
stipulation that petitioners create a special needs trust. Petitioners claim that if the settlement
funds passed directly to them, petitioners and W.T. would become ineligible for Medicaid
benefits. This would result, petitioners allege, in vaccine compensation being “a detriment to
Petitioners rather than a benefit.” Fee App. 2. Regardless of petitioners’ interest in making sure
that their son W.T. does not get removed from Medicaid coverage in Pennsylvania, the issue of
Medicaid coverage is not encompassed under the Vaccine Act except for the requirement that
respondent pay any Medicaid lien that exists for past medical expenses to treat W.T.’s vaccine
injury. 42 U.S.C. § 300aa–15(g). The Vaccine Act is silent as to providing that a vaccinee keep
his Medicaid coverage for future medical expenses that are not for his vaccine injury (since the
vaccine award will compensate for his past and future unreimbursable vaccine-related medical
expenses). No special master in the twenty-five years of the Vaccine Program has awarded fees
for creating special needs trusts that enable vaccinees to shelter their vaccine damage awards
from their state’s Medicaid considerations. A special needs trust is neither in the damages
stipulation nor in the Vaccine Act. Therefore, the amounts petitioners expended to create the
special needs trust for W.T. and have it authorized in a Pennsylvania court were not “incurred in
any proceeding on such petition” and are not recoverable under the Vaccine Act.

   C. Petitioners’ Counsel’s Professional Duty
        Petitioners claim in Petitioners’ Reply Brief on Attorney Fees and Costs that petitioners’
counsel has an obligation under the Model Rules of Professional Conduct to look after all of the
interests of his clients. Reply 1-2. Due to this obligation, petitioners assert that petitioners’
counsel should be compensated for the amount of money it took to create a special needs trust
and have the Pennsylvania court authorize it. Id. Petitioners’ counsel’s interpreted professional
duties are not at issue. There is nothing to prevent petitioners from establishing a special needs
trust. However, the language of the Vaccine Act, 42 U.S.C. § 300aa–15(e)(1), limits the
attorneys’ fees and costs that petitioners shall receive in the Vaccine Program to those “incurred
in any proceeding on such petition.” The interpretation of the words “on such petition” means
that the activities must be related to the vaccine petition. Petitioners’ costs to create a special
needs trust and have the Pennsylvania court authorize it were not “incurred in any proceeding on
such petition” and are not recoverable under the Vaccine Act.


                                                 4
IV. Conclusion

       The undersigned awards petitioners the following in attorneys’ fees and costs and finds
the amounts to be reasonable:

        a. $26,000.00, representing reimbursement for attorneys’ fees and costs. The award
           shall be in the form of a check made payable jointly to petitioners and Maglio
           Christopher & Toale, PA, in the amount of $26,000.00; and

        b. $4,379.40, representing reimbursement for petitioners’ costs establishing Claritza
           Torres as the limited guardian of W.T.’ estate for purposes of the above-captioned
           case. The award shall be in the form of a check for $4,379.40 made payable to
           petitioners.

       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.4


IT IS SO ORDERED.


Dated: April 30, 2013                                                    s/ Laura D. Millman
                                                                          Laura D. Millman
                                                                            Special Master




        4
          Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either
separately or jointly, filing a notice renouncing the right to seek review.
                                                    5
