In the United States Court of Federal Claims
                                     OFFICE OF SPECIAL MASTERS
                                              No. 15-860V
                                          (Not to be published)

*************************
REGINA TODD,               *
                           *
               Petitioner, *                                              Filed: August 31, 2020
                           *
          v.               *                                              Attorney’s Fees and Costs; Expert
                           *                                              Costs; Petitioner’s Costs
SECRETARY OF HEALTH        *
AND HUMAN SERVICES,        *
                           *
               Respondent. *
                           *
*************************

Jessica A. Olins, Maglio Christopher & Toale, PA, WA, for Petitioner.

Debra A. Filteau Begley, U.S. Dep’t of Justice, Washington, DC, for Respondent.


     DECISION GRANTING FINAL AWARD OF ATTORNEY’S FEES AND COSTS 1


        On August 12, 2015, Regina Todd filed a petition seeking compensation under the National
Vaccine Injury Compensation Program (“Vaccine Program”) 2 alleging that the influenza (“flu”)
vaccine she received on September 17, 2012, caused her to experience a neuropathy. Petition (ECF
No. 1); Rule 4(c) Report at 1, filed Jan. 4, 2016 (ECF No. 22). A two-day entitlement hearing was
held on March 4-5, 2019, and I issued a decision denying entitlement to compensation on January

1
  Although this Decision has been formally designated “not to be published,” it will nevertheless be posted on the
Court of Federal Claims’ website in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). This
means that the Decision will be available to anyone with access to the internet. As provided by 42 U.S.C. § 300aa-
12(d)(4)(B), however, the parties may object to the Decision’s inclusion of certain kinds of confidential information.
Specifically, under Vaccine Rule 18(b), each party has fourteen days within which to request redaction “of any
information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged
or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly
unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public.

 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa-10–34 (2012)) (hereinafter “Vaccine Act” or “the Act”).
All subsequent references to sections of the Vaccine Act shall be to the pertinent subparagraph of 42 U.S.C. § 300aa.
8, 2020. Entitlement Decision, filed Jan. 8, 2020 (ECF No. 81). That Decision was not appealed.

        Petitioner has now filed a motion for a final award of attorney’s fees and costs, seeking an
award for all work performed and costs incurred in this case. Motion for Attorney’s Fees and Costs,
filed May 6, 2020 (ECF No. 88) (“Fees App.”). Petitioner requests a final award of $201,068.51—
$171,774.40 in attorney’s fees, plus $29,294.11 in costs—for the work of five attorneys (Ms.
Jessica Olins, Esq.; Dr. Amber Wilson, Esq.; Ms. Anne Toale, Esq.; Mr. Isaiah Kalinowski, Esq.;
and Mr. Joseph Vuckovich, Esq.) as well as the supportive work of six paralegals. Ex. 90, filed on
May 6, 2020 (ECF No. 88-1) at 50. The costs requested include legal research charges, medical
record retrieval, travel, expert fees, and mailing expenses. Ex. 91, filed May 6, 2020 (ECF No. 88-
2). Petitioner also requests $779.11 for costs she personally incurred. Fees App. at 2; General
Order No. 9, filed as Ex. 92 on May 6, 2020 (ECF No. 88-3). Petitioner’s personal costs include
travel expenses and meals related to the entitlement hearing.

the fees request on May 18, 2020. See Response, dated May 18,
2020 (ECF No. 89). He indicates in his Response that he is satisfied that the statutory requirements
for an attorney’s fees and costs award are met in this case, and otherwise defers to my discretion
the calculation of a proper amount to be awarded.

Petitioner thereafter filed a Reply in
which she argued Respondent unduly burdens the Court and prejudices Petitioner by effectively
eliminating her ability to remedy any problems that may exist in the request. Reply, filed May 19,
2020 (ECF No. 90).

                                            ANALYSIS

I.     Petitioner’s Claim had Reasonable Basis

        Under the Vaccine Act, a special master may award fees and costs to an unsuccessful
petitioner if: (1) the “petition was brought in good faith”; and (2) “there was a reasonable basis for
the claim for which the petition was brought.” Section 15(e)(1). I have in prior decisions set forth
at length the criteria to be applied when determining if a claim possessed “reasonable basis”
sufficient for a fees award. See, e.g., Sterling v. Sec’y of Health & Hum. Servs., No. 16-551V, slip
op. at 5 (Fed. Cl. Spec. Mstr. Jan. 3, 2020). In short, the claim’s reasonable basis must be
demonstrated through some objective evidentiary showing. Cottingham v. Sec’y of Health & Hum.
Servs., No. 19-1596, slip. op. at 9–10 (Fed. Cir. 2020) (citing Simmons v. Sec’y of Health & Hum.
Servs., 

, 635 (Fed. Cir. 2017)). This objective inquiry is focused on the claim—
counsel’s conduct is irrelevant (although it may bulwark good faith). 

.
Reasonable basis inquiries are not static—they evaluate not only what was known at the time the
petition was filed, but also take into account what is learned about the evidentiary support for the
claim as the matter progresses. Perreira v. Sec’y of Health & Hum. Servs., 

, 1377
(Fed. Cir. 1994) (upholding the finding that a reasonable basis for petitioners’ claims ceased to
exist once they had reviewed their expert's opinion, which consisted entirely of unsupported
speculation).

                                                  2
        The standard for reasonable basis is lesser (and inherently easier to satisfy) than the
preponderant standard applied when assessing entitlement, as cases that fail can still have
sufficient objective grounding for a fees award. Braun v. Sec’y of Health & Hum. Servs., 

. 72, 77 (Fed. Cl. 2019). Under the Vaccine Act, special masters have “maximum discretion” in
applying the reasonable basis standard. See, e.g., Silva v. Sec’y of Health & Hum. Servs., 

. 401, 401–02 (Fed. Cl. 2012). 3 The Court of Federal Claims has affirmed that the “[r]easonable
basis is a standard that petitioners, at least generally, meet by submitting evidence.” Chuisano v.
Sec’y of Health & Hum. Servs., 

, 287 (Fed. Cl. 2014) (internal quotations omitted)
(affirming special master). The factual basis and medical support for the claim is among the
evidence that should be considered. Carter v. Sec’y of Health & Hum. Servs., 

,
378 (Fed. Cl. 2017).

        Although it did not ultimately succeed, Petitioner’s claim had sufficient objective basis to
entitle her to a fees and costs award. See, e.g., P.M. v. Sec’y of Health & Hum. Servs., No. 16-
949V, 

, at *1 (Fed. Cl. Spec. Mstr. Feb. 5, 2020). Claims that the flu vaccine
can cause neuropathy have scientific legitimacy, and thus are not comparable to the kinds of claims
(like those asserting autism as a vaccine injury) that have been discredited through repeated
consideration. See, e.g., Knorr v. Sec'y of Health & Hum. Servs., No. 15-1169V, 

(Fed. Cl. Spec. Mstr. Dec. 7, 2018). This claim also was based on undisputed evidence of a
neuropathic injury and bulwarked by an expert opinion that was not frivolous or obviously poorly
reasoned, even if I ultimately did not find it persuasive. There was enough evidence in the record
to support bringing the claim, and Respondent for his part does not otherwise contest reasonable
basis. Accordingly, a final award of fees and costs in this matter is appropriate.

II.      Calculation of Fees

       Determining the appropriate amount of the fees award is a two-part process. The first part
involves application of the lodestar method—“multiplying the number of hours reasonably
expended on the litigation times a reasonable hourly rate.” Avera v. Sec’y of Health & Hum. Servs.,

, 1347–48 (Fed. Cir. 2008) (quoting Blum v. Stenson, 

, 888 (1984)).
The second part involves adjusting the lodestar calculation up or down to take relevant factors into
consideration.

This standard for calculating a fee award is considered applicable in
most cases where a fee award is authorized by federal statute. Hensley v. Eckerhart, 

,
429–37 (1983).

       An attorney’s reasonable hourly rate is determined by the “forum rule,” which bases the
proper hourly rate on the forum in which the relevant court sits (Washington, D.C., for Vaccine
Act cases), except where an attorney’s work was not performed in the forum and there is a

3
 See also 

(cautioning against rigid rules or criteria for reasonable basis because they
would subvert the discretion of special masters and stating that an amorphous definition of reasonable basis is
consistent with the Vaccine Act as a whole).


                                                         3
substantial difference in rates (the Davis exception). 

(citing Davis Cty.
Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot. Agency, 

, 758 (D.C. Cir. 1999)). A 2015 decision established the hourly rate ranges for attorneys with
different levels of experience who are entitled to the forum rate in the Vaccine Program. See
McCulloch v. Sec’y of Health & Hum. Servs., No. 09-293V, 

, at *19 (Fed. Cl.
Spec. Mstr. Sept. 1, 2015).

       Petitioner requests the following rates for her attorneys and support staff, based on the
years work was performed:



                   2015          2016          2017          2018         2019         2020

 Jessica
                     -             -               -           -            -          $225
 Olins, Esq.

 Amber
                   $225          $275          $290          $308         $323         $345
 Wilson, Esq.

 Anne Toale,
                     -             -               -         $402           -             -
 Esq.

 Isaiah
 Kalinowski,         -             -               -         $368           -             -
 Esq.

 Joseph
 Vuckovich,          -             -               -         $300         $315         $345
 Esq.

 Emily
 Monahan             -             -               -         $148         $154         $160
 (paralegal)

 Mandy
 Houston             -             -               -           -          $145            -
 (paralegal)

 Brittany
 Shalla            $145            -               -           -            -             -
 (paralegal)




                                               4
    Jennifer
    Gutierrez          $105        $105, $135          $145            $148            -             -
    (paralegal)

    Kimberly
    Dutra              $135              -                 -              -            -             -
    (paralegal)

    Tabitha
    Stone              $135           $135                 -              -            -             -
    (paralegal)



Ex. 90 at 28, 50.

        The attorneys practicing at Maglio Christopher & Toale, located in Sarasota, Florida,
Washington, DC, and Seattle, WA, have repeatedly been found to be “in-forum,” and therefore are
entitled to the forum rates utilized by the Office of Special Masters. 4 See Freyre v. Sec’y of Health
& Hum. Servs., No. 16-866V, 

, at *2 (Fed. Cl. Spec. Mstr. June 18, 2020)
(awarding in-forum rates to an attorney practicing in the Sarasota, FL office); Monterroso v. Sec’y
of Health & Hum. Servs., No. 17-1310V, 

, at *2 (Fed. Cl. Spec. Mstr. Dec. 9,
2019) (awarding in-forum rates to an attorney practicing in the Seattle, WA office).

        Upon consideration, given the information proffered by Petitioner herein about the
attorneys and support staff of Maglio Christopher & Toale, along with their overall experience,
the quality of their work, and their reputation in the legal community, I find that the rates requested
are reasonable for the work completed herein and do not require reduction. I also find, after review
of the billing records, that the work performed on the matter was reasonably incurred, and therefore
make no reductions to the time billed. Accordingly, all time requested for attorney or paralegal
work performed on this matter shall be reimbursed.

III.     Calculation of Attorney Costs

         Petitioner also requests an award of $29,294.11 for costs incurred since the claim’s filing,
including legal research charges, medical record retrieval, travel, expert fees, and mailing
expenses. Ex. 91. Such costs are typical in Program cases, Respondent does not otherwise object
to their reasonableness, and I therefore award them as requested. I find, however, that the requested
rate of compensation for Petitioner’s neurology expert, Dr. Enrique Aradillas-Lopez, is



4
     See   Office    of    Special   Masters     Attorneys’     Hourly    Rate   Fee   Schedule:   2019-2020,
https://www.uscfc.uscourts.gov/node/2914 (last visited on Aug. 11, 2020).


                                                       5
unreasonable in light of his overall experience testifying in the Vaccine Program and the work
performed in this matter.

        The reasonableness standards applied to attorney’s fees also bear on fees requested for
expert testimony. See Frantz v Sec’y of Health & Hum. Servs., 

, 145 (2019);
Sabella v. Sec’y of Health & Hum. Servs., 

, 206 (2009) (citing Baker v. Sec’y of the
Dep’t of Health & Hum. Servs., No. 99-653V, 

, at *1 (Fed. Cl. Spec. Mstr. Feb.
24, 2005)). When considering whether an expert’s requested rates are reasonable, a special master
may consider the expert’s area of expertise, education, training, nature and complexity of the
material provided for review, and “any other factor likely to assist the [court] in balancing the
various interests implicated by the Vaccine Act.” See 

(internal
quotations and alterations omitted) (citing Wilcox v. Sec’y of the Dep’t of Health & Hum. Servs.,
No. 90-991V, 

, at *4 (Fed. Cl. Spec. Mstr. Feb. 14, 1997)).

        Special masters “are also entitled to use their prior experience in reviewing fee
applications” in making reasonableness determinations for both attorney’s and expert fees. 

(citing Saxton v. Sec’y of the Dep’t of Health & Hum. Servs., 

,
1521 (Fed. Cir. 1993)). Further, reasonableness determinations regarding an expert’s requested
fees are made on a case-by-case basis and may therefore vary depending on the nature of the case,
the expert’s experience, and the quality of work performed in the matter. See Lewis v. Sec’y of
Health & Hum. Servs., No. 15-907V, --- Fed. Cl. --- 

, at *4 (Fed. Cl. Spec. Mstr.
July 15, 2020) (citing 

). I am not bound by the rates previously awarded
to an expert by other special masters for these same reasons, even though I may reasonably take
into account such prior determinations. Lewis, 

, at *4–5.

        In this matter, Petitioner requests reimbursement at a rate of $600 per hour for thirty-seven
hours of work performed by Dr. Aradillas-Lopez—an amount totaling $22,200.00. Ex. 91 at 2–3,
51–52, 91, 111, 115. She notes that this rate of compensation has been awarded in other Program
cases. See, e.g., Blender v. Sec’y of Health & Hum. Servs., No. 16-1308V, slip op. at 6 (Fed. Cl.
Spec. Mstr. Aug. 5, 2020) (citing Anthony v. Sec’y of Health & Hum. Servs., No. 15-636V, 

, at *2 (Fed. Cl. Spec. Mstr. Oct. 6, 2017) (awarding compensation for work
performed by Dr. Aradillas-Lopez at a rate of $600 per hour)). Petitioner does not otherwise
provide support for the reasonableness of the requested rate herein.

        Having heard his testimony in this manner, I conclude that Dr. Aradillas-Lopez was
qualified to testify within the Program, and I found his testimony generally helpful in resolving
the case. But I do not concur that the rate of $600 per hour is appropriate, because (at the present
time) Dr. Aradillas-Lopez is not amongst those experts who should command the highest rates for
Vaccine Program work. At the entitlement hearing, Dr. Aradillas-Lopez indicated that he has been
involved in only four Program cases, including this one. Tr. at 40. Expert witnesses with
significantly more experience are often compensated at lower rates than is requested by Dr.
Aradillas-Lopez. See Maciel v. Sec'y of Health & Hum. Servs., No. 15-362V, 

                                                 6
(Fed. Cl. Spec. Mstr. Oct. 17, 2019) (awarding $400 and $450 per hour for work performed by an
expert who has testified extensively in the Program); Palattao v. Sec'y of Health & Hum. Servs.,
No. 13-591V, 

, at *4 (Fed. Cl. Spec. Mstr. Sept. 20, 2019) (awarding $500 per
hour for work performed by an expert who has a significant amount of experience testifying in the
Program); Schultz v. Sec'y of Health & Hum. Servs., No. 16-539V, 

, at *4 (Fed.
Cl. Spec. Mstr. Feb. 16, 2018) (awarding $500 per hour for work completed by an expert who is
frequently called to testify in Program cases).

        Petitioner also has not provided sufficient justification for such a high hourly rate. Neither
of the two cited cases involving Dr. Aradillas-Lopez’s prior work on Vaccine Act cases includes
a reasoned analysis outlining why the requested rate was deemed reasonable. By conducting a
closer analysis of the requested rates in light of the circumstances presented in this matter—
specifically, the nature of the claim, Dr. Aradillas-Lopez’s limited experience testifying in the
Program, and the rates of compensation for experts with similar qualifications and experience—I
find that Petitioner has not met her burden in establishing the reasonableness of the requested rate
of $600 per hour. Instead, I award a rate of $450 per hour, resulting in a total deduction of
$5,550.00.

        I acknowledge in ruling as I do that experts may increasingly seek rate awards exceeding
$500, and thus in excess of what has been “traditionally” treated as a ceiling for the most
experienced or credentialed experts. Such requests should be entertained in the Vaccine Program,
and qualified experts should be compensated at levels consistent with what they could expect to
command outside of the Program. But in this case, a $600 hourly rate was not justified (although
it could well be defended if Dr. Aradillas-Lopez testifies again in a subsequent matter).

IV.    Petitioner’s Costs

        Petitioner submitted a statement in compliance with General Order No. 9 stating that she
personally incurred costs related to attending the entitlement hearing in the amount of $779.11.
Ex. 92. These costs were incurred between March 2-5, 2019 and reflect transportation, meals, and
baggage charges.

in this matter, however, took place on March 4-5.
Therefore, the only necessary days for the parties to be present in Washington, DC were March 3-
5, 2019.

       The decision to deny travel costs where a petitioner or petitioner’s counsel traveled
unnecessarily early to a hearing in advance of the argument has been upheld. See Gramza v. Sec’y
of Health & Hum. Servs., No. 15-247V, 

, at *5 (Fed. Cl. Spec. Mstr. June 28,
2017) (declining to reimburse full amount of costs personally incurred by the petitioner when she
and her family traveled to Washington, DC three days prior to the scheduled hearing);
Broekelschen v. Sec’y of Health & Hum. Servs., 

, 732 (2011) (upholding special
master’s determination that it was unnecessary for petitioner’s counsel to travel two days before
the argument, despite traveling from a different time zone). I find that these travel-related costs

                                                  7
were similarly inappropriate. The Program is not responsible for reimbursing an extended visit to
Washington, DC, for counsel or petitioners themselves, regardless of the distance the parties must
travel.

      Accordingly, I limit any travel-associated costs to be awarded to those incurred between
March 3-5. This results in a total deduction of $135.97. 5



                                             CONCLUSION

        Accordingly, in the exercise of the discretion afforded to me in determining the propriety
of a final fees award, and based on the foregoing, I GRANT IN PART Petitioner’s Motion for
Attorney’s Fees and Costs. I therefore award a total of $195,518.51—representing —$171,774.40
in attorney’s fees and $23,744.11 in costs—in the form of a check payable to Petitioner and
Petitioner’s counsel, Maglio Christopher & Toale, PA. Additionally, I award a total of $643.14,
representing costs personally incurred by Petitioner, in the form of a check payable to Petitioner
and Petitioner’s counsel. Both checks are to be forwarded to Maglio Christopher & Toale, PA,
1605 Main Street, Suite 710, Sarasota, Florida 34236.

                                       Attorney’s Fees and Costs

                                   Requested                  Awarded                    Difference

    Attorney’s Fees               $171,774.40                $171,774.40                    $0.00

    Attorney Costs                 $29,294.11                $23,744.11                  $5,550.00

    Total                         $201,068.51                $195,518.51                 $5,550.00



                                           Petitioner’s Costs

                                   Requested                  Awarded                    Difference

    Petitioner Costs                $779.11                    $643.14                    $135.97



            In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the



5
 This reduction accounts for meal expenses incurred on March 2, 2019. Receipts from La Tasca, Bojangles’, and
Panera Bread were used to calculate the necessary reduction. See Ex. 92 at 6, 8.


                                                     8
court SHALL ENTER JUDGMENT in accordance with the terms of this decision. 6


         IT IS SO ORDERED.
                                                                 s/ Brian H. Corcoran
                                                                 Brian H. Corcoran
                                                                 Chief Special Master




6
  Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment if (jointly or separately) they file notices
renouncing their right to seek review.

                                                           9