UNPUBLISHED

DECISION ON ATTORNEYS' FEES AND COSTS1

THOMAS L. GOWEN, Special Master.

On November 9, 2010, Maria Miranda ("petitioner") filed a petition on behalf of her minor child, A.M., pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-1 to -34 (2012). Petitioner alleged that as a result of receiving a Diptheria-Tetanus-acellular Pertussis vaccine on December 21, 2007, A.M. suffered an encephalopathy and seizure disorder. On October 1, 2015, the parties filed a stipulation in which they agreed to an award of compensation to petitioner. On October 5, 2015, the undersigned issued a decision adopting the parties' stipulation for an award. See Decision on J. Stip., filed Oct. 5, 2015.

On April 7, 2016, petitioner filed a motion for attorneys' fees and costs. Petitioner's counsel requested attorneys' fees in the amount of $144,885.003 based on a total of 445.8 hours of work, at a rate of $325.00 an hour. See Supplement Billing Statements Part 1 and 3, docket no. 103, filed Apr. 7, 2016. Petitioner also requested attorneys' costs in the amount of $9,107.96. Id. Pursuant to General Order #9, petitioner's counsel represented that petitioner did not incur any out-of-pocket expenses related to this litigation. See Affidavit of Maria Miranda, docket no. 102-2, filed Apr. 7, 2016; Supplement Fee Agreement, docket no. 102-1, filed Apr. 7, 2016.

On April 25, 2016, respondent filed a response to petitioner's application for attorneys' fees and costs. Respondent indicated that she "is satisfied that the statutory requirements for an award of attorneys' fees and costs are met in this case;" and that she "she submits to the Special Master's sound discretion the determination of a reasonable fee award in this case, including the reasonable hourly rate(s) to be awarded to petitioners' counsel, the number of hours reasonably expended, and the reasonableness of the claimed litigation costs." Respondent's Response ("Response") at 2-3, filed Apr. 25, 2016. Respondent further provided that "[b]ased on a survey of fee awards in similar cases and her experience litigating Vaccine Act claims, respondent asserts that a reasonable amount for fees and costs in the present case, based upon the procedural history as set forth above, would fall between $40,000.00 and $60,000.00." Id. at 4. Respondent requested that the undersigned "exercise his discretion and determine a reasonable award for attorneys' fees and costs within that range." Id.

On May 3, 2016, petitioner's counsel filed a reply to respondent's response, arguing among other things, that the range suggested by respondent "bears no relationship to the amount of time required for this complicated case." Reply at 4-5. She further argued that respondent provided no references or discussion of the specifics for arbitrarily suggesting this range, in contrast to the "valid contemporaneous[ly] prepared billing statement prepared by petitioner's counsel for actual services rendered." Id. at 5. Petitioner's counsel averred that "all attorneys' fees and costs requested were billed contemporaneously, were necessary for the advancement of this case, and were reasonable considering the complicated medical and legal issues, as well as the client's language issues." Id. Counsel stated that her extensive pre-filing research and investigation signifies that this petition was filed in good faith, and that her efforts throughout this litigation resulted in a "substantial settlement for petitioner." Id. at 9.

With regard to costs, petitioner's counsel averred that she "negotiated with The Children's Hospital and other providers to provide extensive records, sometimes about two feet high, at a significantly reduced rate, thus, again, keeping the costs in check for this case. Reply at 9. According to counsel, "[t]his was in addition to agreeing to a joint life care planner paid by respondent, securing gratis interpretation services, and meeting with some health care providers at no cost." Id. Counsel averred that her fees and costs, incurred from 2008 to the present date, are reasonable. Id.

Section 15(e) of the Vaccine Act provides that a "Special Master or Court shall also award as . . . compensation an amount to cover reasonable attorneys' fees, and other costs, incurred in any proceeding on [a] petition." §15(e)(1). The determination of reasonable attorneys' fees and costs is within the special master's discretion. Saxton v. Sec'y of HHS, 3 F.3d 1517, 1520 (Fed. Cir. 1993). Special masters may rely on their prior experience in reviewing fee applications. See id., 3 F.3d at 1521 (citing Farrar v. Sec'y of HHS, 1992 WL 336502 at * 2-3 (Cl. Ct. Spec. Mstr. Nov. 2, 1992)).

The undersigned has reviewed the billing records and documentation of costs. Counsel's requested hourly rate is reasonable, as she has been practicing law since 1988 and her hourly rate of $325.00 falls well within the range of hourly rates I found to be reasonable in the McCulloch decision for an attorney with her years' of experience. See McCulloch v. Sec'y of HHS, No. 09-293, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). Additionally, the number of hours expended by petitioner's counsel are reasonable in light of the excellent result she achieved for her client in a complex case involving significant medical, legal, and language issues. The undersigned is satisfied that counsel made reasonable efforts to keep costs low by securing reduced or gratis services where she could. Notably, counsel has not billed for her time spent replying to respondent's remarks on this fee application. With regard to respondent's suggested range of fees and costs, the undersigned believes that the number of hours expended by counsel in preparing a given case is largely due to the individual complexities of the case, rather than to a type of disease or other general category of cases. The time records of counsel provide the best evidence of hours expended; and in this case, those hours and the hourly rate are reasonable.

Accordingly, the undersigned GRANTS the request for approval and payment of attorneys' fees and costs in the amount of $153,992.96, pursuant to 42 U.S.C. § 300 aa-15(e).

An award should be made as follows:

In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court SHALL ENTER JUDGMENT in accordance herewith.4

IT IS SO ORDERED.