Filed: Sep. 16, 2016
Latest Update: Sep. 16, 2016
Summary: Not to be Published. ATTORNEY'S FEES AND COSTS DECISION 1 BRIAN H. CORCORAN , Special Master . On December 4, 2015, Kristal Grigg filed a petition on behalf of her minor child, N.G., seeking compensation under the National Vaccine Injury Compensation Program, alleging, among other things, that the Diphtheria-Tetanus-acellular Pertussis-Inactive Polio Vaccine ("DTaP-IPV") N.G. received on August 19, 2014, caused N.G.'s subsequent development of angiomatoid fibrous histiocytoma. 2 ECF No.
Summary: Not to be Published. ATTORNEY'S FEES AND COSTS DECISION 1 BRIAN H. CORCORAN , Special Master . On December 4, 2015, Kristal Grigg filed a petition on behalf of her minor child, N.G., seeking compensation under the National Vaccine Injury Compensation Program, alleging, among other things, that the Diphtheria-Tetanus-acellular Pertussis-Inactive Polio Vaccine ("DTaP-IPV") N.G. received on August 19, 2014, caused N.G.'s subsequent development of angiomatoid fibrous histiocytoma. 2 ECF No. ..
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Not to be Published.
ATTORNEY'S FEES AND COSTS DECISION1
BRIAN H. CORCORAN, Special Master.
On December 4, 2015, Kristal Grigg filed a petition on behalf of her minor child, N.G., seeking compensation under the National Vaccine Injury Compensation Program, alleging, among other things, that the Diphtheria-Tetanus-acellular Pertussis-Inactive Polio Vaccine ("DTaP-IPV") N.G. received on August 19, 2014, caused N.G.'s subsequent development of angiomatoid fibrous histiocytoma.2 ECF No. 1. Thereafter, the parties entered into informal settlement negotiations and requested I issue a "15 Week" Order, and I did so. ECF No. 11. The parties then filed their stipulation for an award of damages on July 11, 2016 (ECF No. 14), and I adopted the stipulation as my decision granting damages on July 12, 2016. ECF No. 15.
Petitioner has now filed a motion for final attorney's fees and costs, dated August 25, 2016. See ECF No. 20. Petitioner requests reimbursement of attorney's fees and costs in the amount of $20,611.14 (representing attorney's fees in the amount of $17,500.00, plus costs in the amount of $3,111.14). Id. Respondent has formally stated that she does not object to the sum requested. ECF No. 21. In addition, and in compliance with General Order No. 9, Petitioner represents that she has not incurred any out-of-pocket, litigation-related expenses in conjunction with this proceeding. ECF No. 20-4.
Though Respondent does not object to the sum requested, special masters have discretion to determine the reasonableness of a fees award. Sabella v. Sec'y of Health & Human Servs., 86 Fed. Cl. 201, 208-09 (2009); Perreira v. Sec'y of Health & Human Servs., 27 Fed. Cl. 29, 34 (1992), aff'd, 33 F.3d 1375 (Fed. Cir. 1994). Here, I find some additional adjustment is warranted.
Ms. Gallagher worked on the present case from 2015 to 2016, and Petitioner requests that Ms. Gallagher receive $350 per hour for both years. Application for Att'y Fees and Costs at 3. However, I previously decided that Ms. Gallagher was not entitled to forum rates, because the majority of her work was performed from her office in Linwood, New Jersey, and the local billing rate was considerably lower than the forum rate. See Gonzalez v. Sec'y of Health & Human Servs., No. 14-1072V, 2015 WL 10435023, at *9 (Fed. Cl. Spec. Mstr. Nov. 10, 2015) (finding that the Davis exception3 applies to Ms. Gallagher). After comparing her requested rates to similarly experienced New Jersey attorneys who did not practice in the immediate New York City metropolitan area, I determined her appropriate hourly rate for work performed in 2015 was $315 per hour. Id. at *12. Accordingly, the rate requested exceeds my prior determination.
There is no documentation to suggest that Ms. Gallagher performed the majority of work in this case somewhere other than Linwood, New Jersey. Because I have already determined that $315 is the appropriate rate for Ms. Gallagher's 2015 work, I will lower the requested rate and award $315 per hour for her work in this case performed during 2015, or $8,190.00 for her 26 hours of work.
I will, however, adjust upward her hourly rate for 2016 to reflect inflation. Ms. Gallagher's $315 per hour rate amounts to $319.82 per hour in 2016. CPI Inflation Calculator, U.S. Bureau of Labor Statistics, http://data.bls.gov/cgi-bin/cpicalc.pl (last accessed September 13, 2016) ("CPI Calculator"). In the exercise of my discretion, I will award $320 per hour for Ms. Gallagher's work on this case in 2016. For the 24 hours of work performed in 2016, Ms. Gallagher will receive $7,680.00. This brings the total amount of attorney's fees awarded to $15,870.00. Attorney's costs will be awarded for the full requested amount of $3,111.14.
Accordingly, an award of $18,981.14 should be made in the form of a check payable jointly to Petitioner and Petitioner's counsel, Carol L. Gallagher, Esq. Payment of this amount represents all attorney's fees and costs available under 42 U.S.C. § 300aa-15(e). In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the Court SHALL ENTER JUDGMENT in accordance with the terms of Petitioner's motion.4
IT IS SO ORDERED.
