Not to be Published

DECISION GRANTING FINAL AWARD OF ATTORNEY'S FEES AND COSTS1

BRIAN H. CORCORAN, Special Master.

On December 22, 2017, Sarah Neal filed a petition seeking compensation under the National Vaccine Injury Compensation Program ("Vaccine Program").2 Petitioner alleged that her receipt of the tetanus-diphtheria-acellular pertussis ("TDaP") vaccine on December 22, 2015, caused the in utero death of her son, C.N., which in turn caused her to experience emotional and psychological suffering. Petition (ECF No. 1) at 1. This case was filed in conjunction with a petition on behalf of C.N., which was dismissed on July 24, 2018, on the grounds that the Vaccine Act's provisions relating to vaccines impacting infants in utero does not cover deceased unborn children. Neal v. Sec'y of Health & Human Servs., No. 17-2020V, 2018 WL 4482535 (Fed. Cl. Spec. Mstr. July 24, 2018). On May 31, 2019, Petitioner filed an unopposed motion to dismiss this Petition, and on June 5, 2019, I issued my decision granting the motion. ECF No. 28.

Petitioner has now filed a motion requesting final attorney's fees and costs, dated June 10, 2019 (ECF No. 33) ("Fees App."), requesting a total award of $24,640.65 (representing $24,127.50 in fees, plus $513.15 in costs). Fees App. at 1. Pursuant to General Order No. 9, Petitioner warrants that she has not personally incurred any costs in pursuit of this litigation. Fees App. Ex. D at 1. Respondent reacted to the motion on June 24, 2019, indicating that he is satisfied that the statutory requirements for an award of attorney's fees and costs are met in this case, and deferring to my discretion to determine the amount to be awarded. Response, ECF No. 34, at 2-3. Petitioner did not file a reply thereafter.

For the reasons set forth below, I hereby GRANT Petitioner's motion, awarding final attorney's fees and costs in the amount of $20,850.65.

ANALYSIS

Vaccine Program attorneys are entitled to a fees award in successful cases like this one. Determining the appropriate amount of that 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 & Human Servs., 515 F.3d 1343, 1347-48 (Fed. Cir. 2008) (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)).3 The second part involves adjusting the lodestar calculation up or down to take relevant factors into consideration. Avera, 515 F.3d at 1348. 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, 461 U.S. 424, 429-37 (1983).

Petitioner requests the following rates of compensation for her attorney, Ms. Phyllis Widman: $300.00 per hour for work performed in 2017, and $350.00 per hour for work performed in 2018-2019. These rates are consistent with what Ms. Widman has previously been awarded for her Vaccine Program work, and they are also within the ranges prescribed by this Court's Attorney's Hourly Rate Fee Schedule.4 See Maxwell v. Sec'y of Health & Human Servs., No. 16-827V, 2018 WL 5095119 (Fed. Cl. Spec. Mstr. Sept. 17, 2018); Neal v. Sec'y of Health & Human Servs., No. 17-2020V, 2018 WL 6288187 (Fed. Cl. Spec. Mstr. Oct. 19, 2018). Accordingly, no adjustment to the requested rates is necessary.

Upon review of the billing entries, I find that the awarded hours billed must be reduced due to duplicate entries with the case filed simultaneously with this one (on behalf of Petitioner's unborn child). When I issued a fees award in the related dismissed case, I noted the possibility of duplication, stating my intention to "resolve whether any time billed to this matter was equally devoted to the parallel still-pending case when the fees request is submitted in that matter." Neal v. Sec'y of Health & Human Servs., No. 17-2020V, slip op. at 5 (Fed. Cl. Spec. Mstr. Oct. 19, 2018). Here, I have observed several billing entries which overlap with time already billed (and therefore paid for) in the original case. Examples include an entry on 2/27/17 of 1.0 hours on "Initial telephone call with client", an entry of 2.0 hours on 7/31/17 on "research on vaccine safety and cases", an entry of 0.4 hours on 1/19/18 for "Telephone call with client." Fees App. Ex. A at 1-2. There are also entries which appear to be copied over from the previous fees application, because they reflect work performed on the other case and not the instant one (e.g., on April 9-10, Ms. Widman billed over four hours on preparation for a conference call, participating in the call, and review of a scheduling order when the status conference was held in petitioner's other case, not the instant one). Id. at 3.

In sum, I have totaled 11.6 hours of time billed in the instant case (5.4 hours in 2017 and 6.2 hours in 2018) duplicative of time already awarded.5 Therefore, I shall reduce the final award of attorney's fees in this case by $3,790.00.6

I will next turn to costs. Just as they are required to establish the reasonableness of requested fees, petitioners must also demonstrate that requested litigation costs are reasonable. Perreira v. Sec'y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992); Presault v. United States, 52 Fed. Cl. 667, 670 (Fed. Cl. 2002). Reasonable costs include the costs of obtaining medical records and expert time incurred while working on a case. Fester v. Sec'y of Health & Human Servs., No. 10-243V, 2013 WL 5367670, at *16 (Fed. Cl. Spec. Mstr. Aug. 27, 2013). When petitioners fail to carry their burden, such as by not providing appropriate documentation to substantiate a requested cost, special masters have refrained from awarding compensation. See, e.g., Gardner-Cook v. Sec'y of Health & Human Servs., No. 99-480V, 2005 WL 6122520, at *4 (Fed. Cl. Spec. Mstr. June 30, 2005).

Petitioner requests $513.15 in overall costs. Fees. App. at 1. This amount is comprised of obtaining medical records, purchasing transcripts, and the Court's filing fee. I have reviewed all of the requested costs and find them to be reasonable, and Petitioner has provided adequate documentation supporting them. Accordingly, Petitioner is entitled to the full amount of costs requested.

CONCLUSION

The Vaccine Act permits an award of reasonable attorney's fees and costs. 42 U.S.C. § 300aa-15(e). Accordingly, I award a total of $20,850.65 as a lump sum in the form of a check jointly payable to Petitioner and her counsel, Ms. Phyllis Widman, Esq. In the absence of a timely-filed motion for review (see Appendix B to the Rules of the Court), the Clerk shall enter judgment in accordance with this decision.7

IT IS SO ORDERED.