UNPUBLISHED

DECISION ON ATTORNEYS' FEES AND COSTS1

MINDY MICHAELS ROTH, Special Master.

On January 8, 2015, Oscar Dighero ("Mr. Dighero" or "petitioner") filed a petition for compensation under the National Vaccine Injury Compensation Program.2 Petitioner alleges that he developed Guillain-Barre Syndrome ("GBS") as a result of receiving an influenza vaccination on November 25, 2013. See Petition ("Pet."), ECF No. 1. On October 19, 2017, the undersigned issued a Decision awarding compensation to petitioner based on respondent's proffer. See Decision, ECF No. 45.

On February 27, 2018, petitioner filed a Motion for Attorneys' Fees and Costs. Motion for Fees, ECF No. 50. Petitioner requests attorneys' fees in the amount of $58,908.20 and attorneys' costs in the amount of $15,442.49, for a total amount of $74,350.69. Id. at 1-2. In accordance with General Order #9, petitioner's counsel represents that petitioner incurred $12.40 in out-of-pocket expenses. Id. at 2.

On March 8, 2018, respondent filed a response to petitioners' Motion for Fees. Response, ECF No. 51. Respondent provided no specific objection to the amount requested or hours worked, but instead, "respectfully recommend[ed] that the Special Master exercise her discretion and determine a reasonable award for attorneys' fees and costs." Id. at 3. Petitioner filed a reply on March 9, 2018. Reply, ECF No. 52. Petitioner filed an amendment ("Supplement") to his Motion on April 3, 2018, which reduced his request for attorneys' costs by $609.68 for a total of attorneys' costs of $14,832.81 and a total award of attorneys' fees and costs of $73,741.01. Supplement at 2, ECF No. 55. This matter is now ripe for decision.

I. Legal Framework T he Vaccine Act permits an award of "reasonable attorneys' fees" and "other costs." § 15(e)(1). If a petitioner succeeds on the merits of his or her claim, the award of attorneys' fees is automatic. Id.; see Sebelius v. Cloer, 133 S.Ct. 1886, 1891 (2013). However, a petitioner need not prevail on entitlement to receive a fee award as long as the petition was brought in "good faith" and there was a "reasonable basis" for the claim to proceed. § 15(e)(1).

The Federal Circuit has endorsed the use of the lodestar approach to determine what constitutes "reasonable attorneys' fees" and "other costs" under the Vaccine Act. Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343, 1349 (Fed. Cir. 2008). Under this approach, "an initial estimate of a reasonable attorneys' fees" is calculated by "multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate." Id. at 1347-48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). That product is then adjusted upward or downward based on other specific findings. Id.

Special masters have substantial discretion in awarding fees and may adjust a fee request sua sponte, apart from objections raised by respondent and without providing petitioners with notice and opportunity to respond.3 See Sabella v. Sec'y of Health & Human Servs., 86 Fed. Cl. 201, 209 (2009). Special masters need not engage in a line-by-line analysis of petitioner's fee application when reducing fees. See Broekelschen v. Sec'y of Health & Human Servs., 102 Fed. Cl. 719, 729 (2011).

II. Discussion

A. Reasonable Hourly Rate

A "reasonable hourly rate" is defined as the rate "prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." Avera, 515 F.3d at 1348 (quoting Blum, 465 U.S. at 896 n.11). In general, this rate is based on "the forum rate for the District of Columbia" rather than "the rate in the geographic area of the practice of petitioner's attorney." Rodriguez v. Sec'y of Health & Human Servs., 632 F.3d 1381, 1384 (Fed. Cir. 2011) (citing Avera, 515 F. 3d at 1349). There is a "limited exception" that provides for attorney's fees to be awarded at local hourly rates when "the bulk of the attorney's work is done outside the forum jurisdiction" and "there is a very significant difference" between the local hourly rate and forum hourly rate. Id. This is known as the Davis County exception. See Hall v. Sec'y of Health & Human Servs., 640 F.3d 1351, 1353 (2011) (citing Davis Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. EPA, 169 F.3d 755, 758 (D.C. Cir. 1999)).

Ms. Stadelnikas practices in Sarasota, FL. Special masters have consistently awarded forum rates to legal professionals practicing in the greater Sarasota area. See, e.g., Dezern v. Sec'y of Health & Human Servs., No. 13-643V, 2016 WL 6678496 (Fed. Cl. Spec. Mstr. Oct. 14, 2016). Therefore, forum rates apply in this case.

For cases in which forum rates apply, McCulloch provides the framework for determining the appropriate hourly rate range for attorneys' fees based upon the attorneys' experience. See McCulloch v. Sec'y of Health & Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). The Office of Special Masters has accepted the decision in McCulloch and has issued a Fee Schedule for subsequent years.4

The requested hourly forum rates are consistent with the McCulloch framework as well as rates previously found to be reasonable in cases involving petitioner's counsel, Diana Stadelnikas. See e.g., Proctor v. Sec'y of Health & Human Servs., No. 16-1412V, 2018 WL 945858 (Fed. Cl. Spec. Mstr. Jan. 26, 2018); Sewell v. Sec'y of Health & Human Servs., No. 12-124V, 2017 WL 6206208 (Fed. Cl. Spec. Mstr. Nov. 13, 2017).

B. Hours Reasonably Expended

Attorneys' fees are awarded for the "number of hours reasonably expended on the litigation." Avera, 515 F.3d at 1348. Counsel should not include in their fee requests hours that are "excessive, redundant, or otherwise unnecessary." Saxton ex rel. Saxton v. Sec'y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). "Unreasonably duplicative or excessive billing" includes "an attorney billing for a single task on multiple occasions, multiple attorneys billing for a single task, attorneys billing excessively for intra office communications, attorneys billing excessive hours, [and] attorneys entering erroneous billing entries." Raymo v. Sec'y of Health & Human Servs., 129 Fed. Cl. 691, 703 (2016). While attorneys may be compensated for non-attorney-level work, the rate must be comparable to what would be paid for a paralegal or secretary. See O'Neill v. Sec'y of Health & Human Servs., No. 08-243V, 2015 WL 2399211, at *9 (Fed. Cl. Spec. Mstr. Apr. 28, 2015). Clerical and secretarial tasks should not be billed at all, regardless of who performs them. See, e.g., McCulloch, 2015 WL 5634323, at *26. Hours spent traveling are ordinarily compensated at one-half of the normal hourly attorney rate. See Scott v. Sec'y of Health & Human Servs., No. 08-756V, 2014 WL 2885684, at *3 (Fed. Cl. Spec. Mstr. June 5, 2014) (collecting cases). And "it is inappropriate for counsel to bill time for educating themselves about basic aspects of the Vaccine Program." Matthews v. Sec'y of Health & Human Servs., No 14-1111V, 2016 WL 2853910, at *2 (Fed. Cl. Spec. Mstr. Apr. 18, 2016). Ultimately, it is "well within the Special Master's discretion to reduce the hours to a number that, in [her] experience and judgment, [is] reasonable for the work done." Saxton, 3 F.3d at 1522. In exercising that discretion, special masters may reduce the number of hours submitted by a percentage of the amount charged. See Broekelschen, 102 Fed. Cl. at 728-29 (affirming the Special Master's reduction of attorney and paralegal hours); Guy v. Sec'y of Health & Human Servs., 38 Fed. Cl. 403, 406 (1997) (same).

Upon review of petitioner's application, the number of hours expended in this case appears to be reasonable. Accordingly, $58,908.20 is awarded in attorneys' fees.

C. Reasonable Costs

Petitioner originally requested a total of $15,442.49 in attorneys' costs but later reduced this request to $14,832.81. See Motion for Fees, ECF No. 50-2; Supplement at 2, ECF No. 55. The requested costs consist of $10,727.30 in fees to life care planner Liz Holkaiewicz, $2,234.94, in travel costs, which was reduced to $1,625.26 in petitioner's supplement, and $1,021.64 in costs associated with obtaining medical records. Id.

Petitioner's costs seem reasonable. Accordingly, $14,832.81 is awarded in attorneys' costs.

III. Total Award Summary

Based on the foregoing, the undersigned awards the total of $73,753.41,5 as follows:

The Clerk of the Court is directed to enter judgment in accordance with this Decision.6

IT IS SO ORDERED.