DECISION ON ATTORNEYS' FEES AND COSTS1
HERBRINA D. SANDERS, Special Master.
On September 28, 2017, Laura Weishaar, natural daughter of Loretta Nordtvedt and on behalf of the Estate of Loretta Nordtvedt ("petitioner"), filed a petition for compensation pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-10 to 34 (2012). Petitioner alleged that her mother suffered from "a demyelinating polyneuropathy," and ultimately died, as a result of an influenza ("flu") vaccination she received on September 10, 2014. Pet. at 1,
ECF No. 1. On June 4, 2018, petitioner moved unopposed for a decision denying compensation. ECF No. 23. On June 5, 2018, the undersigned issued her Decision dismissing the petition for insufficient proof. Decision, ECF No. 25.
On February 22, 2019, petitioner filed an application for attorneys' fees and costs. ECF No. 33 ("Fees App."). Petitioner requests total attorneys' fees and costs in the amount of $14,115.84 (representing $12,992.10 in fees and $1,123.74 in costs). Fees App. at 2. Pursuant to General Order No. 9, petitioner has indicated that she has not personally incurred any costs in pursuit of this litigation. Id. Respondent responded to the motion on March 7, 2019, indicating that "respondent defers to the Special Master to determine whether the statutory requirements for an award of attorneys' fees and costs (including the reasonable basis requirement) are met in this case." Resp't's Resp. at 2-3 (ECF No. 34). Petitioner did not file a reply thereafter.
This matter is now ripe for consideration.
I. Reasonable Attorneys' Fees and Costs
Section 15(e) (1) of the Vaccine Act allows for the Special Master to award "reasonable attorneys' fees, and other costs." § 300aa-15(e)(1)(A)-(B). Petitioners are entitled to an award of reasonable attorneys' fees and costs if they are entitled to compensation under the Vaccine Act, or, even if they are unsuccessful, they are eligible so long as the Special Master finds that the petition was filed in good faith and with a reasonable basis. livery v. Sec'y of Health & Human Sews., 515 F.3d 1343, 1352 (Fed. Cir. 2008). Here, the undersigned does not doubt that the petition was filed in good faith, and although the petition was eventually dismissed, the undersigned finds that there was reasonable basis to file the petition. Respondent has also not challenged the reasonable basis of the petition. Accordingly, a final award of fees is appropriate.
It is "well within the special master's discretion" to determine the reasonableness of fees. Saxton v. Sec'y of Health & Human Servs., 3 F.3d 1517, 1521-22 (Fed. Cir. 1993); see also Hines v. Sec's of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991). ("[T]he reviewing court must grant the special master wide latitude in determining the reasonableness of both attorneys' fees and costs."). Applications for attorneys' fees must include contemporaneous and specific billing records that indicate the work performed and the number of hours spent on said work. See Savin v. Sec's of Health & Human Servs., 85 Fed. Cl. 313, 316-18 (2008). Such applications, however, should not include hours that are "'excessive, redundant, or otherwise unnecessary.'" Saxton, 3 F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).
Reasonable hourly rates are determined by looking at the "prevailing market rate" in the relevant community. See Blum, 465 U.S. at 895. The "prevailing market rate" is akin to the rate "in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." Id. at 895,11.11. Petitioners bear the burden of providing adequate evidence to prove that the requested hourly rate is reasonable. Id
a. Hourly Rates
The decision in McCulloch provides a framework for consideration of appropriate ranges for attorneys' fees based upon the experience of the practicing attorney. McCulloch v. Sec'y of Health & Human Sews., No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015), motion for recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). The Court has since updated the McCulloch rates, and the Attorneys' Forum Hourly Rate Fee Schedules for 2015-2016, 2017, 2018, and 2019 can be accessed online.3
Petitioner requests the following rates of compensation for the work of her attorney, Ms. Danielle Strait: $307.00 per hour for work performed in 2017 and $322.00 per hour for work performed in 2018. Fees App. Ex. 1 at 15. These rates are consistent with what Ms. Strait has been awarded for her work in the Vaccine Program. See Krater v. Sec'y of Health & Human Servs., No. 17-1209V, 2019 WL 1806626, at *2 (Fed. Cl. Spec. Mstr. Mar. 6, 2019). Accordingly, no adjustment to the requested rates is necessary.
b. Hours 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, 3 F.3d at 1521.
Upon review, the undersigned finds the overall hours billed (62.2) to be reasonable. Counsel has provided sufficiently detailed descriptions for the tasks performed, and upon review the undersigned does not find any of the billing entries to be unreasonable. Respondent has also not indicated that he finds any of the billing entries to be unreasonable. Accordingly, petitioner is entitled to final attorneys' fees in the amount of $12,992.10.
c. Attorneys' Costs
Like attorneys' fees, a request for reimbursement of attorneys' costs must be reasonable. Ferreira v. Sec'y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests a total of $1,123.74 in attorneys' costs. This amount comprises the cost of obtaining medical records, mailing costs, and the Court's filing fee. All the costs appear reasonable in the undersigned's experience and petitioner has provided adequate documentation for them. Petitioner is thus entitled to the full amount of costs sought.
II. Conclusion
Based on all the above, the undersigned finds that petitioner is entitled to the following award of reasonable attorneys' fees and costs:
Attorneys' Fees Requested $12,992.10
(Reduction to Rates) -
Total Attorneys' Fees Awarded $12,992.10
Attorneys' Costs Requested $1,123.74
(Reduction of Costs) -
Total Attorneys' Costs Awarded $1,123.74
Total Attorneys' Fees and Costs $14,115.84
In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), the undersigned has reviewed the billing records and costs in this case and finds that petitioner's request for fees and costs is reasonable. Accordingly, the undersigned awards the following:
1) A lump sum in the amount of $14,115.84, representing reimbursement for petitioner's attorneys' fees and costs, in the form of a check payable to petitioner and her attorney, Ms. Danielle Strait.
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.
