DECISION ON ATTORNEYS' FEES AND COSTS 1
HERBRINA D. SANDERS, Special masters.
On August 19, 2015, Michael Vanderpoel ("Petitioner") petitioned for compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (2012).
On April 14, 2017, Petitioner filed an application for attorneys' fees and costs. Petitioner requested attorneys' fees in the amount of $28,868.75 and attorneys' costs in the amount of $1,877.72. See Pet'r's Mot. Att'ys' Fees and Costs ("Mot.") at 1, ECF No. 38. Pursuant to General Order 9, Petitioner stated that he had not personally incurred any expenses during the prosecution of this claim. Id. at 14. Respondent indicated that "[t]o the extent the Special Master is treating [P]etitioner's request for attorneys' fees and costs as a motion that requires a response from [R]espondent . . . Respondent is satisfied the statutory requirements for an award of attorneys' fees and costs are met in this case." Resp't's Resp. at 2 (May 4, 2017), ECF No. 40. Respondent recommended that the undersigned exercise her discretion and determine a reasonable award for attorneys' fees and costs. Id. at 3. Petitioner did not file a reply thereafter.
For the reasons discussed below, the undersigned awards Petitioner $20,567.63 in attorneys' fees and $1,877.72 in attorneys' costs, for a total award of $22,445.35.
I. Reasonable Attorneys' Fees and Costs
The Vaccine Act permits an award of reasonable attorneys' fees and costs. § 15(e). The Federal Circuit has approved the lodestar approach to determine reasonable attorneys' fees and costs under the Vaccine Act. Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed. Cir. 2008). This is a two-step process. Id. First, a court determines an "initial estimate . . . by `multiplying the numbers 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)). Second, the court may make an upward or downward departure from the initial calculation of the fee award based on specific findings. Id. at 1348.
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'y 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'y of Health & Human Servs., 85 Fed. Cl. 313, 316-18 (2008).
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, n.11. The petitioner bears the burden of providing adequate evidence to prove that the requested hourly rate is reasonable. Id.
In Avera, the Federal Circuit determined that the forum of the Vaccine Act is Washington, D.C. 515 F.3d at 1348. The Federal Circuit also decided that the forum rate for attorneys' fees should generally apply in Program cases. Id. However, it created an exception pursuant to Davis County: where most of an attorney's work is performed outside of the forum and there is a "very significant difference" between the forum rate and the attorney's lower local rate, a court should calculate fees under the local rate. Id. at 1349. A court must first determine the forum rate, then determine the local rate, and finally determine whether a "very significant difference" exists between them. Davis Cty., 169 F.3d at 758.
a. Hourly Rates
Special Masters have found it appropriate to award Philadelphia attorneys forum rates for their work in the Vaccine Program. See Colagreco v. Sec'y of Health & Human Servs., No. 14-465V, 2016 WL 6518579 (Fed. Cl. Spec. Mstr. Sept. 26, 2016) (finding that "Muller Brazil's office is located in Dresher, Pennsylvania, which is near Philadelphia, Pennsylvania [and] Philadelphia attorneys have been awarded forum rates in the past for their work in the Vaccine Program"); Rodd v. Sec'y of Health & Human Servs., No. 13-122V, 2016 WL 2727147, at *2 (Fed. Cl. Spec. Mstr. Apr. 13, 2016) (awarding a Philadelphia attorney with less than four years of legal experience the relevant McCulloch range, for an hourly rate of $225 per hour); B.K. v. Sec'y of Health & Human Servs., No. 14-505V, 2016 WL 1594008, at *1 (Fed. Cl. Spec. Mstr. Mar. 28, 2016) (awarding the McCulloch rate of $275 per hour to a Philadelphia attorney with four to seven years' experience). Therefore, it is appropriate to apply the McCulloch forum rate ranges to the work performed by Mr. Lindheim and Mr. Weinstein, whose office is located in Philadelphia, Pennsylvania.
Special Master Gowen determined the reasonable forum rate ranges for attorneys with varying years of experience. McCulloch v. Sec'y of Health & Human Servs., 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). Pursuant to McCulloch, a forum attorney with more than 20 years of experience may be awarded $350.00 to $425.00 per hour.
In the instant case, Mr. Lindheim had been practicing for twenty-seven years in 2015. See Pet'r's Mot. at 10. Thus, he would fall within the $350 to $415 McCulloch range. Mr. Lindheim's requested hourly rate of $475.00 for work performed from 2015 to 2017 is outside the acceptable range. The undersigned finds that $382.50 is a reasonable hourly rate for Mr. Lindheim, given the considerable number of years he has practiced law and the relatively small number of cases he has had in the Vaccine Program. Likewise, Mr. Weinstein's requested hourly rate of $350.00 for work performed from 2015 to 2016 is outside of the usual range for attorneys with less than four years' experience. Mr. Weinstein had been practicing for two years in 2015 and would thus fall in the $150 to $225 McCulloch range. Pet'r's Mot. at 11. The undersigned finds that $187.50 is an appropriate hourly rate for Mr. Weinstein, since this is his first case in the program. Therefore, the total fee reductions for Mr. Lindheim and Mr. Weinstein are $3,686.12 and $4,615.00, respectively.
b. Hours Expended
Petitioner requests compensation for 39.85 hours of work performed by Mr. Lindheim and 28.40 hours of work performed by Mr. Weinstein. On review of the billing record, the undersigned finds the number of hours expended reasonable.
Like attorneys' fees, a request for reimbursement of costs must be reasonable. Perreira v. Sec'y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests $1,877.72 in attorneys' costs. The costs are associated with medical record retrieval, travel to meet experts, postage, expert expenses, and a filing fee. The undersigned finds them to be reasonable and awards them in full.
Based on all of the above, the undersigned finds that Petitioner is entitled to the following award of reasonable attorneys' fees and costs:
The undersigned has reviewed Petitioner's counsel's detailed records of time and expenses incurred in this case, and they are reasonable with the above reductions. In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), the undersigned finds that Petitioner is entitled to attorneys' fees and costs.