In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: August 24, 2017
* * * * * * * * * * * * * *
KRISTA M. GUT, as Administrator * No. 16-1284V
of the Estate of Jeremy D. Gut, *
*
Petitioner, * Special Master Sanders
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v. *
* Attorneys’ Fees and Costs;
SECRETARY OF HEALTH * Reasonably Hourly Rate; Paralegal
AND HUMAN SERVICES, * Hourly Rate.
*
Respondent. *
* * * * * * * * * * * * * *
Simina Vourlis, Law Offices of Simina Vourlis, Columbus, OH, for Petitioner.
Douglas Ross, United States Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING ATTORNEYS’ FEES AND COSTS1
On October 6, 2016, Krista M. Gut (“Petitioner”), on behalf of the Estate of Jeremy D.
Gut, petitioned for compensation pursuant to the National Vaccine Injury Compensation
Program.2 42 U.S.C. §§ 300aa-10 to -34 (2012). Petitioner alleged that, as a result of an
influenza (“flu”) vaccine administered on September 24, 2014, Mr. Gut developed Guillain-
Barré Syndrome (“GBS”) and subsequently died due to his alleged vaccine-related injury.
Decision 1, ECF No. 26. On June 23, 2017, the undersigned issued a decision awarding
Petitioner compensation pursuant to the parties’ stipulation. Id.
Petitioner filed a motion for attorneys’ fees and costs on July 20, 2017. Mot. Att’ys’
Fees, ECF No. 30. Petitioner requested $23,005.20 in attorneys’ fees and $1,347.62 in costs, for
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This decision shall be posted on the United States Court of Federal Claims’ website, in
accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012) (Federal
Management and Promotion of Electronic Government Services). In accordance with Vaccine
Rule 18(b), a party has 14 days to identify and move to delete medical or other information that
satisfies the criteria in § 300aa-12(d)(4)(B). Further, consistent with the rule requirement, a
motion for redaction must include a proposed redacted decision. If, upon review, the
undersigned agrees that the identified material fits within the requirements of that provision, such
material will be deleted from public access.
2
The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, 42
U.S.C. §§ 300aa-10 et seq. (hereinafter “Vaccine Act,” “the Act,” or “the Program”). Hereafter,
individual section references will be to 42 U.S.C. § 300aa of the Act.
a total of $24,352.82. See id. at 1-2. Petitioner averred that she incurred no personal costs in the
prosecution of this case. Pet’r’s Ex. 16, ECF No. 30-9. Respondent filed a Response on July 20,
2017. Resp’t’s Resp., ECF No. 31. 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.” Id. at 2. 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. See Docket Rep.
The matter is now ripe for consideration.
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 attorney’s
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, DC. 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 (quoting Davis Cty. Solid
Waste Mgmt. v. United States Envtl. Prot. Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). 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.
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a. Hourly Rates
Ms. Vourlis has previously been awarded forum rates, and the undersigned will apply
forum rate ranges to her fee request. See Forde v. Sec’y of Health & Human Servs., No. 15-
185V, 2016 WL 7670920, at *3 (Fed. Cl. Spec. Mstr. Dec. 16, 2016).
In McCulloch, Special Master Gowen determined the reasonable forum rate ranges for
attorneys with varying years of experience. 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 to $425 per hour. Id. An attorney with less than four years of experience, on the
other hand, has a reasonable hourly rate between $150 and $225. Id.
Ms. Vourlis requested hourly rates of $415 for work performed in 2016, and $424 for
2017. Mot. Att’ys’ Fees 1. The undersigned previously awarded Ms. Vourlis these amounts in
Prysock v. Secretary of Health and Human Services, and finds them reasonable. No. 15-1024V,
2017 WL 3574796 (Fed. Cl. Spec. Mstr. July 24, 2017). Ms. Vourlis requested a lower hourly
rate for the paralegal work she performed in this case. Mot. Att’ys’ Fees 2. Ms. Vourlis “does
not employ paralegals or other support staff” and performs this work herself. Id. She
consequently requested an hourly rate of $145 for her paralegal work in 2016, and $148 for her
paralegal work in 2017. Id.; Pet’r’s Ex. 8 at 14, ECF No. 30-1.
The undersigned will reduce Ms. Vourlis’ requested paralegal hourly rate. Similar to
Prysock, Ms. Vourlis argued for her paralegal rate by citing to Forde v. Secretary of Health and
Human Services, No. 15-185V, 2016 WL 7670920, at *3 (Fed. Cl. Spec. Mstr. Dec. 16, 2016),
and Jones v. Secretary of Health and Human Services¸ No. 13-279V, 2016 WL 7233938, at *4
(Fed. Cl. Spec. Mstr. Nov. 18, 2016). Mot. Att’ys’ Fees 2; Prysock, 2017 WL 3574796, at *3.
But, the special masters in the cases cited by Ms. Vourlis did not award her requested paralegal
rate, and the opinions do not put forward a “reasoned explanation” for Ms. Vourlis’ requested
rate. Forde, 2016 WL 7670920 at *3; Jones, 2016 WL 7233938, at *4. The undersigned will
reduce Ms. Vourlis’ requested hourly paralegal rate to $135, the rate found reasonable in
Prysock. 2017 WL 3574796, at *3. The resulting deduction totals $132.60.
b. Hours Expended
The second step in Avera is for the Court to make an upward or downward modification
based upon specific findings. 515 F.3d at 1348. Petitioner requests compensation for 50.4 hours
of work performed by Ms. Vourlis at attorney rates and 12.9 hours of work performed by Ms.
Vourlis at paralegal rates. Pet’r’s Ex. 8 at 14, ECF No. 30-1. On review of the billing record,
the undersigned finds the number of hours expended reasonable.
c. Costs
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’s costs consist
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of court fees and the acquisition and mailing of medical records. See Pet’r’s Ex. 15 at 1. The
undersigned finds them to be reasonable and awards them in full.
II. Conclusion
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. Accordingly, the undersigned
hereby awards the amount of $24,220.22,3 in the form of a check made payable jointly to
Petitioner and Petitioner’s counsel, Simina Vourlis, of Law Offices of Simina Vourlis. 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.
s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master
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This amount is intended to cover all legal expenses incurred in this matter. This award
encompasses all charges by the attorney against a client, “advanced costs” as well as fees for
legal services rendered. Furthermore, § 15(e)(3) prevents an attorney from charging or
collecting fees (including costs) that would be in addition to the amount awarded herein. See
generally Beck v. Sec’y of Health & Human Servs., 924 F.2d 1029 (Fed. Cir. 1991).
4
Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to
seek review. Vaccine Rule 11(a).
4