In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
(Filed: May 27, 2021)
* * * * * * * * * * * * * *
BRIANNA RICH and JEFFREY *
RICH as parents and natural *
guardians of S.G.R., a minor child, * UNPUBLISHED
* No. 18-353V
Petitioners, *
* Special Master Dorsey
v. *
* Attorneys’ Fees and Costs
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Diana L. Stadelnikas, Maglio, Christopher & Toale, PA, Sarasota, FL, for petitioners.
Lara A. Englund, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On March 7, 2018, Brianna and Jeffrey Rich (“petitioners”) filed a petition in the National
Vaccine Injury Compensation Program on behalf of their minor child, S.G.R.2 Petitioners alleged that
as a result of a diphtheria-tetanus-acellular pertussis vaccine administered on April 17, 2015, S.G.R.
suffers from localization-related epilepsy. Petition at 1-2 (ECF No. 1). On February 2, 2021, the
parties filed a stipulation, which the undersigned adopted as her decision awarding compensation
on the same day. (ECF No. 57).
1
This decision will be posted on the website of the United States Court of Federal Claims' website, in accordance
with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012). This means the Decision will be available to
anyone with access to the internet. As provided by 44 U.S.C. § 300aa-12(d)(4)B), however, the parties may object
to the published Decision’s inclusion of certain kinds of confidential information. Specifically, Under Vaccine Rule
18(b), each party has 14 days within which to request redaction “of any information furnished by that party: (1) that
is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical
filed or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine
Rule 18(b). Otherwise the whole decision will be available to the public in its current form. Id.
2
The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine
Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-1 to -34 (2012)
(“Vaccine Act” or “the Act). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.
§§ 300aa.
On March 1, 2021, petitioners filed an application for attorneys’ fees and costs. Motion
for Attorney Fees and Costs (ECF No. 62). Petitioners request compensation in the amount of
$83,780.06, representing $70,258.50 in attorneys’ fees and $13,521.56 in attorneys’ costs. Fees
App. at 1-2. Pursuant to General Order No. 9, petitioners state they have not incurred any costs
related to the prosecution of their petition. (ECF No. 49-3). Respondent filed his response on
March 1, 2021 indicating that he “is satisfied the statutory requirements for an award of
attorneys’ fees and costs are met in this case.” Response at 2 (ECF No. 63). On March 4, 2021,
petitioners filed their reply requesting the fees and costs be awarded in full. (ECF No. 564. The
matter is now ripe for disposition.
For the reasons discussed below, the undersigned GRANTS petitioners’ motion and
awards a total of $83,780.06.
I. Discussion
Under the Vaccine Act, the special master shall award reasonable attorneys’ fees and
costs for any petition that results in an award of compensation. 42 U.S.C. § 300aa-15(e)(1).
When compensation is not awarded, the special master “may” award reasonable attorneys’ fees
and costs “if the special master or court determines that the petition was brought in good faith
and there was a reasonable basis for the claim for which the petition was brought.” Id. at
§15(e)(1). In this case, because petitioners were awarded compensation pursuant to a
stipulation, they are entitled to a final award of reasonable attorneys’ fees and costs.
a. Reasonable Attorneys’ Fees
The Federal Circuit has approved use of the lodestar approach to determine reasonable
attorney’s fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515
F.3d 1343, 1349 (Fed. Cir. 2008). Using the lodestar approach, a court first determines “an
initial estimate of a reasonable attorney’s fee by ‘multiplying the number of hours reasonably
expended on the litigation times a reasonable hourly rate.’” Id. at 1347-58 (quoting Blum v.
Stenson, 465 U.S. 886, 888 (1984)). Then, the court may make an upward or downward
departure from the initial calculation of the fee award based on other specific findings. Id. at
1348.
Counsel must submit fee requests that include contemporaneous and specific billing
records indicating the service performed, the number of hours expended on the service, and the
name of the person performing the service. See Savin v. Sec’y of Health and Human Servs., 85
Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee requests hours that are
“excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health and Human Servs.,
3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). 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.” Id. at 1522. Furthermore, the
special master may reduce a fee request sua sponte, apart from objections raised by respondent
and without providing a petitioner notice and opportunity to respond. See Sabella v. Sec’y of
Health & Human Servs., 86 Fed. Cl. 201, 209 (2009).
2
A special master need not engage in a line-by-line analysis of a petitioner’s fee
application when reducing fees. Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl.
719, 729 (2011). Special masters may rely on their experience with the Vaccine Program and its
attorneys to determine the reasonable number of hours expended. Wasson v. Sec’y of Health
and Human Servs., 24 Cl. Ct. 482, 484 (Fed. Cl. Nov. 19, 1991) rev’d on other grounds and aff’d
in relevant part, 988 F. 2d 131 (Fed. Cir. 1993). Just as “[t]rial courts routinely use their prior
experience to reduce hourly rates and the number of hours clamed in attorney fee requests …
[v]accine program special masters are also entitled to use their prior experience in reviewing fee
application.” Saxton, 3 F. 3d at 1521.
i. Reasonable Hourly Rates
Petitioners request the following rates of compensation for their attorney, Ms. Diana
Stadelnikas at the rate of $396 per hour for work performed in 2018, $415 per hour for work
performed in 2019, $440 per hour for work performed in 2020, and $470 per hour for work
performed in 2021. These rates are consistent with what Ms. Stadelnikas has previously been
awarded for her Vaccine Program work, and the undersigned finds them to be reasonable herein.
ii. Reasonable Hours Expended
The overall hours spent on this matter appear to be reasonable. The undersigned has
reviewed the billing entries and finds that they adequately describe the work done on the case
and the amount of time spent on that work. None of the entries appear objectionable, nor has
respondent identified any entries as objectionable. Accordingly, petitioners are entitled to a final
award of attorneys’ fees in the amount of $70,258.50.
b. Attorneys’ Costs
Petitioners request a total of $13,521.56 in attorneys’ costs. This amount is comprised of
acquiring medical records, postage, the Court’s filing fee, and work performed by petitioner’s
medical expert, Dr. John Gaitanis. Petitioners have provided adequate documentation supporting
the requested costs and all appear reasonable in the undersigned’s experience. Petitioners are
therefore awarded the full amount of costs requested.
II. Conclusion
Based on all of the above, the undersigned finds that it is reasonable compensate
petitioners and their counsel as follows:
Attorneys’ Fees Requested $70,258.50
(Total Reduction from Billing Hours) -
Total Attorneys’ Fees Awarded $70,258.50
3
Attorneys’ Costs Requested $13,521.56
(Reduction of Costs) -
Total Attorneys’ Costs Awarded $13,521.56
Total Attorneys’ Fees and Costs Awarded $83,780.06
Accordingly, the undersigned awards a lump sum in the amount of $83,780.06,
representing attorneys’ fees and costs, in the form of a check payable jointly to petitioners
and their counsel, Ms. Diana L. Stadelnikas. Petitioner request the check be forwarded to
Maglio Christopher & Toale, PA, 1605 Main Street, Suite 710, Sarasota, Florida 34236.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
Court SHALL ENTER JUDGMENT in accordance with this decision.3
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Special Master
3
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing
the right to seek review.
4