VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01485 Package ID: USCOURTS-cofc-1_20-vv-01485 Petitioner: N.C. Filed: 2022-11-16 Decided: 2024-09-04 Vaccine: DTaP, MMR, inactivated polio Vaccination date: 2018-07-17 Condition: Guillain-Barré syndrome (GBS) Outcome: compensated Award amount USD: 65000 AI-assisted case summary: Kathryn DeLeon, on behalf of her minor daughter N.C., filed a petition on October 28, 2020, alleging that N.C. suffered Guillain-Barré syndrome (GBS) as a result of receiving DTaP, MMR, and inactivated polio vaccines on July 17, 2018. Petitioner further alleged that N.C. experienced residual effects of this injury for more than six months. Respondent denied that the vaccines caused N.C.'s GBS or any other injury, and also denied that N.C.'s current condition was a sequela of a vaccine-related injury. Despite these denials, both parties agreed to settle the case. A stipulation was filed on November 16, 2022, and adopted by Chief Special Master Brian H. Corcoran in a decision awarding damages. The stipulation awarded a lump sum of $65,000.00 to Petitioner as guardian/conservator of N.C.'s estate, representing compensation for all damages available under the National Vaccine Injury Compensation Program Act. Subsequently, Petitioner sought review of a decision issued by Chief Special Master Corcoran on April 8, 2024, which denied supplemental attorneys' fees and costs associated with maintaining N.C.'s guardianship until she reached the age of majority. Petitioner argued that the Chief Special Master erred by failing to consider binding precedent from the United States Court of Appeals for the Federal Circuit, specifically McCulloch v. Secretary of Health and Human Services. Respondent did not oppose Petitioner's Motion for Review. Senior Judge Loren A. Smith of the Court of Federal Claims found that the Chief Special Master erred in denying these costs, citing McCulloch, which held that guardianship maintenance expenses can be legitimate costs under the Vaccine Act when they are a legal precondition for receiving compensation. The Court of Federal Claims granted Petitioner's Motion for Review and remanded the case to the Chief Special Master for reconsideration of the fees and costs related to guardianship maintenance, directing the Special Master to articulate the basis for any decision. The initial decision awarding damages was issued on December 21, 2022, and the decision on attorneys' fees and costs was reissued on September 4, 2024. Theory of causation field: Petitioner alleged that N.C. suffered Guillain-Barré syndrome (GBS) as a result of receiving DTaP, MMR, and inactivated polio vaccines on July 17, 2018, and experienced residual effects for more than six months. Respondent denied causation. The parties reached a stipulation for settlement, and Chief Special Master Brian H. Corcoran adopted the stipulation, awarding a lump sum of $65,000.00 for all damages. The public text does not describe the specific medical theory of causation, expert testimony, or the mechanism by which the vaccines allegedly caused GBS. The case was later reviewed by Senior Judge Loren A. Smith regarding supplemental attorneys' fees and costs for guardianship maintenance, not the underlying entitlement or causation. The initial decision awarding damages was issued on December 21, 2022, and the decision on attorneys' fees was reissued on September 4, 2024. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_20-vv-01485-0 Date issued/filed: 2022-12-21 Pages: 2 Docket text: PUBLIC DECISION (Originally filed: 11/16/2022) regarding 49 DECISION Stipulation/Proffer. Signed by Chief Special Master Brian H. Corcoran. (mva) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01485-LAS Document 53 Filed 12/21/22 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1485V * * * * * * * * * * * * * * * * * * * * * * * * * * Chief Special Master Corcoran KATHRYN DELEON, * parent of N.C., a minor, * * Filed: November 16, 2022 Petitioner, * * v. * * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * * * * * * * * * * * * Ronald C. Homer, Conway Homer, P.C., Boston, MA, for Petitioner. Naseem Kourosh, U.S. Dep’t of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On October 28, 2020, Kathryn DeLeon, on behalf of her minor daughter, N.C., filed a petition seeking compensation under the National Vaccine Injury Compensation Program (“Vaccine Program”).2 Petitioner alleges that N.C. suffered from Guillain-Barré syndrome (“GBS”) as a result of her July 17, 2018, receipt of the diphtheria-tetanus-acellular-pertussis, measles-mumps-rubella, and inactivated polio vaccines. Moreover, Petitioner alleges that N.C. experienced residual effects of this injury for more than six months. 1 Because this decision contains a reasoned explanation for my actions in this case, I will post it on the United States Court of Federal Claims website, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). As provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the decision’s inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen 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 files 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. Id. 2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”). Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix). Case 1:20-vv-01485-LAS Document 53 Filed 12/21/22 Page 2 of 2 Respondent denies that the vaccines in question caused N.C. to suffer GBS or any other injury or condition. Respondent also denies that N.C.’s current condition is a sequela of the vaccine-related injury. Nonetheless both parties, while maintaining their above-stated positions, agreed in a stipulation (filed on November 16, 2022) that the issues before them could be settled, and that a decision should be entered awarding Petitioner compensation. I have reviewed the file, and based upon that review, I conclude that the parties’ stipulation (as attached hereto) is reasonable. I therefore adopt it as my decision in awarding damages on the terms set forth therein. The stipulation awards: • A lump sum of $65,000.00 in the form of a check payable to Petitioner as guardian/conservator of N.C.’s estate. Stipulation ¶ 8. This amount represents compensation for all damages that would be available under Section 15(a) of the Act. I approve a Vaccine Program award in the requested amount set forth above to be made to Petitioner. In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the Court is directed to enter judgment herewith.3 IT IS SO ORDERED. /s/ Brian H. Corcoran Brian H. Corcoran Chief Special Master 3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either jointly or separately) a notice renouncing their right to seek review. ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_20-vv-01485-2 Date issued/filed: 2024-09-04 Pages: 6 Docket text: JUDGE VACCINE REPORTED OPINION reissuing 74 Judge Vaccine Order/Opinion. Signed by Senior Judge Loren A. Smith. (am) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01485-LAS Document 77 Filed 09/04/24 Page 1 of 6 In the United States Court of Federal Claims No. 20-1485 (Filed Under Seal: August 16, 2024) Reissued: September 4, 20241 ) KATHRYN DELEON, as parent of N.C., a ) minor, ) ) Petitioner, ) ) v. ) ) SECRETARY OF HEALTH AND HUMAN ) SERVICES, ) ) Respondent. ) ) Ronald C. Homer, Conway, Homer, P.C., Boston, MA, for petitioner. Naseem Kourosh, Torts Branch, Civil Division, U.S. Department of Justice, Washington, DC, for respondent. ORDER AND OPINION SMITH, Senior Judge Petitioner Kathryn DeLeon, on behalf of her minor child, N.C., seeks review of a decision issued by Chief Special Master Brian H. Corcoran denying in part their Motion for Supplemental Attorneys’ Fees and Costs. See Petitioner’s Motion for Review, ECF No. 70 [hereinafter Pet’r’s Mot.]. Specifically, petitioner appeals from the denial of costs associated with maintaining a guardianship until N.C. reaches the age of majority, arguing that the Chief Special Master’s decision fails to address binding precedent from the United States Court of Appeals for the Federal Circuit. See Petitioner’s Memorandum in Support of the Motion for Review at 2, 7–18, ECF No. 71 [hereinafter Pet’r’s Mem.]. Respondent, the United States, does not oppose petitioner’s Motion for Review. See Respondent’s Response and Notice of Non- Opposition to Petitioner’s Motion for Review, ECF No. 73 [hereinafter Resp’t’s Resp.]. For the following reasons, the Court finds in favor of petitioner and remands the petition to the Chief Special Master for reconsideration in accordance with this Court’s directions. 42 U.S.C. § 300aa-12(e)(2)(C). 1 An unredacted version of this opinion was issued under seal on August 16, 2024. The parties were given an opportunity to propose redactions, but no such proposals were made. Case 1:20-vv-01485-LAS Document 77 Filed 09/04/24 Page 2 of 6 I. Factual and Procedural Background Petitioner brought this action before the Office of Special Masters pursuant to the National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 et seq. (the “Vaccine Act”), alleging that the administration of Diphtheria-Tetanus-acellular-Pertussis (“DTaP”), measles-mumps-rubella (“MMR”), and inactivated polio vaccinations caused N.C. to develop Guillain-Barré Syndrome, an autoimmune condition. See Pet’r’s Mem. at 1. In late 2022, the Special Master issued a decision awarding damages to petitioner, as guardian of N.C.’s estate, pursuant to a Stipulation Agreement reached between the parties. See DeLeon v. Sec’y of Health & Hum. Servs., No. 20-1485V, 2022 WL 17849581 (Fed. Cl. Spec. Mstr. Dec. 21, 2022) (finding that respondent “denies that the vaccines in question caused N.C. to suffer . . . any . . . injury or condition” and “also denies that N.C.’s current condition is a sequel of the vaccine-related injury,” but adopting the parties’ joint settlement). On March 22, 2024, petitioner filed a Supplemental Motion for Attorneys’ Fees and Costs.2 See Supplemental Motion for Attorneys’ Fees and Costs, ECF No. 66. On April 8, 2024, the Chief Special Master issued a decision granting in part the petitioner’s Motion. See Decision on Supplemental Attorneys’ Fees and Costs, ECF No. 69 [hereinafter “Fees Decision”]. The Chief Special Master awarded petitioner a total of $9,029.42 in attorneys’ fees and expenses. See id. These fees include $6,529.42 in additional attorneys’ fees and expenses incurred through representation by Conway Homer, P.C., who represented petitioner before this Court; and $2,500 in attorneys’ fees incurred through representation by Yergrey & Yergey, P.A., who represented petitioner before the courts of Florida during her establishment of guardianship over N.C.’s estate. Id. Relevant to the pending motion, the Chief Special Master declined to award $10,001.35 in additional attorneys’ fees—the amount petitioner alleges is needed to maintain guardianship over N.C.’s estate until she reaches the age of majority.3 See id. II. Legal Standard The Vaccine Act provides for the award of “reasonable attorneys’ fees” and “other costs[] incurred in association with a petition.” 42 U.S.C. § 300aa-15(e)(1). When issuing a decision on attorneys’ fees and costs, a special master is expected to “articulate the basis of any discretionary decision to grant or deny fees, keeping in mind the Vaccine Act’s remedial objective of maintaining petitioners’ access to willing and qualified legal assistance.” James- Cornelius v. Sec’y of Health & Hum. Servs., 984 F.3d 1374, 1381 (Fed. Cir. 2021) (citing H.R. Rep. 99-908, at 22 (1986)). Hence, this Court will overturn a special master’s decision when the special master fails, for instance, to make an independent inquiry into whether an attorneys’ claimed costs are reasonable. See Dominguez v. Sec’y of Health & Hum. Servs., 136 Fed. Cl. 779, 783–85 (2018). 2 Petitioner first filed an Application for Attorneys’ Fees and Costs on May 18, 2024, in order to meet the Court’s deadline for filing under Vaccine Rule 13. See Pet’r’s Mem. at 4 n.6. The supplemental motion pending before the Court was filed once petitioner had calculated certain expenses related to the establishment of guardianship and those related to maintaining guardianship. 3 Under Florida law and relevant procedural rules, guardians/conservators of estates must be represented by a licensed attorney and file annual accounting reports. See Pet’r’s Mem. at 9 (citing Fla. Prob. R. 5.030(a); Fla Stat. §§ 744.367(2), 744.3678). - 2 - Case 1:20-vv-01485-LAS Document 77 Filed 09/04/24 Page 3 of 6 Both this Court and the Federal Circuit have long recognized that the award of attorneys’ fees falls within the discretion of the special masters, owing to their specialized knowledge and superior understanding of vaccine litigation. See, e.g., Saxton v. Sec’y of Dep’t of Health & Hum. Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993). Nevertheless, this Court may “set aside any findings of fact or conclusion of law of the special master found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” or “remand the petition to the special master for further action in accordance with the court’s direction.” 42 U.S.C. §§ 300aa– 12(e)(2)(B)–(C). “If a party alleges that the special master’s decision conflicts with binding precedent, then the Court of Federal Claims performs a de novo review under the not-in- accordance-with-law standard.” Amankwaa v. Sec’y of Health & Hum. Servs., 138 Fed. Cl. 282, 287 (2018) (citing Rodriguez v. Sec’y of Health & Hum. Servs., 632 F.3d 1381, 1384 (Fed. Cir. 2011)) (italics added). III. Discussion Here, petitioner asks this Court to review the Chief Special Master’s decision that denied legal fees associated with maintaining a guardianship, and to rule as a matter of law that the Court award requested expenses to maintain guardianship of N.C.’s estate until N.C. reaches the age of majority. See Pet’r’s Mem. at 1, 19. Specifically, petitioner states that the Stipulation Agreement, entered by both parties and adopted by the Chief Special Master, required petitioner to prove that she is the “guardian/conservator of N.C.’s estate under the laws of the state of Florida” to receive payments awarded. Id. at 6 (quoting Stipulation Agreement, ECF No. 48). Thus, petitioner alleges that: [b]eyond the initial establishment of the guardianship estate in Florida, Petitioner is required by state law to maintain N.C.’s estate until N.C. reaches the age of majority and must do so with assistance of legal counsel under Florida law. See Fla. Prob. R. 5.030 (the state of Florida requires guardians to be represented by an attorney admitted to practice in the state of Florida). Petitioner, through counsel, must file an annual guardianship accounting. Indeed, for all guardianships, Florida law requires preparation of an annual accounting of the estate (Fla. Stat. § 744.367(2)) and an audit fee associated with preparing the accounting of the estate. Fla. Stat. § 744.3678(4) . . . . For discharge of the guardianship when a minor reaches the age of majority, the guardian should be compliant with all required filings. Id. Petitioner calculated that the total cost of maintaining the guardianship until N.C. reaches the age of majority amounts to $10,001.35. Id. at 6–7 (providing a breakdown of the total amount). Petitioner argues that the Chief Special Master’s decision denying these costs is “not in accordance with law,” because it does not consider the U.S. Court of Appeals for the Federal Circuit’s decision in McCulloch v. Secretary of Health and Human Services, 923 F.3d 998 (Fed. Cir. 2019). See id. at 8–10. Petitioner also alleges that the denial of these costs violates the spirit of the Vaccine Act, id. at 11–14, and argues that the Chief Special Master’s legal analysis is - 3 - Case 1:20-vv-01485-LAS Document 77 Filed 09/04/24 Page 4 of 6 inapposite to the present case, id. at 14–18. Notably, respondent does not oppose petitioner’s Motion for Review. See Resp’t’s Resp. In his decision, the Chief Special Master correctly observed that the cost of “[e]stablishing a guardianship . . . [is] a legitimate cost associated with some Vaccine Act claims.” Fees Decision at 4 (citing Barrett v. Sec’y of Health & Hum. Servs., No. 09-389V, 2014 WL 2505689 (Fed. Cl. Spec. Mstr. May 13, 2014)). However, the Chief Special Master went on to rule that “the same is not true for the cost of maintaining a guardianship thereafter,” and denied the relevant part of the petitioner’s motion without consideration of the specific facts of this case. Id. (emphasis original) (citing Crespo v. Sec’y of Health & Hum. Servs., 139 Fed. Cl. 231, 236 (2018)). However, the Chief Special Master also recognized that other special masters have ruled that the costs of maintaining a guardianship are legitimate costs under the Vaccine Act in some cases, thus appearing to create a split within the Program. Id. The Court holds that the Chief Special Master erred in holding that the cost of maintaining a guardianship cannot be a cost “incurred in any proceeding on such petition” within the meaning of the Vaccine Act. 40 U.S.C. §300aa-15(e)(1); Fees Decision at 4. Indeed, the Federal Circuit’s opinion in McCulloch mandates the exact opposite. In that case, Ms. Rachel McCulloch, acting as guardian on behalf of her daughter A.M., requested an award of attorneys’ fees and costs following a merits decision in favor of petitioner. Id. at 999. The special master awarded fees and costs under § 300aa-15(e), including an amount to cover “the expenses, under Florida guardianship law, of maintaining the guardianship for A.M. that had to be maintained as a condition of receiving the full payments that were part of the merits judgment,” including lump-sum and annuity-payout amounts to be paid to the guardian of the estate of A.M. Id. at 999–1000. Following two appeals by the government, the Federal Circuit ultimately affirmed, holding that “it was appropriate for the special master to award the guardianship-maintenance expenses under § 300aa-15(e) because Ms. McCulloch incurred a continuing liability to pay such expenses as a condition of receiving, for her daughter, the compensation awarded on the merits in this proceeding.” Id. at 999. Thus, McCulloch unmistakably holds that the cost of maintaining a guardianship is a legitimate cost in at least some Vaccine Act claims—namely those cases in which maintaining a guardianship is “a legal precondition” for continuing to receive “merits-judgment compensation.” Id. at 1003. The Chief Special Master erred by disregarding McCulloch and relying solely on Crespo v. Secretary of Health and Human Services, 139 Fed. Cl. 231 (2018), which presented this Court with a different legal question. In Crespo, the Court held that the petitioner could not recover “future guardianship costs” associated with a guardian’s discharge of their duty under Florida law, because the petitioner failed to identify “any order from the special master or any requirement under the Vaccine Act, but rather, in a Florida state law” that imposed on the future guardianship duties at issue. Crespo, 139 Fed. Cl. at 235–36. Although that language could plausibly support the Chief Special Master’s conclusion, McCulloch expressly distinguished Crespo as follows: - 4 - Case 1:20-vv-01485-LAS Document 77 Filed 09/04/24 Page 5 of 6 Th[e] situation [in McCulloch] differs from a situation, discussed in Ex rel. Crespo v. Secretary of Health and Human Services, 139 Fed. Cl. 231, 236 (2018), where a Vaccine Act judgment of a lump-sum payment requires only the establishment, but not continuing maintenance, of a guardianship. In the present circumstances, the best application of the government-urged [] test is that continuing legally required guardianship-maintenance expenses are incurred in the Vaccine Act proceeding where, as here, their payment is a precondition for continuing receipt of the compensation granted in the judgment. McCulloch, 923 F.3d at 1003. Because the facts may align more closely to those in McCulloch, the Chief Special Master should have considered the facts of this case when exercising his discretion to award the attorneys’ fees and costs associated with the maintenance of guardianship. The Chief Special Master may or may not find that sound judgment requires the award of an amount less than that requested by the petitioner for maintaining guardianship. In any event, however, the Chief Special Master must “articulate the basis” of this decision rather than summarily deny these costs. See James-Cornelius, 984 F.3d at 1381.    Because guardianship maintenance costs are legitimate in Vaccine Act claims where maintenance is a legal precondition to continuing receipt of compensation, see McCulloch, 923 F.3d at 1003, this Court finds the Chief Special Master’s decision not to consider such costs in line with binding precedent as “not in accordance with law.” See 42 U.S.C. § 300aa– 12(e)(2)(B). The Court remands this case, and will rely on the Chief Special Master’s “superior understanding of the litigation,” see Saxton, 3 F.3d at 1521, to resolve petitioner’s claim for additional attorneys’ fees and costs to maintain guardianship. 42 U.S.C. § 300aa–12(e)(2)(C). Finally, as with every remand, the Court trusts that the Chief Special Master will “compensate injured persons quickly and fairly, with relative certainty and generosity of compensation,” because the spirit of the Program is to provide fair compensation, including for guardianship maintenance, proportional to the injuries incurred. Figueroa v. Sec’y of Health & Hum. Servs., 715 F.3d 1314, 1317–18 (Fed. Cir. 2013) (quoting Cloer v. Sec’y of Health & Hum. Servs., 654 F.3d 1322, 1325–26 (Fed. Cir. 2011) (en banc)). - 5 - Case 1:20-vv-01485-LAS Document 77 Filed 09/04/24 Page 6 of 6 For the foregoing reasons, the Court GRANTS petitioner’s Motion, ECF No. 70, and REMANDS this case back to the Office of Special Masters for proceedings consistent with this opinion. IT IS SO ORDERED. Loren A. Smith s/ Loren A. Smith, Senior Judge - 6 - ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_20-vv-01485-cl-extra-10734006 Date issued/filed: 2024-10-15 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10267416 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1485V ************************* * KATHRYN DELEON, * Chief Special Master Corcoran parent of N.C., a minor, * * Filed: September 17, 2024 Petitioner, * v. * * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * ************************* Ronald Craig Homer, Conway Homer, PC, Boston, MA, for Petitioner. Naseem Kourosh, U.S. Dep’t of Justice, Washington, DC, for Respondent. DECISION GRANTING FINAL AWARD OF ATTORNEY’S FEES AND COSTS 1 On October 28, 2020, Kathryn DeLeon, on behalf of her minor daughter, N.C., filed a petition seeking compensation under the National Vaccine Injury Compensation Program (the “Vaccine Program”). 2 Petition (ECF No. 1) at 1. Petitioner alleged that N.C. suffered from Guillain-Barré syndrome as a result of her July 17, 2018, receipt of the diphtheria-tetanus- acellular-pertussis, measles-mumps-rubella, and inactivated polio vaccines. The parties agreed on a stipulation resolving the case, and I issued a decision awarding Petitioner compensation. See Decision, dated Nov. 16, 2022 (ECF No. 49). Petitioner thereafter filed an initial motion for attorney’s fees and costs (see Motion, dated May 18, 2023) (ECF No. 54) (“Mot.”)), and in July 2023, I issued a decision granting Petitioner all sums requested, with the exception of guardianship-related costs at that time (which remained to be calculated). Petitioner 1 Under Vaccine Rule 18(b), each party has fourteen (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 files 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 present form. Id. 2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) [hereinafter “Vaccine Act” or “the Act”]. Individual section references hereafter will be to Section 300aa of the Act (but will omit the statutory prefix). later filed a Supplemental Motion for Costs related to the resolution of the outstanding guardianship costs. Motion, dated Mar. 22, 2024 (ECF No. 66) (“Supp. Fees Mot.”). I subsequently issued a decision granting costs for establishment of the guardianship, but denying requested costs related to its maintenance. Decision, dated Apr. 8, 2024 (ECF No. 69). Petitioner moved for review of my decision (ECF No. 70), and the motion was granted. See Opinion and Order, dated Aug. 16, 2024 (ECF No. 74) (“Remand Order”) (finding that guardianship maintenance costs are legitimate in Vaccine Act claims where maintenance is a legal precondition to continuing receipt of compensation, and remanding the matter to resolve Petitioner’s request for additional attorney’s fees and costs to maintain guardianship). I have since withdrawn my prior fees decision, in order to comply with the remand Order. Order, dated Sept. 16, 2024 (ECF No. 78). In the meantime, Petitioner filed a supplemental motion for attorney’s fees and costs on August 21, 2024, to include fees incurred in connection with their successful appeal. Second Supplemental Motion, dated Aug. 21, 2024 (ECF No. 75) (“Second Supp. Mot.”). In total, Petitioner requests $36,586.27, reflecting $24,084.92 in fees and costs incurred by the services of the Conway, Homer firm (inclusive of what I had awarded before appeal), and $12,501.35 in costs Petitioner personally incurred (including the future guardianship costs). Second Supp. Mot. at 2. Respondent reacted to the fees request on August 26, 2024. Response, dated Aug. 26, 2024 (ECF No. 76) (“Resp.”). Respondent agrees that Petitioners have satisfied the statutory requirements for a fees award, and otherwise defers the calculation of the amount to be awarded to my discretion. Resp. at 2, 5. For the reasons set forth below, I hereby GRANT Petitioner’s motion, awarding fees and costs in the total amount of $36,586.27. ANALYSIS I. Calculation of Fees Having prevailed in this matter, the Petitioners are entitled to an award of fees and costs. Determining the appropriate amount of the fees award is a two-part process. The first part involves application of the lodestar method—“multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.” Avera v. Sec’y of Health & Hum. Servs., 515 F.3d 1343, 1347–48 (Fed. Cir. 2008) (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). The second part involves adjusting the lodestar calculation up or down to take relevant factors into consideration. Id. at 1348. This standard for calculating a fee award is considered applicable in most cases where a fee award is authorized by federal statute. Hensley v. Eckerhart, 461 U.S. 424, 429–37 (1983). An attorney’s reasonable hourly rate is determined by the “forum rule,” which bases the 2 proper hourly rate to be awarded on the forum in which the relevant court sits (Washington, D.C., for Vaccine Act cases), except where an attorney’s work was not performed in the forum and there is a substantial difference in rates (the so-called “Davis exception”). Avera, 515 F.3d at 1348 (citing Davis Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot. Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). A 2015 decision established the hourly rate ranges for attorneys with different levels of experience who are entitled to the forum rate in the Vaccine Program. See McCulloch v. Sec’y of Health & Hum. Servs., No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). Petitioners request the following rates for his attorneys, based on the years work was performed: Attorney 2023 2024 Ronald Homer $500.00 $500.00 Meredith Daniels $455.00 $485.00 Joseph Pepper $455.00 -- Christina Ciampolilo -- $470.00 Paralegal $185.00 $185.00 Supp. Mot. at 7–11; Second Supp. Mot. at 5–7. The Homer attorneys who provided services in this case practice in Boston, MA—a jurisdiction that has been deemed “in forum.” Accordingly, they should be paid forum rates as established in McCulloch. See Lozano v. Sec’y of Health & Hum. Servs., No. 15-369V, 2020 WL 7869439, at *3 (Fed. Cl. Spec. Mstr. Nov. 30, 2020). The rates requested are also consistent with what has previously been awarded to them, in accordance with the Office of Special Masters’ fee schedule. 3 Japaridze v. Sec’y of Health & Hum. Servs., No. 20-1545V, 2023 WL 4104131, at *1 (Fed. Cl. Spec. Mstr. May 17, 2023); Wharton v. Sec’y of Health & Hum. Servs., No. 20-2036, 2024 WL 3738699, at *1 (Fed. Cl. Spec. Mstr. July 3, 2024); Almudhari v. Sec’y of Health & Hum. Servs., No. 22-1599V, slip op. (Fed. Cl. Spec. Mstr. Aug. 6, 2024). I thus find no cause to reduce them in this instance. And I deem the time devoted to the matter to be reasonable, including time specific to the appeal. I will therefore award all fees requested without adjustment. 3 OSM Attorneys’ Forum Hourly Rate Fee Schedules, https://www.uscfc.uscourts.gov/node/2914 (last visited Sept. 17, 2024). 3 II. Calculation of Costs Just as they are required to establish the reasonableness of requested fees, petitioners must also demonstrate that requested litigation costs are reasonable. Presault v. United States, 52 Fed. Cl. 667, 670 (2002); Perreira v. Sec’y of Dep’t of Health & Hum. Servs., 27 Fed. Cl. 29, 34 (1992). Reasonable costs include the costs of obtaining medical records and expert time incurred while working on a case. Fester v. Sec’y of Health & Hum. Servs., No.10-243V, 2013 WL 5367670, at *16 (Fed. Cl. Spec. Mstr. Aug. 27, 2013). When petitioners fail to substantiate a cost item, such as by not providing appropriate documentation to explain the basis for a particular cost, special masters have refrained from paying the cost at issue. See, e.g., Gardner-Cook v. Sec’y of Health & Hum. Servs., No. 99-480V, 2005 WL 6122520, at *4 (Fed. Cl. Spec. Mstr. June 30, 2005). A. Attorney’s Costs Petitioner seeks $42.42 in final outstanding attorney’s costs, reflecting one mailing fee. Supp. Fees Mot. at 13. This cost category is commonly incurred in the Vaccine Program, is reasonable herein, and shall be awarded. B. Petitioner’s Costs Petitioner explained in her initial supplemental fees motion that she initially began working with the DJS Law Group to establish guardianship over N.C.’s estate. Supp. Fees Mot. at 3. However, an issue arose when both Petitioner and undersigned counsel could not reach the DJS Law Group to get a specific certification to appropriately deposit the compensation check, as well as a final invoice for establishment of guardianship and necessary future expenses to maintain the guardianship. After multiple attempts to reach out over phone and email, counsel discovered that DJS Law Group had abruptly closed. Id. Thus, there is no invoice included in this motion from DJS Law Group. Id. at 4. Petitioner instead began working with Jaclyn C. Blumenfeld, Esq., of Yergey & Yergey, P.A., to establish the guardianship. Id. at 4. Petitioner requests $12,501.35.00 in personally-incurred costs. Supp. Fees Mot. at 15–19. This includes a flat fee of $2,500.00 (covering the cost of establishing Petitioner as N.C.’s guardian), as well as 30.6 additional hours of work to be performed later, at a rate of $340.00 per hour. Id. at 18. Those amounts are what is estimated would be needed to cover the cost for Ms. Blumenfeld to maintain the guardianship annually until the year 2032. To reach this figure, Ms. Blumenfeld has assumed a $1,156.00 per year fees, reflecting 3.4 hours of work performed annually, including reviewing bank statements and preparing annual accounting. Id. She then has discounted this cost to net present value, using a 1% discount rate for each year. Id. Adding the cost of each year together totaled $10,001.35. Id. 4 Establishing a guardianship has been determined to be a legitimate cost associated with some Vaccine Act claims (especially when a stipulated settlement requires it). Barrett v. Sec’y of Health & Hum. Servs., No. 09-389V, 2014 WL 2505689 (Fed. Cl. Spec. Mstr. May 13, 2014). And as noted in the Remand Order, the Federal Circuit has held that McCulloch “unmistakably holds that the cost of maintaining a guardianship is a legitimate cost in at least some Vaccine Act claims—namely those cases in which maintaining a guardianship is a ‘legal precondition” for continuing to receive ‘merits-judgment compensation.’” Remand Order at 4 (citing McCulloch v. Sec’y of Health & Hum. Servs., 923 F.3d 998, 1003 (Fed. Cir. 2019)). Because Petitioner will incur maintenance expenses under Florida law due to N.C.’s vaccine-related injury compensation award, she is entitled to some sum for this category of cost, and the requested amount is reasonable. Accordingly, all requested costs shall be awarded in full. CONCLUSION Based on the foregoing, and in the exercise of the discretion afforded to me in determining the propriety of a final fees award, I GRANT Petitioner’s Motion for Attorney’s Fees and Costs, and award a total of $36,586.27, reflecting (a) $24,084.92 in attorney’s fees and costs, in the form of a check made jointly payable to Petitioner and her attorney Ronald C. Homer, and (b) $12,501.35 in costs personally incurred by Petitioner, in the form of a check made payable to her. In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the Court SHALL ENTER JUDGMENT in accordance with the terms of this Decision. 4 IT IS SO ORDERED. s/ Brian H. Corcoran Brian H. Corcoran Chief Special Master 4 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment if (jointly or separately) they file notices renouncing their right to seek review. 5