               In the United States Court of Federal Claims
                                    OFFICE OF SPECIAL MASTERS

* * * * * * *                   *   *    * *  *   *
LINDA D. KOOKER,                           *            UNPUBLISHED
                                           *
              Petitioner,                  *            No. 18-453V
                                           *
v.                                         *            Special Master Gowen
                                           *
SECRETARY OF HEALTH                        *
AND HUMAN SERVICES,                        *            Attorneys’ Fees and Costs;
                                           *            Voluntary Dismissal.
              Respondent.                  *
                                           *
* * * * * * * * * * * * *
Laurie C. TeWinkle, Law Offices of L.C. TeWinkle, LLC, Erie, PA, for petitioner.
Robert P. Coleman, Department of Justice, Washington, D.C., for respondent.

                         DECISION ON ATTORNEYS’ FEES AND COSTS1

       On October 7, 2019, Linda Kooker (“petitioner”), filed a motion for attorneys’ fees and
costs. Petitioner’s Motion for Attorney Fees (“Fees. App.”) (ECF No. 36). For the reasons
discussed below, I GRANT, petitioner’s motion for attorneys’ fees and costs and award a total
of $6,756.45.

    I.       Procedural History

        On June 7, 2016, Linda Kooker (“petitioner”) filed a petition pursuant to the National
Vaccine Injury Compensation Program.2 Petitioner alleged as a result of an influenza (“flu”)
vaccine she received on December 2, 2016, she developed left shoulder adhesive capsulitis.
Petition at ¶ 8. On October 2, 2019, petitioner filed a motion for a decision dismissing the


1
  Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this opinion contains a
reasoned explanation for the action in this case, I am required to post it on the website of the United States Court of
Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. This means the
opinion will be available to anyone with access to the Internet. Before the decision is posted on the court’s
website, each party has 14 days to file a motion requesting 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). An objecting party must provide the court with a proposed redacted version of the
opinion. Id. If neither party files a motion for redaction within 14 days, the opinion will be posted on the
court’s website without any changes. Id.
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” or “the Act”). Hereafter, individual section references will be to 42 U.S.C. §300aa
of the Act.
petition. ECF No. 33. The undersigned granted petitioner’s motion and petitioner’s claim was
thereafter dismissed for insufficient proof. Decision (ECF No. 35).

         On October 7, 2019, petitioner filed an application for attorneys’ fees and costs. Fees.
App. Petitioner requests a total attorneys’ fees and costs in the amount of $6,756.45
(representing $350 in attorneys’ fees and $946.45 in costs.) Fees App. at ¶ 2. Respondent
responded to the motion on October 18, 2019 stating, “Respondent defers to the Special Master
to determine whether the statutory requirements for an award of attorneys’ fees and costs are met
in this case,” and if so requests the undersigned “determine a reasonable award for attorneys’
fees and costs. Respondent’s Response (Resp. Response”) at 3, 5 (ECF No. 37).

        This matter is now ripe for adjudication.

  I.      Legal Standard

        Under Section 15(e) of the Vaccine Act, a special master “may” award reasonable
attorneys’ fees and costs “if the special master determines that the petition was brought in good
faith and there was a reasonable basis for which the petition was brought” even when a petition
does not result in compensation for petitioner. 42 U.S.C. § 300aa-15(e)(1).

        The Vaccine Act permits an award of “reasonable” attorneys’ fees and costs. 42 U.S.C. §
300aa-15(e)(1). The Federal Circuit has approved the use of 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, 1349 (Fed. Cir. 2008). Using the lodestar approach, a court first
determines the reasonable hourly rate, which is then applied to the number of hours reasonably
expended on the litigation. Id. at 1347-58 (citing Blum v. Stenson, 465 U.S. 886, 888 (1984)).

         Petitioners “bea[r] the burden of establishing the hours expended, the rates charged, and
the expenses incurred” are reasonable. Wasson v. Sec’y of Health & Human Servs., 24 Cl. Ct.
482, 484 (1993). Adequate proof of the claimed fees and costs should be presented when the
motion is filed. Id. at 484 n.1. The special master has the discretion to reduce awards sua
sponte, independent of enumerated objections from the respondent. Sabella v. Sec’y of Health &
Human Servs., 86 Fed. Cl. 201, 208-09 (Fed. Cl. 2009); Savin v. Sec’y of Health & Human
Servs., 85 Fed. Cl. 313 (Fed. Cl. 2008), aff’d No. 99-537V, 2008 WL 2066611 (Fed. Cl. Spec.
Mstr. Apr. 22, 2008). Special masters may look to their experience and judgment to reduce the
number of hours billed to a level they find reasonable for the work performed. Saxton v. Sec’y of
Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993). A line-by-line evaluation of the
billing records is not required. Wasson, 24 Cl. Ct., aff’d in relevant part, 988 F.2d 131 (Fed Cir.
1993) (per curiam).

  II.     Analysis

        I find no reason to doubt the good faith and reasonable basis for which the claim was
brought. Petitioner asserted that she suffered left shoulder adhesive capsulitis as a result of
receiving the flu vaccine. Petition at ¶ 8. On March 3, 2017, three months after receiving the flu
vaccine, petitioner reported to her primary care physician that she was experiencing pain in her
left shoulder for the first time. See Scheduling Order (ECF No. 31). However, while petitioner

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endorsed that she experienced pain immediately after receiving the flu vaccine in her affidavit,
there was still a substantial amount of time that passed between the vaccine and first reported
pain to a medical professional. Id. at 2. I recommended that petitioner’s counsel consult with her
client to discuss dismissing the claim. Id. at 3. Petitioner filed the motion to dismiss the petition
within a reasonable time after the status conference, thus not utilizing more of the Court or
respondent’s time in litigating the case.

         Although it appeared unlikely that petitioner would be entitled to recovery after a careful
review of the case, including the medical records and expert reports filed, I find that petitioner
initially had evidence of a medical condition that could be caused by vaccination. Additionally,
by dismissing the claim after a review of the facts at the status conference, the amount of fees
and costs were limited. Accordingly, I find that petitioner should be awarded reasonable
attorneys’ fees and costs.

  III.    Reasonable Attorneys’ Fees and Costs

          A. Hourly Rate

        Petitioner requests compensation for her attorney, Ms. Laurie TeWinkle. Pet. Fees App.
at 1. Petitioner requests Ms. TeWinkle be compensated at a rate of $350.00 per hour for work
done in 2017-2019. Fees App. Exhibit (“Ex.”) 3.

       Ms. TeWinkle has been awarded these attorney rates by other special masters in the
Vaccine Program. See Smith. Sec’y of Health & Human Servs., No. 15-1379, 2016 WL 3704925
(Fed. Cl. Spec. Mstr. June 2, 2016). As a result, I find the requested attorney rates to be
reasonable and will award those hourly rates in full.

          B. Reasonable Number of Hours

        The second factor in the lodestar formula is a reasonable number of hours. Reasonable
hours are not excessive, redundant or otherwise unnecessary. See Saxton v. Sec’y of Health &
Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993). As the Secretary did specifically object to
the number of hours petitioner requests, I have reviewed the fee application for its
reasonableness. See McIntosh v. Sec’y of Health & Human Servs., 139 Fed. Cl. 238 (2018). A
line-by-line evaluation of the invoiced hours is not required; instead I may rely on my experience
to evaluate the reasonableness of the hours expended. Wasson, 24 Cl. Ct. at 484. Petitioner
requests a total of $5,810.00 in attorneys’ fees for 16.6 hours of work performed by Ms.
TeWinkle. Given that petitioner’s counsel was responsive to the Court’s recommendation to
dismiss and did so in a timely manner, I find that the hours billed are reasonable and no
reductions are necessary. Accordingly, petitioner is awarded attorneys’ fees in the amount
of $5,810.00.

          C. Attorneys’ Costs

        Like attorneys’ fees, a request for reimbursement for costs must be reasonable. Perreira
v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests a total
of $12,746.01 in costs. This request includes the cost of filing the petition, obtaining medical

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records, and postage. These costs are typical of the expenses in the Vaccine Program.
Additionally, counsel provided receipts and invoices related to these costs. Accordingly,
petitioner is awarded attorneys’ costs in the amount of $946.45.

    IV.     Conclusion

 In accordance with the foregoing, petitioner’s application for attorneys’ fees and costs is
GRANTED. Accordingly, I will award the following:

          1) A lump sum in the amount of $6,756.45, representing reimbursement for
             petitioner’s attorneys’ fees and costs, in the form of a check payable jointly to
             petitioner and her counsel, Laurie TeWinkle.

       In absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the
Court shall enter judgment in accordance herewith. 3

          IT IS SO ORDERED.

                                                                               s/Thomas L. Gowen
                                                                               Thomas L. Gowen
                                                                               Special Master




3
 Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule
11(a).

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