                                                                             REISSUED FOR PUBLICATION
                                                                                            SEP 25 2017
                                                                                             OSM
                                                                                 U.S. COURT OF FEDERAL CLAIMS
     3Jn tbe Wniteb ~tates <!Court of jfeberal <!Claims
                                 OFFICE OF SPECIAL MASTERS
                                           No . 13-957V
                                      Filed: August 31, 2017
                                        Not for Publication

*************************************
DONNA BALDWIN,                                   *
                                                 *
                Petitioner,                      *
                                                 *           Interim attorneys' fees and costs
V.                                               *           decision; reasonable attorneys' fees
                                                 *           and costs
SECRETARY OF HEALTH                              *
AND HUMAN SERVICES,                              *
                                                 *
                Respondent.                      *
                                                 *
*************************************
F. John Caldwell, Jr. , Sarasota, FL, for petitioner.
Lisa A. Watts, Washington, DC, for respondent.

MILLMAN, Special Master


          DECISION AWARD ING INTERIM ATTORNEYS' FEES AND COSTS 1

        On December 5, 20 13, petitioner filed a petition under the National Childhood Vaccine
Injury Act, 42 U.S.C. §§ 300aa-10- 34 (2012) alleging she suffered cardiac arrest as a result of
her receipt of influenza vaccine. A Ruling on Entitlement has not been issued in the case.

        On August 28, 2017, petitioner filed a motion for interim attorneys' fees and costs.
Petitioner requests $89,10 1.80 in interim attorneys' fees and $19,806.57 in interim attorneys '
costs, for a total request of $108,908.37. Petitioner's counsel filed a motion to withdraw on the
same day petitioner filed her motion for interim attorneys' fees and costs.

1
 Because this unpublished decision contains a reasoned explanation for the special master' s action in this
case, the special master intends to post this unpublished decision on the United States Court of Federal
C laims' website, in accordance with the E-Government Act of 2002, 44 U.S.C. § 350 1 note (2012)
(Federal Management and Promotion of Electronic Government Services). Vaccine Rule 18(b) states that
all decisions of the special masters will be made available to the public unless they contain trade secrets
or commercial or financial information that is privileged and confidential, or medical or similar
information whose disclosure would constitute a clearly unwarranted invasion of privacy. When such a
decision is filed, petitioner has 14 days to identify and move to redact such information prior to the
document's disclosure. If the special master, upon review, agrees that the identified material fits within
the banned categories listed above, the special master shall redact such material from public access.
        On August 3 1, 20 17, respondent fi led a response to petitioner's motion explaining he
defers to the undersigned to decide whether petitioner has met the legal standard for an interim
fees and costs award. Resp. at 2. Respondent states that if the undersigned finds an award of
interim attorney fees and costs is appropriate at this juncture in the case, he is satisfied that this
case meets the statutory requirements for an award of attorneys' fees and costs under 42 U.S.C. §
300aa-15(e)(l)(A)-(B). Id. Should the undersigned find an award of interim attorneys' fees and
costs is appropriate, respondent "respectfully recommends that the [undersigned] exercise her
discretion and determine a reasonable award ." fd. at 3.

        The Vaccine Act permits an award of "reasonable attorneys' fees" and "other costs."
42 U.S.C. § 300aa-1 5(e)(l). The Federal Circu it ruled that interim fee awards are permissible
under the Vaccine Act in Avera v. Secretary of Health and Human Services, 515 F.3d 1343,
1352 (Fed. Cir. 2008). The special master has "wide discretion in determining the
reasonableness" of attorneys' fees and costs. Perreira v. Sec'y of HHS, 27 Fed. Cl. 29, 34
(1992), afrd, 33 F.3d 1375 (Fed. Cir. 1994); see also Saxton ex rel. Saxton v. Sec'y of HHS, 3
F.3d 15 17, 1519 (Fed. Cir. 1993) ("Vaccine program special masters are also entitled to use their
prior experience in reviewing fee applications."). Furthermore, the special master may reduce
fees sua sponte, apart from objections raised by respondent and without providing petitioners
notice and opportunity to respond. See Sabella v. Sec'y of HHS, 86 Fed. Cl. 201 , 208- 09 (Fed.
Cl. 2009).

        Based on her experience and review of the billing records submitted by petitioner, the
undersigned finds that an award of interim attorneys' fees and costs is appropriate at th is juncture
in the case. However, she finds that it is unreasonable for petitioner to request reimbursement
for costs incurred by having Dr. M. Eric Gershwin review her medical records.

         Petitioner did not file an expert report from Dr. Gershwin. However, petitioner requests a
total of$1 1,875 .00 for Dr. Gershwin's review of the case. Fee App. Ex. 40, at 3 . In an informal
communication to the undersigned's law clerk and respondent's counsel, petitioner's counsel
said Dr. Gershwin drafted a report supporting the case. Petitioner's counsel said he would have
fi led the report had he continued on with the case.

        The undersigned will not pay this cost. In hi s interim fee application, petitioner does not
justify why it was necessary for Dr. Gershwin, who is not a cardiologist, 2 to review the case.
Petitioner's counsel did not file the expert report from Dr. Gershwin, even though at this point in
time he is still representing petitioner and has an obli gation to his cl ient. Therefore, the
undersigned subtracts $11,875.00 from petitioner's interim attorneys' fees and costs award.

        Accordingly, the court awards $97,033.37, representing interim attorneys' fees and costs.


2 In an expe rt report fro m Dr. Gershwin filed in another case concerning cardiac issues involving the
same counsel, Dr. Gershwin writes he defers to the expert card io logist invo lved in that case for all issues
hav ing to do with cardio logy, as he is not a card io logist. His CV does not indicate he has any experience
in cardio logy.
                                                       2
The award shall be in the form of a check made payable jointly to petitioner and Maglio,
Christopher & Toale in the amount of $97,033.3 7.

       In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court is directed to enter j udgment herewith. 3


IT IS SO ORDERED.


Dated: August 31, 2017                                                      Isl Laura D. Millman
                                                                               Laura D. Millman
                                                                                Special Master




3
 Pursuant to Vaccine Rule I !(a), entry of judgment can be exped ited by each party, e ither separate ly or
jointly, filin g a notice renouncing the right to seek review.
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