      In the United States Court of Federal Claims
                                    OFFICE OF SPECIAL MASTERS
                                          Filed: June 17, 2019

* * * * * * * * * * * * * * * * * * *                                    UNPUBLISHED
IRVING KODIMER,                     *
                                    *                                    No. 17-140V
                  Petitioner,       *
v.                                  *                                    Special Master Gowen
                                    *
SECRETARY OF HEALTH                 *                                    Attorneys’ Fees and Costs;
AND HUMAN SERVICES                  *                                    Joint Stipulation
                                    *
                  Respondent.       *
* * * * * * * * * * * * * * * * * * *

Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for petitioner.
Lara A. Englund, United States Department of Justice, Washington, DC, for respondent.

                         DECISION ON ATTORNEYS’ FEES AND COSTS1

       On May 9, 2019, Irving Kodimer (“petitioner”) filed a motion for attorneys’ fees and
costs. Petitioner’s Motion for Attorney Fees (“Pet. Fees App.”) (ECF No. 60). For the reasons
discussed below, I GRANT petitioner’s motion for attorneys’ fees and costs and award a total of
$21,660.80.

         I.       Procedural History

        On January 30, 2017, petitioner filed a petition for compensation in the National Vaccine
Injury Compensation Program.2 Petition (ECF No. 1). Petitioner alleged that he suffered from
bilateral shoulder injuries and sequalae as a result of receiving influenza (“flu”) and
pneumococcal vaccinations on October 19, 2015. Id. at ¶ 1.


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.
         On April 5, 2019, respondent filed a stipulation in which he stated that a decision should
be entered awarding compensation to petitioner. Stipulation for Award (ECF No. 54).
Respondent denied that petitioner’s alleged injuries and residual effects were caused-in-fact by
the flu and/or pneumococcal vaccinations. Id. at ¶ 6. Nevertheless, the parties agreed that the
issues between them should be settled and a decision should be entered awarding compensation
to petitioner. I adopted the Stipulation for Award as my Decision awarding damages on April 8,
2019. (ECF No. 55).

        On May 9, 2019, petitioner filed a motion for attorneys’ fees and costs. Pet. Fees App.
(ECF No. 60). Petitioner requests compensation for his attorney, Ms. Amy Senerth, in the total
amount of $21,660.80. This represents $18,350.20 in attorneys’ fees and $3,310.60 in costs.
Pet. Fees App. at 1-2.

        On May 9, 2019, respondent filed a response to petitioner’s motion which provides that
“[r]espondent is satisfied the statutory requirements for an award of attorneys’ fees and costs are
met in this case” and recommending that “the special master exercise his discretion and
determine a reasonable award for attorneys’ fees and costs.” Response at 2-3 (ECF No. 61).
Petitioner did not file a reply. The matter is now ripe for adjudication.

       II.     Legal Standard

        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(3)(1).
Petitioner in this case was awarded compensation pursuant to a Stipulation and therefore he shall
be awarded reasonable attorneys’ fees and costs.

        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).



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       III.    Reasonable Attorneys’ Fees and Costs

               a. Hourly Rate

      Petitioner requests compensation for his attorneys Ms. Amy Senerth, Mr. Clark Hodgson,
and Mr. Max. Muller. Pet. Fees App. at 1.

        Petitioner requests that Ms. Senerth be compensated at $225.00 an hour in 2017, $233.00
an hour in 2018, and $250.00 an hour in 2019. Additionally, petitioner requests compensation for
additional attorneys at Muller Brazil, LLP, Mr. Hodgson and Mr. Muller as well as three
paralegals at various points in this litigation. The rates requested conform with what other special
masters and I have consistently awarded the attorneys and paralegals at Muller Brazil. Hardy v.
Sec’y of Health & Human Servs., No. 17-232V, 2018 WL 6822356, at *2 (Nov. 26, 2018); Litz v.
Sec’y of Health & Human Servs., No. 17-0155V, 2019 WL 2296738, at *1 (Fed. Cl. Spec. Mstr.
Mar. 21, 2019); Mohler v. Sec’y of Health & Human Servs., No. 16-1404V, 2018 WL 3989515
(July 2, 2018). Therefore, I find no reductions are necessary for the requested hourly rates.

               b. Hours Expended

        As noted previously, 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. Accordingly, I may reduce the number of hours claimed based on
past experience. Saxton, 3 F.3d at 1521. Petitioner requests $18,350.20 in attorneys’ fees. After
review of the hours billed, I find that the hours billed are reasonable and no reductions are
necessary. Accordingly, petitioner is awarded attorneys’ fees in the amount of $18,350.20.

               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 $3,310.60 in attorneys’ costs. These include the costs of obtaining medical records, personal
servicer to serve a subpoena for medical records, and postage. These costs are typical of the
expenses in the Vaccine Program. The amounts are reasonable and adequately documented.
Therefore, these costs will be awarded in full.

         Petitioner is also requesting $2,500.00 for the retainer of Dr. Gershwin. Although no
expert report was prepared as petitioner accepted respondent’s offer (ECF No. 50), Dr. Gershwin
spent 6.5 hours reviewing the petitioner’s records and speaking with petitioner’s counsel. Pet.
Fees App. at 27. Dr. Gershwin is requesting the value of his retainer of $2,500.00. Special
masters have awarded attorneys’ costs for an expert’s retainer if the expert reviewed the records,
even if no expert report is filed. See, e.g. Forrest v. Sec’y of Health & Human Servs., No. 10-
32V, 2018 WL 3029330 (May 22, 2018); Glaser v. Sec’y of Health & Human Servs., No. 06-
764V, 2016 WL 4483022 (June 29, 2016). I find that Dr. Gershwin’s retainer is reasonable as he
performed 6.5 hours of expert services for petitioner. This would represent an effective hourly
rate of less than $400.00 an hour which is reasonable. Therefore, I will award the requested
attorneys’ costs of $3,310.60 without adjustment.


                                                 3
        IV.      Conclusion

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

                      Attorneys’ Fees Requested                                 $18,350.20
                      (Total Reduction of Fees)                                      -
                      Attorneys’ Fees Awarded                                   $18,350.20

                      Attorneys’ Costs Requested                                $3,310.60
                      (Reduction of Costs)                                           -
                      Attorneys’ Costs Awarded                                  $3,310.60

                      Total Amount of Attorneys’ Fees and Costs                 $21,660.80

    Accordingly, I award the following:

    1) A lump sum in the amount of $21,660.80, representing reimbursement for
       petitioner’s attorneys’ fees and costs, in the form of a check payable jointly to
       petitioner and his counsel, Ms. Amy A. Senerth.3

       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/Thomas L. Gowen
                                                                       Thomas L. Gowen
                                                                       Special Master




3
  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,” and fees for legal services rendered. Furthermore, Section 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 is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule
11(a).

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