                 In the United States Court of Federal Claims
                                    OFFICE OF SPECIAL MASTERS
                                              FILED: March 12, 2020

* * * * * * *                   *   *    *    *   *    *
KIARA S. MASSEY,                                       *                 UNPUBLISHED
                                                       *
                  Petitioner,                          *                 No. 18-541V
                                                       *
v.                                                     *                 Special Master Gowen
                                                       *
SECRETARY OF HEALTH                                    *
AND HUMAN SERVICES,                                    *                 Attorneys’ Fees and Costs;
                                                       *                 Joint Stipulation of Dismissal
                  Respondent.                          *
                                                       *
*     * *    *    *    *   *    *   *    *    *   *    *

Nancy Routh Meyers, Ward Black Law, Greensboro, NC, for petitioner.
Mollie Danielle Gorney, Department of Justice, Washington, D.C., for respondent.

                      DECISION ON ATTORNEYS’ FEES AND COSTS1

          On November 1, 2019, Kiara Massey (“petitioner”), filed a motion for attorneys’ fees
    and costs. Petitioner’s Motion For Attorneys’ Fees (“Fees. App.”) (ECF No. 26). For the
    reasons discussed below, I GRANT, petitioner’s motion for attorneys’ fees and costs and
    award a total of $15,260.75.

      I.     Procedural History

          On April 13, 2018, Kiara Massey (“petitioner”) filed a petition pursuant to the National
    Vaccine Injury Compensation Program.2 Petitioner alleged as a result of the hepatitis vaccine
    she received on June 1, 2017, she developed injuries including polyarthralgia. Petition at ¶ 4,

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.

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 9. On August 30, 2019, petitioner filed a joint stipulation of dismissal. ECF No. 23. The
 undersigned granted petitioner’s motion and petitioner’s claim was dismissed without
 prejudice. Order (ECF 24).

       On November 1, 2019, petitioner filed an application for attorneys’ fees and costs. Fees.
 App. Petitioner requests a total attorneys’ fees and costs in the amount of $15,260.75
 (representing $11,322.00 in attorneys’ fees and $3938.75 in costs). Fees App. at ¶ 1.
 Respondent responded to the motion on November 4, 2019 stating, “Respondent is satisfied the
 statutory requirements for an award of attorneys’ fees and costs are met in this case.”
 Respondent’s Response (“Resp. Response”) at 3. (ECF No. 27).

      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 polyarthralgia and other injuries as a result of
receiving the hepatitis vaccine. Petition at ¶ 4, 9. On June 13, 2017, a few weeks after receiving
the hepatitis vaccine, petitioner visited the Cape Fear Valley Medical Center complaining of


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persistent right arm and wrist pain. Id. at 4. However, Petitioner notified her counsel that she
wished to withdraw from the program and confirmed that she did not wish to pursue a separate
legal action. A joint stipulation was filed on August 8, 2019. (ECF No. 23). The case was
dismissed without prejudice. (ECF No. 24).

         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. Nancy Meyers. Pet. Fees App. at
1. Petitioner requests Ms. Meyers be compensated with $375 per hour for work done in 2018
and $390 per hour for work done in 2019. (ECF No. 26).

       Ms. Meyers has been awarded these attorney rates by other special masters in the
Vaccine Program. See Murphy v. Sec’y of Health & Human Servs., No. 11-266, 2014 WL
5281045 (Fed. Ct. Spec. Mstr. Sept. 19, 2014). 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 $11,322.00 in attorneys’ fees for work performed by Ms. Meyers. Given that
petitioner’s counsel filed a joint stipulation of dismissal 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 $11,322.00.

       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 $3,938.75 in costs. This request includes the cost of filing the petition, obtaining medical
records, and retaining an expert, Dr. Eric Gershwin. Pet. Fees App., Tab 2 & 3. Dr. Eric



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Gershwin performed seven hours of work at $500.00 per hour. Fees App., Tab 3. Dr. Gershwin
has been compensated at this rate before, therefore, I find this amount requested reasonable.

       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 $3,938.75.

    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 $15,260.75, representing reimbursement for
             petitioner’s attorneys’ fees and costs, in the form of a check payable jointly to
             petitioner and her counsel, Nancy Meyers.

       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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