                In the United States Court of Federal Claims
                                OFFICE OF SPECIAL MASTERS
                                    Filed: January 14, 2020

* * * * * * * *                 *      *   *   *   *
EVELYN MAZMANIAN,                                  *       UNPUBLISHED
                                                   *
                         Petitioner,               *       No. 18-1153V
                                                   *
       v.                                          *       Special Master Dorsey
                                                   *
SECRETARY OF HEALTH                                *       Interim Attorneys’ Fees and Costs.
AND HUMAN SERVICES,                                *
                                                   *
                         Respondent.               *
*   * *     *    *   *   * * * *           *   *   *

Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for petitioner.
Glenn MacLeod, United States Department of Justice, Washington, DC, for respondent.

          DECISION AWARDING INTERIM ATTORNEYS’ FEES AND COSTS1

       On August 8, 2018, Evelyn Mazmanian (“petitioner”) filed a petition in the National
Vaccine Injury Program2 alleging that as a result of the influenza (“flu”) vaccine, she suffers
from a hypersensitivity dermatographism. Petition at 1.

        On November 8, 2019, petitioner filed a motion for interim attorneys’ fees and costs,
requesting compensation for the attorneys and paralegals who worked on her case. Petitioner’s
Motion (“Pet. Mot.”) dated Nov. 8, 2019 (ECF No. 30). Petitioner’s request can be summarized
as follows:


1
  Because this unpublished decision contains a reasoned explanation for the action in this case,
the undersigned is required to 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 note (2012) (Federal
Management and Promotion of Electronic Government Services). This means the decision will
be available to anyone with access to the Internet. In accordance with Vaccine Rule 18(b),
petitioner has 14 days to identify and move to redact medical or other information, the disclosure
of which would constitute an unwarranted invasion of privacy. If, upon review, the undersigned
agrees that the identified material fits within this definition, the undersigned will redact such
material from public access.
2
  The National Vaccine Injury Compensation Program is set forth in Part 2 of the National
Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended,
42 U.S.C. §§ 300aa-10 to -34 (2012) (“Vaccine Act” or “the Act”). All citations in this decision
to individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa.
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Attorneys’ Fees – $25,574.90
Attorneys’ Costs – $18,000.23

        Petitioner thus requests a total of $43,575.13. Respondent filed his response on
November 21, 2019, stating that he “defers to the Special Master to determine whether or not
petitioner has met the legal standard for an interim fees and costs award . . . and the statutory
requirements for an award of attorney’s fees and costs.” Respondent’s Response dated Nov. 21,
2019 (ECF No. 31) at 2.

       This matter is now ripe for adjudication. For the reasons discussed below, the
undersigned GRANTS petitioner’s motion and awards $43,575.13 in attorneys’ fees and costs.

I.     Discussion

         Under the Vaccine Act, the special master shall award reasonable attorneys’ fees and
costs for any petition that results in an award of compensation. § 15(e)(1). When
compensation is not awarded, the special master “may” award reasonable fees and costs “if the
special master or court determines that the petition was brought in good faith and there was a
reasonable basis for the claim for which the petition was brought.” Id. If a special master has
not yet determined entitlement, she may still award attorneys’ fees and costs on an interim basis.
Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008). Such awards
“are particularly appropriate in cases where proceedings are protracted and costly experts must be
retained.” Id. Similarly, it is proper for a special master to award interim fees and costs “[w]here
the claimant establishes that the cost of litigation has imposed an undue hardship and that there
exists a good faith basis for the claim.” Shaw v. Sec’y of Health & Human Servs., 609 F.3d 1372,
1375 (Fed. Cir. 2010).

        The claim appears at this point to have been brought in good faith and built on a
reasonable basis. Moreover, the undersigned finds that an award of interim attorneys’ fees and
costs is appropriate here where there are significant expert fees to be paid.

       A.      Reasonable Attorneys’ Fees

       The Federal Circuit has approved use of the lodestar approach to determine reasonable
attorneys’ fees and costs under the Vaccine Act. Avera, 515 F.3d at 1349. Using the lodestar
approach, a court first determines “an initial estimate of a reasonable attorneys’ fee by
‘multiplying the number of hours reasonably expended on the litigation times a reasonable
hourly rate.’” Id. at 1347-48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). Then, the
court may make an upward or downward departure from the initial calculation of the fee award
based on other specific findings. Id. at 1348.

       Counsel must submit fee requests that include contemporaneous and specific billing
records indicating the service performed, the number of hours expended on the service, and the
name of the person performing the service. See Savin v. Sec’y of Health & Human Servs., 85
Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee requests hours that are
“excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health & Human Servs., 3
F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). It is

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“well within the special master’s discretion to reduce the hours to a number that, in [her]
experience and judgment, [is] reasonable for the work done.” Id. at 1522. Furthermore, the
special master may reduce a fee request sua sponte, apart from objections raised by respondent
and without providing the petitioner notice and opportunity to respond. See Sabella v. Sec’y of
Health & Human Servs., 86 Fed. Cl. 201, 209 (2009).

       A special master need not engage in a line-by-line analysis of petitioner’s fee application
when reducing fees. Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl. 719, 729
(Fed. Cl. 2011). Special masters may rely on their experience with the Vaccine Act and its
attorneys to determine the reasonable number of hours expended. Wasson v. Sec’y of Health &
Human Servs., 24 Cl. Ct. 482, 484 (Fed. Cl. Nov. 19, 1991), rev’d on other grounds and aff’d in
relevant part, 988 F.2d 131 (Fed. Cir. 1993). Just as “[t]rial courts routinely use their prior
experience to reduce hourly rates and the number of hours claimed in attorney fee requests . . .
[v]accine program special masters are also entitled to use their prior experience in reviewing fee
applications.” Saxton, 3 F.3d at 1521.

       The undersigned has reviewed the rates requested for work for her counsel at Conway,
Homer, P.C.3 and finds that the requested rates are reasonable and in accordance with what these
attorneys and paralegals have previously been awarded for their Vaccine Program work. The
undersigned will therefore award the rates requested.

        Furthermore, the undersigned determines that the hours billed are reasonable.4 The
billing entries accurately reflect that nature of the work performed. Therefore, the undersigned
will award the fees requested.

       B.      Attorneys’ Costs

               1.    Expert Fees

         Petitioner requests $17,000.00 for work performed by Dr. David Rosenstreich, which was
a total of 34 hours, billed at an hourly rate of $500.00, and includes a $2,000 retainer fee. Pet.
Mot., Tab B at 15.

       Although an hourly rate of $500.00 is considered high in the Vaccine Program, the
undersigned will allow that rate here, based on the expertise and qualifications of Dr.
Rosenstreich and the quality of his expert report. The undersigned also notes that other special
masters have found this hourly rate appropriate for other experts. See, e.g., Jaafar v. Sec’y of
Health & Human Servs., No. 15-267V, 2019 WL 2265329 (Fed. Cl. Spec. Mstr. Apr. 26, 2019);


3
 The undersigned notes that the billing records indicate the majority of the work was performed
by paralegals, a law clerk, and attorney Joseph Pepper.
4
  The undersigned notes that some work was duplicative and non-reimbursable. However, the
duplicative and non-reimbursable work was not substantial, and thus, the undersigned will
reimburse petitioner’s counsel in full. Counsel is cautioned against continuing to bill duplicative
and non-reimbursable work in the future.
                                                 3
Pember v. Sec’y of Health & Human Servs., No. 15-1005V, 2018 WL 3981514 (Fed. Cl. Spec.
Mstr. June 28, 2018); Simon v. Sec’y of Health & Human Servs., No. 05-941V, 2008 WL
623833 (Fed. Cl. Spec. Mstr. Feb. 21, 2008). Therefore, the undersigned will award the full
requested fee.

               2.   Miscellaneous Costs

       Petitioner requests $1,000.23 to cover her attorney’s other miscellaneous expenses,
including medical records requests, Fed Ex costs, the filing fee, and other expenses. Pet. Mot.,
Tab A at 37-39. The undersigned finds these costs reasonable and well-documented, and she
will award them in full.

II.    Conclusion

        Based on all of the above, the undersigned finds that it is reasonable to compensate
petitioner and her counsel as follows:

       Requested Attorneys’ Fees:                                           $ 25,574.90
       Awarded Attorneys’ Fees:                                             $ 25,574.90

       Requested Attorneys’ Costs:                                          $ 18,000.23
       Awarded Attorneys’ Costs:                                            $ 18,000.23

       Total Interim Attorneys’ Fees and Costs:                             $ 43,575.13

       Accordingly, the undersigned awards:

        A lump sum in the amount of $43,575.13, representing reimbursement for
reasonable interim attorneys’ fees and costs, in the form of a check payable jointly to
petitioner and petitioner’s counsel of record, Mr. Ronald Homer.

       In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
Court SHALL ENTER JUDGMENT in accordance with this decision.5

       IT IS SO ORDERED.

                                                            /s/ Nora Beth Dorsey
                                                            Nora Beth Dorsey
                                                            Special Master




5
 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of
notice renouncing the right to seek review.
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