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

* * * * * * * * * * * * * * * * * * *                                    UNPUBLISHED
BARBARA WELLEN,                     *
                                    *                                    No. 17-767V
                  Petitioner,       *
v.                                  *                                    Special Master Gowen
                                    *
SECRETARY OF HEALTH                 *                                    Attorneys’ Fees and Costs; Dismissal
AND HUMAN SERVICES                  *                                    Decision.
                                    *
                  Respondent.       *
* * * * * * * * * * * * * * * * * * *

Alison H. Haskins, Maglio, Christopher and Toale, PA (FL), Sarasota, FL, for petitioner.
Lisa A. Watts, United States Department of Justice, Washington, DC, for respondent.

                         DECISION ON ATTORNEYS’ FEES AND COSTS1

       On August 26, 2019, Barbara Wellen (“petitioner”) filed a motion for attorneys’ fees and
costs. Petitioner’s Motion for Attorney Fees (“Pet. Fees App.”) (ECF No. 51). For the reasons
discussed below, I GRANT petitioner’s motion for attorneys’ fees and costs and award a total of
$43,948.12.

         I.       Procedural History

        On June 9, 2017, petitioner filed a petition for compensation in the National Vaccine
Injury Compensation Program.2 Petitioner alleged that she suffered from a shoulder injury
related to vaccine administration (“SIRVA”) as a result of receiving an influenza (“flu”)
vaccination on October 5, 2015. Petition at Preamble, ¶¶ 1-6. The case was originally assigned


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.
to the Special Processing Unit (“SPU”). The case was reassigned to the undersigned on March 5,
2018.

        I held a status conference on April 5, 2018, where I directed the parties to file expert
reports relating to petitioner’s alleged injury. Scheduling Order (ECF No. 24). Petitioner filed
an expert report from Dr. Domenick J. Sisto, an orthopaedic specialist. ECF No. 29.
Respondent filed an expert report by Dr. David Ring, an orthopedic surgeon, specializing in
upper limb problems. Respondent (“Resp.”) Exhibit A (ECF No. 31). I held a Rule 5 Status
Conference on October 26, 2018.

         I issued a Rule 5 Order, where I stated that it appeared that petitioner’s alleged shoulder
injury predated the vaccination and worsened over time. Rule 5 Order at 2. Further, I indicated
that it would be difficult for petitioner to distinguish between the pre-and post-vaccination
symptoms as required by Loving v. Sec’y of Health & Human Servs., 86 Fed. Cl. 135, 144
(2009), and recommended that counsel discuss the difficulty with succeeding in this case and
forward a modest demand to respondent. Id.

        On April 16, 2019, the respondent filed a status report and stated that he was not
interested in pursuing settlement in this case and requested that a hearing date to be set or the
Special Master resolve the case on the record. Resp. Status Report (ECF No. 39). On April 17,
2019, I issued an order directing petitioner’s counsel to reiterate the difficulty of succeeding in
the case and consider moving for a voluntary dismissal or request that this case be placed on the
hearing calendar for 2021. Scheduling Order (ECF No. 40).

       On June 13, 2019, petitioner filed a Motion for a Decision Dismissing Petition to
voluntarily withdraw her claim. (ECF No. 45). On June 17, 2019, I granted petitioner’s motion
and dismissed petitioner’s claim. (ECF No. 46). Judgment was entered on June 20, 2019 (ECF
No. 48).

        On August 26, 2019, petitioner filed a motion for attorneys’ fees and costs. Pet. Fees
App. (ECF No. 51). Petitioner requests compensation for her attorneys, Alison H. Haskins and,
in the total of $43,948.12. Pet. Fees App. at ¶ 9. This represents $35,291.40 in attorneys’ fees
and $8,656.72 in costs. Id. at ¶¶ 3-4.

       On September 4, 2019, respondent filed a response to petitioner’s motion. Resp.
Response (ECF No. 52). Respondent stated, “Respondent defers to the Special Master as to
whether the statutory requirements for an award of attorneys’ fees and costs are met in this case,”
and requests that “the Court exercise its discretion and determine a reasonable award for
attorneys’ fees and costs.” Resp. Response at 2-3.

       On September 5, 2019, petitioner filed a reply to respondent’s response. Pet. Reply (ECF
No. 53). Petitioner states that respondent’s position burdens the Court by not engaging in the
review of attorneys’ fees and costs, however, petitioner acknowledges that Special Masters have
an independent duty to make determinations about the reasonableness of fees and costs. Pet.
Reply at 2-3.



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       This matter is now ripe for adjudication.

       II.     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).

       III.    Analysis

        I find no reason to doubt the good faith and reasonable basis for which the claim was
brought. Petitioner asserted that she suffered a SIRVA as a result of receiving the flu
vaccination. Petition at ¶¶ 1-2. After the Rule 5 Status Conference on October 26, 2018,
petitioner engaged with respondent in unfruitful settlement negotiations per my order. See Rule
5 Order. Additionally, after respondent indicated that settlement was not an option, petitioner’s
counsel took the appropriate steps necessary and filed a motion to dismiss the petition, thus not
utilizing more of the court or respondent’s time in litigating this case.

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




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        IV.     Reasonable Fees and Costs

                A. Hourly Rate

        Petitioner requests compensation for her attorneys, Mr. FJ Caldwell and Ms. Alison
Haskins at the Maglio Christopher & Toale law firm. Petitioner requests that Mr. Caldwell be
reimbursed at a rate of $356.00 per hour for work performed in 2016; $367.00 per hour for work
performed in 2017; $385.00 per hour for work performed in 2018; and at $400.00 per hour for
work performed in 2019. Petitioner requests that Ms. Haskins be reimbursed at a rate of $387.00
per hour for work performed in 2019. Fees App. Ex. 18. Petitioner also requests compensation
for six paralegals for work performed from 2015-2019 ranging from $105.00-$154.00 per hour.
Id.

        These attorneys at the Maglio firm have been awarded these attorney and paralegal rates
by special masters in the Vaccine Program before and these rates are consistent with the Office
of Special Masters Attorneys’ Forum Hourly Rate Fee Schedules for those years.3 See Meyer v.
Sec’y of Health & Human Servs., No. 16-1414V, 2018 WL 3987338 (Fed. Cl. Spec. Mstr. May
15, 2018); Montgomery v. Sec’y of Health & Human Servs., No. 18-0033V, 2019 WL 5098894
(Fed. Cl. Spec. Mstr. July, 25, 2019). As a result, I find the requested attorney and paralegal
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 not 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 $35,291.40 in attorney’s fees. Given the length of the case, the necessity for
expert reports to ultimately resolve the case and the action taken by petitioner’s counsel to take
timely action, I find that the hours billed are reasonable and no reductions are necessary.
Accordingly, petitioner is awarded attorneys’ fees in the amount of $35,291.40.

                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 $8,656.72 in costs. This request includes the cost of filing the petition, obtaining medical
records, postage and retaining and expert. Petitioner retained Dr. Domenick J. Sisto, an
orthopedic expert, to review petitioner’s medical records and draft a report. Fees App.
Attachment 3 at 38. Dr. Sisto charged petitioner $500.00 per hour for his services. Id. This rate
is consistent with other experts retained in the Vaccine Program. Further, Dr. Sisto provided a

3
 OSM Attorneys’ Forum Hourly Rate Fee Schedule, https://www.uscfc.uscourts.gov/node/2914 (accessed on
October 15, 2019).

                                                     4
detailed invoice for the work performed. See Fees App. Attachment 3 at 38 and Pet. Ex. 22. The
other costs, including obtaining medical records, travel and mailing costs are typical for this
program and are reasonable. Additionally, counsel provided receipts and invoices related to these
costs. Accordingly, petitioner is awarded attorneys’ costs in the amount of $8,656.72.

        V.       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 $43, 948.12, representing reimbursement for
           petitioner’s attorneys’ fees and costs, in the form of a check payable jointly to
           petitioner and her counsel, Ms. Alison Haskins of Maglio Christopher & Toale,
           PA, in Sarasota, Florida.4

       In absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the
Court shall enter judgment in accordance herewith.5

        IT IS SO ORDERED.


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




4
  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).
5
 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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