        In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                           No. 16-892V
                                      Filed: January 26, 2017

* * * * * * *                *   *   *   * *  *            UNPUBLISHED
KATHLEEN KUNKA,                            *
                                           *
                      Petitioner,          *               Special Master Gowen
                                           *
v.                                         *               Attorneys’ Fees and Costs
                                           *
SECRETARY OF HEALTH                        *
AND HUMAN SERVICES,                        *
                                           *
                      Respondent.          *
                                           *
* * * * * * * * * * * * *
Howard D. Mishkind, Mishkind Law Firm Co., L.P.A., Beachwood, OH, for petitioner.
Jennifer L. Reynaud, United States Department of Justice, Washington, D.C., for respondent.

                      DECISION ON ATTORNEYS’ FEES AND COSTS1

        On July 27, 2016, Kathleen Kunka (“petitioner”) filed a petition pursuant to the National
Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-10 to 34 (2012). Petitioner alleged
 a flu vaccine on September 28, 2013, she suffered peripheral neuropathy. Petition at ¶¶ 2-3. On
November 28, 2016, petitioner moved for a dismissal decision, and a Decision dismissing the
petition was issued that same day.

       On December 21, 2016, petitioner filed a motion for attorneys’ fees and costs, requesting
$9,630.00 in attorneys’ fees, $844.80 in attorneys’ costs, and $86.45 in petitioner’s costs, for a

1
 Because this decision contains a reasoned explanation for the undersigned’s action in this case, the
undersigned intends to post this ruling on the website of the United States Court of Federal Claims, in
accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services). As provided by Vaccine Rule 18(b), each party has 14
days within which to request 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).

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-1 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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total fees and costs request of $10,561.25.3 Petitioner’s (“Pet.”) Motion (“Mot.”), Ex. 1, at 2;
Pet. Mot., Ex. A, Petitioner’s Affidavit. Respondent did not file a response to petitioner’s
motion.

    I.   Attorneys’ Fees and Costs

        Section 15(e) of the Vaccine Act governs attorneys’ fees. 42 U.S.C. § 300aa-15(e).
When awarding compensation on a petition, the special master “shall also award” reasonable
attorney’s fees and costs. Id. at §15(e)(1)(A)-(B). Even when compensation is not awarded, the
special master “may award” reasonable attorneys’ 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. at § 15(e)(1).

        “Good faith” is a subjective standard and petitioners are entitled to a presumption of good
faith. Hamrick v. Sec’y of Health & Human Servs., No. 99-683V, 2007 WL 4793152, at *3
(Fed. Cl. Spec. Mstr. Nov. 19, 2007); Grice v. Sec’y of Health & Human Servs., 36 Fed. Cl. 114,
121 (1996). The undersigned finds that this case was brought in good faith.

        The Vaccine Act does not define “reasonable basis,” and neither the Federal Circuit nor
the Court of Federal Claims has defined “reasonable basis” for purposes of fee awards under the
Vaccine Act. Chuisano v. United States, 116 Fed. Cl. 276, 285 (Fed. Cl. 2014). The Court of
Federal Claims has held that the statutory language of 42 U.S.C. § 300aa-15(e)(1)(B) grants the
special master “maximum discretion in applying the standard.” Silva v. Sec’y of Health &
Human Servs., 108 Fed. Cl. 401, 402 (Fed. Cl. 2012).

        Many special masters and Court of Federal Claims judges have determined that the
reasonable basis requirement is an “objective consideration determined by the totality of the
circumstances.” McKellar v. Sec’y of Health & Human Servs., 101 Fed. Cl. 297, 303 (Fed. Cl.
2011); Chuisano, 116 Fed. Cl. at 286. In determining reasonable basis, the court looks “not at
the likelihood of success, but more to the feasibility of the claim.” Di Roma v. Sec’y of Health
& Human Servs., No. 90-3277V, 1993 WL 496981, at *1 (Fed. Cl. Spec. Mstr. Nov. 18, 1993).
Factors to be considered include factual basis, medical support, and the circumstances under
which a petition is filed. Turner, 2007 WL 4410030, at *6-9. The burden is on petitioner to
affirmatively demonstrate a reasonable basis, though “petitioner need not establish entitlement to
compensation, or even that a claim is likely to succeed.” McKellar v. Sec’y of Health & Human
Servs., No. 09-841V, 2012 WL 362030, at *6-7 (Fed. Cl. Spec. Mstr. Jan 13, 2012), reversed on
other grounds, 2012 WL 1884703 (Fed. Cl. 2012). Petitioner must furnish “some evidence”
supporting the claims in the petition, but the evidentiary showing required is less than a


3
  Petitioner filed an “Amended Motion for Attorney Fees & Costs” on January 3, 2017, after judgment on
the dismissal Decision entered on December 29, 2016. The amended motion requests the same amounts
as the original motion.
                                                  2
preponderance of the evidence. Chuisano v. Sec’y of Health & Human Servs., No. 07-452V,
2013 WL 6234660, at *1, 13 (Fed. Cl. Spec. Mstr. Oct. 25, 2013).

        The undersigned finds that a reasonable basis existed for this claim. Petitioner filed
extensive medical records with the petition, as well as her own affidavit and an affidavit from Dr.
Jinny Tavee, her treating neurologist. Pet. Exs. 1, 4-15. In her affidavit, petitioner stated that
she “continue[s] to suffer with ongoing recurrent episodes of tingling/burning on my face and
head” and that “[t]he injury continues to cause me considerable pain and disability.” Pet. Ex. 1
at 1. Dr. Tavee’s affidavit stated that “[i]t is my opinion to a reasonable degree of medical
certainty that [petitioner’s] symptoms have lasted for longer than six (6) months from the onset
of the first symptoms and may continue to cause her ongoing symptoms into the indefinite
future.” Pet. Ex. 15 at 1. During the initial status conference on September 29, 2016, however,
respondent noted that the medical records filed did not appear to establish that petitioner had
experienced residual effects of her alleged vaccine injury for six months. See Initial Order, filed
Sept. 29, 2016. Petitioner was granted sixty days to file updated medical records establishing six
months of symptoms and file an amended petition. Id. On November 28, 2016, petitioner filed a
motion for a decision dismissing the petition.

         Although petitioner was ultimately unable to secure sufficient evidence that she had
experienced six months of symptoms to meet the burden of proof in the Program, petitioner did
file affidavits from both petitioner and the treating physician averring that petitioner had
experienced symptoms for more than six months. The lack of documented symptoms in the
medical records filed with the petition did not conclusively establish that petitioner did not
experience ongoing symptoms, and the affidavits were sufficient to establish a reasonable basis
for filing the claim. Petitioner’s motion for attorneys’ fees states that “[s]hortly after the filing
[of the petition], it was determined that the Petitioner’s expert’s affidavit was not specific enough
to meet the requisite requirements to establish the specific injury alleged to have occurred as a
result of the vaccination.” Pet. Mot. at 1-2. Counsel’s billing records indicates that during the
sixty days after the initial status conference, counsel attempted to obtain a supplemental affidavit
from Dr. Tavee but was ultimately unable to do so. Pet. Mot., Ex. 1 at 2. Counsel then promptly
advised petitioner of her available options, and filed a motion for a dismissal decision shortly
thereafter. See id. Accordingly, the undersigned finds that this claim was brought in good faith
and with a reasonable basis, and will award attorneys’ fees and costs.

 II.           Reasonable Attorneys’ Fees and Costs

         The Federal Circuit has approved 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 “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 1347-58 (quoting Blum v.
Stenson, 465 U.S. 886, 888 (1984)). Then, the court may make an upward or downward

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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 or Health & Human Servs., 3
F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). The
requirement that attorneys’ fees be reasonable also applies to costs. McCulloch v. Sec’y of
Health & Human Servs., No. 09-293V, 2015 WL 5634323, *5 (Fed. Cl. Spec. Mstr. Sept. 1,
2015) (citing Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (1992).

           a. Hourly Rates

        Mr. Mishkind requests a rate of $300 per hour. Pet. Mot. at 2. The undersigned finds the
requested rate reasonable. Mr. Mishkind was licensed to practice law in 1980, and therefore has
more than 36 years of experience. Pet. Mot., Ex. A, at 1. He has been counsel in a number of
vaccine cases, dating back to 1990. Id. Mr. Mishkind also states that attorneys’ fees at the rate
of $300 per hour were awarded pursuant to stipulation in Stout v. Sec’y of Health & Human
Servs., No. 15-469V, 2016 WL 1293896 (Fed. Cl. Spec. Mstr. Mar. 11, 2016). The undersigned
notes that the decision issued pursuant to the stipulation in Stout does not indicate the rate
awarded, because the total amount was agreed on by the parties. Petitioner did not submit
evidence regarding the local rates in Beachwood, Ohio. However, the undersigned notes that a
rate of $300 per hour is well below the experience-based forum rate range that Mr. Mishkind
would fall into under McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 Wl
5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015)(finding a range of $350 to $425 reasonable
for attorneys with more than 20 years of experience). Accordingly, the undersigned finds the
requested rate reasonable.

           b. Hours Expended

        Mr. Mishkind requests compensation for 32.10 hours of work performed on this case
between March 31, 2016, and November 28, 2016. Pet. Mot., Ex. 1 at 2. On review of counsel’s
billing record, the undersigned finds the number of hours expended reasonable.

           c. Costs

         Petitioner requests $844.80 in attorneys’ costs and $86.45 in petitioner’s costs. Pet. Mot.,
Ex. 1 at 3; Pet. Mot., Ex. A, Petitioner’s Affidavit. The requested costs consist primarily of the
filing fee, the cost of obtaining Dr. Tavee’s affidavit, and medical record costs. Id. The
undersigned finds the requested costs reasonable.

                                                 4
III.   Conclusion

        Upon review of the documentation of the requested attorneys’ fees and costs, and based
on his experience with the Vaccine Act and its attorneys, the undersigned finds the requested
attorneys’ fees and costs of $10,561.25 reasonable.

       The undersigned awards attorneys’ fees and costs as follows:

           (1) A lump sum of $10,474.80 in the form of a check payable jointly to petitioner
               and petitioner’s counsel, Howard D. Mishkind, of Mishkind Law Firm Co.,
               L.P.A., for attorneys’ fees and costs.

           (2) A lump sum of $86.45 in the form of a check payable to petitioner, for
               petitioner’s costs.

       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




4
  Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of notice
renouncing the right to seek review.
                                                  5
