# In the United States Court of Federal Claims

OFFICE OF SPECIAL MA STERS

* * * * * * * * * * * * *

LINDA D. KOOKER, * UNPUBLISHED

*

Petitioner, * No. 18

- 453V

*

v. * Special Master Gowen

*

SECRETARY OF HEALTH *

AND HUMAN SERVICES, * Attorneys ’ Fees and Costs;

* Voluntary Dismissal.

Respondent. *

*

* * * * * * * * * * * * *

Laurie C. TeWinkle

, Law Offices of L.C. TeWinkle, LLC, Erie, PA, for petitioner.

Robert P. Coleman , Department of Justice, Washington, D.C., for respondent.

DECISION ON ATTORNEYS ’ FEES AND COST S 1

On October 7, 2019, Linda Kooker (“petitioner”), filed a motion for attorneys’ fees and

costs. Petitioner’s Motion for Attorney Fees (“Fees. App.”) (ECF No. 36). For the reasons

discussed below, I GRANT , petitioner’s motion for attorneys’ fees and costs and award a total

of $6,756.45.

I. Procedural History

On June 7, 2016, Linda Kooke r (“petitioner”) filed a petition pursuant to the National

Vaccine Injury Compensation Program

. 2 Petitioner alleged as a result of an influenza (“flu”)

vaccine she received on December 2, 2016, she devel oped left shoulder adhesive capsulitis.

Petition at ¶ 8. On October 2, 2019, petitioner filed a motion for a decision dismissing the

1 P ursuant to the E

- Government Act of 2002, see 44 U.S.C. § 3501 note (2012), b ecause 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 inform ation 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.2

petition. ECF No. 33. The undersigned granted petitioner’s motion and petitioner’s claim was

thereafter dismissed for ins ufficient proof. Decision ( ECF No. 35).

On October 7, 2019, petitioner filed an application for attorneys ’ fees and costs. Fees.

App. Petitioner requests a total attorney s ’ fees and costs in the amount of $6,756.45

(representing $350 in attorney s ’ fees and $946.45 in costs.) Fees App. at ¶ 2. Respondent

responded to the motion on October 18, 2019 stating, “Respondent defers to the Special Master

to determine whether the statutory requirements for an award of attorney s ’ fees and costs are met

in this case ,” and if so requests the undersigned “determine a reasonable award for attorney s ’

fees and costs. Respondent’s Response (Resp. Response”) at 3, 5 (ECF No. 37).

This matter is no w ripe for adjudication.

I. L egal Standard

Under Section 15(e) of the Vaccine Act, a special master “may” award reasonable

attorney s ’ 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 petit ion

does not result in compensation for petitioner. 42 U.S.C. § 300aa

- 15(e)(1).

The Vaccine Act permits an award of “reasonable” attorney s ’ fees and costs. 42 U.S.C. §

300aa

- 15(e)(1). The Federal Circuit has approved the use of the lodestar approach t o determine

reasonable attorney s ’ 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 reason able. 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 , in dependent 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. A nalysis

I find no reason to doubt the good faith and reasonable basis for which the claim was

brought. Petitioner asserted that she suffered left shoulder adhesive capsulitis as a result of

receiving the flu vaccine. Petition at ¶ 8. On March 3, 2017, three mon ths after receiving the flu

vaccine, petitioner reported to her primary care physician that she was experiencing pain in her

left shoulder for the first time. See Scheduling Order (ECF No. 31). However, while petitioner3

endorsed that she experienced pain immediately after receiving the flu vaccine in her affidavit,

there was still a substantial amount of time that passed between the vaccine and first reported

pain to a medical professional. Id. at 2. I recommended that petitioner’s counsel consult with h er

client to discuss dismissing the claim. Id . at 3. Petitioner filed the motion to dismiss the petition

within a reasonable time after the status conference, thus not utilizing more of the Court or

respondent’s time in litigating the case.

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 vaccina tion. 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

attorney s ’ fees and costs.

III. R easonable Attorneys’ Fees and Costs

A. Hourly Rate

Petitioner requests compensation for her attorney, Ms. Laurie TeWinkle. Pet. Fees App.

at 1. Petitioner requests Ms. TeWinkle be compensated at a rate of $350.00 per hour for work

done in 2017

- 2019. Fees App. Exhib it (“Ex.”) 3.

Ms. TeWinkle ha s been awarded these attorney rates by other special masters in the

Vaccine Program. See Smith. Sec’y of Health & Human Servs., No. 15

- 1379, 2016 WL 3704925

(Fed. Cl. Spec. Mstr. June 2, 2016). As a result, I find the requ ested 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 t otal of $5,810.00 in attorneys ’ fees for 16.6 hours of work performed by Ms.

TeWinkle

. Given that petitioner’s counsel was responsive to the Court’s recommendation to

dismiss and did so in a timely manner, I find that the hours billed are reasonable and n o

reductions are necessary. Accordingly, petitioner is awarded attorneys ’ fees in the amount

of $ 5,810.00.

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 $12,746.01 in costs. This request includes the cost of filing the petition, obtaining medical4

records, and postage. 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 $ 946.45.

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 $ 6,756.45 , representing reimbursement for

peti tioner’s attorneys’ fees and costs, in the form of a check payable jointly to

petitioner and her counsel, Laurie TeWinkle

.

In absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the

Court shall enter judgment in accordance herew ith

. 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).