1



# In the United States Court of Federal Claims

OFFICE OF SPECIAL MA STERS

F ILED: M arch 12, 2020

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

KIARA S. MASSEY, * UNPUBLISHED

*

Petitioner, * No. 18

- 541 V

*

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 petitione r.

Mollie Danielle Gorney , Department of Justice, Washington, D.C., for respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS 1

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 cos ts 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 vaccin e

she received on June 1, 2017, she developed injuries including polyarthral gia. Petition at ¶ 4,

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 Interne t. 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 Progra m 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

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, peti tioner 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 re sponded 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 bas is 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. S ec’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 (cit ing 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). Adequa te 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 ju dgment 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 oth er 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 of3

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

dismisse d 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 reasonab le

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 & Hum an 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 i n 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. 19 92). 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. Eric4

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 recei pts 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 w ill 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 expe dited by each party’s filing notice renouncing the right to seek review. Vaccine Rule

11(a).