(2008)
Ward WRANGEN and Elyse Wrangen, Plaintiffs,
v.
PENNSYLVANIA LUMBERMANS MUTUAL INSURANCE COMPANY, Defendant.
Case No. 07-61879-CIV.
United States District Court, S.D. Florida.
November 24, 2008.

ORDER
ROBIN S. ROSENBAUM, United States Magistrate Judge.
This matter is before the Court on Plaintiffs' Motion for Protective Order [D.E. 29]. Following an expedited briefing scheduling, the Court held a hearing on November 20, 2008. [D.E. 35]. Both parties appeared and presented argument. After consideration of the Plaintiffs Motion, all responsive filings and briefs, the parties' arguments at the November 20th hearing, and the Court file, the Court denied Plaintiffs' Motion. This Order memorializes the Court's oral ruling at the November 20, 2008, hearing.

I. Background
Plaintiff Ward Wrangen originally sued Omicron Supplies, Inc. ("Omicron"), alleging he had suffered injuries from inhaling fumes from glue while performing work at Omicron. [D.E. 1, ¶ 8]. Omicron had an insurance policy through Defendant Pennsylvania Lumbermens Mutual Insurance Company[1] at the time, and Omicron filed a claim, alleging protection pursuant to that insurance policy. Id., ¶ 8, 13; see also D.E. 3, ¶ 2. Defendants, however, denied the claim. Id., ¶ 8; D.E. 3 at ¶ 2, 26.
Consequently, Plaintiff Ward Wrangen and his wife Elyse Wrangen filed suit against Omicron for negligence in Broward Circuit Court. [D.E. 1, ¶ 8]. According to Plaintiffs, Omicron forwarded the lawsuit to Defendant, requesting defense of the claims made, pursuant to Omicron's insurance policy. Id., ¶ 8-9. Defendants again denied coverage and allegedly declined to defend Omicron in the state lawsuit. Id., ¶ 9, 28.
Subsequently, Plaintiffs and Omicron settled the state lawsuit for total of $4.5 million. [D.E. 1, ¶ 9, 29-35]. Following the settlement, Omicron executed an assignment to Plaintiffs of all claims and causes of action it had against Defendant, arising out of, or on account of, or connected to the injuries sustained by Plaintiff Ward Wrangen. Id., ¶ 9, 36. The state court then entered a consent judgment in the amount of $4.5 million against Omicron. Id., ¶ 9, 28.
On November 27, 2007, Plaintiffs filed suit against Defendant in the Circuit Court of the 17th Judicial Circuit, in and for Broward County. [D.E. 1, ¶ 7]. In this case, Plaintiffs, asserting the rights of Omicron, alleged breach of contract, based on Defendant's denial of coverage and alleged refusal to pay the full amount of the claim against Omicron. Id., ¶ 9. Additionally, Plaintiffs sought a declaratory judgement essentially finding that Omicron was entitled to coverage for Plaintiffs' claim under the insurance policy it had with Defendants. Id., ¶ 10-12. Defendants removed the case from state court to this Court on December 21, 2007. Id.
On November 4, 2008, Plaintiffs filed a Motion for Protective Order from (a) the Notice of Taking Deposition Duces Tecum of the Corporate Representative of Superior Adhesives, Inc., the manufacturer of the substance that Plaintiff, Mr. Wrangen, was allegedly exposed to and which allegedly caused his injuries at issue in this case, and (b) the discovery of all information regarding liability and causation in the underlying case. [D.E. 29]. In the Notice of Deposition for the deposition that is scheduled for November 24, 2008, Defendant requested that Superior Adhesives, Inc., produce the individual with the most knowledge to testify to the matters concerning the following:
1) the MSDS for the material which is attached as Exh. A; 2) the chemical composition of the material identified in Exh. A; 3) appropriate and safe handling and usage procedures for the material identified in Exh. A; 4) precautions and warnings given by Superior Adhesives, or known of by Superior Adhesives regarding the material identified in Exh. A; 5) appropriate cleanup procedures and warnings regarding the material identified in Exh. A; and 6) information concerning dosage and/or methods or means of exposure to the material and known or suspected health effects, regarding the material identified in Exh. A.
Id., Ex. F. "Exhibit A" of the Notice of Deposition is entitled, "Material Safety Data Sheet," for "OMICRON Transparent Flowing." Id., Ex. F (pp. 88-93). The Notice of Deposition also includes an "Exhibit B," which requests specific documents related to the subject matter of the deposition. Id., Ex. F (p. 94).
As set forth in their Motion, Plaintiffs argue that all information related to causation and liability have already been determined and conceded by way of the settlement agreement/consent agreement entered into in the underlying case, and that Defendant is estopped from raising these defenses in the current case. Id., ¶ 9; p. 5. Plaintiffs assert that under Florida case law, in enforcing a consent agreement against the insurer such as Defendant in the case at hand, the only issues to be determined are whether the insured was covered under the policy in place, whether a wrongful refusal to defend occurred, and whether the settlement agreement was reasonable. Id., p. 5. As a result, the topics set forth in Defendant's Notice of Deposition, as well as any other discovery regarding the same issues of causation and liability, are irrelevant and immaterial to the current case, and it would be unduly burdensome, time consuming, and unnecessarily expensive to extend discovery in these areas. Id., ¶ 11-14.
The Court originally set this hearing for December 3, 2008. [D.E. 33]. However, on November 14, 2008, Plaintiffs filed a Motion to Stay and/Or Shorten the Time to Respond to Plaintiffs' Motion for Protective Order, requesting that the Court stay the November 24, 2008, deposition at issue in their Motion for Protective Order [see D.E. 29], until after the previously scheduled December 3, 2008, hearing date on their Motion for Protective Order [see D.E. 33], or alternatively, that the Court expedite the responsive briefings and hearing on their Motion for Protective Order some time prior to the November 24, 2008, deposition date. [D.E. 34]. The Court granted in part Plaintiffs' request and expedited briefing on Plaintiffs' Motion and rescheduled the hearing for November 20, 2008. [D.E. 35].
Defendant filed its expedited Response on November 18, 2008. [D.E. 36]. Defendant acknowledged the established rule that in enforcing a consent judgment in this type of case, Plaintiff must make prima facie showing of reasonableness of the settlement agreement and a showing of lack of bad faith, but the ultimate burden of proof lies with Defendant. Id., p. 3-4. In order to evaluate the reasonableness of the settlement, Defendant suggests that under Florida case law, the standard is that of a "reasonable person," and the fact finder must determine whether Defendant "knew or should have known through reasonable diligence and inquiry in ascertaining the probability of liability in the underlying case including whether or not the [P]laintiff[s] could prevail on the issue of causation, as well as the reasonable damages that could be expected to be returned by a jury assuming an award of any damages to the [P]laintiff[s] could be established as caused by the negligence of the [D]efendant." Id., p. 3; pp. 3-5. Based on this standard, Defendant claims that information regarding liability and causation of the underlying case are relevant to the issue of a reasonable settlement. Id.; pp. 6-7.
Furthermore, Defendant argues that information regarding causation is relevant to the issue of "good faith." Id., pp. 5-6. In its Response, Defendant opines that discovery of information relating to causation may lead also to evidence showing there is no causal connection between the alleged chemical exposure and Plaintiff Ward Wrangen's injuries, or that Omicron made a material misrepresentation to Defendant in its insurance application regarding the chemical that allegedly injured Plaintiff Ward Wrangen, supporting the possibility that the settlement was made in bad faith. Id.
Defendant further states that its purpose for the deposition at issue is to explore Omicron's liability and causation in the underlying case as it relates to the issue of the reasonableness of the settlement agreement and good faith, and not to re-litigate the underlying facts of the case. Thus, as information regarding liability and causation are allegedly relevant to both the reasonableness of the settlement and good faith, which are at issue in this case, Defendant concludes that under the broad scope of discovery, the deposition and discovery should be allowed. Id., pp. 6-11. Accordingly, Defendant requests that Plaintiffs' Motion be denied, that the deposition at issue proceed as noticed, that all discovery on issues of liability and causation be allowed, and that any issues of admissibility of deposition testimony be addressed in motions in limine at the time of trial. Id., p. 11. Plaintiffs then filed their expedited Reply on November 18, 2008. [D.E. 37].
Both parties appeared for the November 20, 2008, hearing and presented argument. During the hearing, Plaintiffs argued that the scope of Defendant's proposed deposition was outside the confines of what Florida case law allows in this type of case and is not relevant to any issues before the Court. While Plaintiffs agreed that the reasonableness of the settlement agreement and good faith are elements that need to be proven, under Plaintiffs' interpretation of Florida case law, the reasonableness of the settlement relates solely to the issue of the reasonableness of the settlement amount for the injuries sustained, in comparison to similar cases, and does not allow exploration of liability and causation of the underlying case. Plaintiffs contended that issues of liability and causation were settled in the underlying case and should not be re-explored in enforcement of the consent judgment in the current case. According to Plaintiffs, any exploration of the issues of liability and causation in discovery in this case undermined the principle of res judicata.
Alternatively, Plaintiffs submitted that the inquiry into the reasonableness of the settlement is really part of the issue of bad faith and the possibility of collusion between Plaintiffs and Omicron in entering into the settlement agreement, not whether the settlement amount was the fairest settlement, and, thus, liability and causation are not relevant. As such, according to Plaintiffs, the scope of Defendant's proposed deposition and any further discovery is not relevant to the issues of reasonableness or good or bad faith.
Defendants countered that Plaintiffs misinterpreted Florida case law, and that an inquiry into the underlying facts regarding liability and causation is contemplated by Florida case law as it relates specifically to the requirement of establishing the reasonableness of the settlement agreement and good faith. According to Defendant, in contrast to Plaintiffs' argument, the reasonableness of a settlement agreement under Florida case law is not limited to only the reasonableness of the settlement amount in light of the injuries sustained. Rather, Defendant argued, the case law establishes that an inquiry into causation and liability are necessary in order to assess issues of the reasonableness of the settlement agreement and good faith, thus, making them relevant and within the scope of discovery.

II. Analysis
Rule 26(c), Fed.R.Civ.P., pursuant to which Plaintiffs seek relief, provides, in relevant part, as follows:
Upon motion by a party or by the person from whom discovery is sought, ... and for good cause shown, the court in which the action is pending ... may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense....
As the party seeking a protective order, Plaintiffs must provide the Court with "good cause" for the protection sought. Fed.R.Civ.P. 26(c). "Good cause" has been defined as a "sound basis or legitimate need to take judicial action." In re Alexander Grant & Co. Litigation, 820 F.2d 352, 356 (11th Cir.1987). The party requesting a protective order must make a specific demonstration of facts in support of the request. A court must then balance the competing factors involved in determining whether good cause has been shown. See Farnsworth v. Procter & Gamble Co., 758 F.2d 1545, 1547 (11th Cir.1985).
Plaintiffs' claimed "good cause" for a protective order consists of its contention that the information sought in the specific Notice of Deposition, as well as the request for documents, and other similar discovery on issues of liability and causation, is not relevant to the matters before the Court in this proceeding. As to the issue of relevancy of information in discovery, Rule 26(b) of the Federal Rules of Civil Procedure defines the scope of discovery as including "any matter, not privileged, that is relevant to the claim or defense of any party" or, upon a showing of good cause, "any matter relevant to the subject matter involved...." Even after the 2000 amendments to Rule 26, it is well established that courts must employ a liberal discovery standard in keeping with the spirit and purpose of the discovery rules. Graham v. Casey's Gen. Stores, 206 F.R.D. 251, 253 (S.D.Ind.2002); White v. Kenneth Warren & Son, Ltd., 203 F.R.D. 364, 366 (N.D.Ill.2001). Accordingly, discovery should ordinarily be allowed under the concept of relevancy unless it is clear that the information sought has no possible bearing on the claims and defenses of the parties or otherwise on the subject matter of the action. Dunkin' Donuts, Inc. v. Mary's Donuts, Inc., No. 01-0392-Civ-Gold, 2001 WL 34079319 *2 (S.D.Fla. Nov. 1, 2001) (Simonton, Mag. J.). Put more simply, a matter is deemed to be irrelevant if it does not pertain to a claim or defense.
In order to understand the scope of what issues are relevant to this case, the Court looks to Florida case law on the type of settlement agreement entered in this case. In Florida courts, this type of settlement agreement is sometimes referred to as a Coblentz agreement, as described in the case Coblentz v. American Surety Co. of New York, 416 F.2d 1059, 1063 (5th Cir.1969),[2] wherein the court held that an insurer who had "refused to handle" its insured's defense, thus leaving its insured to "his own resources," was bound by the terms of a negotiated final consent judgment entered against the insured. Id. Coblentz agreements are valid and binding in Florida. United States Fire Ins. Co. v. Hayden Bonded Storage Co., 930 So.2d 686, 690-91 (Fla. 4th D.C.A. 2006). As a result, an insurer will be bound to a settlement agreement/consent judgment negotiated between an insured and a claimant where (1) damages are covered by the policy; (2) the insurer wrongfully refused to defend; and (3) the settlement is reasonable and made in good faith. Chomat v. Northern Ins. Co. of New York, 919 So.2d 535, 538 (Fla. 3rd D.C.A. 2006); see United States Fire Ins. Co., 930 So.2d at 690-91; Gallagher v. Dupont, 918 So.2d 342, 349 (Fla. 5th D.C.A. 2005).
In the case of when an insurer wrongfully refuses to defend its insured, "the insured's liability has been established by the settlement and the insurer may not later relitigate this issue." Ahern, 788 So.2d at 372; see also 788 So.2d at 373 (upon refusal to provide a defense "[insurer] Odyssey lost its chance to litigate the factual issues surrounding duty, breach, and proximate causation that were pivotal to the ultimate resolution of Ahern's claims."). An insurer is not entitled to raise any defense to the plaintiffs claim in the pending case that should have been raised in the underlying action. Gallagher, 918 So.2d at 347; Independent Fire Ins. Co. v. Paulekas, 633 So.2d 1111, 1114 (Fla. 3rd D.C.A. 1994).
Nonetheless, where an injured party wishes to recover under a Coblentz agreement, "[t]he claimant must `assume the burden of initially going forward with the production of evidence sufficient to make a prima facie showing of reasonableness and lack of bad faith, even though the ultimate burden of proof will rest with the carrier.'" Chomat, 919 So.2d at 538 (quoting Steil v. Florida Physicians' Ins. Reciprocal, 448 So.2d 589, 592 (Fla. 2nd D.C.A. 1984)). The courts impose good faith and reasonableness requirements in these cases due to the risk that the "settlement of liability and damages" in a settlement agreement "may have little relationship to the strength of a plaintiff's claim" where the insured may never be obligated to pay and has little to lose if he stipulates to a large sum with the plaintiff. Steil, 448 So.2d at 592.
Accordingly, in Florida courts the "test as to whether the settlement is reasonable and prudent is what a reasonably prudent person in the position of the defendant [the insurer] would have settled for on the merits of plaintiff's claim." Home Ins. Co. v. Advance Machine Co., 443 So.2d 165, 168 (Fla. 1st D.C.A. 1983) (citing Miller v. Shugart, 316 N.W.2d 729, 735 (Minn.1982)). In determining whether a settlement is reasonable, a Florida court considers not only such objective factors as the extent of plaintiff's injuries, but also "certain subjective factors ... including the degree of certainty of the tortfeasor's subjection to liability, the risks of going to trial and the chances that the jury verdict might exceed the settlement offer." Home Ins. Co., 443 So.2d at 168 (citing Miller, 316 N.W.2d at 735). Furthermore,
The determination of whether a settlement is reasonable is made by a "reasonable person" standard.... [P]roof of reasonableness is ordinarily established through use of expert witnesses to testify about such matters as the extent of the defendant's liability, the reasonableness of the damages amount in comparison with compensatory awards in other cases, and the expense which have been required for the settling defendants to settle the suit.
Chomat v. Northern Ins. Co. of New York, 919 So.2d at 538 (emphasis added). A determination of reasonableness of the settlement agreement is made "in view of the degree of probability of the insured's success and the size of the possible recovery." Paulekas, 633 So.2d at 1114 (emphasis added). Moreover, in defending against plaintiff's prima facie case of good faith, a defendant's "bad faith claim [can] include[] a false claim ..., or collusion in which the plaintiffs agree to share the recovery with the insured .... [and] these matters involve the underlying facts of the case." Id. (emphasis added).
In light of this Florida case law, as noted at the hearing on November 20, 2008, the Court found that the information sought at this noticed deposition, as well as documents sought by Defendants, is relevant to the issues of reasonableness of the settlement agreement and good faith, and therefore, is discoverable. Plaintiffs' contention that the inquiry into the reasonableness of the settlement agreement is limited to the actual value of the Plaintiffs' injury, as opposed to issues of liability and causation, is not supported by the case law. While reasonableness of the actual amount of settlement may certainly constitute a consideration in determining the reasonableness of a settlement agreement, as noted above, Florida case law defines the inquiry into "reasonableness" as not limited to just the actual amount of the settlement but more broadly includes "the extent of the defendant's liability," Chomat, 919 So.2d at 538, "the degree of certainty of the tortfeasor's subjection to liability, the risks of going to trial, and the chances that the jury verdict might exceed the settlement offer," Home Ins. Co., 443 So.2d at 168, as well as "the probability of the insured's success and the size of the possible recovery," Paulekas, 633 So.2d at 1114.
It is difficult to conceive of how a defendant could find evidence regarding these issues without at least inquiring into the underlying facts concerning causation and liability. Thus, the Court held that Defendant's desire to explore information regarding liability and causation of the underlying case is reasonable and supported by Florida case law. In this regard, as information regarding causation and liability has a direct bearing on the issue of reasonableness of a settlement agreement, an essential issue in the case before the Court, it is relevant and falls within the realm of discoverable information.
Plaintiffs' alternative argument, that the reasonableness of the settlement pertains only to the issue of bad faith and the possibility of collusion between Plaintiffs and Omicron in entering into the settlement agreement and not whether the settlement amount was the fairest settlement, also must fail under Florida case law. First, while there maybe overlapping elements of reasonableness and good faith, Florida courts are clear that "[i]n addition to making a prima facie showing of reasonableness, the plaintiffs must also make a prima facie showing of good faith." Chomat, 919 So.2d at 538 (emphasis added); see also Ahern v. Odyssey Re (London Ltd.), 788 So.2d 369, 372 (Fla. 4th D.C.A. 2001) (noting that third element as "that the settlement was reasonable and made in good faith") (emphasis added); Paulekas, 633 So.2d at 1114 (same); Steil, 448 So.2d at 592 (same). Thus, the requirement that a plaintiff present a prima facie case of the reasonableness of the settlement agreement and good faith includes two separate inquiries requiring separate analysis. Second, as discussed above, the inquiry into "reasonableness" as set forth by Florida case law does, in fact, include an inquiry into liability and causation. Furthermore, previously discussed, Florida courts have found that the issue of good faith or defending against a bad faith claim, "involve[s] matters involving the underlying facts of the case." Chomat, 919 So.2d at 538; see also Steil, 448 So.2d at 592. As such, the Court found that information regarding liability and causation also had a bearing on the essential element of good faith, and thus, served as another basis for relevancy of this information under the discovery rules.
Based on the foregoing, at the November 20th hearing, the Court denied Plaintiffs' Motion for Protective Order, found that Defendant may proceed with the scheduled November 24th deposition of the corporate representative of Superior Adhesives, Inc., and that discovery may proceed on information regarding liability and causation.
The Court reminds the parties that its ruling that Defendant may engage in discovery regarding these issues is not tantamount to a determination that all such evidence is admissible at trial. Questions of admissibility can differ from those of discoverability. All the Court rules at this time, then, is that the requested discovery falls within the scope of Rule 26, and thus, is permissible.

III. Conclusion
Accordingly, it is hereby ORDERED and ADJUDGED that Plaintiffs' Motion for Protective Order [D.E. 29] is DENIED.
NOTES
[1]  The name of the company was not spelled correctly when Plaintiffs filed suit.
[2]  Pursuant to Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir.1981), opinions of the Fifth Circuit issued prior to October 1, 1981, are binding precedent in the Eleventh Circuit.


(2008)
Jerry Lewis BEY, Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE, Defendant.
Civil Action No. 05-2241 (GK).
United States District Court, District of Columbia.
July 7, 2008.

MEMORANDUM OPINION
GLADYS KESSLER, District Judge.
This matter is before the Court on Defendant's Status Report Regarding Its Disclosure of Segregable Records to Plaintiff [Dkt. # 24]. Insofar as Defendant requests dismissal of this action as moot, the Court construes the submission as a motion to dismiss. The motion will be denied without prejudice.

I. BACKGROUND
In 1997, Plaintiff submitted the first of many requests for information about himself and his organization, the Moorish Science Temple of America, under the Freedom of Information Act ("FOIA"), see 5 U.S.C. § 552, to the entity now known as the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF").[1]See Memorandum of Points and Authorities in Support of Defendant's Motion for Summary Judgment ("Def.'s Mot."), Declaration of Averill P. Graham ("Graham Decl.") ¶ 3 & Ex. A (July 4, 1997 FOIA request). Plaintiff explained that ATF Special Agents obtained information about him and his organization, the Moorish Science Temple of America, from a pen register at his wife's residence, from video surveillance, and from witness interviews taken in the course of an investigation conducted in the 1980's through the early 1990's. See id., Ex. A at 1-3. According to Plaintiff, this information led to his arrest and ultimately to his criminal conviction. See id. at 3.
Relying on FOIA Exemption 7(A), the ATF refused to disclose any of the responsive records because there were "on-going enforcement proceedings" at that time. Graham Decl. ¶ 10. Plaintiff requested reconsideration of this decision in April 2000, id. ¶ 11, and on June 2, 2000, the ATF "released 100 partially redacted pages [and] advised [P]laintiff that another 357 pages remained in the file which he could receive upon receipt of the associated [copying] fee of $52.50." Id. ¶ 12; see id., Ex. J (June 2, 2000 letter from A.P. Graham, Disclosure Specialist, ATF, Ref. 00-1499). The ATF released the remaining redacted pages on receipt of Plaintiffs payment in full of the copying fees. See id., Ex. L (July 3, 2000 letter from A.P. Graham, Ref. 00-1499).
In July 2000, Plaintiff submitted three FOIA requests to the ATF. See Compl. ¶¶ 5-6; Graham Decl. ¶¶ 15-17. In his first request, Plaintiff acknowledged receipt of the records released on July 3, 2000, and in addition sought release of "all pen registers, surve[i]llance logs, and toll records" for the period from "April 1986 to July 1986 ... at 11882 San Remo." Graham Decl., Ex. M (July 17, 2000 letter from Plaintiff, Ref. 00-1499). Plaintiff believed that this information would be found in what he labelled the ATF's "1983 investigation file." Compl. ¶ 5. In his second request, Plaintiff sought "information maintained in [ATF] files on a Fred Knox, who was killed in St. Louis, Missouri on October 3, 1990," including "interviews of Mr. Knox and ATF agents in St. Louis between April 1989 and November 1990." Graham Decl, Ex. N (July 27, 2000 letter, Ref. "ATF Records on Fred Knox"). In his third request, Plaintiff sought "all records of a pen-register that the ATF ... had on [his] telephone ... from April 1986 through July 31, 1986," including "all surve[i]llance logs, notes, and any debriefing reports and photos." Id., Ex. P (July 27, 2000 letter, Ref. "ATF Records on Jerry Lewis Bey From May 1, 1986-July 31,1986").
The ATF responded to the July 2000 requests by refusing to release pen register records under FOIA Exemptions 7(C) and 7(E), by stating that it found no videotapes, by releasing some information pertaining to Mr. Knox, and by denying the existence of a 1983 investigation file. Graham Decl. ¶ 19 & Ex. S (September 29, 2000 letter from A.P. Graham, Ref. 00-2239). According to the ATF, the only investigative file it maintained was "a 1988 case file," noting that "prior to that time ATF could have been part of a task force and was not necessarily the lead agency" conducting the investigation as Plaintiff suggested.[2]Id., Ex. S.
In subsequent FOIA requests, Plaintiff sought records which he believed were gathered by ATF Special Agents in 1983. See Graham Decl. ¶¶ 20, 23 & Ex. T (May 11, 2001 letter, Ref. "FOIPA Disclosure on Jerry Lewis Bey And The Moorish Science Temple In 1983"), W (July 5, 2001 letter, Ref. 01-1718). The ATF maintained that it could not locate a 1983 investigative file. Id. ¶¶ 21-22, 24 & Ex. U, V, X (June 20, 2001, June 26, 2001, and July 23, 2001 letters from A.P. Graham). However, the ATF located a 1988 file "pertaining to the `Moorish Science Temple'" which was "available upon request (ATF investigative file 33290 88 1540G).'" Id. ¶ 24. The ATF "deemed [the 1988 investigative file] not responsive since it is a 1988 case, and not a 1983 case as [Plaintiff] requested." Id., Ex. X (July 23, 2001 letter from A.P. Graham, Ref. 01-1869).
This 1988 investigative file pertaining to the Moorish Science Temple of America was the subject of Plaintiffs next FOIA request. Graham Decl. ¶ 25 & Ex. Y (July 31, 2001 letter, Ref. 01-1869). "Upon consultation with the United States Attorney's Office (USAO) for the Eastern District of Missouri (EDMO)," id. ¶ 26 n.4, the ATF determined that Plaintiffs criminal case remained open on appeal. Id. ¶ 26. For this reason, the ATF refused to release the 1988 investigative file under FOIA Exemption 7(A). Id. & Ex. Z (August 13, 2001 letter from A.P. Graham, Ref. 01-2089). In addition, it relied on FOIA Exemptions 2, 7(C), and 7(E). Id., Ex. Z.
On July 30, 2003, Plaintiff submitted a FOIA request for "a copy of a June 7, 1983 ATF report written by [a] Special Agent... of the Bureau of Alcohol, Tobacco and Firearms" and for release of the entire 1988 investigative file. Graham Decl., Ex. PP (July 30, 2003 FOIA request, later designated Ref. 03-2174). This request led to the discovery of the 1983 investigative file (ATF File No. 33920 83 1501Y) in the office of the St. Louis Field Division, id. ¶ 41 n.6, the same 1983 investigative file that the agency steadfastly had denied existed. The ATF nonetheless refused to release the 1983 file under FOIA Exemption 7(A) because the requested records "related to an ongoing investigation." Id. ¶ 42; see id., Ex. QQ (August 12, 2003 letter from A.P. Graham, Ref. 03-2174).
The last FOIA request relevant to this civil action was for ATF File No. 7665 0683 1501 L (01), which pertained to Plaintiff and the Moorish Science Temple of America. Compl. ¶ 24; Graham Decl. ¶ 45 & Ex. TT (January 24, 2004 FOIA request). This file was part of the larger 1983 investigation file, ATF File No. 33920 83 1501Y, which had been withheld under Exemption 7(A).[3] Graham Decl. ¶¶ 41, 45. The ATF refused to release the requested file under FOIA Exemption 7(A). Id. ¶ 46 & Ex. UU (February 19, 2004 letter from AP. Graham, Ref. 04-777 AG).
On the mistaken belief that there were no further criminal proceedings pending, the ATF released to Plaintiff a redacted copy of the June 7, 1983 report. Graham Decl. ¶ 44 & Ex. SS (January 6, 2004 letter from A.P. Graham, Ref. 03-2174). Plaintiffs subsequent efforts to secure release of the entire 1983 and 1998 investigative files were unsuccessful when it became known that criminal proceedings were ongoing. See Graham Decl. ¶¶ 45-60.
In his Complaint, Plaintiff alleges that the ATF fails to comply with FOIA as it refuses to release records pertaining to himself and to the Moorish Science Temple of America "located in [ATF] file 7665 0683 1501 (01), which [ ] originated out of the [ATF] St. Louis field office." Compl. ¶ 1. This file is the subject of Plaintiffs January 24, 2004 FOIA request and is a part of the 1983 investigation file, ATF File No. 33920 83 1501 Y. See Graham Decl. ¶¶ 41, 45 n.9 & Ex. TT. In addition, Plaintiff alleges that the ATF refuses to release records pertaining to him and to the Moorish Science Temple of America maintained in the 1983 investigation file. See Compl. ¶¶ 5-6, 8, 10, 12, 14.
The ATF moved for summary judgment, and in its March 20, 2007 Memorandum Order, the Court granted the motion in part. The Court concluded that the ATF conducted an adequate search for records responsive to Plaintiffs FOIA requests, that Plaintiff failed to exhaust his administrative remedies with regard to his requests for pen register records, and that Plaintiff conceded the validity of the ATF's decision to withhold records or portions of records under FOIA Exemptions 2, 3, 7(C), 7(D), 7(E), and 7(F). There was no dispute that the responsive records are law enforcement records within the scope of FOIA Exemption 7.
The Court further concluded that the ATF's decision to withhold records under FOIA Exemption 7(A) was proper. The ATF demonstrated the possibility of a prospective enforcement proceeding and, in the "unique set of circumstances" presented in this case, release of the records could reasonably be expected to interfere with such an enforcement proceeding. Mem. Order at 15.
The ATF designated three categories of records withheld under FOIA Exemption 7(A): (1) Reports of Investigation, (2) investigator's contemporaneous notes, and (3) activity reports. Mem. Order at 19. The ATF adequately demonstrated that the first category of documents, ATF Reports of Investigation, were properly withheld, and in this respect its summary judgment motion was granted. Id. at 20. However, the ATF did not show that all reasonably segregable portions of the records in the second and third categories were released to Plaintiff. Id. at 20-21. Nor did the ATF establish that, after having redacted certain information under FOIA Exemptions 2, 3, 7(A), 7(C), 7(D), 7(E), and 7(F), all reasonably segregable information had been released to Plaintiff. Id. at 22-23. For this reason, the Court held the matter in abeyance until the ATF submitted a supplemental declaration or report.
Subsequently, the ATF notified the Court that "Plaintiffs collateral matter before the Eighth Circuit Court of Appeals, which formed the basis for the Exemption 7(A) claim, was dismissed by the Circuit Court on April 9, 2007." Defendant's Status Report Regarding Its Disclosure of Segregable Records To Plaintiff [Dkt. # 23] ¶ 3. The ATF then "began processing Plaintiffs FOIA request for segregability and disclosure pursuant to the FOIA, including the first category of documents that the Court held were protected by Exemption 7(A)." Id. When the ATF completed the processing of these records, it "determined that approximately 337 pages were responsive to Plaintiffs request." Defendant's Status Report [Dkt. # 24] ¶ 4. On August 8, 2007, it "provided approximately 300 pages to Plaintiff and withheld four documents (consisting of 7 pages) in full pursuant to FOIA [Exemption 7(C) and Fed.R.Crim.P. 6(e)." Id. In addition, it redacted certain documents under FOIA Exemptions 2, 3, 5, 7(C), 7(D) and 7(E). Id. With this release, the ATF informed Plaintiff of his right to pursue an administrative appeal. Id. & Attach. (Document Cover Sheet  Exemptions List and Appeal Rights).
The ATF now requests dismissal of this action as moot. Defendant's Status Report [Dkt. # 24]. Plaintiff opposes dismissal, citing a number of items requested but not included in the August 8, 2007 release, as well as his objections to the deletion of certain information under FOIA Exemption 7(C). See Plaintiffs Motion in Opposition to Dismiss as Moot [Dkt. # 25] ¶¶ 5-11; Reply to Plaintiffs "Motion in Opposition to Dismiss as Moot" [Dkt. # 26] ¶¶ 4-6; Reply to Defendant's "Third Motion" to Dismiss as Moot [Dkt. # 31] ¶¶ 4-6. In their subsequent filings, the parties argue over the content and scope of Plaintiffs FOIA requests and dispute whether the ATF met its obligations under FOIA. At this point, both parties proceed as if Plaintiff requested the entire 1983 investigation file. See Reply to Defendant's "Second Motion" to Dismiss as Moot [Dkt. # 27] ¶ 2; Response to Plaintiffs "Reply to Defendant's `Second Motion' to Dismiss as Moot" [Dkt. # 30] ¶ 4.
Where, as here, an agency "declines to disclose a document[,] the burden is upon the agency to prove de novo in [the] trial court that the information sought fits under one of the exemptions to the FOIA." Vaughn v. Rosen, 484 F.2d 820, 823 (D.C.Cir.1973). "A court faced only with an agency's claim that documents are exempt cannot conduct a meaningful review of the agency's decision to withhold those documents." Manna v. United States Dep't of Justice, 832 F.Supp. 866, 873 (D.N.J.1993) (citation omitted). The ATF's August 8, 2007 disclosure is accompanied only by a cover sheet summarizing the number of pages located, the number of documents withheld in full, and listing the exemptions claimed. See Defendant's Status Report [Dkt. # 24], Attach. Absent a declaration, affidavit, or index describing the records withheld and a showing that the records fall within the claimed exemptions, the Court cannot determine whether the ATF properly withheld records found in the 1983 investigation file.
Based on the current record, long and complex as it is, the Court cannot determine whether dismissal of this case as moot is now appropriate. Therefore, the Court will deny the ATF's motion to dismiss without prejudice and direct it to file a proper dispositive motion, with supporting declarations or exhibits as appropriate, to which Plaintiff can respond and on which the Court may rule when fully briefed. An Order consistent with this Memorandum Opinion is issued separately.
NOTES
[1]  Although the United States Department of Justice is the proper defendant to this FOIA case, see 5 U.S.C. §§ 551(1), 552(f)(1), for convenience, the Court will refer to, the defendant as "ATF."
[2]  he record shows that the "ATF was assisting the Federal Bureau of Investigation, Drug Enforcement Administration, and St. Louis Police Department in this investigation." Graham Decl. ¶ 65.
[3]  The ATF's initial search of its TECS database using Plaintiffs full name as a search term located records in the ATF's St. Louis Field Division; these records were retrievable under Criminal Investigation Number 33920 88 1510 X. Graham Decl. ¶ 110. Criminal Investigation Number 33920 88 1510 X was "the only ATF file associated with [P]laintiff's name in the TECS database and was released in June 2000." Id. A TECS search using "Moorish Science Temple" as a search term yielded "investigative case file 33920 88 1540G, also a St. Louis Field Division case file." Id.

In response to Plaintiff's opposition to the ATF's motion to dismiss, ATF staff "conducted another thorough review of the 1983 case file." Reply to Plaintiff's "Motion in Opposition to Dismiss as Moot," Attach. (Declaration of Marilyn R. LaBrie) ¶ 3. This review revealed that the file "contained documents with several different Investigation Numbers including: 33920 83 1501Y and 7665 0683 1510L and additionally some documents from a 1988 case file. It is unclear whether the two 1983 case file numbers were interchangeable or whether the file had been rearranged for some purpose; however, it appears that the different case numbers were merged[.]" Id.


316 N.W.2d 627 (1982)
STATE of South Dakota, Plaintiff and Appellee,
v.
Charles Wesley WATKINS, Defendant and Appellant.
No. 13463.
Supreme Court of South Dakota.
Considered on Briefs December 9, 1981.
Decided March 3, 1982.
Mark W. Barnett, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.
Donald H. Breit, Sioux Falls, for defendant and appellant.
PER CURIAM.
Defendant, Charles Wesley Watkins, appeals his conviction for escape. We affirm.
Between the middle and end of August, 1980, at 7 a. m., defendant found a threatening note on the mattress in his cell at the South Dakota penitentiary. Because of the layout of the AC detention center where he was housed, defendant believed that the note came from a guard or the penitentiary administration. Consequently, he did not bring the note to the attention of any authorities.
On September 9, 1980, defendant swallowed a razor blade "to remove myself from my cell" because "I was in fear from the penitentiary." Defendant and another inmate, who also had swallowed a razor blade, were transferred to Sioux Valley hospital. At 3:00 a. m. on September 12, 1980, defendant managed to remove his leg irons, overpower the guard, and escape from the hospital because he was "scared to go back to the penitentiary."
Defendant was captured approximately six hours after the escape. During his hours of freedom, he went several places and made a number of phone calls in an attempt to find a ride south. He testified that he planned to contact an FBI agent in Minneapolis after he had secured a ride.
Defendant argues that the trial court erred by refusing to give an instruction on the defense of duress or necessity. We do not agree. In State v. Miller, 313 N.W.2d 460 (S.D.1981), we noted that the essential element permitting the submission of the defense of necessity to the jury is `"a reasonable fear of death or bodily harm ... imminent or emergent ...."' (Quoting State v. Baker, 598 S.W.2d 540 (Mo.App. 1980)).
Defendant failed to make any showing that he was in imminent danger of bodily harm. The single threat that defendant received in the penitentiary came from an unknown source two to four weeks before the escape. Defendant successfully escaped from the hospital by overpowering the guard by choking him with leg irons. Defendant testified that he had no concern for his personal life or welfare while in the hospital. Under the factual situation, the trial court correctly refused to submit the duress or necessity defense to the jury.
The judgment is affirmed.


260 S.W.3d 351 (2008)
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; and Bank of New York Trust Company, as Trustee for RASC2003KS, Successor by Assignment from JPMorgan Chase Bank, as Trustee for RASC2003KS, Appellants
v.
Donald Wayne ABNER and Roxanne Abner, Appellees.
No. 2007-CA-000574-MR.
Court of Appeals of Kentucky.
July 25, 2008.
Jeffrey W. Kibbey, Louisville, KY, for appellant.
*352 Addison Parker, Richmond, KY, for appellees.
Before ACREE, DIXON, and TAYLOR, Judges.

OPINION
DIXON, Judge.
Appellants, Bank of New York Trust Company and Mortgage Electronic Registration Systems, Inc. (MERS), appeal from an order of the Madison Circuit Court denying their motion to compel arbitration in this forclosure matter. As we agree with the trial court's finding that the arbitration clause is unconscionable, we affirm.
On September 25, 2002, Appellees, Donald Wayne and Roxanne Abner, executed a promissory note in the amount of $40,000, plus interest at a rate of 10.125% per annum as specified in the note. Appellant Bank of New York is the current holder of the note. In addition, Appellees executed a mortgage with MERS to secure the note. The note and mortgage relate to real estate located in Waco, Kentucky. Paragraph 27 of the mortgage contains an arbitration clause, which provides in relevant part,
The parties agree that the arbitrator shall have all powers provided by law, this Agreement, and the Loan Agreements. However, the arbitrator shall have no power to vary or modify any of the provisions of the Loan Agreements. . . .
. . . .
IF THE APPOINTED ARBITRATOR SHOULD AWARD ANY DAMAGES, SUCH DAMAGES SHALL BE LIMITED TO ACTUAL AND DIRECT DAMAGES AND SHALL IN NO EVENT INCLUDE CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR TREBLE DAMAGES AS TO WHICH THE BORROWER AND LENDER EXPRESSLY WAIVE ANY RIGHT TO CLAIM TO THE FULLEST EXTENT PERMITTED BY LAW.
On December 17, 2003, Appellants filed a foreclosure action against Appellees for failure to pay the amount due under the terms of the note and mortgage. Appellees thereafter filed a counterclaim and claim for offset alleging that the loan at issue was a predatory high cost loan subject to the Home Ownership Equity Protection Act, 15 U.S.C. § 1639 (HOEPA). HOEPA, which is contained within the Truth In Lending Act (TILA), 15 U.S.C. § 1601, affords consumers defenses and remedies to certain high cost home loans, including rescission of the note and mortgage, as well as recovery of statutory and enhanced statutory damages. Appellees claimed that they rescinded the note by letter dated April 6, 2005, and that such rescission voided the note and mortgage, with the statutory damages offsetting the entire indebtedness. Appellees further counterclaimed that Appellants had committed usury and breach of contract, including the implied covenant of good faith, by assessing Appellees charges and penalties that were excessive and unauthorized.
In the summer of 2006, the parties became involved in a discovery dispute that led to Appellees filing a motion to dismiss the foreclosure action. As part of their response to the motion, Appellants moved the trial court to compel arbitration. On February 16, 2007, the trial court denied the motion to compel arbitration, finding the arbitration agreement to be unconscionable. This appeal ensued[1].
*353 Appellants argue to this Court that the trial court erred in finding that the arbitration clause was unconscionable and unenforceable. Appellants contend that Kentucky has a policy of favoring arbitration and that prima facie evidence of an arbitration provision creates a strong presumption of its validity under both the Kentucky Uniform Arbitration Act (KUAA) and the Federal Arbitration Act (FAA). See Valley Construction Company, Inc. v. Perry Host Management Company, Inc., 796 S.W.2d 365, 368 (Ky.App. 1990). Further, Appellants point out that state and federal courts have compelled arbitration in cases involving claims identical to those asserted by Appellees herein. See Green Tree Financial Corporation-Alabama v. Randolph, 531 U.S. 79, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000); Stout v. J.D. Byrider, 228 F.3d 709 (6th Cir.2000), cert. denied, 531 U.S. 1148, 121 S.Ct. 1088, 148 L.Ed.2d 963 (2001); Louisville Peterbilt, Inc. v. Cox, 132 S.W.3d 850 (Ky.2004); Conseco Finance Servicing Corporation v. Wilder, 47 S.W.3d 335 (Ky.App.2001). Thus, it is Appellants' position that Appellees are required to submit their claims to arbitration. We disagree, not with Appellants' recitation of the law with regard to arbitration, but with their characterization of relevant issue.
Appellants are correct that Kentucky law favors arbitration agreements. See Kodak Mining Company v. Carrs Fork Corporation, 669 S.W.2d 917 (Ky. 1984). In fact, in 1984, Kentucky adopted the KUAA, codified at Kentucky Revised Statutes (KRS) Chapter 417. KRS 417.050 provides that "a written agreement to submit any existing controversy to arbitration between the parties is valid, enforceable and irrevocable, save upon such grounds as exist at law for the revocation of any contract." However, while "any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration," Moses H. Cone Memorial Hospital v. Mercury Construction Corporation, 460 U.S. 1, 24-25, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983), the existence of a valid arbitration agreement as a threshold matter must first be resolved by the court. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). In other words, the court-not an arbitrator-must decide whether the parties have agreed to arbitrate based on fundamental principles governing contract law. See also Louisville Peterbilt, Inc., supra.
Appellants cite to numerous cases wherein courts have required parties to submit claims under HOEPA and TILA to arbitration. In Prima Paint Corporation v. Flood and Conklin Manufacturing Company, 388 U.S. 395, 403, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967), the United States Supreme Court held that claims alleging fraud were not exempt from arbitration. Similarly, in Louisville Peterbilt, Inc., supra, our Supreme Court held that an arbitration provision will not be defeated upon a claim that the larger agreement in which it is contained was fraudulently induced or unenforceable.
All of the cases cited by Appellants, however, involve the enforcement of an arbitration provision when a party raises a claim of fraud in the underlying contract. Here, contrary to Appellants' argument, Appellees are not simply claiming that the mortgage contract as a whole is unconscionable, but rather that the arbitration clause itself is unconscionable and unenforceable. The Supreme Court in Prima Paint, supra, commented that while claims of fraud are to be submitted to an arbitrator, claims that specifically attack the arbitration *354 provision are to be judicially determined. Id. at 403-404, 87 S.Ct. at 1801. And indeed, the trial court specifically stated that it had considered the arbitration clause separately from the remaining contract in reaching its decision to deny arbitration.
Under the provisions of KRS 417.050, an arbitrable dispute is subject to the compulsory arbitration provision except where the agreement may be avoided "upon such grounds as exist at law or in equity for the revocation of any contract." One of the equitable grounds upon which an arbitration clause may be deemed unenforceable is unconscionability. Conseco Finance Servicing Corporation, supra. The determination whether an arbitration clause is unconscionable is a question of law subject to our de novo review. Id. at 341.
As noted by a panel of this Court in Conseco Finance Servicing Corporation, supra,
A fundamental rule of contract law holds that, absent fraud in the inducement, a written agreement duly executed by the party to be held, who had an opportunity to read it, will be enforced according to its terms. [Cline v. Allis-Chalmers Corporation, 690 S.W.2d 764 (Ky.App.1985)]. The doctrine of unconscionability has developed as a narrow exception to this fundamental rule. The doctrine is used by the courts to police the excesses of certain parties who abuse their right to contract freely. It is directed against one-sided, oppressive and unfairly surprising contracts, and not against the consequences per se of uneven bargaining power or even a simple old-fashioned bad bargain. [Louisville Bear Safety Service, Inc. v. South Central Bell Telephone Company, 571 S.W.2d 438, 440 (Ky.App.1978)].
An unconscionable contract has been characterized as "one which no man in his senses, not under delusion, would make, on one hand, and which no fair and honest man would accept, on the other." [Id. at 439 (Quoting Black's Law Dictionary, 1694 (4th ed.1976))]. Unconscionability determinations being inherently fact-sensitive, courts must address such claims on a case-by-case basis. [Forsythe v. BancBoston Mortgage Corporation, 135 F.3d 1069 (6th Cir. 1997)].
Conseco Finance Servicing Corporation, supra, at 341-42.
In Arnold v. United Companies Lending Corporation, 204 W.Va. 229, 511 S.E.2d 854, 858 (1998), the West Virginia court was presented with an arbitration clause similar to the herein that provided, in pertinent part:
THE ARBITRATION WILL TAKE THE PLACE OF ANY COURT PROCEEDING INCLUDING A TRIAL BEFORE A JUDGE AND JURY[.] DAMAGES SHALL BE LIMITED TO ACTUAL AND DIRECT DAMAGES AND SHALL IN NO EVENT INCLUDE CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR TREBLE DAMAGES AS TO WHICH BORROWER AND LENDER EXPRESSLY WAIVE ANY RIGHT TO CLAIM TO THE FULLEST EXTENT PERMITTED BY LAW.
The Arnold court, while noting that a bargain is not unconscionable merely because the parties to it are unequal in bargaining position, held that an arbitration clause that contains a "substantial waiver of a parties' rights' is unenforceable." Id. at 861-862. See also Taylor v. Butler, 142 S.W.3d 277 (Tenn.2004), cert. denied, 543 U.S. 1147, 125 S.Ct. 1304, 161 L.Ed.2d 108 (2005); Carll v. Terminix International Company, L.P., 793 A.2d 921 (Pa.Super.2002).
*355 As noted by Appellees herein, not only would a successful rescission void the mortgage and eliminate all charges and fees, they may be entitled to statutory damages for any TILA disclosure violation, as well as enhanced statutory damages for violations of HOEPA. In addition, Appellees have asserted a claim for usury, which if proven, may result in remedies including forfeiture of the entire interest on the note and recovery by the debtor of damages in the amount of twice the interest paid. Finally, Appellees are seeking punitive damages for unfair and deceptive practices within the meaning of the Kentucky Consumer Protection Act.
Appellees have asserted valid claims under statutes designed to protect consumers from high cost predatory lending practices. The merit of such claims is obviously not at issue in this appeal and we render no judgment or opinion thereon. However, we conclude that the arbitration provision contained in Appellees' contract clearly prevents them from meaningfully pursuing any statutory claims. Certainly, an arbitrator can resolve claims under TILA and HOEPA. However, the provision herein explicitly prohibits the arbitrator from modifying the contract or awarding anything other than actual damages. As such, Appellees could in no manner recover any statutory damages to which they may be entitled. Thus, we conclude that because the arbitration clause deprives Appellees of any substantive remedies, the trial court properly ruled that it is unconscionable and unenforceable.
The order of the Madison Circuit Court denying the motion to compel arbitration is affirmed.
ALL CONCUR.
NOTES
[1]  KRS 417.220(1) allows immediate review of the trial court's order even though it is considered interlocutory in nature. Valley Construction Company, Inc. v. Perry Host Management Company, Inc., 796 S.W.2d 365 (Ky.App. 1990).


              In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                           No. 16-759V
                                       Filed: May 14, 2020

    * * * * * * * * * * * * *                  *    *
    JESSICA BARRETT,                                *      To Be Published
                                                    *
                  Petitioner,                       *
    v.                                              *      Decision on Attorneys’ Fees and Costs;
                                                    *      Reasonable Basis; Denial
    SECRETARY OF HEALTH                             *
    AND HUMAN SERVICES,                             *
                                                    *
             Respondent.                            *
    * * * * * * * * * * * * *                  *    *

Paul Brazil, Esq., Muller Brazil, LLP, Dresher, PA, for petitioner.
Heather Pearlman, Esq., U.S. Department of Justice, Washington, DC, for respondent.

                       DECISION ON ATTORNEYS’ FEES AND COSTS1

Roth, Special Master:

       On June 28, 2016, Jessica Barrett (“Ms. Barrett,” or “petitioner”) filed a petition for
compensation under the National Vaccine Injury Compensation Program.2 Petitioner alleges that
she developed a right shoulder injury after receiving an influenza (“flu”) vaccination on September
30, 2013. Petition (“Pet.”), ECF No. 1. Petitioner now seeks an award of attorneys’ fees and costs.

                                              I. Background

         A.    Summary of Relevant Medical Records

1
  This Decision has been formally designated “to be published,” which means it will be posted on the Court
of Federal Claims’s website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, 116
Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). This means the Decision will be
available to anyone with access to the internet. However, the parties may object to the Decision’s
inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party
has fourteen 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). Otherwise, the whole Decision will be available to the public. Id.

2
 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
            a. Petitioner’s Medical History Prior to the Allegedly Causal Flu Vaccine

         Petitioner’s medical history prior to receipt of the allegedly causal flu vaccine includes
longstanding neck, right wrist, and back issues. On August 11, 2011, she presented to her primary
care physician, Dr. Jacobs, complaining of a muscle spasm on the right side of her neck. Pet. Ex.
2 at 27. Petitioner was diagnosed with moderate right trapezius3 spasm with tenderness and right
paracervical spasm; she was prescribed tizanidine,4 diazepam,5 and physical therapy three times
per week for four weeks. Id. Petitioner returned a month later, on September 12, 2011, because the
spasm had not gone away. Id. at 34. She reported that physical therapy did not help, and she could
not tolerate tizanidine. Id. She was diagnosed with right medial focal trapezius spasm with
moderate tenderness and was referred for right trigger point injections. Id. An x-ray of her cervical
spine showed moderate disc degeneration at C5-6 and straightening of normal cervical lordosis
consistent with muscle spasm. Id. at 39. She returned again on October 11, 2011, still complaining
of neck pain. Id. at 44. On exam, she had right paracervical spasm with tenderness, right trapezius
tenderness, right sciatic notch tenderness, and a limited range of motion when she turned her head
to the left. Id. She was diagnosed with cervicalgia6 and sciatica,7 both on the right side. Id. An MRI
of the spine was ordered. Id. An MRI of the lumbar spine showed moderate sized posterior central
disc extrusion at L5-S1. Id. at 49. An MRI of the thoracic spine was normal. Id. at 50. Petitioner
returned on November 29, 2011, complaining that the left side of her neck was sore and stiff
following a car accident. Id. at 53. On exam, she had tenderness on the left side of her neck,
paracervical spasm, a limited range of motion on the left side of her neck, and left trapezius spasm.
Id. She was diagnosed with cervicalgia and was prescribed prednisone and Flexeril.8

        On August 29, 2012, petitioner presented to Dr. Jacobs for pain in the extensor tendon of
her right thumb which radiated up her forearm, numbness and tingling in her fingers, and wrist
pain; she was diagnosed with right tenosynovitis of the thumb. Pet. Ex. 2 at 59. Petitioner was
advised to wear a thumb splint for 10 days, take ibuprofen, and avoid repetitive movements with
her thumb. Id.

3
 The trapezius muscle reaches from the seventh cervical vertebra to the clavicle and shoulder joint. It is
used in raising the shoulder. Musculus trapezius, DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1212
(32d ed. 2012) [hereinafter “DORLAND’S”].
4
  Tizanidine is a short-acting drug used to manage muscle spasms. Tizanidine hydrochloride, DORLAND’S
at 1932.
5
  Diazepam is a benzodiazepine primarily used as an anti-anxiety agent; it is also used as a skeletal muscle
relaxant. Diazepam, DORLAND’S at 512.
6
  Cervicalgia is neck pain. “Cervical” means pertaining to the neck. Cervical, DORLAND’S at 333. “-algia”
is a word termination denoting a painful condition. -algia, DORLAND’S at 48.
7
 Sciatica is a syndrome characterized by pain radiating from the back into the buttock. Sciatica,
DORLAND’S at 1678.
8
  Flexeril is the brand name for cyclobenzaprine hydrochloride, a drug used as a skeletal muscle relaxant
for relief of painful muscle spasms. Flexeril, DORLAND’S at 717; cyclobenzaprine hydrochloride,
DORLAND’S at 455.
                                                     2
       On February 20, 2013, petitioner presented to Dr. Battista at Orthopedic Associates of
Allentown (“OAA”) for tenosynovitis of the right hand and wrist. Pet. Ex. 4 at 40-41. She was
administered betamethasone9 and lidocaine10 injections. Id. at 63.

       Petitioner returned to Dr. Battista on August 23, 2013, for follow-up of radial styloid
tenosynovitis11 in her right wrist. Pet. Ex. 4 at 39, 62. She was prescribed methylprednisolone. Id.
at 62.

            b. Petitioner’s Medical History At the Time of and After Receipt of the Allegedly
               Causal Flu Vaccine

        On September 30, 2013, petitioner received the allegedly causal flu vaccine, at her place
of employment, the office of Hazleton School District. Pet. Ex. 1 at 1; Pet. Ex. 8 at 1-2; Fact Ruling
at 2. In support of her petition, petitioner submitted an Affidavit in which she affirmed “within
hours” of her vaccination, her “right arm and shoulder became very painful.” Pet. Ex. 1 at 1. “The
pain progressed over the following weeks” before she presented for medical care on November
29, 2013. Id.

        The medical records reveal a medical visit with petitioner’s orthopedic, Dr. Battista, on
November 1, 2013, for follow-up of her right radial styloid tenosynovitis. Pet. Ex. 4 at 96.
Petitioner reported little change in her symptoms since her last visit; the splint was helpful for
nighttime, but she had trouble wearing it during the day. Id. She reported weakness, swelling, and
stiffness in her right wrist, as well as dry eyes and sinus pressure. Id. at 97, 98. Upon exam, she
had tenderness of the radial styloid and swelling of the first dorsal extensor sheath. Id. at 99. She
received lidocaine and betamethasone injections in her right wrist and was instructed to follow-up
in two months. Id. at 68, 99. Petitioner made no complaints to Dr. Battista of right shoulder or arm
pain at this visit or during his examination of her right wrist, arm and shoulder.

       On November 13, 2013, petitioner was discharged from physical therapy for her right wrist
because she was unable to get time off from work to attend therapy. Pet. Ex. 4 at 46. There was no
complaint of right shoulder pain contained in the physical therapy records between September and
November.

9
 Betamethasone is a steroid used as an anti-inflammatory and immunosuppressant. Betamethasone,
DORLAND’S at 211.
10
 Lidocaine is a local anesthetic applied topically to the skin or via infiltration injection. Lidocaine,
DORLAND’S at 1034.
11
  Radial styloid tenosynovitis is inflammation of a tendon sheath near the radius, one of the bones of the
forearm. Radial, DORLAND’S at 1570; radius, DORLAND’S at 1574; tenosynovitis, DORLAND’S at 1882.
Radial styloid tenosynovitis is also known as de Quervain disease, an “overuse injury with painful
tenosynovitis due to relative narrowness of the common tendon sheath” of muscles in the thumb. De
Quervain disease, DORLAND’S at 532; musculus abductor pollicis longus, DORLAND’S at 1203; musculus
extensor pollicis brevis, DORLAND’S at 1204.

                                                    3
        On November 29, 2013, petitioner presented to Dr. Jacobs complaining of a scab in her
right nostril for the past six months and tendonitis12 in her right wrist. Pet. Ex. 2 at 66. Upon
examination, she had marked tenderness over her right trapezius and could not “abduct past 90
degrees w/o severe pain.” Id. at 67. Her left side was “not as bad.” Id. The assessment was bilateral
shoulder tendinitis. Id. at 67-68. MRI without contrast of both shoulders was ordered. Id. at. 68.
She was prescribed prednisone. Id. at 70. Petitioner made no mention of the flu vaccine when
reporting bilateral shoulder pain to Dr. Jacobs.

         MRIs of the left and right shoulders performed on December 12, 2013, revealed
“Tendinosis of the rotator cuff tendons” in both shoulders. Pet. Ex. 2 at 92; Pet. Ex. 4 at 74.
Petitioner had mild acromioclavicular degeneration of her right shoulder. Pet. Ex. 3 at 1; Pet. Ex.
4 at 75.

        Petitioner next presented to Dr. Jacobs on January 14, 2014, complaining of right shoulder
pain. Pet. Ex. 2 at 101. Her exam was normal. Id. at 102. Petitioner was diagnosed with insomnia,
for which she was prescribed zolpidem tartrate;13 allergic rhinitis, for which she was prescribed
cetirizine;14 and tendinitis of the right rotator cuff, for which no treatment was rendered. Id. at 107.
Petitioner was instructed to return in six months. Id. at 105.

         Two days later, on January 21, 2014, petitioner presented to Dr. Hawkins at OAA,
complaining of right shoulder pain. Pet. Ex. 4 at 92. Petitioner reported she began having right
lateral arm pain about a month after receiving a flu shot. Id. The pain was especially bad at night
and she did not have relief with Ambien. Id. She denied numbness or neck pain. Id. Upon
examination, she had tenderness of the rotator cuff and was positive for lateral impingement,
Hawkins test and Neer test. Id. at 95. An MRI showed an intact rotator cuff without glenohumeral
effusion and “very mild” subacromial bursitis. Id. The assessment was right shoulder pain with
impingement15 and possible rotator cuff tendonitis.16 Id. She was administered lidocaine and Depo-
Medrol17 injections in her right shoulder and referred to physical therapy for right shoulder
impingement. Id. at 32, 67, 95.

12
     Tendinitis is inflammation of tendons and of tendon-muscle attachments. Tendinitis, DORLAND’S at 1881.
13
   Zolpidem tartrate is a non-benzodiazepine sedative-hypnotic administered orally in the short-term
treatment of insomnia. Zolpidem tartrate, DORLAND’S at 2092.
14
  Cetirizine hydrochloride is a non-sedating antihistamine used in the treatment of allergic rhinitis.
Cetirizine hydrochloride, DORLAND’S at 334.
15
 Impingement syndrome is a type of overuse injury with progressive pathologic changes resulting from
mechanical impingement by a ligament or joint against the rotator cuff. Impingement syndrome,
DORLAND’S at 1834.
16
  Rotator cuff tendinitis, is an overuse injury consistent of inflammation of tendons of one or more of the
muscles forming the rotator cuff, usually owning to repetitive elevation and abduction of the upper limb.
Tendinitis, DORLAND’S at 1881.
17
   Depo-Medrol is the brand name for methylprednisolone acetate, a steroid administered topically or by
injection as an anti-inflammatory and immunosuppressant. Depo-Medrol, DORLAND’S at 492;
                                                      4
        On January 23, 2014, petitioner presented to Dr. Plaza for an initial physical therapy
evaluation. Pet. Ex. 5 at 4. She reported an onset of right shoulder pain around mid-October of
2013, or two weeks after a flu shot. Id. The pain was waking her up at night and she was having
occasional paresthesias in her right hand. Id. Upon exam, she was positive on the Hawkins-
Kennedy test, the Neer test, and the “empty can” test. Id. She had a negative Yergason’s test. Id.
She had moderate tenderness around the anterior shoulder/lateral deltoid area. Id. at 5. It was noted
that petitioner tolerated treatment well and had some relief. Id. She would benefit from physical
therapy to decrease her right shoulder pain with functional activity and return to her pre-injury
level of function. Id. Dr. Plaza recommended physical therapy three times per week for four weeks,
for a total of twelve visits. Id. at 6.

        Petitioner presented to physical therapy on February 10, 2014 and February 24, 2014. Pet.
Ex. 5 at 7-10.

        On April 25, 2014, petitioner returned to Dr. Hawkins complaining of a right shoulder
problem. Pet. Ex. 4 at 90. She had received a right subacromial injection in January and started
physical therapy with notable improvement; her shoulder issues had not resolved but were “much
better.” Id. She had some pain but was functional for all work and “ADLs.” Id. Upon examination,
she did not have tenderness at the acromioclavicular joint, but had mild pain with active abduction.
Id. at 91. The assessment was mild persistent right shoulder pain with a history of mild bursitis by
MRI. Id. at 92. Her symptoms did not warrant operative intervention; she was instructed to follow-
up as needed. Id. That day, she also received lidocaine and betamethasone injections in her right
wrist. Id. at 66, 89.18

       Three months later, on July 11, 2014, petitioner presented to Dr. Culp at Philadelphia Hand
to Shoulder Center, complaining of right wrist pain for longer than a year, despite having a normal
MRI. Pet. Ex. 10 at 12. Upon exam, she was noted to have “full range of motion of the shoulders
without tenderness.” Id. She was diagnosed with “right intersection syndrome” and was
determined to be a candidate for surgical release of the right wrist. Id. at 13. Petitioner did not
complain of right shoulder pain at this visit.

       On October 24, 2014, petitioner underwent right intersection release on her right wrist, a
surgical procedure performed under anesthesia. Pet. Ex. 10 at 17-18. Petitioner returned to Dr.
Culp for subsequent follow-up visits on November 7 and December 12, 2014. Id. at 10-11.

        Petitioner’s next visit to any medical professional with right shoulder pain was on February
27, 2015, when she presented to Dr. Hawkins. Pet. Ex. 4 at 85. She reported muscle aches, muscle
weakness, and arthralgias and joint pain. Id. at 87. She had tenderness of the right rotator cuff but
full range of motion. Id. at 88. An MRI showed no fracture or dislocation with well-preserved joint
spaces and normal alignment. Id. The assessment was mild recurrent right shoulder pain with a
history of mild subacromial bursitis. Id. She was administered lidocaine and Depo-Medrol

methylprednisolone, DORLAND’S at 1154.
18
  No records were filed indicating that petitioner presented for any further physical therapy for her right
shoulder other than the two visits in February of 2014.
                                                     5
injections. Id. at 65, 88. She was encouraged to continue with home exercises and stretches. Id. at
89.

        Two years later, on April 13, 2017, petitioner was again referred to Dr. Culp, who she
presented to on April 13, 2017 with a chief complaint of right elbow pain. Pet. Ex. 10 at 8.
Petitioner reported that, in February of 2016, she hit her elbow on the corner of an island at home,
resulting in severe pain. Id. Another doctor had diagnosed her with medial epicondylitis;19 home
physical therapy was recommended. Id. She was taking Triamterene, a diuretic, and Restasis for
dry eyes. Id. Upon exam, she had “full range of motion of both shoulders without tenderness” and
tenderness over the medial epicondyle. Id. at 9. The impression was right medial epicondylitis20
and right medial collateral ligament rupture of the right elbow. Id. Dr. Culp recommended another
MRI. Id.

       An MRI of petitioner’s right elbow performed on October 10, 2016, showed a cyst on her
elbow. The differential diagnosis included synovial cyst or ganglion cyst. Pet. Ex. 10 at 23.

       Petitioner returned to Dr. Culp on April 18, 2017, for right medial elbow pain. Pet. Ex. 10
at 7. Dr. Culp noted that petitioner’s MRI was consistent with medial epicondylitis. Id. Several
treatment options were discussed, including bracing, therapy, injections, and surgery. Id. Petitioner
requested a platelet rich plasma (“PRP”) injection. Id.

        The remainder of the medical records filed were for treatment of petitioner’s elbow and are
not relevant to her alleged shoulder injury.

B.      Procedural History

        On June 28, 2016, petitioner filed her petition along with her affidavit, medical records, an
exhibit list, and a Statement of Completion. See Pet., Petitioner’s Exhibits (“Pet. Ex.”) 1-5, ECF
Nos. 1, 3, 5. Petitioner did not file proof of vaccination.

        This matter was initially assigned to the Special Processing Unit (“SPU”). ECF Nos. 6-7.

        On June 29, 2016, petitioner filed a Motion for Authority to Issue a Subpoena to the
Hazleton Area School District for any records pertaining to petitioner, including her medical,
vaccination, and employment records from September 1, 2010 to present. Id. at 1-2, ECF No. 9.
This motion was granted. See Order, ECF No. 10.

      The initial status conference was held on August 3, 2016. Petitioner’s counsel
acknowledged that proof of vaccination needed to be obtained and reported that a subpoena had

19
  No records of this medical visit or treatment were filed. It appears that not all of petitioner’s medical
records were filed in this matter.
20
   Medial epicondylitis is an overuse injury with pain around the medial epicondyle of the humerus where
the flexor muscles of the arm and hand attach, popularly called “golfer’s elbow.” Epicondylitis, DORLAND’S
at 630.

                                                      6
been served on the Hazleton Area School District (“HASD”), where petitioner is employed in the
Human Resources Department. Scheduling Order at 1, ECF No. 12. Petitioner was ordered to file
outstanding vaccine records from HASD and an amended statement of completion. Id. Respondent
was ordered to file a status report advising of his position within 30 days of petitioner filing an
amended statement of completion. Id. at 1-2.

        On September 2, 2016, petitioner filed HASD’s response to the subpoena as Pet. Ex. 6.
ECF No. 14. Petitioner also filed a status report (“Pet. S.R.”) advising that the subpoena response
did not contain petitioner’s vaccination record. Pet. S.R. at 1, ECF No. 15. Petitioner requested an
additional 45 days “to investigate whether fact witnesses could testify regarding vaccine
administration.” Id. Petitioner was ordered to file medical records or additional evidence by
October 17, 2016. See Order, ECF No. 16.

        On October 17, 2016, petitioner filed a status report (“Pet. S.R.”) requesting a status
conference to discuss documentation of petitioner’s vaccination. Pet. S.R. at 1, ECF No. 17. A
status conference was held on October 28, 2016, during which petitioner’s counsel advised that
petitioner’s personnel file did not contain a record of the allegedly causal vaccination. Scheduling
Order at 1, ECF No. 18. Additionally, the nurse who administered the vaccination had retired and
could not be contacted. Id. Petitioner’s counsel made an oral motion for a subpoena. Id. Petitioner
was ordered to file any additional evidence by November 30, 2016. Id. An order was issued
granting petitioner’s oral motion for a subpoena. ECF No. 19.

         On November 30, 2016, petitioner filed a status report (“Pet. S.R.”) advising that she had
been unable to obtain any additional documentation of her receipt of the flu vaccination. Pet. S.R.
at 1, ECF No. 20. Petitioner proposed filing a status report in 45 days advising “whether additional
evidence regarding vaccine administration was available, and if not proposing steps to advance the
litigation.” Id.

       A status conference was held on December 20, 2016 to discuss “petitioner’s difficulties
with obtaining proof of vaccination.” Scheduling Order at 1, ECF No. 21. Due to the lack of
cooperation from HASD regarding document production, the Court recommended “seeking
deposition testimony from relevant personnel.” Id. Petitioner was ordered to file motions for
subpoenas for deposition and production of relevant documents for specific HASD personnel by
January 31, 2017. Id.

       On January 31, 2017, petitioner filed her vaccine administration consent form as Pet. Ex.
7 along with a status report requesting a status conference to discuss further proceedings. ECF
Nos. 22-23.

        A status conference was held on February 14, 2017, to discuss the vaccine administration
consent form filed as Pet. Ex. 7. Scheduling Order at 1, ECF No. 24. During the conference,
petitioner’s counsel advised that this form was located by petitioner and not provided by HASD.
Id. Respondent’s counsel advised that respondent did not believe this form was sufficient proof of
vaccination. Id. Counsel for both parties advised the Court of “the myriad attempts and avenues
…investigated to obtain proof of petitioner’s vaccination.” Id. Counsel further advised that HASD
had not been cooperative in providing proof of vaccination. Id. Petitioner was ordered to submit

                                                 7
an affidavit authenticating the consent form and including, among other items, “an explanation
setting forth the date and circumstances regarding how the Consent Form was located.” Id. at 1-2.
Petitioner’s counsel was ordered to submit an affidavit setting forth the date the subpoena was
served on HASD, describing HASD’s response to the subpoena, and confirming that no documents
were produced in response to the subpoena. Id. at 2. The parties were ordered to file “a joint status
report stating that all relevant evidence has been submitted…and stating whether the parties desire
a fact ruling.” Id.

        On February 23, 2017, petitioner filed an affidavit stating that she works in the Human
Resources Department for HASD, which offers the flu shot to all employees. Pet. Ex. 8 at 1, ECF
No. 26. Petitioner affirmed that every year, an email is sent to employees indicating which dates
the flu shot will be available. Id. In 2013, the flu shot administration date was September 27, with
September 30 as a “make-up” day. Id. Petitioner affirmed that, on September 30, 2013, she waited
in line with 15 to 20 other employees but did not recall the names of those employees. Id. at 2.
Petitioner affirmed that, while waiting in line, she completed and signed a consent form; she then
went to the office next door and made a copy. Id. Petitioner affirmed that it is her “general practice”
to copy forms she is asked to sign. Id. When she received the flu shot, she turned in her consent
form to the nurse who administered the shot but kept her copy of the form with her tax documents.
Id. Petitioner was unable to produce any documentation of her flu vaccination other than the
consent form.21

        On March 16, 2017, petitioner filed an affidavit from counsel stating that counsel served a
subpoena on HASD on July 18, 2016. In response, HASD produced several documents but failed
to produce any documentation related to petitioner’s 2013 vaccine. Pet. Ex. 9 at 1-2, ECF No. 27.
Despite petitioner’s representation that the school nurse was provided with, and retained, the
original consent form, it too was apparently not included in HASD’s response to the subpoena.
Petitioner also filed a joint status report (“J.S.R.”) requesting that the Court issue a fact ruling
regarding vaccine administration, specifically “whether Petitioner received an influenza
vaccination in her right shoulder on September 30, 2013.” J.S.R. at 1, ECF. No. 28.

        On June 2, 2017, without a hearing, a Fact Ruling was issued finding, by a preponderance
of the evidence, that petitioner received a flu shot on September 30, 2013, in her right shoulder for
the reasons set forth therein by the Chief Special Master. Fact Ruling at 2, ECF No. 29.

        Respondent filed a status report on July 3, 2017, requesting that petitioner file “any prior
medical records pertaining to petitioner’s orthopedic, neurology, and/or any musculoskeletal or
physical therapy history.” Respondent’s Status Report (“Resp. S.R.”) at 1, ECF No. 30. Petitioner
was ordered to file these records and a status report by August 2, 2017. Scheduling Order at 1,
ECF No. 31. Petitioner filed a status report on August 2, 2017, advising that the records requested
by respondent did not exist and that petitioner had submitted a settlement demand to respondent.
Pet. S.R. at 1, ECF No. 32. Respondent was ordered to file a status report by September 5, 2017,
advising whether he was willing to engage in settlement discussions. Scheduling Order at 1, ECF
No. 33.

 21
   Petitioner provided no explanation for how she remembered these details, upon what she relied for these
details, or how, if this was a yearly event, she could recall these details as occurring in 2013 rather than
another year.
                                                     8
         Respondent filed a status report on September 5, 2017, advising that he was not amenable
to settlement and requested a deadline to file his Rule 4(c) Report. Resp. S.R. at 1, ECF No. 34.
Respondent was ordered to file his Rule 4(c) Report by November 6, 2017. Non-PDF Order, dated
Sept. 6, 2017.

        Respondent filed his Rule 4(c) Report on November 6, 2017, recommending against
compensation. Resp. Report, ECF No. 35. Respondent submitted that petitioner’s alleged injury
did not meet the criteria for an on-Table SIRVA claim. Id. at 5. Respondent further submitted that
petitioner did not complain of shoulder pain during a visit with her orthopedist on November 1,
2013, one month after receiving the flu shot, and in fact did not complain of shoulder pain until
two months after receiving the flu shot. Id. at 6.

       This matter was reassigned to me on November 28, 2017. ECF Nos. 36-37.

       A status conference was held on January 17, 2018. Following a discussion of petitioner’s
medical history, I noted that petitioner’s personnel records stated that she had right wrist surgery
in September of 2014, but records reflecting this had not been filed. Scheduling Order at 1-2, ECF
No. 38. Petitioner was ordered to file any and all records relating to her right wrist surgery by
March 19, 2018. Id. at 2.

       Petitioner filed an unopposed Motion for Extension of Time until April 18, 2018, to file
her medical records. ECF No. 39. This motion was granted, and the deadline was extended to April
23, 2018. Non-PDF Order, dated Mar. 19, 2018.

        Petitioner filed additional medical records on April 20, 2018. Pet. Ex. 10, ECF No. 40.
Petitioner filed a Statement of Completion on April 24, 2018. ECF No. 41.

        During a status conference held on June 5, 2018, I pointed out that the medical records
filed did not support a sudden onset of shoulder pain as stated in petitioner’s affidavit and the
Petition, but rather an onset of shoulder pain two months after her flu vaccine. Scheduling Order
at 1, ECF No. 42. Additionally, it was noted that the medical records did not support that petitioner
suffered from her alleged injury for more than six months. Id. Petitioner’s counsel requested the
opportunity to file an expert report; I noted that, because there was a dispute as to onset, it was not
yet appropriate to obtain an expert because the issue of onset needed to be addressed first. Id. at 2.
Petitioner’s counsel did not request an onset hearing to address the onset issue. I suggested that
petitioner’s counsel reach out to petitioner’s treating physician to see if he recalled any information
beyond what was contained in the medical records. Id. Petitioner was ordered to file a status report
advising how she intended to remedy the inconsistencies between her affidavit and the medical
records, and, if possible, an affidavit from her treating physician by August 6, 2018. Id.

        Petitioner filed a status report on August 6, 2018, advising that “Petitioner and petitioner’s
counsel have been unable to engage in any communication with Dr. Jacobs and it is increasingly
unlikely any communication will occur.” Pet. S.R. at 1, ECF No. 43. Petitioner requested an
additional 14 days to determine how she intended to proceed. Id. Petitioner was ordered to file a
status report by August 21, 2018, indicating how she would like to proceed. Non-PDF Order, dated
Aug. 7, 2018.

                                                  9
        Petitioner filed a status report on August 21, 2018, advising that she was “still considering
her options” and requesting an additional 14 days to determine how she intended to proceed. Pet.
S.R. at 1, ECF No. 44. Petitioner’s deadline to file a status report advising how she intended to
proceed was extended to September 4, 2018. Non-PDF Order, dated Aug. 21, 2018.

        On September 4, 2018, petitioner filed a motion for a ruling on the record. Motion, ECF
No. 45. Respondent filed his response on September 17, 2018, submitting that petitioner had not
proven by preponderant evidence that her symptoms began within 48 hours of vaccination, and
that petitioner had not satisfied the six-month severity requirement. Response at 6-7, ECF No. 46.
Petitioner did not file a reply.

       Because onset and the six-month severity requirement were at issue, petitioner’s motion
was treated as a motion for a fact ruling determining the onset of petitioner’s alleged injury and
whether petitioner has met the six-month severity requirement.

       A ruling was issued on June 19, 2019 determining that petitioner’s right shoulder pain
began on or about November 29, 2013, and that petitioner had satisfied the six-month severity
requirement. Decision, ECF No. 48. Petitioner was given 90 days to file either an expert report
based on my onset ruling or a status report indicating how she intended to proceed. Id. at 12.

       Petitioner filed a motion to dismiss her claim on October 1, 2019. Petitioner’s claim was
accordingly dismissed on the same day. Decision, ECF No. 54.

        On November 22, 2019, petitioner filed the instant application for attorneys’ fees and costs,
along with supporting documentation, requesting $12,389.70 in attorneys’ fees and $428.71 in
costs, for a total of $12,818.41. Motion, ECF No. 59. Respondent filed a response on January 2,
2020, in which he “defer[ed] to the Special Master as to whether the statutory requirements for a
discretionary award of attorneys’ fees and costs have been met.” Response, ECF No. 61. Petitioner
did not file a reply.

       This matter is now ripe for determination.

                                 II. Applicable Law and Analysis

        The Vaccine Act permits an award of “reasonable attorneys’ fees” and “other costs.”
§ 15(e)(1). If a petitioner succeeds on the merits of his or her claim, petitioner’s counsel is entitled
to a reasonable attorneys’ fee award. Id.; see Sebelius v. Cloer, 133 S. Ct. 1886, 1891 (2013).
However, a petitioner need not prevail on entitlement to receive a fee award so long as the petition
was brought in “good faith” supported by “reasonable basis.” § 15(e)(1).

         Inquiry into whether counsel brought a claim in good faith is a subjective inquiry that
questions whether the attorney exercised adept professional judgment in determining whether a
petitioner may be entitled to compensation. Chuisano v. United States, 116 Fed. Cl. 276, 286
(2014) (citations omitted). Here, respondent did not question petitioner’s counsel’s subjective good
faith in bringing the claim. Therefore, petitioner’s good faith requires no further analysis.

                                                  10
        Reasonable basis is an objective standard determined by evaluating the sufficiency of the
medical records in petitioner’s possession at the time the claim is filed. “Special masters have
historically been quite generous in finding reasonable basis for petitions.” Turpin v. Sec’y of Health
& Human Servs., No. 99-564, 2005 WL 1026714 at *2 (Fed. Cl. Spec. Mstr. Feb. 10, 2005).
However, the Federal Circuit recently denied an award of attorney’s fees based on petitioner’s lack
of reasonable basis in Simmons v. Secretary of Health and Human Services. 875 F.3d 632, 636
(Fed. Cir. 2017). In Simmons, the Federal Circuit determined that petitioner lacked reasonable
basis for filing a claim when, at the time of filing: (1) petitioner’s counsel failed to file proof of
vaccination, (2) there was no evidence of a diagnosis or persistent injury allegedly related to a
vaccine in petitioner’s medical records, and (3) the petitioner had disappeared for approximately
two years prior to the filing of the petition and only resurfaced shortly before the statute of
limitations deadline on his claim expired. See id. at 634-35. The Federal Circuit specifically stated
that the reasonable basis inquiry is objective and unrelated to counsel’s conduct prior to filing a
claim. The Court consequently affirmed the lower court’s holding that petitioner’s counsel lacked
reasonable basis in filing this claim based on the insufficiency of petitioner’s medical records and
proof of vaccination at the time the petition was filed. Id. at 636.

        In light of Simmons, the Court of Federal Claims determined, “[I]n deciding reasonable
basis[,] the Special Master needs to focus on the requirements for the petition under the Vaccine
Act to determine if the elements have been asserted with sufficient evidence to make a feasible
claim for recovery. . . Under the objective standard articulated in Simmons, the Special Master
should have limited her review to the claim alleged in the petition to determine if it was feasible
based on the materials submitted.” Santacroce v. Sec’y of Health & Human Servs., No. 15-555V,
2018 WL 405121 at *7 (Fed. Cl. 2018). When evaluating a case’s reasonable basis, petitioner’s
“burden [in demonstrating reasonable basis] has been satisfied . . . where a petitioner has submitted
a sworn statement, medical records, and [a] VAERS report which show that recovery is feasible.”
Id. Moreover, the special master may consider various objective factors including “the factual
basis of the claim, the novelty of the vaccine, and the novelty of the theory of causation.”
Amankwaa v. Sec’y of Health & Human Servs., 138 Fed. Cl. 282, 289 (2018).

        In order to determine whether there was a reasonable basis for this claim, some analysis of
the claim itself is required. As a preliminary matter, there was a conflict between the onset of
shoulder pain as documented in the medical records and the onset of shoulder pain as represented
by petitioner in her affidavit. The medical records filed in this matter indicate that petitioner’s first
documented complaint of shoulder pain was on November 29, 2013, approximately two months
after receiving the allegedly causal flu vaccine. At that time, petitioner complained of pain in both
shoulders; she did not relate her pain to the vaccination. During this two-month time period,
petitioner saw Dr. Battista, her orthopedist, for treatment of right wrist pain; she made no
complaints during this appointment of right shoulder or upper arm pain. In contrast, petitioner
affirmed that she experienced pain in her right arm and shoulder within hours of vaccination, which
progressed over the following weeks before she sought medical care. This history was not given
to any of petitioner’s treaters; at subsequent appointments on January 21 and January 23, 2014,
petitioner reported that her pain began about a month after her flu shot and about two weeks after
her flu shot, respectively.

                                                   11
         Contemporaneous medical records are presumed to be accurate and complete. Cucuras v.
Sec’y of Health & Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993). Additionally,
contemporaneous medical records may be considered more persuasive than a petitioner’s affidavit
created years after the fact. See Gerami v. Sec’y of Health & Human Servs., No. 12-442V, 2013
WL 5998109, at *4 (Fed. Cl. Spec. Mstr. Oct. 11, 2013) (finding that contemporaneously
documented medical evidence was more persuasive than the letter prepared for litigation
purposes), mot. for rev. denied, 127 Fed. Cl. 299 (2014). A review of the billing records reveals
that this matter was being investigated over a 19-month period prior to filing. See Motion for Fees,
Ex. A at 1-2. The discrepancy between petitioner’s recitation of the events following her
vaccination and those contained in her medical records were irreconcilably at odds.

        The Vaccine Injury Table states that SIRVA occurring within 48 hours of an influenza
vaccination is considered a Table injury as long as the vaccinee meets certain criteria. See 42
C.F.R. § 100.3(a)(XIV)(B). The Qualifications and Aids to Interpretation require: “(i) No history
of pain, inflammation or dysfunction of the affected shoulder prior to intramuscular vaccine
administration that would explain the alleged signs, symptoms, examination findings, and/or
diagnostic studies occurring after vaccine injection; (ii) Pain occurs within the specified time-
frame [of 48 hours]; (iii) Pain and reduced range of motion are limited to the shoulder in which
the intramuscular vaccine was administered; and (iv) No other condition or abnormality is present
that would explain the patient’s symptoms.” 42 C.F.R. § 100.3(c)(10)(i-iv). According to the
contemporaneous medical records, petitioner did not meet any of the requirements for a Table
SIRVA. She had a history of cervicalgia and right trapezius spasm which required trigger point
injections; she did not have an onset of pain within 48 hours of vaccination; she had an initial onset
of pain in both shoulders; and she had MRI findings reflecting rotator cuff tendinitis in both
shoulders.22

        Petitioners have prevailed in SIRVA claims where they have not met the Table criteria. In
these situations, however, petitioner’s claim was supported by an expert opinion and the presiding
special master made a finding that onset of injury occurred within 48 hours of vaccination. See,
e.g., Forman-Franco v. Sec’y of Health & Human Servs., No. 15-1479V, 2019 WL 7602582 at
*11 (Fed. Cl. Spec. Mstr. Dec. 19, 2019); Goring v. Sec’y of Health & Human Servs., No. 16-
1458V, 2019 WL 3938705, at *14-15 (Fed. Cl. Spec. Mstr. May 6, 2019). In the instant matter,
petitioner did not provide any evidence of onset within 48 hours other than her affidavit.
Reasonable basis requires a claim be “feasible,” not a mere possibility that a claim might be
feasible.

       The billing records herein reflect an extensive pre-filing inquiry performed. The
inconsistencies between the medical records and the facts as stated by petitioner should have been
apparent and affect the feasibility of petitioner’s claim as a result of, among other issues, the two-

22
  During the initial status conference on August 3, 2016, petitioner was ordered to file proof of vaccination.
See Scheduling Order, ECF No. 12. While this matter was in SPU, then-Chief Special Master Dorsey issued
a Fact Ruling determining that petitioner had proffered sufficient proof of vaccination despite being unable
to obtain her vaccination record from her employer. See Order, ECF No. 29. Because it was decided that
there was sufficient evidence to prove vaccination despite the lack of a vaccine record, that issue will not
be belabored here.
                                                     12
month gap between petitioner’s vaccination, her first documented complaint of right shoulder pain
and her reports that her pain began one month and two weeks after her flu vaccination.

       There was no corroborative evidence to support a causal relationship between petitioner’s
vaccination and her shoulder pain.

                                         III. Conclusion

     In accordance with the foregoing, petitioner’s motion for attorneys’ fees and costs is
DENIED. The Clerk of the Court is directed to enter judgment in accordance with this Decision.23

       IT IS SO ORDERED.

                                                     s/ Mindy Michaels Roth
                                                     Mindy Michaels Roth
                                                     Special Master

23
   Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice
renouncing the right to seek review.

                                                13


37 So.3d 850 (2010)
ADMINISTRATIVE CONCEPTS/BOB DALE CONST.
v.
STUBBS.
No. 1D10-0399.
District Court of Appeal of Florida, First District.
June 18, 2010.
Decision Without Published Opinion Affirmed.


Order entered February 28, 2014

                                            In The
                                   Court of Appeals
                            Fifth District of Texas at Dallas
                                     No. 05-13-00519-CV

                         IN THE MATTER OF A.A., A CHILD
                     On Appeal from the 305th Judicial District Court
                                  Dallas County, Texas
                           Trial Court Cause No. JD-75173-X

                                          ORDER
       By order entered January 22, 2014, we abated the appeal to allow the trial judge to

conduct a hearing to determine whether appellant desires to prosecute the appeal. Because we

have received a letter from the trial judge containing the necessary information, we

REINSTATE the appeal.

       We ADOPT the trial court’s findings that (1) appellant and her mother were notified of

the hearing and directed to appear; and (2) failed to appear. We conclude, therefore, appellant

has abandoned her appeal.

       The appeal will be disposed of in due course.

                                                     /s/   ELIZABETH LANG-MIERS
                                                           JUSTICE