Sandra Dwares v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS E-Filed: March 15, 2013 * * * * * * * * * * * * * * SANDRA DWARES, * UNPUBLISHED * No. 07-450V * Petitioner, * Chief Special Master * Campbell-Smith v. * * Stipulated Fees; Reasonable Amount * Requested to which Respondent Does SECRETARY OF HEALTH * Not Object AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * Ronald Homer, Conway, Homer & Chin-Caplan, P.C., Boston, MA, for petitioner Julia W. McInerny, U.S. Dep’t of Justice, Washington, DC, for respondent.

ATTORNEYS’ FEES AND COSTS DECISION1 On June 28, 2007, Sandra Dwares filed a petition seeking compensation under the National Vaccine Injury Compensation Program (“Vaccine Program”).2 Petitioner amended her petition on October 26, 2006. Petitioner alleged that as a result of receiving the trivalent influenza vaccination on October 26, 2006, she developed transverse Because this decision contains a reasoned explanation for the undersigned’s action in this case, the undersigned intends to post this decision on the United States Court of Federal Claims’ website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17, 2002). As provided by Vaccine Rule 18(b), each party has 14 days within which to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.”

Vaccine Rule 18(b). Otherwise, “the entire” decision will be available to the public. Id. The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-1 to -34 (2006) (“Vaccine Act” or “Act”). All citations in this decision to individual sections of the Act are to 42 U.S.C.A. § 300aa. myelitis. Pet. at 1. On September 28, 2012, the undersigned issued a decision on the basis of a stipulation from the parties. Decision, September 28, 2012.

On March 14, 2013, the parties filed a Stipulation of Fact Concerning Attorneys’ Fees and Costs. According to the stipulation, respondent does not object to an amount of $160,929.34 in attorneys’ fees and costs.3 In accordance with General Order #9, petitioner filed a statement stating that she incurred $353.00 in out-of-pocket expenses in pursuing her petition. Respondent does not object to petitioner’s out-of-pocket expenses.

The Vaccine Act permits an award of reasonable attorneys’ fees and costs. 42 U.S.C. § 300 aa-15(e). The undersigned approves the requested amount for attorneys’ fees and costs as reasonable. Accordingly, an award should be made in the form of a check payable as follows: (a) a lump sum payment in the amount of $160,929.34, payable jointly to petitioner and Conway, Homer, and Chin-Caplan, P.C., for attorney and paralegal fees, attorney costs, and (b) a lump sum payment in the amount of $353.00, payable to petitioner only, for her out-of-pocket expenses.

In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation.4 IT IS SO ORDERED.

s/Patricia E. Campbell-Smith Patricia Campbell-Smith Chief Special Master

Petitioner requests $100,000.00 for attorneys’ fees and $60,929.34 for attorneys’ costs.

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

Case 1:07-vv-00450-UNJ Document 125 Filed 03/14/13 Page 1 of 2

IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ******************************* SANDRA DWARES, * * Petitioner, * * v. * No. 07-450V * Chief Special Master SECRETARY OF HEALTH * PATRICIA E. CAMPBELL-SMITH AND HUMAN SERVICES, * * Respondent. * ******************************* STIPULATION OF FACT CONCERNING ATTORNEYS’ FEES AND COSTS It is hereby stipulated by and between the parties, the following factual matters: 1. Ronald C. Homer is the attorney of record for petitioner in this matter.

2. Petitioner filed her Application for Attorneys’ Fees and Costs on February 27, 2013.1 3. In informal discussions, respondent raised objections to certain items in petitioner’s Application. Based on these discussions, the petitioner has amended her Application in this matter to request reimbursement for attorneys’ fees in the amount of $100,000.00, attorneys’ costs in the amount of

It was recently discovered that the petitioner made a calculation error within her original application, requesting $173,696.14 in fees and costs.

Case 1:07-vv-00450-UNJ Document 125 Filed 03/14/13 Page 2 of 2

$60,929.34, and petitioner’s costs of $353.00, to which the respondent does not object.

4. The parties now request that a decision awarding attorneys’ fees and costs described in paragraph 3 of this stipulation be issued, totaling $161,282.34.

DATED: March 14, 2013

Respectfully submitted,

_s/Julia W. McInerny _s/Ronald C. Homer______ Julia W. McInerny Ronald C. Homer Trial Attorney Counsel for Petitioner Torts Branch, Civil Division Conway, Homer & Chin-Caplan, P.C.

U.S. Department of Justice 16 Shawmut Street P.O. Box 146 Boston, MA 02116 Ben Franklin Station Phone: (617) 695-1990 Washington, DC 20044-0146 Fax: (617) 695-0880 Phone: (202) 353-3919 Fax: (202) 616-4122