Deborah M. Ebenstein v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

************************* DEBORAH M. EBENSTEIN, *

* No. 06-573V

Petitioner, * Special Master Christian J. Moran

* v. * Filed: April 8, 2013

* SECRETARY OF HEALTH * Attorneys’ fees and costs; stipulation of AND HUMAN SERVICES, * fact; award in the amount to which

* respondent has not objected Respondent. *

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

UNPUBLISHED DECISION ON FEES AND COSTS1 John F. McHugh, Law Office of John McHugh, New York, NY, for Petitioner; Michael P. Milmoe, U.S. Department of Justice, Washington, D.C., for Respondent.

On April 8, 2013, respondent filed a stipulation of fact concerning final attorneys’ fees and costs in the above-captioned matter. Previously, on March 15, 2013, petitioner, Deborah M. Ebenstein, filed a motion for attorneys’ fees and costs, along with supporting documentation. Based on subsequent informal discussions, wherein respondent raised objections to certain items, petitioner amended her application to request a total of $74,000 in attorneys’ fees and costs, an amount to which respondent does not object. The Court awards this amount.

Ms. Ebenstein filed for compensation in the Vaccine Program on August 7, 2006, alleging that the MMR vaccination caused her to suffer idiopathic thrombocytopenic purpura. After an evidentiary hearing during which experts testified, the special master, on September 1, 2010, issued a ruling finding that Ms. Ebenstein was entitled to compensation. The parties spent an extensive amount of time determining the amount of compensation to which she was entitled. The Secretary filed a Proffer on Award of Compensation and Ms. Ebenstein received compensation based on that proffer. Decision, filed Apr. 3, 2012. Because Ms. Ebenstein received compensation, she is entitled to an award of attorneys’ fees and costs. 42 U.S.C. § 300aa-15(e).

Ms. Ebenstein seeks a total of $74,000 in attorneys’ fees and costs, which amount includes $71,500 in attorneys’ fees and costs, and $2,500 in out-of-pocket litigation costs. Respondent has no objection to the amount requested for attorneys’ fees and costs. After reviewing the request, the court awards petitioner the stipulated amount as follows:

A. A lump sum of $71,500.00 in the form of a check payable jointly to petitioner and petitioner’s attorney, John F. McHugh, for attorneys’ fees and costs available under 42 U.S.C. §300aa-15(e); and

B. A lump sum of $2,500.00 in the form of a check made payable to petitioner for out-of-pocket expenses incurred in proceeding on the petition.

The court thanks the parties for their cooperative efforts in resolving this matter. In the absence of a motion for review filed pursuant to RCFC, Appendix B, the Clerk shall enter judgment accordingly.2

IT IS SO ORDERED. s/Christian J. Moran Christian J. Moran Special Master