Preston Nigel Sanker, by Leslie Sanker, His Mother and Next Friend v. Secretary of Health and Human Services

IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS No. 11-463 Originally Filed: March 20, 2013 Re-issued: April 18, 20131 **************************** PRESTON NIGEL SANKER, by * LESLIE SANKER, his mother and * next friend, * Petitioner, * Stipulation; DTaP; Hib; IPV; Rotarix; v. * Encephalopathy; Attorney Fees and Costs * SECRETARY OF HEALTH * AND HUMAN SERVICES, * Respondent. * **************************** DECISION ON JOINT STIPULATION2 Vowell, Special Master: On July 18, 2011, Leslie Sanker [“petitioner”] filed a petition, on behalf of the Estate of Preston Nigel Sanker, for compensation under the National Vaccine Injury Compensation Program.3 Petitioner alleges Preston suffered an encephalopathy and died as a result of the vaccinations he received on July 15, 2009.4 Stipulation at ¶¶ 2, 4.

Respondent denies that Preston’s vaccinations caused him any injury and denies that his death is a result of vaccine-related injury. Stipulation at ¶ 6. Nevertheless, the parties have agreed to settle the case.

Pursuant to a request by petitioner’s counsel, Ms. Elaine Sharp, my March 20, 2013 decision was vacated on April 18, 2013. Ms. Sharp inadvertently did not include all of her fees and costs in her motion for fees and costs, and thus they were not included on the stipulation of facts concerning attorney fees and costs filed by the parties on February 5, 2013 or awarded in my March 20, 2013 decision.

Because this unpublished decision contains a reasoned explanation for the action in this case, I intend to post this decision on the United States Court of Federal Claims' website, in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, § 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to delete medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will delete such material from public access.

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 (2006).

Preston received four vaccines on July 15, 2009: diphtheria-tetanus-acellular pertussis [“DTaP”], haemophilus influenzae type B [“Hib”], inactivated polio [“IPV”], and Rotarix vaccine. See Stipulation, filed March 20, 2013, at ¶ 1.

The parties filed a joint stipulation on March 20, 2013, agreeing to settle this case and describing the settlement terms. Respondent agrees to pay petitioner a lump sum payment of $200,000.00 in the form of a check payable to petitioner, as legal representative of the Estate of Preston Nigel Sanker. The payment represents compensation for all damages that would be available under § 15(a). The special master adopts the parties’ stipulation attached hereto, and awards compensation in the amount and on the terms set forth therein.

On February 5, 2013, the parties filed a stipulation of facts concerning attorney fees and costs. It notes that after informal discussions of petitioner’s January 25, 2013 motion for attorney fees and costs petitioner requests an amended amount, $26.772.45, to which respondent has no objections. Pursuant to General Order #9, the stipulation also indicates petitioner incurred no personal litigation costs.

A decision awarding compensation and attorney fees and costs, in the amounts stipulated to by the parties, was issued on March 20, 2013. On April 17, 2013, the parties filed a second stipulation of facts concerning attorney fees and costs. It indicates that in early April 2013 petitioner’s counsel informed respondent that some fees and costs were inadvertently omitted from her January 25, 2013 motion. After informal discussions and review of petitioner’s new invoices, the parties have agreed to increase the attorney fees and cost award to $32,409.15.

I find that this petition was brought in good faith and that there existed a reasonable basis for the claim. Therefore, an award for fees and costs is appropriate, pursuant to §§ 15(b) and (e)(1). Further, the proposed amount seems reasonable and appropriate. Accordingly, I hereby award the total $32,409.155 in the form of a check payable jointly to petitioner and petitioner’s counsel of record, Elaine Whitfield Sharp, for petitioner’s attorney fees and costs.

The clerk of the court shall enter judgment in accordance herewith.6 IT IS SO ORDERED. s/ Denise K. Vowell Denise K. Vowell Special Master

This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all charges by the attorney against a client, “advanced costs” as well as fees for legal services rendered.

Furthermore, § 15(e)(3) prevents an attorney from charging or collecting fees (including costs) that would be in addition to the amount awarded herein. See generally Beck v. Sec’y, HHS, 924 F.2d 1029 (Fed. Cir. 1991).

Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review.

See Vaccine Rule 11(a).