Rich v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 12-742V Filed: March 26, 2015

* * * * * * * * * * * * * * * * UNPUBLISHED SYDNEY RICH, *

* Special Master Hamilton-Fieldman Petitioner, *

* Decision on Interim Attorneys’ Fees v. * and Costs; Reasonable Amount

* Requested to Which Respondent SECRETARY OF HEALTH * Does Not Object.

AND HUMAN SERVICES, *

*

Respondent. *

* * * * * * * * * * * * * * * * Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for Petitioner. Sarah C. Duncan, United States Department of Justice, Washington, D.C., for Respondent.

DECISION1

On November 1, 2012, Sydney Rich (“Petitioner”) filed a petition pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-1 to -34 (2006). Petitioner alleged that she suffered from Acute Disseminated Encephalomyelitis (“ADEM”) as a result of the administration of an influenza (“flu”) vaccine on September 26, 20103. On October 30, 2014, an onset hearing was held. A decision regarding onset is pending.

On March 24, 2015, the parties filed a stipulation of fact concerning interim attorneys’ fees and costs stating that they had agreed on a reasonable amount of attorneys’ fees and costs that have been incurred by Petitioner’s counsel to date. Respondent maintains her objection to any award of interim attorneys’ fees and costs. Nevertheless, the parties agree to the reasonableness of the revised total of interim attorneys’ fees and costs as set forth in paragraph 6 of the joint stipulation.

The undersigned finds that Petitioner is entitled to an award of interim attorney’s fees and costs under the unique facts and circumstances of this case. See Butler v. Sec’y, HHS, No. 02- 1051, 2012 WL 4458203 (Fed. Cl. Spec. Mstr. June 25, 2012) (awarding interim attorneys’ fees and costs over respondent’s objection); Shaw v, Sec’y, HHS, 609 F.3d 1372, 1375 (Fed. Cr. 2010) (holding that “[w]here the claimant establishes that the cost of litigation has imposed an undue hardship and that there exists a good faith basis for the claim, it is proper for the special master to award interim attorneys’ fees”). The undersigned finds that paragraph 6 of the stipulation is reasonable and adopts it as the decision of the Court in awarding interim fees and costs, on the terms set forth therein.

Accordingly, the undersigned hereby awards:

1. A lump sum of $45,358.69 in the form of a check jointly payable to

Petitioner, Petitioner’s attorney, Andrew D. Downing, and Van Cott & Talamante; and

2. A lump sum of $4,771.31 in the form of a check jointly payable to Petitioner,

Petitioner’s attorney, Andrew D. Downing, and Hennelly & Steadman PLC. 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/ Lisa Hamilton-Fieldman Lisa Hamilton-Fieldman Special Master