Fischer v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: June 29, 2015 * * * * * * * * * * * * * * UNPUBLISHED KEVIN FISCHER, as the Legal, * No. 11-202v Representative of a minor child, KJF, * * Petitioner, * Special Master Dorsey * v. * * Attorneys’ Fees and Costs; SECRETARY OF HEALTH * Reasonable Amount Requested to which AND HUMAN SERVICES, * Respondent Does not Object. * Respondent. * * * * * * * * * * * * * * * Michael Adly Baseluos, San Antonio, TX, for petitioner.

Darryl R. Wishard, United States Department of Justice, Washington, DC, for respondent.

ATTORNEYS’ FEES AND COSTS DECISION1 On April 1, 2011, Shauni Rai Fischer2 filed a petition on behalf of her daughter, KJF, pursuant to the National Vaccine Injury Compensation Program.3 42 U.S.C. §§ 300aa-1 to -34 (2006). The petition alleged that, as a result of receiving the hepatitis B (“Hep B”), diphtheria- tetanus-acellular pertussis (“DTaP”), haemophilus influenza type b (“Hib”), pneumococcal conjugate (“PCV”) and inactivated polio (“IPV”) vaccinations on April 26, 2010, KJF suffered from infantile spasms and related sequelae. The petition further alleged that KJF suffered the Because this decision contains a reasoned explanation for the undersigned’s action in this case, the undersigned intends to post this decision on the website of the United States Court of Federal Claims, 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. On June16, 2015, an order was entered amending the caption of the case to reflect that Mr. Kevin Fischer was appointed the guardian of KJF.

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, U.S.C. §§ 300aa-1 to -34 (2006) (Vaccine Act or the Act). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa. residual effects or complications of this vaccine injury for more than six months. On May 22, 2015, Ms. Fischer passed away, and on June 16, 2015, a joint motion to substitute Mr. Kevin Fischer as the petitioner in this case was granted. On June 18, 2015, the undersigned entered a decision awarding compensation to petitioner based on a stipulation filed by the parties.

On June 26, 2015, the parties filed a Stipulation of Facts Regarding Attorneys’ Fees and Costs. According to the stipulation, the parties stipulate to a total award to petitioner of attorneys’ fees and costs in the amount of $95,625.11. In accordance with General Order #9, petitioner’s counsel states that petitioner did not advance any reimbursable costs in pursuit of this claim.

The Vaccine Act permits an award of reasonable attorneys’ fees and costs. 42 U.S.C. § 300 aa-15(e). Based on the reasonableness of petitioner’s request and the lack of any objection by respondent, the undersigned GRANTS the request for approval and payment of attorneys’ fees and costs.

Accordingly, an award should be made as follows: in the form of a check jointly payable to petitioner and to petitioner’s attorney, Michael Baseluos of the Baseluos La Firm, PLLC, in the amount of $95,625.11.

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/Nora Beth Dorsey Nora Beth Dorsey Special Master

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