Lehrman v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS (Filed: October 15, 2015)

* * * * * * * * * * * * * * * UNPUBLISHED STEVE LEHRMAN, *

* No. 13-901V Petitioner, *

*

v. * Chief Special Master Dorsey

*

SECRETARY OF HEALTH * Interim Costs; influenza AND HUMAN SERVICES, * vaccine; flu vaccine; AND HUMAN SERVICES, * Guillain-Barre syndrome;

* GBS *

Respondent. *

*

* * * * * * * * * * * * * * * Ronald C. Homer, Conway, Homer & Chin-Caplan, P.C., Boston, MA, for petitioner. Darryl R. Wishard, United States Department of Justice, Washington, DC, for respondent.

DECISION GRANTING PETITIONER’S MOTION FOR INTERIM COSTS1 On November 13, 2013, Steve Lehrman (“petitioner”) filed a petition pursuant to the National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-1 to -34 (2012).2 Petitioner alleges that he suffered from Guillain-Barre syndrome ("GBS") as a result of receiving an influenza ("flu") vaccination on October 25, 2011. See Petition at 1. On February 24, 2014, respondent filed a Rule 4(c) Report recommending against compensation. The parties have each filed an expert report and continue to litigate this case.

Petitioner filed a Motion for Interim Costs [“Pet. Mot.”] on September 18, 2015. Petitioner requests $2,000.00 for reimbursement of petitioner’s payment for a retainer for an expert witness. Petitioner claimed that an ongoing fee dispute concerning the appropriate hourly rate for the attorneys at the law firm of Conway, Homer, & Chin-Caplan in approximately 40 cases lead to the petitioner paying the expert’s retainer, rather than petitioner’s counsel. Pet. Mot. at 2-4.

In her response, filed on September 24, 2015, respondent deferred to the undersigned’s discretion regarding whether an award of interim costs is appropriate. Respondent’s Response at 2.

The Vaccine Act permits an award of interim costs. See Avera v. Sec’y of HHS, 515 F.3d 1343, 1352 (Fed. Cir. 2008); Shaw v. Sec’y of HHS, 609 F. 3d 1372, 1374-75 (2010); see also 42 U.S.C. §300 aa-15(e)(1)(B). Based on the reasonableness of petitioner’s request, and the specific facts and circumstances of this case, the undersigned GRANTS the request for approval and payment of reimbursement of costs, specifically to reimburse Mr. Lehrman for payment of an expert witness retainer.

Accordingly, an award should be made as follows: in the form of a check payable to Steve Lehrman, in the amount of $2,000.00. 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.3

IT IS SO ORDERED. s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master