Day v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 12-630V Filed: January 27, 2016

************************* UNPUBLISHED LAURA DAY as parent and natural * guardian of B.K.D., *

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Petitioner, * Chief Special Master Dorsey v. *

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SECRETARY OF HEALTH * Interim Attorneys’ Fees & Costs; AND HUMAN SERVICES, * Reasonable Amount Requested to

* which Respondent Does Not Object. Respondent. *

************************* Anne Carrion Toale, Maglio, Christopher & Toale, Sarasota, FL, for petitioner. Gordon Elliot Shemin, U.S. Department of Justice, Washington, D.C., for respondent.

INTERIM ATTORNEYS’ FEES AND COSTS DECISION1 On September 24, 2012, Laura Day (“petitioner”) filed a petition for compensation under the National Vaccine Injury Compensation Program (“the Program”), 2 as the legal representative of her daughter, B.K.D, in which she alleged that the Gardasil (“HPV”) and FluMist (“influenza”) vaccinations B.K.D. received on September 28, 2011, caused her to develop multiple sclerosis (“MS”). Petition at 3, ¶11. Petitioner further alleged that the vaccinations “actually caused, or, alternatively, significantly aggravated” B.K.D.’s injuries. Id. After the filing of the petition, it was discovered that B.K.D. actually suffers from a rare autoimmune disorder known as neuromyelitis optica (“NMO”) or Devic’s Syndrome, rather than MS. See Petitioner’s (“Pet’r’s”) Exhibit (“Ex.”) 6 at 13. On November 13, 2015, the undersigned issued a decision finding that petitioner was entitled to compensation.

On January 22, 2016, the parties filed a stipulation concerning interim attorneys’ fees and costs. Petitioner requests a total award of interim attorneys’ fees and costs in the amount of $112,500.00. Stipulation at ¶ 4. Respondent does not object to an award in this amount. Id. at ¶ 4.

The undersigned finds that petitioner is entitled to an award of interim attorneys’ fees and costs under the unique facts and circumstances of this case. See Butler v. Sec’y of Health & Human Servs., 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 of Health & Human Servs., 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”); Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008). The undersigned finds that paragraphs 4-6 of the stipulation are reasonable and adopts them as the decision of the Court in awarding interim attorneys’ fees and costs, on the terms set forth therein.

Accordingly, the undersigned hereby awards a total of $112,500.00 issued in the form of a check payable jointly to petitioner and petitioner’s attorney, Anne Toale of Maglio, Christopher & Toale, for interim attorneys’ fees and costs.

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