Agnew v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 12-551V Filed: December 7, 2016 Not for Publication

************************************* CONSTANCE M. AGNEW, * Parent of R.P.A., a Minor, *

*

Petitioner, *

* Attorneys’ fees and costs decision; v. * reasonable attorneys’ fees and costs

*

SECRETARY OF HEALTH * AND HUMAN SERVICES, *

*

Respondent. *

*

************************************* Renee J. Gentry, Washington, DC, for petitioner.

Alexis B. Babcock, Washington, DC, for respondent.

MILLMAN, Special Master

DECISION AWARDING ATTORNEYS’ FEES AND COSTS 1 On August 30, 2012, petitioners filed a petition for compensation under the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-10–34 (2012). Petitioners alleged that their son developed acute hepatitis requiring a liver transplant as a result of his receipt of the influenza (“flu”) vaccine on October 26, 2009. After an entitlement hearing, the undersigned issued a ruling on entitlement ruling for petitioners on March 30, 2016. On June 20, 2016, the undersigned issued a decision awarding damages to petitioners based on respondent’s proffer. On September 26, 2016, the undersigned issued an Order granting petitioners’ motion to amend the case caption because only Constance M. Agnew had applied to be a guardian of R.P.A.’s estate. October 6, 2016, the undersigned withdrew her decision and stuck respondent’s proffer because they were filed when both of R.P.A.’s parents were petitioners in this case. She issued an amended petition based on respondent’s amended proffer on October 7, 2016.

On November 7, 2016, petitioner filed a motion for attorneys’ fees and costs. Petitioner requests attorneys’ fees in the amount of $126,479.00, attorneys’ costs in the amount of $18,800.00, and personal costs in the amount of $2,378.33 for a total request of $147,657.33.

On December 7, 2016, respondent filed a response to petitioner’s motion explaining she is satisfied that this case meets the statutory requirements for an award of attorneys’ fees and costs under 42 U.S.C. § 300aa-15(e)(1)(A)-(B). Resp. at 2. She further “recommends that the special master exercise her discretion and determine a reasonable award for attorneys’ fees and costs.” Id. at 3.

Under the Vaccine Act, a special master or a judge on the U.S. Court of Federal Claims shall award reasonable attorneys’ fees and costs for any petition that results in an award of compensation. 42 U.S.C. § 300aa-15(e)(1); Sebelius v. Cloer, 133 S. Ct. 1886, 1893 (2013). The special master has “wide discretion in determining the reasonableness” of attorneys’ fees and costs. Perreira v. Sec’y of HHS, 27 Fed. Cl. 29, 34 (1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994); see also Saxton ex rel. Saxton v. Sec’y of HHS, 3 F.3d 1517, 1519 (Fed. Cir. 1993) (“Vaccine program special masters are also entitled to use their prior experience in reviewing fee applications.”).

Based on her experience and review of the billing records submitted by petitioner, the undersigned finds that petitioner’s request for attorneys’ fees and costs is reasonable.

The undersigned GRANTS petitioner’s Motion for Attorneys’ Fees and Costs. Accordingly, the court awards:

a. $145,279.00, representing attorneys’ fees and costs. The award shall be in the form of a check made payable jointly to petitioner and The George Washington University Law School Vaccine Injury Clinic in the amount of $145,279.00; and

b. $2,378.33, representing petitioner’s costs. The award shall be in the form of a check for $2,378.33 made payable to petitioner.

In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment herewith. 2 IT IS SO ORDERED.

Dated: December 7, 2016 s/ Laura D. Millman

Laura D. Millman Special Master