Miller v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 11-852V Filed: February 28, 2017 Not for Publication

************************************* L.A.M., *

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Petitioner, *

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

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SECRETARY OF HEALTH * AND HUMAN SERVICES, *

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Respondent. *

*

************************************* Patricia A. Finn, Piermont, NY, for petitioner.

Debra A. Filteau Begley, Washington, DC, for respondent.

MILLMAN, Special Master

DECISION AWARDING ATTORNEYS’ FEES AND COSTS 1 On December 6, 2011, petitioner’s father filed a petition for compensation under the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-10–34 (2012). Petitioner alleged that his daughter’s receipt of the human papillomavirus vaccine on December 3, 2008 caused her to develop severe headaches, photophobia, phonophobia, extreme fatigue, dizziness, and gait disturbance. On February 2, 2012, the undersigned granted petitioner’s father’s motion to substitute his daughter as petitioner because she had reached the age of majority. On December 19, 2014, the undersigned awarded petitioner $62,350.00 in interim attorneys’ fees and costs based on the parties’ stipulation. The undersigned held a three-day entitlement hearing beginning on July 13, 2015. On January 31, 2017, the undersigned issued a decision dismissing the case for failure to make a prima facie case.

On February 7, 2017, petitioner filed a motion for attorneys’ fees and costs, requesting attorneys’ fees and costs in the amount of $62,406.40 and personal costs in the amount of $10,181.45, for a total request of $72,587.85.

On February 24, 2017, respondent filed a response to petitioner’s motion explaining that he is satisfied 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. Respondent “respectfully recommends that the [undersigned] exercise her discretion and determine a reasonable award for attorneys’ fees and costs.” Id. at 3.

The Vaccine Act permits an award of “reasonable attorneys’ fees” and “other costs.” 42 U.S.C. § 300aa-15(e)(1). It is not necessary for a petitioner to prevail in the case-in-chief in order to receive a fee award as long as petitioner brought the claim in “good faith and there was a reasonable basis for the claim.” Id. 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 attorneys’ fees and costs request is reasonable. Therefore, the undersigned GRANTS petitioner’s Motion for Attorneys’ Fees and Costs. Accordingly, the court awards:

a. $62,406.40, representing attorneys’ fees and costs. The award shall be in the form of a check made payable jointly to petitioner and Patricia Finn Attorney, P.C. in the amount of $62,406.40; and

b. $10,181.45, representing petitioner’s costs. The award shall be in the form of a check made payable to petitioner for $10,181.45.

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: February 28, 2017 s/ Laura D. Millman

Laura D. Millman Special Master