Smith v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: March 21, 2017

* * * * * * * * * * * * * JODY R. SMITH, * UNPUBLISHED OPINION

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Petitioner, * No. 16-1282V

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v. * Special Master Gowen

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SECRETARY OF HEALTH * Attorneys’ Fees and Costs; AND HUMAN SERVICES, * Special Master’s Discretion

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Respondent. *

* * * * * * * * * * * * * Nancy Routh Meyers, Ward Black Law, Greensboro, NC for petitioner.

Colleen Clemons Hartley, U.S. Department of Justice, Washington, DC for respondent.

DECISION AWARDING ATTORNEYS’ FEES AND COSTS1 On October 6, 2016, Jody R. Smith (“petitioner”) filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 [the “Vaccine Act” or “Program”]. Petitioner alleges that as a result of an influenza (“flu”) vaccine administered on or about November 27, 2015, she suffered an exacerbation of chronic pain and myalgia. Stipulation (ECF No. 22), ¶¶ 2, 4. On March 9, 2017, the undersigned issued a decision awarding compensation to petitioner based on the parties’ stipulation. ECF No. 23.

On March 13, 2017, petitioner filed a motion for attorneys’ fees and costs. Petitioner’s Motion (“Pet’r’s Mot.”), ECF No. 25. Petitioner requests attorneys’ fees in the amount of $16,059.00 and attorneys’ costs in the amount of $469.29, for a total amount of $16,528.29. Id. at 1. Petitioner included her signed statement that she did not incur any fees or costs related to the prosecution of this case, in accordance with General Order #9. Pet’r’s Mot., Exhibit A.

On March 13, 2017, respondent filed a response to petitioner’s motion. ECF No. 26. Respondent states he is “satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case.” Id. at 2. He “respectfully recommends that the Special Master exercise his discretion and determine a reasonable award for attorneys’ fees and costs.” Id. at 3.

Under the Vaccine Act, the special master 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). In the present case, petitioners were awarded compensation pursuant to the terms of a joint stipulation. Therefore, petitioners are entitled to an award of reasonable attorneys’ fees and costs.

The undersigned has reviewed counsel’s time records and tasks performed, and finds them reasonable. Petitioner’s counsel has also submitted receipts for his costs, which the undersigned has also reviewed and finds to be reasonable. Based on the reasonableness of petitioner’s request and the lack of opposition from respondent, the undersigned GRANTS petitioner’s motion for attorneys’ fees and costs.

Accordingly, the undersigned awards a lump sum in the amount of $16,528.29, representing reimbursement for attorneys’ fees and costs, in the form of a check payable jointly to petitioner, Ms. Jody R. Smith, and her counsel, Nancy R. Meyers of Ward Black Law.3

In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of Court SHALL ENTER JUDGMENT in accordance with this decision.4

IT IS SO ORDERED. s/Thomas L. Gowen Thomas L. Gowen Special Master