Lusk v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 15-1190V Filed: December 30, 2016

UNPUBLISHED

**************************** ALICIA LUSK, *

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Petitioner, * Attorneys’ Fees and Costs; v. * Special Processing Unit (“SPU”)

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SECRETARY OF HEALTH * AND HUMAN SERVICES, *

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Respondent. *

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**************************** Diana Lynn Stadelnikas, Maglio Christopher and Toale, PA, Sarasota, FL, for petitioner. Adriana Ruth Teitel, U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS1

Dorsey, Chief Special Master:

On October 13, 2015, 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”). Petitioner alleged that she suffered left arm pain that was caused by a November 1, 2013 influenza (“flu”) vaccination. (ECF No. 1). On September 21, 2016, the undersigned issued a decision awarding compensation to petitioner based on respondent’s Proffer. (ECF No. 39).

On December 6, 2016, petitioner filed a motion for attorneys’ fees and costs. (ECF No. 45). Petitioner requests attorneys’ fees in the amount of $20,998.30, attorneys’ costs in the amount of $1,020.06, and petitioner’s out-of-pocket costs in the amount of $73.90 for a total amount of $22,092.26. Id. at 1-2. In compliance with General Order #9, petitioner has filed a signed statement indicating petitioner incurred $73.90 in out-of-pocket expenses. (ECF No. 49).

On December 21, 2016, respondent filed a response to petitioner’s motion. (ECF No. 46). Respondent argues that “[n]either the Vaccine Act nor Vaccine Rule 13 contemplates any role for respondent in the resolution of a request by a petitioner for an award of attorneys’ fees and costs.” Id. at 1. Respondent adds, however, that she “is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case.” Id. at 2. Respondent “respectfully recommends that the special master exercise her discretion and determine a reasonable award for attorneys’ fees and costs.” Id. at 3.

On December 28, 2016, petitioner filed a reply. (ECF No. 47). Petitioner argues that “the fees and costs incurred by [p]etitioner are reasonable and should be awarded without reduction.” Id. at 3.

The undersigned has reviewed the billing records submitted with petitioner’s request. In the undersigned’s experience, the request appears reasonable, and the undersigned finds no cause to reduce the requested hours or rates.

The Vaccine Act permits an award of reasonable attorneys’ fees and costs. § 15(e). Based on the reasonableness of petitioner’s request, the undersigned GRANTS petitioner’s motion for attorneys’ fees and costs.

Accordingly, the undersigned awards the total of $22,092.263 as follows:

 A lump sum of $22,018.36, representing reimbursement for attorneys’ fees and costs, in the form of a check payable jointly to petitioner and petitioner’s counsel, Diana Lynn Stadelnikas; and

 A lump sum of $73.90, representing reimbursement for petitioner’s costs, in the form of a check payable to petitioner. The clerk of the court shall enter judgment in accordance herewith.4

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