Ward v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 14-962V Filed: May 8, 2017 Not for Publication

************************************* WENDY WARD, *

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Petitioner, * Attorneys’ fees and costs decision;

* reasonable attorneys’ fees and v. * costs

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SECRETARY OF HEALTH * AND HUMAN SERVICES, *

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Respondent. *

*

************************************* Lawrence R. Cohan, Philadelphia, PA, for petitioner.

Michael P. Milmoe, Washington, DC, for respondent.

MILLMAN, Special Master

DECISION AWARDING ATTORNEYS’ FEES AND COSTS 1 On October 8, 2014, petitioner filed a petition for compensation under the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-10–34 (2012). Petitioner alleged that she suffered Bell’s palsy caused by her receipt of the trivalent influenza vaccine. On January 5, 2017, the undersigned issued a decision awarding damages to petitioner based on the parties’ stipulation.

On April 19, 2017, petitioner filed a motion for attorneys’ fees and costs, requesting attorneys’ fees of $29,780.50 and attorneys’ costs of $3,810.25 for a total request of $33,590.75. In compliance with General Order #9, petitioner stated in the fee application that she has not advanced any funds in pursuit of her claim. Fee app. at ¶ 5.

On May 8, 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 $33,590.75. The award shall be in the form of a check made payable jointly to petitioner and Anapol Weiss in the amount of $33,590.75.

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: May 8, 2017 s/ Laura D. Millman

Laura D. Millman Special Master