Osele v. Secretary of Health and Human Services

REISSUED FOR PUBLICATION ORIGINAL JUL 24 2017

OSM U.S. COURT OF FEDERAL CLAIMS 1Jn tbe 'mlniteb ~tateg C!tourt of jfeberal C!tlaimg

OFFICE OF SPECIAL MASTERS No. 14-946V Filed: June 27, 2017 Not for Publication

F'LED JUN 2 7 20\7

*************************************

OSM J.O., * U.S. COURT OF

FEDERAL CLAIMS

*

Petitioner, *

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

*

SECRETARY OF HEALTH * AND HUMAN SERVICES, *

*

Respondent. *

*

************************************* J.O., Buffalo, NY, prose.

Arny P. Kokot, Washington, DC, for respondent.

MILLMAN, Special Master

DECISION AWARDING ATTORNEYS' FEES AND COSTS 1 On October 6, 2014, petitioner filed a petition prose under the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-10-34 (2012) alleging that his receipt of hepatitis B vaccine on September 30, 2013 caused him to develop numerous symptoms, including lightheadedness, hypertension, burning heart pain, metabolic syndrome, and loss of appetite. Pet. at iii! 5, 6. On December 2, 2015, attorney Robert J. Krakow became the attorney of record in the case. The undersigned issued a decision dismissing the case on April 5, 2017.

On June 6, 2017, petitioner filed a motion for attorneys' fees and costs. Petitioner requests attorneys' fees in the amount of$22,346.30, attorneys' costs in the amount of $1,019.80, and personal costs of $525.00, for a total request of $23,891.10.

On June 13, 2017, respondent filed a response to petitioner's motion explaining he 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)(l)(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.

Petitioner filed a reply to respondent's response on June 13, 2017. In his reply, petitioner requests that the undersigned "grant petitioner's Motion for Attorneys' Fees and Costs in the amount requested." Reply at 1.

The Vaccine Act permits an award of"reasonable attorneys' fees" and "other costs." 42 U.S.C. § 300aa-15(e)(l). 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), affd, 33 F.3d 1375 (Fed. Cir. 1994); see also Saxton ex rel. Saxtonv. 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 petitioner's attorneys' fees and costs request reasonable. Therefore, the undersigned GRANTS petitioner's Motion for Attorneys' Fees and Costs. Accordingly, the court awards:

a. $23,366.10, representing attorneys' fees and costs. 2 The award shall be in the form of a check made payable jointly to petitioner and the Law Office of Robert J. Krakow, P.C. in the amount of$23,366.10; and

b. $525.00, representing petitioner's costs. The award shall be in the form of a check made payable to petitioner's for $525.00.

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. 3 IT IS SO ORDERED.

Dated: June 27, 2017 ~£.~

Laura D. Millman Special Master