Forziati v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 15-96V Filed: July 5, 2017 Not for Publication

************************************* ANTHONY FORZIATI, *

*

Petitioner, *

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

*

SECRETARY OF HEALTH * AND HUMAN SERVICES, *

*

Respondent. *

*

************************************* Diana L. Stadelnikas, Sarasota, FL, for petitioner.

Claudia B. Gangi, Washington, DC, for respondent.

MILLMAN, Special Master

DECISION AWARDING ATTORNEYS’ FEES AND COSTS 1 On January 30, 2015, petitioner filed a petition under the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-10–34 (2012) alleging that his receipt of Tetanus-Diphtheria- acellular Pertussis vaccine on April 30, 2013 caused him to develop Guillain-Barré syndrome and/or chronic inflammatory demyelinating polyneuropathy. On June 1, 2017, the undersigned issued a decision awarding damages to petitioner based on the parties’ stipulation.

On June 14, 2017, petitioner filed a motion for attorneys’ fees and costs. Petitioner requests attorneys’ fees in the amount of $31,219.70 and attorneys’ costs in the amount of $19,943.34, for a total request of $51,163.04. In accordance with General Order #9, petitioner filed a statement signed by petitioner saying he did not advance any costs in pursuit of his claim.

On July 3, 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)(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 petitioner’s attorneys’ fees and costs request reasonable. Therefore, the undersigned GRANTS petitioner’s Motion for Attorneys’ Fees and Costs.

Accordingly, the court awards $51,163.04, representing attorneys’ fees and costs. The award shall be in the form of a check made payable jointly to petitioner and Maglio Christopher and Toale, PA in the amount of $51,163.04.

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: July 5, 2017 s/ Laura D. Millman

Laura D. Millman Special Master