Turner v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS Filed: July 18, 2017

* * * * * * * * * * * * * LISA TURNER, *

* Petitioner, * UNPUBLISHED *

v. * Special Master Gowen

*

SECRETARY OF HEALTH * No. 08-864V AND HUMAN SERVICES, *

* Attorneys’ Fees and Costs Respondent. *

*

* * * * * * * * * * * * * Michael McLaren, Black McLaren Jones Ryland & Griffee, P.C., Memphis, TN, for petitioner. Lara Ann Englund, U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS1

Gowen, Special Master:

On December 4, 2008, 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 alleged that following a Hepatitis B vaccine administered on December 20, 2005, she “suffered from multiple sclerosis, optic neuritis and other injuries.” Petition at ¶¶ 2-3. On April 25, 2017, the undersigned issued a decision awarding compensation to petitioner based on the parties’ stipulation. ECF No. 155.

On November 15, 2011, a fact hearing was held in Raleigh, North Carolina, before Special Master Hastings. Petitioner presented testimony on the events leading up to her injury and her symptoms. After numerous status reports, expert reports, and status conferences, an entitlement hearing was held in Charlotte, North Carolina, before the undersigned on February 3 and 4, 2015. On September 9, 2015, the undersigned awarded interim fees and costs in the amount of $165,000.00, which was stipulated. ECF No. 114. A Ruling on Entitlement was issued on April 18, 2016.

After the ruling finding entitlement to compensation, the parties engaged in extensive negotiations and documentation of petitioner’s damages, including a life care plan and a vocational and economic workup of her future lost wages. Ultimately, the parties stipulated to an award of compensation based on the reports generated.

On June 29, 2017, petitioner filed a motion for attorneys’ fees and costs. ECF No. 160. Petitioner requests attorneys’ fees in the amount of $76,015.50, and attorneys’ costs in the amount of $14,124.93. Id. at 1. In compliance with General Order #9, petitioner filed a signed statement indicating that petitioner incurred no out-of-pocket expenses. Thus, the total amount requested is $90,140.43.

On July 14, 2017, respondent filed a response to petitioner’s motion. ECF No. 161. 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 he “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 his discretion and determine a reasonable award for attorneys’ fees and costs.” Id. at 3. Petitioner has filed no reply.

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 $90,140.433 as follows:  A lump sum of $90,140.43, representing reimbursement for attorneys’ fees and costs, in the form of a check payable jointly to petitioner and petitioner’s counsel, Michael G. McLaren.

The clerk of the court shall enter judgment in accordance herewith.4 IT IS SO ORDERED. s/Thomas L. Gowen Thomas L. Gowen Special Master