Tyree v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 16-586V

Filed: March 23, 2017

UNPUBLISHED

********************************* NANCY TYREE, *

*

Petitioner, *

v. *

* Attorneys’ Fees and Costs; SECRETARY OF HEALTH * Special Processing Unit (“SPU”) AND HUMAN SERVICES, *

*

Respondent. *

* **************************** Paul Brazil, Muller Brazil, LLP, Dresher, PA, for petitioner.

Adriana Teitel, U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS1

Dorsey, Chief Special Master:

On May 17, 2016, 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 a shoulder injury related to vaccine administration (“SIRVA”) following a July 3, 2015 tetanus-diphtheria-acellular pertussis (“Tdap”) vaccine. On November 23, 2016, the undersigned issued a decision awarding compensation to petitioner based on respondent’s proffer. (ECF No. 21).

On January 11, 2017, petitioner filed a motion for attorneys’ fees and costs. (ECF No. 25). Petitioner requests attorneys’ fees in the amount of $12,065.50 and attorneys’ costs in the amount of $480.58 for a total amount of $12,546.08. Id. at 2. In accordance with General Order #9, petitioner’s counsel represents that petitioner incurred no out-of-pocket expenses. On January 30, 2017, respondent filed a response to petitioner’s motion. (ECF No. 26).

In his response, 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 her discretion and determine a reasonable award for attorneys’ fees and costs.” 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. However, do to Mr. Hodgson’s inexperience in the Vaccine Program, the undersigned does find cause to reduce his hourly rate from the requested $225 an hour to $200 an hour. Therefore, attorneys’ fees are reduced by $100 for a total of $11,965.50.

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 $12,446.083 as a lump sum in the form of a check jointly payable to petitioner and petitioner’s counsel Paul Brazil.

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