James v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS Filed: November 13, 2017

* * * * * * * * * * * * * * * CARMEN JAMES, on behalf of her * No. 15-1576V minor child, A.J., *

*

Petitioner, * Special Master Sanders

*

v. *

*

SECRETARY OF HEALTH * Attorneys’ Fees and Costs; Reasonable AND HUMAN SERVICES, * Amount Request.

*

Respondent. *

* * * * * * * * * * * * * * * Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for Petitioner. Colleen C. Hartley, United States Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING ATTORNEYS’ FEES AND COSTS1 On December 28, 2015, Carmen James (“Petitioner”) filed a petition on behalf of her minor child, A.J., for compensation under the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-10 to -34 (2012). Petitioner alleged that A.J. suffered from a severe adverse reaction, including seizures and Anti-N-methyl-D-aspartate (“Anti-NMDAR”) receptor encephalitis, as a result of an influenza (“flu”) vaccine administered on November 13, 2014. Decision, ECF No. 41. On October 25, 2017, the undersigned dismissed Petitioner’s claim for insufficient proof of causation. Id.

On November 2, 2017, Petitioner filed an application for attorneys’ fees and costs. Mot. Att’ys’ Fees, ECF No. 45. Petitioner requested $39,123.00 in attorneys’ fees and $21,005.13 in costs, for a total of $60,128.13. Id. at 2. Petitioner averred that she incurred no personal costs during the prosecution of this case. Id. at 3.

Respondent submitted a Response to Petitioner’s motion on November 3, 2017. Resp., ECF No. 46. Respondent indicated that “[t]o the extent the Special Master is treating [P]etitioner’s request for attorneys’ fees and costs as a motion that requires a response from [R]espondent[,] . . . Respondent is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case.” Id. at 2. Respondent recommended that the undersigned exercise her discretion and determine a reasonable award for attorneys’ fees and costs. Id. at 3. On November 6, 2017, Petitioner informed the undersigned that Petitioner will not submit a reply to Respondent’s filing. Informal Comm., dated Nov. 6, 2017.

The undersigned has reviewed the detailed records of time and expenses of Petitioner’s counsel, and finds that they are reasonable. In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), the undersigned finds that Petitioner is entitled to attorneys’ fees and costs. Accordingly, the undersigned hereby awards the amount of $60,128.13,3 in the form of a check made payable jointly to Petitioner and Petitioner’s counsel, Andrew D. Downing, of Van Cott & Talamante, PLLC. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court shall enter judgment in accordance herewith.4

IT IS SO ORDERED. s/Herbrina D. Sanders Herbrina D. Sanders Special Master