Waidzunas v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 16-1304V Filed: January 3, 2018 UNPUBLISHED

SHARYN WAIDZUNAS, Petitioner, v. Special Processing Unit (SPU); Attorneys’ Fees and Costs SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Diana Lynn Stadelnikas, Maglio Christopher & Toale, PA, Sarasota, FL, for petitioner.

Amy Paula Kokot, U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS 1 Dorsey, Chief Special Master: On October 11, 2016, petitioner filed a petition for compensation under the National Vaccine Injury Compensation Program (“the Program”), 42 U.S.C. §300aa-10, et seq., 2 (the “Vaccine Act”), alleging that she suffered a Shoulder Injury Related to Vaccine Administration (“SIRVA”) as a result of her September 15, 2014 influenza vaccination. Petition at 1-2. On October 16, 2017, the undersigned issued a decision denying compensation to petitioner based on insufficient proof of injury. (ECF No. 28.)

On November 29, 2017, petitioner filed a motion for attorneys’ fees and costs. (ECF No. 30.) Petitioner requests attorneys’ fees in the amount of $15,629.30 and attorneys’ costs in the amount of $1,215.74. (Id. at 1.) In compliance with General

National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).

Order #9, petitioner filed a signed statement indicating that petitioner incurred no out-of- pocket expenses. (ECF No. 30-3.) Thus, the total amount requested is $16,845.04.

On December 13, 2017, respondent filed a response to petitioner’s motion. (ECF No. 32.) 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 Chief Special Master exercise her discretion and determine a reasonable award for attorneys’ fees and costs.” (Id. at 3.)

On December 13, 2017, petitioner filed a reply. (ECF No. 33.) Petitioner disputes respondent’s position that she has no role in resolving attorneys’ fees and costs and further reiterates his view that his attorneys’ fees and costs in this case are reasonable.

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 $16,845.04 3 as a lump sum in the form of a check jointly payable to petitioner and petitioner’s counsel, Diana Lynn Stadelnikas. Per petitioner’s request, payment shall be forwarded to Maglio Christopher & Toale, PA, 1605 Main Street, Suite 710, Sarasota, Florida, 34236.

The clerk of the court shall enter judgment in accordance herewith. 4

IT IS SO ORDERED.

Furthermore, § 15(e)(3) prevents an attorney from charging or collecting fees (including costs) that would be in addition to the amount awarded herein. See generally Beck v. Sec’y of Health & Human Servs., 924 F.2d 1029 (Fed. Cir. 1991).