United States Court of Federal Claims, 2019

Whittemore v. Secretary of Health and Human Services

United States Court of Federal Claims · Decided December 30, 2019 · Brian H. Corcoran

Opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 17-1047V (not to be published)

JOY WHITTEMORE,

Chief Special Master Corcoran Petitioner,

v. Filed: November 15, 2019 SECRETARY OF HEALTH AND Special Processing Unit (SPU); HUMAN SERVICES, Attorney’s Fees and Costs

Respondent.

Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner.

Debra A. Filteau Begley, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEY’S FEES AND COSTS1

On August 3, 2017, Joy Whittemore, (“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 alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA”) as a result of her October 22, 2016 influenza (“flu”) immunization. (Petition at 1). On March 19, 2019, a decision was issued by then-Chief Special Master Dorsey, awarding compensation to Petitioner based on the parties’ stipulation. (ECF No. 40).

1 Because this unpublished ruling contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). This means the ruling will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access.

Petitioner has now filed a motion for attorney’s fees and costs, dated October 21, 2019, (ECF No. 45), requesting a total award of $27,435.70 (representing $25,627.40 in fees and $1,808.30 in costs). In accordance with General Order #9, Petitioner’s counsel filed a signed statement that Petitioner incurred no out-of-pocket expenses. (Id. at 2). Respondent reacted to the motion on October 31, 2019 indicating that he is satisfied that the statutory requirements for an award of attorney’s fees and costs are met in this case and defers to the Court’s discretion to determine the amount to be awarded. (ECF No. 46). On November 6, 2019 Petitioner filed a reply requesting that the Court award all fees and costs requested. (ECF No. 47).

I have reviewed the billing records submitted with Petitioner’s request. In my experience, the request appears reasonable, and I find no cause to reduce the requested hours or rates.

The Vaccine Act permits an award of reasonable attorney’s fees and costs. § 15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. I award a total of $27,435.70 (representing $25,627 in fees and $1,808.30 in costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel. In the absence of a timely-filed motion for review (see Appendix B to the Rules of the Court), the Clerk shall enter judgment in accordance with this decision.3 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master

3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their right to seek review.

2 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).

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