Evin v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 17-1422V (not to be published)

WANDA E. EVIN, Chief Special Master Corcoran Petitioner, v. Filed: January 10, 2020

SECRETARY OF HEALTH AND Special Processing Unit (SPU); HUMAN SERVICES, Attorney’s Fees and Costs

Respondent.

Kate Gerayne Westad, SibenCarey, Minneapolis, MN, for Petitioner.

Traci R. Patton, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEY’S FEES AND COSTS1 On October 3, 2017, Wanda E. Evin (“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 7, 2014 influenza (“flu”) vaccination. (Petition at 1). On May 28, 2019, a decision was issued by then Chief Special Master Dorsey awarding compensation to Petitioner based on the Respondent’s proffer. (ECF No. 41).

1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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 decision 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.

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).

Petitioner has now filed a motion for attorney’s fees and costs, dated December 11, 2019, (ECF No. 47), requesting a total award of $30,892.54 (representing $4,055.00 in fees and costs incurred by counsel’s current firm Sieben Carey P.A., $24,607.50 in fees and costs incurred by counsel’s former firm Larkin Hoffman Law Firm and $2,230.04 from incurred by counsel’s former firm Lommen Abdo, P.A.). In accordance with General Order #9 Petitioner filed a signed statement indicating that Petitioner incurred no out-of- pocket expenses. (ECF No. 46). Respondent reacted to the motion on December 20, 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. 48). Petitioner did not file a reply thereafter.

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, petitioner is awarded the total amount of $30.892.543 as follows: • A lump sum of $4,055.00, representing reimbursement for attorneys’ fees and costs, in the form of a check payable jointly to Petitioner and Sieben Carey P.A., and • A lump sum of $24,607.50, representing reimbursement for attorneys’ fees and costs, in the form of a check payable jointly to Petitioner and Larkin Hoffman Law Firm; and • A lump sum of $2,230.04, representing reimbursement for attorneys’ fees and costs, in the form of a check payable jointly to Petitioner and Lommen Abdo, P.A.

3This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all charges by the attorney against a client, “advanced costs” as well as fees for legal services rendered.

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).

IT IS SO ORDERED.

s/Brian H. Corcoran Brian H. Corcoran Chief Special Master