United States Court of Federal Claims, 2020

Mogavero v. Secretary of Health and Human Services

United States Court of Federal Claims · Decided December 2, 2020 · Brian H. Corcoran

Opinion

CORRECTED In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 18-1197V (not to be published)

SUSAN MOGAVERO, Chief Special Master Corcoran Petitioner, v. Filed: October 30, 2020

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

Respondent.

Theodore J. Hong, Maglio Christopher & Toale, PA, Seattle, WA, for Petitioner.

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

DECISION ON ATTORNEY’S FEES AND COSTS 1 On August 13, 2018, Susan Mogavero 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 left shoulder injury related to vaccine administration as a result of an influenza vaccine received on September 23, 2016. (Petition at 1). On September 16, 2020, a decision was issued awarding compensation to Petitioner based on the Respondent’s proffer. (ECF No. 50).

1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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 October 9, 2020, (ECF No. 54), requesting a total award of $48,716.69 3 (representing $47,910.90 in fees and $805.79 in costs). In accordance with General Order #9, Petitioner filed a signed statement indicating that she incurred no out-of-pocket expenses. (ECF No. 54-3).

Respondent reacted to the motion on October 26, 2020 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. 57). On October 27, 2020, Petitioner filed a reply requesting a decision awarding the fees and costs requested in full. (ECF No. 58).

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 $48,716.69 (representing $47,910.90 in fees and $805.79 in costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel.

Petitioner requests payment be forwarded to Maglio Christopher & Toale, PA, 1605 Main Street, Suite 710, Sarasota, Florida, 34236. 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. 4 IT IS SO ORDERED.

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

3 Petitioner’s counsel notified the staff attorneys office that there was an error in the total amount requested in Petitioner’s motion for fees. The total amount of fees and costs requested by Petitioner should equal $48,716.69, however the motion states a total of $47,716.69. 4 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their right to seek review.

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