United States Court of Federal Claims, 2021

Smith v. Secretary of Health and Human Services

United States Court of Federal Claims · Decided June 14, 2021 · Brian H. Corcoran

Opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 19-1227V

(not to be published)

BERTHA SMITH, on behalf of her deceased husband, DONALD SMITH, Chief Special Master Corcoran

Petitioner, Filed: May 12, 2021 v.

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

Respondent.

Michael Avrim Firestone, Marvin Firestone, MD, JD and Associates, San Mateo, CA, for Petitioner.

Sarah Christina Duncan, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEY’S FEES AND COSTS 1 On August 16, 2019, Bertha Smith filed a petition on behalf of her deceased husband, Donald Smith, for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the “Vaccine Act”). Ms. Smith alleges that Donald Smith “suffered the ‘Table Injury’ known as Guillain-Barré Syndrome” (GBS) as a result of an influenza vaccination received on September 28, 2017, and that Mr. Smith passed away due to complications of GBS on January 18, 2018. (Petition at 1). On July 30, 2020, a decision was issued awarding compensation to Petitioner based on the Respondent’s proffer. (ECF No. 25).

Petitioner has now filed a motion for attorney’s fees and costs, dated April 15, 2021 (ECF No. 30), requesting a total award of $11,155.75 (representing $10,711.23 in fees and $444.52 in costs). In accordance with General Order No. 9, Petitioner filed a signed statement indicating that she incurred no out-of-pocket expenses. (ECF No. 30 at 19.) Respondent reacted to the motion on April 27, 2021, indicating that he is satisfied that the statutory requirements for an award of attorney’s fees and costs are met in this case, but deferring resolution of the amount to be awarded to my discretion. (ECF No. 31). 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. Section 15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. I award a total of $11,155.75 (representing $10,711.23 in fees and $444.52 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

1 Because this unpublished Decision contains a reasoned explanation f or 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. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” ref erences to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). 3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by f iling a joint notice renouncing their right to seek review.

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