United States Court of Federal Claims, 2024

Erb v. Secretary of Health and Human Services

United States Court of Federal Claims · Decided July 1, 2024 · Brian H. Corcoran

Opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 21-313V

SIERRA ERB,

Chief Special Master Corcoran Petitioner,

v. Filed: May 31, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

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

Neil Bhargava, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEY’S FEES AND COSTS 1

On January 8, 2021, Sierra Erb 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 alleged she suffered a Table injury – shoulder injury related to vaccine administration as the result of the tetanus-diphtheria-acellular-pertussis vaccination she received on October 27, 2020. Petition, ECF No. 1. On December 22, 2023, I issued a decision awarding compensation to Petitioner based on the Respondent’s proffer. ECF No. 41.

Petitioner has now filed a motion for attorney’s fees and costs, requesting an award of $31,912.49 (representing $29,201.50 in fees plus $2,710.99 in costs). Application for Attorneys’ Fees and Costs (“Motion”) filed April 2, 2024, ECF No. 46. Furthermore, Petitioner filed a signed statement representing that Petitioner incurred $9.85 in personal out-of-pocket expenses. Id. at 2.

Respondent reacted to the motion on April 16, 2024, indicating that he is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case but deferring resolution of the amount to be awarded to my discretion, Motion at 2-3, ECF No. 47. Petitioner filed a reply requesting an award of fees and costs as indicated in the Motion. ECF No. 48.

The rates requested for work performed through the end of 2023 are reasonable and consistent with our prior determinations and will therefore be adopted. Petitioner has also requested the rate of $486 for 2024 work performed by Leah Durant, representing an increase of $23 from the previous year; and the rate of $190 for paralegal work performed in 2024. ECF No. 45-1 at 17. I find these rates to be reasonable and will award the attorney’s fees requested. And all time billed to the matter was also reasonably incurred. Furthermore, Petitioner has provided supporting documentation for all claimed costs. ECF No. 46-1. And Respondent offered no specific objection to the rates or amounts sought.

The Vaccine Act permits an award of reasonable attorney’s fees and costs for successful claimants. Section 15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. Accordingly, Petitioner is awarded the total amount of $31,922.34 3 as follows:

• A lump sum of $31,912.49, representing reimbursement for fees and costs, in the form of a check payable jointly to Petitioner and Petitioner’s counsel, Leah V. Durant, and

• A lump sum of $9.85, representing reimbursement for Petitioner’s costs, in the form of a check payable to Petitioner.

In the absence of a timely-filed motion for review (see Appendix B to the Rules of the Court), the Clerk of Court shall enter judgment in accordance with this decision. 4 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master

1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (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 inf ormation, 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 f rom public access. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all section ref erences to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018). 3 This 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 f ees f or 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). 4 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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