Smith v. Secretary of Health and Human Services ( 2021 )

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(not to be published)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
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Because this unpublished Decision contains a reasoned explanation f or the action in this case, I am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).
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
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.
2