Theriot v. Secretary of Health and Human Services ( 2017 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 13-778V
Filed: November 7, 2017
* * * * * * * * * * * * * Special Master Sanders
BRENDA THERIOT, *
* Attorneys’ Fees and Costs;
Petitioner, * Reasonable Amount Requested.
*
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * *
Brian R. Arnold, Brian R. Arnold & Associates, Dallas, TX, for Petitioner.
Althea W. Davis, United States Department of Justice, Washington, DC, for Respondent.
DECISION1
On October 8, 2013, Brenda Theriot (“Petitioner”) filed a petition for compensation
pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-1 to -34
(2012). Petitioner alleged that as a result of an influenza (“flu”) vaccine administered on
October 12, 2010, she suffered from Stevens-Johnson Syndrome and fibromyalgia. See
Stipulation for Award at ¶ ¶ 1-4, filed March 9, 2017. Petitioner further alleged that she
experienced symptoms of this injury for more than six months. Id. at ¶ 4. On March 9, 2017, the
undersigned issued a decision pursuant to the parties’ Joint Stipulation on Damages. Decision,
ECF No. 74.
1
This decision shall be posted 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). In accordance with Vaccine
Rule 18(b), a party has 14 days to identify and move to delete medical or other information that
satisfies the criteria in § 300aa-12(d)(4)(B). Further, consistent with the rule requirement, a
motion for redaction must include a proposed redacted decision. If, upon review, the
undersigned agrees that the identified material fits within the requirements of that provision, such
material will be deleted from public access.
2
The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, 42
U.S.C. §§ 300aa-10 et seq. (hereinafter “Vaccine Act,” “the Act,” or “the Program”). Hereafter,
individual section references will be to 42 U.S.C. § 300aa of the Act.
1
On October 27, 2017, Petitioner filed a Motion for Leave to File Attached Petitioner’s
Motion and Request for Attorney’s Fees and Costs Out of Time. Pet’r’s Mot. (“Motion”), ECF
No. 79. In the Motion, Petitioner requests that the undersigned entertain a late motion for fees.
See Vaccine Rule 13 (requiring that fees applications be filed within 180 days of judgment).
Petitioner stated that “[d]ue to an error or mistake in calendaring the deadline by Petitioner’s
counsel, Petitioner’s counsel believed that the application was due by November 10, 2017, when
in fact it was due on or before October 10, 2017.” Id. at 4. Petitioner requested attorneys’ fees
in the amount of $56,886.06 and costs in the amount of $9,812.29. ECF No. 79-3 at 5. In the
Response, Respondent “takes no position on [P]etitioner’s motion for leave to file her petition
for attorney’s fees and costs out of time.” Resp’t’s Resp. at 1 (Nov. 1, 2017), ECF No. 80.
Furthermore, Respondent indicated that “[t]o the extent the Special Master is treating
[P]etitioner’s request for attorneys’ fees and costs as a motion that requires a response from
[R]espondent . . . Respondent is satisfied the statutory requirements for an award of attorneys’
fees and costs are met in this case.” Id. at 2. Respondent recommended that the undersigned
exercise her discretion and determine a reasonable award for attorneys’ fees and costs. Id. at 3.
Petitioner’s counsel stated that he would not file a reply. Informal Communication, docketed
Nov. 7, 2017. Therefore, this matter is now ripe for consideration.
The undersigned GRANTS Petitioner’s counsel leave to file the fees application out of
time. Furthermore, the undersigned has reviewed Petitioner’s counsel’s detailed records of time
and expenses incurred in this case, and they are reasonable.3 In accordance with the Vaccine
Act, 42 U.S.C. § 300aa-15(e) (2012), the undersigned finds that Petitioner is entitled to
attorneys’ fees and costs. Accordingly, the undersigned hereby awards the following
amount: $66,698.35, in the form of a check made payable jointly to Petitioner and
Petitioner’s counsel, Brian Arnold, of Brian R. Arnold & Associates. 4 In the absence of a
motion for review filed pursuant to RCFC Appendix B, the clerk of the court shall enter
judgment in accordance herewith.5
IT IS SO ORDERED.
3
Petitioner’s application for fees and costs, although unopposed, relies upon a proposed hourly
rate for Petitioner’s counsel, Brian Arnold, who practices in Dallas, Texas. Respondent does not
maintain an objection to the amount of fees and costs sought by Petitioner, and I find that the
total sum requested is reasonable under the circumstances. Therefore, I do not reach the question
of whether Mr. Arnold’s hourly rate is reasonable. This decision does not constitute such a
determination.
4
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 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).
5
Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to
seek review. Vaccine Rule 11(a).
2
s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master
3