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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-1671V
Filed: November 16, 2017
Not for Publication
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HELENE FROST, *
*
Petitioner, * Attorneys’ fees and costs decision;
* reasonable attorneys’ fees and costs
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
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Respondent. *
*
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Jeffrey S. Pop, Beverly Hills, CA, for petitioner.
Lynn E. Ricciardella, Washington, DC, for respondent.
MILLMAN, Special Master
DECISION AWARDING ATTORNEYS’ FEES AND COSTS 1
On December 20, 2016, petitioner filed a petition under the National Childhood Vaccine
Injury Act, 42 U.S.C. §§ 300aa-10–34 (2012), alleging that she suffered Guillain-Barré
syndrome (“GBS”) as a result of the influenza (“flu”) vaccination she received on November 18,
2015. Pet. at ¶¶ 4 and 6.
On September 13, 2017, respondent filed a proffer. On the same day, the undersigned
issued a decision awarding compensation in the amount set forth in the proffer.
On November 4, 2017, petitioner filed a motion for attorneys’ fees and costs, requesting
1
Because this unpublished decision contains a reasoned explanation for the special master’s action in this
case, the special master intends to post this unpublished decision on the United States Court of Federal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). Vaccine Rule 18(b) states that
all decisions of the special masters will be made available to the public unless they contain trade secrets
or commercial or financial information that is privileged and confidential, or medical or similar
information whose disclosure would constitute a clearly unwarranted invasion of privacy. When such a
decision is filed, petitioner has 14 days to identify and move to redact such information prior to the
document’s disclosure. If the special master, upon review, agrees that the identified material fits within
the banned categories listed above, the special master shall redact such material from public access.
attorneys’ fees of $19,397.00, attorneys’ costs of $3,791.44, and Dr. Steven Sykes’ fee of
$1,650.00, for a total request of $24,838.44. Because counsel paid the filing fee, petitioner had
no costs.
On November 14, 2017, respondent filed a response to petitioner’s motion explaining he
is satisfied that this case meets the statutory requirements for an award of attorneys’ fees and
costs under 42 U.S.C. § 300aa-15(e)(1)(A)-(B). Resp. at 2. Respondent “respectfully
recommends that the [undersigned] exercise her discretion and determine a reasonable award for
attorneys’ fees and costs.” Id. at 3.
The Vaccine Act permits an award of “reasonable attorneys’ fees” and “other costs,
incurred in any proceeding on such petition” 42 U.S.C. § 300aa-15(e)(1). It is not necessary
for a petitioner to prevail in the case-in-chief in order to receive a fee award as long as petitioner
brought the claim in “good faith and there was a reasonable basis for the claim.” Id. The
special master has “wide discretion in determining the reasonableness” of attorneys’ fees and
costs. Perreira v. Sec’y of HHS, 27 Fed. Cl. 29, 34 (1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994);
see also Saxton ex rel. Saxton v. Sec’y of HHS, 3 F.3d 1517, 1519 (Fed. Cir. 1993) (“Vaccine
program special masters are also entitled to use their prior experience in reviewing fee
applications.”).
Based on her experience and review of the billing records submitted by petitioner, the
undersigned finds petitioner’s attorneys’ fees and costs request reasonable. Therefore, the
undersigned GRANTS petitioner’s Motion for Attorneys’ Fees and Costs.
Accordingly, the court awards $24,838.44, representing attorneys’ fees and costs. The
award shall be in the form of a check made payable jointly to petitioner and Jeffrey S. Pop &
Associates in the amount of $24,838.44.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court is directed to enter judgment herewith. 2
IT IS SO ORDERED.
Dated: November 16, 2017 s/ Laura D. Millman
Laura D. Millman
Special Master
2
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or
jointly, filing a notice renouncing the right to seek review.
2