Nute v. Secretary of Health and Human Services ( 2019 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-0140V
Filed: October 25, 2019
UNPUBLISHED
CYNTHIA NUTE,
Chief Special Master Corcoran
Petitioner,
v. Special Processing Unit (SPU);
Attorneys’ Fees and Costs
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA, for petitioner.
Christine Mary Becer, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On January 30, 2018, petitioner 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 alleges that she suffered a shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza vaccination received on September
21, 2016. Petition at 1. On September 6, 2019, a decision was issued by then Chief
Special Master Nora Beth Dorsey awarding compensation to petitioner in the amount of
$125,000.00. (ECF No. 42).
1 Although I have not designated this Decision for publication, it will be made available 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), 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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C.
§ 300aa (2012).
Petitioner has now filed a motion for attorney’s fees and costs, dated September
30, 2019 (ECF No. 46.), requesting a total award of $28,414.94 (representing $26,491.20
in fees plus $1,923.74 in costs). Pursuant to General Order #9, counsel for Petitioner
represents that Petitioner has not incurred out-of-pocket costs in pursuit of this litigation.
Id. Respondent reacted to the motion on October 10, 2019, indicating that he is satisfied
that the statutory requirements for an award of attorney’s fees and costs are met in this
case, and deferring to the Court’s discretion to determine the amount to be awarded.
(ECF No. 47). Petitioner notified my paralegal on October 10, 2019, stating that petitioner
would not be filing a reply. See Informal Remark dated October 22, 2019.
The Vaccine Act permits an award of reasonable attorneys’ fees and costs. §
15(e). I have reviewed the billing records submitted with Petitioner’s initial request, and
based on my discretion and Vaccine Program experience, I find the requested hourly
rates and work performed to be reasonable. I therefore approve the requested amount
for attorney’s fees and costs.
Accordingly, I hereby GRANT Petitioner’s Motion for attorneys’ fees and costs. I
award a total of $28,414.94 (representing $26,491.20 in attorney’s fees and $1,923.74 in
costs) as a lump sum in the form of a check jointly payable to Petitioner and her counsel,
Maximillian J. Muller, Esq. 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 filing a joint notice
renouncing their right to seek review.
2