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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-1663V
Filed: August 20, 2019
UNPUBLISHED
WENDI WALTER and PHILLIP
WALTER, on behalf of M.W., a minor
child,
Special Processing Unit (SPU);
Petitioner, Attorneys’ Fees and Costs
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Diana Lynn Stadelnikas, Maglio Christopher & Toale, PA, Sarasota, FL, for petitioner.
Colleen Clemons Hartley, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
Dorsey, Chief Special Master:
On November 2, 2017, 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”). Petitioners allege that their minor child, M.W., suffered an
intussusception as a result of his Rotarix, Prevnar 13, HiB, DTaP, Hepatitis B and IPV
vaccinations received on October 26, 2016. See Petition at 1-2. On March 15, 2019,
the undersigned issued a decision awarding compensation to petitioner based on the
parties’ stipulation. ECF No. 39.
1 The undersigned intends to post this decision on the United States Court of Federal Claims' website.
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, the
undersigned agrees that the identified material fits within this definition, the undersigned will redact such
material from public access. Because this unpublished decision contains a reasoned explanation for the
action in this case, the undersigned is 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).
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).
On July 19, 2019, petitioner filed a motion for attorneys’ fees and costs. ECF No.
45. Petitioner requests attorneys’ fees in the amount of $23,700.30 and attorneys’
costs in the amount of $1,544.48. Id. at 1. Petitioners requests attorneys’ fees incurred
to establish the conservatorship in the amount of $982.00 and for the state-required
Guardian Ad Litem, in the amount of $100.00.3 Id. at 1, 2. Additionally, in compliance
with General Order #9, petitioner filed a signed statement indicating that petitioner
incurred $54.00 in out-of-pocket expenses. Thus, the total amount requested is
$26,380.78.
On July 19, 2019, respondent filed a response to petitioner’s motion. ECF No.
46. Respondent argues that “[n]either the Vaccine Act nor Vaccine Rule 13 requires
respondent to file a response to a request by a petitioner for an award of attorneys’ fees
and costs.” Id. at 1. Respondent adds, however, that he “is satisfied the statutory
requirements for an award of attorneys’ fees and costs are met in this case.” Id. at 2.
Respondent “respectfully recommends that the Chief Special Master exercise her
discretion and determine a reasonable award for attorneys’ fees and costs.” Id. at 3.
On July 23, 2019, petitioner filed a reply. ECF No. 47. Petitioner disputes
respondent’s position that he has no role in resolving attorneys’ fees and costs and
further reiterates his view that his attorneys’ fees and costs in this case are reasonable.
The undersigned has reviewed the billing records submitted with petitioner’s
request. In the undersigned’s experience, the request appears reasonable, and the
undersigned finds no cause to reduce the requested hours or rates.
The Vaccine Act permits an award of reasonable attorneys’ fees and costs. §
15(e). Based on the reasonableness of petitioner’s request, the undersigned GRANTS
petitioner’s motion for attorneys’ fees and costs.
Accordingly, the undersigned awards the total of $26,380.784 as follows:
• A lump sum of $25,244.78, representing reimbursement for
attorneys’ fees and costs, in the form of a check payable jointly to
petitioner and petitioner’s counsel, Diana Lynn Stadelnikas;
3 Petitioner’s motions states that the total cost incurred for the conservatorship was $1,787.00. Counsel
for petitioner paid the retainer of $805.00 and is seeking reimbursement in counsel’s costs. ECF No. 45
at 1.
4This 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).
2
• A lump sum of $982.00, representing reimbursement for attorneys’
costs regarding the conservatorship, in the form of a check payable
to Jonathan Watson and petitioner;
• A lump sum of $100.00, representing reimbursement for attorney
costs for the conservatorship, in the form of a check payable to
petitioner and Kevin Kusta;
• A lump sum of $54.00, representing reimbursement for petitioner’s
costs, in the form of a check payable to petitioner; and
• Petitioner requests all checks be forwarded to Maglio Christopher &
Toale, PA, 1605 Main Street, Suite 710, Sarasota Florida 34236.
The clerk of the court shall enter judgment in accordance herewith. 5
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
5 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
3