Ries v. Secretary of Health and Human Services ( 2015 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
******************* * *
KRISTINA RIES, on behalf of her *
deceased minor child, *
NICKOLAS RIES, * No. 14-1104V
*
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: September 9, 2015
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * Attorneys’ fees and costs; award
* in the amount to which
Respondent. * respondent does not object.
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Andrew Donald Downing, Van Cott & Talamante, PLLC Phoenix, AZ, for
Petitioner;
Ryan Daniel Pyles, U.S. Dep’t of Justice, Washington, DC, for Respondent.
UNPUBLISHED DECISION ON FEES AND COSTS1
On September 8, 2015, petitioner filed a stipulation of fact concerning final
attorneys’ fees and costs in the above-captioned matter. Previously, petitioner
submitted a draft application to respondent for review and after informal
discussions regarding objections raised by respondent, petitioner agreed to amend
her application to seek $25,450.00 for attorneys’ fees and costs. Respondent found
petitioner’s application to be reasonable. The Court awards this amount.
On November 13, 2014, Kristina Ries filed a petition alleging that her minor
child, Nickolas Ries, suffered an adverse reaction to the influenza (“flu”) vaccine
he received on December 11, 2012, and subsequently died as a result. The
1
The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17,
2002), requires that the Court post this decision on its website. Pursuant to Vaccine Rule 18(b),
the parties have 14 days to file a motion proposing redaction of medical information or other
information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special
master will appear in the document posted on the website.
information in the record, however, did not show entitlement to an award under the
Program. Decision, issued August 12, 2015.
Even though compensation was denied, a petitioner who brings her petition
in good faith and who has a reasonable basis for the petition may be awarded
attorneys’ fees and costs. See 42 U.S.C. § 300aa–15(e)(1). Here, counsel for
petitioner spent time gathering medical records and filing affidavits for petitioner.
Counsel consulted an expert and then counsel realized that proof of causation was
lacking and the case could not proceed. At this point, counsel took steps to resolve
this case relatively quickly so as not to increase costs and expenses unnecessarily.
Thus, because petitioner’s counsel acted in good faith and there was a reasonable
basis for proceeding, petitioner is eligible for an award of attorneys’ fees and costs.
Respondent does not contend that petitioner failed to satisfy these criteria.
Petitioner seeks a total of $25,450.00 in attorneys’ fees and costs for her
counsel. Additionally, in compliance with General Order No. 9, petitioner states
that she did not incur any in out-of-pocket litigation expenses while pursuing this
claim. Respondent has no objection to the amount requested for attorneys’ fees
and costs.
After reviewing the request, the Court awards the following:
A lump sum of $25,450.00 in the form of a check made payable to
petitioner and petitioner’s attorney, Van Cott & Talamante, PLLC, for
attorneys’ fees and other litigation costs available under 42 U.S.C. §
300aa-15(e).
The Court thanks the parties for their cooperative efforts in resolving this
matter. The Clerk shall enter judgment accordingly.
Any questions may be directed to my law clerk, Shannon Proctor, at (202)
357-6360.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master