Cary v. Secretary of Health and Human Services ( 2021 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-0981V
(not to be published)
REBECCA CARY,
Chief Special Master Corcoran
Petitioner,
v. Filed: November 8, 2021
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Attorney’s Fees and Costs
Respondent.
Theodore J. Hong, Maglio, Christopher & Toale PA, Seattle, WA, for Petitioner.
Camille Michelle Collett, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On July 9, 2019, Rebecca Cary 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 received an influenza vaccination on February 27, 2018,
and thereafter suffered from a left-sided shoulder injury related to vaccine administration.
(Petition at 1- 6). On September 27, 2021, a decision was issued awarding compensation
to Petitioner based on the Respondent’s proffer. (ECF No. 49).
1
Because this unpublished Decision contains a reasoned explanation f or the action in this case, I am
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). 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, 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 section ref erences 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 October 13,
2021 (ECF No. 53), requesting an award of $75,259.63 (representing $74,566.60 in fees
and $693.03 in costs). In accordance with General Order No. 9, Petitioner filed a signed
statement indicating that she incurred out-of-pocket expenses in the amount of $7.35.
(ECF No. 53-3). Respondent reacted to the motion on October 27, 2021, indicating that
he is satisfied that the statutory requirements for an award of attorney’s fees and costs
are met in this case, but deferring resolution of the amount to be awarded to my discretion.
(ECF No. 54). On October 27, 2021, Petitioner filed a reply requesting the fees and costs
be awarded in full. (ECF No. 55).
I have reviewed the billing records submitted with Petitioner’s request. In my
experience, the request appears reasonable, and I find no cause to reduce the requested
hours or rates.
The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section
15(e). Accordingly, Petitioner is awarded the total amount of $75,266.98 3 as follows:
• A lump sum of $75,259.63, representing reimbursement for attorneys’
fees and costs, in the form of a check payable jointly to Petitioner and
Petitioner’s counsel; and
• A lump sum of $7.35, representing reimbursement for Petitioner’s
costs, in the form of a check payable to Petitioner.
• Petitioner requests checks be forwarded to Maglio Christopher &
Toale, PA, 1605 Main Street, Suite 710, Sarasota, Florida 34236.
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. 4
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3
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 f ees f or 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).
4
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by f iling a joint notice
renouncing their right to seek review.
2