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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 14-556V
Filed: October 6, 2015
* * * * * * * * * * * * * * * * UNPUBLISHED
JOEL VESSEY, *
* Special Master Gowen
Petitioner, *
*
v. * Attorneys’ Fees and Costs.
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * * * * *
Ronald C. Homer, Conway, Homer & Chin-Caplan, P.C., Boston, MA, for petitioner.
Althea W. Davis, United States Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On June 30, 2014, Joel Vessey (“petitioner”) filed a petition pursuant to the National
Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-1 to -34 (2012). Petitioner alleged
that as a result of receiving an influenza vaccination on October 24, 2011, he suffered a shoulder
injury related to vaccine administration. See Petition at Preamble, docket no. 1, filed June 30, 2014.
On September 26, 2014, respondent filed a Rule 4(c) Report in which she conceded that petitioner
was entitled to compensation under the terms of this Act. See Respondent’s Report at 2, docket
no. 9, filed Sept. 26, 2014. A ruling on entitlement was issued on February 12, 2015, finding that
1
Because this decision contains a reasoned explanation for the undersigned’s action in this case,
the undersigned intends to post this ruling on the website of the United States Court of Federal
Claims, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat.
2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). As provided by Vaccine Rule
18(b), each party has 14 days within which to request redaction “of any information furnished by
that party: (1) that is a trade secret or commercial or financial in substance and is privileged or
confidential; or (2) that includes medical files or similar files, the disclosure of which would
constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b).
2
The National Vaccine Injury Compensation Program is set forth in Part 2 of the National
Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended,
42 U.S.C. §§ 300aa-1 to -34 (2006) (Vaccine Act or the Act). All citations in this decision to
individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa.
1
petitioner was entitled to compensation. Thereafter, the parties informally resolved the amount of
petitioner’s compensation, and on March 16, 2015, respondent filed a proffer on damages. A
decision awarding petitioner a lump sum in the amount of $80,000, pursuant to the terms of the
proffer, was issued on March 17, 2015. See Decision, docket no. 20, filed Mar. 17, 2015. Judgment
entered on April 6, 2015.
On August 25, 2015, petitioner filed a motion for attorneys’ fees and costs. On September
1, 2015, respondent filed a motion to stay the proceedings on petitioner’s fee application, stating
that further proceedings would be duplicative of the parties’ efforts in McCulloch v. Sec’y of HHS,
No. 09-293, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). See Motion to Stay, docket
no. 26, filed Sept. 1, 2015. In McCulloch, the parties litigated requested hourly rates for the
attorneys at Conway, Homer & Chin-Caplan (“CHC”). On September 1, 2015, the undersigned
issued a decision in McCulloch, setting forth reasonable hourly rates for the attorneys at CHC.
Thereafter, the undersigned denied respondent’s motion to stay the proceedings in this matter, and
ordered petitioner to file an amended motion for attorneys’ fees and costs, consistent with the rates
established in McCulloch. See Order, docket no. 27, filed Sept. 1, 2105. Petitioner filed an
amended motion for attorneys’ fees and costs on September 3, 2015.
On October 5, 2015, respondent filed a response to petitioner’s amended motion for
attorneys’ fees and costs, stating that “while [she] disagrees with the analysis and findings in
[McCulloch], respondent has determined that her resources are not wisely used by continuing to
litigate the issues addressed in that decision.” Response to Amended Motion at 2, docket no. 31,
filed Oct. 5, 2015. Accordingly, respondent indicated that she “defers to the special master’s
statutory discretion in determining a reasonable fee award for this case.” Id. at 2.
Petitioner here requests a total award of attorneys’ fees and costs in the amount of
$21,703.29. Amended Motion at 2, docket no. 28, filed Sept. 3, 2015. This amount includes
attorneys’ fees in the amount of $20,137.10, and attorneys’ costs in the amount of $1,216.19. Id.
at 1. Additionally, in accordance with General Order #9, petitioner represents that he incurred
reimbursable costs in pursuit of this claim in the amount of $350.00. Id.
The Vaccine Act permits an award of reasonable attorneys’ fees and costs. 42 U.S.C. § 300
aa-15(e). Based on the reasonableness of petitioner’s request, which is consistent with the rates
and reasoning established in McCulloch, the undersigned GRANTS the request for approval and
payment of attorneys’ fees and costs.
Accordingly, an award should be made as follows:
(1) in the form of a check jointly payable to petitioner and to petitioner’s attorneys
at Conway, Homer & Chin-Caplan, in the amount of $21,353.29; and
(2) in the form of a check payable to petitioner only, Joel Vessey, pursuant to General
Order No. 9, in the amount of $350.00.
2
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the
court SHALL ENTER JUDGMENT in accordance herewith.3
IT IS SO ORDERED.
s/ Thomas L. Gowen
Thomas L. Gowen
Special Master
3
Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of
notice renouncing the right to seek review.
3