Pullens v. Secretary of Health and Human Services ( 2014 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
******************** *
TIARA PULLENS, *
* No. 13-173V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: October 14, 2014
*
SECRETARY OF HEALTH * Attorneys’ fees and costs, interim
AND HUMAN SERVICES, * award, amount which is not disputed.
*
Respondent. *
******************** *
Nicholas E.Bunch, White, Getgey & Meyer, Cincinnati, OH, for petitioner;
Jennifer L. Reynaud, United States Dep’t of Justice, Washington, D.C., for
respondent.
UNPUBLISHED DECISION ON INTERIM ATTORNEYS’ FEES AND COSTS1
Tiara Pullens claims that the influenza (“flu”) vaccine she received on
November 16, 2010, caused her to suffer dermatomyositis. Ms. Pullens seeks
compensation pursuant to the National Childhood Vaccine Injury Act, 42 U.S.C.
§§ 300aa-10 et seq. (2006). Her case remains pending.
Ms. Pullens is now awarded, on interim basis, attorneys’ fees and costs in
the total amount of $40,881.69. See Avera v. Sec’y of Health & Human Servs.,
515 F.3d 1343, 1352 (Fed. Cir. 2008).
On September 23, 2014, Ms. Pullens filed an application for an award of
interim attorneys’ fees and reimbursement of costs, seeking a total of $45,201.59.
This request includes work performed by Ms. Pullen’s attorney, Nicholas E.
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.
Bunch, through July 18, 2014, as well as fees from her expert, Dr. M. Eric
Gershwin. On October 3, 2014, petitioner filed a joint stipulation of fact stating
that the parties have agreed to the (reduced) amount of $40,881.69 for interim
attorney’s fees and costs to be awarded to Ms. Pullens and to which respondent
will not object.
Regardless of whether they entitled to compensation, petitioners who bring
their petition in good faith and who have a reasonable basis for the petition may be
awarded attorneys’ fees and costs. See 42 U.S.C. § 300aa–15(e)(1). Respondent
does not contend that Ms. Pullens fails to satisfy this standard. Thus, Ms. Pullens
is entitled to an award of attorneys’ fees and costs.2
After a determination that Ms. Pullens is entitled to an award of attorneys’
fees and costs, the next question is to decide the reasonable amount. A review of
the materials offered in support of the motion for interim attorneys’ fees and costs
indicates that the (reduced) requested amount is reasonable. Therefore, Ms.
Pullens is awarded the amount to which respondent did not object.
There is no just reason to delay the entry of judgment on interim attorneys’
fees and costs. Therefore, in the absence of a motion for review filed under RCFC
Appendix B, the clerk of court shall enter judgment in petitioner’s favor. Those
fees and costs are awarded as follows:
A lump sum payment of $40,881.69, in the form of a check payable to
petitioner and petitioner’s counsel of record, Nicholas E. Bunch.
The Clerk shall enter judgment accordingly.3 The court thanks the parties
for their cooperative efforts in resolving this matter.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
2
The finding that the petition was supported by good faith and reasonable basis is not
intended to suggest whether Ms. Pullens is entitled to compensation.
3
Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgment by each
party filing a notice renouncing the right to seek review by a United States Court of Federal
Claims judge.