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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-0654V
(not to be published)
DONA KAPLAN, as Executrix of the
Estate of Harold Kaplan, Chief Special Master Corcoran
Petitioner, Filed: February 9, 2021
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Attorney’s Fees and Costs
HUMAN SERVICES,
Respondent.
Mark Theodore Sadaka, Mark T. Sadaka, LLC, Englewood, NJ, for Petitioner.
Ryan Daniel Pyles, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On May 2, 2019, Harold Kaplan filed a petition for compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the “Vaccine
Act”). 3 Mr. Kaplan alleged that as a result of his October 2, 2017 influenza vaccination he
suffered a Shoulder Injury Related to Vaccine Administration. (See Petition at 1). On
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Because this unpublished Decision contains a reasoned explanation f or the action in this case, I am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 “§” ref erences to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
3
Dona Kaplan was substituted as Petitioner in this case on October 26, 2020, following the death of Mr.
Kaplan.
December 10, 2020, a decision was issued awarding compensation to Petitioner based
on the Respondent’s proffer. (ECF No. 37).
Petitioner has now filed a motion for attorney’s fees and costs, dated January 22,
2021 (ECF No. 40), requesting a total award of $22,991.27 (representing $22,276.71 in
fees and $714.56 in costs). In accordance with General Order No. 9, Petitioner filed a
signed statement indicating that no out-of-pocket expenses were incurred. (ECF No. 47).
Respondent reacted to the motion on January 25, 2021, indicating that he is satisfied that
the statutory requirements for an award of attorney’s fees and costs are met in this case
and defers to the Court’s discretion to determine the amount to be awarded. (ECF No.
41). On January 25, 2021, Petitioner filed a reply requesting the Court grant Petitioner’s
motion for attorney’s fees and costs. (ECF No. 43).
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, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. I
award a total of $22,991.27 (representing $22,276.71 in fees and $714.56 in costs) as a
lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel. 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
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