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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-485V
(not to be published)
KEITH COUSENS,
Chief Special Master Corcoran
Petitioner,
v. Filed: February 23, 2021
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Attorney’s Fees and Costs
Respondent.
Alison H. Haskins, Maglio Christopher & Toale, PA, Sarasota, FL, for Petitioner.
Traci R. Patton, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On April 2, 2019, Keith Cousens 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 he suffered Guillain-Barré Syndrome as a result of
his influenza vaccine received him on September 23, 2017. (Petition at 1-4). On
November 6, 2020, a decision was issued awarding compensation to Petitioner based on
the Respondent’s proffer. (ECF No. 42).
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Because this unpublished Decision contains a reasoned explanation f or the action in this case, I am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).
Petitioner has now filed a motion for attorney’s fees and costs, dated February 11,
2021 (ECF No. 47), requesting an award of $75,508.34 (representing $73,753.60 in fees
and $1,754.74 in costs). In accordance with General Order No. 9, Petitioner filed a signed
statement indicating that he has incurred out-of-pocket expenses in the amount of $3.92.
(ECF No. 47-3). Respondent reacted to the motion on February 16, 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. 48). On February 17, 2021, Petitioner filed a reply requesting fees
and costs be awarded in full. (ECF No. 49).
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 $75,512.26 3
as follows:
• A lump sum of $75,508.34, representing reimbursement for
attorneys’ fees and costs, in the form of a check payable jointly to
Petitioner and Petitioner’s counsel;
• A lump sum of $3.92, representing reimbursement for Petitioner’s
costs, in the form of a check payable to Petitioner; and
• Petitioner requests check 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
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 fees for 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
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3