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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 09-180V
(Not to be published)
*****************************
*
JUSTIN W. GERHARDT, *
*
Petitioner, * Filed: November 5, 2014
*
v. * Decision; Interim Attorneys’
* Fees & Costs
SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
*
Respondent. *
*
*****************************
Richard Gage, Richard Gage, P.C., Cheyenne, WY, for Petitioner.
Julia McInerny, U.S. Dep’t of Justice, Washington, D.C., for Respondent.
INTERIM ATTORNEYS’ FEES AND COSTS DECISION1
On March 23, 2009, Justin Gerhardt filed a petition seeking compensation under the
National Vaccine Injury Compensation Program.2 After Petitioner filed medical records in
support of his claim, Respondent indicated (in a Rule 4(c) Report filed on August 28, 2009) that
Petitioner had failed to provide preponderant evidence that the tetanus-diphtheria, measles-
mumps-rubella, meningococcal, hepatitis A, hepatitis B, and trivalent flu vaccinations that he
received on January 22, 2007 caused his alleged injuries. See Respondent’s Rule 4(c) Report,
(ECF No. 15) at 2, 14. The parties subsequently attempted to resolve this matter informally for
1
Because this ruling contains a reasoned explanation for my action in this case, it will be posted 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 42 U.S.C. §
300aa-12(d)(4)(B), however, the parties may object to the inclusion of certain kinds of confidential information. To
do so, Vaccine Rule 18(b) provides that 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). Otherwise, the ruling will be available to the public.
Id.
2
The National Vaccine Injury Compensation Program comprises 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.A. ' 300aa-10 – 34 (2006))
[hereinafter “Vaccine Act” or “the Act”]. Individual sections references hereafter will be to ' 300aa of the Act.
over three years, to no avail. See Order (ECF No. 71) at 1. After filing an expert report on
November 1, 2013 (ECF No. 84), Petitioner filed a request for an award for interim attorneys’
fees and costs on November 7, 2013 seeking $127,531.07 (Application for Award of Interim
Attorney’s Fees and Reimbursement of Costs (ECF No. 86) at 1), which Respondent opposed
(Response to Motion for Attorneys’ Fees (ECF No. 87) at 8). On January 15, 2014, Respondent
filed a supplemental Rule 4(c) Report as well as a request for a ruling on the record (ECF No.
90) to which Petitioner subsequently responded (ECF No. 91). Petitioner then filed a
supplemental expert report. ECF No. 94. Thereafter, on August 29, 2014, I issued a ruling
finding that Petitioner had established that he was entitled to compensation for his encephalitis
and related illnesses. Ruling on Entitlement (ECF No. 95) at 17. I also issued a separate damages
order at that time. Damages Order (ECF No. 96).
On September 12, 2014, Petitioner filed a renewed motion for an award of interim
attorneys’ fees and costs requesting $131,907.82. ECF No. 97. During a status conference on
October 1, 2014, I asked the parties to confer regarding Petitioner’s pending and renewed
motions of interim attorneys’ fees and costs to see if settlement of this issue was feasible. Order
(ECF No. 99) at 1.
Thereafter, on October 4, 2014, the parties filed a stipulation regarding attorney’s fees
and costs. ECF No. 101. The parties now agree that Petitioner’s counsel should receive a lump
sum of $125,307.87, for all interim attorneys’ fees and costs to date in the form of a check
payable to Petitioner and Petitioner’s counsel. This amount represents a sum to which
Respondent does not object. In addition, in compliance with General Order #9, Petitioner’s
attorney has noted that Petitioner is not seeking interim out-of-pocket expenses at this time.
I approve the requested amount for interim attorneys’ fees and costs as reasonable, given
the history of this matter and its complexity. Accordingly, an award of $125,307.87 should be
made in the form of a check payable jointly to Petitioner and Petitioner’s counsel, Richard Gage,
Esq. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the
court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation.3
IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran
Special Master
3
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either jointly or
separately) a notice renouncing their right to seek review.
2