Jewell v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 11-138V
Filed: December 9, 2016
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DAVID JEWELL and WANDA JEWELL *
parents of L.J., deceased, * UNPUBLISHED
*
* Special Master Hamilton-Fieldman
Petitioners, *
*
v. * Attorneys’ Fees and Costs;
* Reasonable Amount Requested.
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
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Ronald C. Homer, Conway, Homer & Chin-Caplan, P.C., Boston, MA, for Petitioners.
Glenn A. MacLeod, United States Department of Justice, Washington, DC, for Respondent.
DECISION1
On March 7, 2011, David Jewell and Wanda Jewell (“Petitioners”) petitioned for
compensation on behalf of their deceased child, L.J., under the National Childhood Vaccine
Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (2012). Petitioners alleged that the
administration of hepatitis B (“hep B”), inactivated polio (“IPV”), diphtheria-tetanus-acellular-
pertussis (“dtap”), haemophilus influenza type b (“HIB”), pneumococcal conjugate (“PCV”), and
rotavirus vaccines on April 8, 2009 resulted in the death of L.J. on April 9, 2009. Am. Petition at
Preamble, filed Apr. 3, 2012. An entitlement hearing was held on June 26 and 27, 2014. On
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 purposes espoused in the E-Government Act of 2002. See 44
U.S.C. § 3501 (2012). 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).
August 29, 2016, a decision on entitlement was issued, dismissing this case for insufficient
proof.
On November 22, 2016, Petitioners filed an application for attorneys’ fees and costs.
Petitioners requested attorneys’ fees in the amount of $70,370.40. See Petitioners’ Application at
1, filed Nov. 22, 2016. Petitioners requested attorneys’ costs in the amount of $27,663.17, and
also requested costs personally incurred in the course of this litigation in the amount of $350.00.
Id. Respondent indicated that “[t]o the extent the special master is treating petitioners’ request
for attorneys’ fees and costs as a motion that requires a response from respondent, respondent . . .
is satisfied that the statutory requirements for an award of attorneys’ fees and costs are met in
this case.” Respondent’s Response at 2, filed Nov. 30, 2016. Respondent requested that the
undersigned exercise her discretion and determine a reasonable award for attorneys’ fees and
costs. Id. at 3.
The undersigned has reviewed Petitioners’ counsel’s detailed records of time and
expenses incurred in this case, and they are reasonable. Petitioners’ request for costs personally
incurred is also reasonable. In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e)
(2012), the undersigned finds that Petitioners’ are entitled to attorneys’ fees and costs.
Accordingly, the undersigned hereby awards the amount of $98,033.57, in the form of a
check made payable jointly to Petitioners and Petitioners’ counsel, Ronald C. Homer, of
Conway, Homer & Chin-Caplan, P.C.; and the amount of $350.00, in the form of a check
made payable to Petitioners only. 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.2
IT IS SO ORDERED.
/s/Lisa D. Hamilton-Fieldman
Lisa D. Hamilton-Fieldman
Special Master
2
Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to
seek review. Vaccine Rule 11(a).