Tyrell v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 15-870V
Filed: June 9, 2017
NOT TO BE PUBLISHED
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LEAH TYRELL, *
*
Petitioner, *
v. *
* Attorneys’ Fees and Costs
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
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Howard Scott Gold, Gold Law Firm, LLC, Wellesley Hills, MA, for petitioner.
Voris Edward Johnson, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
Hastings, Special Master:
On August 13, 2015, petitioner 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 alleged that she suffered a reaction to her Meales-Mumps-
Rubella (“MMR”) vaccination administered on August 23, 2012. On May 9, 2017, I
issued a decision awarding compensation to petitioner based on the parties’ stipulation.
(ECF No. 40.)
On May 21, 2017, petitioner filed a motion for attorneys’ fees and costs. (ECF
No. 44). Petitioner requests attorneys’ fees in the amount of $20,577.75 and attorneys’
costs in the amount of $7,922.34, for a total amount of $28,500.09. (Id. at 8-9.) In
1 Because this unpublished decision contains a reasoned explanation for the action in this case, I intend
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). 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.
2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
accordance with General Order #9, petitioner’s counsel represents that petitioner
incurred no out-of-pocket expenses. On May 24, 2017, respondent filed a response to
petitioner’s motion. (ECF No. 45).
In his response, respondent argues that “[n]either the Vaccine Act nor Vaccine
Rule 13 contemplates any role for respondent in the resolution of a request by a
petitioner for an award of attorneys’ fees and costs.” Id. at 1. Respondent adds,
however, that he “is satisfied the statutory requirements for an award of attorneys’ fees
and costs are met in this case.” Id. at 2. Respondent “respectfully recommends that
the Chief Special Master exercise his discretion and determine a reasonable award for
attorneys’ fees and costs.” Id. at 3.
I have reviewed the billing records submitted with petitioner’s request. I
determined that a single invoice for $2.00 for medical records obtained from Rite Aid
was included in this fee application in error.3 In my experience the request otherwise
appears reasonable, and I find no cause to reduce the requested hours or rates.
The Vaccine Act permits an award of reasonable attorneys’ fees and costs.
§ 15(e). Based on the reasonableness of petitioner’s request, I GRANT petitioner’s
motion for attorneys’ fees and costs in the reduced amount of $28,498.09.
Accordingly, the undersigned awards the total of $28,498.094 as a lump
sum in the form of a check jointly payable to petitioner and petitioner’s counsel
Howard Scott Gold, Esq.
The clerk of the court shall enter judgment in accordance herewith.5
IT IS SO ORDERED.
/s/ George L. Hastings, Jr.
George L. Hastings, Jr.
Special Master
3No Rite Aid records were filed in this case, and the patient name listed on the invoice is that of another
vaccine petitioner also represented by Mr. Gold.
4This 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).
5 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
2