Polk v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-729V
Filed: February 14, 2017
UNPUBLISHED
* * * * * * * * * * ** *
RANDY POLK, *
*
Petitioner, * Attorneys’ Fees and Costs;
* Reasonable Amount to
v. * Which Respondent Does
* Not Object.
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * *
Andrew Donald Downing, Esq., Van Cott & Talamante, PLLC, Phoenix, AZ, for petitioner.
Lisa Ann Watts, Esq., US Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
Roth, Special Master:
On June 21, 2016, Randy Polk (“Mr. Polk” or “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 he suffered neurological injuries which
include transverse myelitis (“TM”), paraplegia, and acute neurogenic bladder dysfunction, as a
result of receiving an influenza (“flu”) vaccine on September 9, 2013. On February 1, 2017, the
1
Because this unpublished decision contains a reasoned explanation for the action in this case,
the undersigned intends 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,
the undersigned agrees that the identified material fits within this definition, the undersigned 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 “§” references to the Vaccine Act will be to the pertinent
subparagraph of 42 U.S.C. § 300aa (2012).
undersigned issued a decision awarding compensation to petitioner based on the parties’
stipulation. (ECF No. 18).
On February 2, 2017, petitioner filed a motion for attorneys’ fees and costs. (ECF No.
20). Petitioner requests attorneys’ fees in the amount of $11,318.00, attorneys’ costs in the
amount of $568.08, for a total amount of $11,886.08. Id. In accordance with General Order #9,
petitioner’s counsel represents that petitioner incurred no out-of-pocket expenses.
On February 25, 2017, respondent filed a response stating respondent has no objection to
petitioner’s motion. (ECF No. 25).
The Vaccine Act permits an award of reasonable attorneys’ fees and costs. § 15(e).
Based on the reasonableness of petitioner’s request and the lack of opposition from respondent,
the undersigned GRANTS petitioner’s motion for attorneys’ fees and costs.
Accordingly, the undersigned awards the total of $11,886.083 as a lump sum in the
form of a check jointly payable to petitioner and petitioner’s counsel, Andrew Downing.
The clerk of the court shall enter judgment in accordance herewith.4
IT IS SO ORDERED.
s/Mindy Michaels Roth
Mindy Michaels Roth
Special Master
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), entry of judgment can be expedited by the parties’ joint filing
of notice renouncing the right to seek review.
2