Vakalis v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 15-134V
Filed: June 16, 2017
* * * * * * * * * * * * * * * Special Master Sanders
AMY LYNN VAKALIS, *
* Attorneys’ Fees and Costs;
Petitioner, * Reasonable Amount Requested.
*
*
v. *
*
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * *
Andrew M. Krueger, Krueger & Hernandez, S.C., Middleton, WI, for Petitioner.
Lara A. Englund, United States Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On February 10, 2015, Amy Lynn Vakalis (“Petitioner”) petitioned for compensation under
the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (2012).2
Petitioner alleged that the administration of Gardasil vaccines administered on December 15, 2006;
February 12, 2007; and an unrecorded third date of vaccination, caused her to develop premature
ovarian failure (“POF” or “POI”). Petition at Preamble, ECF No. 1. On February 7, 2017, the
undersigned issued an Order Concluding Proceedings pursuant to the parties’ Joint Stipulation of
1
This decision shall be posted 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), a party has 14 days to identify and move to delete medical or other information that
satisfies the criteria in § 300aa-12(d)(4)(B). Further, consistent with the rule requirement, a
motion for redaction must include a proposed redacted decision. If, upon review, the
undersigned agrees that the identified material fits within the requirements of that provision, such
material will be deleted from public access.
2
The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L.
No. 99-660, 100 Stat. 3758, codified as amended, 42 U.S.C. §§ 300aa-10 et seq. (2012)
(hereinafter “Vaccine Act” or “the Act”). Hereinafter, individual section references will be to 42
U.S.C. § 300aa of the Act.
1
Dismissal. Order Concluding Proceedings, ECF No. 31.
On June 5, 2017, Petitioner filed an application for attorneys’ fees and costs. Petitioner
requested attorneys’ fees in the amount of $25,817.60 and attorneys’ costs in the amount of
$2,251.42. See Pet’r’s Mot. Att’ys’ Fees and Costs, ECF No. 35. Respondent indicated that “[t]o
the extent the Special Master is treating [P]etitioner’s request for attorneys’ fees and costs as a
motion that requires a response from [R]espondent . . . Respondent is satisfied the statutory
requirements for an award of attorneys’ fees and costs are met in this case.” Resp’t’s Resp. at 2
(June 6, 2017), ECF No. 36. Respondent recommended that the undersigned exercise her
discretion and determine a reasonable award for attorneys’ fees and costs. Id. at 3. Petitioner filed
a reply shortly thereafter reiterating her argument for an award of attorneys’ fees and costs. Pet’r’s
Reply (June 6, 2017), ECF No. 37.
The undersigned has reviewed Petitioner’s counsel’s detailed records of time and expenses
incurred in this case, and they are reasonable.3 In accordance with the Vaccine Act, 42 U.S.C. §
300aa-15(e) (2012), the undersigned finds that Petitioner is entitled to attorneys’ fees and costs.
Accordingly, the undersigned hereby awards the amount of $28,069.02,4 in the form of a
check made payable jointly to Petitioner and Petitioner’s counsel, Andrew M. Krueger, of
Krueger & Hernandez, S.C. 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.5
IT IS SO ORDERED.
s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master
3
The undersigned finds the requested rates of attorneys Mark Krueger and Andrew Krueger, as
well as paralegal Renee Nehring, reasonable. Furthermore, these rates are consistent with the
rates recently awarded by other special masters in the program. See Herrera v. Sec’y of Health
& Human Servs., No. 15-651V, 2017 WL 1459002 (Fed. Cl. Spec. Mstr. Mar. 29, 2017); Rivera
v. Sec’y of Health & Human Servs., No. 15-487V, 2017 WL 2460690 (Fed. Cl. Spec. Mstr. Apr.
20, 2017).
4
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).
5
Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to
seek review. Vaccine Rule 11(a).
2