Elliott v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-512V

BROOKE ELLIOTT, Chief Special Master Corcoran Petitioner, v. Filed: April 19, 2024

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

Jessica Olins, Maglio Christopher & Toale, PA, Washington, DC, for Petitioner.

Mallori Browne Openchowski, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEY’S FEES AND COSTS 1

On January 11, 2021, Brooke Elliott 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 shoulder injury related to vaccine administration caused by an influenza vaccine administered on October 8, 2019. Petition, ECF No. 1. On January 10, 2024, I issued a decision awarding compensation to Petitioner based on the parties’ stipulation. ECF No. 43.

1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government Services). This means the Decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other inf ormation, 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 f rom public access. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease

of citation, all section ref erences to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018). Petitioner has now filed a motion for attorney’s fees and costs, requesting an award of $35,680.69 (representing $34,584.80 in fees plus $1,095.89 in costs). Application for Fees and Costs (“Motion”) filed Feb. 28, 2024, ECF No. 47. Furthermore, counsel for Petitioner represents that Petitioner incurred $10.20 in personal out-of-pocket expenses. Id. at 2. Respondent did not file a response to Petitioner’s Motion thereafter.

The rates requested for work performed through the end of 2023 are reasonable and consistent with our prior determinations, and will therefore be adopted. Petitioner has also requested the hourly rate of $480 per hour for 2024 work performed by Attorney Danielle Strait, representing an increase of $30; the rate of $355 per hour for 2024 work performed by Jessica Olins, representing an increase of $35; and the rate of $190 per hour for paralegal work performed in 2024. I find these rates to be reasonable and will award the attorney’s fees requested. And all time billed to the matter was also reasonably incurred. Furthermore, Petitioner has provided supporting documentation for all claimed costs. ECF No. 47-3. Respondent offered no specific objection to the rates or amounts sought.

The Vaccine Act permits an award of reasonable attorney’s fees and costs for successful claimants. Section 15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. Accordingly, Petitioner is awarded the total amount of $35,690.89 3 as follows:

• A lump sum of $35,680.69, representing reimbursement for fees and costs, in the form of a check payable jointly to Petitioner and Petitioner’s counsel, and

• A lump sum of $10.20, representing reimbursement for Petitioner’s costs, in the form of a check payable to Petitioner.

Per Petitioner’s request, the check is to be forwarded to Maglio Christopher and Toale Law: 1605 Main Street, Suite 710, Sarasota Florida 34236. In the absenc e

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 f ees f or 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).

2 of a timely-filed motion for review (see Appendix B to the Rules of the Court), the Clerk of Court shall enter judgment in accordance with this Decision. 4

IT IS SO ORDERED.

s/Brian H. Corcoran Brian H. Corcoran Chief Special Master

4 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by f iling a joint notice renouncing their right to seek review. 3