# In the Unit ed States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: June 2 3 , 2021

* * * * * * * * * * * * * *

RUTH GEAR, * UNPUBLISHED

*

Petitioner, * No. 1 8

- 1684 V

* Special Master Gowen

v. *

* Attorneys’ Fees and Costs

SECRETARY OF HEALTH *

AND HUMAN SERVICES, *

*

Respondent. *

* * * * * * * * * * * * * *

Jeffrey S. Pop

, Jeffrey S. Pop & Associates, Beverly Hills, CA

, for Petitioner.

Camille M. Collett , United States Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS 1

On March 26, 2021

, Ruth Gear (“Petitioner”) filed a motion for attorneys’ fees and costs.

Motion for Attorne y Fees and C o sts (“Fees App.”) (ECF No. 50 ). For the reasons discussed below,

I GRANT Petitioner ’ s motion for attorneys’ fees and costs and award a total of $ 37,015.51

.

I. Procedural History

On October 31, 2018

, Petitione r filed a petition in the National Vaccine Injury

Compensation Program

. 2 Petitioner alleged that as a result of receiving a tetanus

- dip h theria

acellular pertussis vaccination on November 13, 2015

, she suffered a right shoulder injury related

to vaccine administration

. See Petition (ECF No. 1). On December 23 , 2020, the parties filed a

proffer , which I adopted as my decision awarding compen sation on the same day . (ECF No. 45 ).

1 I intend to post this Ruling on the United States Court of Federal Claims' website. This means the R uling 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 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. Because this unpublished ruling contains a reasoned explanation for the action in this

case, I am required to post it on the United States Court of Federal Claims' website in acc ordance with the E

Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic

Government Services).

2 The National V accine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injur y Act of 1986, Pub L. No. 99

- 660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa

- 1 to

- 34 (2012) (“Vaccine

Act” or “the Act”). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa.2

On March 26, 2021 , Petitioner filed a motion for final attorneys’ fees. Petition er request s compensation for h er atto rney , Mr. Jeffrey Pop

, i n the total amount of $ 37,015.51 , representing

$ 36,040.50 i n attorneys’ fees and $ 975.01 in costs. Fees App. at 5

. Pursuant to General Order No.

9, Petitioner warrant s s h e has not personally incurred any costs in pursuit of t his claim

. Id.

Respondent reacted to the fees motion on April 9 , 2021

, stating that “Respondent is satisfied the

statutory requirements for an award of attorneys’ fees and costs are met in this case

. ” R esponse at

2

. (ECF No. 51 ). Petitioner did not file a reply thereafter.

The matter is now ripe for adjudication.

II. Analysis

Section 15(e) (1) of the Vaccine Act allows for the Special Master to award “reasonable

attorneys ' fees , and other costs.” § 300aa

– 15(e)(1)(A)

– (B). Petitioners are entitled to an award of

reasonable attorneys ' fees and costs if they are entitled to compens ation under the Vaccine Act, or,

even if they are unsuccessful , they are eligible so long as the Special Master finds that the petition

was filed in good faith and with a reasonable basis. Avera v. Sec'y of Health & Human Servs. , 515

F.3d 1343, 1352 (Fed. Cir. 2008). Here, because Petitioner was awarded compensation pursuant

to a proffer

, s he is entitled to a final award of reasonable attorneys’ fees and costs.

Petitioners “bea[r] the burden of establishing the hours expended, the rates charged, and

the ex penses incurred” are reasonable. Wasson v. Sec'y of Health & Human Servs. , 24 Cl. Ct. 482,

484 (1993). Adequate proof of the claimed fees and costs should be presented when the motion is

filed. Id. at 484 n. 1 . The special master has the discretion to reduce awards sua sponte , independent

of enumerated objections from the respondent. Sabella v. Sec'y of Health & Human Servs. , 86 Fed.

Cl. 201, 208

– 09 (Fed. Cl. 200 9); Savin v. Sec'y of Health & Human Servs

. , 85 Fed. Cl. 313 (Fed.

Cl. 2008), aff'd No. 99

– 537V, 2008 WL 2066611 (Fed. Cl. Spec. Mstr. Apr. 22, 2008).

a. Attorneys’ Fees

I have reviewed the rates requested by P etitioner for the work of his counsel , Mr. Jeff rey Pop and Ms. Kristina Grigorian

, and I find the rates requested herein to be consistent with what

they have previously been awarded for their Vaccine Program work and reasonable in light for the

work performed in this case.

Turning next to review of the submitted billing statement, I find that the overall hours spent

on this matter to be reasonable

. The entries accurately describe the work being performed and the

length of time it took to perform each task and Respondent also has not identified any particular

entries as being objectionable. Therefore, Petitioner is entitled to final attorneys’ fees of

$ 36,040.50

.

b. Attorneys’ Costs

Like attorneys’ fees, a request for reimbursement of costs must be reasonable. Perreira v.

Sec’y of Health & Human Servs. , 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests total3

attorneys’ costs in the amount of $ 975.01 , representing acquisition of medical records, postage,

and the Court’s filing fee . Fees App. Ex. 3, at 2. Petitioner has provided adequate documentation

supporting all of the requested costs, and all appear reasonable in my experience. Petitioner is

therefore entitled to the full amount of costs sought.

III. Conclusion

In accordance with the foregoing, Petitioner ’ s motion for attorneys’ fees and costs is

GRANTED . I find that Petitioner is entitled to a reimbursement of attorneys’ fees and costs as

follows:

Attorneys’ Fees Requested $ 36,040.50

(Reduction of Fees)

- Total Attorneys’ Fees Awarded $ 36,040.50

Attorneys’ Costs Requested $ 975.01

(Reduction of Costs)

- Total Attorneys’ Costs Awarded $ 975.01

Total Attorneys’ Fees and Costs $ 37,015.51

Accordingly, I award a lump sum in the amount of $ 37,015.51

, representing

reimbursement for P etitioner ’ s attorneys’ fees, in the form of a che ck payable to P etitioner

and h er attorney, M r. Jeffrey Pop

. 3

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. 4

IT IS SO ORDERED.

/ s/ Thomas L. Gowen

Thomas L. Gowen

Special Master

3 This amount is in tended to cover all legal expenses incurred in this matter. This award encompasses all charges by

the attorney against a client, “advanced costs,” and fees for legal services rendered. Furthermore, Section 15(e)(3)

prevents an attorney from charging or col lecting 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 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review. Vaccine

Rule 11(a).