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### IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

No. 10

- 261V

Filed: F ebruary 1 1 , 2013

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

JEFFREY TOMPKINS, *

as personal representative of the estate of *

William Bruce Tompkins

, deceased, *

Petitioner, * Stipulation; Interim Attorney Fees

* and Costs.

v. *

*

SECRETARY OF THE DEPARTMENT *

OF HEALTH AND HUMAN SERVICES, *

Responde nt. *

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

Stephen I. Leshner, Esq., Stephen Leshner, P.C., Phoenix, AZ for petitioner.

Lisa Watts, Esq., US Dept. of Justice, Washington, DC, for respondent.

DECISION on INTERIM ATTORNEY FEES and COSTS 1

Vowell

, Special Master:

On A pril 28, 2010

, W illiam Tompkins filed a petition for compensation under the

National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa

- 10, et seq. 2 [the

“Vaccine Act” or “Program”]

. After William Tompkins die d , as a result of injuries

suffered in a car accident, petitioner ’ s counsel mo v ed to substitute Jeffrey Tompkins, in

his capacity as personal repres entative of William ’ s estate

, as petitioner

. The motion

was granted on October 25, 2011

.

1 Because this unpublished decision contains a reasoned explanation for the action in this case, I intend

to post this decision on the United States Court of Federal Claims' website, in accordance with the E

Government Act of 2002, Pub. L. No. 107

- 347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44

U.S.C. § 3501 note (2006)). In accordance with Vaccine Rule 18(b), petitioner has 14 days to ide ntify

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, I agree that the identified material fits within the requirements of that provision, I will

delete such material from public access.

2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99

- 660, 100 Stat. 3755 (1986). Hereinafter,

for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C.

§ 300aa (2006).2

On February 8, 2013, the parties filed a Stipulation of Fact Concerning Interim

Attorneys’ Fees and Costs [“Stipulation”]

. Prior to William ’ s death, the parties were

en gaged in settlement n egotiations

, during which petitioner provided respondent wit h a

draft application for attorney fees and costs. Stipulation at ¶ 2. After informal

discussions of the draft application , petitioner now s eeks an amended amount of

$19,000.00

. 3 I d. at ¶ 5. In lieu of filing a General Order #9 Statement , petitioner ’ s

counsel re pre s ents that as of November 8, 2010, petitioner had incurr ed no personal

litigation costs

. I d. at ¶4.

Respondent maintains that the express language of § 15 (e)(1) does not con fer

S pecial Masters with the authority to award interim attorney fees, but “elects not to raise

her stat utory objection at this time in response to this particular request.” Stipulation at

n.1. Respondent cites my decision in B utler v. Sec ’ y, HHS, noting that I considered and

rejected her statutory objection in that case. See No. 0 2

- 1051 , 201 2 WL 4 458203 (Fed.

Cl. Spec. Mstr. J une 25, 2012 ).

I find that petitioner is entitled to an award of interim attorney fees and costs

under the facts and circumstances of this case , and that the a greed upon amount is

reasonable. Accordingly, I hereby award the total of $ 1 9,000.00 issued in the form

of a chec k payable jointly to petitioner and petitioner’ s attorney, S t e phen I.

Leshner

, for interim attorney fees and costs.

In the absence of a motion for review filed under RCFC Appendix B, the clerk of

court shall enter judgment accordingly. 4

IT IS SO ORDERED.

s /Denise K. Vowell

Denise K. Vowell

Special Master

3 This amount covers all attorn ey fees and costs incurred in this case through November 8, 2010

. Stipulation at ¶ 5.

4 Entry of judgment can be expedited by each party’s filing a notice renouncing the right to seek review.

See Vaccine Rule 11(a).