1 

# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 13

- 1017 V

Filed: November 4, 2016

* * * * * * * * * * * * * UNPUBLISHED

DANA M. BRASHER

, *

* Special Master Gowen

Petitioner, *

* Attorneys’ Fees and Costs

v. *

*

SECRETARY OF HEALTH *

AND HUMAN SERVICES, *

*

Respondent. *

*

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

Andrew D. Downing , Van Cott & Talamante, PLLC, Phoenix, AZ , for petitioner.

Traci R. Patton , United States Department of Justice, Washington, DC, for respondent.

DECISION ON ATTORNEY S ' FEES AND COSTS 1

On December 26, 2013

, Dana M. Brasher (“petitioner”) filed a petition pursuant to the

National Vaccine Injury Compensation Program. 2 Petitioner alleged that as a result of receiving

an influenza (“flu”) vaccine on November 28, 2012, she suffered a significant lesion,

complications with her l eft shoulder and arm, immune system dysregulation, and polyglandular

autoimmune syndrome (“PGA”). Petition at 1. Over the course of the litigation, petitioner no

longer alleged that the flu vaccine caused her to suffer PGA, and instead alleged that she s uffered

from pyoderma gangrenosum as a result of the vaccination. Petitioner further alleged that she

experienced residual effects of her injuries for more than six months.

1 Because this decision contains a reasoned explanation for the undersigned’s action in this case, the

undersigned intends to post this ruling on the website of the United States Court of Federal Claims, in

accordance with the E

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

Promotion of Electronic Government Services). As provided by Vaccine Rule 18(b), each party has 14

days within which to request redaction “of any information furnished by that party: (1) that is a trade

sec ret or commercial or financial in substance and is privileged or confidential; or (2) that includes

medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of

privacy.” Vaccine Rule 18(b).

2 The National Vac cine Injury Compensation Program is set forth in Part 2 of the National Childhood

Vaccine Injury Act of 1986, Pub. L. No. 99

- 660, 100 Stat. 3755, codified as am ended, 42 U.S.C. §§

300aa

- 1 to 34 (2012) (Vaccine Act or the Act). All citations in this decisi on to individual sections of the

Vaccine Act are to 42 U.S.C.A. § 300aa.2

On June 7, 2016, the parties filed a stipulation in which they stated that a decision should

be entered awarding compensation, and a Decision awarding compensation pursuant to the terms

of the stipulation was issued that same day

. The parties also stipulated to an award of attorneys’

fees and costs in the amount of $109,315.00, an d the Decision awarded fees and costs in that

amount

. Judgment entered on the Decision awarding petitioner’s compensation and attorneys’

fees and costs on June 17, 2016.

On October 18, 2016, petitioner filed a motion for additional costs. Petitioner states :

[d]espite attempting to contact Petitioner’s expert prior to

submitting Petitioner’s request for fees and expenses, a portion of

Petitioner’s expert fees were unbilled by Dr. Carson for his work in

responding to Respondent’s expert report. The ad ditional amount

billed and paid was $1,200.00 . . . . Petitioner has consulted with

Respondent’s Counsel, who does not object to an additional award

of costs in this matter to cover the reimbursement to Dr. Carson.

Petitioner’s Supplemental Motion at 1. Petitioner notes that Dr. Carson “had retired and moved

to Europe subsequent to his rendering of his response to Respondent’s Expert, and only just

recently contacted Petitioner as to the additional amount billed.” Id. at 1 n.1.

Under the Vaccine A ct, the special master shall award reasonable attorneys’ fees and

costs for any petition that results in an award of compensation. 42 U.S.C. § 300aa

- 15(e )(1). In

the present case, petitioner was aw arded compensation pursuant to the joint stipulation

ag re ement. Therefore, petitioner is entitled to an award of reasonable attorneys’ fees and costs.

Pursuant to Vaccine Rule 13, “[a]ny request for attorney’s fees and costs pursuant to 42 U.S.C. §

300aa

- 15(e ) must be filed no later than 180 days after the ent ry of judgment or the filing of an

order concluding proceedings.” In this case, judgment on petitioner’s compensation entered June

17, 2016. Accord ingly, a request for costs may be made up until December 14, 2016, and

petitioner’s supplemental motion is timely. Based on the reasonableness of petitioner’s request

and the lack of objection by respondent, the undersigned GRANTS the request for approval and

payment of attorneys’ fees and costs, pursuant to 42 U.S.C. § 300 aa

- 15(e).

The undersigned awards attorneys’ costs as follows:

(1) A lump sum of $ 1,200.00 in the form of a check payable jointly to petitioner

and petitioner’s counsel of record, Andrew D. Downing, of Van Cott &

Talamante, PLLC

, for attorneys’ costs.

In the absence of a motion for review f iled pursuant to RCFC Appendix B, the clerk of

the court is directed to enter judgment forthwith. 3

IT IS SO ORDERED.

3 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of notice

renouncing the right to seek review.3 s/ Thomas L. Gowen

Thomas L. Gowen

Special Master