# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 12

- 155V

Filed: January 8 , 2014

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

NICOLE MATTEN, * UNPUBLISHED

Individually and as Guardian * Special Master Dorsey

of the late KM, *

*

Petitioner, *

* Interim A ttorneys’ Fees and Costs ;

v. * Reasonable Amount Requested to

* which Respon dent Does not Object.

SECRETARY OF HEALTH *

AND HUMAN SERVICES, *

*

Respondent. *

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

Patricia Finn

, Patricia Finn Attorney, P.C.

, Piermont, NY , for petitioner.

Ann D. Martin

, U.S. Dep artment of Justice, Washington, D

. C

. , for respondent

.

DECISION ON INTERIM ATTORNEYS’ FEES AND COSTS 1

On March 6 , 2012

, Nicole Matten ( petitioner) filed a petition for compensation pursuant

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

- 1 to

- 34 (2006)

, 2 on

behalf of her minor daughter, KM . Petitioner alleges that beginning on December 4, 2011

, KM

began suffering from fever and lethargy, and that several days later, KM stopped breathing and

subsequently died. Petitioner contends that KM’s symptoms and death result ed from her receipt

of the i nfluenza vaccination on December 2, 2011.

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

the undersigned intends to post this decision on the website of the United States Court of Federal

Claims , in accordance with the E

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

- 347, 116 Stat. 2899,

2913 (Dec. 17, 2002). 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.” V accine Rule 18(b). Otherwise, the en tire decision will be available to the

public. Id.

2 The National Vaccine 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 amended,

42 U.S.C. §§ 300aa

- 1 to

- 34 (2006) (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.

1On January 2, 2014, the parties filed a sti pulation of facts stating that they had agreed on

what constituted a reason able amount of attorneys’ fees and costs to have been incurred by

petitioner ’s counsel to date. Respondent maintains her objection to any award of interim

attorneys’ fees and costs. Nevertheless, the parties agree to the reasonable ness of the revised

tot al of interim attorneys’ fees and costs as set forth in paragraphs 5 and 6 of the joint stipulation,

which is attached hereto as Appendix A.

The undersigned find s that petitioner is entitled to an award of interim attorney’s fees and

costs under the unique facts and circumstances of this case. See Butler v. Sec’y, HHS , No. 02

- 1051, 2012 WL 4458203 (Fed. Cl. Spec. Mst r. June 25, 2012) ( awarding interim attorneys’ fees

and costs over respondent’s objection ); Shaw v, Sec’y, HHS , 609 F.3d 1372, 1375 (Fed . Cr.

2010) (holding that “[w]here the claimant establishes that the cost of litigation has imposed an

undue hardship and that there exists a good faith basis for the claim, it is proper for the special

master to award interim attorneys’ fees”). The under signed finds that paragraphs 5 and 6 of the

stipulation are reasonable and adopts them as the decision of the Court in awarding interim fees

and costs, on the terms set forth therein

.

Accordingly, the undersigned hereby award s the total of $ 14,856.57

, i ssued in the

form of a check p ayable jointly to petitioner and petitioner’s attorney, Patricia Finn, at

Pat ricia Finn Attorney, P.C., for interim attorney s’ fees and costs.

With respect to petitioner’s motion for pre

- approval of Dr. Chang’s hourly rate, the

undersigned reserves judgment and will issue a separate decision.

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

the court SHALL ENTER JUDGMENT in accordance w ith the terms of the parties’

stipulation. 3

IT IS SO ORDERED.

s/Nora Beth Dorsey

Nora Beth Dorsey

Special Master

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

notice renou ncing the right to seek review.

2IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

____________________________________ )

NICOLE MATTEN, Individually and as )

Guardian of the late KM, )

)

Petitioner, )

) No. 12

- 155V

v. ) Special Master Dorsey

) ECF

SECRETARY OF HEALTH AND )

HUMAN SERVICES, )

)

Respondent. )

____________________________________)

ST IPULATION OF FACTS CONCERNING THE AMOUNT

OF ATTORNEYS’ FEES AND COSTS REASONABLY INCURRED IN

PROCEEDING S IN THIS CASE TO DATE

It is hereby stipulated by and between the parties, the following factual matters:

1. Patricia Finn, Esq., is the attorney of record for petitioner.

2. On September 23, 2013, petitioner filed Petitioner’s Motion for Pre

- Approval of the

Terms of Employment of Dr. Anthony Chang and Pre

- Payment of Retainer for Expert Report

. Petitioner hereby withdraws her request for pre

- payment of Dr. Chang’s $2,500.00 retainer fee to

be re

- submitted at the end of the case as part of petitioner’s final attorneys’ fees and costs

application. Petitioner’s request for pre

- approval of Dr. Chang’s hourly rate remains pending

before the Special Master.

3. On December 9, 2013, petitioner filed a “Reply in Support of Motion for Pre

Appr oval of the Terms of Employment of Dr. Anthony Chang and Pre

- Payment of Retainer For

Expert Report,” which included a request for $29,018.57 in interim attorneys’ fees and costs that

had not been raised in the initial motion. This sum included the followi ng items: (a) legal fees

for the work of petitioner’s attorney of record and the attorney’s staff performed from January

28, 2012, through November 21, 2013; (b) payment for the petition’s filing fee; (c) payment for

the cost of obtaining autopsy slides a nd other autopsy material; (d) payment for the services of

Dr. Pavelsky to date. For reasons set forth in Respondent’s Response to Petitioner’s Motion for

an Award of Interim Fees and Costs filed on September 10, 2012, respondent objects to any

award for interim fees and costs issuing at this time. For reasons set forth in petitioner’ s filing s

of September 23 and December 9, 2013, petitioner maintains that the issuance of an award for

interim attorneys’ fees and costs is legal and appropriate at this time

. Case 1:12-vv-00155-UNJ Document 55 Filed 01/02/14 Page 1 of 34

. The parties maintain their respective positions regarding the appropriateness of an

interim award of attorneys’ fees and costs issuing in this case at this time. This remains an issue

that must be resolved by decision of the special master.

5. Nevertheless, d uring informal communications, respondent ’s counsel and petitioner’s

counsel discussed respondent’s objections regarding the amount of fees and costs incurred to

date. Based on these discussions, petitioner’s counsel has amended the req uest for interim fees

and costs as follows:

(a) The total amount of reimbursement for legal fees incurred by petitioner’s attorney of

record and her staff for the period of time from January 28, 2012, to November 21, 2013, is

reduced to $14,000.00. T he parties agree that petitioner will not seek any additional legal fees

for this time period as part of the final application for attorneys’ fees and costs at the end of the

case.

(b) Petitioner’s request for compensation for work performed by Dr. Pa velsky is

withdrawn. The parties agree that petitioner has the right to re

- submit Dr. Pavelsky’s bill to be

litigated, if necessary, as part of the final application for attorneys’ fees and costs a t the end of

the case.

(c) Petitioner seeks reimburse ment for $350.00 to cover the filing fee of the petition.

(d) Petitioner seeks reimbursement for $506.57 to cover the cost of obtaining autopsy

slides and other autopsy material.

(e) The revised total of interim attorneys’ fees and costs requ ested by petitioner is

$14,856.5 7.

6. Respondent stipulates that the revised amount of $14,856. 5 7 is a reasonable amount of

attorneys’ fees and costs to have been incurred for the prosecution of this case to date.

7 . Nothing in this Stipulation, includ ing the amount set forth in paragraph s 5 (e) and 6

, should be construed as an admission, concession, or waiver by either party as to any of the

matters raised by petitioner’s interim application for attorneys’ fees and costs, including the

appropriateness o f an interim award of attorneys’ fees and costs at this time, t he hourly rates

requested, and other litigation

- related costs. The parties simply agree (without waiving any

objections) that the total amount of compensation set forth in paragraph s 5 (e) and 6 represents a

reasonable amount of attorneys’ fees and costs to have been incurred for proceedings in this case

to date.

END OF STIPULATION OF FACTS

/

/

/

/

/

2 Case 1:12-vv-00155-UNJ Document 55 Filed 01/02/14 Page 2 of 3Respectfully submitted,

ATTORNEY OF RECORD ATTORNEY OF RECORD

FOR PETITIONER: FOR RESONDENT:

s/ Patricia Finn s/ A nn D. MARTIN

PATRICIA FINN ANN D. MARTIN

Patricia Finn Attorney, P.C. Senior Trial Attorney

450 Piermont Ave. U.S. Department of Justice

Piermont, NY 1 0968 Civil Division, Torts Branch

Tel : ( 845 ) 398

- 0521 P.O. Box 146, Ben Franklin Station

Washington, DC 20044

Tel. (202) 307

- 1815

Dated: January 2 , 2014

3 Case 1:12-vv-00155-UNJ Document 55 Filed 01/02/14 Page 3 of 3