Lerwick v. Secretary of Health and Human Services ( 2015 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
******************** *
SHERRY LERWICK, * No. 06-847V
legal representative of a minor child,* Special Master Christian J. Moran
B.L., *
* Filed: March 31, 2015
Petitioner, *
*
v. * Attorneys’ fees and costs; award
* in the amount to which
SECRETARY OF HEALTH * respondent does not object.
AND HUMAN SERVICES, *
*
Respondent. *
******************** *
Curtis R. Webb, Twin Falls, ID, for petitioner;
Darryl R. Wishard, United States Dep’t of Justice, Washington, DC, for
respondent.
UNPUBLISHED DECISION ON FEES AND COSTS1
On March 24, 2015, petitioner filed a stipulation of fact concerning final
attorneys’ fees and costs in the above-captioned matter. Previously, petitioner
informally submitted a draft application for attorneys’ fees and costs to respondent
for review. Upon review of petitioner’s application, respondent raised objections
to certain items. Based on subsequent discussions, petitioner amended her
application to request $94,000.00, an amount to which respondent does not object.
The Court awards this amount.
On December 12, 2006, Sherry Lerwick filed a petition for compensation on
behalf of her minor son, B.L, alleging that the diphtheria, tetanus, acellular
1
The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17,
2002), requires that the Court post this decision on its website. Pursuant to Vaccine Rule 18(b),
the parties have 14 days to file a motion proposing redaction of medical information or other
information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special
master will appear in the document posted on the website.
2
pertussis (DTaP) vaccine that B.L. received on August 3, 2004, caused him to
suffer acute disseminated encephalomyelitis, also known as ADEM. Ms. Lerwick
was found entitled to compensation and was later awarded damages. See
Entitlement Ruling, 2011 WL 4537874 (Fed. Cl. Spec. Mstr. Sept. 8, 2011),
Decision Awarding Interim Compensation, 2014 WL 1897656 (Fed. Cl. Spec.
Mstr. Apr. 16, 2014), Ruling Regarding Compensation, 2014 WL 3720309 (Fed.
Cl. Spec. Mstr. June 30, 2014), Decision Awarding Damages, 2014 WL 4403044
(Fed. Cl. Spec. Mstr. Aug. 15, 2014), mot. for rev. denied, 2015 WL 682405 (Fed.
Cl. Jan. 30, 2015). Because petitioner was found to be entitled to compensation,
she is entitled to an award of attorneys’ fees and costs. 42 U.S.C. § 300aa-15(e).
Ms. Lerwick was previously awarded interim attorneys’ fees and costs in the
total amount of $300,000.00. See Decisions, issued May 26, 2010 and Jan. 23,
2014. Ms. Lerwick’s pending application begins after her most recent application
for interim fees ended. Activities performed during this timeframe include the
preparation of a post-hearing reply brief following a September 2013 damages
hearing, the preparation of a reply to her motion for interim compensation, the
preparation of a response to a motion for reconsideration of the decision awarding
compensation on an interim basis, as well as the preparation and oral argument of
petitioner’s motion for review of the undersigned’s August 15, 2014 decision
awarding damages on proffer. In addition, petitioner retained a separate attorney
to assist with probate matters in California.
After negotiations, petitioner seeks a total of $69,406.00, in final attorneys’
fees and costs for her counsel. Additionally, in compliance with General Order
No. 9, petitioner states that she incurred $24,594.00, in out-of-pocket litigation
expenses while pursuing this claim. This sum represents the amount of the bond
the probate court required when it appointed Ms. Lerwick the guardian of B.L.’s
estate. Respondent has no objection to the amount requested for attorneys’ fees
and costs.
After reviewing the request, the Court awards the following:
a. A lump sum of $69,406.00, in the form of a check made payable to
petitioner, Sherry Lerwick, and petitioner’s attorney, Curtis R.
Webb, Esq., for attorneys’ fees and other litigation costs available
under 42 U.S.C. § 300aa-15(e).
3
b. A lump sum of $24,594.00, payable to petitioner, Sherry Lerwick, for
costs she incurred in pursuit of her petition.
The Court thanks the parties for their cooperative efforts in resolving this
matter. The Clerk shall enter judgment accordingly.2
Any questions may be directed to my law clerk, Mary Holmes, at (202) 357-
6360.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
2
Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgment by each
party filing a notice renouncing the right to seek review by a United States Court of Federal
Claims judge.