Escalera v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: May 19, 2017

* * * * * * * * * * * * * *
JENELLE ESCALERA and ARTURO *
ESCALERA, on behalf of their minor *
child A.E., * No. 14-431V
*
Petitioners, * Special Master Sanders
*
v. *
* Attorneys’ Fees and Costs;
SECRETARY OF HEALTH * Unopposed; Reasonable Amount
AND HUMAN SERVICES, * Requested.
*
Respondent. *
* * * * * * * * * * * * * *

Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for Petitioner.
Christine M. Becer, United States Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING ATTORNEYS’ FEES AND COSTS1

On May 20, 2014, Jenelle and Arturo Escalera (“Petitioners”) filed a petition on behalf of
their daughter, A.E., pursuant to the National Vaccine Injury Compensation Program.2 42
U.S.C. §§ 300aa-10 to -34 (2012). Petitioners alleged that the diphtheria-tetanus-acellular-
pertussis (“DTaP”) and haemophilus type B (“HiB”) vaccines administered on May 20, 2011
caused A.E. to suffer from celiac disease. Ruling Ent. 1, ECF No. 42. On November 23, 2016,
Special Master Lisa Hamilton-Fieldman issued a ruling finding that Petitioners were entitled to
compensation. Id. On May 2, 2017, the undersigned issued a decision awarding compensation
to Petitioners pursuant to Respondent’s damages proffer. Decision Proffer, ECF No. 54

1
This decision shall be posted on the United States Court of Federal Claims’ website, in
accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012) (Federal
Management and Promotion of Electronic Government Services). In accordance with Vaccine
Rule 18(b), a party has 14 days to identify 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, the
undersigned agrees that the identified material fits within the requirements of that provision, such
material will be deleted from public access.
2
The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L.
No. 99-660, 100 Stat. 3758, codified as amended, 42 U.S.C. §§ 300aa-10 to -34 (2012)
[hereinafter “Vaccine Act” or “the Act”]. Hereinafter, individual section references will be to 42
U.S.C. § 300aa of the Act.
 On May 18, 2017, Petitioners filed an Unopposed Motion for Final Attorneys’ Fees and
Costs. Mot. Att’ys’ Fees, ECF No. 56. Petitioners requested attorneys’ fees and costs in the
amount of $40,000.00. Id. at 1. Respondent indicated that he “does not object to the overall
amount sought,” but also noted that the “lack of objection should not be construed as an
admission, concession, or waiver as to the hourly rates requested, the number of hours billed, or
the other litigation related costs.” Id. at 1-2.

The undersigned has reviewed Petitioners’ counsel’s detailed records of time and
expenses incurred in this case, and they are reasonable. In accordance with the Vaccine Act, 42
U.S.C. § 300aa-15(e) (2012), the undersigned finds that Petitioners are entitled to attorneys’ fees
and costs. Accordingly, the undersigned hereby awards the amount of $40,000.00,3 in the
form of a check made payable jointly to Petitioners and Petitioners’ counsel, Andrew D.
Downing, of Van Cott and Talamante, PLLC. 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/Herbrina D. Sanders
Herbrina D. Sanders
Special Master

3
This amount is intended to cover all legal expenses incurred in this matter. This award
encompasses all charges by the attorney against a client, “advanced costs” as well as fees for
legal services rendered. Furthermore, § 15(e)(3) prevents an attorney from charging or
collecting 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).
2