In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-382V
(not to be published)
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MARIA DEL PILAR VARELA-AVILA, * Special Master Corcoran
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Petitioner, * Filed: November 3, 2017
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v. * Decision; Attorney’s Fees and Costs.
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SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
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Respondent. *
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John Robert Howie, Howie Law, PC, Dallas, TX, for Petitioner.
Lara Ann Englund, U. S. Dep’t of Justice, Washington, DC, for Respondent.
DECISION GRANTING ATTORNEY’S FEES AND COSTS 1
On March 24, 2016, Maria Del Pilar Varela-Avila filed a petition seeking compensation
under the National Vaccine Injury Compensation Program (the “Vaccine Program”), alleging that
she suffered from myelitis as a result of the tetanus-diphtheria, measles-mumps-rubella, or
influenza vaccines received on November 12, 2014.2 The parties eventually filed a stipulation for
damages on September 12, 2017 (ECF No. 33), which I adopted as my decision awarding damages
on September 29, 2017. ECF No. 36.
1
Although this Decision has been formally designated “not to be published,” it will nevertheless be posted on the
Court of Federal Claims’ website in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). This
means the ruling will be available to anyone with access to the internet. As provided by 42 U.S.C. § 300aa-
12(d)(4)(B), however, the parties may object to the decision’s inclusion of certain kinds of confidential information.
Specifically, under Vaccine Rule 18(b), each party has fourteen days within which to request redaction “of any
information furnished by that party: (1) that is a trade secret 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). Otherwise, the Decision in its present form will be available.
Id.
2
The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”).
Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).
Petitioner has now filed a motion requesting final attorney’s fees and costs, dated October
3, 2017. See ECF No. 40. Petitioner requests reimbursement of attorney’s fees and costs in the
combined amount of $42,318.94 ($37,605.30 in attorney’s fees, plus $4,713.64 in costs). Id. at 1.
In accordance with General Order No. 9, Petitioner represents that she did not incur any litigation
expenses in conjunction with this proceeding. Id. at 4. Respondent filed a document reacting to the
fees request on October 16, 2017, indicating that he is satisfied that the statutory requirements for
an award of attorney’s fees and costs are met in this case, but deferring to my discretion the
determination of the amount to be awarded. ECF No. 41 at 2-3.
As a successful Vaccine Program Petitioner, Ms. Varela-Avila is entitled to a fees and costs
award. Special Masters have found that Vaccine Program practitioners in Dallas, Texas should
receive forum rates as established in McCulloch v. Sec’y of Health & Human Servs., No. 09-293V,
2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). See, e.g., Foxx v. Sec’y of Health & Human
Servs., No. 15-670v, 2016 WL 7785861 at *7 (Fed. Cl. Spec. Mstr. Dec. 21, 2016), Tieu Binh Le
v. Sec’y of Health & Human Servs., No. 07-895v, 2014 WL 4177732 at *3-4 (Fed. Cl. Spec. Mstr.
July 31, 2014); Whitener v. Sec’y of Health & Human Servs., No. 06-895v, 2011 WL 1467919 at
*7 (Fed. Cl. Spec. Mstr. March 2011). I have previously awarded such requested rates to
Petitioner’s counsel—John Robert Howie Esq. See Villa v. Sec’y of Health & Human Servs., No.
16-295V (Fed. Cl. Spec. Mstr. Oct. 10, 2017); Chanderdat v. Sec’y of Health & Human Servs.,
No. 15-341V, 2016 WL 3571717 (Fed. Cl. Spec. Mstr. June 3, 2016). In addition, the hours
expended on this matter appear to be reasonable. Finally, the requested litigation costs appear to
be reasonable, and will also be awarded.
I hereby GRANT Petitioner’s motion for attorney’s fees and costs. Accordingly, an award
of $42,318.94 should be made in the form of a check payable jointly to Petitioner and Petitioner’s
counsel, John Robert Howie, Esq. Payment of this amount represents all attorney’s fees and costs
available under 42 U.S.C. § 300aa-15(e). In the absence of a motion for review filed pursuant to
RCFC Appendix B, the clerk of the Court SHALL ENTER JUDGMENT in accordance with the
terms of this decision.3
IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran
Special Master
3
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment if (jointly or separately) they file notices
renouncing their right to seek review.
2
Del Pilar Varela-Avila v. Secretary of Health and Human Services
Combined Opinion