Swintosky v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS ********************* ERIC SWINTOSKY and * HEATHER SWINTOSKY, * as parents and natural guardians of * No. 12-403V their daughter, C.M.S., * Special Master Christian J. Moran * Petitioners, * * Filed: November 6, 2017 v. * * SECRETARY OF HEALTH * Attorneys’ fees and costs; waiver AND HUMAN SERVICES, * * Respondent. * ********************* Anne C. Toale, Maglio Christopher & Toale, PA, Sarasota, FL, for petitioner; Claudia B. Gangi, United States Dep’t of Justice, Washington, DC, for respondent. PUBLISHED DECISION AWARDING ATTORNEYS’ FEES AND COSTS 1 Eric and Heather Swintosky (the “Swintoskys”) received compensation through the Vaccine Program. They now seek an award of attorneys’ fees and costs. The Secretary did not challenge any amounts requested. Due to the lack of objection from the Secretary, the Swintoskys are awarded their full request. I. Procedural History In their petition, the Swintoskys alleged that the influenza (“flu”) vaccine received by their daughter, C.M.S., caused her to suffer a stroke and develop acute 1 The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services), 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. hemorrhagic leukoencephalomyelitis. The Swintoskys gathered and filed medical records. The respondent’s Rule 4 Report argued against awarding compensation because the Swintoskys had not presented a medical theory linking the flu vaccine to the type of injuries suffered by C.M.S. nor had they offered a logical sequence of cause and effect showing that the flu vaccine was the reason for C.M.S.’s injuries. In presenting his view, the Secretary noted that the Swintoskys had not obtained a report from an expert. The undersigned proposed instructions that would treat all expert reports as the direct testimony of the respective expert. The Swintoskys’ counsel, Anne Toale, researched this issue, see exhibit 118 at 9 (attorney timesheets), and objected to the instructions as unduly limiting counsel’s participation in the preparation of the expert reports and depriving the Swintoskys of the opportunity to present their experts’ oral testimony. See Pet’rs’ Status Rep., filed Aug. 7, 2013. The Swintoskys eventually filed expert reports from Dr. John Gaitanis and Dr. Lori Jordan, and consulted with Dr. Rohit Bakshi. Exhibits 18, 62, 84, 105, and 119 at 2, 5 (payment to Dr. Bakshi). Respondent filed expert reports from Dr. Gregory Holmes. Exhibits A, Z, BB, and CC. On December 15, 2016, the parties filed a joint stipulation to resolve the case. The undersigned then issued a decision awarding compensation. Because the Swintoskys received compensation, they are entitled to an award of attorneys’ fees and costs. 42 U.S.C. § 300aa-15(e). The Swintoskys filed the pending request for attorneys’ fees and costs on May 2, 2017. Consistent ...

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