Baldwin v. Secretary of Health and Human Services
13-957
| Fed. Cl. | Sep 25, 2017Background
- Petitioner filed a Vaccine Act petition alleging cardiac arrest from an influenza vaccine on December 5, 2013; entitlement has not yet been decided.
- On August 28, 2017, petitioner sought interim attorneys’ fees and costs totaling $108,908.37 ($89,101.80 fees; $19,806.57 costs).
- Petitioner’s counsel moved to withdraw the same day the interim fee motion was filed.
- Respondent deferred to the special master on whether interim relief was appropriate, stating respondent would accept an award if the special master finds statutory criteria met and recommends a reasonable amount.
- The special master found interim fees appropriate but disallowed $11,875 in requested costs for review by Dr. M. Eric Gershwin because (a) Dr. Gershwin is not a cardiologist, (b) no expert report from him was filed, and (c) petitioner’s counsel did not justify the necessity of his review.
- The special master awarded interim fees and costs in the reduced amount of $97,033.37, payable jointly to petitioner and counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an interim award of attorneys’ fees and costs is appropriate | Request award of $108,908.37 as reasonable interim fees/costs to fund ongoing litigation | Defer to special master; if award appropriate, recommend court determine a reasonable amount | Interim award appropriate; special master has discretion to award interim fees and costs |
| Whether costs for Dr. M. Eric Gershwin’s review are recoverable | Sought $11,875 for Dr. Gershwin’s review; counsel stated informally Dr. Gershwin drafted a report that would have been filed | Respondent did not contest statutory eligibility but deferred to special master on reasonableness | Denied $11,875 for Dr. Gershwin: no filed expert report, no justification for necessity, and Dr. Gershwin is not a cardiologist |
Key Cases Cited
- Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343 (Fed. Cir. 2008) (permits interim fee awards under the Vaccine Act)
- Perreira v. Sec’y of HHS, 27 Fed. Cl. 29 (1992) (special master has wide discretion in determining fee reasonableness)
- Saxton ex rel. Saxton v. Sec’y of HHS, 3 F.3d 1517 (Fed. Cir. 1993) (special masters may rely on prior experience in reviewing fee applications)
- Sabella v. Sec’y of HHS, 86 Fed. Cl. 201 (Fed. Cl. 2009) (special masters may reduce fees sua sponte without prior notice)