Barlow v. Secretary of Health and Human Services
17-513
| Fed. Cl. | Jul 1, 2021Background
- Petitioner Marlie Barlow filed a Vaccine Act petition on April 12, 2017, alleging an October 2, 2015 influenza vaccine significantly aggravated left-arm peripheral neuropathy and carpal tunnel syndrome.
- The petition was dismissed for insufficient proof on August 18, 2020.
- On February 12, 2021, counsel moved for attorneys’ fees and costs totaling $69,416.21 ($64,559.70 in fees; $4,856.51 in costs).
- Respondent stated he was satisfied statutory requirements for an award were met and did not object to the requested award.
- The special master found the petition was brought in good faith and with a reasonable basis, approved the requested hourly rates and hours, and awarded the full fees and costs.
- Because petitioner is deceased and no estate representative could be located, payment of fees and costs was ordered to be made to petitioner’s counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to fees when petition dismissed | Barlow: petition brought in good faith and had reasonable basis, so fees allowable under 42 U.S.C. §300aa-15(e)(1) | Secretary: satisfied statutory requirements; no objection to award | Granted: special master found good faith and reasonable basis and awarded fees and costs |
| Reasonableness of hourly rates | Counsel: requested rates for Mr. Vuckovich consistent with prior Vaccine Program awards ($290–$370 across years) | Secretary: raised no objection to rates | Granted: requested rates found reasonable and approved |
| Reasonableness of hours billed | Counsel: contemporaneous itemized billing showing tasks and hours; requested total hours reasonable | Secretary: no objection to hours | Granted: special master reviewed entries and awarded full attorneys’ fees ($64,559.70) |
| Reasonableness of costs | Counsel: sought $4,856.51 for records, filing fee, postage, and expert work (Dr. Brad Klein) with documentation | Secretary: no objection | Granted: full costs awarded ($4,856.51) |
Key Cases Cited
- Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343 (Fed. Cir. 2008) (approves lodestar approach for Vaccine Act fee awards)
- Blum v. Stenson, 465 U.S. 886 (1984) (lodestar framework: reasonable hours × reasonable rate)
- Hensley v. Eckerhart, 461 U.S. 424 (1983) (hours that are excessive, redundant, or unnecessary should be excluded)
- Saxton v. Sec'y of Health & Human Servs., 3 F.3d 1517 (Fed. Cir. 1993) (special master may reduce hours to reasonable level)
- Savin v. Sec'y of Health & Human Servs., 85 Fed. Cl. 313 (2008) (requires contemporaneous, specific billing records)
- Sabella v. Sec'y of Health & Human Servs., 86 Fed. Cl. 201 (2009) (special master may reduce fees sua sponte)
- Broekelschen v. Sec'y of Health & Human Servs., 102 Fed. Cl. 719 (2011) (no need for line-by-line fee analysis)
- Bell v. Sec'y of Health & Human Servs., 18 Cl. Ct. 751 (1989) (fee applications must sufficiently detail billed time)
- Fox v. Vice, 563 U.S. 826 (2011) (trial courts may use overall sense of a case to achieve "rough justice")