Barry v. Secretary of Health and Human Services
12-39
| Fed. Cl. | Nov 21, 2016Background
- Petitioner Shannon M. Barry filed a Vaccine Program petition alleging POTS from a 2009 influenza vaccine; case resolved by stipulation with $40,000 in compensation.
- Petitioner sought $177,950.72 in attorneys’ fees and costs; respondent proposed $50,000–$65,000 as reasonable.
- Multiple counsel represented petitioner over time: T. Russell Price (2011–Feb 24, 2015), then Siri & Glimstad (Aaron Siri) with co‑counsel Robert J. Krakow.
- The Special Master applied the lodestar approach: determine reasonable hourly rates and hours, then adjust for excessive, duplicative, or non‑compensable time.
- The Special Master found some requested rates reasonable (Price, Krakow, paralegals), reduced Siri’s rate, disallowed administrative and “learning‑the‑Program” time, reduced hours for vague/block/duplicative billing, and adjusted Krakow’s time for duplication.
- Final award: attorneys’ fees and costs reduced from $177,950.72 requested to $156,880.93, paid in three lump sums to petitioner and each counsel firm/attorney.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Reasonable hourly rates | Requested forum rates for each attorney (Price $250; Siri $375/$389; Krakow $413/$425; paralegals $125–135) | Respondent generally objected and urged a substantially lower total; left specifics to Special Master’s discretion | Price’s $250 accepted; Siri reduced to $350 (2015) and $363 (2016); Krakow’s prior rates approved; paralegal rates allowed |
| Compensability of administrative/paralegal tasks | Counsel billed many entries at attorney rates, including administrative tasks and some paralegal work billed as attorney time | Respondent objected generally; Special Master noted billing rules | Administrative/secretarial entries disallowed; paralegal tasks compensated only at paralegal rates; specific hour deductions applied (Price, Siri) |
| Time spent learning Vaccine Program and researching procedure | Counsel included time for learning Program rules and procedural research | Such time is not compensable as it is not work "incurred in any proceeding" | Time researching Program rules/procedures reduced/disallowed (reductions for Price and Siri) |
| Vague, excessive, and block billing; multi‑attorney duplication | Plaintiff argued entries were properly billed and respondent did not contest individual entries | Special Master emphasized burden to document; block/vague entries hinder assessment; multiple counsel can produce duplicative work | Substantial reductions: 10% reduction to Price for vague/excessive/block billing; 10% reduction to Krakow for duplication; additional specific hour cuts across counsel |
| Expert and consulting costs | Petitioner sought full expert invoices (Cunningham‑Rundles, Blitshteyn, Safdieh, Medilex) | Respondent challenged overall reasonableness generally | Awarded experts’ fees largely in full: Cunningham‑Rundles $7,950; Blitshteyn $20,200; Safdieh $500; Medilex adjusted to $2,400 (corrected invoice) ; other reasonable litigation costs paid |
Key Cases Cited
- Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343 (Fed. Cir.) (lodestar and forum rate guidance for Vaccine Act fees)
- Blum v. Stenson, 465 U.S. 886 (1984) (lodestar formulation for fee awards)
- Hensley v. Eckerhart, 461 U.S. 424 (1983) (hours that are "excessive, redundant, or otherwise unnecessary" should be excluded)
- Saxton v. Sec'y of Health & Human Servs., 3 F.3d 1517 (Fed. Cir.) (special master's discretion to reduce hours)
- Broekelschen v. Sec'y of Health & Human Servs., 102 Fed. Cl. 719 (special master need not conduct line‑by‑line analysis when reducing fees)
- Perreira v. Sec'y of Health & Human Servs., 27 Fed. Cl. 29 (1992) (costs claimed must be reasonable)
- Rochester v. United States, 18 Cl. Ct. 379 (clerical/secretarial tasks are not compensable as fees)