Bell v. Secretary of Health and Human Services
13-709
Fed. Cl.Mar 17, 2017Background
- Petitioner Kristine R. Bell filed a Vaccine Program petition alleging Hepatitis B vaccinations (Jan 16 and Jun 15, 2012) caused acute disseminated encephalomyelitis (ADEM).
- An entitlement hearing occurred Jan 28–29, 2016; entitlement was denied in a Dec 1, 2016 decision.
- Petitioner moved for final attorney’s fees and costs totaling $117,570.42 (fees $107,242.50; costs $10,327.92).
- The court previously awarded interim expert-related fees of $27,678.85. Respondent did not contest statutory eligibility for fees but deferred to the special master on amount.
- Special Master Corcoran reviewed hourly rates, billing records, and expert costs; awarded the requested attorney fees and most costs but reduced one consulting expert charge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an unsuccessful petitioner may receive fees and costs | Bell contended fees/costs are recoverable where claim was brought in good faith and had reasonable basis | HHS did not dispute good faith or reasonable basis and deferred to the special master on amount | Award appropriate: good faith and reasonable basis found, so fees/costs may be awarded in discretion |
| Reasonableness of counsel’s hourly rates and billed hours | Moeller sought prevailing rates and full reimbursement for billed time totaling $107,242.50 | Respondent raised no objection to rates/hours | Full attorney’s fees awarded as requested |
| Recoverability and amount of non-expert and hearing-related costs | Petitioner sought $4,952.92 non-expert costs and additional expert costs for post-hearing MRI review | Respondent did not oppose these costs | Non-expert costs and post-hearing expert costs awarded in full |
| Allowable amount and rate for consulting expert Dr. Lawrence Shields | Petitioner sought $1,375 (2.75 hrs at $500/hr) for pre-filing review | Respondent did not specifically contest, but special master questioned scope and high hourly rate | Reduced: rate lowered to $400/hr and only 80% of time awarded (2.2 hrs × $400 = $880), yielding a $495 reduction |
Key Cases Cited
- Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29 (1992) (special master has broad discretion to determine reasonable fees)
- Perreira v. Sec’y of Health & Human Servs., 33 F.3d 1375 (Fed. Cir. 1994) (appellate affirmation of fee-discretion principles)
- Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201 (2009) (special master may reduce fees sua sponte)
- Silva v. Sec’y of Health & Human Servs., 108 Fed. Cl. 401 (2012) (awarding fees to unsuccessful petitioners requires good faith and reasonable basis)
- McKellar v. Sec’y of Health & Human Servs., 101 Fed. Cl. 297 (2011) (reasonable-basis is objective; feasibility not likelihood)
- Grice v. Sec’y of Health & Human Servs., 36 Fed. Cl. 114 (1996) (petitioner entitled to presumption of good faith)