Bender v. Secretary of Health and Human Services
11-693
| Fed. Cl. | Nov 14, 2017Background
- Petitioner Olivia Bender filed a Vaccine Program claim (hepatitis A and meningococcal vaccines → transverse myelitis) on Oct. 19, 2011; entitlement hearing held Feb. 9–10, 2017; merits decision pending.
- Case underwent multiple counsel changes: initial counsel withdrew; petitioner proceeded pro se for a period; present counsel appeared late 2015.
- This is petitioner’s third interim fees/costs request. A prior interim award (Jan. 15, 2014) granted $24,695.37; a second interim order (Aug. 3, 2016) awarded 70% ($19,740.00) of previously-requested expert costs for Dr. Chen, with part reserved pending hearing.
- Third interim application (Aug. 2, 2017) sought: $111,858.85 in attorney/paralegal fees and costs; $5,360.00 additional for Dr. Chen; $26,146.40 for Dr. Vera Byers; and $9,065.81 in petitioner-incurred hearing expenses (including $605.81 in miscellaneous litigation expenses).
- Respondent deferred to the Special Master’s discretion. The Special Master declined to award interim attorney fees, awarded $605.81 in miscellaneous litigation expenses to petitioner, awarded Dr. Byers the full requested $26,140.40, and awarded a reduced sum to Dr. Chen ($2,800 for selected hours), denying the remaining reserved $8,460.00.
Issues
| Issue | Bender's Argument | HHS's Argument | Held |
|---|---|---|---|
| Whether to award interim attorney’s fees now | Avera factors satisfied; seeks $111,858.85 now | Defers to Special Master’s discretion | Denied—deferred to final fees determination (counsel has been involved <2 years; not entitlement to interim fees under Avera) |
| Whether to award petitioner’s miscellaneous hearing expenses | Requests $605.81 for travel/lodging/meals | Defers | Awarded in full ($605.81) |
| Whether to reimburse Dr. Vera Byers' expert costs | Requests $26,146.40 (hourly $400, travel at half rate) | Defers | Awarded in full ($26,140.40) as reasonable for experienced expert |
| Whether to reimburse Dr. Chone Ken Chen's additional expert costs | Requests $5,360.00 (substantive $300/hr, travel $150?/request) and seeks earlier-reserved $8,460.00 | Defers | Awarded only 10 of 12 requested hours at $200/hr ($2,000) and 8 travel hours at $100/hr ($800); denied the previously-reserved $8,460.00 due to excessive total hours and limited utility of his trial testimony (total award $2,800 for this tranche) |
Key Cases Cited
- Avera v. Secretary of Health & Human Services, 515 F.3d 1343 (Fed. Cir.) (establishes standards for awarding interim fees in Vaccine Program cases)