Bitsui v. Secretary of Health and Human Services
11-749
| Fed. Cl. | Jul 5, 2017Background
- Petitioner Jessica Bitsui filed a Vaccine Program petition on behalf of her son N.H. alleging injury from maternal Gardasil vaccination; extensive records and multiple experts were used.
- The record did not support entitlement; petitioner filed a motion to dismiss and the special master dismissed the case on December 7, 2016.
- Petitioner then sought attorneys’ fees and costs: $160,952.30 in fees and $54,707.72 in costs (total $215,660.02).
- Respondent made no specific objections to amounts or hours and deferred to the Special Master’s discretion.
- The Special Master applied the lodestar method, approved the requested hourly rates, but found some billed hours excessive, duplicative, or clerical.
- Fees were reduced by 10% for unreasonable entries; costs (medical records, shipping, expert fees) were awarded in full. Final award: $144,848.97 (fees) + $54,707.72 (costs) = $199,556.69, payable jointly to petitioner and counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to fees after dismissal | Fees appropriate because petition filed in good faith with reasonable basis | Respondent raised no specific objection, deferred to Special Master | Fees may be awarded despite dismissal if good faith and reasonable basis; applied discretion to award fees |
| Reasonableness of hourly rates | Counsel requested previously approved forum rates | No specific objection to rates | Requested hourly rates found reasonable and consistent with prior awards |
| Reasonableness of hours billed | Counsel billed for work performed, including administrative tasks and communications | Respondent did not object specifically but left calculation to Special Master | Hours reduced (10%) for excessive/duplicative/clerical entries and vague tasks |
| Recovery of litigation costs | Requested expert fees, records, shipping; no out-of-pocket costs by petitioner | No specific objection | Requested costs found reasonable and awarded in full |
Key Cases Cited
- Sebelius v. Cloer, 133 S. Ct. 1886 (U.S. 2013) (award of fees automatic for successful petitioners; fee award standards)
- Avera v. Secretary of Health & Human Servs., 515 F.3d 1343 (Fed. Cir. 2008) (endorsing lodestar approach in Vaccine Act cases)
- Blum v. Stenson, 465 U.S. 886 (U.S. 1984) (lodestar formulation: hours reasonably expended × reasonable rate)
- Hensley v. Eckerhart, 461 U.S. 424 (U.S. 1983) (hours that are excessive, redundant, or unnecessary should be excluded)
- Saxton v. Secretary of Health & Human Servs., 3 F.3d 1517 (Fed. Cir. 1993) (Special Masters entitled to use experience in fee review)
- Broekelschen v. Secretary of Health & Human Servs., 102 Fed. Cl. 719 (Fed. Cl. 2011) (approving percentage reductions of submitted hours)
- Sabella v. Secretary of Health & Human Servs., 86 Fed. Cl. 201 (Fed. Cl. 2009) (Special Masters may adjust fees sua sponte without further notice)
- Raymo v. Secretary of Health & Human Servs., 129 Fed. Cl. 691 (Fed. Cl. 2016) (examples of unreasonably duplicative or excessive billing)
- Guy v. Secretary of Health & Human Servs., 38 Fed. Cl. 403 (Fed. Cl. 1997) (affirming reductions of attorney and paralegal hours)
- Beck v. Secretary of Health & Human Servs., 924 F.2d 1029 (Fed. Cir. 1991) (fee award covers all legal expenses; attorney may not collect additional fees beyond award)