Carda v. Secretary of Health and Human Services
14-191
| Fed. Cl. | Nov 14, 2017Background
- Petitioners Kyle and Shannon Carda filed a Vaccine Program petition on behalf of their minor child, G.J.C., alleging intussusception caused by RotaTeq doses administered in January and March 2013.
- The entitlement hearing occurred on January 24–25, 2017; final entitlement decision remains pending.
- Petitioners previously sought interim attorney’s fees and costs three times: July 2016 (first motion), February 2017 (second motion), and August 2017 (third motion).
- The special master granted the first interim request in part (awarding $34,122.83) and granted portions of the second request (primarily expert fees and travel), but deferred additional attorney fee awards.
- Petitioners’ third interim request sought $76,482.98 for attorney’s fees (work July 2016–June 2017) and argued fees were aging and substantial post-hearing research warranted payment before year-end.
- The special master denied the third interim request, finding no special circumstances to justify another interim award and emphasizing Program policy preferring final fee awards in appropriate cases.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a third interim award of attorney’s fees is warranted | Carda argued fees are older than a year and significant post-hearing work justifies interim payment before year-end | Respondent deferred to the special master on interim-fee standards but agreed statutory requirements for fees/costs were met | Denied—no special circumstances shown to justify an additional interim award; prior two interim awards make another unnecessary |
| Whether Avera standard for interim fees is met (protracted proceedings/costly experts) | Carda implied the case involved substantial work and aging fees that meet policy concerns | Respondent left determination to the special master | Not met—special master found Avera’s limited circumstances not satisfied and declined to exercise discretion for another interim award |
| Whether counsel may await final fees award without undermining Program goals | Carda expressed desire for prompt compensation | Respondent did not oppose final determination by the special master | Court: Counsel can await final award; Program’s purpose is to aid claimants, and requiring counsel to wait is acceptable in appropriate cases |
Key Cases Cited
- Avera v. Secretary of Health & Human Services, 515 F.3d 1343 (Fed. Cir.) (limits interim fees to protracted proceedings where costly experts must be retained)