Check v. Secretary of Health and Human Services
15-169
| Fed. Cl. | Dec 28, 2016Background
- Petitioner Jennifer L. Check filed a Vaccine Act petition alleging polyneuropathy caused by a November 12, 2013 influenza vaccine.
- The petition was filed on February 23, 2015.
- On October 12, 2016, the Special Master issued a decision awarding compensation pursuant to a parties’ stipulation.
- On November 23, 2016, petitioner moved for attorneys’ fees and costs totaling $53,162.50 (fees $40,379.00; costs $12,783.50).
- Respondent filed a response stating satisfaction that statutory requirements for fees were met and deferred to the Special Master’s discretion to determine a reasonable amount.
- The Special Master reviewed billing records, credited counsel’s work and expedited settlement, and found the requested total reasonable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petitioner is entitled to attorneys’ fees and costs under the Vaccine Act | Requested $53,162.50 for fees and costs after obtaining an award of compensation | Agreed statutory requirements were met; left reasonableness to the Special Master | Awarded $53,162.50 jointly to petitioner and counsel |
| Whether the requested amount is reasonable | Counsel’s billing and expedited settlement justify the full requested amount | No objection to reasonableness asserted; respondent deferred to discretion | Special Master found the total reasonable based on review and experience |
| Form of award payment | Payment jointly to petitioner and her law firm | No objection | Ordered jointly payable check to petitioner and Black McLaren Jones Ryland & Griffee, PC |
| Entry of judgment and review rights | Motion for fees follows final award; judgment may be entered absent review motion | Not disputed; respondent noted Rule 11 procedure | Clerk directed to enter judgment unless a timely RCFC Appendix B motion for review is filed |
Key Cases Cited
- Sebelius v. Cloer, 133 S. Ct. 1886 (2013) (Vaccine Act fee award requirement discussed)
- Perreira v. Sec’y of HHS, 27 Fed. Cl. 29 (1992) (special masters have wide discretion in fee reasonableness review)
- Saxton ex rel. Saxton v. Sec’y of HHS, 3 F.3d 1517 (Fed. Cir. 1993) (special masters may rely on prior experience in fee reviews)