Cox v. Secretary of Health and Human Services
17-1895
Fed. Cl.Oct 25, 2021Background
- Petitioner Gayle Cox filed a Vaccine Act petition on December 6, 2017 alleging a shoulder injury (SIRVA) from a December 7, 2014 influenza vaccine.
- Parties filed a stipulation awarding compensation on May 11, 2021, which the Special Master adopted.
- Petitioner moved for attorneys’ fees and costs on July 9, 2021, requesting $32,823.85 (attorneys’ fees $32,018.28; attorneys’ costs $405.57; petitioner’s costs $400.00).
- Respondent stated he was satisfied statutory requirements for an award were met and raised no objections to the fee request.
- The Special Master applied the lodestar method, found counsel’s requested hourly rates reasonable, reviewed contemporaneous billing, and found the hours and costs reasonable and supported.
- The Special Master awarded the full requested amounts: $32,018.28 in attorneys’ fees, $405.57 in attorneys’ costs (payable jointly to petitioner and counsel in the amount $32,423.85), and $400.00 to petitioner for her filing fee (total $32,823.85).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to attorneys’ fees after stipulated award | Fees are recoverable because petitioner obtained compensation via stipulation | Respondent agreed statutory prerequisites satisfied | Entitlement found; fees/costs awarded under 42 U.S.C. §300aa-15(e) |
| Reasonableness of hourly rates | Mr. Firestone requested graduated rates for 2017–2021 consistent with prior awards | No objection | Requested hourly rates deemed reasonable and awarded |
| Reasonableness of hours billed | Contemporaneous billing records show work was necessary and detailed | No objection | Hours reviewed and found reasonable; full fee awarded ($32,018.28) |
| Recoverable costs (attorney and petitioner) | Attorney costs of $405.57 (records, postage, copies) and petitioner’s $400 filing fee | No objection | All requested costs awarded in full ($405.57 to counsel; $400 to petitioner) |
Key Cases Cited
- Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343 (Fed. Cir. 2008) (approves lodestar approach under the Vaccine Act)
- Blum v. Stenson, 465 U.S. 886 (U.S. 1984) (lodestar method described)
- Saxton v. Sec'y of Health & Human Servs., 3 F.3d 1517 (Fed. Cir. 1993) (courts may reduce excessive or unnecessary hours)
- Hensley v. Eckerhart, 461 U.S. 424 (U.S. 1983) (hours that are excessive, redundant, or unnecessary should be excluded)
- Savin v. Sec'y of Health & Human Servs., 85 Fed. Cl. 313 (Fed. Cl. 2008) (requires contemporaneous, specific billing records)
- Sabella v. Sec'y of Health & Human Servs., 86 Fed. Cl. 201 (Fed. Cl. 2009) (special masters may reduce fees sua sponte)
- Broekelschen v. Sec'y of Health & Human Servs., 102 Fed. Cl. 719 (Fed. Cl. 2011) (no need for line-by-line fee analysis)
- Fox v. Vice, 563 U.S. 826 (U.S. 2011) (courts may use overall sense of a case to achieve rough justice)
- Wasson v. Sec'y of Health & Human Servs., 24 Cl. Ct. 482 (Cl. Ct. 1991) (special masters may rely on experience to assess reasonable hours)
- Bell v. Sec'y of Health & Human Servs., 18 Cl. Ct. 751 (Cl. Ct. 1989) (fee applications must sufficiently detail time billed)