Cunningham v. Secretary of Health and Human Services
13-483
Fed. Cl.Sep 29, 2017Background
- Petitioner Tanisia Cunningham (guardian of G.C.F.) filed a Vaccine Act petition in July 2013 alleging vaccine-related injury; an entitlement decision denying compensation was entered August 1, 2016 and denial of review was affirmed in Jan. 2017.
- Petitioner sought attorneys’ fees and costs for litigation efforts (interim then final), requesting $109,240 total ($83,486 fees; $25,754 attorneys’ costs; $695 petitioner costs).
- Extensive pre-hearing and hearing activity: medical records, expert reports (Dr. Yuval Shafrir for petitioner; Dr. Max Wiznitzer for respondent), and a September 18, 2015 evidentiary hearing.
- Respondent did not dispute good faith or reasonable basis for awarding fees, but suggested a reasonable total in the $80k–$90k range and otherwise deferred to the special master’s discretion.
- Special Master reviewed hourly rates, hours billed, and itemized costs (including expert fees), found nearly all items reasonable, and made two small 2017 rate reductions for senior counsel, resulting in a $43 reduction.
- Final award: $109,197 payable jointly to petitioner and counsel, plus $695 to petitioner (total $109,892). Special Master also issued a caution about pursuing weak autism-related Vaccine Act theories post-test-cases.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petitioner is entitled to attorneys’ fees and costs despite losing entitlement | Cunningham sought fees/costs under 42 U.S.C. §300aa‑15(e)(1); argued good faith and reasonable basis for litigation | Respondent conceded statutory requirements for fee award were met and deferred to special master on amount | Award of fees and costs granted; good faith and reasonable basis found |
| Reasonableness of attorney hourly rates (2013–2017) | Firm requested progressive rates for three attorneys up to $446/hr for Shoemaker and $430/hr for Gentry in 2017 | Respondent argued overall award should be reduced (proposed $80k–$90k total) but offered no specific rate objections | 2013–2016 rates awarded as requested; 2017 rates trimmed to $440/hr (Shoemaker) and $424/hr (Gentry) per OSM ranges |
| Reasonableness of hours billed / billing judgment | Petitioner provided detailed time entries; requested 83,486 in fees total | Respondent cited comparable past awards to argue for a lower total but gave no line-item objections | Hours expended found reasonable under Hensley/Saxton; no line‑by‑line reductions; fees reduced only $43 due to rate adjustments |
| Reasonableness of litigation costs, including expert fees | Sought $25,754 counsel costs and $18,054 for Dr. Shafrir (45.5 hrs @ $350; 4 hrs testimony @ $500), plus $695 petitioner expenses | Respondent raised no specific cost objections | All costs awarded in full; Dr. Shafrir’s rates and hours deemed reasonable |
| Guidance re: pursuing autism-related Vaccine Act claims | Counsel continued autism-related theories despite adverse OAP test-case precedent | Respondent implicitly urged restraint; noted historic context | Special Master warned counsel that post-2010 continuing pursuit of weak autism theories may lack reasonable basis and could foreclose fee awards in future cases |
Key Cases Cited
- Saxton v. Secretary of HHS, 3 F.3d 1517 (Fed. Cir. 1993) (billing judgment and special master discretion in fee awards)
- Shaw v. Secretary of HHS, 609 F.3d 1372 (Fed. Cir. 2010) (standard for fee determinations)
- Hensley v. Eckerhart, 461 U.S. 424 (U.S. 1983) (hours that are excessive, redundant, or unnecessary must be excluded)
- Fox v. Vice, 563 U.S. 826 (U.S. 2011) (fee determinations should aim for rough justice, not auditing perfection)
- Sabella v. Secretary of HHS, 86 Fed. Cl. 201 (Fed. Cl. 2009) (petitioner bears burden to show reasonableness of fees)
- Wasson v. Secretary of HHS, 24 Cl. Ct. 482 (Ct. Cl. 1991) (special masters may rely on experience without line-by-line accounting)