Curran v. Secretary of Health and Human Services
15-804
| Fed. Cl. | Aug 15, 2016Background
- Petitioner Curran filed a vaccine claim in July 2015 seeking HPV vaccine-related injury under the Vaccine Program.
- The petition was skeletal and not accompanied by the required 11(c)(1) affidavit, and medical records were filed later in October 2015.
- Respondent raised concerns about reasonable basis; Petitioner moved to dismiss after Respondent’s challenge, which the Special Master granted in February 2016.
- Curran’s counsel’s billing shows early work before filing, limited post-filing activity, and records obtained did not substantively support a vaccine injury.
- Curran sought $9,656.09 in fees and costs; Respondent argued lack of reasonable basis and challenged most requested time after August 31, 2015.
- The Special Master ultimately awarded $3,285.31 in attorney’s fees and costs, limiting compensation to work through August 31, 2015.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the claim had reasonable basis. | Curran asserts initial basis existed given limited time and records. | Respondent contends no reasonable basis after sufficient pre-filing evidence; evidence showed lack of vaccine-related injury. | Reasonable basis existed until August 31, 2015; ceased thereafter. |
| How to measure reasonable basis cessation date and impact on fees. | Counsel acted under time pressure and late records show viability turning points. | Once concerns were raised, effort should have ceased or been focused; post-August work should be non-compensable. | Work after August 31, 2015 not compensable; cessation date fixed. |
| Appropriate attorney hourly rates. | Use established rates of $350 for partner and $195 for associates. | Rates should reflect Vaccine Program norms for in-forum work; discount may apply for limited review. | Rates set at $350 for Mr. Downing and $195 for associates, consistent with prior rulings. |
| Reasonableness of hours billed by counsel and paralegals. | Billing records show diligent work prior to August; late-stage work necessary for fee application. | Extensive pre-filing work not translating into substantiated progress; post-filing activity inadequately justified. | Time after August 31, 2015 disallowed; limited hours prior awarded. |
| Award of costs and paralegal expenses. | Paralegal costs and miscellaneous expenses were reasonable and customary. | Costs should be reduced consistent with cessation of reasonable basis. | Paralegal costs limited to August 31, 2015; overall costs reduced to $489.31; total award $3,285.31. |
Key Cases Cited
- Sabella v. Sec'y of Health & Human Servs., 86 Fed. Cl. 201 (2009) (fee petitions require consideration of reasonable basis and counsel conduct)
- Lamb v. Sec'y of Health & Human Servs., 24 Cl. Ct. 255 (1991) (limits and analysis of reasonable basis in Vaccine Act claims)