Davis v. Secretary of Health and Human Services
15-277
Fed. Cl.Jul 26, 2016Background
- Petitioner (Morgan Davis, formerly a minor) filed a Vaccine Act petition alleging intracranial pressure/papilledema/headaches after HPV, hepatitis A, and meningococcal vaccinations given April 10, 2012. Medical records show multiple post-vaccination ER visits and a pseudotumor cerebri diagnosis.
- Petition pending since March 2015; respondent chose to litigate after settlement demand; no expert reports filed and respondent had not yet filed a Rule 4(c) report when counsel sought to withdraw.
- Petitioner’s counsel (Conway, Homer & Chin-Caplan, P.C.) moved to withdraw in February 2016 after being unable to secure an expert; counsel then sought interim attorneys’ fees and costs covering work through February 5, 2016.
- Initial fee application sought $29,938.33; a supplemental filing increased the total request to $34,686.81 (fees + costs). Respondent opposed the award, arguing lack of reasonable basis due to preexisting headaches and lack of treating-physician causation opinions.
- The special master found petitioner entitled to the presumption of good faith, concluded there was a reasonable basis to file and to sustain the claim through counsel’s withdrawal, and that interim fees were appropriate given potential undue hardship from protracted proceedings and counsel’s withdrawal.
- The special master awarded the full requested interim fee and cost total of $34,686.91, payable jointly to petitioner and counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether interim attorneys’ fees are permissible | Interim fees are permitted and warranted here because counsel withdrew and petitioner faces hardship | Interim fees inappropriate because case not otherwise protracted and merits unresolved | Awarded: interim fees appropriate given counsel withdrawal, potential undue hardship, and protracted timeline |
| Good faith of filing | Petitioner acted in honest belief that vaccine caused/aggravated condition | No challenge to good faith by respondent | Held: good faith presumed and satisfied |
| Whether petition had a reasonable basis | Medical records show temporal relationship, severe post‑vaccination headaches, and diagnosis supporting feasibility | No reasonable basis: documented preexisting headaches and treating physicians didn’t link vaccine; petitioner didn’t file near SOL deadline | Held: reasonable basis existed to file and persisted through counsel’s withdrawal (feasibility standard) |
| Reasonableness of requested fee amount | Counsel detailed time spent, including substantial reply and wrap‑up tasks; billing justified | Objected to award in light of alleged weak claim | Held: requested fees and costs found reasonable and fully awarded |
Key Cases Cited
- Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343 (Fed. Cir. 2008) (interim fees are permissible, especially in protracted cases requiring costly experts)
- Shaw v. Sec’y of Health & Human Servs., 609 F.3d 1372 (Fed. Cir. 2010) (interim fees proper where litigation cost imposes undue hardship and claim has good faith basis)
- Cloer v. Sec’y of Health & Human Servs., 675 F.3d 1358 (Fed. Cir. 2012) (discussion of interim fee awards under the Vaccine Act)
- Sebelius v. Cloer, 133 S. Ct. 1886 (U.S. 2013) (Supreme Court affirming limits on judicial review but recognizing policy context for interim fees)
- McKellar v. Sec’y of Health & Human Servs., 101 Fed. Cl. 297 (Fed. Cl. 2011) (reasonable‑basis is an objective, totality‑of‑circumstances inquiry)
- Woods v. Sec’y of Health & Human Servs., 105 Fed. Cl. 148 (Fed. Cl. 2012) (upholding interim fees where counsel withdrew and delay could cause hardship)