Delapaz v. Secretary of Health and Human Services
15-502
| Fed. Cl. | Sep 25, 2017Background
- Petitioner filed a Vaccine Act petition alleging autonomic neurocardiogenic syncope and migraine-like headaches from Gardasil on May 15, 2015.
- An entitlement hearing was scheduled for September 26–27, 2018.
- On July 27, 2017, petitioner moved for interim attorneys’ fees and costs totaling $47,103.78 ($40,505.00 in fees; $6,598.78 in costs).
- Respondent deferred to the special master on whether interim relief was appropriate and agreed statutory requirements would be met if an award were made, asking only that the special master determine a reasonable amount.
- The special master, relying on experience and review of billing records, found interim fees and costs appropriate and awarded the full $47,103.78 to be paid jointly to petitioner and counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether interim attorneys’ fees and costs are appropriate before final resolution | Petitioner sought an interim award to cover fees/costs incurred pre-hearing | Respondent deferred to the special master; did not oppose an interim award and recognized statutory entitlement if award appropriate | Special master exercised discretion and granted interim attorneys’ fees and costs |
| Whether requested amount is reasonable | Petitioner submitted billing records supporting $47,103.78 total | Respondent left reasonableness determination to the special master | Special master reviewed records and found the requested amount reasonable and awarded it |
| Form of payment | Petitioner did not contest joint payment to counsel and client | No objection noted | Award ordered as a check payable jointly to petitioner and The Greenwood Law Firm |
| Need for further briefing or reply | Petitioner did not file a reply after respondent’s response | Respondent recommended discretion for amount determination | Special master proceeded without further briefing and entered judgment absent a review motion |
Key Cases Cited
- Avera v. Secretary of Health & Human Services, 515 F.3d 1343 (Fed. Cir.) (interim fee awards permissible under the Vaccine Act)
- Perreira v. Secretary of Health & Human Services, 27 Fed. Cl. 29 (1992) (special masters have wide discretion in fee reasonableness review)
- Saxton ex rel. Saxton v. Secretary of Health & Human Services, 3 F.3d 1517 (Fed. Cir.) (special masters may rely on prior experience in fee review)
- Sabella v. Secretary of Health & Human Services, 86 Fed. Cl. 201 (2009) (special masters may reduce fees sua sponte without prior notice)