Dempsey v. Secretary of Health and Human Services
04-394
| Fed. Cl. | Dec 12, 2017Background
- Petitioners Brian and Claire Dempsey filed a Short Form Autism petition (2004) and later an amended petition (2014) alleging vaccines (MMR, OPV, varicella, and thimerosal-containing vaccines) caused neurological injuries in their son K.J.D.; entitlement was denied in a February 23, 2017 decision.
- Judgment entered March 13, 2017; petitioners sought attorneys’ fees ($126,540.50) and costs ($37,215.14), plus $120 in out-of-pocket expenses.
- Respondent stated he had no role in fee resolution but did not contest good faith or reasonable basis and deferred to the Special Master’s discretion on amounts.
- The Special Master applied forum rates recognized for the McLaren firm, reduced travel time rates to 50%, lowered some law clerk rates to Fee Schedule caps, and applied reductions for administrative, vague, duplicative, and block-billed entries.
- Expert fees for Dr. Richard Boles were sharply reduced because of perceived weakness in his performance and excessive requested rates; travel and miscellaneous costs were also trimmed for lack of documentation or being overhead.
- Final award: attorneys’ fees and costs of $123,369.10 (payable jointly to petitioners and counsel) and $120 to petitioners for out-of-pocket costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to fees where petition unsuccessful | Dempsey sought reasonable attorneys’ fees/costs under 42 U.S.C. §300aa‑15(e) because case was brought in good faith with reasonable basis | Respondent noted no formal role in fee determination but agreed statutory requirements met and deferred to Special Master | Fees recoverable; petition brought in good faith and had reasonable basis; fees awarded subject to reasonableness review |
| Appropriate hourly rates (attorneys, paralegals, law clerks) | McLaren firm requested specified rates up to $440 for lead counsel and sought full rates for travel time | Respondent did not contest rates; Special Master applied forum Fee Schedules, capped law clerk/paralegal rates per prior decisions, and set travel at 50% rate | Adopted forum rates largely, reduced law clerk rates for 2016–2017 to $145/$148, and reduced travel time billing by 50% |
| Reductions for administrative/vague/duplicative entries and block billing | Petitioners submitted detailed billing but included administrative, vague, and block entries | Respondent raised no specific objections but reserved Special Master discretion | Special Master reduced fees: disallowed clerical/admin tasks, discounted vague entries, and applied a further 10% reduction for deficient billing practices |
| Reasonableness of expert fees and travel/other costs | Petitioners sought $30,000 for Dr. Boles ($500–$800/hr) plus various travel, lodging, meal, and miscellaneous costs | Respondent did not contest but left reasonableness to Special Master; record showed problematic expert performance and some undocumented or overhead expenses | Dr. Boles’ rate reduced to $300/hr (travel at 50%); multiple travel/meals and overhead items reduced or denied; expert and other cost awards substantially reduced |
Key Cases Cited
- Sabella v. Secretary of Health & Human Servs., 86 Fed. Cl. 201 (Fed. Cl. 2009) (special masters may reduce awards sua sponte and exercise discretion reviewing fee petitions)
- Savin v. Secretary of Health & Human Servs., 85 Fed. Cl. 313 (Fed. Cl. 2008) (fee reductions and review of fee applications)
- Rochester v. United States, 18 Cl. Ct. 379 (Ct. Cl. 1989) (clerical and secretarial tasks are not billable and are overhead)
- Hensley v. Eckerhart, 461 U.S. 424 (U.S. 1983) (hours that are excessive, redundant, or otherwise unnecessary should be excluded from fee awards)
- Saxton v. Secretary of Health & Human Servs., 3 F.3d 1517 (Fed. Cir. 1993) (special masters may use their experience to reduce hours claimed in fee requests)
- Perreira v. Secretary of Health & Human Servs., 27 Fed. Cl. 29 (Fed. Cl. 1992) (reasonableness standard for reimbursement of costs)
- Valdes v. Secretary of Health & Human Servs., 89 Fed. Cl. 415 (Fed. Cl. 2009) (reductions appropriate where experts bill in large, undetailed blocks)