Depena v. Secretary of Health and Human Services
13-675
| Fed. Cl. | Apr 25, 2017Background
- Petitioners Bo and Natalie DePena filed a Vaccine Act claim on behalf of their son Rhone, alleging MMR caused pneumonia; petition filed Sept. 12, 2013.
- Extensive litigation: medical record gathering, multiple expert reports (petitioners’ expert Dr. Boris Lokshin; respondent’s expert Dr. Neil Romberg), two-day hearing (Feb. 11 and Apr. 12, 2016), and post-hearing briefing.
- After the special master found petitioners failed to prove entitlement (Feb. 22, 2017 decision), petitioners timely sought interim attorneys’ fees and costs; they also filed a motion for review of the entitlement ruling.
- Petitioners sought $194,402.41 (later filings adjusted); respondent proposed $80,000–$100,000 and did not press specific line-item objections but urged discretion.
- Special Master Moran awarded interim fees and costs of $148,586.81, explaining reductions to attorney hours and expert hourly rate/hours and disallowing certain first-class travel costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Eligibility for fees (good faith/reasonable basis) | DePena: claim supported by expert reports (Dr. Lokshin) establishing a reasonable basis | Sec’y: did not contend claim lacked reasonable basis or was in bad faith | Eligible; reasonable basis and no bad faith found |
| Whether interim award appropriate | DePena: prolonged litigation, costly experts, and out-of-pocket expenses justify interim relief | Sec’y: did not oppose interim award in conference and suggested overall lower range ($80k–$100k) | Interim award appropriate given Avera factors (protracted case, expert costs, hardship) |
| Reasonableness of petitioner counsel fees and hours | DePena: requested $76,308.10 based on billed rates and entries; counsel defended time entries | Sec’y: suggested exercise of discretion and lower overall award; flagged some excessive tasks | Reduced attorney fee award to $73,000 after line-by-line review; counsel rates accepted for San Antonio forum |
| Expert fees and related costs (Dr. Lokshin) — hourly rate, hours, expenses | DePena: requested $500/hr and 221.7 hours ($110,850), plus expenses | Sec’y: questioned reasonableness of rate and hours; urged substantial reductions | Reduced expert rate to $325/hr; awarded 175.9 hours for pre-/hearing work ($57,167.50) plus $10,600 for post-hearing work performed by counsel instead; disallowed half of first-class airfare ($450 reduction) |
Key Cases Cited
- Rehn v. Sec’y of Health & Human Servs., 126 Fed. Cl. 86 (Fed. Cl. 2016) (standards for interim fee awards)
- Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343 (Fed. Cir. 2008) (factors for interim fee awards)
- McKellar v. Sec’y of Health & Human Servs., 101 Fed. Cl. 297 (Fed. Cl. 2011) (discussing Avera factors)
- Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517 (Fed. Cir. 1993) (billing judgment and fee review principles)
- Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201 (Fed. Cl. 2009) (paying-client test for unnecessary work)
- Valdes v. Sec’y of Health & Human Servs., 89 Fed. Cl. 415 (Fed. Cl. 2009) (compensating attorneys at paralegal rates for paralegal work)