Dezern v. Secretary of Health and Human Services
13-643
| Fed. Cl. | Nov 14, 2016Background
- Petitioner Barry S. Dezern filed a Vaccine Act petition alleging GBS/CIDP from a 2010 influenza vaccine; the parties later stipulated to damages and judgment issued in January 2016.
- Petitioner sought attorney’s fees and costs of $53,982.95 in June 2016; the Maglio Firm requested a $356/hr forum rate for lead attorney F. John (Franklin) Caldwell for 2016 (previously $300/hr).
- Special Master Corcoran initially awarded $48,523.55 (First Decision), granting a modest increase for Caldwell to $335/hr for 2016 and reducing 15.55 hours of billed time.
- Petitioner moved for reconsideration, submitting affidavits and fee-rate evidence from the Sarasota/Tampa area and arguing (1) Sarasota should be treated as forum-equivalent for rates and (2) the reduction of attorney time spent assisting expert Dr. Steinman was unwarranted.
- On reconsideration, the Special Master reviewed local federal fee awards and prior Federal Circuit precedent about the Davis/Avera exception and concluded Sarasota rates for senior attorneys are close enough to forum rates. He awarded Caldwell $356/hr for 2016 but otherwise left prior reductions intact, resulting in a final award of $48,594.95.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Maglio Firm’s Sarasota attorneys are entitled to forum (D.C.) rates for 2016 | Sarasota local rates approximate forum rates; submitted affidavits and a state-court fee award show parity | Respondent did not substantively oppose the requested amount but left rate determination to the Special Master | Granted for Caldwell: awarded $356/hr for 2016 because local rates for 20+ year attorneys were not "very significantly different" from forum rates under Avera/Davis analysis |
| Whether the Special Master should restore reduced attorney time for work with expert (Dr. Steinman) | Counsel spent significant time preparing expert report to reduce expert billing and such oversight was reasonable | Special Master previously found 17.2 hours excessive given the common, routine nature of a flu-GBS case and the expert’s high hourly rate | Denied: upheld 50% reduction to attorney time for work collaborating on the expert report as excessive |
| Whether reconsideration was procedurally appropriate to re-litigate fee calculations | Petitioner sought a second look and new supporting evidence re: local rates | Respondent argued original decision was correct and should stand | Reconsideration granted in part; Special Master cautioned against using Vaccine Rule 10(e) to make new arguments that will not materially change outcomes |
| Final quantum of fees/costs after adjustments | Requested $53,982.95 total | Respondent left amount to discretion | Final award: $48,594.95 (joint check to petitioner and counsel) |
Key Cases Cited
- Avera v. Secretary of Health & Human Services, 515 F.3d 1343 (Fed. Cir.) (non-forum attorneys may receive forum rates unless local rates are "very significantly different")
- Hall v. Secretary of Health & Human Services, 640 F.3d 1351 (Fed. Cir.) (special masters should evaluate the evidence and their experience when applying Avera/Davis exceptions)
- Rodriguez v. Secretary of Health & Human Services, 632 F.3d 1381 (Fed. Cir.) (Vaccine Program attorney fees cannot be equated to rates for more complex federal litigation)
- Davis v. EPA, 169 F.3d 755 (D.C. Cir.) (establishes the locality exception framework referenced in Avera)
- City of Burlington v. Dague, 505 U.S. 557 (U.S.) (fee provisions should not be used to enhance lawyers’ economic position beyond reasonable compensation)