Difazio v. Secretary of Health and Human Services
09-530
| Fed. Cl. | Jun 5, 2017Background
- Petitioner Vincent F. DiFazio filed a Vaccine Program petition alleging brachial neuritis from a 2006 tetanus shot; respondent conceded entitlement after special master found vaccination and table timing.
- After hearings on damages (Oct. 2016) the parties submitted a damages proffer and special master awarded compensation; petitioner subsequently moved for attorneys’ fees and costs.
- Petitioner requested $137,523.10 in attorneys’ fees and $90,439.07 in costs (total $227,962.17); requests included rates for lead counsel F. John Caldwell Jr., other firm attorneys, paralegals, former counsel/father Salvatore DiFazio, expert Dr. Thomas Morgan, and accounting firm CliftonLarsonAllen.
- Respondent deferred to the special master’s discretion and made no specific objections; petitioner sought full payment of requested rates and costs.
- Special Master Sanders applied the lodestar approach, adjusted certain travel and secretarial tasks to paralegal rates, awarded fees for former counsel where an attorney-client relationship was shown, and found the expert and accounting-firm costs reasonable.
- Final award: total $232,851.17 — $224,581.67 payable to petitioner and current counsel; $8,269.50 payable to petitioner and former counsel Salvatore DiFazio.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Reasonable hourly rates for lead and associate counsel | Caldwell’s requested forum rates ($300–$367 for Caldwell; $300 for associates; paralegals at $95–$145) are reasonable | Respondent asked the master to exercise discretion; no specific rate objections | Rates for Caldwell, associates, and paralegals were found reasonable and awarded as requested |
| Fees for family/former counsel (Salvatore DiFazio) | DiFazio seeks $385/hr for 25.7 hrs based on his prior representation and role as initial counsel | Respondent did not object but special master must find evidence of attorney-client relationship | Attorney-client relationship existed; DiFazio awarded at $385/hr for substantive work but secretarial tasks billed at paralegal rate ($135/hr); total awarded $8,269.50 |
| Travel time billing by counsel and paralegals | Caldwell and paralegals billed full hourly rates for several air/ground travel days | Respondent raised no specific objection but special master reviews reasonableness; travel compensable only if work documented | Travel billed without adequate contemporaneous work detail was reduced: some travel days awarded at half rate, one ground-travel day at two-thirds, and paralegal travel reduced by half; total deduction $3,380.50 |
| Reimbursement for expert and accounting-firm costs | Petitioner seeks $7,100 for neurologist Dr. Morgan and $63,975.85 for CliftonLarsonAllen analyses | No substantive objection; respondent deferred to the master’s reasoned discretion | Dr. Morgan’s $400/hr and CliftonLarsonAllen’s total fees were reasonable and awarded in full; other costs also awarded in full |
Key Cases Cited
- Avera v. Secretary of Health & Human Servs., 515 F.3d 1343 (Fed. Cir. 2008) (endorsing lodestar two-step for Vaccine Act fee awards)
- Blum v. Stenson, 465 U.S. 886 (U.S. 1984) (lodestar methodology: hours × reasonable rate)
- Saxton v. Secretary of Health & Human Servs., 3 F.3d 1517 (Fed. Cir. 1993) (special masters have discretion to determine fee reasonableness)
- Hines v. Secretary of Health & Human Servs., 22 Cl. Ct. 750 (Ct. Cl. 1991) (reviewing court should grant special masters wide latitude on fee reasonableness)
- Savin v. Secretary of Health & Human Servs., 85 Fed. Cl. 313 (Fed. Cl. 2008) (requirement for contemporaneous, specific billing records)
- Gruber v. Secretary of Health & Human Servs., 91 Fed. Cl. 773 (Fed. Cl. 2010) (awarding travel time when attorney documents work during travel)
- Perreira v. Secretary of Health & Human Servs., 27 Fed. Cl. 29 (Fed. Cl. 1992) (cost awards must be reasonable)
- Beck v. Secretary of Health & Human Servs., 924 F.2d 1029 (Fed. Cir. 1991) (attorney fees award covers all legal expenses; prevents double charging)