Dilsaver v. Secretary of Health and Human Services
16-716
| Fed. Cl. | Mar 3, 2020Background
- Petitioner Lucianna Dilsaver filed a Vaccine Act petition on June 20, 2016, alleging dermatomyositis and necrotizing autoimmune myopathy following an influenza vaccination on October 8, 2014.
- The parties stipulated to compensation, and a decision awarding damages was entered on July 25, 2019.
- Petitioner filed an attorneys’ fees and costs application on October 22, 2019 seeking $62,710.05 ($38,942.20 in fees; $23,747.80 in attorney costs) and warranted $20.05 in personal litigation costs.
- Respondent did not object and stated statutory requirements for an award were met.
- The special master reviewed hourly rates, billing entries, and expense documentation, found rates and hours reasonable, and awarded the full requested amounts.
- The special master ordered payment totaling $62,710.05 (distributed as $62,690.00 payable jointly to petitioner and counsel, and $20.05 payable to petitioner).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Availability of fees after stipulation-based award | Fees are recoverable where compensation was awarded by stipulation | Agreed statutory requirements met; no objection | Award permissible under 42 U.S.C. §300aa-15(e)(1); fees awarded |
| Proper method to calculate fee award | Apply lodestar (hours × reasonable rate) | Agreed; relied on precedent | Lodestar used; no upward/downward adjustment applied |
| Reasonableness of hourly rates | Rates requested match prior awards for Conway Homer attorneys/paraprofessionals | No objection | Requested hourly rates found reasonable and awarded in full |
| Reasonableness of hours and costs (including expert fees) | Hours and costs documented and appropriate for case work and expert review | No objection | Hours and costs (medical records, filing fee, travel, expert work) found reasonable; full reimbursement granted |
Key Cases Cited
- Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343 (Fed. Cir. 2008) (approving lodestar approach under the Vaccine Act)
- Blum v. Stenson, 465 U.S. 886 (1984) (establishing lodestar methodology)
- Hensley v. Eckerhart, 461 U.S. 424 (1983) (hours must not be excessive, redundant, or unnecessary)
- Saxton v. Sec'y of Health & Human Servs., 3 F.3d 1517 (Fed. Cir. 1993) (courts may use experience to reduce claimed hours)
- Savin v. Sec'y of Health & Human Servs., 85 Fed. Cl. 313 (2008) (requiring contemporaneous, specific billing records)
- Sabella v. Sec'y of Health & Human Servs., 86 Fed. Cl. 201 (2009) (special master may reduce fees sua sponte)
- Broekelschen v. Sec'y of Health & Human Servs., 102 Fed. Cl. 719 (2011) (no line-by-line analysis required when reducing fees)
- Wasson v. Sec'y of Health & Human Servs., 24 Cl. Ct. 482 (1991) (special masters may rely on prior experience to judge reasonable hours)