Dominguez v. Secretary of Health and Human Services
12-378
| Fed. Cl. | Apr 10, 2017Background
- Petitioner George Dominguez received a TDaP vaccine on August 31, 2011 and was later diagnosed with vasculitis, likely Wegener’s granulomatosis.
- Anne Toale (MCT) filed the petition in June 2012, pursued initial record collection, but did not retain an expert before moving to withdraw in October 2014 citing irreconcilable differences; Toale sought interim fees in June 2014.
- The Secretary did not contest diagnosis but argued the claim lacked a medical theory/expert and that the injury did not meet the six-month severity requirement; he also opposed the interim fee request for lack of reasonable basis and excessive rates.
- New counsel (Shoemaker) later filed expert reports (Drs. Mikovits and Ruscetti) supporting causation; those reports shifted the reasonable-basis analysis in favor of petitioner.
- Special Master Moran concluded interim fees are authorized, found the petition brought in good faith and that the later-filed expert reports plus temporal proximity established reasonable basis.
- The Special Master exercised discretion to award interim fees (finding litigation protracted and counsel faced undue hardship), and reduced requested hourly rates and paralegal rates/hours to arrive at an interim award of $29,626.49 payable jointly to petitioner and former counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Authority to award interim fees | Special masters may award interim fees under the Vaccine Act | Interim fees not permitted | Court: Federal Circuit precedent permits interim awards (Shaw, Avera) — authority exists |
| Reasonable-basis for fees eligibility | Petition was brought in good faith and later expert reports provide a medical theory and temporal link | Initially: no expert/theory and insufficient effort by prior counsel | Court: Good faith present; expert reports + timing establish reasonable basis |
| Appropriateness of interim award (discretion) | Interim award justified due to protracted litigation, counsel hardship, and no imminent resolution | Respondent argued undue or improperly placed hardship on petitioner | Court: Exercise of discretion to award interim fees appropriate — litigation protracted and counsel hardship (withdrawal) supported award |
| Reasonableness of amount (rates/hours/costs) | Requested $27,681 fees + $3,808.99 costs; seek local (Sarasota) non-forum rates for paralegals/attorneys | Objected to rates for attorneys/paralegals, travel-time billing, and argued reductions tied to reasonable-basis failures | Court: Reduced some attorney rates (Toale $300; Caldwell & Maglio $275), trimmed travel hours and cut paralegal rates by 10%; awarded $25,817.50 fees + $3,808.99 costs = $29,626.49 |
Key Cases Cited
- Shaw v. Sec’y of Health & Human Servs., 609 F.3d 1372 (Fed. Cir. 2010) (interim fee awards in Vaccine Program permissible)
- Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343 (Fed. Cir. 2008) (interim award factors and when award may be inappropriate)
- Rehn v. Sec’y of Health & Human Servs., 126 Fed. Cl. 86 (2016) (special master discretion in awarding interim fees; who may be burdened)
- Chuisano v. United States, 116 Fed. Cl. 276 (2014) (temporal relationship alone insufficient for reasonable basis without expert support)
- Fox v. Vice, 563 U.S. 826 (2011) (fee-shifting goal is rough justice, not auditing perfection)
- Blum v. Stenson, 465 U.S. 886 (1984) (lodestar method for reasonable attorneys’ fees)
- Perriera v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29 (1992) (costs must also be reasonable)
- Woods v. Sec’y of Health & Human Servs., 105 Fed. Cl. 148 (2012) (attorney withdrawal can favor interim fee award)
- Gruber v. Sec’y of Health & Human Servs., 91 Fed. Cl. 773 (2010) (assessing travel-time billing on a case-by-case basis)