Dubell v. Secretary of Health and Human Services
14-555
| Fed. Cl. | May 2, 2017Background
- Petitioner Jay Dubell filed a Vaccine Act petition alleging a neurological demyelinating injury from an influenza vaccine received on October 14, 2011.
- The parties stipulated to compensation; on November 2, 2016 the Special Master awarded petitioner $285,000 in damages.
- Petitioner then moved for attorneys’ fees and costs on March 15, 2017, requesting $28,861.27 in attorneys’ fees, $10,233.66 in attorneys’ costs, and $386.79 in personal costs (total $39,481.72).
- Respondent conceded that the statutory requirements for an award of attorneys’ fees and costs were met and recommended the Special Master exercise discretion to determine a reasonable award.
- The Special Master reviewed counsel’s billing records, found the request reasonable based on experience and review, and granted fees and costs with slight adjustment to the total awarded.
- The decision directed payment by two checks: $39,094.93 jointly to petitioner and counsel (Conway, Homer, P.C.), and $386.79 to petitioner; judgment to be entered absent a timely review motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to attorneys’ fees and costs under the Vaccine Act | Dubell sought fees and costs incurred in prosecuting a successful petition. | Respondent agreed statutory requirements were satisfied and deferred to Special Master’s reasoned determination of a reasonable award. | Entitlement established; Special Master may award reasonable fees and costs under 42 U.S.C. § 300aa‑15(e)(1). |
| Reasonableness and amount of fee award (including payee allocation) | Requested $39,481.72 (fees, litigation costs, and petitioner’s personal costs); supported by submitted billing records. | Recommended the Special Master exercise discretion to determine a reasonable amount (no specific objection to amount). | Special Master found the request reasonable, awarded $39,094.93 to be paid jointly to petitioner and counsel and $386.79 to petitioner, and directed entry of judgment. |
Key Cases Cited
- Sebelius v. Cloer, 133 S. Ct. 1886 (2013) (stating special masters must award reasonable attorneys’ fees and costs when compensation is awarded)
- Perreira v. Sec’y of HHS, 27 Fed. Cl. 29 (1992) (special masters have wide discretion in determining reasonable fees)
- Saxton ex rel. Saxton v. Sec’y of HHS, 3 F.3d 1517 (1993) (special masters may rely on prior experience when reviewing fee applications)