Dulaurier v. Secretary of Health and Human Services
14-1138
Fed. Cl.Apr 10, 2017Background
- Petitioner Waleska Augustin, personal representative of Dr. Marlie Dulaurier’s estate, filed a Vaccine Program petition alleging injuries (anaphylaxis, vocal cord paralysis, GBS and/or transverse myelitis, gastroparesis) and death following a December 11, 2012 influenza vaccination.
- Parties filed a joint stipulation awarding compensation; a decision adopting that stipulation was entered January 30, 2017.
- Petitioner moved for attorneys’ fees and costs seeking $75,239.50 in fees and $15,715.14 in costs (total $90,954.64), submitting contemporaneous billing records and receipts.
- Respondent deferred to the special master’s discretion, recommending a determination of a reasonable award.
- Special Master Gowen applied the lodestar approach, evaluated hourly/forum rates, reviewed hours billed (311.30 hours), and reviewed requested costs, reducing one expert fee item because the billed hourly rate exceeded prior Program awards and no expert report was filed.
- The special master awarded a reduced total of $90,267.14 in attorneys’ fees and costs, to be paid jointly to petitioner and counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to fees and costs | Petitioner sought reasonable attorneys’ fees and costs after obtaining compensation by stipulation. | Respondent took no position on amount, deferred reasonableness to special master. | Fees and costs are recoverable under the Vaccine Act where compensation is awarded; award granted. |
| Hourly/forum rates | Counsel requested specified rates ($275–$310 for lead, $150 for associate, $125 for paralegal) and cited prior McCulloch forum rates. | Respondent did not contest; forum-vs-local rate issue not fully briefed. | Forum rates awarded; requested rates found reasonable and within McCulloch ranges for counsel’s experience. |
| Hours expended | Petitioner submitted detailed, contemporaneous billing for 311.30 hours, citing case complexity and voluminous records. | Respondent did not challenge hours. | Hours billed were reasonable given case complexity and were awarded in full. |
| Expert costs | Petitioner requested full invoice for Dr. Gorson at $750/hr (2.75 hrs). | Respondent did not litigate, but special master reviewed reasonableness. | Expert hourly rate limited to $500 (no Program expert awarded more previously); $687.50 reduced from requested costs. |
Key Cases Cited
- Avera v. Secretary of Health & Human Services, 515 F.3d 1343 (Fed. Cir. 2008) (approves lodestar approach for Vaccine Act fee awards)
- Blum v. Stenson, 465 U.S. 886 (U.S. 1984) (defines lodestar: reasonable hours × reasonable hourly rate)
- Saxton v. Secretary of Health & Human Services, 3 F.3d 1517 (Fed. Cir. 1993) (special master has discretion in fee determinations)
- Hensley v. Eckerhart, 461 U.S. 424 (U.S. 1983) (hours must not be excessive, redundant, or unnecessary)
- Davis County Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. EPA, 169 F.3d 755 (D.C. Cir. 1999) (forum rate principle and when local rates may apply)
- Savin v. Secretary of Health & Human Services, 85 Fed. Cl. 313 (Ct. Fed. Cl. 2008) (requirement for contemporaneous, specific billing records)