Eberhart v. Secretary of Health and Human Services
16-169
| Fed. Cl. | Aug 23, 2017Background
- Petitioner Annette Eberhart filed a Vaccine Program petition alleging Guillain-Barré syndrome caused by a February 7, 2013 Tdap vaccination; petition filed February 4, 2016.
- Parties filed a stipulation for damages on January 3, 2017, which the special master adopted the same day.
- Petitioner sought final attorney’s fees and costs of $50,611.33 (fees $49,473.30; costs $1,138.03) plus $36.69 in personal litigation expenses.
- Respondent did not oppose entitlement to fees/costs but deferred to the special master on amount.
- The special master applied the Vaccine Act fee standards and McCulloch forum-rate framework, reviewed hourly rates and hours billed, and identified excessive and duplicative pre-filing work.
- The special master reduced attorney fees by 30%, awarded $34,631.31 in attorney’s fees, $1,138.03 in litigation costs, and $36.69 in petitioner’s personal costs; total $35,769.34 to be paid jointly to petitioner and counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to attorney’s fees and costs | Eberhart requested full reasonable fees and costs after successful stipulation. | HHS did not dispute entitlement; left amount to court’s discretion. | Entitlement granted under Vaccine Act §15(e). |
| Appropriate hourly rates | Counsel sought forum rates consistent with prior RawlsMcNelis awards. | Respondent raised no rate objections. | Requested attorney and paralegal rates found reasonable and awarded. |
| Reasonableness of hours billed | Petitioner sought recovery for all hours billed (205 total; 140.7 pre-filing). | Respondent did not object to hours but the master may sua sponte reduce. | Master found pre-filing time excessive/duplicative and reduced total attorney fees by 30%. |
| Recovery of litigation and personal costs | Requested $1,138.03 litigation costs and $36.69 personal costs. | Respondent did not object to costs. | Both litigation costs and petitioner’s personal costs awarded in full. |
Key Cases Cited
- Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343 (Fed. Cir. 2008) (forum rule for determining reasonable hourly rates)
- Sabella v. Sec’y of Health & Human Servs., 96 Fed. Cl. 201 (2009) (special masters may reduce fees sua sponte)
- Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29 (1992) (standard recognizing special masters’ discretion over fee awards)