Erxleben v. Secretary of Health and Human Services
14-385
| Fed. Cl. | Dec 12, 2017Background
- Petitioner Reta Erxleben filed a Vaccine Program petition alleging dysphagia, vocal cord dysfunction, and laryngeal dystonia caused by a 2011 influenza vaccine; the special master dismissed the petition on May 10, 2017.
- Counsel Edward M. Kraus represented petitioner through most of the case, obtained an expert who later withdrew, and assisted petitioner in responding to an Order to Show Cause before moving to withdraw.
- Kraus filed a motion for attorneys’ fees and costs after dismissal and then moved to withdraw; he also sought limited standing to resolve the pending fee motion.
- Respondent stated there was statutory entitlement to fees/costs and deferred to the special master to set a reasonable amount; respondent did not oppose Kraus’s standing motion.
- Chief Judge Braden denied petitioner’s motion for review and entered judgment; the special master then addressed Kraus’s standing and the fee petition.
- The special master found the petition was brought in good faith and had a reasonable basis during the relevant period, awarded the full requested attorneys’ fees ($53,626.30) and costs ($14,651.85), and granted Kraus limited standing to resolve the fee award; payment was ordered by joint check to petitioner and Kraus.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether former counsel (Kraus) has limited standing after withdrawal to pursue/resolv e a fee motion | Kraus sought standing to reply, preserve fee interests, and finalize fee award after withdrawing to allow petitioner to proceed pro se | Respondent did not object to Kraus’s limited standing request | Granted: special master allowed limited standing to resolve pending fee motion |
| Whether attorneys’ fees and costs may be awarded despite dismissal | Erxleben sought fees/costs incurred while counsel prosecuted the case through dismissal | Respondent agreed statutory requirements were met and recommended the master exercise discretion to set a reasonable award | Granted: fees and costs awarded because claim was brought in good faith with reasonable basis |
| Whether there was a reasonable basis for the claim during the period for which fees are requested | Petitioner pointed to temporal association and initial expert support before expert withdrawal | Respondent acknowledged factual posture and did not contest reasonable basis for the relevant period | Held: special master found reasonable basis existed through dismissal and therefore fee award appropriate |
| Whether the requested rates, time, and costs were reasonable | Counsel submitted detailed billing and relied on established fee schedules and prior awards | Respondent did not object to the reasonableness or amounts | Held: special master found rates/time/costs reasonable and awarded the full amount ($68,278.15) payable by joint check to petitioner and Kraus |
Key Cases Cited
- Saxton v. Sec'y of Health & Human Servs., 3 F.3d 1517 (Fed. Cir. 1993) (special master has discretion to award fees in unsuccessful Vaccine Act claims when good faith and reasonable basis exist)
- Shaw v. Sec'y of Health & Human Servs., 609 F.3d 1372 (Fed. Cir. 2010) (discusses special master's discretion in fee awards under the Vaccine Act)
- Beck v. Sec'y of Health & Human Servs., 924 F.2d 1029 (Fed. Cir. 1991) (attorney prohibited from collecting fees in addition to amount awarded under the Vaccine Act)