Farag v. Secretary of Health and Human Services
17-714
| Fed. Cl. | Jul 20, 2021Background:
- Petitioner Lynn Farag filed a Vaccine Act petition on May 31, 2017 on behalf of minor Z.F., alleging alopecia caused by an HPV vaccine administered May 16, 2016.
- Respondent filed a Rule 4(c) report on September 19, 2017 stating the case was not appropriate for compensation; both sides exchanged multiple medical records and expert reports (Petitioner: Dr. M. Eric Gershwin; Respondent: Dr. Mehrdad Matloubian).
- Petitioner moved for interim attorneys’ fees and costs on September 30, 2020, requesting $44,917.80 (fees $30,092.60; costs $14,825.20).
- Respondent deferred to the Special Master on whether Petitioner made the special showing required for an interim award.
- Special Master Sanders found the petition was brought in good faith and with a reasonable basis, the case had been pending for over three years, and the accumulation of fees and costs justified an interim award.
- The Special Master awarded the full requested interim amount of $44,917.80 as a lump sum payable to Petitioner and counsel; counsel’s hourly rates and billed hours were found reasonable.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether statutory prerequisites for fee award (good faith, reasonable basis) are met | Petition was brought in good faith and has a reasonable basis | Respondent did not contest good faith or reasonable basis | Met; awardable under 42 U.S.C. §300aa-15(e) |
| Whether an interim attorneys’ fees & costs award is justified | Protracted proceedings and accumulated fees create undue hardship; experts costly | Deferred to Special Master on whether special showing satisfied | Interim award warranted under Avera/Shaw given delay and expenses |
| Whether requested hourly rates and hours are reasonable | Rates match previously awarded Vaccine Program forum rates; hours are supported by contemporaneous billing | No objection to reasonableness of rates/hours | Rates and hours found reasonable; fees awarded $30,092.60 |
| Whether requested costs (including expert fees) are reasonable | Costs documented and necessary for prosecution | No objection to costs | Costs found reasonable; costs awarded $14,825.20 |
Key Cases Cited
- Avera v. Secretary of Health & Human Services, 515 F.3d 1343 (Fed. Cir. 2008) (authorizes interim fee awards in protracted cases)
- Shaw v. Secretary of Health & Human Services, 609 F.3d 1372 (Fed. Cir. 2010) (approves interim awards where litigation costs impose undue hardship and claim has good faith basis)
- Saxton v. Secretary of Health & Human Services, 3 F.3d 1517 (Fed. Cir. 1993) (special masters have discretion to determine fee reasonableness)
- Hines v. Secretary of Health & Human Services, 22 Cl. Ct. 750 (1991) (wide latitude afforded special masters in assessing attorneys’ fees)
- Savin v. Secretary of Health & Human Services, 85 Fed. Cl. 313 (2008) (billing records must be contemporaneous and specific)
- Blum v. Stenson, 465 U.S. 886 (1984) (lodestar method: hours x reasonable rate)
- Perreira v. Secretary of Health & Human Services, 27 Fed. Cl. 29 (1992) (cost requests must be reasonable)