Fisler v. Secretary of Health and Human Services
19-434
| Fed. Cl. | Dec 2, 2021Background
- Petitioner Rebekah Fisler filed a Vaccine Act petition alleging left-shoulder injury (SIRVA) from a December 1, 2017 influenza vaccination.
- The parties filed a stipulation and Chief Special Master Corcoran issued a decision awarding compensation on July 7, 2021.
- Petitioner moved for attorney’s fees and costs on September 10, 2021, seeking $18,203.87 ($17,069.80 fees; $1,134.07 costs). Respondent agreed statutory requirements were met but deferred the amount to the special master.
- The special master reviewed contemporaneous billing records and adjusted requested rates for attorney John C. Newton: reduced 2018 and 2019 rates to previously awarded levels, allowed $325 for later years, producing a $191.50 fee reduction.
- One cost item ($31.20 for Ciox/Blue Ridge Ortho) was denied for lack of substantiation.
- Final award: $17,981.17 total ($16,878.30 fees; $1,102.87 costs), paid jointly to petitioner and counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to attorney’s fees and costs | Sought statutory fees and costs after stipulated compensation | Agreed statutory requirements satisfied; deferred amount to court | Fees and costs awarded under 42 U.S.C. §300aa-15(e) |
| Appropriate hourly rate for counsel | Requested $325/hr for 2018–2021 work | Did not contest entitlement; deferred amount determination | Reduced 2018 and 2019 rates to $300 and $320 respectively; allowed $325 for later years; $191.50 fee reduction |
| Substantiation of requested costs | Claimed $1,134.07 for records and filing fee | No substantive objection to most costs | Denied $31.20 cost lacking documentation; reduced costs accordingly |
| Special master’s authority to adjust fees | Submitted contemporaneous billing and claimed hours were reasonable | No objection to exercise of discretion | Special master properly exercised discretion to reduce amounts without line-by-line analysis and may act sua sponte |
Key Cases Cited
- Savin v. Secretary of Health & Human Services, 85 Fed. Cl. 313 (2008) (requirements for contemporaneous, specific billing records for fee requests)
- Saxton v. Secretary of Health & Human Services, 3 F.3d 1517 (Fed. Cir. 1993) (special master discretion to reduce excessive, redundant, or unnecessary hours)
- Hensley v. Eckerhart, 461 U.S. 424 (1983) (fee applicant must exclude hours that are excessive, redundant, or unnecessary)
- Sabella v. Secretary of Health & Human Services, 86 Fed. Cl. 201 (2009) (special master may reduce fee requests sua sponte without advance notice)
- Broekelschen v. Secretary of Health & Human Services, 102 Fed. Cl. 719 (2011) (no requirement of line-by-line analysis when reducing fees)
- Wasson v. Secretary of Health & Human Services, 24 Cl. Ct. 482 (1991) (burden on petitioner to establish hours, rates, and expenses sought)