Frost v. Secretary of Health and Human Services
16-1671
| Fed. Cl. | Dec 12, 2017Background
- Petitioner Helene Frost filed a petition under the National Childhood Vaccine Injury Act alleging GBS after a flu vaccine on November 18, 2015.
- The Secretary filed a proffer September 13, 2017, and the court awarded compensation consistent with that proffer.
- Petitioner moved for attorneys’ fees and costs on November 4, 2017, seeking $24,838.44 total including Dr. Steven Sykes’ fee.
- Respondent filed a response November 14, 2017, recommending a reasonable award of fees and costs.
- The Vaccine Act permits reasonable attorneys’ fees and costs even without full prevailing in the petition, with the special master’s discretion.
- The Special Master granted the motion, awarding $24,838.44 payable jointly to Frost and counsel, and ordered judgment entry.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to fees and costs under the Vaccine Act | Frost met statutory requirements for an award in good faith. | Respondent agrees petition meets criteria for fee award. | Fees and costs awarded. |
| Reasonableness of requested fees and costs | Billing records show reasonable fees and costs. | Reviewed and found support for a reasonable award. | Award granted as reasonable. |
| Form and allocation of the award | Request includes Dr. Sykes’ fee; award should reflect total relief to Frost and her counsel. | Award to be paid jointly to Frost and Jeffrey S. Pop & Associates. | Total award of $24,838.44 payable jointly to Frost and counsel. |
Key Cases Cited
- Perreira v. Sec’y of HHS, 27 Fed. Cl. 29 (1992) (special masters’ discretion to determine fee reasonableness under Vaccine Act)
- Saxton ex rel. Saxton v. Sec’y of HHS, 3 F.3d 1519 (Fed. Cir. 1993) (special masters’ prior experience permissible in reviewing fee applications)