Gannuscio v. Secretary of Health and Human Services
15-344
| Fed. Cl. | Apr 3, 2017Background
- Petitioners (Katie Davis & Scott Gannuscio) filed a Vaccine Program petition on behalf of their minor son M.G., alleging ataxia from influenza and Hepatitis A vaccines administered Jan 13, 2014.
- The parties filed a stipulation resolving the case; a decision awarding compensation pursuant to that stipulation was entered Aug. 31, 2016.
- Petitioners then filed an application for attorneys’ fees and costs requesting $25,974.00 in fees and $4,350.07 in costs (total $30,324.07).
- Respondent deferred to the Special Master’s discretion as to a reasonable award.
- The Special Master applied the lodestar method, reviewed counsel’s submitted contemporaneous billing, and evaluated requested hourly rates, billed hours, and litigation costs.
- The Special Master approved most requested rates and hours but reduced one attorney’s rate for a portion of the billing period, resulting in a total award of $29,295.07 to be paid jointly to petitioners and counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to attorneys’ fees and costs | Petitioners sought fees/costs because the petition resulted in an award of compensation under the Vaccine Act. | Respondent recommended the Special Master determine a reasonable award (no substantive objection). | Entitlement established; fees and costs are awardable under 42 U.S.C. § 300aa-15(e)(1). |
| Reasonable hourly rates (Mr. Cohan and Mr. Carney; paralegals) | Requested $400/hr for Cohan, $290/hr for Carney, $125/hr for paralegals. | Respondent challenged reasonableness only through reservation; Special Master compared to forum rates and prior awards. | Cohan: $400/hr granted; paralegals: $125/hr granted; Carney: $275/hr for work through Oct 2016, $290/hr thereafter. |
| Reasonable hours expended | Billing logs reflected 11.10 hrs (Cohan), 69.60 hrs (Carney), 10.80 hrs (paralegal); requested hours reasonable. | No substantive challenge to hours. | Special Master found the hours reasonable and awarded them. |
| Litigation costs | Requested $4,350.07 primarily for medical records, filing fee, guardianship fees. | No substantive objection. | Costs found reasonable and awarded in full. |
Key Cases Cited
- Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343 (Fed. Cir. 2008) (approves lodestar approach for Vaccine Act fee awards)
- Blum v. Stenson, 465 U.S. 886 (U.S. 1984) (lodestar definition: hours multiplied by reasonable rate)
- Savin v. Sec'y of Health & Human Servs., 85 Fed. Cl. 313 (Fed. Cl. 2008) (requirements for contemporaneous, specific billing records)
- Saxton v. Sec'y of Health & Human Servs., 3 F.3d 1517 (Fed. Cir. 1993) (hours that are excessive, redundant, or unnecessary should be excluded)
- Hensley v. Eckerhart, 461 U.S. 424 (U.S. 1983) (reasonableness standard for hours)
- Perreira v. Sec'y of Health & Human Servs., 27 Fed. Cl. 29 (Fed. Cl. 1992) (reasonableness requirement applies to costs)