Ghitza v. Secretary of Health and Human Services
15-404
| Fed. Cl. | Oct 6, 2016Background
- Petitioner Dvora Ghitza filed a Vaccine Act petition alleging brachial neuritis from a May 17, 2012 Td vaccination; entitlement was conceded and a ruling on entitlement issued July 14, 2015.
- A proffer-based damages decision was entered January 6, 2016.
- Petitioner sought attorneys’ fees and costs of $20,323.12 on May 19, 2016, plus a supplemental $1,711.50 for preparing a reply, for a total request of $22,034.62.
- Respondent declined to make detailed objections, instead proposing a reasonable fee range of $13,000–$15,000 based on comparable conceded SIRVA/brachial neuritis cases and criticizing some counsel hourly rates.
- The Special Master adopted the McCulloch framework for counsel’s hourly rates, reviewed billing records, found the requested hours and rates reasonable, awarded the full supplemental fees, and granted the total requested $22,034.62.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petitioner is entitled to an award of reasonable attorneys’ fees and costs under the Vaccine Act | Fees requested are reasonable, supported by billing records; supplemental fees for the reply are justified | Respondent acknowledged statutory entitlement but suggested a lower "reasonable" range ($13k–$15k) based on similar cases and questioned some hourly rates | Award granted in full: $22,034.62 awarded (including $1,711.50 supplemental) |
| Appropriateness of counsel’s hourly rates | Rates follow precedent and are supported by record and McCulloch analysis | Respondent disputes some rates as lacking evidentiary support and declined to accept rates used in McCulloch | Special Master adopted the McCulloch analysis and found the rates reasonable |
| Whether requested hours should be reduced for duplicated or recycled filings | Reply had some overlap with other filings, but portions were unique; no surcharge sought for sur-reply | Respondent urged that the case was straightforward and hours should be limited | Special Master declined to reduce hours; awarded full requested fees including reply time, but cautioned future similar recycled filings might be reduced |
| Form and disbursement of award | Request for attorneys’ fees/costs to be paid jointly to counsel and petitioner; petitioner’s out-of-pocket costs to petitioner | No dispute on form other than respondent’s general comments on total amount | Special Master ordered $21,634.62 payable jointly to petitioner and counsel and $400 payable to petitioner; judgment to be entered |
Key Cases Cited
- Beck v. Sec’y of Health & Human Servs., 924 F.2d 1029 (Fed. Cir.) (attorney fees awarded in Vaccine Program encompass all charges and preclude additional collection from the client)