Green v. Secretary of Health and Human Services
15-1447
| Fed. Cl. | Dec 12, 2017Background
- Petitioner Karen Green filed a Vaccine Program petition alleging SIRVA after a June 19, 2014 TDaP vaccination; case resolved by joint stipulation and award on August 3, 2017.
- Petitioner sought attorneys’ fees of $20,848.88, attorneys’ costs of $14,512.10 (including expert fees), and $550 in petitioner-incurred costs; respondent deferred to the special master to determine a reasonable amount.
- The special master applied the lodestar method using forum rates as guided by McCulloch and related fee schedules, assessing hourly rates and billed hours for counsel and a paralegal with nursing credentials.
- The special master approved the requested hourly rates for counsel (Michael Firestone) and for the nurse-paralegal (Patricia Barrick), finding Barrick’s nursing background justified rates above typical paralegal ranges.
- The special master reduced the requested expert fees for Dr. John G. Costouros: although his work and credentials warranted substantial compensation, the award was capped at $500/hour (the Program’s typical ceiling), resulting in payment of $8,500 (62.5% of the requested $13,600).
- Final award: $30,260.98 to petitioner and counsel (joint check) for attorneys’ fees and costs, plus $550 to petitioner for out-of-pocket costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Reasonable hourly rates for counsel | Requested forum rates and modest increases for 2016–2017 as counsel gained experience | Respondent deferred to special master discretion | Approved requested forum rates for counsel (Firestone) and increases for 2016–2017 as reasonable |
| Paralegal hourly rate for nurse-paralegal | Sought rates above McCulloch paralegal range based on 40+ years nursing and 30+ years paralegal experience | Respondent deferred | Approved higher-than-McCulloch rates given specialized nursing credentials and value added |
| Expert fees for Dr. Costouros | Requested $800/hour plus flat fees totaling $13,600 for IME, review, and report | Respondent deferred to special master reasonableness determination | Reduced expert compensation to $500/hour and proportionally reduced flat fee (62.5% of requested), awarding $8,500 |
| Petitioner’s out-of-pocket costs | Sought $550 for filing fee and physician letter fee | Respondent deferred | Awarded $550 to petitioner as reasonable |
Key Cases Cited
- Avera v. Secretary of Health & Human Services, 515 F.3d 1343 (Fed. Cir. 2008) (approves lodestar method for Vaccine Act fee awards)
- Blum v. Stenson, 465 U.S. 886 (U.S. 1984) (lodestar principles and reasonable attorney’s fees standard)
- Rodriguez v. Secretary of Health & Human Services, 632 F.3d 1381 (Fed. Cir. 2011) (forum rate functions as a ceiling)
- Davis County Solid Waste Mgmt. v. EPA, 169 F.3d 755 (D.C. Cir. 1999) (forum rates presumptively used unless substantial differences justify local rates)
- Hensley v. Eckerhart, 461 U.S. 424 (U.S. 1983) (hours must be reasonable; reductions for excessive or redundant time)
- Saxton v. Secretary of Health & Human Services, 3 F.3d 1517 (Fed. Cir. 1993) (special master discretion to reduce unreasonable hours)
- Sabella v. Secretary of Health & Human Services, 86 Fed. Cl. 201 (Fed. Cl. 2009) (special master may reduce fees sua sponte)
- Caves v. Secretary of Health & Human Services, 111 Fed. Cl. 774 (Fed. Cl. 2013) (applying lodestar to determine reasonable expert fees)
- Beck v. Secretary of Health & Human Services, 924 F.2d 1029 (Fed. Cir. 1991) (awarded fees encompass all attorney charges; attorney cannot collect additional fees beyond award)