Harman v. Secretary of Health and Human Services
13-796
| Fed. Cl. | Apr 10, 2017Background
- Kathleen Harman filed a Vaccine Act petition alleging systemic toxicity from an influenza vaccine given Oct 15–16, 2010; petition was ultimately dismissed for insufficient proof on Jan 30, 2017.
- She was pro se initially, retained Sean Greenwood (substituted Nov 20, 2013), who later withdrew (May 18, 2015); Michael Baseluos substituted as counsel Apr 19, 2016.
- Petitioner sought final attorneys’ fees and costs for Baseluos ($11,703.45) and for former counsel Greenwood ($17,288.52) after an earlier interim fee request by Greenwood.
- Respondent took no position on amounts and deferred to the Special Master’s discretion but agreed statutory requirements for an award were met.
- Special Master Gowen found the petition was filed in good faith and had an objective reasonable basis based on contemporaneous medical records (ED visit Oct 17, 2010; PCP notes and VAERS entry noting symptoms soon after vaccination).
- Applying the lodestar method, the Special Master awarded the requested hourly rates, found billed hours reasonable, and approved the requested costs for both attorneys; judgments for the two lump sums were ordered.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to attorneys’ fees/costs where petition dismissed | Harman argued petition was brought in good faith and had reasonable basis based on temporal proximity of symptoms and medical records | Govt agreed statutory requirements were satisfied and left amount to Special Master | Awarded fees and costs: Special Master found good faith and reasonable basis existed throughout the case |
| Reasonableness of fees, rates, hours, and costs | Counsel requested forum/market rates ($325 for Greenwood; $265–$275 for Baseluos), specific hours and expert costs; submitted contemporaneous billing | Respondent deferred to Special Master’s discretion (no detailed objections) | Lodestar applied; requested rates and hours found reasonable; expert and other costs approved; total sums awarded to counsel and petitioner |
Key Cases Cited
- Avera v. Secretary of Health & Human Services, 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) (hourly-rate times hours formula for reasonable attorney fees)
- Hensley v. Eckerhart, 461 U.S. 424 (U.S. 1983) (hours that are excessive, redundant, or unnecessary should be excluded)
- Saxton v. Secretary of Health & Human Services, 3 F.3d 1517 (Fed. Cir. 1993) (special masters may reduce hours using prior experience and judgment)
- McKellar v. Secretary of Health & Human Services, 101 Fed. Cl. 297 (Fed. Cl. 2011) (reasonable-basis is an objective totality-of-circumstances inquiry)
- Chuisano v. Secretary of Health & Human Services, 116 Fed. Cl. 276 (Fed. Cl. 2014) (discusses evidentiary threshold for reasonable basis below preponderance)
- Broekelschen v. Secretary of Health & Human Services, 102 Fed. Cl. 719 (Fed. Cl. 2011) (no need for line-by-line fee analysis by special masters)
- Savin v. Secretary of Health & Human Services, 85 Fed. Cl. 313 (Fed. Cl. 2008) (requirement of contemporaneous, specific billing records for fee requests)