Herrera v. Secretary of Health and Human Services
15-651
| Fed. Cl. | Apr 25, 2017Background
- Petitioner Janette H. Herrera filed a petition under the National Vaccine Injury Compensation Program alleging Multiple Sclerosis from HPV vaccinations; parties later filed a stipulation and compensation was awarded.
- Petitioner sought attorneys’ fees and costs totaling $38,981.77 (fees $29,300.50; attorney costs $9,281.27; petitioner costs $400).
- Respondent deferred to the special master’s discretion and did not mount substantive opposition to the reasonableness of the overall request.
- The special master applied the lodestar framework (hours × reasonable hourly rates) and Vaccine Program precedent about forum vs. local rates and reasonable billing.
- Key disputes concerned appropriate hourly rates for Mark L. Krueger (requested increases for 2015–2017) and paralegal Renee Nehring, and whether claimed hours and costs were reasonable.
- The special master adjusted some requested rates downward to align with the McCulloch-derived forum ranges, found the hours and other costs reasonable, and awarded a total of $37,703.67 ($37,303.67 to petitioner and counsel jointly; $400 to petitioner).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to fees after award | Herrera sought full reasonable attorneys’ fees and costs under Vaccine Act | Respondent deferred to court discretion; no substantive contest | Award of reasonable attorneys’ fees and costs required and appropriate |
| Appropriate hourly rates (forum/local; specific rates for Mark Krueger and paralegal) | Requested $300 (2014), $385 (2015–2017) for M. Krueger; $125 (2014), $145 (2015–2017) for Nehring | Respondent raised no specific rate objections; special master examines reasonableness against McCulloch ranges | Adjusted rates to forum/McCulloch-based levels: M. Krueger $300(2014), $350(2015), $363(2016), $376(2017); Nehring $125(2014), $135(2015), $140(2016–2017) |
| Reasonable hours billed | Submitted contemporaneous detailed billing for attorneys and paralegal: total hours by each | No substantive challenge to hours from respondent | Hours found reasonable; no reduction to time expended |
| Recoverable costs (expert, postage, filing fee, copying) | Requested $9,281.27 in attorney costs and $400 filing fee for petitioner | Respondent did not challenge costs | Costs found reasonable and awarded in full (total award reduced only by rate adjustments) |
Key Cases Cited
- Avera v. Secretary of Health & Human Services, 515 F.3d 1343 (Fed. Cir. 2008) (approves lodestar approach and forum-rate rule under Vaccine Act)
- Blum v. Stenson, 465 U.S. 886 (U.S. 1984) (lodestar method: hours × reasonable hourly rate)
- Davis County Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. United States Envtl. Prot. Agency, 169 F.3d 755 (D.C. Cir. 1999) (forum-rate exception when local rates are very significantly lower)
- Savin v. Secretary of Health & Human Services, 85 Fed. Cl. 313 (Fed. Cl. 2008) (requirement for contemporaneous, specific billing records)
- Saxton v. Secretary of Health & Human Services, 3 F.3d 1517 (Fed. Cir. 1993) (disallow hours that are excessive, redundant, or unnecessary)
- Hensley v. Eckerhart, 461 U.S. 424 (U.S. 1983) (reasonableness standard for fee hours)
- Perreira v. Secretary of Health & Human Services, 27 Fed. Cl. 29 (Fed. Cl. 1992) (reasonableness requirement applies to costs)