Hinojosa v. Secretary of Health and Human Services
14-827
Fed. Cl.Aug 19, 2016Background
- Petitioner Lucas Hinojosa alleged he developed neuropathy/myositis and progressive weakness after a September 20, 2011 influenza vaccination, supported by contemporaneous medical records (neurologic evaluations, EMG/NCS showing demyelinating motor polyneuropathy, MRIs, muscle biopsy).
- Petitioner filed a Vaccine Act petition on September 8, 2014; respondent filed a Rule 4(c) report opposing compensation for insufficient proof.
- Petitioner sought counsel from Conway, Homer & Chin‑Caplan (CHCC) beginning in early 2012; CHCC prepared and filed the petition and gathered medical records and affidavits.
- After respondent’s opposition, petitioner’s counsel attempted to retain an expert but was unable to obtain an expert report and petitioner ultimately dismissed the petition; Chief Special Master Dorsey dismissed the claim for insufficient proof.
- Petitioner then moved for attorneys’ fees and costs under 42 U.S.C. § 300aa‑15(e), requesting $28,739.86 total. Respondent contested the award, arguing lack of reasonable basis and disputing counsel’s rates.
- The Special Master (Roth) found petitioner had a reasonable basis to file, adopted CHCC forum rates established in McCulloch, and awarded the full requested fees and costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the petition had a "reasonable basis" for fee entitlement | Hinojosa: factual record (new neurologic symptoms post‑vax, EMG/biopsy, providers noting temporal association) and counsel’s prefiling investigation satisfied reasonable basis | HHS: counsel should have done more due diligence (obtain expert before filing); no reasonable basis | Held: reasonable basis existed at filing given medical records, prefiling investigation, and temporal association; fee award allowed |
| Whether counsel should have retained an expert before filing (effect on reasonable‑basis standard) | Hinojosa: filing before incurring expert costs is common and encouraged to avoid premature expense; rule would raise the filing threshold | HHS: expert beforehand would show merits and avoid unnecessary fees | Held: Court declined to raise filing standard to require prefiling expert; discouraged preemptive expert costs and found filing threshold met |
| Appropriateness of CHCC hourly rates | Hinojosa: requested CHCC forum (D.C.) rates as previously approved for the firm | HHS: challenged rates per McCulloch arguments | Held: adopted prior CHCC rates (McCulloch reasoning) and declined to reduce rates |
| Entitlement to additional fees for responding to respondent’s opposition | Hinojosa: reply was necessary and time‑consuming to defend reasonable basis; requested additional $4,789 | HHS: implicitly contests necessity by contesting reasonable basis generally | Held: awarded additional fees for the reply as reasonable and necessary to defend the fee application |
Key Cases Cited
- Blanchard v. Bergeron, 489 U.S. 87 (1989) (lodestar method — reasonable fee generally equals hours reasonably expended times reasonable hourly rate)
- Carrington v. Secretary of HHS, 85 Fed. Cl. 319 (2008) (special master discretion in awarding fees)
- Chuisano v. United States, 116 Fed. Cl. 276 (2014) (reasonable‑basis is an objective totality‑of‑circumstances inquiry)
- Perreira v. Secretary of HHS, 33 F.3d 1375 (Fed. Cir.) (a petition may lose reasonable basis during proceedings)
- Saxton v. Secretary of HHS, 3 F.3d 1519 (1993) (special master may use prior experience reviewing fee applications)
- Beck v. Secretary of HHS, 924 F.2d 1029 (1991) (fee award covers all legal expenses and prevents counsel from collecting additional fees beyond award)