Hooker v. Secretary of Health and Human Services
02-472
| Fed. Cl. | Jul 18, 2017Background
- Petition filed May 10, 2002 by Brian and Marcie Hooker on behalf of their son SRH, alleging vaccines (MMR, Hib, thimerosal-containing vaccines) caused autism/“mercury poisoning.”
- The Omnibus Autism Proceeding (OAP) produced multi‑week "test case" rulings (2009–2010) that rejected both the MMR and thimerosal causation theories; those rulings were widely affirmed.
- After the test cases became final, Petitioners amended their petition (July 20, 2011) to press a mercury‑poisoning theory; the Special Master warned counsel (oral Aug 2, 2011 and written Aug 15, 2011) that continuing the same discredited theory could affect fee recovery.
- Petitioners nonetheless pursued expert evidence (including reports from Dr. Mark Geier and others), many filings, and a merits Decision denying compensation issued May 19, 2016. Dr. Geier’s medical license had been suspended/revoked; several experts were found unqualified or unpersuasive and key factual allegations were contradicted by medical records.
- Petitioners sought $210,039.67 (later $207,142.72 plus $2,896.95) in attorneys’ fees and costs. Special Master Hastings awarded $47,888.53, finding no reasonable basis to continue the case after August 31, 2011 and disallowing many fees/costs (notably those tied to discredited experts and excessive pre‑OAP general‑causation work).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petition had reasonable basis to be filed and litigated initially | Hooker: filing in 2002 was reasonable given uncertainty about vaccines and autism | HHS: early filing reasonable but must be reassessed after OAP test cases | Filed in 2002 was reasonable; pursuing the same theory long after OAP was not |
| Whether fees/costs incurred after a cutoff (Aug 31, 2011) are recoverable | Hooker: counsel had an obligation to keep litigating and find supporting evidence; continued fact‑finding was reasonable | HHS: by mid‑2011 the OAP rulings made the theory frivolous; further prosecution was unreasonable | No reasonable basis to continue after Aug 31, 2011; fees/costs after that date (except limited work on fee petition) denied |
| Whether specific billing (hours/rates) and billing judgment were reasonable | Hooker: claimed hours and market rates for experienced counsel are warranted | HHS: many hours were excessive, duplicated, or for paralegal tasks billed at attorney rates; counsel billed excessive general‑causation work pre‑2010 | Court reduced hours for unnecessary general‑causation tasks, adjusted paralegal/attorney rates where appropriate, and allowed claimed rates for pre‑2012 years where reasonable |
| Recoverability of costs for specific experts (notably Dr. Mark Geier) | Hooker: incurred expert costs reasonably in seeking support | HHS: Geier was discredited and sanctioned; paying his fees was unreasonable | Court disallowed substantial Geier fees/costs and other unreasonable expert expenses; allowed modest remaining counsel costs and petitioners’ out‑of‑pocket costs |
Key Cases Cited
- Saxton v. Secretary of HHS, 3 F.3d 1517 (Fed. Cir. 1993) (special master has discretion to determine reasonable fees and may rely on experience rather than line‑by‑line review)
- Shaw v. Secretary of HHS, 609 F.3d 1372 (Fed. Cir. 2010) (fee award discretion affirmed)
- Hensley v. Eckerhart, 461 U.S. 424 (U.S. 1983) (fee applicant must exclude hours that are excessive, redundant, or unnecessary)
- Perreira v. Secretary of HHS, 33 F.3d 1375 (Fed. Cir. 1994) (reasonable‑basis doctrine: counsel must stop pursuing claims when expert theory is plainly deficient)
- Fox v. Vice, 563 U.S. 826 (U.S. 2011) (fee shifting aims for rough justice; courts need not perform auditing perfection)
- Cedillo v. Secretary of HHS, 617 F.3d 1328 (Fed. Cir. 2010) (affirming special‑master rejection of MMR causation theory in OAP test case)