Howard v. Secretary of Health and Human Services
14-878
| Fed. Cl. | Nov 14, 2017Background
- Petition filed Sept. 22, 2014 under the National Vaccine Injury Compensation Program by Jenny Howard for minor H.C., alleging vasovagal syncope from HPV vaccinations in 2011–2012; entitlement hearing held Aug. 1, 2017.
- Petitioner requested interim attorneys’ fees and costs of $96,691.91 ($69,863.00 fees; $26,828.91 costs) on Aug. 17, 2017; Respondent deferred to the Special Master’s discretion but asked that any award be reasonable.
- Lead counsel Andrew Downing sought forum hourly rates previously awarded to his firm (specified rates for 2014–2017); associates and paralegals sought lower rates; costs included expert fees (Dr. Nemechek), travel, lodging, meals, and administrative expenses.
- Special Master found interim award appropriate (case pending ~3 years; fees > $30,000; expert costs > $15,000) and applied the lodestar method with forum rates.
- Adjustments: travel time for counsel compensated at half rate (reduction $2,450); Dr. Nemechek’s travel and excessive hearing preparation/testimony hours reduced (total expert reduction $5,337.50); lodging and meals reduced to federal per diem rates; small parking adjustment.
- Final interim award granted in part: $86,798.10 total (fees $67,513.00; costs $19,285.10), payable jointly to petitioner and counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether interim fees and costs may be awarded while entitlement unresolved | Combs: Interim award appropriate because case pending long, fees large, expert costs incurred | HHS: Defers to Special Master’s discretion but asks award be reasonable | Interim award permitted—Special Master has discretion and criteria met (pending ~3 years; thresholds exceeded) |
| Appropriate hourly rates (forum rates for in-forum counsel) | Downing: Firm entitled to previously awarded forum rates for 2014–2017 | HHS: Did not contest reasonableness; asked for calculation of reasonable award if granted | Forum rates awarded as requested based on prior precedents for the firm |
| Treatment of travel time and travel-related billing entries | Downing billed full hours for travel to/from hearing; limited detail about work during travel | HHS: Did not object specifically; left to Special Master discretion | Travel time for counsel and expert compensated at half rate absent documentation of substantive work; reduced counsel travel award by $2,450 and expert travel accordingly |
| Reasonableness of expert fees, lodging, and meal expenses | Petitioner sought full expert hours and actual travel/lodging/meals | HHS: No substantive opposition; reserved reasonableness evaluation to Special Master | Expert hours for testimony/prep reduced (awarded fewer hours); lodging and meals reduced to federal per diem; other documented costs awarded in full |
Key Cases Cited
- Cloer v. Sec’y of Health and Human Servs., 675 F.3d 1358 (Fed. Cir.) (interim fees may be awarded before entitlement decision)
- Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343 (Fed. Cir.) (lodestar method and forum-rate principles)
- Hensley v. Eckerhart, 461 U.S. 424 (U.S. 1983) (standards for reasonable attorney’s fees)
- Blum v. Stenson, 465 U.S. 886 (U.S. 1984) (lodestar calculation basis)
- Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201 (Fed. Cl.) (special master’s discretion to reduce hours sua sponte)
- Gruber v. Sec’y of Health & Human Servs., 91 Fed. Cl. 773 (Fed. Cl.) (treatment of travel time and need for documentation)