K.L v. Secretary of Health and Human Services
12-312
| Fed. Cl. | Aug 26, 2016Background
- Petitioner K.L. filed a claim in the Vaccine Program alleging seizures, partial-onset epilepsy, and migraines caused by HPV (Gardasil) vaccinations; petition filed May 11, 2012, amended Mar. 11, 2013.
- Petitioner sought an interim award of attorneys’ fees and costs totaling $50,210.69 (including a $3,500 expert retainer) in September 2014, before a final entitlement determination.
- Over the first year after filing, petitioner primarily filed medical records (under 350 pages) and obtained multiple extensions of time to complete the record and later to produce an expert report; respondent filed a Rule 4(c) report in June 2013 despite incomplete records.
- Petitioner filed an expert report in June 2014 and some additional records and literature in July 2014; petitioner’s counsel billed modest pre‑petition hours and incurred relatively modest expert costs.
- Respondent opposed the interim fee request, arguing the case was not sufficiently protracted, many delays were caused by petitioner’s extensions, and denial would not cause undue hardship.
- Special Master Corcoran denied the interim fee request, finding no special circumstances (protracted litigation, costly experts, or undue hardship) sufficient to justify interim relief, but left open reconsideration if circumstances change.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether interim attorneys’ fees and costs are appropriate before resolution | Dannenberg argued the case is long-running and expensive; counsel needs interim payment to avoid undue hardship and to cover expert costs | Gov’t argued case is not sufficiently protracted; petitioner caused repeated delays and expert costs are modest; no undue hardship shown | Denied — special master found no sufficient protraction, costly experts, or undue hardship to warrant interim award |
| Whether the age of the case alone justifies interim fees | Petitioner contended multi-year litigation supports interim award | Respondent said mere passage of time is insufficient, especially when petitioner requested many extensions | Denied — case age (just over 2 years) and billing history did not show exceptional burden |
| Whether expert-related expenses justify interim funding | Petitioner noted retention of expert and associated costs as a reason for interim payment | Respondent noted expert costs were modest ($3,500) and expert report was brief and timely enough | Denied — expert expenses were not large or unusually burdensome here |
| Whether petitioner’s counsel’s small practice or financial hardship warrants interim relief | Petitioner argued counsel’s small practice would be prejudiced without interim payment | Respondent contested undue hardship showing; special master found no evidence hardship would result | Denied — no persuasive evidence of undue hardship; denial not an abuse of discretion |
Key Cases Cited
- Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343 (Fed. Cir. 2008) (permits interim fee awards; identifies protracted proceedings and costly experts as examples)
- Cloer v. Sec'y of Health & Human Servs., 675 F.3d 1358 (Fed. Cir. 2012) (discusses standards for fees in Vaccine Program)
- McKellar v. Sec'y of Health & Human Servs., 101 Fed. Cl. 297 (2011) (interim fees permitted but require special showing)
- Hensley v. Eckerhart, 461 U.S. 424 (1983) (lodestar and reasonableness standard for attorneys’ fees)
- Davis County Solid Waste Mgmt. v. U.S. Envtl. Prot. Agency, 169 F.3d 755 (D.C. Cir. 1999) (forum rate vs. local rate analysis)
- Woods v. Sec'y of Health & Human Servs., 105 Fed. Cl. 148 (2012) (interim fees appropriate where counsel withdraws; cited for circumstances that may justify interim awards)