KOTCH v. SECRETARY OF HEALTH AND HUMAN SERVICES
1:19-vv-00675
Fed. Cl.Jun 16, 2025Background
- Gena Binkley Kotch filed a claim under the National Vaccine Injury Compensation Program, alleging Guillain-Barré syndrome or peripheral neuropathy after a 2018 influenza vaccine.
- The claim was successfully settled before a scheduled entitlement hearing, and compensation was awarded to Kotch.
- Petitioner’s attorneys requested a combined total of $333,966.44 in fees and costs, with supporting detail outlining attorney and expert work across several years.
- Respondent agreed Kotch was entitled to a fees award but deferred the specific calculation to the Special Master’s discretion.
- The Office of Special Masters determined the correct attorney rates and examined the reasonableness of the hours billed and all associated costs.
- Ultimately, the court reduced the award slightly, granting a total of $332,960.24.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper hourly rates for attorney/staff | Rates billed consistent with forum rates and prior awards | Defer to court’s discretion | Forum rates allowed; Krakow’s 2025 rate reduced |
| Reasonableness of hours billed | All time incurred reasonable and necessary | Defer to court’s discretion | Hours deemed reasonable, caution on efficiency |
| Reimbursement of litigation costs | All costs, including expert fees, are substantiated | Defer to court’s discretion | All costs allowed as reasonable and documented |
| Authority to grant attorney’s fees | Statutory right to fees as successful petitioner | No dispute—statutory entitlement | Petitioner entitled to reasonable fees and costs |
Key Cases Cited
- Avera v. Sec’y of Health & Hum. Servs., 515 F.3d 1343 (Fed. Cir. 2008) (establishes the lodestar approach for fee calculation under the Vaccine Act and the forum rule for setting rates)
- Blum v. Stenson, 465 U.S. 886 (1984) (approves the lodestar method for calculating attorney fees)
- Hensley v. Eckerhart, 461 U.S. 424 (1983) (discusses the reasonableness standard for federal statutory fee awards)
- Davis Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot. Agency, 169 F.3d 755 (D.C. Cir. 1999) (explains exceptions to the forum rule for setting attorney fees)
- Perreira v. Sec’y of Dep’t of Health & Hum. Servs., 27 Fed. Cl. 29 (1992) (addresses the requirement for reasonable documentation of costs)
- Presault v. United States, 52 Fed. Cl. 667 (2002) (requires reasonable substantiation for litigation costs reimbursed by the federal government)