Kottenstette v. Secretary of Health and Human Services
15-1016
| Fed. Cl. | Nov 27, 2017Background
- Petitioners filed a Vaccine Act claim on behalf of their daughter C.K., alleging progressive encephalopathy and infantile spasms beginning the day she received DTaP, Hib, IPV, and Prevnar vaccines on October 2, 2012.
- Case was filed September 11, 2015; entitlement hearing occurred July 31, 2017. Petitioners sought interim attorneys’ fees and costs after protracted litigation.
- Respondent did not oppose an award in principle and deferred to the Special Master on the amount.
- Medical records document infantile spasms and chronic encephalopathy with developmental regression and intractable seizures.
- Special Master found good faith and a reasonable basis for filing, and that waiting until final disposition would cause undue hardship—making interim fees appropriate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether interim fees are permissible under the Vaccine Act | Petitioners sought interim compensation for prolonged, expert‑intensive litigation | Respondent did not contest entitlement and deferred to the Special Master on amount | Interim fees are permissible and appropriate here (Avera/Shaw precedent) |
| Whether petition was filed in good faith and with reasonable basis | C.K.’s records showing infantile spasms and encephalopathy support a reasonable basis | No assertion of bad faith from respondent | Good faith and reasonable basis found |
| Appropriate forum hourly rates for lead counsel (McHugh) | Petitioners requested $415–$445 for 2015–2017 | Respondent did not contest rates but left assessment to the Special Master | Reduced to $400 (2015), $415 (2016), $430 (2017); overall fee reduction for rate differences applied |
| Whether billed hours and costs are reasonable (block billing, research, experts, life‑care planner) | Petitioners sought full billing for counsel, expert (Dr. Kinsbourne), and life‑care planner | Respondent raised no specific objections but left reasonableness to the court | 9 hours of counsel research disallowed; 20% reduction for excessive/block billing; expert and life‑care planner fees found reasonable; total interim award adjusted accordingly |
Key Cases Cited
- Avera v. Secretary of Health & Human Services, 515 F.3d 1343 (Fed. Cir. 2008) (interim fee awards under the Vaccine Act permissible; forum‑rate and Davis County guidance)
- Shaw v. Secretary of Health & Human Services, 609 F.3d 1372 (Fed. Cir. 2010) (affirming appropriateness of interim awards under Vaccine Act)
- Savin ex rel. Savin v. Secretary of Health & Human Services, 85 Fed. Cl. 313 (Fed. Cl. 2008) (requirement for contemporaneous, specific billing entries)
- Saxton v. Secretary of Health & Human Services, 3 F.3d 1517 (Fed. Cir. 1993) (hours that are excessive, redundant, or unnecessary should be excluded)
- Hensley v. Eckerhart, 461 U.S. 424 (1983) (lodestar approach: reasonable hours × reasonable rate)
- Perreira v. Secretary of Health & Human Services, 27 Fed. Cl. 29 (Fed. Cl. 1992) (reasonableness requirement applies to both attorneys’ fees and other costs)
- Broekelschen v. Secretary of Health & Human Services, 102 Fed. Cl. 719 (Fed. Cl. 2011) (special master need not perform line‑by‑line fee analysis)