Kukreja v. Secretary of Health and Human Services
14-104
| Fed. Cl. | Nov 14, 2017Background
- Petition filed Feb 6, 2014 by Anil and Michal Kukreja on behalf of their son D.K., alleging myoclonic seizures from 2011 flu and/or Hep A vaccines; parties later stipulated to $15,000 in damages and the special master entered judgment consistent with the stipulation.
- Petitioners initially proceeded pro se; attorney Lisa A. Roquemore formally entered appearance on Feb 2, 2015.
- Billing records show Roquemore advised the Kukrejas beginning Aug 2013 and billed ~60.6 hours before formally appearing; total billed attorney/paralegal time across the case was 260.4 hours, totaling $80,410.20 in fees.
- Petitioners moved for final attorney’s fees and costs of $112,791.60 (fees $80,410.20; counsel-incurred costs $23,217.36; petitioners’ personal costs $9,164.04). Respondent deferred to the special master’s discretion on amount.
- Special Master Corcoran found forum rates requested reasonable, but reduced the fee award for (1) all hours billed pre-substitution (Feb 2015) and (2) a 20% reduction to post-appearance fees to account for disproportionate billing relative to the modest damages.
- Awards granted: $51,011.36 in attorney’s fees (after reductions) plus $23,217.36 in counsel-incurred costs and $9,164.04 directly to petitioners; total award ordered $74,228.72 payable jointly to petitioners and counsel and $9,164.04 to petitioners personally.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to fees under Vaccine Act | Petitioners sought full reasonable fees and costs as prevailing claimants | Respondent agreed statutory requirements met and deferred amount to court | Fees recoverable; amount subject to special master discretion under Avera and Program practice |
| Appropriate hourly rates | Roquemore and paralegal sought forum rates ($355–$400 for attorney; $125 paralegal) | No objection to rates from Respondent | Forum rates awarded as requested (consistent with prior Program decisions) |
| Compensation for pre-appearance work (ghostwriting/hidden representation) | Petitioners sought reimbursement for all billed hours including pre-appearance period (Aug 2013–Feb 2015) | Respondent raised no objection but special master examined propriety | Pre-appearance hours disallowed in full (reduction of $16,646) because counsel effectively advised pre-filing without formal appearance and pro se leniencies were granted on mistaken view of representation |
| Overall reasonableness of hours / proportionality to recovery | Petitioners sought full billed hours (260.4 hrs) | Respondent deferred; special master considered disparity between fees and $15,000 recovery | Post-appearance fees reduced by 20% to account for excessive/unnecessary work; expert and miscellaneous costs largely awarded; guardianship costs awarded as related to judgment |
Key Cases Cited
- Avera v. Secretary of Health & Human Services, 515 F.3d 1343 (Fed. Cir. 2008) (lodestar/forum-rate methodology governs Vaccine Program fee awards)
- Sabella v. Secretary of Health & Human Services, 96 Fed. Cl. 201 (Fed. Cl. 2010) (special masters may sua sponte adjust fee awards)
- Perreira v. Secretary of Health & Human Services, 27 Fed. Cl. 29 (Fed. Cl. 1992) (discretion of special masters in fees determinations affirmed)
- Fox v. Vice, 563 U.S. 826 (U.S. 2011) (courts should seek "rough justice" when adjusting fee requests)
- Gruber v. Secretary of Health & Human Services, 91 Fed. Cl. 773 (Fed. Cl. 2010) (costs directly associated with judgment terms, such as guardianship, may be awarded under the Vaccine Act)