Lasnetski v. Secretary of Health and Human Services
14-580
| Fed. Cl. | Jun 16, 2017Background
- Petitioner Holly Lasnetski filed a Vaccine Act petition alleging sensory dysesthesias and an idiosyncratic autoimmune reaction from an HPV vaccine (filed July 9, 2015).
- Special Master Hamilton-Fieldman dismissed the petition for failing to allege a "defined and recognized injury;" the dismissal was affirmed by the Court of Federal Claims (Judge Horn).
- Petitioner appealed to the Federal Circuit and, while the appeal was pending, moved for interim attorneys' fees and costs (Nov. 10, 2016), seeking $29,085.50 in fees and $4,485.46 in costs.
- Petitioner requested hourly rates of $295 (Knutson), $225 (Hemberger), and $75 (paralegal); costs included a $3,000 expert fee for Dr. Dahlgren.
- Respondent stated the statutory requirements for fees were met and left the amount to the special master's discretion.
- Special Master Sanders granted interim fees in part, awarding $28,938.00 in fees and $3,927.96 in costs (total $32,865.96), with deductions for an unallowable bar-research entry ($147.50) and an expert invoice overcharge ($557.50).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether interim fees and costs are appropriate | Case is prolonged, expert retained; undue hardship warrants interim award | Respondent: statutory requirements met and amount left to discretion | Interim award appropriate under Avera/Shaw given case length and pending appeal |
| Appropriate hourly rates | Requested rates: $295 (Knutson), $225 (Hemberger), $75 (paralegal) | Respondent did not contest rates; deferred to special master's discretion | Rates found reasonable and consistent with McCulloch matrix |
| Reasonable hours billed | Requested compensation for all billed time | Respondent did not contest specific hours | One billing entry for researching Federal Circuit bar admission disallowed; deduction $147.50 |
| Allowable costs (expert fees and records) | Requested $4,485.46, including $3,000 for expert Dahlgren | Respondent did not contest amounts | Award reduced to match Dahlgren's actual invoices; $557.50 deducted; total costs $3,927.96 |
Key Cases Cited
- Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343 (Fed. Cir.) (approves interim fee awards when cases are protracted and costly experts retained)
- Shaw v. Sec'y of Health & Human Servs., 609 F.3d 1372 (Fed. Cir.) (interim fees appropriate where litigation costs impose undue hardship and claim has good faith basis)
- Blum v. Stenson, 465 U.S. 886 (U.S.) (lodestar method: reasonable hours × reasonable rate)
- Lombardi v. Sec'y of Health & Human Servs., 656 F.3d 1343 (Fed. Cir.) (petitioners must show at least one defined and recognized injury)
- Saxton v. Sec'y of Health & Human Servs., 3 F.3d 1517 (Fed. Cir.) (special masters have broad discretion to determine fee reasonableness)
- Savin v. Sec'y of Health & Human Servs., 85 Fed. Cl. 313 (Ct. Cl.) (fee applications must include contemporaneous, specific billing records)
- Hines v. Sec'y of Health & Human Servs., 22 Cl. Ct. 750 (Ct. Cl.) (reviewing court should grant special masters wide latitude on fee reasonableness)
- Perreira v. Sec'y of Health & Human Servs., 27 Fed. Cl. 29 (Fed. Cl.) (costs must be reasonable)