Leak v. Secretary of Health and Human Services
13-712
| Fed. Cl. | May 30, 2017Background
- Petitioner Shane D. Leak filed a Vaccine Act claim alleging a 2010 influenza vaccine caused Acute Disseminated Encephalomyelitis (ADEM).
- Parties informally resolved the claim and a decision awarding compensation was entered on September 16, 2016.
- Petitioner moved for attorneys’ fees and costs totaling $70,625.64.
- Respondent did not object to entitlement and asked the Special Master to determine a reasonable amount.
- The Special Master applied the lodestar method, adjusted hourly rates under the Davis forum-rate exception for counsel based in Utah, disallowed 0.5 hours billed by an attorney not eligible to practice before the Court of Federal Claims, and reduced paralegal/forum rates.
- The Special Master awarded $45,741.40 in attorneys’ fees and $18,170.64 in costs, for a total joint-check award of $63,912.04.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to fees and costs | Leak sought full reasonable fees and costs after successful resolution | Respondent conceded fee entitlement and deferred to Special Master for amount | Award of fees and costs granted under 42 U.S.C. § 300aa‑15(e) |
| Forum vs. local rates for lead counsel | Richards requested forum rates for all years billed | Respondent did not object substantively; Special Master evaluated rate issue | Davis exception applied; Richards awarded reduced (non‑forum) rates adjusted by CPI/PPI indices |
| Recovery for work by associate not admitted to the Court of Federal Claims | Firm billed 0.5 hours for Tanner Lenart (associate) | No respondent objection | Disallowed: non‑admitted attorney not eligible to recover fees; 0.5 hours and $100 reduced from award |
| Reasonableness of billed hours and requested costs (life‑care plan, forensic accounting, records) | Petitioner submitted detailed time records and cost invoices | Respondent raised no specific objections | Hours found reasonable; requested costs allowed in full (including life‑care planning and forensic accounting) |
Key Cases Cited
- Broekelschen v. Sec’y of HHS, 102 Fed. Cl. 719 (Fed. Cl. 2011) (Special Master need not perform line‑by‑line reduction; lodestar discretion explained)
- Blanchard v. Bergeron, 489 U.S. 87 (U.S. 1989) (lodestar method described: reasonable hours × reasonable rate)
- Avera v. Sec’y of HHS, 515 F.3d 1343 (Fed. Cir. 2008) (forum rates normally used; Davis exception permits non‑forum rates for out‑of‑forum counsel when market disparities exist)
- Davis Cnty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. E.P.A., 169 F.3d 755 (D.C. Cir. 1999) (establishes standard for awarding local rather than forum rates)
- Beck v. Sec’y of HHS, 924 F.2d 1029 (Fed. Cir. 1991) (attorney fee award intended to encompass all fees and costs; counsel may not collect additional amounts from client)