Mack v. Secretary of Health and Human Services
15-149
| Fed. Cl. | Nov 6, 2017Background
- Petitioner Francine Mack filed a Vaccine Act claim alleging shoulder injuries after three influenza vaccinations; the case was assigned to the Special Processing Unit.
- Respondent moved to dismiss for insufficient proof: inadequate proof of vaccination, unclear onset dates, no medical expert opinion, and failure to show six-month residual effects.
- The Special Master denied compensation and dismissed the petition for insufficient proof; judgment entered under Vaccine Rule 11(a).
- Petitioner moved for attorneys’ fees and costs totaling $13,133.62; respondent deferred to the Special Master to determine a reasonable award.
- The Special Master found the petition was filed in good faith and had a tenuous reasonable basis, but identified substantial evidentiary and billing deficiencies.
- After reducing requested hourly rates to established forum rates, and applying a 20% overall reduction for vague, duplicative, excessive, and clerical billing, the Special Master awarded $7,983.76 in fees plus $703.49 in costs, for a total of $8,687.25, payable jointly to petitioner and counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petitioner is entitled to attorneys’ fees and costs despite dismissal | Mack sought full reimbursement of fees and costs incurred prosecuting her Vaccine Act claim | HHS recommended the Special Master exercise discretion to determine a reasonable award | Award of fees and costs is discretionary when compensation denied; Special Master found good faith and reasonable basis (narrow) and awarded reduced fees and full costs |
| Whether the claim was brought in good faith and had reasonable basis | Mack’s filings and counsel’s conduct indicated sincere belief in vaccine causation | Respondent pointed to weak evidentiary support and urged careful review | Good faith found (subjective); reasonable basis found but only tenuously given evidentiary defects and shifting allegations |
| Proper hourly rates and lodestar calculation for attorneys and paralegals | Counsel requested above-prevailing forum rates for attorneys and higher paralegal rates | Respondent did not contest specifics but deferred to Special Master to set reasonable rates | Special Master reduced requested rates to previously approved forum rates and recalculated lodestar accordingly |
| Whether reductions are warranted for vague, duplicative, excessive, or clerical billing | Mack sought full billed hours despite many entries labelled as conferences, vague descriptions, and administrative tasks | HHS asked Special Master to determine reasonableness; highlighted deficiencies | Special Master reduced total fee award by 20% (after rate adjustments) for vague/duplicative/excessive/clerical billing; awarded full costs |
Key Cases Cited
- Grice v. Sec'y of Health & Human Servs., 36 Fed. Cl. 114 (Fed. Cl. 1996) (petitioners are entitled to a presumption of good faith absent evidence to the contrary)
- McKellar v. Sec'y of Health & Human Servs., 101 Fed. Cl. 297 (Fed. Cl. 2011) (petitioner must affirmatively demonstrate reasonable basis; objective inquiry)
- Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343 (Fed. Cir. 2008) (lodestar and forum rate principles for Vaccine Program attorneys)
- Perriera v. Sec'y of Health & Human Servs., 33 F.3d 1375 (Fed. Cir. 1994) (review of special master’s findings on reasonable basis and fee awards)
- Hensley v. Eckhart, 461 U.S. 424 (U.S. 1983) (counsel must exclude hours that are excessive, redundant, or unnecessary)
- Saxton ex rel. v. Sec'y of Health & Human Servs., 3 F.3d 1517 (Fed. Cir. 1993) (trial courts and special masters may use prior experience to reduce fees/hours)
- Wasson v. Sec'y of Health & Human Servs., 24 Cl.Ct. 482 (Cl. Ct. 1991) (petitioners bear the burden of establishing hours, rates, and expenses in fee applications)
- Rochester v. United States, 18 Cl. Ct. 379 (Cl. Ct. 1989) (clerical/secretarial tasks are overhead and not separately billable)
- Chuisano v. Sec'y of Health & Human Servs., 116 Fed. Cl. 276 (Fed. Cl. 2014) (reasonable basis may erode over time as evidentiary weaknesses become apparent)