Malone v. Secretary of Health and Human Services
16-2
| Fed. Cl. | Apr 27, 2017Background
- Petitioner Danielle Lipscomb Malone filed a Vaccine Act petition alleging left-shoulder pain caused by an influenza vaccination on November 26, 2013.
- The parties reached a proffer; on June 1, 2016 the Chief Special Master awarded compensation based on respondent’s proffer.
- Petitioner moved for attorneys’ fees and costs on August 11, 2016, seeking $15,007.66 (later adjusted).</n- Respondent did not oppose entitlement but suggested a reasonable fee range of $12,000–$13,000 based on comparable awards.
- Petitioner filed a reply requesting an additional $750 for reply preparation; petitioner submitted a General Order #9 statement that she incurred no out-of-pocket expenses.
- The Chief Special Master reviewed billing records, found the requested hours and rates reasonable, awarded the additional $750, and adjusted minor billing entries, resulting in a total award of $15,833.91 to be paid jointly to petitioner and counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to attorneys’ fees and costs | Malone sought fees and costs under the Vaccine Act; submitted billing and General Order #9 statement | Respondent took no position on entitlement, agreed statutory requirements were met | Entitlement granted under § 15(e) |
| Reasonableness of total amount requested | Counsel’s submitted hours and rates were reasonable; no specific objections | Respondent suggested reasonable total would be $12,000–$13,000 based on surveys of similar cases | Court found petitioner's request reasonable and made no reductions to hours or rates |
| Request for additional fees for preparing the reply | Requested $750 for three hours drafting the reply | Respondent did not object to the specific request | Court awarded the requested $750 as reasonable |
| Documentation and timing of supplemental materials | Counsel later submitted General Order #9 statement and cost receipts, billed 0.3 hours for that work | Respondent did not dispute but critiqued nothing specific | Court accepted the late submission as reasonable but noted it should have been included originally |
Key Cases Cited
- Beck v. Sec’y of Health & Human Servs., 924 F.2d 1029 (Fed. Cir. 1991) (attorney may not collect fees or costs in addition to those awarded under the Vaccine Act)