Marshall v. Secretary of Health and Human Services
14-491
| Fed. Cl. | Jan 3, 2018Background
- Petitioner Felicia Marshall filed a Vaccine Program petition alleging GBS and CIDP from an HPV vaccine administered June 21, 2011; damages were awarded by stipulation on June 1, 2017.
- On December 1, 2017, petitioner sought $80,263.10 for attorneys’ fees and costs incurred by Maglio Christopher & Toale, PA; counsel reported petitioner had not advanced funds.
- Respondent agreed statutory requirements for an award were met and deferred to the special master to determine a reasonable amount.
- The special master applied Vaccine Act fee principles (forum rates, McCulloch framework, reasonableness review of hours and rates) to the submitted billing records.
- The special master found parts of the billing inappropriate (full travel rate, certain law clerk rate, clerical tasks billed, vague/duplicative and block billing, and excessive hours) and made several reductions.
- After reductions, the special master awarded $40,051.65 in attorneys’ fees plus $22,664.20 in attorneys’ costs, for a total joint check of $62,715.85 payable to petitioner and counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to fees and costs | Fees and costs of $80,263.10 are reasonable and should be awarded | Agreed statutory entitlement; left reasonableness to court | Fees and costs are recoverable; amount subject to special master’s reasonableness adjustments |
| Travel time billing rate | Mr. Caldwell billed full hourly rate for travel to meet petitioner | Respondent did not contest entitlement; reasonableness review applies | Travel time compensated at one-half counsel’s hourly rate; reduction of $2,070.00 |
| Hourly rate for law clerk | Requested $150/hr for law clerk work | Respondent deferred reasonableness to special master | Reduced law clerk rate from $150 to $145 (deduction $7.50) |
| Billing entries (clerical, vague, duplicative, block, excessive) | Counsel billed numerous entries for administrative tasks, file reviews, record and expert review, and used block billing | Respondent left reasonableness to court | Clerical/admin time disallowed ($1,040.50); specific vague entries reduced ($1,078.70); overall 25% reduction for excessive/duplicative/vague/block billing ($13,350.55); total fee reductions $17,547.25 |
Key Cases Cited
- Perreira v. Secretary of HHS, 27 Fed. Cl. 29 (reasonableness review of Vaccine Act fee requests)
- Saxton v. Secretary of HHS, 3 F.3d 1517 (special masters may use experience in reviewing fee applications)
- Avera v. Secretary of HHS, 515 F.3d 1343 (forum rates and reasonableness standard for hourly rates)
- Rodriguez v. Secretary of HHS, 632 F.3d 1381 (forum rate guidance)
- Hensley v. Eckerhart, 461 U.S. 424 (hours must be reasonable; exclude excessive or redundant time)
- Savin v. Secretary of HHS, 85 Fed. Cl. 313 (requirement for contemporaneous, specific billing entries)
- Sabella v. Secretary of HHS, 86 Fed. Cl. 201 (special master may reduce fees sua sponte and consider staffing inefficiencies)
- Broekelschen v. Secretary of HHS, 102 Fed. Cl. 719 (no line-by-line analysis required when reducing fees)
- Rochester v. United States, 18 Cl. Ct. 379 (clerical/secretarial tasks are not billable)
- Bell v. Secretary of HHS, 18 Cl. Ct. 751 (fee applications must detail time so special master can assess reasonableness)
- Wasson v. Secretary of HHS, 24 Cl. Ct. 482 (support for non-line-by-line reductions for unreasonable billing)