McGuire v. Secretary of Health and Human Services
10-609
| Fed. Cl. | Dec 14, 2016Background
- Petitioner Nicolette McGuire filed a Vaccine Act petition alleging chronic headaches caused by HPV vaccinations given in 2007; entitlement was later denied after hearing.
- Petitioner sought attorneys’ fees ($145,388.50) and costs ($64,629.11 for experts/law‑firm costs; $250 petitioner costs), totaling $210,267.61.
- Significant expert-fee dispute centered on Dr. Sahar Swidan (Pharm.D.), whom petitioner retained; Swidan billed $41,750 (83.5 hrs at $500/hr). Respondent highlighted the large disparity between Swidan’s billings and neurologist Dr. Weig’s fees.
- Special Master reviewed lodestar (reasonable rate × reasonable hours) and found firm hourly rates reasonable per prior decisions, but reduced attorney hours by 5% for unnecessary senior-attorney time.
- For experts, the Special Master awarded Dr. Weig $400/hr for 38.25 hrs in full, but found Swidan’s requested rate and hours unreasonable: set Swidan’s rate at $125/hr and reduced hours from 83.5 to 50.
- Net award: attorneys’ fees $141,764.22; attorneys’ costs $29,129.11; petitioner costs $250.00; total attorneys’ fees and costs $170,893.33 (plus $250 to petitioner).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Eligibility for fees where petition unsuccessful | McGuire contended she acted in good faith and had reasonable basis; thus fees are available. | Respondent did not contest good faith/reasonable basis. | Awardable: petitioner eligible for fees and costs under Vaccine Act. |
| Appropriate method to calculate fees | Lodestar (hours × reasonable rates) produces proper award; firm rates per McCulloch are reasonable. | Respondent proposed a global $100k–$110k range without detailed lodestar objections. | Lodestar applied; firm hourly rates accepted; range objection rejected as inconsistent with lodestar. |
| Reasonable attorney hours / staffing | Petitioner billed ~610 billable hours; asserted work necessary. | Respondent largely silent on specific entries; argued overall amount excessive (range). | Reduced attorneys’ fees by 5% for inefficient senior-attorney involvement; remaining hours allowed. |
| Reasonable expert rates and hours for Dr. Swidan (Pharm.D.) | Petitioner requested $500/hr and 83.5 hrs for Swidan, supported by self‑affidavit, partial consultancy agreement, and Expert Institute listings. | Respondent emphasized Swidan lacks M.D./Ph.D., questioned high rate and heavy billing compared to neurologist. | Swidan awarded $125/hr and 50 hrs (total $6,250); Dr. Weig awarded $400/hr for 38.25 hrs. Large reduction to Swidan’s requested fees upheld due to limited qualifications, poor performance, weak documentation, and vague time entries. |
Key Cases Cited
- Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343 (Fed. Cir. 2008) (endorsing lodestar method for Vaccine Act fee awards)
- Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517 (Fed. Cir. 1993) (applicability of billing judgment to Vaccine Act cases)
- Blum v. Stenson, 465 U.S. 886 (U.S. 1984) (plaintiff bears burden to justify fee award; lodestar methodology)
- Hensley v. Eckerhart, 461 U.S. 424 (U.S. 1983) (billing judgment and reasonableness of hours)
- Raney v. Fed. Bureau of Prisons, 222 F.3d 927 (Fed. Cir. 2000) (self‑serving affidavits insufficient to establish market rates)