Mitchell v. Secretary of Health and Human Services
13-948
| Fed. Cl. | Nov 27, 2017Background
- Petitioner Robert T. Mitchell filed a Vaccine Act petition alleging Tenivac (tetanus-diphtheria) vaccination on Oct. 14, 2012 caused fever, severe muscle spasms, vertigo, and myositis.
- Petitioner submitted all evidence and moved for a ruling on the record; Special Master Roth found petitioner failed to prove entitlement and denied compensation in an Aug. 7, 2017 decision.
- Petitioner then sought attorneys’ fees and costs totaling $39,204.76 (fees $32,762.50; costs $6,442.26); respondent did not object to amounts but deferred to the Special Master’s discretion.
- Under Vaccine Act § 15(e), fees may be awarded even for unsuccessful claims if brought in good faith and with a reasonable basis; lodestar method and forum (D.C.) rates govern, with a limited Davis County local-rate exception.
- Special Master found requested rates for lead counsel Randall Knutson ($295/hr) and paralegal Joanna Pell ($75/hr) reasonable based on prior Davis County awards; work by associate Wade Abed was largely non-attorney/clerical and awarded at $75/hr.
- The Special Master awarded $30,505.00 in attorneys’ fees (Knutson 86.5 hrs at $295; Abed 12.9 hrs at $75; Pell 53.6 hrs at $75) and $6,442.26 in costs, for a total award of $36,947.26 paid jointly to petitioner and counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to compensation for vaccine injury | Mitchell alleged Tenivac caused systemic and neurologic injuries | Respondent disputed causation; urged denial based on record | Denied: petitioner failed to carry burden of proof (Decision on merits entered Aug. 7, 2017) |
| Eligibility for attorneys’ fees despite losing on merits | Fees requested for counsel and staff for reasonable work performed | Respondent raised no specific objections to amount; left reasonableness to Special Master | Fees and costs awarded in part: $30,505.00 fees and $6,442.26 costs ($36,947.26 total) |
| Appropriate hourly rates (forum vs. local/Davis County) | Sought local rates for Mankato attorneys (previously awarded under Davis County) | Respondent did not contest rates specifically | Davis County exception applied to Knutson and Pell; Knutson $295/hr and Pell $75/hr awarded |
| Rate and compensation for associate Wade Abed | Requested $250/hr for Abed for 2013 work | No supporting evidence for $250; much of Abed’s work was clerical/paralegal; Abed not admitted to CFC bar in 2013 | Abed’s time compensated at $75/hr (paralegal rate) for 12.9 hours |
Key Cases Cited
- Sebelius v. Cloer, 569 U.S. 369 (fees may be awarded for unsuccessful Vaccine Act claims brought in good faith)
- Bruesewitz v. Wyeth, 562 U.S. 223 (attorney’s fees available for non-frivolous unsuccessful vaccine claims)
- Avera v. Secretary of Health & Human Services, 515 F.3d 1343 (endorsing lodestar approach in Vaccine Act cases)
- Blum v. Stenson, 465 U.S. 886 (reasonable hourly rate defined by prevailing community rate)
- Rodriguez v. Secretary of Health & Human Services, 632 F.3d 1381 (forum-rate rule and limited Davis County exception)
- Hall v. Secretary of Health & Human Services, 640 F.3d 1351 (discussing Davis County exception application)
- Saxton ex rel. Saxton v. Secretary of Health & Human Services, 3 F.3d 1517 (special master discretion to reduce unreasonable hours)
- Hensley v. Eckerhart, 461 U.S. 424 (hours must be reasonable; exclude excessive or redundant time)