Mollica v. Secretary of Health and Human Services
15-1520
Fed. Cl.Jun 29, 2017Background
- Petitioner Tracy Mollica filed a Vaccine Program petition on behalf of her minor child A.M., alleging seizures and limbic encephalitis from a December 18, 2012 influenza vaccine; compensation was awarded by stipulation on March 22, 2017.
- After the award, petitioner moved for attorneys’ fees and costs: $7,525.35 in fees and $648.28 in attorneys’ costs (total $8,173.63 after corrected math).
- Petitioner also sought $2,938.73 in non-attorney costs (personal expenses for guardianship and records).
- Respondent did not object to the overall amount as unreasonable but reserved rights to contest specific rates, hours, or costs.
- The special master applied the lodestar approach, evaluated requested forum rates for counsel in Cincinnati, reviewed contemporaneous billing, and assessed reasonableness of hours and costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether requested hourly rates are reasonable and forum rates appropriate | Bunch seeks forum rates of $385 (2015), $395 (2016), $405 (2017) based on fee schedule and experience | Respondent raised no specific objection to overall amount but reserved challenge to rates | Special master awarded requested forum rates for Bunch as within permissible range and reasonable |
| Whether paralegal rate is reasonable | Request for $100/hr for paralegal | No specific objection | $100/hr awarded |
| Whether hours billed are reasonable | 18.33 hours (Bunch) and 3.5 hours (paralegal) supported by contemporaneous logs | No specific objection | All billed hours awarded in full |
| Whether requested costs (attorney and petitioner) are reasonable | $648.28 in attorney costs; $2,938.73 in petitioner costs for guardianship and records | No specific objection | All requested costs awarded in full |
Key Cases Cited
- Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343 (Fed. Cir.) (endorses lodestar approach for Vaccine Act fee awards)
- Blum v. Stenson, 465 U.S. 886 (U.S.) (establishes lodestar methodology)
- Hensley v. Eckerhart, 461 U.S. 424 (U.S.) (hours that are excessive, redundant, or unnecessary may be excluded)
- Saxton v. Sec'y of Health & Human Servs., 3 F.3d 1517 (Fed. Cir.) (special masters may use experience to reduce fees and hours)
- Sabella v. Sec'y of Health & Human Servs., 86 Fed. Cl. 201 (Fed. Cl.) (special master may reduce fees sua sponte without further notice)
- Broekelschen v. Sec'y of Health & Human Servs., 102 Fed. Cl. 719 (Fed. Cl.) (no line-by-line requirement when reducing fees)
- Perreira v. Sec'y of Health & Human Servs., 27 Fed. Cl. 29 (Fed. Cl.) (reimbursement of costs must be reasonable)