Mulroy v. Secretary of Health and Human Services
15-1324
| Fed. Cl. | Oct 16, 2017Background
- Petitioner Stephanie Mulroy (legal representative of Joanne Arena’s estate) filed a Vaccine Act petition alleging the 2013 flu vaccine caused Arena’s death; she voluntarily moved to dismiss on June 12, 2017 and the petition was dismissed the same day.
- Petitioner sought attorneys’ fees and costs under 42 U.S.C. § 300aa-15(e), requesting roughly $22,869.76 for counsel and $8,027.35 in petitioner-paid litigation costs (after an initial calculation correction).
- Respondent did not dispute that the petition was brought in good faith or lacked reasonable basis and left the fee amount to the special master’s discretion.
- The special master reviewed requested hourly rates for attorney Patricia Finn, paralegal Jessica Wallace, and a legal nurse consultant, and made rate adjustments based on forum schedules and prior awards.
- The special master reduced fees for administrative/clerical tasks, certain vague, excessive, and block-billed time entries, and for an expert invoice that was insufficiently detailed and contained block billing.
- Final award: $15,599.31 (attorneys’ fees and costs payable to petitioner and counsel) and $8,027.35 (litigation costs payable to petitioner).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to fees after dismissal | Case brought in good faith with reasonable basis; eligible for fees and costs | Respondent did not contest good faith or reasonable basis; left amount to discretion | Fees and costs recoverable; good faith and reasonable basis found |
| Reasonable hourly rates | Request: Finn $328 (2016), $340 (2017); paralegal $200; nurse consultant $145 | No opposition to specific rates; amounts left to special master | Finn awarded $316 for 2016 and $340 for 2017; Wallace awarded paralegal forum rates ($130/2013-14, $135/2015-16, $145/2017); nurse consultant $125 (2016) and $145 (2017) as adjusted |
| Administrative/clerical billing and block billing | Counsel billed administrative tasks and some block entries | Respondent did not object but special master can reduce sua sponte | Administrative/clerical time identified (9.5+ hours) flagged; no additional reduction given after rate adjustments but warned; specific reductions for block/vague entries totaling $691.75 |
| Expert and miscellaneous costs | Expert Dr. Waters billed $500/hr (block billed); Dr. Miller billed $500/hr with detail; petitioner sought reimbursement of out‑of‑pocket costs (medical records, probate fees, etc.) | Respondent left amount to discretion; special master required more detail for Dr. Waters | Dr. Waters reduced to $400/hr for 24.75 hours and $250 invoice item eliminated (reduction $2,725); Dr. Miller fully reimbursed at $500/hr; petitioner’s out‑of‑pocket litigation costs (including probate) paid in full |
Key Cases Cited
- Sabella v. Secretary of Health & Human Services, 86 Fed. Cl. 201 (special master may reduce fee awards sua sponte)
- Savin v. Secretary of Health & Human Services, 85 Fed. Cl. 303 (same principle regarding fee reductions)
- Avera v. Secretary of Health & Human Services, 515 F.3d 1343 (court may adjust forum rates upward or downward based on specific findings)
- Rochester v. United States, 18 Cl. Ct. 379 (clerical/secretarial work is overhead and not separately compensated)
- Bell v. Secretary of Health & Human Services, 18 Cl. Ct. 751 (fee applications must sufficiently detail time so reasonableness can be assessed)