Paul v. Secretary of Health and Human Services
17-78
| Fed. Cl. | Oct 25, 2021Background:
- Petitioner Stanley K. Paul filed a Vaccine Program petition alleging influenza vaccination (Oct. 27, 2015) caused polymyalgia rheumatica and chronic inflammatory polyarthritis.
- The Special Master found onset ~2.5 days post-vaccination and parties pursued settlement for about a year; respondent later ceased settlement talks and both parties exchanged expert reports (petitioner: Dr. M. Eric Gershwin; respondent: Dr. Miner).
- After consulting his expert, petitioner moved to dismiss, acknowledging he could not prove entitlement; the Special Master issued a decision denying compensation.
- Petitioner then sought final attorneys’ fees and costs (requested $84,409.94: $61,983.25 fees; $22,426.69 costs); respondent did not file a substantive response.
- The Special Master applied the lodestar method, approved counsel’s requested hourly rates, found the billed hours largely reasonable but reduced fees by $1,000 for certain paralegal/clerical billing, and awarded costs in full.
- Final award: $83,409.94 (joint check to petitioner and counsel).
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to attorneys’ fees/costs after unsuccessful claim | Paul: Brought claim in good faith with reasonable basis; thus eligible for fees/costs under Vaccine Act | Secretary: Did not contest reasonable basis | Awarded fees/costs under 42 U.S.C. §300aa‑15(e); good faith and reasonable basis found |
| Appropriate hourly rates for counsel | Meyers: Requested $350 (2016–17), $375 (2018), $390 (2019), $400 (2020) | Secretary: No objection | Rates approved as reasonable and consistent with prior awards |
| Reasonableness of billed hours | Paul: Detailed time entries; counseled retroactive nonbilling of clerical tasks | Secretary: No objection | Hours largely reasonable; reduced fees by $1,000 for paralegal/clerical download/filing tasks; attorneys’ fees awarded $60,983.25 |
| Reimbursable costs (depositions, expert fees, records, filing fee) | Paul: Requested $22,426.69 including deposition costs and Dr. Gershwin 25.75 hrs @ $500/hr | Secretary: No objection | All requested costs awarded in full; Dr. Gershwin’s rate/hours reasonable |
Key Cases Cited
- Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343 (Fed. Cir. 2008) (endorses lodestar two‑step approach for Vaccine Act fee awards)
- Blum v. Stenson, 465 U.S. 886 (U.S. 1984) (lodestar formula basis: hours × reasonable rate)
- Davis Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot. Agency, 169 F.3d 755 (D.C. Cir. 1999) (forum‑rate exception when bulk of work performed outside forum at substantially lower rates)
- Saxton v. Sec'y of Health & Human Servs., 3 F.3d 1517 (Fed. Cir. 1993) (fees must not be excessive, redundant, or unnecessary)
- Perreira v. Sec'y of Health & Human Servs., 27 Fed. Cl. 29 (Fed. Cl. 1992) (costs awarded must be reasonable)
- Greenlaw v. United States, 554 U.S. 237 (U.S. 2008) (courts act as neutral arbiters; rely on parties to frame issues)
- McIntosh v. Sec'y of Health & Human Servs., 139 Fed. Cl. 238 (Fed. Cl. 2018) (special master review of fee applications for reasonableness)