Phillips v. Secretary of Health and Human Services
16-906
| Fed. Cl. | Jul 1, 2021Background:
- Petitioner John Robert Phillips filed a Vaccine Program petition on July 29, 2016, alleging chronic idiopathic thrombocytopenic purpura after vaccines received November 20, 2013; the petition was dismissed on November 23, 2020.
- On February 22, 2021 Petitioner sought final attorneys’ fees and costs of $98,767.94 (fees $82,038.98; attorneys’ costs $16,728.96); Petitioner also sought $454.38 in personal litigation costs.
- Respondent stated the statutory requirements for an award of fees and costs were met and raised no objections to the requested amounts.
- The Special Master found the petition was filed in good faith and had a reasonable basis, so Petitioner was eligible for fees despite dismissal; overall hours billed were reasonable.
- The Special Master adjusted hourly rates: Michael Firestone’s 2021 rate reduced from $394 to $365; Mr. Turbow’s 2019 rate reduced from $405 to $365; Mr. O’Hara’s rates were approved as requested; total fee reduction $297.40.
- Attorneys’ costs were reduced by $2,000 because a $2,000 retainer for Dr. Shoenfeld had already been reimbursed in an earlier interim award; final awards: attorneys’ fees $81,741.58; attorneys’ costs $14,728.96; petitioner’s costs $454.38; total $96,924.92.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to fees after dismissal | Phillips argued fees/costs recoverable because petition filed in good faith with reasonable basis | Respondent agreed statutory requirements met; no objection | Awarded: fees and costs allowed because petition had good faith and reasonable basis (Avera standard) |
| Reasonableness of requested hourly rates | Counsel requested specified multi-year rates (including Michael Firestone $394 in 2021; others as listed) | Respondent raised no objections to rates | Partially granted: Michael Firestone 2021 rate reduced to $365; Turbow reduced to $365; O’Hara rates approved; prior awarded rates for Marvin Firestone upheld |
| Reasonableness of hours billed | Phillips submitted contemporaneous billing records and argued hours were reasonable | Respondent raised no objections to hours | Awarded: hours found reasonable; no reductions to hours; total fees awarded reflect only rate adjustments ($81,741.58) |
| Attorneys’ costs and duplicate retainer | Requested $16,728.96 for expert fees and expenses; included $2,000 retainer to Dr. Shoenfeld | Respondent raised no objection to costs generally | Reduced by $2,000 (duplicate retainer already reimbursed earlier); attorneys’ costs awarded $14,728.96; petitioner’s $454.38 reimbursed |
Key Cases Cited
- Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343 (Fed. Cir. 2008) (petitioner may recover fees if petition filed in good faith and with reasonable basis despite loss)
- Saxton v. Sec'y of Health & Human Servs., 3 F.3d 1517 (Fed. Cir. 1993) (special master has wide discretion to determine reasonableness of fees)
- Hines v. Sec'y of Health & Human Servs., 22 Cl. Ct. 750 (Ct. Cl. 1991) (reviewing court should grant special master wide latitude on fee reasonableness)
- Savin v. Sec'y of Health & Human Servs., 85 Fed. Cl. 313 (Fed. Cl. 2008) (fee applications must include contemporaneous, specific billing records)
- Blum v. Stenson, 465 U.S. 886 (U.S. 1984) (reasonable hourly rates determined by prevailing market rate for comparable attorneys)
- Hensley v. Eckerhart, 461 U.S. 424 (U.S. 1983) (hours that are excessive, redundant, or unnecessary should be excluded in fee awards)
- Perreira v. Sec'y of Health & Human Servs., 27 Fed. Cl. 29 (Fed. Cl. 1992) (cost reimbursement must be reasonable)
- Rochester v. United States, 18 Cl. Ct. 379 (Ct. Cl. 1989) (billing for administrative/clerical tasks is not recoverable)