Privitera v. Secretary of Health and Human Services
15-276
Fed. Cl.May 12, 2017Background
- Petitioner Jane Privitera filed a Vaccine Act petition alleging rotator cuff tendonitis and Parsonage Turner Syndrome from a 2013 flu vaccine; damages were awarded by stipulation for $80,000.
- Petitioner sought $20,253.10 in attorneys’ fees and $1,584.60 in costs (total $21,837.70).
- Counsel (Kalinowski of Maglio Christopher & Toale) requested forum-based hourly rates for D.C.; paralegal rates of $95, $135, and $145 were also requested.
- Respondent did not dispute entitlement but argued a reasonable total would be $12,000–$14,000 and specifically objected to some of Kalinowski’s requested rates, citing prior fee awards.
- Special Master applied the lodestar approach (hours × reasonable rate), adjusted rates using McCulloch ranges, and reduced travel-time compensation; paralegal rates were awarded as requested.
- Final award: $17,346.87 in attorneys’ fees and $1,584.60 in costs, total $18,931.47, paid jointly to Petitioner and counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appropriate hourly rates for lead counsel | Requested $333 (2014), $341 (2015), $349 (2016) based on experience and forum rates | Objected to higher rates; urged use of lower rates from prior awards (e.g., Scharfenberger) | Awarded $325 for 2014–2015 and $349 for 2016 (partial reduction) |
| Paralegal hourly rates | Requested $95, $135, $145 depending on experience | Objected to rates > $125, citing Scharfenberger | Paralegal rates awarded as requested (reasonable under McCulloch) |
| Compensation for attorney travel time | Requested full hourly rate for documented travel time | Respondent contested some travel billing implicitly by arguing overall reasonableness | Travel time compensated at two-thirds of hourly rate ($216.67), reducing fees for driving time |
| Reimbursement of litigation costs | Requested $1,584.60 for research, travel, records, filing fee | No substantive dispute as to reasonableness | Costs awarded in full ($1,584.60) |
Key Cases Cited
- Avera v. Secretary of Health & Human Services, 515 F.3d 1343 (Fed. Cir.) (approves lodestar approach under Vaccine Act)
- Blum v. Stenson, 465 U.S. 886 (U.S.) (lodestar method: hours × reasonable rate)
- Saxton v. Secretary of Health & Human Services, 3 F.3d 1517 (Fed. Cir.) (special masters have wide discretion on fee reasonableness)
- Scharfenberger v. Secretary of Health & Human Services, 124 Fed. Cl. 225 (Ct. Cl.) (precedent on fee rates used by parties in comparisons)
- Gruber v. Secretary of Health & Human Services, 91 Fed. Cl. 773 (Fed. Cl.) (attorneys may be awarded fees for travel when work during travel is documented)
- Savin v. Secretary of Health & Human Services, 85 Fed. Cl. 313 (Fed. Cl.) (billing records must be contemporaneous and specific)
- Perreira v. Secretary of Health & Human Services, 27 Fed. Cl. 29 (Fed. Cl.) (cost requests must be reasonable)
- Hines v. Secretary of Health & Human Services, 22 Cl. Ct. 750 (Ct. Cl.) (wide latitude to special masters on fee reasonableness)
- Beck v. Secretary of Health & Human Services, 924 F.2d 1029 (Fed. Cir.) (award intended to cover all legal expenses; counsel may not collect additional fees beyond award)