Rich v. Secretary of Health and Human Services
12-742
| Fed. Cl. | Apr 24, 2017Background
- Petitioner Sydney Rich filed a Vaccine Act petition alleging ADEM caused by a 2010 influenza vaccine; the petition was dismissed on June 30, 2016.
- Petitioner sought $30,040.50 in attorneys’ fees and $8,086.87 in costs; Respondent did not oppose an award and asked the special master to determine a reasonable amount.
- The special master applied the lodestar method (hours × reasonable rates) and McCulloch forum‑rate guidance to evaluate rates and hours.
- Requested hourly rates for lead counsel Andrew Downing ($350 for 2015–16, $375 for 2017) and paralegal Danielle Avery ($100 for 2015–16, $135 for 2017) were reviewed and adjusted.
- Reductions were made for an unsupported 2017 increase for Downing (applied a McCulloch growth rate), a smaller increase for Avery, travel time (reduced by 50%), and duplicative billing entries.
- All requested litigation costs ($8,086.87) were found reasonable and awarded in full; total award granted was $35,551.67 (fees $27,464.80 + costs $8,086.87).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to attorneys’ fees and costs | Fees/costs permitted under Vaccine Act after dismissal | Agreed statutory requirements satisfied; left reasonableness to special master | Awarded attorneys’ fees and costs under 42 U.S.C. § 300aa‑15(e) |
| Reasonable hourly rates for lead counsel | Request forum rates: $350 (2015–16), $375 (2017) | Argued nothing; Respondent deferred to special master reasonableness | $350 for 2015–16 approved; 2017 rate adjusted to $363 (McCulloch growth) |
| Paralegal hourly rate increase (Avery) | Requested $100 (2015–16) and $135 (2017) without supporting CV/credentials | No opposition but reasonableness required | $100 for 2015–16 approved; 2017 increased modestly to $110 (unsupported jump to $135 denied) |
| Travel time and duplicative billing | Full travel time and billed entries submitted | Respondent left reasonableness to special master | Travel time for two days reduced by 50%; clearly duplicative entries deducted in full |
| Litigation costs (experts, travel, copying) | Requested $8,086.87 for reasonable case costs | No opposition; reasonableness for each cost item required | All requested costs awarded in full |
Key Cases Cited
- Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343 (Fed. Cir.) (approving lodestar method for Vaccine Act fee awards)
- Blum v. Stenson, 465 U.S. 886 (U.S.) (lodestar formulation for reasonable attorneys’ fees)
- Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517 (Fed. Cir.) (special masters have broad discretion to determine fee reasonableness)
- Gruber v. Sec’y of Health & Human Servs., 91 Fed. Cl. 773 (Ct. Fed. Cl.) (addressing documentation and compensation for attorney travel time)
- Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29 (Ct. Fed. Cl.) (costs award must be reasonable)
- Beck v. Sec’y of Health & Human Servs., 924 F.2d 1029 (Fed. Cir.) (award covers all legal expenses; counsel cannot collect fees beyond award)
- Savin v. Sec’y of Health & Human Servs., 85 Fed. Cl. 313 (Ct. Fed. Cl.) (requirement for contemporaneous, specific billing records)