Rosof v. Secretary of Health and Human Services
14-766
| Fed. Cl. | May 2, 2017Background
- Petitioner Joan Rosof filed a Vaccine Act petition alleging peripheral neuropathy caused by a 2012 influenza vaccination and obtained compensation via joint stipulation in February 2017.
- Petitioner moved for attorneys’ fees ($77,801.50), attorneys’ costs ($34,343.34), and personal out-of-pocket costs ($4,970.95).
- Respondent deferred to the Special Master’s discretion and did not contest entitlement to an award.
- The Special Master applied the lodestar method to determine reasonable attorneys’ fees and costs, including review of hourly rates and billed hours.
- The Special Master reduced fees for administrative/clerical tasks, adjusted an expert’s hourly rate (Dr. Steinman), awarded expert fees for Drs. Steinman and Gershwin at $500/hour, and awarded petitioner’s out-of-pocket costs in full.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to fees and costs | Prevailing petitioner requests full reasonable fees and costs after stipulated award | Respondent defers to Special Master to determine reasonableness | Fees and costs awarded under Vaccine Act using lodestar approach |
| Attorney hourly rates | Counsel seeks established McCulloch-range rates ($355–$400) | No objection to those rates | Attorney and paralegal hourly rates found reasonable and approved |
| Reduction for administrative time | Petitioner included various administrative entries in billing | Respondent raised no specific challenges but reserved review | Reduced $1,784.50 for non-reimbursable clerical/administrative tasks |
| Expert fees and hourly rates | Dr. Steinman sought $550/hr (claimed comparable peers higher); Dr. Gershwin billed $500/hr | Respondent did not contest; Special Master must assess reasonableness | Awarded $500/hr for both experts; reduced Dr. Steinman’s requested balance accordingly |
Key Cases Cited
- Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343 (Fed. Cir. 2008) (approves lodestar method for Vaccine Act fee awards)
- Blum v. Stenson, 465 U.S. 886 (U.S. 1984) (lodestar formula: reasonable hours × reasonable rate)
- Saxton v. Sec'y of Health & Human Servs., 3 F.3d 1517 (Fed. Cir. 1993) (special masters may reduce excessive or redundant hours using experience)
- Savin v. Sec'y of Health & Human Servs., 85 Fed. Cl. 313 (Fed. Cl. 2008) (fee requests must include contemporaneous, specific billing records)
- Sabella v. Sec'y of Health & Human Servs., 86 Fed. Cl. 201 (Fed. Cl. 2009) (special master may reduce fees sua sponte without providing additional notice)
- Rochester v. United States, 18 Cl. Ct. 379 (Cl. Ct. 1989) (clerical/secretarial work is not compensable and is considered overhead)