Solomon v. Secretary of Health and Human Services
14-748
| Fed. Cl. | Feb 15, 2017Background
- Petitioner Nicole Solomon filed a Vaccine Act petition alleging post‑influenza and Tdap vaccination neurological symptoms consistent with Guillain‑Barré Syndrome; the petition was filed August 19, 2014 near the statute of limitations.
- The claim was denied on the merits and dismissed for insufficient proof on December 2, 2015; judgment entered January 7, 2016.
- Petitioner then moved for attorneys’ fees and costs: $16,812.70 in fees and $4,886.11 in costs (total $21,698.81), claiming no out‑of‑pocket expenses.
- Respondent opposed compensation in earlier filings, arguing the correct diagnosis was fibromyalgia, not GBS; petitioner declined to file an expert causation report and moved for a decision on the record.
- The Special Master found petitioner acted in good faith, concluded the petition had an objective reasonable basis (filed on the eve of the statute of limitations and followed by timely record development), but reduced fee and cost amounts based on hourly‑rate guidance and travel‑time/cost documentation adjustments.
- Final award: $13,348.75 in attorneys’ fees and $4,869.22 in attorneys’ costs, payable jointly to petitioner and counsel (total $18,217.97).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to fees for a losing petitioner (good faith and reasonable basis) | Solomon filed in good faith and had a reasonable basis to pursue the claim, especially given looming statute of limitations and some treating‑physician support | Respondent previously argued the diagnosis was not GBS and opposed compensation on the merits | Good faith presumed; reasonable basis found (petition filed near limitation, timely follow‑up, attempts to obtain expert) — fees/costs awarded |
| Appropriate hourly forum rate for counsel Amber Wilson, Ph.D. | Requested $295 (2014‑15) and $301 (2016) based on firm practice and Ms. Wilson’s credentials and clerkship experience | Implicitly: rates should align with Vaccine Program precedent (McCulloch ranges) and actual years of experience | Adopted McCulloch framework; awarded $225/hr for 2014‑15 work and $275/hr for 2016 work |
| Compensation for travel time | Sought full hourly rate for attorney travel to meet petitioner | Travel time should be discounted because travel often does not involve billable substantive work | Travel awarded at one‑half counsel’s hourly rate (resulting in reduction) |
| Documentation and reasonableness of costs (experts, research, hotel) | Requested $4,886.11 including two expert charges and research; provided invoices for most items | Costs must be substantiated with receipts; undocumented items may be reduced | Costs largely allowed as reasonable but reduced by $16.89 for a hotel billing discrepancy; minor undocumented entries accepted as reasonable |
Key Cases Cited
- Sebelius v. Cloer, 133 S. Ct. 1886 (2013) (Congress intended fee awards even for unsuccessful or untimely Vaccine Act petitions)
- Perriera v. Secretary of Health & Human Services, 33 F.3d 1375 (Fed. Cir. 1994) (losing petitioners not automatically entitled to fees; must show good faith and reasonable basis)
- Avera v. Secretary of Health & Human Services, 515 F.3d 1343 (Fed. Cir. 2008) (lodestar approach and forum‑rate rule in Vaccine Program)
- Saxton ex rel. Saxton v. Secretary of Health & Human Services, 3 F.3d 1517 (Fed. Cir. 1993) (fees in Vaccine Program are not expected to be high)
- Davis v. Secretary of Health & Human Services, 105 Fed. Cl. 627 (2012) (Vaccine Program’s liberal fee‑shifting scheme)
- Chuisano v. Secretary of Health & Human Services, 116 Fed. Cl. 276 (2014) (reasonable‑basis is an objective totality‑of‑circumstances inquiry)