Spahn v. Secretary of Health and Human Services
09-386
| Fed. Cl. | Oct 10, 2017Background
- Petitioner Forrest Spahn filed a Vaccine Program petition alleging Td vaccine (June 17, 2007) caused tics and related neuropsychiatric conditions; petition filed June 12, 2009.
- Parties exchanged medical records and expert reports (Dr. Burk Jubelt, neurologist; Dr. H. Vasken Aposhian, toxicologist); case progressed toward hearing and summary judgment practice by Respondent.
- Petitioner moved for interim costs in 2013 seeking $51,440 for expert work plus $250 in personal costs; Respondent opposed, arguing lack of reasonable basis and excessive expert hours.
- Special master granted summary judgment for Respondent in 2014; petitioner sought review and additional filings; the Court of Federal Claims denied review and remanded cost motions to the special master in a 2017 Opinion and Order.
- On remand the court (Special Master Moran) found petitioner acted in good faith and that the judge had already found the claim had reasonable basis, permitted an interim costs award, and evaluated the reasonableness of expert fees.
Issues
| Issue | Spahn's Argument | Sec'y's Argument | Held |
|---|---|---|---|
| Eligibility for award of costs (good faith and reasonable basis) | Petition was filed in good faith and supported by expert reports and literature establishing reasonable basis | Claim lacked reasonable basis due to unreliable medical theories | Good faith uncontested; CFC judge had already found reasonable basis, so eligibility satisfied |
| Appropriateness of interim costs award | Long, expensive proceedings and costly experts justify interim award | Opposed; stressed lack of reasonable basis (also argued generally against interim award) | Interim award appropriate given protracted proceedings, counsel diligence, and costly expert work |
| Reasonableness of Dr. Burk Jubelt's requested fees ($300/hr; 13 hrs; $3,900) | Requested rate and hours reasonable given qualifications and work performed | No objection to amount | Awarded in full: $3,900 |
| Reasonableness of Dr. H. Vasken Aposhian's requested fees ($500/hr; 94.5 hrs; $47,290) | Submitted billed hours and rate for consideration | Hours excessive relative to report length and literature; rate unsupported | Reduced rate to $350/hr and hours to 30; awarded $10,500 |
Key Cases Cited
- Rehn v. Secretary of Health & Human Services, 126 Fed. Cl. 86 (discretion to award interim attorneys’ fees and costs)
- Avera v. Secretary of Health & Human Services, 515 F.3d 1343 (factors for interim awards and possible denial)
- Shaw v. Secretary of Health & Human Services, 609 F.3d 1372 (consideration of protracted proceedings, costly experts, and hardship for interim awards)
- Perriera v. Secretary of Health & Human Services, 27 Fed. Cl. 29 (reasonableness requirement for costs)
- Saxton v. Secretary of Health & Human Services, 3 F.3d 1517 (tribunal may rely on its experience in fee determinations)
- Frederick v. Columbia University, 212 F.R.D. 176 (toxicologist hourly rates used as comparison)