Srour v. Secretary of Health and Human Services
14-283
| Fed. Cl. | Jun 12, 2017Background
- Petitioner Cheri Srour filed a Vaccine Program petition alleging that an October 17, 2007 influenza vaccination significantly aggravated her pre-existing CIDP/GBS; the claim was ultimately resolved by joint stipulation and compensation was awarded.
- Before filing in the Vaccine Program, petitioner’s counsel brought a state-court medical malpractice action (Apr 2010) against the clinic/physician who administered the vaccine, conducted extensive formal discovery (including depositions and billing records), and obtained evidence confirming the vaccine administration; that state action was dismissed in May 2013 so petitioner could pursue relief in the Vaccine Program.
- Petitioner sought $142,701.25 in attorneys’ fees and $19,171.42 in costs (total $161,872.70); counsel billed ~324 hours spanning 2009–2016 and requested elevated hourly rates above the Vaccine Program forum schedule.
- The Special Master applied the lodestar method, the McCulloch forum-rate framework, and Vaccine Act principles to evaluate reasonable rates, hours, and compensable costs, adjusting rates to McCulloch ranges and reducing hours/costs attributable to the state-court litigation.
- The Special Master awarded $81,987.75 in attorneys’ fees and $18,724.42 in costs (total $100,712.17), denying reimbursement for certain state-court filing costs and reducing by 50% the hours spent on the state-court claim (awarding 50% of 168.95 pre-dismissal hours) while fully awarding Vaccine-Forum work hours after dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appropriate hourly rates | Tolchin firm’s requested high NYC rates ($500, $475, etc.) reflect market and regular billing | Respondent deferred to Special Master to determine reasonable rate | Court applied McCulloch forum-rate ranges and awarded lower forum rates based on experience and program familiarity |
| Compensability of state-court work | Firm seeks full fees for state-court discovery as it produced critical evidence (vaccine proof, condition, damages) | Respondent did not press specific objections but allowed Special Master discretion | Court allowed partial recovery: 50% of pre-dismissal hours awarded (84.475 of 168.95) because much formal discovery would not have occurred in Vaccine Program |
| Paralegal hourly rate | Firm requested $150/hr for paralegals | Respondent left reasonableness to Special Master | Court awarded $125/hr (within McCulloch forum paralegal range) due to lack of demonstrated special paralegal qualifications |
| Reimbursement of costs linked to state-court filing and depositions | Firm sought full costs ($19,171.42), including state-court filing/service and deposition transcripts | Respondent left determination to Special Master | Court disallowed state-court filing/service costs ($447.00) but allowed deposition costs relevant to Vaccine claim and all other reasonable costs, awarding $18,724.42 |
Key Cases Cited
- Saxton v. Secretary of Health and Human Services, 3 F.3d 1517 (Fed. Cir.) (reasonableness of Vaccine Program fees in light of no-fault, simplified procedures)
- Avera v. Secretary of Health & Human Services, 515 F.3d 1343 (Fed. Cir.) (approving lodestar approach for Vaccine Act fee awards)
- Blum v. Stenson, 465 U.S. 886 (U.S.) (lodestar method and reasonable hourly rate principle)
- Rodriguez v. Secretary of Health & Human Services, 632 F.3d 1381 (Fed. Cir.) (forum rate as effective ceiling)
- Hensley v. Eckerhart, 461 U.S. 424 (U.S.) (hours must be reasonable; exclude excessive or redundant time)
- Savin v. Secretary of Health & Human Services, 85 Fed. Cl. 313 (Fed. Cl.) (requirement for contemporaneous, specific billing records)
- Broekelschen v. Secretary of Health & Human Services, 102 Fed. Cl. 719 (Fed. Cl.) (no need for line-by-line analysis; discretion to reduce fees)
- Sabella v. Secretary of Health & Human Services, 86 Fed. Cl. 201 (Fed. Cl.) (special master may reduce hours sua sponte)