Tetlock v. Secretary of Health and Human Services
10-56
| Fed. Cl. | Nov 27, 2017Background
- Petitioners (administrators of J.T.'s estate) filed a Vaccine Act claim alleging death caused by a March 1, 2007 HPV (Gardasil) vaccination; matter was litigated for >7 years and proceeded to entitlement hearings in 2017.
- After hearings, petitioners moved for interim attorneys’ fees and costs totaling $442,403.51 (fees $292,587.50; costs $149,816.01).
- Respondent took no position on entitlement to interim fees but deferred to the Special Master on amount and reasonableness.
- Special Master ordered supporting invoices; counsel failed to produce some receipts and admitted they would absorb undocumented costs.
- Primary fee issues: appropriate hourly rates, excessive/duplicative/vague billing (including block billing and intra-office communications), and reasonableness of costs (expert fees, travel, meals, undocumented items).
- Special Master reduced pre-2014 rates by PPI-OL adjustments, cut fees 30% for billing deficiencies, disallowed certain travel/class upgrades, minibar/movies, and undocumented meals; awarded interim total $345,541.15.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to interim fees | Petitioners sought interim fees/costs due to protracted litigation and costly experts | Respondent: no formal role in fee resolution but agreed statutory requirements met and left amount to Special Master | Interim fees appropriate; award granted but reduced for reasonableness issues |
| Hourly rates | Counsel requested specific rates ($400 for Cohan et al.) | Respondent did not contest; Special Master compared to McCulloch/Fee Schedule and PPI-OL adjustments | Recent-year rates awarded; pre-2014 rates reduced using PPI-OL; Hague’s rates adjusted to experience tier |
| Excessive / duplicative billing | Counsel submitted hours claimed for multiple attorneys, client emails, trial prep, etc. | Respondent did not contest specifics; left adjustments to Special Master discretion | 30% across-the-board reduction for excessive, vague, duplicative, and block-billed entries; specific hour reductions applied |
| Costs (experts, travel, meals, undocumented items) | Experts requested $500/hr and related expenses; travel and hotel expenses submitted | Respondent did not contest substance; Special Master reviewed documentation and law on reimbursable costs | Expert fees and documented expenses awarded in full; business-class Acela warned (allowed this time), minibar/movies disallowed, undocumented meals largely disallowed or halved; total costs slightly reduced |
Key Cases Cited
- Avera v. Secretary of Health & Human Servs., 515 F.3d 1343 (Fed. Cir.) (interim fees appropriate in protracted cases with costly experts)
- Shaw v. Secretary of Health & Human Servs., 609 F.3d 1372 (Fed. Cir.) (interim fees proper where undue hardship and good-faith basis exist)
- Blum v. Stenson, 465 U.S. 886 (U.S.) (lodestar: hours reasonably expended times reasonable hourly rate)
- Saxton v. Secretary of Health & Human Servs., 3 F.3d 1517 (Fed. Cir.) (special masters may use prior experience to reduce hours/rates)
- Perreira v. Secretary of Health & Human Servs., 27 Fed. Cl. 29 (Fed. Cl.) (reasonableness standard for fees and costs)
- Sablina v. Secretary of Health & Human Servs., 86 Fed. Cl. 201 (Fed. Cl.) (multiple-attorney inefficiencies can justify fee reductions)