Uscher v. Secretary of Health and Human Services
15-798
| Fed. Cl. | Mar 3, 2017Background
- Petitioner Amy Uscher filed a Vaccine Act petition on behalf of her minor child (M.U.) alleging vaccines administered July 16, 2012 caused M.U. to become non‑verbal and exhibit behavioral changes; petitioner asserted an MTHFR mutation increased susceptibility.
- Counsel withdrew after interim fees were awarded; petitioner proceeded pro se and was advised that medical records did not show causation and that an expert report was required.
- Petitioner retained Dr. Fran Kendall to review records and evaluate causation; Dr. Kendall concluded records did not support causation and declined to produce a supporting expert report.
- Petitioner paid Dr. Kendall $2,400 and sought reimbursement for that payment plus $500 for her own time spent prosecuting the claim (total request $2,900).
- The Chief Special Master found the expert fee was a legally incurred, reasonable cost and awarded $2,400; the request for reimbursement of petitioner’s personal time was denied as not a compensable incurred cost.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petitioner may recover payment to retained expert | Uscher sought reimbursement of $2,400 paid to Dr. Kendall for records review and communications | Respondent did not dispute reasonableness of reimbursing a retained expert once retained under a binding obligation | Awarded: expert fee reimbursable because hiring created a legal obligation; amount and hours were reasonable |
| Whether petitioner may recover for her own time prosecuting the claim | Uscher sought $500 for her time spent on the case (lost time/work/childcare) | Respondent opposed treating petitioner’s personal time as an incurred compensable cost | Denied: petitioner’s personal time is not a legally incurred expense under the Vaccine Act and is not compensable |
Key Cases Cited
- Perreira v. Sec'y of Health & Human Servs., 27 Fed. Cl. 29 (1992) (reasonableness requirement applies to costs as well as attorneys' fees)
- Black v. Sec'y of Health & Human Servs., 33 Fed. Cl. 546 (1995) (expense is incurred when one becomes legally liable)
- Black v. Sec'y of Health & Human Servs., 93 F.3d 781 (Fed. Cir. 1996) (affirming principles regarding when expenses are "incurred")