Vigliotti v. Secretary of Health and Human Services
12-281
| Fed. Cl. | Oct 16, 2017Background
- Petitioner Angela Vigliotti filed a Vaccine Act petition alleging multiple sclerosis caused or aggravated by a 2010 influenza vaccine; entitlement hearing set for March 2018.
- Petitioner moved for interim attorneys’ fees and costs totaling $107,944.96 (fees $72,464.52; costs $35,480.45).
- Respondent deferred to the Special Master on whether statutory interim-award standards were met and otherwise recommended the Special Master exercise discretion to set a reasonable award.
- The Special Master found the petition was brought in good faith and had a reasonable basis, and that proceedings have been protracted with costly expert involvement and settlement efforts.
- After reviewing rates, hours, and documentation, the Special Master concluded the requested hourly rates, hours expended, and costs were reasonable and awarded the full interim amount as a lump sum payable jointly to petitioner and counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether interim attorneys’ fees and costs are warranted under the Vaccine Act | Case brought in good faith, reasonable basis; proceedings are prolonged with costly experts and settlement efforts, creating undue hardship | Deferred to Special Master to determine whether statutory standard met; no substantive objection to awardability | Interim award appropriate: petition brought in good faith and had a reasonable basis; protracted litigation and expert costs support interim award |
| Standard for determining reasonable fees (lodestar) | Requested fees follow lodestar: hours × reasonable rates; contemporaneous billing provided | No objection to lodestar application or documentation | Apply lodestar; may adjust up/down; contemporaneous records adequate |
| Reasonableness of hourly rates and hours billed | Rates follow fee schedules and precedent; hours reflect necessary work (expert retention, records, settlement efforts) | No substantive objection to rates/hours | Rates consistent with McCulloch and fee schedules and are reasonable; hours reasonable; no reduction warranted |
| Reasonableness of costs (experts, records, filing) | Costs are necessary for prosecution and settlement efforts, including payments to experts | No substantive objection | Costs (medical records, copying, filing, expert payments) are reasonable and awarded in full |
Key Cases Cited
- Avera v. Secretary of Health & Human Services, 515 F.3d 1343 (Fed. Cir. 2008) (approves interim fees where proceedings are protracted and costly experts retained)
- Shaw v. Secretary of Health & Human Services, 609 F.3d 1372 (Fed. Cir. 2010) (interim fees appropriate when litigation costs impose undue hardship and claim has good-faith basis)
- Sebelius v. Cloer, 133 S. Ct. 1886 (2013) (statutory standard for awarding fees requires good faith and reasonable basis)
- Blum v. Stenson, 465 U.S. 886 (1984) (lodestar method: hours × reasonable hourly rate)
- Savin v. Secretary of Health & Human Services, 85 Fed. Cl. 313 (Fed. Cl. 2008) (requirement for contemporaneous, specific billing records)
- Saxton v. Secretary of Health & Human Services, 3 F.3d 1517 (Fed. Cir. 1993) (discretion to reduce hours that are excessive, redundant, or unnecessary)
- Broekelschen v. Secretary of Health & Human Services, 102 Fed. Cl. 719 (Fed. Cl. 2011) (no need for line-by-line analysis; use of special master experience)
- Sabella v. Secretary of Health & Human Services, 86 Fed. Cl. 201 (Fed. Cl. 2009) (special master may reduce fees sua sponte)
- Perreira v. Secretary of Health & Human Services, 27 Fed. Cl. 29 (Fed. Cl. 1992) (costs must also be reasonable)