Wilson v. Secretary of Health and Human Services
15-521
| Fed. Cl. | May 3, 2017Background
- Petitioner David Wilson filed a Vaccine Act petition on behalf of his deceased mother, alleging autoimmune dermatomyositis and death from a November 2015 influenza vaccine; matter filed May 21, 2015.
- The case developed with medical records, expert reports, and a Rule 4(c) report from Respondent; settlement efforts failed and a hearing was scheduled for February 2018.
- Petitioner moved for interim attorney’s fees and costs on March 9, 2017, seeking $81,439.32 (fees $54,374.50; costs $27,064.82), including forum rates for Black McLaren attorneys and reimbursement for prior counsel and an expert.
- Respondent took no position on the amount and asked the Special Master to exercise discretion in determining a reasonable award.
- The Special Master found forum rates appropriate for Black McLaren and prior counsel, approved the requested hourly rates and hours as reasonable, but denied interim payment of the expert’s fees ($15,075) until after hearing.
- The Special Master awarded a partial interim lump-sum of $66,364.32 (fees $54,374.50; costs $11,989.82) payable jointly to Petitioner and counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether interim fees and costs are permitted | Petitioner sought interim fees/costs to cover incurred litigation expenses | Respondent acknowledged no role under statute but deferred to Court’s discretion | Interim fees/costs are permitted; award appropriate at this stage (Avera/Cloer precedent) |
| Appropriate hourly rates (forum rule) | Petitioner requested forum rates for Black McLaren attorneys and prior counsel | Respondent did not contest rates; asked Court to apply reasonableness standard | Forum rates awarded for current and prior counsel as requested |
| Reasonableness of hours billed | Petitioner submitted time records totaling reasonable hours for attorneys and paralegals | Respondent did not contest hours; asked Court to review reasonableness | Hours found reasonable and awarded |
| Whether expert fees should be awarded now | Petitioner sought reimbursement for Dr. Gershwin ($15,075) as part of interim costs | Respondent did not object to amount but deferred to Court’s discretion | Expert fees deferred until after hearing; not awarded in this interim award |
Key Cases Cited
- Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343 (Fed. Cir. 2008) (permits interim awards of attorney’s fees and addresses forum-rate rule)
- Cloer v. Sec’y of Health & Human Servs., 675 F.3d 1358 (Fed. Cir. 2012) (confirms availability of interim fees in Vaccine Program cases)
- Sebelius v. Cloer, 133 S. Ct. 1886 (2013) (Supreme Court affirmance relevant to timing and standards for fee awards)
- McKellar v. Sec’y of Health & Human Servs., 101 Fed. Cl. 297 (2011) (supports awarding interim fees before entitlement decision)