Zdroik v. Secretary of Health and Human Services
15-468
| Fed. Cl. | Feb 28, 2017Background
- Petitioner Elizabeth Zdroik filed a Vaccine Act claim alleging a left shoulder injury (SIRVA) from an October 16, 2012 flu vaccine; the parties stipulated to compensation and judgment was entered January 15, 2016.
- Petitioner moved for attorneys’ fees and costs on September 19, 2016, seeking $25,526.90 in attorney fees, $917.95 in attorney costs, and $4.48 in petitioner out-of-pocket costs (total $26,449.33).
- Billing showed work by lead counsel Ramon Rodriguez III and paralegal Lisa Robertson across 2014–2016; Rodriguez sought forum rates based on McCulloch guidance.
- Respondent stated she would not contest entitlement to fees but suggested a reasonable total would be $15,500–$18,500, citing similar SIRVA fee awards.
- The special master found billed hours reasonable and declined to reduce them, but reduced Dr. Rodriguez’s hourly rates (2014–2016) to align with the Office of Special Masters’ forum rate schedule, lowering the total fee award by $669.70.
- The court awarded $24,857.20 in attorneys’ fees and $917.95 in attorneys’ costs (total $25,775.15) payable jointly to petitioner and counsel, plus $4.48 to petitioner for out-of-pocket costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to attorneys’ fees and costs | Fees are recoverable under the Vaccine Act; statutory requirements satisfied | Respondent: not a party to fee resolution but agrees statutory requirements met | Entitlement established; fees may be awarded under §300aa-15(e) |
| Reasonableness of hours billed | Submitted contemporaneous billing; hours reasonable and necessary | Respondent did not challenge hours | Hours were reasonable; no reduction made |
| Appropriate hourly rates / forum rates | Rodriguez entitled to forum rates per McCulloch; requested $348–$389 across years | Respondent suggested substantially lower total award (citing comparable SIRVA awards) | Granted forum-rate entitlement but reduced Rodriguez’s rates to $348 (2014), $361 (2015), $375 (2016) as reasonable |
| Total award amount and payment | Requested $26,449.33 total | Respondent proposed $15,500–$18,500 as reasonable range | Court awarded $25,779.63 total (fees and costs), with $25,775.15 payable jointly to petitioner and counsel and $4.48 to petitioner |
Key Cases Cited
- Beck v. Sec’y of Health & Human Servs., 924 F.2d 1029 (Fed. Cir. 1991) (attorney fee awards under Vaccine Act encompass all charges and preclude additional client billing)