Attorneys’ Fees Check Payee

Special master granted relief from judgment where counsel was unable to contact petitioner to endorse the fees and costs check.  This satisfied the “narrow circumstances” where a fees award should be payable directly to counsel.  The court noted that counsel did have other remedies against his client, however because the case was eight years old the interests of justice weighed in favor of granting relief. (Editor’s Note: this situation can be avoided by having your client execute a POA with the retainer agreement). Watson v. HHS, (Fed. Cl. Spec. Mstr. Jul. 25, 2016) (Corcoran, SM) –

Reasonable Fees

  • SM held that Respondent’s recommended fee range was unpersuasive where not tailored to lawyer or firm in question and cases cited for range were not factually congruent. 100% of fees and costs awarded.  Auer v. HHS, (Fed. Cl. Spec. Mstr. Aug. 24, 2016) (Corcoran, SM).
  • SM held that recommended range was not helpful, each case is different even if they have a similar procedural history or involve the same injury. Coker v. HHS, (Fed. Cl. Sep. 9, 2016) (Millman, SM).
  • Recommended range of $16-21,000 in SIRVA case rejected and full amount of request ($64,000) awarded where case required a life care plan and was otherwise more complicated than usual. Taylor v. HHS, (Fed. Cl. Spec. Mstr. Sep. 2, 2016) (Millman, SM).
  • 32.10 hours to review a 16-page expert report and 16 articles, (which totaled 178 pages), was unreasonable and reduced by 75%.  Coker v. HHS, (Fed. Cl. Sep. 9, 2016) (Millman, SM).
  • Hours billed in Federal Circuit appeal of fee decision reduced where appeal proceeded inefficiently, perhaps due to inexperience with appellate process, and only 11 pages of 50-page brief constituted “fresh work.”  Improper to bill again for prior work which was reused.  D’Angiolini v. HHS, (Fed. Cl. Spec Mstr. Sep. 13, 2016) (Moran, SM).
  • 17.2 hours spent collaborating with expert in preparation of initial expert reduced by 50%.   Dezern v. HHS, (Fed. Cl. Spec. Mstr. Oct. 14, 2016) (Corcoran, SM)
  • A client visit, with or without a life care planner, at a point in a case where a potential resolution or assessment of damages must be made, is appropriate.  Collaboration by multiple attorneys bring unique views and strengths, which are of great benefit to clients, thus not unreasonable.  Manis v. HHS, (Fed. Cl. Spec. Mstr. Apr. 12, 2016) (Roth, SM)

Reasonable Basis:

  • Reasonable basis existed to enter an appearance in a pro se case where, based on the petition and medical records, medical articles, a social security disability decision, and an affidavit, where the court itself was “unable to rule out the possibility that petitioner could establish entitlement to compensation.”  Neither the fact that petitioner did not have a clear diagnosis nor that the treating physician did not attribute causation to vaccines obviated a reasonable basis for the claim.  Theory of autoimmune etiology was sufficiently plausible to make case worth investigating to a certain point.  Finally, the court noted that taking on a pro se case was different from an initial filing, and that counsel performed a service for both petitioner and the court by investigating the case and then convincing petitioner to dismiss after an expert concluded the case was not viable.  A reasonable basis existed until after the expert reviewLewis v. HHS, (Fed. Cl. Spec. Mstr. Sep. 15, 2016) (Gowen, SM)
  • Duty to investigate claim prior to filing was fulfilled where counsel collected medical records and spoke with petitioner and family members regarding claim.  Where records suggested a viable claim existed, reasonable basis established, considering that the symptoms were similar to those of a demyelinating disorder.  The special master rejected Respondent’s position that counsel had an obligation to seek a pre-filing expert report in the 1.5 years counsel had the case before filing.  “This would effectively raise the bar for filing from ‘reasonable basis’ to ‘likelihood of success’.”  The court noted that petitioners are discouraged from retaining experts in demyelinating cases and may not even be paid for this expense if deemed premature or unnecessary.  (Ed. Note – this holding may not apply in a non-demyelinating case; there are other decisions that hold a pre-filing investigation includes consulting your expert pre-filing, on your own dime, and not the Program’s, should the case prove unviable).  Hinojosa v. HHS, (Fed. Cl. Spec. Mstr. Jul. 20, 2016) (Roth, SM)
  • Against the backdrop of the OAP, it was reasonable to file a mitochondrial autism case, but unreasonable once decision was made to proceed with an unqualified expert and an extremely defective claim.  To incur the expense of defective expert reports, then push the case forward to an evidentiary hearing on the basis of frivolous theories was simply not reasonable.  Expert, (counsel’s mother, who was certified only in family medicine), was unqualified to opine on table encephalopathy or mitochondrial disorders and expert reports were based on a serious misreading or disregard of the medical records.  Moreover, table injury claim was completely contradicted by the medical records, and completely devoid of merit.  Prior decisions in other cases had warned that this was an underqualified and unpersuasive expert and many decisions had been issued in the instant case warning counsel of the serious defects with the claim. $7600 of $42,000 awarded.  Hardy v. HHS, (Fed. Cl. Spec. Mstr. Aug 16, 2016) (Hastings, SM)
  • Reasonable basis for filing the petition and pursuing it somewhat past the point where OAP “test cases” were denied.  Once determined that the claim was time-barred, no longer reasonable to pursue claim.  Also unreasonable to alternatively pursue significant aggravation claim where records strongly contradicted such a claim.  Hashi v. HHS, (Fed. Cl. Spec. Mstr. Aug. 25, 2016) (Hastings, SM)

Interim Fees

  • SM held interim fees were warranted where case was pending for 2.5 years and trial was scheduled for following year thus imposing hardship on counsel if not paid prior to that.  Carda v. HHS, (Fed. Cl. Spec. Mstr. Aug. 19, 2016) (Corcoran, SM)

Hourly Rates

  • CFC affirmed SM’s award of interim fees where SM awarded the median forum rate of $387.50 per hour (range $350-$425) for 20+ year attorney from Idaho.  Garrison v. HHS, (Sep. 8, 2016) (Kaplan, J)
  • Sarasota, FL attorney (23 years) awarded forum rate of $356 where Sarasota rates not significantly different from forum and rate requested was at low end of range for years of practice ($350-425).  Dezern v. HHS, (Fed. Cl. Spec. Mstr. Oct. 14, 2016) (Corcoran, SM)

Interim Expert Costs

  • Factors compelling a 50% award of expert fees included that counsel had already paid them, total amount, (more than 20k), was sufficiently “costly” under Avera, and some of the costs were incurred preparing supplemental expert reports at the SM’s direction.  After trial, court would consider whether experts “were useful and/or necessary in establishing Petitioners’ claim” warranting additional fees.  Carda v. HHS, (Fed. Cl. Spec. Mstr. Aug. 19, 2016) (Corcoran, SM)

Expert Hourly Rates

  • Two experts awarded $400 hourly rates where $500 rates requested for one expert had been denied in other cases and neither’s rate was “substantiated.”  Carda v. HHS, (Fed. Cl. Spec. Mstr. Aug. 19, 2016) (Corcoran, SM)

Reasonable Costs

  • 6.5% sales tax on legal services awarded over objection where state law required collection of this tax and local federal courts routinely awarded sales tax on fees in that district.  Carda v. HHS, (Fed. Cl. Spec. Mstr. Aug. 19, 2016) (Corcoran, SM)
  • Special master disagreed that a SIRVA case, or any case, was “garden variety” given that petitioners with similar injuries would not experience pain or disability in the same way, thus each petitioner deserves the facts of their case reviewed individually.  Life care plan expenses were reasonable to incur, however the amount was deemed excessive and reduced by 50%.  Manis v. HHS, (Fed. Cl. Spec. Mstr. Apr. 12, 2016) (Roth, SM)

*Full decisions are available on the CFC website at http://www.uscfc.uscourts.gov/

Vaccine Case Reviews Attorney’s Fees and Costs Rulings