Non-Forum Rates

Glaser v. HHS, (Fed. Cl. Spec. Mstr. Jun. 6, 2016) (Corcoran, SM). VT attorney only entitled to non-forum rates under Davis exception to McCulloch; prior decisions involving same attorney established VT rates were substantially lower than forum and changed circumstances were not established here.  Awarded rates of $225 to $238.

JB v. HHS, (Fed. Cl. Spec. Mstr. Jul 8, 2016) (Dorsey, CSM).  Hershey, PA attorney only entitled to non-forum rates; Court awarded rates generally consistent with local federal district court decision, $250 and $350.  The Court did note that “the [good] quality of the attorney work” is a relevant factor.

Number of Hours

Glaser, supra.  Number of hours reduced by 10% due to “lack of diligence” in prosecuting case notwithstanding that there was no overbilling – to the contrary the special master held that counsel should have billed more hours to the file earlier on and concluded the case more expeditiously.

JB, supra.  Number of hours reduced by 20% due to vague billing descriptions and block billing.  All time entries characterized as simply “review” file” denied.  Excessive client communication reduced by 50%.

Loving v. HHS, (Fed. Cl. Spec. Mstr. Jul 7, 2016) (Moran, SM).  Number of hours spent on litigation over $282K expert invoice reduced.  Two-thirds of the expert fees had previously been awarded and petitioner sought $8,362.50 in additional attorney’s fees but was awarded $2,090.63 because counsel’s lack of oversight of expert fees fundamentally caused the dispute over expert fees and counsel’s contributions to resolve the dispute over attorneys’ fees were largely ineffective.

Nichols v. HHS, (Fed. Cl. Spec. Mstr. Jun 22, 2016) (Corcoran, SM).  Number of hours incurred after filing of claim reduced by 50% “to account for counsel’s failure to act diligently and thoroughly in addressing underlying problems with the claim that could have been identified sooner.”  Fees for fees also reduced by 50% where fees incurred in fee litigation should not equate to 1/3 of the total fees sought in a case with barely a reasonable basis.

Whitney v. HHS, (Fed. Cl. Spec. Mstr. Jul. 27, 2016) (Moran, SM).  Number of hours reduced to the extent that multiple associates billed to a file for simple tasks and where partner billed a higher rate for work the assigned associate could have performed.

Reasonable Basis

Mounts v. HHS, (Fed. Cl. Spec. Mstr. Jul. 27, 2016) (Hamilton-Fieldman, SM).  Reasonable basis for bringing the claim did not exist where actual onset of symptoms was many months after the vaccine and the purported onset was supported by no more than Petitioner’s representations, which ran directly contrary to her medical records.

Nichols, supra.  Reasonable basis for claim “barely enough” through the time of dismissal after failure to secure an expert.  Asserting a rechallenge theory was not facially unreasonable, in light of other program cases, even though a rechallenge theory had never previously succeeded in an autism case.  The court noted that there was no time pressure to file the claim before a full investigation of the merits and warned that next time fees would likely not be awarded if a claim were filed prematurely.  The court also noted dismay that experienced counsel continue to file claims related to developmental regression.

Smith v. HHS, (Fed. Cl. Spec. Mstr. Jun. 22, 2016) (Corcoran, SM).  Reasonable basis for claim did not exist, given the totality of circumstances, where brain lesions of MS were identified two years after vaccination, and counsel could have determined the claim’s viability in light of the onset issue long before the petition was filed.

Varela v. HHS, (Fed. Cl. Spec. Mstr. Jun, 22 2016) (Corcoran, SM).  Reasonable basis did not exist where dismissed case turned on a factual matter that could easily have been investigated, and resolved, by counsel well before the action was filed.  Specifically, whether “overvaccination” had caused this child harm.

Interim Fees

KL v. HHS, (Fed. Cl. Spec. Mstr. Dec. 8, 2014) (Corcoran, SM).  Interim fees and costs denied – “to repeatedly delay a case and then ask for fees expressly on account of the case’s excessive age is the essence of chutzpah.”  The case had been pending two years, fees were below $50K and expert costs were only $3500.

Fees and Costs

JB, supra.  Highest SPU fees and costs award to date had previously been $64,000.  High damages SPU cases are not necessarily more complex, thus 1.5 million SIRVA case not entitled to requested $195K in fees and costs, but awarded $93K.

Glaser, supra.  Time spent monitoring case after withdrawing nonbillable.

Guardianship costs of $9254.50 reduced by 10% because they exceeded the accepted range of $1750-$8500 and Petitioner failed to establish reasonableness of CA attorney’s hourly rate of $415.  Glaser, supra.

Expert Rates

Glaser, supra.  Expert rate of $400 for unspecified type of expert reasonable.

Glaser, supra.  Expert rate of $450 for a non-testifying, consulting expert was excessive and not reasonable.  Reduced to $350 per hour.

Whitney, supra.  Expert rates of $350 and $500 for neurologist, and $500 for an immunologist, approved.  Only 10 of 18 hours spent preparing a three-page expert report awarded.

Whitney, supra. Flat expert/treater rate of $6000 for day of testimony denied after trial cancelled.  Two-day notice of cancellation warranted some compensation to expert, but he was awarded only $1575.  He had been scheduled to testify at 8:30 a.m. and the parties expected his testimony to last 1.5 hours.   Adding an hour for chart review, and assuming the treater would have been tied up until noon, warranted payment of 4.5 hours at his rate of $350.

Glaser, supra.  Voc rehab expert rate of $325 deemed reasonable.

Glaser, supra.  LCP expert costs of $23,780.51 awarded in full (billed at rate of $200 in that case but noting a rate increase to $225 approved in another case).

JB, supra.  Nonrefundable LCP expert costs of $2500 approved where parties had agreed to engage LCP services but case settled before actually used.

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

 

Vaccine Case Reviews Attorney’s Fees and Costs Rulings by Topic