Tadio v. HHS, (Fed. Cl. Spec. Mstr. Nov. 25, 2015) (Gowen, SM)

In this case, a minor child had received compensation pursuant to a settlement, and the award was to be payable to the guardians/conservators of the child, per the stipulation.  The stipulation further conditioned payment to Petitioners on their being “duly authorized to serve as guardians/conservators of the child’s estate under the laws of the State of Hawaii.”  Hawaii law also independently required that when a minor receives a settlement or judgment from any claim or action, a conservatorship action must be initiated.

Petitioners sought an award of attorney fees and costs associated with the maintenance of the conservatorship in future years.  This request was based on the state court’s Order which instructed petitioners, as conservators, to file annual accounts with the court and a petition for discharge when the child reached majority.   This would have included eleven annual reports and the petition for discharge.  Conservatorship counsel estimated costs for each annual filing would be $3,600 plus Hawaii’s 4.166% excise tax on services.  The court later issued an order allowing triennial, rather than annual accounting.  Additionally, the state court denied petitioners’ request to be allowed to present the accountings without assistance of counsel.

In awarding the future costs associated with the conservatorship, the Court noted that two special masters had recently held that “future” costs of maintaining a guardianship were not compensable, because they interpreted the word “incurred,” as used in § 300aa-15(e)(1) narrowly.  Thus they had denied the requested costs because they had not yet been incurred in the literal sense of being owed at present and were at least in part speculative.

The Court held that the costs requested in this case were distinguishable because they were not speculative – the accounting requirement was a condition of the establishment of the conservatorship, and a requirement under state law.  The need for petitioners to file triennial accountings was court-ordered as part of the establishment of the conservatorship under state law and could not be accomplished pro se, per the court order.

The Court also distinguished the requested costs in this case from costs requested to establish a special needs trust.  While a special needs trust is an often desirable financial management, it is not required for receipt of a vaccine award; a conservatorship is.  Thus conservatorship costs are incurred in a “proceeding on the petition,” whereas special needs trust costs are not.

Regarding the amount to award for future accounting costs, the Court considered counsel’s estimated triennial costs of $3,600 plus Hawaii’s 4.166% excise tax on services.   Rather than award compensation based on an hourly rate that may be subject to variation depending on unpredictable circumstances, the Court awarded a flat fee for service rate of $2,000.00 per filing.  This approach eliminated the uncertainty involved in calculating future “estimated” hours, and addressed Respondent’s assertion that Petitioner would be receiving a “contingency” fund.

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