McCulloch v. HHS, (Fed. Cl. Spec. Mstr. Sep, 1, 2015 ) (Gowen, SM)
Although the Court noted that the relevant “forum” for purposes of forum rates in the Vaccine Program was Washington, D.C., the court went on to hold that the appropriate forum was actually the Vaccine Program itself.
The Special Master held that the following factors should be considered in determining the reasonable forum rate:
- The prevailing rate for comparable legal work in the forum of Washington D.C.
- The prevailing rate for cases in the Vaccine Program
- The experience of the attorneys in the Vaccine Program
- The overall legal experience of the attorneys
- The quality of the work performed in vaccine cases AND
- Reputation in the legal community and community at large.
Ultimately, the Court established this matrix:
[table id=17 /]
Determining where an attorney fell within the ranges above was influenced by these factors:
- Years in vaccine practice
- Numbers of cases in Vaccine Program
- Having represented petitioners in hearings & argued appeals
- Membership in CFC Bar Association
- Participation in OSM/CFC committees
- Participation in VIP Bar –being an officer or serving on a VIP Bar committee is a plus!
- Membership in the AAJ Vaccine Litigation Group
- Speaking on the Vaccine Program at conferences
It is important to note that these rates would not (or should not under the Davis exception) apply to attorneys practicing in jurisdictions where hourly rates are “very significantly lower” than the forum, DC, which would be many vaccine practitioners. This remains to be seen, since the forum may now be the Vaccine Program itself and not DC, under the reasoning of this case.
*Excerpted from my partner Jen Maglio’s CLE presentation at the VIP Bar conference