Review of Recent Cases Involving Attorney’s Fees & Costs


Supplemental Costs Post-Fee Judgment

SM granted an unopposed request for supplemental expert costs inadvertently omitted from original fees and costs determination, which had been settled by stipulation.  Judgment had issued on the original fees and costs decision.  However, the 180 day period in which to requests fees and costs had not yet expired.  Brasher v. HHS, (Fed. Cl. Spec. Mstr. No. 4, 2016) (Gowen, SM)

Excessive hours

File Review- Routine monthly file review, at either .5 or 1 hours, is unreasonable without further explanation, especially if counsel is actively involved in the case.  Florence v. HHS, (Fed. Cl. Spec. Mstr. Oct. 6, 2016) (Moran, SM)

Calls with Client- Eleven hours of attorney time spent in phone calls with petitioner, discussing medical records and case status, was excessive considering the petition had not yet been filed.  Laney v. HHS, (Fed. Cl. Spec. Mstr. Oct. 18, 2016) (Roth, SM)

Billing Specificity- Privileged Communications

Detailed contemporaneous time records are required in Vaccine Act cases even for client communications.  The Federal Circuit, in an EAJA case, has held that to  “adequately identif[y] the purpose of the activities” does “not in most cases invade the attorney-client privilege when applied to client communications.” Florence v. HHS, (Fed. Cl. Spec. Mstr. Oct. 6, 2016) (Moran, SM)

Travel Costs- Ruth’s Chris Steakhouse, Charter Flights and Limousines

A $5500 charter flight to a LCP site visit and an accompanying $600 limo ride were disallowed as excessive (but associated costs were only reduced by 50%!).   Raymo v. HHS, (Fed. Cl. Spec. Mstr. Nov. 2, 2016) (Dorsey, CSM)

Dinner at Ruth’s Chris steakhouse was allowed where lesser meal costs incurred during travel were not billed, thus total meals costs were less than federal per diem.  $50 rental car upgrade not warranted.  Hoehner v. HHS, (Fed. Cl. Spec. Mstr. Nov. 7, 2016) (Hamilton-Fieldman, SM)

Case Funding Costs

Unreasonable to charge $29,554.58 in case funding loan interest to Vaccine Program.  Raymo v. HHS, (Fed. Cl. Spec. Mstr. Nov. 2, 2016) (Dorsey, CSM)

Reasonable Basis

Pro se petitioner entitled to litigation costs associated with filing petition and obtaining medical records, where records contained notation “Please do not administer influenza vaccine due to prior reaction to vaccine that patient is currently still being treated for.”   Heyer v. HHS, (Fed. Cl. Spec. Mstr. Nov. 10, 2016) (Hamilton-Fieldman, SM)

Unreasonable to take on representation of petitioner in case where experienced vaccine counsel was previously unsuccessful in his numerous attempts to obtain supportive expert opinion.  Although not per se unreasonable to take on case as second attorney, “further investigation” than usual is warranted.  Rehn v. HHS, (Fed. Cl. Spec. Mstr. Oct. 31, 2016) (Millman, SM)

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