Spahn v. Sec'y of Health & Human Servs.
| Decision Date | 09 July 2018 |
| Docket Number | No. 09-386V,09-386V |
| Parties | FORREST Q. SPAHN, Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. |
| Court | U.S. Claims Court |
National Childhood Vaccine Injury Act, 42 U.S.C. § 300aa-1 to -34 (2012); Vaccine Rule 8; Attorney's Fees; Waiver.
Paul S. Dannenberg, Esq., Counsel of Record, Huntington, VT, for petitioner.
Voris E. Johnson, Jr., Senior Trial Attorney, Heather L. Pearlman, Assistant Director, Catharine E. Reeves, Deputy Director, C. Salvatore D'Alessio, Acting Director, Chad A. Readler, Acting Assistant Attorney General, Torts Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent.
Respondent, the Secretary of Health and Human Services (the "Secretary"), seeks review of the December 13, 2017, decision of the special master awarding attorneys' fees and costs in the amount of $162,044.12 to petitioner, pursuant to Section 15(e) of the National Childhood Vaccine Injury Act ("Vaccine Act"). 42 U.S.C. § 300aa-15(e). For the reasons set forth below, the Court: GRANTS-IN-PART and DENIES-IN-PART the Secretary's motion for review ofthe special master's December 13, 2017, decision and SUSTAINS the decision of the special master.
In this Vaccine Act matter, petitioner, Forrest Q. Spahn, alleges that the tetanus-diphtheria ("Td") vaccine that he received on June 19, 2007, caused a significant aggravation of his [***]. See Spahn v. Sec'y of HHS, 133 Fed. Cl. 588, 591 (2017); see generally Petition. The relevant facts and medical history regarding petitioner's Vaccine Act claim are set forth in the Court's July 27, 2017, decision denying petitioner's previous motions for review in this matter and remanding this case to the special master. See Spahn, 133 Fed Cl. at 591-95.
Specifically relevant to the current dispute, on September 11, 2014, the special master granted the Secretary's motion for summary judgment and dismissed petitioner's claim. See Spahn v. Sec'y of HHS, No. 9-386V, 2014 WL 12721080, at *19 . Petitioner, subsequently, filed a motion for review of, among other things, the special master's dismissal decision. See Pet'r Mot. for Rev.
On July 27, 2017, the Court: (1) denied petitioner's motion for review and sustained the September 11, 2014, decision of the special master; (2) denied petitioner's motion for review of the special master's October 29, 2014, decision on petitioner's motion to redact certain information from the special master's September 11, 2014, decision and sustained the decision of the special master; (3) denied petitioner's motion for leave to file new evidence; and (4) remanded this case to the special master, for a period of 90 days, for the special master to resolve petitioner's pending motions for fees and costs. See Spahn, 133 Fed. Cl. at 606-07.
During the remand proceedings before the special master, the special master awarded petitioner interim attorneys' fees and costs in the amount of $14,650.00, on September 14, 2017. See generally Judgment.
On October 11, 2017, petitioner filed an application for attorneys' fees and costs. See generally Pet'r Mot. for Att'y Fees. In the application, petitioner requested attorneys' fees and costs in the amount of $162,044.12. Id. In support of the application, petitioner also filed exhibits explaining the amount of attorney hours expended, the costs incurred, and the applicable attorney hourly rates. See id. at 2, Ex. 3-5. Petitioner also submitted affidavits from his attorney in support of the attorney's legal experience and hourly rates, as well as affidavits from other practicing attorneys in same jurisdiction, attesting to the average hourly rate within the area. See id. at Ex. 1-2.
On October 20, 2017, the Secretary filed a response to petitioner's motion for attorneys' fees and costs. See Resp't Resp. to Pet'r Mot. for Att'y Fees. In the response, the Secretary argued that both the Vaccine Act and the Vaccine Rules require the special master to make a reasonableness determination before awarding attorneys' fees and costs, and that neither the Vaccine Act nor the Vaccine Rules contemplate "any role for respondent in the resolution of a request by petitioner for an award of attorneys' fees and costs." See id. at 1-2.
In addition, the Secretary stated that he "is satisfied the statutory requirements for an award of attorneys' fees and costs are met in this case." See id. at 2. And so, the Secretary recommended that the special master "exercise his discretion and determine a reasonable award for attorneys' fees and costs." See id. at 3.
On December 13, 2017, the special master issued a decision awarding attorneys' fees and costs in the amount of $162,044.12 to petitioner (the "December 13, 2017, Decision"). See generally Spahn v. Sec'y of HHS, No. 9-386V, 2017 WL 6945560 . In the decision, the special master found that petitioner was eligible for an award of attorneys' fees and costs, because there was a reasonable basis for petitioner's Vaccine Act claim and petitioner brought the claim in good faith. See id. at *1.
Based upon the rationale articulated in Swintosky v. Sec'y of Health and Human Servs., the special master also determined that the Secretary "waived any objections to the amount of fees requested," because the Secretary did not raise any objection to the fees and costs requested by petitioner and the Secretary recommended the special master "'exercise his discretion'" in determining the reasonableness of the award without raising "any specific objections." See id.; see also Swintosky v. Sec'y of HHS, No. 12-403V, 2017 WL 5899239, at *2, *6 .2 The special master did not address whether the amount of attorneys' fees and costs requested by petitioner were reasonable. See Pet'r Resp. to Resp't Mot. for Rev. at 1; see generally Spahn, No. 9-386V, 2017 WL 6945560. Nonetheless, the special master granted in full petitioner's request for $162,044.12 in attorneys' fees and costs. See Spahn, No. 9-386V, 2017 WL 6945560, at *1.
The Secretary, alleging error, seeks review of the special master's decision.
The extensive procedural history for this matter is set forth in the Court's July 27, 2017, Memorandum Opinion and Order. See Spahn, 133 Fed. Cl. at 595. Specifically relevant to the motion under review, the Secretary filed a motion for review of the special master's December 13, 2017, Decision on January 12, 2018, as well as a memorandum in support thereof. See Resp't Mot. for Rev. Petitioner filed a response and opposition to the Secretary's motion for review on February 11, 2018. See Pet'r Resp. to Resp't Mot. for Rev.
On February 28, 2018, the Court ordered the parties to file supplemental briefs on whether any or all of the arguments raised in the Secretary's motion for review have been waived pursuant to Vaccine Rule 8(f). See Order, Feb. 28, 2018. The Secretary filed a supplemental brief on March 30, 2018. See Resp't Supp. Br. Petitioner filed a response to the Secretary's supplemental brief on April 28, 2018. See Pet'r Resp. to Resp't Supp. Br.
The motion for review having been fully briefed, the Court resolves the pending motion.
The United States Court of Federal Claims has jurisdiction to review the record of the proceedings before a special master and, upon such review, may:
42 U.S.C. § 300aa-12(e)(2). The special master's determinations of law are reviewed de novo. Andreu ex rel. Andreu v. Sec'y of HHS, 569 F.3d 1367, 1373 (Fed. Cir. 2009). The special master's findings of fact are reviewed for clear error. Id. (citation omitted); see also Broekelschen v. Sec'y of HHS, 618 F.3d 1339, 1345 (Fed. Cir. 2010) (). The special master's discretionary rulings are reviewed for abuse of discretion. Munn v. Sec'y of HHS, 970 F.2d 863, 870 n.10 (Fed. Cir. 1992).
In this regard, the Court has held that the applicable standard of review in Vaccine Act cases challenging a special master's determination regarding reasonable attorneys' fees is abuse of discretion. Scharfenberger v. Sec'y of HHS, 124 Fed. Cl. 225, 231 (2015); Dominguez v. Sec'y of HHS, 136 Fed. Cl. 779, 2018 WL 1514447 (2018). This Court will find an abuse of discretion only where the special master's decision is clearly unreasonable, based upon an erroneous conclusion of law, rests on erroneous fact finding, or based on a record without evidence to support the special master's decision. See Ninestar Tech. Co. v. ITC, 667 F.3d 1373, 1379 (Fed. Cir. 2012) (quoting Genentech, Inc. v. ITC, 122 F.3d 1409, 1415 (Fed. Cir. 1997)).
In addition, when disputing a special master's determination, this Court requires particular, factual demonstrations of error in the special master's conclusions. See Davis v. Sec'yof HHS, 105 Fed. Cl. 627, 639 (2012) ().
In addition, a special master's findings regarding the probative value of the evidence and the credibility of witnesses will not be disturbed so long as they are "supported by substantial evidence." Doe v. Sec'y of HHS,...
To continue reading
Request your trial