Vaccine Injury Compensation Program: Attorney's Fees and Costs Award

Strategic Insights -

Hannah Boudreau, a petitioner, filed a claim under the National Vaccine Injury Compensation Program in July 2021, alleging a shoulder injury related to a tetanus-diphtheria-acellular pertussis vaccination received on May 20, 2019. After a stipulation was reached by the parties, Chief Special Master Corcoran issued a decision awarding compensation to Petitioner on July 28, 2023. Petitioner has since filed a motion for attorney's fees and costs, requesting an award of $44,857.17.

Key Takeaways:

  • The Vaccine Act permits an award of reasonable attorney's fees and costs for successful claimants, with fees to be determined by the special master in accordance with the law.
  • Petitioner's counsel, William B. Hicky, requested compensation at rates of $446 per hour for 2021, $458 per hour for 2022, and $470 per hour for 2023.
  • However, these rates require adjustment, and the previously established rates of $407 for 2021, $417 for 2022, and $427 for 2023 were used to determine the final award.
  • The special master held that Attorney Hicky's rates should be reduced to be consistent with what he has been previously awarded, resulting in a reduction of attorney's fees of $3,777.00.
  • The Petitioner requested overall costs of $2,394.37, comprised of obtaining medical records, shipping costs, and the Court's filing fee, which were deemed reasonable and awarded in full.
  • The special master granted Petitioner's Motion for attorney's fees and costs, awarding a total of $41,080.17 as a lump sum in the form of a check jointly payable to Petitioner and Petitioner's counsel, William B. Hicky.
  • Ninety-four hours of the original 121 hours claimed were found to be excessive, redundant, or otherwise unnecessary, and were not included in the award.
  • The petitioner "bears the burden of establishing the hours expended, the rates charged, and the expenses incurred."
  • Attorney Hicky should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary.

Statistics:

  • The total amount of attorney's fees requested by Petitioner's counsel, William B. Hicky, was $42,462.80.
  • The special master reduced this amount by $3,777.00, resulting in a final award of $38,685.80 for fees.
  • The Petitioner also requested $2,394.37 in overall costs, which were awarded in full.
  • The total amount of the award, including both fees and costs, was $41,080.17.
  • The award consists of 94 hours of attorney work, with a rate of $407 per hour for 2021, $417 per hour for 2022, and $427 per hour for 2023.
  • The reduction in attorney's fees resulted in a savings of 17% of the original requested amount.

Sources:

  • Case 1:21-vv-01573-UNJ Document 57 Filed 11/17/23
  • Pub. L. No. 99-660, 100 Stat. 3755 (National Childhood Vaccine Injury Act of 1986)
  • 44 U.S.C. § 3501 note (E-Government Act of 2002)
  • 42 U.S.C. § 300aa (Vaccine Act)
  • General Order No. 9 (Court of Federal Claims)
  • Hensley v. Eckerhart, 461 U.S. 424 (1983)
  • Saxton v. Sec'y of Health & Human Servs., 3 F.3d 1517 (Fed. Cir. 1993)
  • Wasson v. Sec'y of Health & Human Servs., 24 Cl. Ct. 482 (1991)
  • Sabella v. Sec'y of Health & Human Servs., 86 Fed. Cl. 201 (2009)
  • Broekelschen v. Sec'y of Health & Human Servs., 102 Fed. Cl. 719 (2011)
  • Tucker v. Sec'y of Health & Human Servs., No. 22-0293V, Slip. Op. 36 (Fed. Cl. Spec. Mstr. Jul. 12, 2023)