Broekelschen v. Secretary of Health & Human Services

102 Fed. Cl. 719, 2011 U.S. Claims LEXIS 2195, 2011 WL 5600217
CourtUnited States Court of Federal Claims
DecidedOctober 31, 2011
DocketNo. 07-137 V
StatusPublished
Cited by1,766 cases

This text of 102 Fed. Cl. 719 (Broekelschen v. Secretary of Health & Human Services) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Broekelschen v. Secretary of Health & Human Services, 102 Fed. Cl. 719, 2011 U.S. Claims LEXIS 2195, 2011 WL 5600217 (uscfc 2011).

Opinion

OPINION AND ORDER1

GEORGE W. MILLER, Judge.

On February 21, 2011, petitioner Dr. Peter Broekelschen filed a final application for attorney’s fees and costs (docket entry 85) after his petition for relief under the Vaccine Act was denied. Special Master Christian Moran awarded petitioner a reduced amount of his requested fees and costs. Petitioner now files a motion for review arguing that the special master acted arbitrarily, capriciously, and contrary to law, and abused his discretion when he awarded petitioner fees and costs less than that requested. For the reasons set forth below, the Court DENIES petitioner’s motion for review and AFFIRMS the decision of the special master.

I. Background

A. Procedural History

Petitioner filed a petition for compensation under the Vaccine Act on March 1, 2007, claiming that he suffered transverse myelitis as a result of the influenza vaccination (docket entry 1). On February 4, 2009, the special master issued a decision holding that petitioner was not entitled to compensation (docket entry 67) because the special master did not find that there was a causal connection between petitioner’s determined ailment and the vaccination he received. Decision Denying Entitlement 28.

Before the special master issued his decision, petitioner filed an application for interim fees and costs (June 27, 2008, docket entry 40). On December 17, 2008, two months before he rendered his decision on the merits of the vaccine petition, the special master awarded petitioner a portion of his requested fees and costs. See Decision on Att’y’s Fees & Costs (“Interim Fees Dec.”) (docket entry 65). Specifically, the special master awarded petitioner $107,035.75 in attorney’s fees out of $123,337.75 requested, and $5,801.26 in attorney’s costs out of $6,051.26 requested. Id. at 9, 11-12; see infra table 1. The reduction in costs was made to reflect a refund of a $250.00 refiling fee that petitioner’s counsel had already received. Interim Fees Dec. 12. When awarding attorney’s fees, the special master found that petitioner’s counsel’s hourly rate was reasonable, but determined that the number of hours she spent on various tasks, some of which could have been performed by a paralegal, was excessive. Id. at 5-11. Accordingly, he reduced the hours she spent on certain activities related to the litigation and recalculated her fees. Id.

Additionally, the special master awarded $1,559.00 in expert costs, the full amount [722]*722requested, and $19,975.00 in expert fees out of $22,300.00 requested. Id. at 12-16; see infra table 1. In reducing the expert fees, the special master found that one expert’s 2008 rate of $500.00 per hour, a $100.00 increase from that same expert’s 2007 hourly rate, was unreasonable. Interim Fees Dec. 13-15. Accordingly, the 2008 hourly rate was reduced to $425.00 and the resultant fees were calculated accordingly. Id. at 15. In total, petitioner was awarded $134,371.01 in interim fees and costs. Id. at 16.

Table 1: Interim Fee Award

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102 Fed. Cl. 719, 2011 U.S. Claims LEXIS 2195, 2011 WL 5600217, Counsel Stack Legal Research, https://law.counselstack.com/opinion/broekelschen-v-secretary-of-health-human-services-uscfc-2011.