Wasson v. Secretary of the Department of Health & Human Services

24 Cl. Ct. 482, 1991 U.S. Claims LEXIS 558, 1991 WL 255853
CourtUnited States Court of Claims
DecidedNovember 19, 1991
DocketNo. 90-208V
StatusPublished
Cited by1,505 cases

This text of 24 Cl. Ct. 482 (Wasson v. Secretary of the Department of Health & Human Services) is published on Counsel Stack Legal Research, covering United States Court of 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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Wasson v. Secretary of the Department of Health & Human Services, 24 Cl. Ct. 482, 1991 U.S. Claims LEXIS 558, 1991 WL 255853 (cc 1991).

Opinion

ORDER

ANDEWELT, Judge.

The court has reviewed the special master’s July 5, 1991, decision on attorneys’ fees and expenses, petitioner’s motion for review, and the government’s response thereto. Petitioner had requested a fee and expense award of $165,561.31 based on $250 per attorney hour for 514.10 hours, $125 per paralegal hour for 184.4 hours, and $13,986.31 to cover expenses. The special master rejected petitioner’s request and awarded petitioner $23,939.11 based on $150 per attorney hour for 100 hours, $50 per paralegal hour for 30 hours, and $7,439.11 for expenses.

A special master’s decision should be set aside only if the findings of fact or conclusions of law are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. See 42 U.S.C. § 300aa-12(e)(2)(B). A request for attorneys’ fees and expenses should not result in another extensive proceeding, and the special master is given reasonably broad discretion when calculating such awards. See Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983). Inter alia, the special master may rely upon both her own general experience and her understanding of the issues raised. See Slimfold Mfg. Co. v. Kinkead Indus., Inc., 932 F.2d 1453, 1459 (Fed.Cir.1991). However, the special master must provide sufficient findings and analysis in her opinion for the court, upon review, to determine whether there was an abuse of discretion. See Hensley, 461 U.S. at 437, 103 S.Ct. at 1941.

The court understands the factual and analytical basis of certain of the special master’s conclusions and affirms those conclusions. However, the court lacks sufficient understanding as to the basis of certain other conclusions and remands those conclusions to the special master for additional explanation.

A.

The special master did not base her decision on a line-by-line evaluation of the petition. She explained her rationale as follows:

The application itself, along with accompanying documentation and attachments, consists of 82 pages. Unfortunately, counsel has documented time entries and activities in such manner as to render it impossible for the special master to address with any degree of specificity the items contained therein. For this reason, the undersigned will address petitioner’s request generally, and render a decision [484]*484based on general guidelines as to a reasonable fee in the context of the Vaccine Program and of this case in particular.

Wasson v. Secretary, HHS, No. 90-208V, slip op. at 2,1991 WL 135015 (Cl.Ct. July 5, 1991).

The court affirms the special master’s approach. The petitioner bears the burden of establishing the hours expended, the rates charged, and the expenses incurred. See Hensley, 461 U.S. at 437, 103 S.Ct. at 1941. Because petitioner’s fee and expense request cryptically lists hours and descriptions of work, the special master reasonably concluded that she could not determine, based on that request, whether the hours claimed were reasonable. The special master did not abuse her discretion by proceeding to “render a decision based on general guidelines as to a reasonable fee.”1

B.

To support the request for a $250 per attorney hour rate, petitioner relied upon eleven identical affidavits submitted by attorneys who practice law in the Eastern District of the Federal Court of Missouri, the same area in which petitioner’s counsel practices. The special master, in refusing to give significant weight to these affidavits, stated:

Each affidavit alleges familiarity with the prevailing market rates in the area and claims that $250 per hour is reasonable for attorneys and half the attorney rate is reasonable for paralegals. The affidavits do not state precisely what those rates are with which they are “familiar,” nor does the affidavit state what the affiant’s own rate is. Such conclusory affidavits are of little probative worth. The court is unable to assess the reasonableness in the local community of the claimed rate. Nor do the affiants claim any knowledge of vaccine cases or of the skills needed under this simplified program.

Wasson, slip op. at 3. The court agrees with the special master’s assessment. Where possible, such affidavits should focus on rates charged for work analogous to the work in issue.

To support a fee of $250 per attorney hour, petitioner also relied upon a fee agreement between petitioner and petitioner’s counsel. But the Vaccine Act provides that attorneys’ fees are determined by the court and not by the parties.2 In such a statutory setting, the special master did not abuse her discretion by conducting her own independent evaluation of a reasonable hourly rate.

With respect to her evaluation, the special master stated:

Vaccine cases, while not always easy cases, do not involve the more difficult levels of proof required in traditional tort litigation. At the outset in this case, respondent conceded that petitioner was entitled to compensation. It was unnecessary, therefore, to undertake the difficult burden of proving causation, which entails special proficiency in medical and scientific matters.

Wasson, slip op. at 4. This observation is consistent with this court’s previously expressed belief that vaccine cases do not always require the application of a full range of legal skills, and that any award of attorneys’ fees should recognize the actual level of skills required for a particular case. [485]*485See, e.g., Zeagler v. Secretary, HHS, 19 Cl.Ct. 151, 154 (1989).

The special master relied upon a series of other observations to support awarding a rate of $150 per attorney hour. She noted that special masters have awarded a maximum attorney hourly rate in vaccine cases of $225 and that this rate is reserved for attorneys of exceptional skill and experience who live in areas of high costs. The special master found that petitioner’s counsel did not meet these requirements. Inter alia, while complimenting counsel in a general way, the special master concluded, in effect, that petitioner’s counsel demonstrated inexperience in handling the matter. Finally, in setting the rate of $150 per attorney hour, the special master relied upon a study that listed fees charged by partners in six large law firms in St. Louis, Missouri, the nearest large city to Hannibal, Missouri, where petitioner’s counsel practices. The survey showed partner fees ranging from a low of $100 per hour to a high of $215 per hour.

The approach used by the special master was reasonable and the factors she considered were each sound. This court concludes that the special master did not abuse her discretion when setting the reasonable attorney fee rate at $150 per hour.

C.

Turning to the requested $125 per paralegal hour rate, the same conclusory affidavits submitted by petitioner to support the attorneys’ fee request support the paralegal request.

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24 Cl. Ct. 482, 1991 U.S. Claims LEXIS 558, 1991 WL 255853, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wasson-v-secretary-of-the-department-of-health-human-services-cc-1991.