IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
No. 07-804V
Filed: May 2, 2014
(FOR PUBLICATION)
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JESSICA ENGELS and KAIN ENGELS, *
as parents of B.E., *
Petitioners, * Attorney Fees and Costs;
* Agreed Upon Hourly Rates.
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
Respondent. *
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Richard Gage, Esq., Richard Gage, PC, Cheyenne, WY for petitioners
Lynn Ricciardella, Esq., U.S. Dept. of Justice, Washington, DC for respondent.
DECISION ON ATTORNEY FEES AND COSTS1
Vowell, Chief Special Master:
On January 10, 2014, petitioners moved for a decision dismissing their petition. I
issued my dismissal decision on January 13, 2014. On January 29, 2014, petitioners
filed a motion for award of final attorneys’ fees and reimbursement of costs.
Respondent filed her response on February 18, 2014. After being granted an extension
of time, petitioners filed their reply brief on March 26, 2014.
A status conference was held on April 23, 2014, to discuss the parties’
disagreement over the hourly billing rates for petitioners’ counsel. Following the status
conference, the parties were able to reach an agreement as to petitioners’ counsel’s
hourly billing rates.
For the reasons outlined below, I find that an award of attorneys’ fees and costs
in the amount of $43,335.47 is appropriate in light of the work performed by Mr. Gage
and his firm.
1
Because I have designated this decision to be published, petitioners have 14 days to request redaction
of any material “that includes medical files, the disclosure of which would constitute a clearly unwarranted
invasion of privacy.” Vaccine Rule 18(b). Otherwise, the entire decision will be publicly available. 42
U.S.C. § 300aa12(d)(4)(B).
submit any billing records of Dr. Kinsbourne, and therefore it was impossible to
determine the reasonableness of his hourly rate. Id. at 8.
On February 25, 2014, petitioners were ordered to file an invoice or other
evidence supporting the work Dr. Kinsbourne performed on their behalf. The invoice,
filed on March 26, 2014 as an attachment to petitioners’ reply brief, indicates that he
spent 4.25 hours reviewing medical records and discussing his opinions with petitioners’
counsel. Doctor Kinsbourne performed his work in September 2012, before petitioners
requested a fact hearing, and in January 2014, after my factual findings were issued.
Applying his $500 hourly rate, Dr. Kinsbourne’s total fee for this case is $2,125.00.
In her status report conveying the parties’ agreement as to the hourly rates for
petitioners’ counsel, respondent objected to the $500.00 hourly rate sought by Dr.
Kinsbourne as being unsupported. She cites to several decisions that compensated Dr.
Kinsbourne at lower hourly rates. Respondent’s Status Report, filed Apr. 29, 2014, at 2
(citing Dingle v. Sec’y, HHS, No. 08-579V, -- Fed. Cl. --, 2014 WL 630473, at *7 (Fed.
Cl. Spec. Mstr. Jan. 24, 2014) (awarding $400 per hour); Hammitt v. Sec’y, HHS, No.
07-170V 2011 WL 1827221, at *7 (Fed. Cl. Spec. Mstr. Apr. 7, 2011) (awarding $300
per hour); Stone v. Sec’y, HHS, No. 90-1041V, 2010 WL 3790297, at *6 (Fed. Cl. Spec.
Mstr. Sept. 9, 2010) (awarding $300 per hour)). I note that in these three cases, Dr.
Kinsbourne wrote an expert report and testified as to a theory of vaccine causation.
Petitioners also addressed Dr. Kinsbourne’s hourly rate in their status report
concerning the parties’ agreement as to their counsel’s hourly rates. Petitioners stress
that in contrast to the cases cited by respondent, “Dr. Kinsbourne’s bills have been paid,
in stipulated fee awards, with no objection from respondent, at his $500 per hour rate.”
Petitioners’ Status Report, filed Apr. 30, 2014, at 2. No citations to such cases were
provided.
I will award $1,500.00 for the work performed by Dr. Kinsbourne in this case.
This amount is not based on a particular hourly rate and instead is a reflection of what I
consider a reasonable amount to have paid an expert to review and discuss this case
with petitioners’ counsel.
II. Conclusion.
I hold petitioners are entitled to reasonable attorneys’ fees and costs pursuant to
§§ 15(b) and (e)(1). For the reasons contained herein, I hereby award $43,335.47,7
which shall be paid as follows:
7
This amount is intended to cover all legal expenses incurred in this matter. This award encompasses
all charges by the attorney against a client, “advanced costs” as well as fees for legal services rendered.
Furthermore, 42 U.S.C. § 300aa-15(e)(3) prevents an attorney from charging or collecting fees (including
costs) that would be in addition to the amount awarded herein. See generally Beck v. Sec’y, HHS, 924
F.2d 1029 (Fed. Cir.1991).
4
a lump sum of $42,929.47 in the form of a check payable jointly to
petitioners and petitioners’ counsel of record for petitioners’
attorney fees and costs, and
a lump sum of $406.00 in the form of a check payable to petitioners,
Jessica and Kain Engels, for their personal litigation costs.
The clerk of the court shall enter judgment in accordance herewith.8
IT IS SO ORDERED.
s/Denise K. Vowell
Denise K. Vowell
Chief Special Master
8
Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review.
See Vaccine Rule 11(a).
5