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

Under the Vaccine Act, the Court of Federal Claims may set aside a special master's factual finding or legal conclusion only if it is arbitrary, capricious, an abuse of discretion, or otherwise contrary to law. Legal conclusions are reviewed de novo, but discretionary rulings, including the assessment of reasonable fees, receive considerable deference.

The lodestar method governs attorney-fee awards: reasonable hours are multiplied by a reasonable hourly rate, with adjustments when warranted. The fee applicant bears the burden to document and establish the reasonableness of every claimed hour, rate, and cost; time actually spent is not necessarily time reasonably spent.

A special master may draw on experience in Vaccine Program litigation, make percentage reductions rather than conduct a line-by-line audit, and assess the reasonableness of a request independently of respondent's objections. But the special master must give enough explanation for a reviewing court to evaluate the exercise of discretion.

Although the usual lodestar rule uses forum rates, Avera permits use of the market where the bulk of work was performed when the work occurred outside the forum and there is a very significant difference favoring Washington, D.C. Shoemaker and his associates worked principally in Virginia, not in the District of Columbia, and the proposed D.C. minimum rate substantially exceeded Shoemaker's customary rate.

The special master reasonably used rates that Shoemaker had previously negotiated with the Department of Justice. A negotiated rate can be evidence of a market rate, and Shoemaker had not shown that his counsel was entitled to higher District of Columbia rates.

The special master also reasonably retained Korin's $200 rate despite his move to a new firm. The evidence that the new firm charged some clients more did not establish that Sabella's ongoing representation, which began at the prior firm, justified a higher rate.

The special master found that the case, though somewhat more complex than a typical Vaccine Program claim, was not unusually complex, was not a matter of first impression, and did not require the level of multiple-lawyer staffing claimed. Sabella had not adequately explained how Korin, Kenney, and Shoemaker divided distinct responsibilities or how their overlapping work advanced the case.

For the periods before and after filing the petition, the special master identified representative examples of inefficiency, including duplicated attorney effort, excessive time on basic program research and drafting, investigation of a possible malpractice action, and Korin's attendance at a vaccine seminar. Those examples supported broader reductions; the special master was not required to calculate a separate deduction for every challenged entry.

For the period in which Shoemaker joined the case but Korin remained counsel of record, the special master reasonably concluded that two firms created unnecessary overlap. Multiple attorneys attended conferences, spoke with experts, reviewed the same reports, and performed administrative work that could have been handled by support staff. Sabella did not show that Shoemaker's participation supplied necessary expertise unavailable from Korin and Kenney.

After Shoemaker became counsel of record, the special master could reasonably question Korin's continued extensive role and the need for two attorneys at a two-day hearing, particularly where most witnesses were friendly. The court rejected Sabella's argument that the special master imposed a new requirement: the applicant has always borne the burden to show why the requested work was reasonable.

A special master is not confined to respondent's itemized objections when deciding whether a fee request is reasonable. The special master has an independent responsibility to ensure that public funds are awarded only for reasonable fees and costs.

Sabella's reliance on authority limiting unsupported sua sponte reductions was misplaced because the special master's reductions rested on the billing records, the record of the litigation, and the special master's experience. Counsel had also received respondent's substantive objections and repeated opportunities to substantiate the application.

The court emphasized that even in the Vaccine Program's less adversarial setting, counsel—not the court or special master—must provide adequate proof at the time of the application. A missing explanation or invoice does not obligate the special master to request more evidence.

The special master did not abuse discretion by refusing compensation for Avera-related briefing that was not included in Sabella's amended fee application. Under Vaccine Rule 8(f), an argument or claim not specifically raised before the special master is waived on review.

The court agreed that some compensation for the motion for review was appropriate, but it found the requested $8,236.20 unreasonable. The amount was disproportionately larger than the fee requested for preparing the original fee application, and the motion included personal attacks rather than useful legal analysis.

Applying Shoemaker's top approved rate of $310 per hour, the court concluded that $2,000 was reasonable for preparing the review motion. It reduced that sum by $310 for one hour spent on ad hominem attacks against the special master, resulting in a $1,690 award.

Expert costs, like attorney fees, must be reasonable and adequately supported. The applicant must provide evidence of the expert's qualifications, work performed, hours, customary or comparable rates, and other facts relevant to reasonableness. Invoices and specific documentation are especially important.

The court upheld the reductions or denials concerning Drs. Geier, Poser, Pretorius, Wolf, Knast, and Condoluci, as well as the unidentified expert and consultant Greenspan. The special master had rational grounds for concluding that particular work was unnecessary, inadequately documented, beyond the expert's useful specialty, duplicative, or unsupported as to hours and rate. The court also upheld the treatment of miscellaneous travel and paralegal-travel expenses.

The special master correctly reduced or denied costs where Sabella supplied no adequate invoices, no basis for a requested rate, or no evidence that the work advanced the case. An attorney's general assurance that funds were spent could not substitute for the information necessary to assess an unnamed expert's qualifications, work, and reasonable compensation.

The special master made a mathematical error when totaling the expert-cost awards. The individual awards totaled $13,515 rather than $7,245, so the court corrected the resulting overall cost calculation by $6,270.

The court also held that the special master's additional $50-per-hour reduction to Dr. Shoenfeld's rate was arbitrary and capricious. Although it was reasonable to compare Shoenfeld to a similarly situated immunologist, the special master expressly lacked evidence about differences in the cost of living or practice between Washington, D.C. and Tel Aviv. The court restored $50 per hour for 12.5 hours, adding $625.

The opinion's calculations yield attorney fees of $63,897.50: the special master's $62,207.50 award plus $1,690 for preparing the review motion. They yield costs of $24,637.28: the special master's stated $17,742.28 award plus the $6,270 mathematical correction and the $625 Shoenfeld adjustment.

The opinion's concluding discussion contains inconsistent figures for the final award, including a reference to $24,687.28 and a clerk's-judgment instruction listing different amounts. The court's body calculations, however, support $63,897.50 in fees and $24,637.28 in costs.