Catherine A. Gruber v. HHS - Hepatitis B, juvenile dermatomyositis (2010)

On February 25, 2010, the U.S. Court of Federal Claims issued an opinion regarding attorneys' fees and costs in the case of Catherine A.

Gruber. Gustavo and Teresa Gruber had filed a petition on behalf of their minor daughter, Catherine, alleging that a hepatitis B vaccine received in 1997 caused juvenile dermatomyositis, diagnosed in 1998.

The parties had previously settled the entitlement claim through a joint stipulation, resulting in a compensation award of $125,000.00. The current opinion, authored by Judge Horn, did not address the merits of the vaccine injury claim but rather focused on disputes over the attorneys' fees and costs sought by Petitioners' counsel, the Maglio Christopher Toale & Pitts Law Firm (Maglio Firm), and former counsel Clifford J.

Shoemaker. Special Master Vowell had previously issued a decision awarding fees and costs, but Petitioners sought review of several reductions made by the Special Master.

Petitioners objected to the Special Master's reductions in several categories: (1) the allocation of attorney and paralegal hours for locating an expert witness; (2) the substitution of paralegal hours for attorney hours in preparing a medical chronology; (3) the reduction of the hourly rate for travel time; (4) the reduction of fees for time spent researching medical literature and drafting an expert report for Dr. Andrew J.

White; (5) the reduction of fees for Dr. Yehuda Shoenfeld's expert work; (6) the reduction of fees for probate counsel; and (7) alleged mathematical errors in the Special Master's calculations.

Judge Horn addressed each objection. Regarding the expert witness location, the court found the Special Master's award of two attorney hours and two paralegal hours, rather than the requested four attorney hours, to be arbitrary and remanded this issue for reconsideration, noting the Special Master's award of paralegal hours for work not claimed by Petitioners.

Similarly, the court remanded the medical chronology preparation issue, as the Special Master awarded paralegal hours for work not claimed by Petitioners. The court upheld the Special Master's reduction of travel time compensation to 50% of the hourly rate, finding that Petitioners failed to adequately document that the travel time was spent on the case or that their firm regularly charged clients full rates for travel.

The court remanded the issue of fees for researching medical literature and drafting Dr. White's expert report, finding the Special Master's severe reduction of Ms.

Toale's claimed hours and her failure to award any compensation to the paralegal to be unsupported, especially in light of the full compensation awarded to Dr. White.

The court affirmed the Special Master's reduction of Dr. Shoenfeld's fees, finding the hourly rate and hours awarded to be reasonable based on prior awards and the evidence.

The court found an error in the Special Master's reduction of probate counsel fees and ordered the award increased to $3,042.50. Finally, the court identified and ordered correction of mathematical errors in the Special Master's calculations.

The decision of the Special Master regarding attorneys' fees and costs was vacated and remanded for further proceedings consistent with the court's opinion. The underlying stipulated award of $125,000.00 remained undisturbed.