Christopher Sabella v. HHS - Hepatitis B, shoulder injury related to vaccine administration (SIRVA) (2009)

Christopher Sabella filed a petition on November 18, 2002, alleging that hepatitis B vaccinations he received on November 18, 1999, December 24, 1999, and February 7, 2000 had caused him injury. The underlying case was resolved without a decision on the merits: a stipulation adopted by the special master on May 21, 2007 served as the entitlement decision.

The attorneys' fees and costs dispute that is the subject of this opinion was extensive — petitioners' counsel had requested $173,448.20 in attorney fees and $61,800.87 in costs, for a combined total of $235,244.07. Petitioner was represented sequentially by Joel Korin, first at Kenney & Kearney, P.C. and later at Ballard Spahr Andrews & Ingersoll, LLP after Kenney & Kearney dissolved in October 2005, and by Clifford Shoemaker, whose office was located in Vienna, Virginia.

Mr. Korin was initially joined by Jane Kenney, a partner at Kenney & Kearney, until that firm closed.

On September 23, 2008, Special Master Moran awarded $62,207.50 in attorney fees and $17,742.28 in costs — a substantial reduction from the amount requested. The special master applied the Davis County exception from Avera v.

HHS, 515 F.3d 1343 (Fed. Cir. 2008), to deny Mr.

Shoemaker the prevailing Washington, D.C. forum rates he sought ($440 to $645 per hour), finding that his Vienna, Virginia office was not within the District of Columbia and that the proposed minimum DC rate was 46% higher than his prior agreed-upon local rate of $300 per hour — a "very significant difference." The special master awarded Mr. Shoemaker $250 to $310 per hour (his original requested rates prior to his claim for DC forum rates).

The special master declined to increase Mr. Korin's hourly rate from $200 per hour when he changed firms to Ballard Spahr, finding that his higher billing rates at that firm reflected new client relationships and did not justify an increase for the ongoing Sabella representation.

The special master found that use of multiple attorneys — Korin, Kenney, and Shoemaker — had resulted in significant overstaffing and duplication. He divided the litigation into five time periods and reduced the compensable hours for each, identifying specific examples of overlapping work, unnecessary joint attendance at brief status conferences, and attorney billing for administrative tasks that should have been handled by support staff.

The special master found that Mr. Shoemaker had not demonstrated how his participation had advanced the case beyond what Mr.

Korin could accomplish independently. Among the expert fees, the special master denied compensation for Dr.

Mark Geier entirely, finding him unqualified as an expert in immunology (his background was in genetics and obstetrics/gynecology) and noting his repeated exclusion in prior vaccine cases on similar grounds. The special master reduced Dr.

Poser's hourly rate from $350 to $200, reduced Dr. Shoenfeld's hourly rate by $50, denied compensation for Dr.

Pretorius (due to a five-year gap between the vaccine and the SPECT brain scan study and the absence of invoices), denied compensation for Dr. Wolf's economic analysis (because the Vaccine Act sets a statutory rate for lost earning capacity), reduced Dr.

Greenspan's fees from approximately $13,000 to $2,950, and denied compensation for an unnamed expert witness for whom no identifying information had been provided. Judge Hewitt, writing for the Court of Federal Claims on March 2, 2009, granted the motion for review in part and denied it in part.

The court reversed the special master's decision on two discrete grounds. First, the special master's expert cost sub-total of $7,245 was arithmetically incorrect: the sum of his own individually-stated award amounts totaled $13,515, and the court corrected the award by adding $6,270.

Second, the special master's unexplained $50-per-hour reduction to Dr. Shoenfeld's documented hourly rate was unsupported and the court reversed that reduction, adding $625.

In all other respects, including the application of the Davis County exception to hourly rates, the reductions for overstaffing and duplication, the denial of Dr. Geier's fees, and the reductions for undocumented expert costs, the court affirmed the special master's decision.

The court also awarded an additional $1,690 in fees for the time spent preparing the motion for review. The final award was $62,897.50 in attorney fees and $24,637.28 in costs.