Jennifer Morse v. HHS - Hepatitis B, injuries related to her hepatitis B vaccination (2009)

Jennifer Morse filed a petition on March 30, 2005, alleging that a hepatitis B vaccination had caused her a GBS-type neurological injury. The underlying case settled for $30,000, without a hearing on the merits.

The fees and costs dispute that is the subject of this opinion arose from the attorneys' application for fees following that settlement. The uncontested portion of the fee request — $40,894.20 in attorney fees — was not at issue.

The dispute centered on the expert fees and costs. Petitioner had retained two experts: Dr.

Sherri Tenpenny, a treating physician who also served as an expert witness, and Dr. Thomas Morgan, a neurologist.

Dr. Tenpenny submitted an invoice for $14,522.50, reflecting 44.5 hours of work at $326.35 per hour.

Her invoice contained only three undifferentiated line items and did not break down the work by date or task. Special Master Moran found the invoice inadequately detailed to support the claimed hours and estimated that 14 hours of Dr.

Tenpenny's time was compensable, reducing her fees to $4,550.00. Dr.

Morgan's invoice of $1,756.85 for five hours was approved in full. The special master also reduced the total costs requested from $17,972.45 to $7,999.95.

Judge Bush, writing for the Court of Federal Claims on November 10, 2009, denied the motion for review and sustained the special master's decision. The court found no abuse of discretion in the special master's treatment of Dr.

Tenpenny's invoice: the three undifferentiated line items were insufficient to substantiate 44.5 hours of work, and the special master's estimate of approximately thirteen to fourteen compensable hours was reasonable given the record. The court remanded to the special master for the limited purpose of determining the appropriate fees for preparation of the motion for review, as required by Vaccine Rule 34(b).