Sallyann Abbott v. HHS - HPV, syncopal seizure and post-vaccination encephalopathy (2017)

Sallyann Abbott filed a petition on July 28, 2010, alleging that human papillomavirus and meningococcal vaccines she received on or about August 17, 2007 caused her to suffer a syncopal seizure and post-vaccination encephalopathy, with residual effects lasting more than six months. A factual dispute arose during the proceedings regarding whether petitioner had experienced a seizure at her pediatrician's office after vaccination.

Two of petitioner's medical experts had relied on this seizure as a predicate for their opinions. Special Master Moran ordered a fact hearing with testimony from office staff present at the time of the vaccination, but petitioner's counsel opposed the introduction of these witnesses.

The special master found petitioner's opposition to be baseless, because percipient witness testimony was necessary to establish the foundational predicate for petitioner's experts' opinions. On June 16, 2016, the parties filed a joint stipulation.

Respondent denied that the vaccines caused petitioner's syncopal seizure, post-vaccination encephalopathy, or any other injury. Nevertheless, the parties agreed to resolve the case by stipulation, and Special Master Moran found the stipulation reasonable and adopted it as the decision of the Court.

Petitioner received a lump sum of $80,000.00, representing compensation for all damages available under 42 U.S.C. § 300aa-15(a). Petitioner applied for attorneys' fees and costs of $193,955.15.

On April 26, 2017, Special Master Moran awarded $150,499.04, making reductions to hours billed by attorneys Christina Ciampolillo (30% reduction for vague billing entries and for the baseless opposition to the fact witness hearing) and Sylvia Chin-Caplan (10% reduction for vague billing entries), and adjusting certain expert witness rates. Petitioner was also awarded $400.16 in personally incurred costs.

Petitioner moved for review of the attorneys' fees decision. The Court of Federal Claims, Judge Wolski, issued a memorandum opinion on October 31, 2017, reissued for publication on November 16, 2017, denying the motion for review and sustaining the special master's decision.

The court found that the special master had conducted a line-by-line analysis of the billing records, identified specific vague entries, and did not abuse his discretion in making the percentage reductions. The court also found that the special master's conclusion that petitioner's opposition to the fact hearing was without basis was not arbitrary or capricious.