Sean Austin Brooks v. HHS - Hepatitis B, injury by a hepatitis B vaccination, which resulted in his death (2013)

James L. Brooks Jr. and Ellen M.

Avery, as co-administrators of the estate of Sean Austin Brooks, filed a petition on August 6, 1999, alleging that a hepatitis B vaccination caused Sean Austin Brooks's death. The case was ultimately dismissed for failure to prosecute, meaning no decision on the merits of entitlement was ever issued.

Following dismissal, petitioners' counsel filed an application for attorneys' fees and costs totaling $42,244.49, comprising $38,123.50 in attorney fees and $4,120.99 in costs. Petitioners were represented by Ronald C.

Homer of Conway, Homer & Chin-Caplan after earlier retaining Thaddeus B. Hodgdon.

Special Master Hastings, writing on June 27, 2013, granted the fee application in full. The special master found that the petition was brought in good faith — a point not contested by the government — and that petitioners had a reasonable basis for the claim at the time it was filed.

In particular, petitioners had retained and presented two expert witnesses at hearing: Dr. Martin Kinsbourne, whom the special master found to be a qualified immunologist with relevant and plausible opinions on the causation theory, and Dr.

Mark Geier. The involvement of Dr.

Geier did not render the reasonable basis finding inapplicable; what mattered was whether there was a legitimate scientific theory supporting the claim, which Dr. Kinsbourne's testimony supplied.

The government challenged the fees billed by co-counsel Robert Hodgdon as redundant with those billed by lead counsel Conway. Special Master Hastings rejected that argument.

The record showed that Hodgdon and Conway divided their work along functional lines rather than duplicating efforts: Hodgdon was primarily responsible for discovery, including serving subpoenas on eight hospitals and taking the depositions of four witnesses, while Conway focused on legal strategy and briefing. Because the attorneys' roles were complementary rather than overlapping, the fees charged by both were reasonable and non-redundant.

The requested hourly rates and costs were also found to be reasonable, and the award was entered for the full amount of $42,244.49.