CHAPTER 23

• Jurisdiction: United States

CHAPTER 23 ATTORNEYS' FEES AND COSTS IN VICP AND CICP CASES

Unless a statute provides for attorneys' fees, they are typically not awarded in traditional tort cases. The VICP, however, is different. The VICP provides for attorneys' fees and costs in most instances, whereas the CICP does not. The difference between the treatment of attorneys' fees under the two programs is based in their originating statute. The PREP Act says nothing about attorneys' fees or costs, whereas the National Childhood Vaccine Injury Act specifically provides for them. Accordingly, the PREP Act has been interpreted as Congress not giving HHS authority to provide for attorney fees and costs.¹

Under the VICP, reasonable attorneys' fees and costs must be awarded if the petitioner is found to be entitled to compensation.² Reasonable attorneys' fees and costs may be awarded to the unsuccessful petitioner, however, "if the special master or court determines that the petition was brought in good faith and there was a reasonable basis for the claim for which the petition was brought."³ Indeed, since the VICP's inception through December 2020, a total of $93,124,784.46 in attorneys' fees and cost were paid to attorneys in cases that were dismissed.⁴ Yes, this unusual number is remarkable—in classic tort cases, the outcome of dismissal comes without compensation to counsel.

To receive attorneys' fees and costs in a VICP case, counsel must keep meticulous, contemporaneous records of the time spent on the case, the basis of the time spent, who worked on it, that person's billing rates, and an itemized report of expenses. Additionally, documents evidencing the costs (such as invoices) must be presented. Keep in mind that only "reasonable" fees and costs may be awarded, thus the special master has discretion to determine whether certain fees or costs are unreasonable. Special masters use the lodestar method to determine reasonable fees and costs.⁵ Under that approach, a court determines the number of hours reasonably expended in the case and reasonable hourly rates for the attorney(s) involved.⁶ The court multiplies those numbers and may adjust the sum up or down based on other specific findings.⁷ Under the Vaccine Act, an attorney's "reasonable" hourly rate is "the prevailing market rate defined as the rate prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation."⁸ In determining an award of attorneys' fees, the special master...