Kotch v. Secretary of Health and Human Services
Kotch
Court
United States Court of Federal Claims
Decided
June 16, 2025
Jurisdiction
FS
Importance
46%
Case Summary
In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-675V ************************* * GENA BINKLEY KOTCH, * Chief Special Master Corcoran * Petitioner, * Filed: May 20, 2025 * v. * * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * ************************* Robert J. Krakow, Law Office of Robert J. Krakow, P.C., New York, NY, for Petitioner. Sarah B. Rifkin, U.S. Department of Justice, Washington, DC, for Respondent. DECISION GRANTING IN PART FINAL AWARD OF ATTORNEY’S FEES AND COSTS 1 On May 7, 2019, Gena Binkley Kotch filed a petition seeking compensation under the National Vaccine Injury Compensation Program (the “Vaccine Program”). 2 Petitioner alleged that she suffered Guillain-Barré syndrome or peripheral neuropathy as a result of an influenza vaccine she received on January 27, 2018. Petition (ECF No. 1) at 1. The matter was originally set for a two-day Entitlement Hearing to take place on December 9, 2024, but the parties were able to successfully settle the case before then, and I issued a decision awarding Petitioner compensation. See Decision, dated Feb. 27, 2025 (ECF No. 112). 1 "Under Vaccine Rule 18(b), each party has fourteen (14) days within which to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public in its present form. Id." 2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”). Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix). Petitioner previously filed a motion for interim attorney’s fees and costs, but has since filed this present motion, and requests that it be combined with the pending fees request. See Motion, dated Dec. 19, 2023 (ECF No. 75) (“Interim Fees Mot.”); Motion, dated Apr. 12, 2025 (ECF No. 117) (“Final Fees Mot.”). In total, Petitioner requests $333,966.44 in attorney’s fees and costs (reflecting $280,092.31 in fees, plus $53,874.13 in costs) for the work of attorneys and staff at the Law Office of Robert J. Krakow, P.C. Final Fees Mot. at 13, 42. Respondent reacted to the present fees request on April 28, 2025. See Response, dated Apr. 28, 2025 (ECF No. 128). Respondent agrees that Petitioner has satisfied the statutory requirements for a fees award, and otherwise defers the calculation of the amount to be awarded to my discretion. Resp. at 2, 5. Petitioner filed a reply, maintaining her position and requesting that she be awarded the requested fees and costs as indicated. Reply, dated May 2, 2025 (ECF No. 122). For the reasons set forth below, I hereby GRANT IN PART Petitioner’s motion, awarding fees and costs in the total amount of $332,960.24. I. Calculation of Fees Because Petitioner’s claim was successful, she is entitled to a fees and costs award— although only “reasonable” fees or costs may be awarded in the Program. Determining the appropriate amount of the fees award is a two-part process. The first part involves application of the lodestar method—“multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.” Avera v. Sec’y of Health & Hum. Servs., 515 F.3d 1343, 1347–48 (Fed. Cir. 2008) (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). The second part involves adjusting the lodestar calculation up or down to take relevant factors into consideration. Id. at 1348. This standard for calculating a fee award is considered applicable in most cases where a fee award is authorized by federal statute. Hensely v. Eckerhart, 461 U.S. 424, 429–37 (1983). An attorney’s reasonable hourly rate is determined by the “forum rule,” which bass the proper hourly rate to be awarded on the forum in which the relevant court sits (Washington, D.C., for Vaccine Act cases), except where an attorney’s work was not performed in the forum and there is a substantial difference in rates (the so-called “Davis” exception”). Avera, 515 F.3d at 1348 (citing Davis Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot. Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)
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Date Decided
June 16, 2025
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In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-675V
*
GENA BINKLEY KOTCH, * Chief Special Master Corcoran * Petitioner, * Filed: May 20, 2025 * v. * * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * *
Robert J. Krakow, Law Office of Robert J. Krakow, P.C., New York, NY, for Petitioner.
Sarah B. Rifkin, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION GRANTING IN PART FINAL AWARD OF
ATTORNEY’S FEES AND COSTS 1
On May 7, 2019, Gena Binkley Kotch filed a petition seeking compensation under the
National Vaccine Injury Compensation Program (the “Vaccine Program”). 2 Petitioner alleged that she suffered Guillain-Barré syndrome or peripheral neuropathy as a result of an influenza vaccine she received on January 27, 2018. Petition (ECF No. 1) at 1. The matter was originally set for a two-day Entitlement Hearing to take place on December 9, 2024, but the parties were able to successfully settle the case before then, and I issued a decision awarding Petitioner compensation. See Decision, dated Feb. 27, 2025 (ECF No. 112).
1 "Under Vaccine Rule 18(b), each party has fourteen (14) days within which to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public in its present form. Id." 2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”). Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix). Petitioner previously filed a motion for interim attorney’s fees and costs, but has since filed this present motion, and requests that it be combined with the pending fees request. See Motion, dated Dec. 19, 2023 (ECF No. 75) (“Interim Fees Mot.”); Motion, dated Apr. 12, 2025 (ECF No. 117) (“Final Fees Mot.”). In total, Petitioner requests $333,966.44 in attorney’s fees and costs (reflecting $280,092.31 in fees, plus $53,874.13 in costs) for the work of attorneys and staff at the Law Office of Robert J. Krakow, P.C. Final Fees Mot. at 13, 42. Respondent reacted to the present fees request on April 28, 2025. See Response, dated Apr. 28, 2025 (ECF No. 128). Respondent agrees that Petitioner has satisfied the statutory requirements for a fees award, and otherwise defers the calculation of the amount to be awarded to my discretion. Resp. at 2, 5. Petitioner filed a reply, maintaining her position and requesting that she be awarded the requested fees and costs as indicated. Reply, dated May 2, 2025 (ECF No. 122).
For the reasons set forth below, I hereby GRANT IN PART Petitioner’s motion, awarding
fees and costs in the total amount of $332,960.24.
I. Calculation of Fees
Because Petitioner’s claim was successful, she is entitled to a fees and costs award—
although only “reasonable” fees or costs may be awarded in the Program. Determining the appropriate amount of the fees award is a two-part process. The first part involves application of the lodestar method—“multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.” Avera v. Sec’y of Health & Hum. Servs., 515 F.3d 1343, 1347–48 (Fed. Cir. 2008) (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). The second part involves adjusting the lodestar calculation up or down to take relevant factors into consideration. Id. at 1348. This standard for calculating a fee award is considered applicable in most cases where a fee award is authorized by federal statute. Hensely v. Eckerhart, 461 U.S. 424, 429–37 (1983).
An attorney’s reasonable hourly rate is determined by the “forum rule,” which bass the
proper hourly rate to be awarded on the forum in which the relevant court sits (Washington, D.C., for Vaccine Act cases), except where an attorney’s work was not performed in the forum and there is a substantial difference in rates (the so-called “Davis” exception”). Avera, 515 F.3d at 1348 (citing Davis Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot. Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)
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Decided
Date Decided
June 16, 2025
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federal
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