Mares v. Secretary of Health and Human Services ( 2022 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-0893V
UNPUBLISHED
FRANK MARES, Chief Special Master Corcoran
Petitioner, Filed: December 3, 2021
v.
Pre-Assignment Review; Attorney’s
SECRETARY OF HEALTH AND Fees and Costs; Reasonable Basis;
HUMAN SERVICES, Influenza (Flu) Vaccine; Shoulder
Injury Related to Vaccine
Respondent. Administration (SIRVA)
Leigh Finfer, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Heather Lynn Pearlman, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS1
On February 8, 2021, Frank Mares filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleged that he suffered a left shoulder injury related to vaccine
administration (“SIRVA”), a defined Table Injury, after receiving the tetanus, diphtheria,
and acellular pertussis (“Tdap”) vaccine on December 16, 2020. Petition at 1, ¶¶ 1, 9.
Along with the Petition, which sets forth only the basic elements of his claim, Mr.
Mares filed his affidavit (labeled Exhibit 1) echoing the petition’s claims, and an affidavit
from Petitioner’s counsel affidavit from Petitioner’s counsel (labeled Exhibit 2)
1
Because this unpublished Decision contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the Decision will be available to anyone with access to the
internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact
medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy.
If, upon review, I agree that the identified material fits within this definition, I will redact such material from
public access.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
acknowledging the fact that the Petition had been filed without medical records, “[d]ue to
the potential Table amendment proposed by [R]espondent which would divest victims of
shoulder injuries related to vaccine administration (SIRVA) the benefit of a ‘Table’ claim.”
Exhibit 2 at ¶ 1.
Approximately seven months later, Mr. Mares filed medical records from Kaiser
Permanent. Exhibit 3, CD received on Sept. 7, 2021; see Notice, filed Aug. 27, 2021, ECF
No. 8. On August 27, 2021, he also filed a motion requesting that I dismiss his claim. ECF
No. 9. In the motion, Petitioner indicated that he “will be unable to prove that he is entitled
to compensation in the Vaccine program.” Id. at ¶ 3. On September 27, 2021, I issued a
decision dismissing Petitioner’s claim. ECF No. 10. Judgment entered on September 30,
2021. ECF No. 11.
On November 6, 2021, Petitioner filed a motion seeking a total of $3,442.33 in
attorney’s fees and costs. Petitioner’s Application for Attorney’s Fees (“Motion”), ECF No.
15. Petitioner did not address the requirements of good faith and reasonable basis and
provided no additional information regarding the merits of his case and reason for the
requested dismissal. Id. Maintaining that Petitioner has failed to establish there was a
reasonable basis for his claim, Respondent opposes Petitioner’s request. Respondent’s
Objection to Motion (“Opp.”), filed Nov. 9, 2021, ECF No. 16. On November 12, 2021,
Petitioner responded to Respondent’s arguments. Petitioner’s Reply to Opp. (“Reply”),
ECF No. 17. He also amended the amount of attorney’s fees and costs previously
requested to reflect an additional fee award of $697.50 for work performed researching
and preparing his reply. Id. at 4. However, Petitioner quotes a different total for what she
previously requested $3,332.07, rather than $3,442.33.
For the reasons discussed below, Petitioner has failed to establish there was a
reasonable basis for his claim. Thus, he is not entitled to an award of attorney’s fees and
costs.
I. Legal Standard
Motivated by a desire to ensure that petitioners have adequate assistance from
counsel when pursuing their claims, Congress determined that attorneys’ fees and costs
may be awarded even in unsuccessful claims. H.R. REP. NO. 99-908, at 22 reprinted in
1986 U.S.C.C.A.N. 6344, 6363; see also Sebelius v. Cloer, 133 S.Ct. 1886, 1895 (2013)
(discussing this goal when determining that attorneys’ fees and costs may be awarded
even when the petition was untimely filed). As Judge Lettow noted in Davis, “the Vaccine
Program employs a liberal fee-shifting scheme.” Davis v. Sec’y of Health & Human Servs.,
105 Fed. Cl. 627, 634 (2012). It may be the only federal fee-shifting statute that permits
unsuccessful litigants to recover fees and costs.
2
However, Congress did not intend that every losing petition be automatically
entitled to attorney’s fees. Perreira v. Sec’y of Health & Human Servs., 33 F.3d 1375,
1377 (Fed. Cir. 1994). And there is a prerequisite to even obtaining fees in an
unsuccessful case. The special master or court may award attorney’s fees and costs in a
case in which compensation was not awarded only if “that the petition was brought in
good faith and there was a reasonable basis for the claim for which the petition was
brought.” Section 15(e)(1). Reasonable basis is a prerequisite to a fee award for
unsuccessful cases – but establishing it does not automatically require an award, as
special masters are still empowered by the Act to deny or limit fees. James-Cornelius on
behalf of E. J. v. Sec'y of Health & Human Servs., 984 F.3d 1374, 1379 (Fed. Cir. 2021)
(“even when these two requirements are satisfied, a special master retains discretion to
grant or deny attorneys’ fees”).
As the Federal Circuit explained, whether a discretionary fees award is appropriate
involves two distinct inquiries – a subjective one when assessing whether the petition was
brought in good faith and an objective one when ascertaining whether reasonable basis
existed. Simmons v. Sec’y of Health & Human Servs., 875 F.3d 632, 635 (quoting
Chuisano v. Sec’y of Health & Human Servs., 116 Fed. Cl. 276, 289 (2014)). “Good faith
is a subjective test, satisfied through subjective evidence.” Cottingham v. Sec’y of Health
& Human Servs., 971 F.3d 1337, 1344 (Fed. Cir. 2020). “[T]he ‘good faith’ requirement .
. . focuses upon whether petitioner honestly believed he had a legitimate claim for
compensation.” Turner v. Sec’y of Health & Human Servs., No. 99-0544V, 2007 WL
4410030, at *5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007).
Cases in which good faith has been found to be lacking often involve petitioners
who failed to produce or actively concealed evidence undermining their claims. Purnell-
Reid v. Sec’y of Health & Human Servs., No. 18-1101V, 2020 WL 2203712 (Fed. Cl.
Spec. Mstr. Apr. 6, 2020); Crowding v. Sec’y of Health & Human Servs., No. 16-0876V,
2019 WL 1332797 (Fed. Cl. Spec. Mstr. Feb. 26, 2019); Heath v. Sec'y of Health & Human
Servs., No. 08-0086V, 2011 WL 4433646 (Fed. Cl. Spec. Mstr. Aug. 25, 2011); Carter v.
Sec'y of Health & Human Servs., No. 90-3659V, 1996 WL 402033 (Fed. Cl. Spec. Mstr.
July 3, 1996).
“Additionally, a petitioner’s attorney’s conduct may also be relevant when
evaluating good faith.” Purnell-Reid, 2020 WL 2203712, at *6. “Counsel still have a duty
to investigate a Program claim even if they reasonably find their client to be a credible
individual.” Cortez v. Sec'y of Health & Human Servs., No. 09-0176V, 2014 WL 1604002,
at *8 (Fed. Cl. Spec. Mstr. Mar. 26, 2014). Factors, such as a looming statute of limitations
and the conduct of counsel, are properly considered when determining whether good faith
exists – but do not bear on the claim’s objective basis. Simmons, 875 F.3d at 636;
3
Amankwaa v. Sec'y of Health & Human Servs., 138 Fed. Cl. 282, 289 (2018) (“the effort
that an attorney makes to investigate a claim or to ensure that a claim is asserted before
the expiration of the statutory limitations period . . . are properly evaluated in determining
whether a petition was brought in good faith”).
“Reasonable basis, on the other hand, is an objective test, satisfied through
objective evidence.” Cottingham, 971 F.3d at 1344. The reasonable basis requirement
examines “not at the likelihood of success [of a claim] but more to the feasibility of the
claim.” Turner, 2007 WL 4410030, at *6 (quoting Di Roma v. Sec’y of Health & Human
Servs., No. 90-3277V, 1993 WL 496981, at *1 (Fed. Cl. Spec. Mstr. Nov. 18, 1993)). The
Federal Circuit recently explained “that a reasonable basis analysis is limited to objective
evidence, and that subjective considerations, such as counsel’s subjective views on the
adequacy of a complaint, do not factor into a reasonable basis determination.” James-
Cornelius on Behalf of E. J. v. Sec'y of Health & Hum. Servs., 984 F.3d 1374, 1379 (Fed.
Cir. 2021).
Although clearly easier to meet than the preponderant standard required for
compensation, “courts have struggled with the nature and quantum of evidence
necessary to establish a reasonable basis.” Wirtshafter v. Sec’y of Health & Human
Servs., --- Fed. Cl. ---, 2021 WL 4188429, at *5 (Fed. Cl. 2021). “[I]t is generally accepted
that ‘a petitioner must furnish some evidence in support of the claim.’” Id. (quoting
Chuisano, 116 Fed. Cl. at 288, emphasis added in Wirtshafter). Citing the prima facie
elements of a successful claim described in Section 11(c)(1), the Federal Circuit recently
instructed that the level of the objective evidence sufficient for a special master to find
reasonable basis should be “more than a mere scintilla but less than a preponderance of
proof.” Cottingham, 971 F.3d at 1345-46. In a prior case, it affirmed a special master’s
determination that reasonable basis was lost after Petitioner’s “expert opinion, which
formed the basis of the claim, was found to be unsupported by either medical literature
or studies.” Perreira, 33 F.3d at 1376.
II. Analysis
Listing the prima facie elements for which objective evidence needs to be provided,
Respondent argues that attorney’s fees and costs should not be awarded in this case.
Opp. at 1, 4-5 n.3 (citing Cottingham, 971 F.3d at 1345-46). Specifically, he argues that
Petitioner “has not established that he experienced a vaccine-related injury, nor has he
established that he experienced the residual effects of his injury for greater than six
months”. Opp. at 5-6. He maintains that “Petitioner’s claim lacked a reasonable basis
when filed, and one was never established.” Id. at 6.
4
Emphasizing the holding in Perreira - that reasonable basis can exist when a
petition is filed but cease as further evidence is presented - Petitioner maintains that he
had a reasonable basis to file his petition at the time of its initiation, and without supporting
documentation, due to Respondent’s proposal to remove SIRVA from the Vaccine Injury
Table.3 Reply at 3-6. Petitioner argues that the “[t]raditional reasonable basis analysis is
not applicable in this case as [he] was not afforded the opportunity to establish a
reasonable basis due to Respondent’s [anticipated] conduct” of revising the Table to
eliminate SIRVA claims. Id. at 4-5. Petitioner contrasts the consistency surrounding the
requirements of the Vaccine Act’s statute of limitations with “Respondent’s own conduct
in hastily pushing a revision . . . that manufactured a deadline and forced Petitioner to file
his claim without supporting evidence.” Id. at 5.
While I am sympathetic to Petitioner’s argument, as a matter of law it does not
persuade. The Circuit and the Court have both plainly noted that determinations by
counsel to “rush” filings may reflect a good faith effort to prosecute a claim, but do not
constitute the kind of objective proof in support of a claim required to satisfy the
reasonable basis standard. In this regard, Mr. Mares’s argument parallels that argument
advanced by the Simmons petitioner, that temporal urgency to file confers reasonable
basis on a claim, at least until the timing issue is obviated. However, in Simmons, the
Federal Circuit clearly held that the pending expiration of the Vaccine Act’s statute of
limitations would not convey a reasonable basis which would otherwise not exist, and that
efforts to “beat the clock” in a filing should be considered only when determining whether
good faith exists. Simmons, 875 F.3d at 636.
Indeed, to some degree, the rationale provided by Petitioner for the rushed
February 2021 filing of his claim, without regard to some of its objective issues, is less
compelling than the argument advanced by the Simmons petitioner. Unlike the Vaccine
Act’s statute of limitations, which would prohibit any claim filed after its expiration, the
removal of SIRVA from the Table would not prevent a petitioner from filing a causation-
in-fact claim. And Petitioner’s arguments about Respondent’s conduct in threatening (via
HHS action) to eliminate the SIRVA Table claim are ultimately irrelevant in terms of
reasonable basis – and do not otherwise necessarily imbue Petitioner’s conduct with good
faith (despite the understandable desire of counsel to protect a potentially-viable claim).
3
On July 20, 2020, the Secretary of Health and Human Services proposed the removal of SIRVA from the
Vaccine Injury Table. National Vaccine Injury Compensation Program: Revisions to the Vaccine Injury
Table, Proposed Rule, 85 Fed. Reg. 43794 (July 20, 2020). The proposed rule was finalized six months
later. National Vaccine Injury Compensation Program: Revisions to the Vaccine Injury Table, Final Rule,
86 Fed. Reg. 6249 (Jan. 21, 2021). Approximately one month later, the effective date for the final rule was
delayed. National Vaccine Injury Compensation Program: Revisions to the Vaccine Injury Table, Delay of
Effective Date, 86 Fed. Reg. 10835 (Feb. 23, 2021) (delaying the effective date of the final rule until April
23, 2021). On April 22, 2021, the final rule removing SIRVA from the Vaccine Table was rescinded. National
Vaccine Injury Compensation Program: Revisions to the Vaccine Injury Table, Withdrawal of Final Rule, 86
Fed. Reg. 21209 (Apr. 22, 2021).
5
Overall, the present record does not demonstrate the reasonable basis required
for an attorney’s fees and cost award. Petitioner filed only a minimal amount of medical
records – and those contain only the most basic information regarding treatment he
received in January and February 2021. Exhibit 3. Thus, Petitioner has provided no
objective evidence to show he suffered the left shoulder pain beyond early February 2021,
less than two months post-vaccination. And Petitioner acknowledges that he is unable to
establish that he suffered the residual effects of his injury for more than six months. Reply
at 2.
Although Mr. Mares filed the petition in this case less than two months post-
vaccination, well before six-months of sequela could have occurred, such an early filing
has been allowed in the Program. Sewell v. Sec’y of Health & Human Servs., No.12-
0124V, 2012 WL 2264499 (Fed. Cl. Spec. Mstr. May 25, 2012). However, Petitioner still
must establish that this defect has been cured. By Petitioner’s own admission, he is
unable to show that he suffered the residual effects of his alleged SIRVA for more than
six months.
All of the above are lacking, and constitute evidence that renders the claim
untenable from the outset. And this is not a case in which the development of a fact, out
of ambiguous records, later revealed that a claim that initially appeared viable in fact was
not. As a result – and despite Petitioner’s reasonable desire to file this claim in advance
of an anticipated change in the law – I cannot find even a scintilla of evidence would have
supported the claim in a number of important respects. In such circumstances, the Act
places the risk of filing the claim on counsel, and does not allow an award of fees.
III. Conclusion
The Vaccine Act permits an award of reasonable attorneys’ fees and costs even
to an unsuccessful litigant as long as the litigant establishes the petition was brought in
good faith and there was a reasonable basis for the claim for which the petition was
brought. Section 15(e)(1). In this case, Petitioner has not established there was a
reasonable basis for filing his claim. Petitioner’s motion for attorney’s fees and costs
is DENIED.
The clerk of the court is directed to enter judgment in accordance with this
decision.4
4
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
6
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
7