Alberto v. Secretary of Health and Human Services ( 2017 )

REISSUED FOR PUBLICATION
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U.S. COURT OF FEDERAL CLAIMS
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OFFICE OF SPECIAL MASTERS
No. 17-77V
Filed: November 21 , 2017 FILED
Not for Publication
NOV 2 1 2017
************************************* U.S. COURT OF
ALFREDA ALBERTO and WILBERT * FEDERAL CLAIMS
LOPEZ, Legal Representatives of a *
Minor Child, J.L.A. , *
*
Interim attorneys' fees and costs
Petitioners, *
decision; respondent objects to fee
*
award; lack of information to
v. *
determine reasonable basis
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
*************************************
Alfreda Alberto and Wilbe11 Lopez, Sacramento, CA, for petitioners (pro se).
Colleen C. Hai1ley, Washington, DC, for respondent.
MILLMAN, Special Master
DECISION DENYING INTERIM ATTORNEYS' FEES AND COSTS 1
On January 17, 2017, petitioners Alfreda Albe110 and Wilbert Lopez filed a petition on
behalf of their daughter, J.L.A., under the National Childhood Vaccine Injury Act, 42 U.S.C. §§
300aa-10- 34 (2012) ("Vaccine Act"). Petitioners alleged that their daughter suffered
respiratory distress, hypoxia, hypotonia, pseudoaneuryism, acute flaccid paralysis, polio-like
symptoms, acute and severe myopathy, anemia thrombocytopenia, and fever as a result of her
August 8, 2014 receipt of Dtap, Hep B, HIB, Pneumococcal, and polio vaccinations. Pet. at iii!
2, 3. The case was assigned to the undersigned on January 18, 2017.
1
Because this unpublished decision contains a reasoned explanation for the special master's action in this
case, the special master intends to post this unpublished decision on the United States Comt of Federal
Claims' website, in accordance with the E-Government Act of2002, 44 U.S.C. § 3501 note (2012)
(Federal Management and Promotion of Electronic Government Services). Vaccine Rule 18(b) states that
all decisions of the special masters will be made available to the public unless they contain trade secrets
or commercial or financial information that is privileged and confidential, or medical or similar
information whose disclosure would constitute a clearly unwarranted invasion of privacy. When such a
decision is filed, petitioner has 14 days to identify and move to redact such information prior to the
document's disclosure. If the special master, upon review, agrees that the identified material fits within
the banned categories listed above, the special master shall redact such material from public access.
On October 3, 2017, petitioners filed a motion for interim attorneys' fees and costs on
behalf of their attorney, Mr. Martin J. Mmtinez. On October 27, 2017, the undersigned issued a
decision denying interim attorneys' fees and costs based on lack of information to determine
reasonable basis.
On November 11, 2017, petitioners filed a motion to withdraw as attorney on behalf of
Mr. Martinez. On November 13, 2017, the undersigned granted petitioners' motion and they are
now pro se. On the same day, the undersigned issued an order to show cause. Petitioners have
until November 28, 2017 to explain why this case should not be dismissed.
On November 11, 2017, petitioners filed a motion for attorneys' fees and costs on behalf
of Mr. Martinez. Although Mr. Martinez was terminated as petitioners' attorney, the case is still
pending. Thus, this is the second motion for interim attorneys' fees and costs. Petitioners
request $41,912.00 in attorneys' fees and $604.84 in attorneys' costs, for a total request of
$42,516.84.
On November 15, 2017, respondent filed a response to petitioners' second motion for
interim attorneys' fees. Respondent incorporates his prior response and objection to an award of
interim attorneys' fees and costs, where he does not believe petitioners have a reasonable basis
given the current records, stating there has been no substantive change in this case since that
time. Resp. at 1.
The Vaccine Act provides that a special master may award reasonable attorneys' fees and
costs if the special master determines that the petition was "brought in good faith and there was a
reasonable basis for the claim .... " 42 U.S.C. § 300aa-15(e)(l).
The undersigned finds that an award of interim attorneys' fees and costs to petitioners is
unreasonable because they did not have a reasonable basis to bring their claim. In a status
report filed September 5, 2017, petitioners state their former attorney Mr. Martinez realized and
advised petitioners on the difficulty of their proving causation in this case:
Due to confidential communications between petitioner's [sic] counsel and his
expe1t witness, petitioner's [sic] counsel has made a decision to no longer
pursue the case due to the difficulty of proving causation of the D-68 virus as
being the proximate cause of the injury. The petitioners have been informed of
this decision.
Pet' rs' Status Rep. at 1.
Mr. Mmtinez filed a request to extend time on September 17, 2017, stating he had receive
10,000 pages ofreports from the University of California at Davis which "changed the merits of
the case .... " Req. at 1-2. Mr. Mmtinez states the records (none of which he filed) show that
J.L.A. suffers from a congenital disease, DiGeorge syndrome, resulting in poor development of
several body symptoms. Id. He quotes an unnamed doctor stating, "This test showed that
2
[J.L.A.] has 22q 11.2 deletion syndrome. We reviewed that this condition likely explains many
of [J.L.A. 's] medical problems such as her polio-like illness in infancy, due to increased
susceptibility to infections, and thrombocytopenia." Id. at 2. Since J.L.A. was born with
Di George syndrome, petitioners could not possibly prove that vaccinations she received at four
and-one half months of age caused it. Order to Show Cause, at 3.
Counsel has a duty to investigate a claim before filing it. In Rehn v. Secretary of Health
and Human Services, Judge Letlow explained: "if an attorney does not actively investigate a case
before filing, the claim may not have a reasonable basis and so may not be worthy of attorneys'
fees and costs." 126 Fed. Cl. 86, 93 (Fed. CL 2016). Petitioners did not contact Mr. Martinez
on the eve of the running of the statute of limitations. J.L.A. received Dtap, hepatitis B, HiB,
Prevnar, and IPV vaccinations on August 8, 2014. On August 9, 2014, J.L.A. had bronchiolitis.
Petitioners had until August 9, 2017 before the statute of limitations would run on their claim.
Thus, Mr. Martinez had ample time to perform due diligence.
Mr. Martinez's billing records show he began to review records from petitioners on
March 28, 2016, over a year before the running of the statute of limitations. Fee App., at 10.
He should have realized there were other medical records he needed to obtain before filing the
petition. Therefore, the undersigned finds that Mr. Martinez did not do due diligence by not
requesting and reviewing J.L.A. 's complete medical records in time.
Therefore, the undersigned DENIES petitioners' motion for interim attorneys' fees and
costs for lack of a reasonable basis to file this petition.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the
court is directed to enter judgment. 2
IT IS SO ORDERED.
Dated: November 21, 2017 ~£1.~
Laura D. Millman
Special Master
2
Pursuant to Vaccine Rule I !(a), entry of judgment can be expedited by each party, either separately or
jointly, filing a notice renouncing the right to seek review.
3