Stone v. Secretary of Health and Human Services ( 2023 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-634V
Filed: November 29, 2023
* * * * * * * * * * * * * * *
ALIA J. STONE, *
*
Petitioner, *
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * *
Nancy Routh Meyers, Esq., Turning Point Litigation, Greensboro, NC, for petitioner.
Mary Eileen Holmes, Esq., U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
Roth, Special Master:
On May 3, 2018, Alia Stone (“petitioner”) filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the “Vaccine
Act” or “Vaccine Program”). Petitioner alleges she developed acute disseminated
encephalomyelitis (“ADEM”) after receiving meningococcal and Hepatitis B (“Hep B”) vaccines
on May 13, 2016. Petition, ECF No. 1. On January 29, 2021, a decision dismissing the case was
issued because petitioner failed to show that she suffered residual effects of her alleged ADEM for
more than six months after vaccination. ECF No. 47.
1
Because this decision contains a reasoned explanation for the action taken in this case, it must be made
publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at
https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act
of 2002. 44 U.S.C. § 3501 note (2018) (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, the
undersigned finds that the identified material fits within this definition, such material will be redacted from
public access.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (1986). Hereinafter,
for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C.
§ 300aa (2018).
1
On February 19, 2021, petitioner filed a Motion for Attorneys’ Fees and Costs pursuant to
Section 15(e) of the Vaccine Act. ECF No. 48 (“Motion for Fees”). Respondent filed a response
opposing the motion and raising reasonable basis on March 4, 2021. ECF No. 50 (“Response”).
On March 18, 2021, petitioner filed additional medical records and her Reply, maintaining that
objective evidence in the record supports reasonable basis. Petitioner’s Exhibit (“Pet. Ex.”) 16,
ECF No. 53; ECF No. 54 (“Reply”).
On March 11, 2022, petitioner filed a supplemental motion for fees, which included
documentation for fees and costs associated with the Reply to respondent’s reasonable basis
objection. ECF No. 55 (“Supplemental Motion”). Respondent filed his response on March 22,
2022, restating his objection as to reasonable basis. ECF No. 56 (“Response to Supplemental
Motion”). Petitioner did not file a reply.
Petitioner seeks a total of $36,805.06, representing $35,520.00 in attorneys’ fees and
$1,285.06 in costs. See Supplemental Motion at 1. After careful consideration, petitioner’s Motion
for Attorneys’ Fees and Costs is GRANTED in part for the reasons set forth below.
I. Background
A. Procedural History
Petitioner filed her petition and medical records on May 3, 2018. Pet. Ex. 1-4, ECF No. 1.
She filed a statement of completion on May 21, 2018. ECF No. 7.
Respondent filed a status report on February 13, 2019, requesting additional medical
records be filed. ECF No. 15. Petitioner filed the additional records on April 11 and June 11, 2019.
Pet. Ex. 5-6, ECF Nos. 17, 19.
On December 12, 2019, respondent filed his Rule 4(c) Report, stating that petitioner had
not demonstrated that she suffered from residual effects of her ADEM for more than six months.
ECF No. 26. Petitioner was ordered to submit any and all evidence that demonstrated her alleged
vaccine injury persisted in excess of six months. ECF No. 27.
On February 3, 2020, petitioner filed the additional records in support of the six months
severity requirement. Pet. Ex. 7, ECF No. 28. Respondent advised on April 10, 2020 that he was
not willing to engage in settlement discussions. ECF No. 32. Petitioner was ordered to submit
additional evidence in support of the six months severity requirement. ECF No. 33.
Petitioner filed five affidavits on June 23, 2020, and two affidavits on June 29, 2020. Pet.
Ex. 8-12, ECF Nos. 35, 37; Pet. Ex. 13-14, ECF No. 38.
A status conference was held on October 1, 2020 to discuss the status of the case. Discussed
were the medical records that confirmed resolution of petitioner’s ADEM within three months of
the vaccination. Pet. Ex. 1 at 38-41. Also discussed was respondent’s position that, in addition to
the resolution of petitioner’s ADEM prior to the six months post vaccination, the evidence in the
record failed to link her claim of exacerbation of migraines to the vaccine because the medical
2
records showed petitioner had a history of migraines prior to vaccination and her doctor attributed
her headaches following the vaccination to poor sleep and anxiety. Pet. Ex. 4 at 52. Also discussed
was a statement filed from petitioner’s primary care provider (“PCP”) Dr. Grund that petitioner’s
recovery took over a year. Pet. Ex. 7. Further discussed were the inconsistencies between the
statements made in the various affidavits filed by petitioner and her medical records. Petitioner
affirmed that she struggled through classes, suffered from headaches and fatigue with mental fog
and difficulty retaining material, and that her professors made special accommodations due to her
absences from class and needing more time to complete classwork and tests. Pet. Ex. 12 at 4. She
further affirmed being given reduced hours at work and tasks with frequent breaks to accommodate
her headaches. Id. at 3. An Order issued for petitioner to file, among other things, her transcript
from nursing school and payroll ledger from her employer for the three years she worked there to
confirm her affirmations. ECF No. 43.
In response to the Court’s Order for her school and work records to be filed to support her
affirmations, petitioner filed a statement that she believed the records already filed demonstrated
that she had suffered for over six months from her injury, but she had “no other choice but to ask
[her] attorney to dismiss [her] case.” Pet. Ex. 15, ECF No. 44. On January 28, 2021, petitioner
filed a motion to dismiss her case. ECF No. 46. The claim was dismissed the following day for
failure to support the six months requirement. ECF No. 47.
On February 19, 2021, petitioner filed a Motion for Attorneys’ Fees and Costs. Motion for
Fees, ECF No. 48. Respondent filed a Response, objecting to reasonable basis, on March 4, 2021.
Response, ECF No. 50. On March 18, 2021, petitioner filed additional medical records and her
Reply. Pet. Ex. 16, ECF No. 53; Reply, ECF No. 54.
On March 11, 2022, petitioner filed a supplemental motion for fees, which included a
request for fees and costs associated with the Reply to respondent’s reasonable basis objection.
Supplemental Motion, ECF No. 55. Respondent filed his response on March 22, 2022, restating
his objection as to reasonable basis. Response to Supplemental Motion, ECF No. 56. Petitioner
did not file a reply.
This matter is now ripe for consideration.
B. Summary of Relevant Medical Records
Petitioner had a past medical history of migraines, frequent viral upper respiratory
infections, joint hypermobility, mild endocrine abnormalities, and recurrent cystitis and urinary
tract infections (“UTIs”), among other conditions. Pet. Ex. 3 at 78-83; Pet. Ex. 1 at 1-11.
Petitioner received the Hepatitis B and meningococcal conjugate vaccines on May 13,
2016, as a requirement for nursing school. Pet. Ex. 2 at 11, 14. Eight days later, she presented to
the clinic with fever, chills, night sweats, body fatigue, vomiting and nausea believed to be the flu.
She was prescribed Tamiflu, although a rapid flu test was negative. Pet. Ex. 5 at 2-3, 5.
On May 22, 2016, petitioner was seen at the OSU Medical Center emergency room for
painful urination and fever. Pet. Ex. 3 at 3. She had an onset of supra-pubic fullness and dysuria
three days prior. Petitioner reported that her current symptoms felt like her prior UTIs. Id. at 4.
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Petitioner was diagnosed with a bladder infection and pyelonephritis, treated with oral antibiotics,
and discharged with instructions to follow-up. Id. at 6.
On May 23, 2016, petitioner had a urology consultation. She reported recurrent urinary
tract infections for the previous nine years. Pet. Ex. 3 at 10, 12. She reported tattoo removal 5 days
prior and orange urine for two weeks. Id. 8, 12. The impression was recurrent UTIs. Id. at 12. She
was prescribed Keflex. Id. at 12, 57-58. A CT and urine culture were normal, and a viral infection
was suspected. She refused admission. Id. at 57-58.
On May 28, 2016, petitioner presented to the emergency room with chills, headache, and
vomiting. Pet. Ex. 3 at 69-70, 78. A note was made of the vaccinations three weeks prior and a trip
to Texas two weeks ago. Id. at 87. Petitioner reported headaches since she was 15 years old, but
this was different from her typical migraines, as it was more severe and generalized. Id. at 70. She
was photophobic and phonophobic, with blurry vision and generalized weakness. She had neck
pain and stiffness and was lightheaded, dizzy, and unsteady on her feet. Id. Neurologic
examination was normal. Id. at 71, 73. A lumbar puncture showed elevated white blood cell count
and was consistent with viral or aseptic meningitis. Id. at 78-80, 156-57. The attending neurologist
noted that “[i]t is unclear if [her condition] could have been partially caused by recent
immunizations.” Id. at 112; see also Pet. Ex. 1 at 15. Petitioner was admitted to OSU Medical
Center for further evaluation and treatment of her symptoms. Pet. Ex. 3 at 69-73, 79-80.
Petitioner was discharged on June 6, 2016. The discharge summary included that petitioner
became ill with nausea, vomiting, and diarrhea two weeks prior to admission. She reported
receiving meningitis and Hepatitis B vaccines around the time her symptoms started. The
symptoms persisted into the next week when she developed a fever and urinary retention. She was
diagnosed with a UTI and started on Keflex. On May 25, 2016, she developed an itchy rash,
possibly from Keflex. On May 28, 2016, she developed a severe generalized headache associated
with blurry vision, vertigo, photo/phonophobia, vomiting, neck pain, and stiffness. She was
walking with an ataxic gait when she presented to OSU Medical Center and was admitted. Her
CSF was abnormal, and she was started on acyclovir and ceftriaxone for possible viral or bacterial
meningitis, as well as dexamethasone. Pet. Ex. 3 at 78-85. The brain MRI was abnormal, showing
diffuse inflammatory lesions in the midbrain, cerebellum, thalami, and white matter. Id. at 79-81.
Petitioner had symmetrical enhancement in the cranial nerves II, V, VII & VIII. The spinal cord
MRI showed a short segment signal abnormality from C5-C7 with no enhancement. Id. The brain
MRI findings indicated a demyelinating process like ADEM. Id. at 115-16. It was noted that the
“[t]emporal relationship of vaccines to onset of symptoms (Pt received Hep B and gonococcal
meningitis vaccines shortly before symptoms began) favors ADEM”. Id. at 137. There was
extensive testing for viral, bacterial, and fungal etiologies, and no organism was identified. Id. at
79. Petitioner was treated with high dose IV Solu-Medrol for presumed ADEM. Her urinary
retention ceased and was thought to be possibly neurogenic. At the time of discharge, petitioner
was comfortable with no nuchal rigidity. She was diffusely hyper-reflexic but had no clonus and
was ambulatory. Id. at 79-80.
After discharge, petitioner was seen by a neurologist on August 5, 2016. Pet. Ex. 1 at 37;
Pet. Ex. 3 at 571-72. At that time, she reported no further symptoms. Pet. Ex. 1 at 37. She was
walking without difficulty and not dropping things. She denied weakness. She had no vertigo or
4
diplopia, and no more bladder difficulty. Petitioner was having continued headaches 2-3 times a
week, with pain up to 7/10 in severity. Id. She had a family history of migraines. Id. at 37-38. The
physical examination including the neurologic examination was normal. Id. at 40. The impression
was resolution of ADEM symptoms of ataxia and vertigo, as well as continued headaches, which
sounded like migraines. Id. at 41. She was treated with nortriptyline for migraine prophylaxis, and
Maxalt for acute symptoms. Id. at 37-44; Pet. Ex. 3 at 571-72.
Follow-up MRIs of petitioner’s brain and spinal cord on December 29, 2016 revealed
resolution of the previous abnormalities. Pet. Ex. 4 at 7-8.
The neurologist wrote a letter to petitioner’s PCP, recommending that petitioner not receive
the Tdap vaccine for at least a year following her hospitalization. Pet. Ex. 4 at 31.
Petitioner was not seen again until June 8, 2017. She reported no neurologic symptoms
since the original diagnosis of ADEM, but she continued to have migraines with photophobia,
phonophobia, and blurry vision. She was occasionally getting panic attacks, more commonly in
stressful times. The neurologist noted that her headaches were likely worsened by poor sleep and
anxiety. Pet. Ex. 4 at 48-52.
Petitioner’s next medical visit was on November 17, 2017. She had no symptoms of focal
disease from ADEM. Pet. Ex. 4 at 76. She continued to have migraines roughly three times a week,
and a bad headache once every two weeks. Id. The attending neurologist noted full recovery from
the ADEM and “[p]ost-infectious ADEM due to a flu-like illness and possibly her prior
vaccination is most likely.” Id. at 81. She was told to continue taking nortriptyline and Maxalt. Id.
Petitioner went to the emergency room on February 15, 2018 for dizziness, headache, and
blurry vision, typical of the migraines she has had since her ADEM diagnosis in 2016. Pet. Ex. 6
at 55-56. The attending physician noted that petitioner has had migraine and vertigo since being
diagnosed with ADEM. Id.
Petitioner had an evaluation for Ehlers-Danlos syndrome (hypermobility) with a
rheumatologist on August 17, 2018, during which she reported chronic fatigue due to reactivation
of mononucleosis and recent ADEM. Pet. Ex. 6 at 10. She also reported a history of hypermobility
and dizzy spells since she was a child. She had 15 shoulder dislocations since high school from
routine activities like carrying serving trays and waiting tables. Id. It was also noted that she could
voluntarily dislocate her hips and thumbs and hyperextend her elbows and shoulders. She had a
tilt table test in the past that was normal. She also complained of insomnia that impaired her daily
function. Id. The rheumatologist noted that petitioner’s mother had similar symptoms of joint
hypermobility, thin skin, and early osteoporosis. Id. The examination was normal. Id. at 13. The
assessment was joint hypermobility syndrome; she was to begin physical therapy and follow-up in
six months. Id. at 11.
C. Statement from Petitioner’s Primary Care Physician
Dr. Bruce Grund submitted a statement on petitioner’s behalf on January 20, 2020. Pet. Ex.
7. He summarized her medical history following vaccination. He wrote that she had “substantial
improvement” and was able to return to nursing school, but her recovery period lasted
5
approximately one year. Id. at 2. He stated that she was still somewhat symptomatic when he saw
her on June 18, 2019. In Dr. Grund’s opinion, petitioner’s migraines were exacerbated by the
meningitis. Id. Attached to his letter, Dr. Grund submitted petitioner’s active problem list from his
office’s medical records, which included (among other things): migraine, noted on June 18, 2019;
autoimmune encephalomyelitis, noted on June 3, 2016; aseptic meningitis due to drug, noted on
June 1, 2016; and meningitis, noted on May 29, 2016. It was also noted that petitioner was allergic
to Menactra (meningococcal) vaccine, and the listed reaction was meningitis from the vaccine. Id.
at 3.
II. Discussion
The Vaccine Act permits an award of “reasonable attorneys’ fees” and “other costs.” §
15(e)(1). If a petition results in compensation, petitioner is entitled to reasonable attorneys’ fees
and costs. Id.; see Sebelius v. Cloer, 569 U.S. 369, 373 (2013). Where a petitioner does not prevail
on entitlement, a special master has discretion to award reasonable fees if the petition was brought
in “good faith” and with a “reasonable basis” for the claim to proceed. § 15(e)(1). A petitioner’s
good faith is presumed “in the absence of direct evidence of bad faith.” Grice v. Sec’y of Health
& Human Servs., 36 Fed. Cl. 114, 121 (1996). Where no evidence of bad faith exists and
respondent does not challenge petitioner’s good faith, good faith requires no further analysis. In
the instant case, the undersigned has no reason to believe, and respondent does not argue, that
petitioner did not bring her claim in good faith. Therefore, the undersigned finds that petitioner
brought her claim in good faith.
A. Reasonable Basis
1. Legal Standard
In discussing the reasonable basis requirement, the Federal Circuit stressed the prima facie
petition requirements of § 11(c)(1) of the Act. Cottingham ex. rel. K.C. v. Sec’y of Health & Human
Servs., 971 F.3d 1337, 1345-46 (Fed. Cir. 2020). Specifically, the petition must be accompanied
by an affidavit and supporting documentation showing that the petitioner:
(1) received a vaccine listed on the Vaccine Injury Table;
(2) received the vaccination in the United States, or under certain stated circumstances
outside of the United States;
(3) sustained (or had significantly aggravated) an injury as set forth in the Vaccine Injury
Table (42 C.F.R. § 100.3(e)) or that was caused by the vaccine;
(4) experienced the residual effects of the injury for more than six months, died, or required
an in-patient hospitalization with surgical intervention; and
(5) has not previously collected an award or settlement of a civil action for damages for the
same injury.
Cottingham, 971 F.3d at 1345-46.
Reasonable basis is an objective inquiry, irrespective of counsel’s conduct or a looming
statute of limitations, that evaluates the sufficiency of records available at the time a claim is filed.
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Simmons v. Sec’y of Health & Human Servs., 875 F.3d 632, 636 (Fed. Cir. 2017); see Turpin v.
Sec’y of Health & Human Servs., No. 99-564, 2005 WL 1026714 at *2 (Fed. Cl. Spec. Mstr. Feb.
10, 2005). A special master’s evaluation of reasonable basis focuses on the requirements for a
petition under the Vaccine Act to determine if the elements have been asserted with sufficient
objective evidence to make a feasible claim for recovery. Santacroce v. Sec’y of Health & Human
Servs., No. 15-555V, 2018 WL 405121 at *7 (Fed. Cl. 2018).
Reasonable basis is satisfied when there is more than a mere scintilla of objective evidence,
such as medical records or medical opinions, supporting a feasible claim before filing. See
Cottingham, 971 F.3d at 1346; see Chuisano v. Sec'y of Health & Human Servs., 116 Fed. Cl. 276,
286 (2014) (citing McKellar v. Sec'y of Health & Human Servs., 101 Fed. Cl. 303, 303 (2011));
see Silva v. Sec’y of Health & Human Servs., 108 Fed. Cl. 401, 405 (2012). A recent attempt to
clarify what quantifies a “scintilla” looked to the Fourth Circuit, which characterized “more than
a mere scintilla of evidence” as “‘evidence beyond speculation that provides a sufficient basis for
a reasonable inference of causation.’” Cottingham v. Sec’y of Health & Human Servs., 154 Fed.
Cl. 790, 795 (2021) (quoting Sedar v. Reston Town Ctr. Prop., LLC, 988 F.3d 756, 765 (4th Cir.
2021)). Additionally, absence of an express medical opinion of causation is not necessarily
dispositive of whether a claim has a reasonable basis. Medical records may support causation even
where the records provide only circumstantial evidence of causation. James-Cornelius on Behalf
of E.J. v. Sec’y of Health & Human Servs., 984 F.3d 1374, 1379-80 (Fed. Cir. 2021).
Evaluation of reasonable basis is limited to the objective evidence submitted. Simmons,
875 F.3d at 636. Still, a special master is not precluded from considering objective factors such as
“the factual basis of the claim, the medical and scientific support for the claim, the novelty of the
vaccine, and the novelty of the theory of causation.” Amankwaa v. Sec’y of Health & Human
Servs., 138 Fed. Cl. 282, 289 (2018). In Cottingham, the Federal Circuit expressly clarified that
special masters are permitted to utilize a totality of the circumstances inquiry in evaluating
reasonable basis, including, but not exclusively limited to, objective factors such as those identified
in Amankwaa. See Cottingham, 971 F.3d at 1344. The Federal Circuit reiterated that counsel’s
conduct is subjective evidence not to be considered when evaluating reasonable basis. Id. at 1345.
Counsel’s attempt or desire to obtain additional records before filing is subjective evidence and
does not negate the objective sufficiency of evidence presented in support of a claim. James-
Cornelius, 984 F.3d at 1381. The Federal Circuit has additionally articulated that special masters
cannot broadly categorize all petitioner affidavits as subjective evidence or altogether refuse to
consider petitioner’s sworn statements in evaluating reasonable basis. Id. at 1380 (holding that
factual testimony, when corroborated by medical records and a package insert, can amount to
relevant objective evidence for supporting causation). However, a petitioner’s own statements
cannot alone support reasonable basis, and special masters may make factual determinations as to
the weight of evidence. See, e.g., Chuisano, 116 Fed. Cl. at 291; Foster v. Sec’y of Health &
Human Servs., No. 16-1714V, 2018 WL 774090, at *3 (Fed. Cl. Spec. Mstr. Jan. 2, 2018);
Cottingham, 971 F.3d at 1347.
While absent or incomplete records do not strictly prohibit a finding of reasonable basis,
an overwhelming lack of objective evidence will not support reasonable basis. Chuisano, 116 Fed.
Cl. at 288; see Simmons, 875 F.3d at 634-36 (holding that reasonable basis was not satisfied where
1) petitioner’s medical record lacked proof of vaccination and diagnosis and 2) petitioner
7
disappeared for two years before filing a claim). The objective evidence in the record must also
not be so contrary that a feasible claim is not possible. Cottingham, 154 Fed. Cl. at 795, citing
Randall v. Sec’y of Health & Human Servs., No. 18-448V, 2020 WL 7491210, at *12 (Fed. Cl.
Spec. Mstr. Nov. 24, 2020) (finding no reasonable basis when petitioner alleged a SIRVA injury
in his left arm though the medical records indicated that the vaccine was administered in
petitioner’s right arm). A claim may lose reasonable basis as it progresses if further evidence is
unsupportive of petitioner’s claim. See R.K. v. Sec’y of Health & Hum. Servs., 760 F. App’x 1010,
1012 (Fed. Cir. 2019) (citing Perreira v. Sec’y of Health & Human Servs., 33 F.3d 1375, 1376–77
(Fed. Cir. 1994)).
Though a special master has broad discretion, a special master must keep in mind the
Vaccine Act's remedial objective of maintaining petitioners’ access to willing and qualified legal
assistance, and a special master may not abuse their discretion in denying reasonable basis and
fees. See James-Cornelius, 984 F.3d at 1381.
B. The Parties’ Arguments
1. Petitioner’s Argument
Petitioner argued that she had a reasonable basis for her claim and is therefore entitled to
discretionary attorneys’ fees and costs. Reply at 1. Petitioner further argued that in order to
establish reasonable basis, one only needs to demonstrate that the claim was feasible based on the
totality of the circumstances. Id. at 8. Petitioner argued that she has met the severity requirement
and established reasonable basis.
First, petitioner argued that she started exhibiting symptoms of ADEM less than a month
after receiving the meningitis and Hepatitis B vaccinations and that this shows a proximate
temporal relationship between the vaccination and the injury. Reply at 8. Further, her treating
physicians diagnosed her with ADEM and believed that the vaccinations were the cause. Id. at 8-
9.
Second, petitioner argued that the objective evidence shows that the ADEM symptoms
lasted longer than six months. Reply at 9. She submitted that, despite her normal MRI, she
continued to suffer from debilitating headaches unlike anything she had experienced prior to her
ADEM diagnosis. Id. These headaches were so severe that she was given two new medications to
help treat the severity and frequency. Id. at 10. She added that her pre-vaccination medical records
showed that she was not on medication for her occasional headaches. Id. She argued that she
continued to suffer from intense and frequent headaches for well over six months as documented
in her medical records. Id. at 10-12. Further, respondent acknowledged in his Rule 4(c) Report that
petitioner’s migraines persisted after her ADEM diagnosis and that she continued to experience
symptoms common with migraines such as dizziness and blurred vision. Id. at 11.
In support of the six months severity requirement, petitioner filed a statement from her
primary care physician, Dr. Grund. Reply at 12. Dr. Grund stated that her ADEM symptoms were
believed to be caused by the vaccinations and lasted longer than six months as she was still
symptomatic during her last visit with him. Id., citing Pet. Ex. 7. Petitioner stated that the Court
8
questioned the basis of Dr. Grund’s opinion and asked petitioner to file additional evidence
demonstrating she experienced sequelae in excess of six months. Reply at 12. Petitioner then filed
six additional witness affidavits, which petitioner argued are consistent and detail her issues with
ADEM symptoms extending beyond six months. Id. Despite having reasonable basis for her claim
upon filing her petition and throughout the pendency of this matter, petitioner was forced to dismiss
her claim after she could not produce the additional evidence ordered by the undersigned,
rendering her claim no longer feasible. Id.
Under the totality of the circumstances, petitioner argues that sufficient evidence existed,
demonstrating a reasonable basis for bringing her claim. Reply at 12-13. Additionally, petitioner
argued that the feasibility requirement based on objective evidence is met because the medical
records referenced causation and clearly documented an exacerbation of her migraines. Id. at 13.
2. Respondent’s Argument
Respondent argued for the denial of petitioner’s motion for fees and costs due to a lack of
reasonable basis.3 Response at 1. Respondent submitted that Section 15(e) of the Vaccine Act
permits a special master to make a discretionary award of reasonable attorneys’ fees and costs to
an unsuccessful petitioner, but such an award is only appropriate 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.” Id. at 3-4, citing § 15(e)(1).
Respondent pointed out that he raised the six-months requirement in his Rule 4(c) Report,
showing that petitioner’s ADEM had resolved by August 5, 2016, within three months of the onset
of ADEM symptoms. Response at 2. The December 2016 MRIs were normal. Id. at 6; see also
Pet. Ex. 4 at 9-10. Furthermore, petitioner’s medical records failed to link petitioner’s claim of
exacerbation of migraines to the vaccines. Response at 6. Petitioner’s neurologist suspected her
headaches were worsened by poor sleep and anxiety, and she had both a personal and family
history of migraines. Id.; see also Pet. Ex. 4 at 48-52.
Petitioner was provided several opportunities to submit additional evidence in support of
the six months requirement. Response at 7. Although petitioner submitted witness affidavits and a
statement from Dr. Grund, the statements were inconsistent with the contemporaneous medical
records. Id. at 2, 7.
Respondent added that petitioner was ordered to submit further evidence documenting her
injury lasting longer than six months. In response, she submitted a personal statement, indicating
her belief that she had produced sufficient evidence to support her claim and did not intend to
submit the evidence requested. Petitioner was then ordered to submit additional evidence or file a
motion to dismiss her case. Response at 2. Petitioner voluntarily dismissed her claim on January
28, 2021. Id. at 3.
Respondent argued that a reasonable basis analysis requires an “objective inquiry” that
relates to the “factual basis” or “merits of petitioner’s claim.” Response at 5, citing Simmons, 875
3
As previously noted herein, respondent raised no objection as to good faith. Thus, I find that petitioner
brought her claim in good faith.
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F.3d at 633-36. Further, petitioner must offer more than an unsupported assertion that the vaccines
she received caused an injury. Response at 6. Here, petitioner failed to provide objective evidence
that her ADEM lasted longer than six months and failed to meet the causation requirements. Id. at
6-7.
Respondent concluded that petitioner did not have reasonable basis at the time the petition
was filed and failed to provide objective evidence to resolve the deficiencies in this case, such that
reasonable basis never materialized. Therefore, petitioner’s motion for attorneys’ fees and costs
should be denied. Response at 7-8.
III. Analysis of Reasonable Basis
Petitioner satisfied the Cottingham elements of reasonable basis when she filed facially
trustworthy medical records demonstrating that she (1) received a vaccine listed on the Vaccine
Injury Table; (2) received the vaccination in the United States; (3) sustained an injury allegedly
caused by the vaccine; (4) experienced the residual effects of the injury for more than six months;
and (5) has not previously collected an award or settlement of a civil action for damages for the
same injury. 971 F.3d at 1345-46.
To establish a reasonable basis for attorneys’ fees, the burden is lower than the
preponderant evidence standard required to prove entitlement to compensation. Cottingham ex.
rel. K.C. v. Sec’y of Health & Human Servs., 971 F.3d 1337, 1345-46 (Fed. Cir. 2020). Petitioner
must provide more than a mere scintilla of evidence, defined as “evidence beyond speculation that
provides a sufficient basis for a reasonable inference of causation.” Cottingham v. Sec’y of Health
& Human Servs., 154 Fed. Cl. 790, 795 (2021) (quoting Sedar v. Reston Town Ctr. Prop., LLC,
988 F.3d 756, 765 (4th Cir. 2021)).
Respondent’s objection to reasonable basis involves two issues: petitioner’s failure to meet
the severity requirement and petitioner’s failure to prove causation. See generally Response.
Regarding the failure to meet the severity requirement, while the evidence filed was insufficient
to prove by preponderant evidence that her symptoms lasted the requisite six months following
vaccination, the records were sufficient to satisfy the lower burden required for reasonable basis
for filing the petition.
Petitioner received the subject Hep B and meningococcal vaccines on May 13, 2016. Pet.
Ex. 2 at 11, 14. She was hospitalized roughly two weeks later and had an abnormal brain MRI
indicative of ADEM and a lumbar puncture consistent with meningitis. Pet. Ex. 3 at 69-73, 78-81,
115-16, 156-57.
Approximately three months later, on August 5, 2016, petitioner’s ADEM had resolved.
Pet. Ex. 1 at 37. Petitioner complained of headaches 2-3 times weekly, which the neurologist
documented as sounding like migraines. Id. at 37-38, 41. She was prescribed migraine medication
at this visit. Id. at 37-44; Pet. Ex. 3 at 571-72.
Petitioner consulted with and retained counsel in the fall of 2016. Motion for Fees at 6.
10
In June 2017—close to year after her last visit—petitioner followed up with her neurologist
for continued migraines with photophobia, phonophobia, and blurry vision. The neurologist
attributed her worsening headaches to poor sleep and anxiety. Pet. Ex. 4 at 48-52. At her next visit
on November 17, 2017, she reported migraines roughly three times a week and a bad headache
once every two weeks. Id. at 76. The neurologist documented a full recovery from ADEM. She
was instructed to continue taking her migraine medication. Id. at 81.
In February 2018, petitioner presented to the emergency room, reporting migraines
consistent with the ones she had since her ADEM diagnosis in 2016. Pet. Ex. 6 at 55-56. She
further reported to a rheumatologist on August 17, 2018 that she suffered from chronic fatigue in
part due to her ADEM. Id. at 10.
Petitioner alleged that her migraines post-ADEM were caused by the vaccine(s) and were
different from the headaches she had prior to her vaccination. See generally Reply; ECF No. 18.
She continued to report frequent migraines at follow up appointments after her hospitalization for
ADEM. Pet. Ex. 1 at 37-38, 41; Pet. Ex. 3 at 571-72; Pet. Ex. 4 at 48-52, 76, 81; Pet. Ex. 6 at 55-
56. She was prescribed migraine medication approximately three months after vaccination, which
she continued to take through at least February 2018. Pet. Ex. 1 at 37-44; Pet. Ex. 3 at 571-72; Pet.
Ex. 6 at 55-56.
Respondent maintained that medical records indicated that petitioner’s ADEM resolved
within three months of vaccination. Pet. Ex. 1 at 37-38, 41. In order to prove entitlement, petitioner
would have been required to show by preponderant evidence that her migraines were causally
related to the vaccine(s) she received. She failed to do so. However, the fact that she did not do so
does not necessarily defeat reasonable basis.
Reasonable basis requires little more than a mere scintilla of objective evidence to support
petitioner’s claim; it does not require proof of causation or entitlement. Petitioner’s medical
records document petitioner’s complaints of more frequent and severe headaches and migraines
following her vaccinations, thus providing more than a mere scintilla of evidence that she
continued to complain of headaches after the resolution of her ADEM. Whether she would have
been able to prove that her headaches or migraines were causally related to her ADEM is not at
issue for purposes of establishing reasonable basis in the filing of the petition.
When the six months severity requirement was challenged, petitioner affirmed requiring
special accommodations both at school and at work. Pet. Ex. 12. She then provided several
affidavits and a statement from her PCP in support of those claims. Pet. Ex. 7. Dr. Grund wrote
that petitioner “eventually had substantial improvement” but her recovery period took close to a
year. Id. at 2. It is unclear on what Dr. Grund based his statement that her recovery took close to a
year to resolve, as he made no reference to any medical record or condition that had not resolved
within six months but ultimately resolved within a year after her vaccinations. The affidavits from
petitioner and her friends, co-workers, and classmates detail how her symptoms persisted for over
six months after vaccination. Pet. Ex. 8-14. However, the content of those affidavits was
inconsistent with petitioner’s medical records and the findings on medical examinations, calling
into question the credibility of the affiants. Response at 7; see also ECF No. 43. When petitioner
was ordered to produce her employment and nursing school records to support her affirmations of
11
accommodations at school and reduced work hours, she refused to do so and chose instead to
voluntarily dismiss her claim. See Pet. Ex. 15.
The Federal Circuit explained in James-Cornelius that affidavits may provide objective
evidence supporting a claim in the Vaccine Program, particularly when they contain statements as
to facts within the affiant’s personal knowledge, such as “the receipt of a vaccine and the timing
and severity of symptoms.” 984 F.3d at 1380-81. However, when the affidavits contain statements
that are contradicted by the objective evidence, they lose value and are given little weight.
Regarding respondent’s second argument involving causation, it is well established that
the reasonable basis standard is lower than the preponderance of evidence standard used to
determine causation. Cottingham, 971 F.3d at 1345-46; James-Cornelius, 984 F.3d at 1379.
Whether petitioner would have been able to prove causation is not at issue here. Petitioner satisfied
the lower burden for reasonable basis even if she was unable to prove causation.
I find that petitioner provided sufficient evidence to support a feasible claim of causation
for purposes of satisfying the reasonable basis requirements. The contemporaneous medical
records show that several of petitioner’s treating physicians documented the possibility that the
vaccines she received may have played a role in her ADEM. Pet. Ex. 1 at 15; Pet. Ex. 3 at 112,
137; Pet. Ex. 4 at 81; Pet. Ex. 6 at 55-56. Her neurologist recommended that she refrain from
receiving the Tdap vaccine for at least a year following her hospitalization for ADEM. It is
unknown whether this recommendation was a result of the neurologist’s belief that the vaccines
played a role in the ADEM or was simply a precautionary measure because of the ADEM itself.
Pet. Ex. 4 at 31. Although unsupported by the medical records, Dr. Grund opined that her migraines
were exacerbated by the meningitis she suffered from following vaccination. Pet. Ex. 7 at 2. Dr.
Grund’s conclusory opinion and the treating providers’ speculations are clearly insufficient to
satisfy the Althen prongs. However, they do provide a mere scintilla of objective evidence to
support a reasonable inference of causation to satisfy reasonable basis in this instance. Thus, I find
that petitioner has met the burden required for a finding of reasonable basis and for awarding fees.
Finally, special masters have underscored the importance of awarding attorneys’ fees to
encourage the participation of competent legal counsel in the Vaccine Program. As the Special
Master stated in Iannuzzi v. Sec’y of Health & Human Servs.:
Simply put, the ultimate purpose of Vaccine Act fees and costs awards is not to
benefit the attorneys involved, but to ensure that Vaccine Act petitioners will have
adequate access to competent counsel. . . Accordingly, when attorneys spend a
reasonable amount of time and costs in representing Vaccine Act petitioners, such
attorneys must be fairly compensated for their expenditures, in order to encourage
attorneys to participate in future Vaccine Act cases.
No. 02-780V, 2007 WL 1032379, at *11 (Fed. Cl. Spec. Mstr. Mar. 20, 2007), rev'd in part, 78
Fed. Cl. 1 (2007) (emphasis in original); see also James-Cornelius, 984 F.3d at 1381 (in exercising
her discretion to award attorneys’ fees, the special master must keep in mind the remedial objective
of maintaining petitioners’ access to willing and qualified legal assistance).
12
For the aforementioned reasons, the undersigned finds that there was a reasonable basis for
the filing of the petition and during the pendency of the matter until it was dismissed.
IV. Reasonable Attorneys’ Fees
The Federal Circuit has approved use of the lodestar approach to determine reasonable
attorneys’ fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515
F.3d 1343, 1349 (Fed. Cir. 2008). Using the lodestar approach, a court first determines “an initial
estimate of a reasonable attorneys’ fee by ‘multiplying the number of hours reasonably expended
on the litigation times a reasonable hourly rate.’” Id. at 1347-48 (quoting Blum v. Stenson, 465
U.S. 886, 888 (1984)). Then, the court may make an upward or downward departure from the
initial calculation of the fee award based on other specific findings. Id. at 1348.
Counsel must submit fee requests that include contemporaneous and specific billing
records indicating the service performed, the number of hours expended on the service, and the
name of the person performing the service. See Savin v. Sec’y of Health & Human Servs., 85 Fed.
Cl. 313, 316-18 (2008). Counsel should not include in their fee requests hours, including those by
paralegals, that are “excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health &
Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424,
434 (1983)). It is “well within the special master’s discretion to reduce the hours to a number that,
in [her] experience and judgment, [is] reasonable for the work done.” Id. at 1522. Furthermore, the
special master may reduce a fee request sua sponte, apart from objections raised by respondent
and without providing petitioner notice and opportunity to respond. See Sabella v. Sec’y of Health
& Human Servs., 86 Fed. Cl. 201, 209 (2009). A special master need not engage in a line-by-line
analysis of petitioner’s fee application when reducing fees. Broekelschen, 102 Fed. Cl. at 729.
1. Reasonable Hourly Rates
A reasonable hourly rate is the rate “prevailing in the community for similar services by
lawyers of reasonably comparable skill, experience, and reputation.” Avera, 515 F.3d at 1348
(quoting Blum, 465 U.S. at 896 n.11). Rather than being based on the prevailing rate in the forum
where petitioner’s attorney practices, the rate is based on the forum rate for the District of
Columbia. Rodriguez v. Sec’y of Health & Human Servs., 632 F.3d 1381, 1384 (Fed. Cir. 2011)
(citing Avera, 515 F. 3d at 1349). A narrow exception to this forum rule applies “where the bulk
of the attorney's work is done outside the forum jurisdiction, and where there is a very significant
difference in the compensation rate between the place where the work was done and the forum.”
Id. This exception is known as the Davis County exception, and it provides for attorneys’ fees to
be awarded at local hourly rates. Hall v. Sec’y of Health & Human Servs., 640 F.3d 1351, 1353
(2011) (citing Davis Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. EPA,
169 F.3d 755, 758 (D.C. Cir. 1999)).
McCulloch provides a multifactor framework for deciding the reasonable forum rate based
on the attorney’s experience, overall quality of work performed, and prevailing rates in the
program and forum. McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL
135634323, at *17 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). The Office of Special Masters has accepted
the decision in McCulloch and has issued a Fee Schedule for subsequent years.4
Attorney Nancy Meyers submitted hourly rates for herself in the amount of $350 for 2016-
2017, $375 for 2018, $390 for 2019, $400 for 2020, and $430 for 2021. Motion for Fees at 4;
Supplemental Motion at 4-5. She submitted hourly rates for her paralegals, mainly Lisa Hobbs, in
the amount of $145 for 2016-2019, $150 for 2020, and $155 for 2021. Id. These rates are consistent
with what Attorney Meyers and her paralegals have been awarded in other vaccines cases. Parker
v. Sec’y of Health & Human Servs., No. 18-602V, 2021 WL 6276197, at *3 (Fed. Cl. Spec. Mstr.
Dec. 21, 2021) (awarding the requested rates in full); see also Deese v. Sec’y of Health & Human
Servs., No. 19-1127V, 2021 WL 4946935, at *2 (Fed. Cl. Spec. Mstr. Sept. 24, 2021). Thus, I find
the requested rates to be reasonable.
2. Hours Reasonably Expended
Attorneys’ fees may be awarded for the number of hours reasonably expended during
litigation. Avera, 515 F.3d at 1348. The special master should use her prior experience and
judgement to exclude from the fee calculation hours that are “excessive, redundant, or otherwise
unnecessary.” Saxton ex rel. Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed.
Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). Unreasonably duplicative or
excessive billing can include attorneys billing at attorney rates for clerical work, “an attorney
billing for a single task on multiple occasions, multiple attorneys billing for a single task, attorneys
billing excessively for intraoffice communications, attorneys billing excessive hours, attorneys
entering erroneous billing entries, [and] attorneys billing excessively for interoffice
communications.” Raymo v. Sec’y of Health & Human Servs., 129 Fed. Cl. 691, 702-703 (2016).
Secretarial and clerical tasks such as reviewing invoices and scheduling meetings are not
compensable under the Vaccine Program. See McCulloch, 2015 WL 5634323, at *26; Raymo, 129
Fed. Cl. at 702. Billing for learning about the basic aspects of the Vaccine Program is also not
compensable. Matthews v. Sec’y of Health & Human Servs., No 14-1111V, 2016 WL 2853910, at
*2 (Fed. Cl. Spec. Mstr. Apr. 18, 2016).
While attorneys may be compensated for non-attorney-level work, the rate must be
comparable to what would be paid for a paralegal. O’Neill v. Sec’y of Health & Human Servs., No.
08-243V, 2015 WL 2399211, at *9 (Fed. Cl. Spec. Mstr. Apr. 28, 2015). Further, attorneys may
be compensated for hours traveled at one-half of the normal hourly attorney rate. See Scott v. Sec’y
of Health & Human Servs., No. 08-756V, 2014 WL 2885684, at *3 (Fed. Cl. Spec. Mstr. June 5,
2014) (collecting cases); see also Knox v. Sec’y of Health & Human Servs., No. 90–33V, 1991
WL 33242, at *7 (Fed. Cl. Spec. Mstr. Feb. 22, 1991) (finding that “50% of the expert’s [travel]
time should be compensated”). Ultimately, the special master maintains discretion in awarding
fees for reasonable hours expended and “is permitted to reduce attorneys' hours found to be
excessive by a percentage.” Raymo, 129 Fed. Cl. at 702; see also Broekelschen v. Sec’y of Health
& Human Servs., 102 Fed. Cl. 719, 728-29 (2011) (affirming the Special Master’s reduction of
4
The 2015-2023 Fee Schedules can be accessed at http://www.cofc.uscourts.gov/node/2914. The hourly
rates contained within the schedules are updated from the decision in McCulloch v. Sec’y of Health &
Human Sers., No. 09-923V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015).
14
attorney and paralegal hours); Guy v. Sec’y of Health & Human Servs., 38 Fed. Cl. 403, 406 (1997)
(same).
Attorney Meyers and her paralegals billed a total of 163.4 hours on this matter. Motion for
Fees at 5-20, 58; Supplemental Motion at 4. Upon review of the hours billed by Attorney Meyers
and her paralegals, I find that their time was appropriately documented with specificity and their
billing records did not contain charges for impermissible tasks, such as administrative duties or
time spent learning about the Program. Further, I find it reasonable that a legal team would expend
a combined 163.4 hours on a case over a span of nearly four and a half years, from the time that
petitioner’s attorney began working on this matter until it was dismissed. Therefore, no reduction
is warranted.
3. Reasonable Costs
Petitioner also requested $1,285.06 for miscellaneous expenses, such as medical records,
court filings, shipping expenses, and electronic legal research. Motion for Fees at 4, 21-47;
Supplemental Motion at 4. In her Supplemental Motion, petitioner requested $58.04 for electronic
legal research from March 1 through March 31, 2021. Supplemental Motion at 4. However, no
supporting documentation was filed and there was no indication as to what was purchased. Thus,
this request will not be awarded, resulting in a reduction of $58.04. Otherwise, these costs are
reasonable and supported by the receipts filed, and I will compensate them in full.
V. Conclusion
Based on the foregoing, petitioner’s Motion for Attorneys’ Fees is GRANTED in part.
The undersigned finds that it is reasonable to compensate petitioner and her counsel for a total
attorneys’ fees and costs of $36,747.02, representing $35,520.00 in attorneys’ and paralegals’
fees and $1,227.02 in costs.
Accordingly, the undersigned awards:
A lump sum payment of $36,747.02 representing reimbursement for
petitioner’s attorneys’ fees and costs in the form of a check payable jointly to
petitioner and her counsel of record, Nancy Meyers with Turning Point
Litigation.
The Clerk of the Court is directed to enter judgment in accordance with this Decision.5
IT IS SO ORDERED.
s/ Mindy Michaels Roth
Mindy Michaels Roth
Special Master
5
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice
renouncing the right to seek review.
15