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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-0191V
ROBIN WABBE, Chief Special Master Corcoran
Petitioner, Filed: November 3, 2023
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Bridget Candace McCullough, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Mark Kim Hellie, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS1
On January 7, 2021, Robin Wabbe filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”).3 Petitioner alleged that she suffered a left shoulder injury related to
vaccine administration (“SIRVA”), a defined Table Injury, after receiving the influenza
(“flu”) vaccine on January 23, 2020. Amended Petition at 1, ¶¶ 2, 10, 15. As explained in
an accompanying affidavit from Petitioner’s counsel, the Petition was filed without medical
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, 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 (2018).
3 Petitioner also filed an amended petition with additional detail and medical records citations on July 19,
2021. ECF No. 10.
records, due to concerns about preserving the claim due to the then-anticipated removal
of SIRVA from the Vaccine Injury Table.4
After determining that Petitioner had failed to provide sufficient evidence to support
her claim - specifically in support of the six-month severity requirement - I allowed her the
opportunity to correct the noted deficiency or to otherwise show cause why her claim
should not be dismissed. ECF No. 21; see Section 11(c)(1)(D)(i) (severity requirement).
On February 22, 2023, Petitioner subsequently filed a motion requesting that I dismiss
her claim (ECF No. 22), and I granted the motion (ECF No. 23).
On June 9, 2023, Petitioner filed a request for an award of $6,997.50 in attorney’s
fees and costs. Petitioner’s Application for Attorneys’ Fees and Costs, ECF No. 27.
Petitioner did not address the statutory requirements of good faith and reasonable basis,
prerequisites for any attorney’s fees and costs award in unsuccessful cases. See Section
15(e)(1).
On June 23, 2023, Respondent filed a response, deferring to my discretion
regarding “whether the statutory requirements for an award of fees and costs have been
met in this case, particularly whether there is a reasonable basis for the claim.”
Respondent’s Response to Petitioner’s Motion for Fees and Costs at 2, ECF No. 28.
Petitioner did not file a reply.
For the reasons discussed below, Petitioner has failed to establish there was a
reasonable basis for her claim. Thus, she is not entitled to an award of attorney’s fees
and costs, and the fees motion is denied.
I. Applicable Legal Standards
Motivated by a desire to ensure that petitioners have adequate assistance from
counsel when pursuing their claims, Congress determined that attorney’s fees and costs
may be awarded even in unsuccessful claims. H.R. REP. NO. 99-908, at 22 reprinted in
4 Petitioner’s counsel specifically stated that she was in the process of obtaining Petitioner’s medical records
and filed the Petition without 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 1. 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).
2
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). This is consistent with the fact that “the
Vaccine Program employs a liberal fee-shifting scheme.” Davis v. Sec’y of Health & Hum.
Servs., 105 Fed. Cl. 627, 634 (2012). Indeed, it may be the only federal fee-shifting statute
that permits unsuccessful litigants to recover fees and costs.
However, Congress did not intend that every losing petition be automatically
entitled to attorney’s fees. Perreira v. Sec’y of Health & Hum. Servs., 33 F.3d 1375, 1377
(Fed. Cir. 1994). And there is also a prerequisite to even obtaining fees in an unsuccessful
case. The special master or court may award attorney’s fees and costs to an unsuccessful
claimant only if “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 & Hum. 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 has explained, whether a discretionary fees award is
appropriate involves two distinct inquiries, but only reasonable basis is at issue herein.5
Reasonable basis is deemed “an objective test, satisfied through objective evidence.”
Cottingham v. Sec’y of Health & Hum. Servs., 971 F.3d 1337, 1344 (Fed. Cir. 2020)
(“Cottingham I”). “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 & Hum. 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, 984 F.3d at 1379.
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 & Hum. Servs.,
155 Fed. Cl. 665, 671 (Fed. Cl. 2021). “[I]t is generally accepted that ‘a petitioner must
5 Claimants must also establish that the petition was brought in good faith. Simmons v. Sec’y of Health &
Hum. Servs., 875 F.3d 632, 635 (Fed. Cir. 2017) (quoting Chuisano v. Sec’y of Health & Hum. Servs., 116
Fed. Cl. 276, 289 (2014)). “[T]he ‘good faith’ requirement . . . focuses upon whether petitioner honestly
believed he had a legitimate claim for compensation.” Turner v. Sec’y of Health & Hum. Servs., No. 99-
0544V, 2007 WL 4410030, at *5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007). But good faith is not disputed herein,
and I do not ascertain evidence in the record calling it into question.
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furnish some evidence in support of the claim.’” Id. 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
I, 971 F.3d at 1345-46. “This formulation does not appear to define reasonable basis so
much as set its outer bounds.” Cottingham v. Sec’y of Health & Hum. Servs., 159 Fed.
Cl. 328, 333, (Fed. Cl. 2022) (“Cottingham II”). “[T]he Federal Circuit’s statement that a
special master ‘could’ find reasonable basis based upon more than a mere scintilla does
not mandate such a finding.” Cottingham II, 159 Fed. Cl. at 333 (citing Cottingham I, 971
F.3d at 1346).
Furthermore, the issue of reasonable basis is not a static inquiry. The reasonable
basis which existed when a claim was filed may cease to exist as further evidence is
presented. Perreira, 33 F.3d at 1377. In Perreira, the Federal Circuit 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.” Id. at 1376.
II. Medical Records
During the two years prior to vaccination, Petitioner suffered from bilateral hip pain
and right-hand finger pain on several occasions. Exhibit 8 at 7, 13, 15, 32. She first
complained of left shoulder pain two weeks post-vaccination – on February 12, 2020. Id.
at 6. Attributing her pain to the flu vaccine she received, Petitioner described it as tight
and aching. She was prescribed Meloxicam – an NSAID6 medication, to combat her pain.
Id.
More than five months later, on July 29, 2020, Petitioner returned to her PCP,
complaining of sharp and moderate pain in his left shoulder and right ankle after following
a fall at 4AM when on the way to the bathroom. Exhibit 8 at 5. Her primary care provider
(“PCP”) ordered x-rays and diagnosed Petitioner with right ankle and left shoulder strain,
as well as mild tendinitis of the left shoulder. Id. There is no mention of Petitioner’s flu
vaccine or earlier left shoulder pain in this medical record.
On August 17, 2020, Petitioner visited an orthopedist – following self-referral,
complaining of left shoulder pain which she attributed to the flu vaccine she received.7
Exhibit 5 at 12. She stated that “she developed pain for one month and then it went away
6 NSAID stands for non-steroid anti-inflammatory drug. MEDICAL ABBREVIATIONS at 422 (16th ed. 2020).
7 When providing this history, Petitioner mistakenly reported that she received the flu vaccine in February,
rather than late January 2020. Compare Exhibit 5 at 12 with Exhibit 3 (vaccine record).
4
and has come back.” Id. Petitioner described her current pain as lateral arm pain radiating
into her back and under her arm, accompanied by muscle spasms in her arm, occasional
numbness in her fingers, and “pain with motion in her neck.” Id. There is no mention of
her fall and pain from three weeks earlier. The orthopedist diagnosed Petitioner with left
shoulder bursitis and tendonitis, administered a steroid injection, and prescribed physical
therapy (“PT”). Id. at 13-14; see Exhibit 4 (PT records).
When Petitioner returned to the orthopedist on October 29, 2020, she reported no
relief from the steroid injection she received and described pain in “the posterior aspect
of the arm just behind the shoulder and down the back of the arm towards the elbow,” as
well as pain at the base of her neck and in the periscapular region. Exhibit 5 at 9. Petitioner
was diagnosed with “[m]ild rotator cuff tendonitis [and] [m]ild cervical spondylosis with
some concern over left side radiculopathy.” Id. at 10.
III. Analysis
A. Reasonable Basis
By Petitioner’s own admission, the aching left shoulder pain she experienced post-
vaccination resolved within one month without treatment (other than NSAIDs to control
her pain). When she sought treatment for left shoulder and right ankle pain approximately
five months later, in July 2020, she attributed her symptoms to a fall suffered early that
morning. And there is substantial evidence showing Petitioner’s later left shoulder pain in
the second half of 2020, differed in type (radiating) and location (also in her back and
neck) than the tight ache she described in February 2020. Compare, Exhibit 8 at 6 with
id. at 5; Exhibit 5 at 12; Exhibit 6 at 6, 12-13. Even lacking the information regarding her
July 2020 fall, the orthopedist did not link Petitioner’s later pain to her earlier vaccination
and opined that at least some of the pain was due to possible left-sided radiculopathy.
The record contains no evidence linking Petitioner’s later left shoulder pain to her
vaccination, other than her personal belief that the events were connected – expressed
several months before the petition was filed and months after contacting Petitioner’s
counsel. See Petition, filed Jan. 7, 2021; ECF 27 at 6 (billing records showing contact
with Petitioner’s counsel’s law firm throughout 2020). Rather, the record reveals that the
pain Petitioner experienced post-vaccination resolved within one month without treatment
(such as a steroid injection) which would explain a temporary cessation of her pain. And
there are several more likely alternative causes for her later symptoms, the July fall and
possible cervical radiculopathy.
This lack of supporting evidence of sequelae lasting more than six months post-
vaccination renders the claim untenable from the outset. Petitioner has noted that this
5
case was filed on January 7, 2021, 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 1 at ¶ 1)
Such caution on the part of Petitioner’s counsel, although understandable, does not
provide reasonable basis, which would otherwise not exist, for the claim’s filing. See
Simmons v. Sec’y of Health & Hum. Servs., 875 F.3d 632, 636 (Fed. Cir. 2017). And this
is not a case in which the development of a fact, ascertained out of ambiguous records,
later reveals fatal deficiencies that beforehand were not evident. Instead, the later-
obtained medical records only further undercut Petitioner’s claim of an ongoing injury
attributable to the flu vaccine she received.
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 Petitioner’s claim. In such circumstances, the Act places the risk of filing the
claim on counsel, and does not allow an award of fees.
B. Good Faith
In her amended petition, Ms. Wabbe indicated that following her February 2020
visit, she did not return for further treatment until approximately six months later – on
August 17th when seen by her orthopedist. Amended Petition at ¶ 5. She failed to mention
the visit to her PCP for a fall and left shoulder and right ankle pain she on July 29, 2020,
in either her amended petition or affidavit. See Amended Petition, filed July 19, 2021,
ECF No. 10; Exhibit 2, filed Dec. 16, 2021, ECF No. 16-1. Nor did she address her August
2020 statement that her earlier left shoulder pain had resolved within a month of
vaccination or the neurologic nature of her later pain.
It is Petitioner’s responsibility to continue to assess the merits of her claim as new
information and evidence is brought to light. See Perreira v. Sec’y of Health & Hum.
Servs., 33 F.3d 1375, 1377 (Fed. Cir. 1994) (noting that even in cases which initially
possessed the requisite good faith and reasonable basis for the filing, these required
characteristics may cease to exist as further evidence is presented). Thus, the failure to
mention these additional matters, in documents filed after her medical records were
obtained, suggests that good faith may be lacking as well. However, given my finding that
the claim lacked a reasonable basis, I need not further address the good faith
requirement.
IV. 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
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good faith and there was a reasonable basis for the claim for which the Petition was
brought. Section 15(e)(1). But Petitioner has failed to provide evidence establishing there
was a reasonable basis for filing his claim. Petitioner’s motion for attorney’s fees and
costs is therefore DENIED.
The Clerk of the Court is directed to enter judgment in accordance with this
Decision.8
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
8 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.
7