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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1278V
SHARON K. DIXON, Chief Special Master Corcoran
Petitioner, Filed: November 13, 2023
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
David Alexander Tierney, Rawls Law Group (Richmond), Richmond, VA, for Petitioner.
Madelyn Weeks, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS1
On September 28, 2020, Sharon K. Dixon (“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”). Petitioner alleged that she suffered a left shoulder
injury related to vaccine administration (“SIRVA”), which meets the Table definition or was
caused, or in the alternative significantly aggravated, by the influenza (“flu”) vaccine she
received on September 21, 2018. Petition at 1¶ 2.
After determining that Petitioner had failed to provide sufficient evidence to support
her claim - specifically in support of the six-month severity requirement - I granted
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).
Respondent’s motion (ECF No. 26) and dismissed Petitioner’s claim. ECF No. 32; see
Section 11(c)(1)(D)(i) (severity requirement).
On September 15, 2023, Petitioner filed a request for an award of $15,652.37 in
attorney’s fees and costs. Petitioner’s Application for Attorneys’ Fees and Costs at ¶ 4,
ECF No. 35. She did not address the statutory requirements of good faith and reasonable
basis, however - prerequisites for any attorney’s fees and costs award in unsuccessful
cases. See Section 15(e)(1).
On September 29, 2023, Respondent filed a response, arguing that “[P]etitioner
has failed to establish a reasonable basis for her claim [and] is not entitled to an award of
fees and costs.” Respondent’s Response to Petitioner’s Motion for Attorneys’ Fees and
Costs at 1, ECF No. 36. Specifically, he contends that “[P]etitioner made no attempt to
explain why she did not seek further care for her left shoulder pain after her February 11,
2019 visit with Dr. Latimer, nor does she explain why she waited eighteen months to seek
further care.” Id. at 8. He therefore maintains that “[P]etitioner has not provided more than
a scintilla of objective evidence that her alleged injury lasted for more than six months.”
Id. 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
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
2
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.3
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
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
3 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.
3
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. Evidence Provided by Medical Records and Affidavits
Prior to vaccination, Petitioner had no history of prior left shoulder or arm pain.
Exhibit 3 at 467, 536. She received the flu vaccine alleged as causal on September 21,
2018, during a visit to her primary care provider (“PCP”). Exhibit 3 at 12, 399.
Thereafter in September and October 2018, Petitioner visited her PCP on three
occasions, complaining of left arm soreness and pain to her elbow, especially when lifting
her arm. Exhibit 3 at 379-80, 399-400. Noting that this was a common post-vaccination
reaction, the PCP initially advised Petitioner to pursue conservative treatments such as
ice packs, Tylenol, and ibuprofen. Id. at 380, 399. He later prescribed a five-day course
of prednisone. Id. at 379.
On November 7, 2018, Petitioner returned to her PCP for treatment of continued
left shoulder and arm pain. Exhibit 3 at 334. She reported that the level of her pain
decreased to two out of ten when taking the prescribed oral steroids but returned to seven
out of ten thereafter. Id. An examination showed tightness in her upper trapezius and
tenderness upon palpitation, but normal strength. Id. at 335-36. Exhibiting difficulty
moving her shoulder over her head, Petitioner was assessed with cross syndrome or
“impingement issue.” Id. at 336. The PCP ordered a referral to orthopedics for a possible
steroid injection and prescribed physical therapy (“PT”). Id.
Two days later, On November 9, 2018, Petitioner was seen by William Latimer,
PA-C, at Indiana University Health Orthopedics, for ongoing left shoulder pain. Exhibit 4
at 6. She reported pain at a level of four to five with rest and seven to eight with movement.
During his examination, PA Latimer observed full rotator cuff strength and range of motion
(with pain) and anterior joint line tenderness. Id. He diagnosed Petitioner with
impingement syndrome and administered a cortisone injection. Id. at 6-7.
Petitioner began PT on November 16, 2018. Exhibit 5 at 25. By November 30,
2018, her pain had decreased to one at rest and three with movement. Id. at 6. At a follow-
up visit with PA Latimer on December 5, 2018, Petitioner reported improvements in her
pain and range of motion, but a continued inability to reach behind her back and pain with
overhead movement. Exhibit 4 at 4. She continued to take Meloxicam4 for her pain. Id.
4 Meloxicam is “a nonsteroidal anti-inflammatory drug used in the treatment of osteoarthritis. DORLAND’S
ILLUSTRATED MEDICAL DICTIONARY (“DORLAND’S”) at 1126 (32th ed. 2012).
4
In her January 2, 2019 discharge summary, following ten PT sessions, Petitioner’s pain
remained at the level reported in late November 2018, and she had met all long-term
goals. Exhibit 5 at 6-7.
At her annual physical on January 16, 2019, Petitioner requested a refill of her
Meloxicam prescription, which she was taking for her left shoulder pain. Exhibit 3 at 279.
An examination revealed tenderness when her shoulder was palpated, but full range of
motion and strength. Id. at 280. She was assessed with osteoarthritis “with likely
impingement.” Id.
Petitioner continued to report some residual pain at a follow-up appointment with
PA Latimer on February 11, 2019, less than five months post-vaccination, but an
examination showed full range of motion. Exhibit 4 at 2. PA Latimer administered a
second steroid injection and directed Petitioner to seek follow-up visits as needed. Id.
Thereafter, the medical records reveal numerous doctor visits – for the next
approximately eighteen months, in fact - but no additional reports of shoulder pain. This
treatment is described as follows:
• A visit to urgent care on March 23, 2019, for treatment of acute sinusitis and
lower abdominal pain (Exhibit 3 at 221-22);
• A visit to her primary care physician on March 25, 2019, for right flank pain and
suprapubic pain for the past five days (id. at 220-22);
• A hospitalization from April 4, 2019, to April 5, 2019, for diverticulitis (id. at 168);
• A follow-up appointment regarding diverticulitis and to discuss hypertension,
high blood pressure, and mild anxiety on April 26, 2019 (id. at 130-32);
• A visit to her PCP on July 16, 2019, to discuss diverticulitis and hypertension
wherein Petitioner “feels well overall and has no major acute complaints at this
time” (id. at 82); and
• A follow-up appointment on January 17, 2020 for right sided back pain, and a
persistent “tickle in throat” since being sick in December that also lists
osteoarthritis of the left shoulder as a chronic problem (id. at 22-24).
These medical records did not list shoulder pain as a chronic issue and contain only a
few references left shoulder osteoarthritis with notations showing the last update
5
regarding this condition occurred in January 2019. E.g., id. at 70.5 And, in contrast to the
medical records from visits between the September 2018 vaccination and her February
2019, there is no record, during this lengthy period, when Petitioner complained of
shoulder issues or sought treatment specific to such problems. See id. at 22-222.
Petitioner did not seek treatment for left shoulder pain until August 4, 2020, when
she returned to PA Latimer, reporting “chronic recurrent left shoulder and upper arm pain
without specific preceding injury.” Exhibit 4 at 12. At this visit, Petitioner rated her pain as
four out of ten, but ten out of ten at worst. Id. Upon examination, Petitioner exhibited full
strength with no pain, but mildly limited range of motion. Id. at 13. PA Latimer diagnosed
her with impingement of left shoulder, adhesive capsulitis, and osteoarthritis and
administered a steroid injection. Id.
In addition to these medical records, Petitioner submitted affidavits from herself
(Exhibit 1) and her daughter (Exhibit 2), both executed on September 25, 2022. In her
affidavit, Petitioner asserted that she felt pain “[r]ight before the needle was removed.”
Exhibit 1 at 1. She also described her treatment from September 2018 through February
11, 2019, but failed to address the 18-month gap between February 2019 and August
2020. Similarly, in her affidavit, Petitioner’s daughter described Petitioner’s left shoulder
complaints from only September through November of 2018. Exhibit 2.
III. Analysis – Reasonable Basis
The evidence provides some support for Petitioner’s claim that she suffered left
shoulder pain potentially related to the flu vaccine she received. After complaining of her
left shoulder pain only three days post-vaccination, she steadfastly pursued treatment
through the end of December 2019, for approximately three months. Table onset seemes
to be supported by this record, if nothing else.
However, that same record establishes that Petitioner experienced significant
relief by late November 2018 – thus within only two months of vaccination. Following a
steroid injection and PT sessions in November 2018, her pain had decreased
significantly. It remained at this mild level through the remainder of PT attended in
December 2018. Although she continued taking Meloxicam, Petitioner’s pain remained at
this mild level during a PCP visit in January 2019, and an orthopedic appointment on
February 11, 2019, less than five months post-vaccination.
Petitioner was administered a second steroid injection at the orthopedic
appointment, and thereafter did not return for treatment or mention continuing left
5 This medical record also contains references to osteoarthritis in Petitioner’s right and left knees. Exhibit 3
at 70.
6
shoulder symptoms for almost 18 months, despite seeking medical care for unrelated
conditions during this time. Thus, the record strongly supports the proposition that
Petitioner’s injury had resolved – and within the Act’s six-month period for establishing
severity, rather than extending beyond before resolving.
Although Petitioner returned for treatment of left shoulder pain in August 2020,
there is no evidence to link these later symptoms to the flu vaccine she received and any
vaccine-related symptoms that she may have suffered for five months thereafter. And
significantly, Petitioner has failed to provide an explanation for this considerable gap in
treatment.
Given the above, I cannot conclude that the record preponderantly establishes
Petitioner’s injury persisted for the six months required by the Act. Such a lengthy
treatment gap is too large to ignore given the facts, such as the improvement Petitioner
reported as early as late November 2018. This lack of supporting evidence, especially of
sequelae lasting more than six months post-vaccination, means the claim was 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.
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). But Petitioner has failed to provide evidence establishing there
was a reasonable basis for filing her 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.6
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
6 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