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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-0417V
PETER GABRIEL, Chief Special Master Corcoran
Petitioner, Filed: November 3, 2023
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Zoe Wade, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS1
On January 8, 2021, Peter Gabriel filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleged that he suffered a shoulder injury related to vaccine
administration (“SIRVA”), a defined Table injury, after receiving the influenza (“flu”)
vaccine on September 22, 2020. Petition at 1, ¶ 2. Given concerns about the potential
removal of SIRVA from the Vaccine Injury Table,3 Petitioner filed the claim somewhat
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 Mr. Gabriel filed the Petition less than four months post-vaccination, along with the vaccine record (Exhibit
1), some prior medical records (Exhibit 2), and an affidavit from Petitioner’s counsel stating that the Petition
had been filed without all required 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 3 at ¶ 1). On July 20, 2020, the Secretary of Health and Human Services
prematurely, alleging that his “left shoulder injuries and sequelae lasted more than six (6)
months” before that was factually possible. Petition at ¶ 4; see Section 11(c)(1)(D)(i)
(statutory six-month severity requirement).
On September 19, 2022, Petitioner filed a motion requesting that I dismiss his
claim because he was “is unable to provide additional evidence that his left shoulder pain
persisted for longer than 6 months, and will therefore be unable to prove that he is entitled
to compensation in the Vaccine Program.” Petitioner’s Motion for a Decision Dismissing
His Petition at ¶ 4, ECF No. 21. I granted Petitioner’s motion on December 19, 2022. ECF
No. 22.
On March 7, 2023, Petitioner filed a request for an award of $8,067.72 in attorney’s
fees and costs. Petitioner’s Application for Attorneys’ Fees and Costs, ECF No. 27. In the
motion, 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 April 19, 2023, Respondent filed a response, stating he “is satisfied the
statutory requirements for an award of attorneys’ fees and costs are met in this case.”
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 his claim. Thus, he 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
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
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.4
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
4
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
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. Analysis
Although Mr. Gabriel filed the Petition in this case less than four months post-
vaccination, well before six-months of sequela could have occurred, such early filing has
been allowed in the Program. Sewell v. Sec’y of Health & Human Servs., No.12-0124V,
2012 WL 2264499 (Fed. Cl. Spec. Mstr. May 25, 2012). However, Petitioner still must
establish that this obvious defect has been cured. And by Petitioner’s own admission, he
cannot now show that he suffered the residual effects of his alleged SIRVA for more than
six months.
The Circuit and the Court have plainly noted that determinations by counsel to
“rush” filings may reflect a good faith effort to prosecute a claim, but cannot amount to
objective proof in support of a claim required to satisfy the reasonable basis standard. In
Simmons, the Federal Circuit clearly held that the pending expiration of the Vaccine Act’s
statute of limitations would not convey a reasonable basis which would otherwise not
exist, and that efforts to “beat the clock” in a filing should be considered only when
determining whether good faith exists. Simmons v. Sec’y of Health & Hum. Servs., 875
F.3d 632, 635, 636 (Fed. Cir. 2017).
The present record contains some evidence that Petitioner (77 years old at the
time of vaccination) experienced temporary swelling following receipt of the flu vaccine
on September 22, 2020 - primarily medical histories provided by Petitioner within a few
days of vaccination. Exhibit 55 at 54-55, 59, 63, 65, 68. By early October 2020, however,
5 Although Petitioner labeled both the affidavit filed on March 5, 2021, at ECF No. 8, and medical records
filed March 23, 2021, at ECF No. 10, as Exhibit 5, the updated exhibit lists filed show the affidavit should
4
Petitioner reported a significant reduction of swelling and some improvement in pain. Id.
at 46-48. On October 6, 2020, any swelling Petitioner had experienced was described as
resolved. Id. at 41.
Although Petitioner continued to seek treatment for left shoulder pain through
December 2020, the symptoms of pain and limited range of motion that he described
mirrored complaints he made in late 2018 through 2019, during the two years prior to
vaccination.6 Exhibit 5 at 272-84. And there is no evidence of any left shoulder complaints
beyond December 2020 (then approximately three months post-vaccination). Medical
records from January and February 2021 show concerns related to diarrhea, a cough,
and a concern for COVID, routine bloodwork, a request for a repeat urinalysis,
dissatisfaction with his primary care provider, and back and left leg pain that began after
picking up firewood. Exhibit 5 at 12-16, 22-32.
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. Indeed – the case was filed despite
the risk that severity could not later be established. As a result (and although I sympathize
with Petitioner’s desire to file this claim in advance of an anticipated change in the law, to
preserve the claim), I cannot find even a scintilla of evidence would have supported it on
this critical requirement. In such circumstances, the Act places the risk of filing the claim
on counsel, and does not allow an award of fees.
III. Conclusion
The Vaccine Act permits an award of reasonable attorneys’ fees and costs even
to an unsuccessful litigant as long as the litigant establishes the Petition was brought in
good faith and there was a reasonable basis for the claim for which the Petition was
brought. Section 15(e)(1). 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.
have been labeled Exhibit 4. ECF Nos. 8-1, 10-1. Thus, any reference to Exhibit 5 is to the medical records
filed on March 23, 2021, at ECF No. 10-2.
6 In December 2018, Petitioner reported left shoulder pain and reduced range of motion thought to be due
to degenerative changes seen on x-rays and repetitive activity, specifically heavy lifting and yardwork. Id.
at 281, 284. Although he declined to undergo an MRI, Petitioner’s treating physicians believed his
symptoms were indicative of a rotator cuff tear. Id. at 272, 276, 279.
5
The Clerk of the Court is directed to enter judgment in accordance with this
Decision.7
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
7 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
6