Goodgame v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
*********************
MAURICE GOODGAME, *
* No. 17-339V
Petitioner, * Special Master Christian J. Moran
*
v. *
* Filed: April 16, 2021
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * Attorneys’ fees and costs;
* reasonable basis; severity
*
Respondent. *
*********************
Milton Clay Ragsdale and Allison L. Riley, Ragsdale, LLC, Birmingham, AL, for
petitioner;
Adriana R. Teitel, United States Dep’t of Justice, Washington, DC, for respondent.
PUBLISHED DECISION DENYING ATTORNEYS’ FEES AND COSTS1
Maurice Goodgame alleged that a vaccination harmed her. However, she
did not establish that her impairment lasted long enough to satisfy the Vaccine
Act’s severity requirement. Thus, she was denied compensation. Goodgame v.
Sec’y of Health & Human Servs., No. 17-339V, 2019 WL 4165275 (Fed. Cl. Spec.
Mstr. July 30, 2019).
1
The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services), requires that the Court post this decision on its
website (https://www.uscfc.uscourts.gov/aggregator/sources/7). This posting will make the
decision available to anyone with the internet. Pursuant to Vaccine Rule 18(b), the parties have
14 days to file a motion proposing redaction of medical information or other information
described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special master will
appear in the document posted on the website.
Ms. Goodgame has sought an award of attorneys’ fees and costs, premised
on the assertion that good faith and reasonable basis supported her claim. The
Secretary opposed that request.
Adjudication of Ms. Goodgame’s motion was delayed as the Federal Circuit
decided two cases involving reasonable basis. James-Cornelius v. Sec’y of Health
& Human Servs., 984 F.3d 1374 (Fed. Cir. 2021); Cottingham v. Sec’y of Health
& Human Servs., 971 F.3d 1337 (Fed. Cir. 2020). The parties reiterated their
positions in additional briefs filed after Cottingham and again after James-
Cornelius.
For the reasons explained below, the Secretary’s arguments are persuasive.
There is not a reasonable basis that Ms. Goodgame’s shoulder injury lasted longer
than six months as she specifically denied having shoulder pain during the critical
period.
I. Facts2
Ms. Goodgame saw Dr. Shirin Banu on April 21, 2015, for what appears to
be a relatively routine visit. Ms. Goodgame complained about her chronic left
ankle pain. Ms. Goodgame received the tetanus-diphtheria-acellular pertussis
(“Tdap”) vaccine in her left arm during this appointment. Exhibit 3 at 1. Dr. Banu
expected to see Ms. Goodgame in follow-up five months later. Id. at 4.
On April 24, 2015, Ms. Goodgame visited the emergency room at Cooper
Green Hospital. She complained of having pain in her left arm where she received
the vaccination. Nurse Practitioner Lynn White diagnosed her as suffering from
cellulitis and prescribed an antibiotic. Exhibit 4 at 1. After this visit to the
emergency room, no medical records indicate that Ms. Goodgame sought medical
attention for cellulitis.
Ms. Goodgame was involved in a car accident on June 6, 2015. Exhibit 10
at 8. Her most significant injury was a fractured left ankle. Id. at 5-6 (report from
June 17, 2015). She also suffered injuries to her neck and back as well as pain in
her wrist. In addition, she had a contusion in her left upper extremity. Id. at 8.
In response to the injuries sustained in the car accident, Ms. Goodgame
sought care from an orthopedist, Donald Slappey. In a medical history form dated
June 23, 2015, Ms. Goodgame told Dr. Slappey that she had no problem with her
2
The recitation of facts is largely taken from the Entitlement Decision.
2
left arm and no problem with both shoulders before the accident on June 6.
Exhibit 7 at 43. Dr. Slappey noted that Ms. Goodgame had pain from her neck into
her left shoulder but not in her arms. Dr. Slappey detected a limited range of
motion in her left trapezius muscle. Probably based on Ms. Goodgame’s account
that she did not have these problems before the car accident, Dr. Slappey opined
that the injuries related to the car accident. Id. at 18. Dr. Slappey referred her to
therapy. Id. at 102; exhibit 13 at 3.
Ms. Goodgame began physical therapy on July 7, 2015. This therapy lasted
until October 26, 2015. Exhibit 19.
During therapy, Ms. Goodgame returned to Dr. Slappey on September 8,
2015. Dr. Slappey determined Ms. Goodgame had a good range of motion in her
cervical spine but limited flexion in her lumbar spine. Dr. Slappey maintained the
order for therapy. Exhibit 7 at 8.
On September 22, 2015, Ms. Goodgame had her previously scheduled
follow-up appointment with Dr. Banu. Dr. Banu’s history lists that she had an
allergic reaction to the Tdap vaccination and was treated in urgent care. Dr. Banu
also notes that Ms. Goodgame was involved in a motor vehicle accident in June
2015. Dr. Banu’s record does not mention any complaints about shoulder pain.
Exhibit 6 at 22-23.
On November 3, 2015, Ms. Goodgame had her final appointment with Dr.
Slappey. She requested to be released from care and be allowed to maintain a
home exercise program. Exhibit 7 at 7. Later in November, Ms. Goodgame
applied for a job and indicated that she was available to work many days and many
hours on each day. Exhibit 27 at 29.
II. Procedural History
The course of this case was straightforward. With the assistance of her
counsel of record, Milton Clay Ragsdale, Ms. Goodgame presented medical
records. The Secretary reviewed this material and argued that the medical records
did not establish that Ms. Goodgame’s adverse reaction to the vaccine lasted longer
than six months. Resp’t’s Rep., filed Jan. 2, 2018, at 7.
Ms. Goodgame submitted additional evidence, including an affidavit from
her. In this affidavit, Ms. Goodgame asserted, in relevant part, that “[s]ix months
following my vaccination, . . . I still experienced intermittent pain and limited
range of motion to my left shoulder that is the same type of pain I experienced
after my vaccination.” Exhibit 14 ¶ 10.
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Eventually, in written submissions, the parties disputed whether Ms.
Goodgame’s adverse reaction to the vaccine lasted longer than six months. Ms.
Goodgame submitted her brief regarding factual issues on March 29, 2019, and the
Secretary responded on May 15, 2019.
As noted earlier, the July 30, 2019 Decision found that Ms. Goodgame did
not establish with persuasive evidence that her injury lasted more than six months.
The primary reason was that “Ms. Goodgame’s hand-written statement to Dr.
Slappey on June 23, 2015, indicates that she was not having any problems with her
left arm or her shoulders before having the car accident on June 6, 2015.”
Goodgame, 2019 WL 4165275, at *3. In addition, while receiving therapy during
the summer of 2015 for the injuries caused by the car accident, Ms. Goodgame did
not receive any treatment for left arm or shoulder pain or limited range of motion.
Ms. Goodgame requested an award of attorneys’ fees and costs, although her
initial motion presented no argument regarding her eligibility for attorneys’ fees
and costs. Pet’r’s Mot., filed Feb. 7, 2020. The Secretary, however, maintained
that Ms. Goodgame had not satisfied the reasonable basis standard. Resp’t’s
Resp., filed Mar. 13, 2020. In briefs filed after the Federal Circuit’s opinion in
Cottingham and after the Federal Circuit’s opinion in James-Cornelius, the parties
developed their arguments further.
The crux of the dispute is the value, if any, to be given to affidavits from Ms.
Goodgame and her daughter.3 Ms. Goodgame asserts that they constitute a form of
“objective evidence” that a special master must consider in evaluating whether
reasonable basis supports the claim set forth in the petition. Pet’r’s Notice of
Suppl. Authority, filed Feb. 3, 2021, at 3. Ms. Goodgame further maintains that
the affidavits support the reasonable basis of the assertion that her injury lasted
more than six months. Pet’r’s Suppl. Br. at 6.
In contrast, the Secretary argued that, under James-Cornelius, while
affidavits should be considered as part of the reasonable basis analysis, “the weight
afforded to them compared to the medical records need not be equal.” Resp’t’s 2d
3
Ms. Goodgame filed medical literature that supports a finding that a vaccination can
injure the recipient’s shoulder. Exhibits 28-29; see also Pet’r’s Suppl. Br., filed Sept. 30, 2020,
at 5. However, those articles do not address the critical issue, which is whether any injury Ms.
Goodgame suffered lasted more than six months.
Ms. Goodgame also mentions an October 10, 2018 MRI. Pet’r’s Suppl. Br., filed Sept.
30, 2020, at 5. But, that study carries negligible weight because it was prepared in the context of
litigation and more than three years after Ms. Goodgame informed Dr. Slappey that she was not
having any shoulder problems before the car accident.
4
Suppl. Resp., filed Mar. 9, 2021, at 2. The Secretary further argued that the
affidavit at issue, which was submitted three years after the events in question,
should be afforded less weight than the contemporaneous medical records, which
indicate that Ms. Goodgame’s injury did not persist for more than six months. Id.
at 3.
III. Standards for Adjudication.
Petitioners who have not been awarded compensation (like Ms. Goodgame
here) are eligible for an award of attorneys’ fees and costs when “the petition was
brought in good faith and there was a reasonable basis for the claim.” 42
U.S.C. § 300aa—15(e)(1). As the Federal Circuit has stated, “good faith” and
“reasonable basis” are two separate elements that must be met for a petitioner to be
eligible for attorneys’ fees and costs. Simmons v. Secʼy of Health & Human
Servs., 875 F.3d 632, 635 (Fed. Cir. 2017). Here, the Secretary has not raised a
challenge to Ms. Gordon’s good faith. Thus, the disputed issue is reasonable basis.
In Cottingham, the Federal Circuit stated that the evidentiary burden for
meeting the reasonable basis standard “is lower than the preponderant evidence
standard.” Something “more than a mere scintilla” might establish the reasonable
basis standard. 917 F.3d at 1356. Petitioners meet their evidentiary burden with
“objective evidence.” Id. at 1344. In categorizing medical records as objective
evidence, the Federal Circuit stated, “[m]edical records can support causation even
where the records provide only circumstantial evidence of causation.” Id. at 1346.
Finally, the Federal Circuit in Cottingham specified that “[w]e make no
determination on the weight of the objective evidence in the record or whether that
evidence establishes reasonable basis, for these are factual findings for the Special
Master and not this court.” Id. at 1347.
In its most recent opinion regarding the reasonable basis standard, the
Federal Circuit stated that medical records, affidavits, and sworn testimony all
constitute objective evidence to support reasonable basis. James-Cornelius v.
Sec’y of Health & Human Servs., 984 F.3d 1374, 1379-81 (Fed. Cir. 2021). The
Federal Circuit further clarified that “absence of an express medical opinion on
causation is not necessarily dispositive of whether a claim has reasonable basis.”
Id. at 1379 (citing Cottingham, 971 F.3d at 1346). These two most recent
decisions guide the analysis regarding what types of evidence constitute objective
evidence of reasonable basis, as originally articulated in Simmons, though the
ultimate weighing of such evidence is left up to the special master.
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IV. Analysis
Preliminarily, the outcome of the Entitlement Decision does not control the
result of Ms. Goodgame’s pending motion for attorneys’ fees and costs. The
Entitlement Decision weighed the evidence according to the preponderance of the
evidence standard. However, the evidentiary standard for determining reasonable
basis is less than the preponderance of the evidence. Chuisano v. Sec’y of Health
& Human Servs., No. 07-452V, 2013 WL 6324660, at *12-13 (Fed. Cl. Spec.
Mstr. Oct. 25, 2013), mot. for rev. denied, 116 Fed. Cl. 276 (2014).
Nevertheless, the reasoning in the Entitlement Decision regarding the weight
of the evidence remains valuable. The Entitlement Decision explained that some
evidence affirmatively showed that Ms. Goodgame informed her orthopedist that
she was not having shoulder pain before the June 6, 2015 car accident. This
statement is in Ms. Goodgame’s handwriting, meaning that there is no chance that
Dr. Slappey misunderstood a complaint or failed to document a complaint Ms.
Goodgame communicated to him orally. Exhibit 7 at 43. The presence of this
affirmative evidence showing no left shoulder or left arm problem might
distinguish cases in which the record is silent about any continuing injury.
To be sure, pursuant to binding Federal Circuit precent, the affidavits from
Ms. Goodgame and her daughter constitute evidence that should be considered in
evaluating the reasonable basis of the assertion that Ms. Goodgame’s injuries
lasted more than six months. James-Cornelius, 984 F.3d at 1380-81. These
affidavits mean that Ms. Goodgame has presented, in the words of the Federal
Circuit in Cottingham, “more than a mere scintilla” of evidence on this point.
The presence of “more than a mere scintilla” of evidence does not mandate a
finding of reasonable basis. This lesson is demonstrated by the Federal Circuit’s
earlier precedential opinion on reasonable basis, Perreira v. Secretary of Health &
Human Services. In that case, the Federal Circuit held that the Chief Special
Master could determine that a petitioner lacked reasonable basis, despite an expert
report, because “the expert opinion was grounded in neither medical literature nor
studies.” Perreira v. Sec’y of Health & Human Servs., 33 F.3d 1375, 1377 (Fed.
Cir. 1994). “Perreira demonstrates that special masters enjoy discretion to find that
a claim lacked a reasonable basis when the evidence on which the petitioner relies
(there, an expert’s report) is rooted in unsupported speculation.” Ellis v. Sec’y of
Health & Human Servs., No. 13-336V, 2019 WL 3315326, at *4 (Fed. Cl. Spec.
Mstr. June 24, 2019). The Federal Circuit provided the “reasonable basis”
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standard with some teeth in Perreira, by declaring: “Congress must not have
intended that every claimant, whether being compensated or not under the Vaccine
Act, collect attorneys’ fees and costs by merely having an expert state an
unsupported opinion.” 33 F.3d at 1377.
It appears that the testimony of an expert constitutes “more than a mere
scintilla” of evidence. If so, then Perreira shows that a petitioner could present
some evidence regarding causation and yet not satisfy the reasonable basis
standard. Likewise, in the present case, Ms. Goodgame’s submission of some
evidence supporting the assertion that her injury lasted more than six months
(namely the affidavits) does not carry her burden regarding reasonable basis
automatically. Again, Ms. Goodgame’s burden regarding reasonable basis is less
than the preponderance of the evidence standard.
In Ms. Goodgame’s affidavit, she maintains “[s]ix months following my
vaccination, . . . I still experienced intermittent pain and limited range of motion to
my left shoulder that is the same type of pain I experienced after my vaccination.”
Exhibit 14 ¶ 10. However, she does not address her handwritten statement to Dr.
Slappey that she was not having shoulder or left arm pain before the car accident.
See id. ¶ 8. Similarly, she does not explain why she did not seek medical attention
for alleged shoulder problem while she was receiving physical therapy during
summer 2015. See id. These omissions reduce the evidentiary value of Ms.
Goodgame’s affidavit. The affidavit from her daughter, Erin Lightfoot, suffers
from the same problems. See exhibit 15.
Evidence that Ms. Goodgame was not having shoulder problems, including
her statement to Dr. Slappey and her failure to seek medical attention for the
shoulder pain, carries significant evidentiary value. Cucuras v. Sec’y of Health &
Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993). This evidence outweighs the
contrary evidence. See Lamarre v. Sec’y of Health & Human Servs., No. 17-10V,
2019 WL 7556396, at *12-13 (Fed. Cl. Spec. Mstr. Nov. 6, 2019) (declining to
find affidavits supported an injury lasted six months where contemporaneous
medical records contradicted the assertions in the affidavits). As such, Ms.
Goodgame has not established the reasonable basis for the claim that the
vaccination caused her a lasting injury.
V. Conclusion
Although Ms. Goodgame submitted some evidence indicating that she
endured a shoulder problem for more than six months, this evidence does not rise
to the level to satisfy the reasonable basis standard. Ms. Goodgame, therefore, is
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not eligible for an award of attorneys’ fees and costs. The Clerk’s Office is
instructed to enter judgment in accord with this decision unless Ms. Goodgame
files a motion for review.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
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