Liu v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 10-55V
Filed: April 19, 2019
To be Published
*************************************
SHINGSHAN LIU and SUE WANG LIU, *
as Personal Representatives of the Estate of *
DAN LIU, Deceased, *
*
Petitioners, * Attorneys’ fees and costs decision;
v. * Perreira; reasonable basis lost during
* proceedings
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
*************************************
F. John Caldwell, Jr., Sarasota, FL, for petitioners.
Althea W. Davis, Washington, DC, for respondent.
MILLMAN, Special Master
DECISION AWARDING PARTIAL ATTORNEYS’ FEES AND COSTS1
On January 27, 2010, petitioners filed a petition under the National Childhood Vaccine
Injury Act, 42 U.S.C. §§ 300aa-10–34 (2012), alleging that Menactra (meningococcal) vaccine
administered to their son Dan Liu on May 30, 2008, caused an adverse reaction leading to his
death on June 22, 2008. Pet. at ¶ 11. On July 19, 2018, petitioners moved for dismissal. On
the same day, the undersigned dismissed the case. On October 30, 2018 petitioners filed a
motion for attorneys’ fees and costs. On December 21, 2018, respondent filed a response. On
January 29, 2019, petitioners filed a reply.
BACKGROUND
On February 22, 2010, petitioners filed part of Dan’s medical records, including his
1
Vaccine Rule 18(b) states that all decisions of the special masters will be made available to the public unless they
contain trade secrets or commercial or financial information that is privileged and confidential, or medical or similar
information whose disclosure would constitute a clearly unwarranted invasion of privacy. This means the decision
will be available to anyone with access to the Internet. When such a decision is filed, petitioner has 14 days to
identify and move to redact such information prior to the document’s disclosure. If the special master, upon
review, agrees that the identified material fits within the banned categories listed above, the special master shall
redact such material from public access.
autopsy report and death certificate. Exs. 1-8.
During the initial status conference held on April 1, 2010, the undersigned ordered
petitioners to file the police report and affidavits from each petitioner. Petitioners’ counsel
orally moved for subpoena authority to obtain any and all records from Dr. Mofida Elsafty
concerning the care and treatment of Dan. The undersigned granted the informal motion. On
April 29, 2010, petitioner filed the Westfield Police Report and notice indicating there were no
records found for Dan from Dr. Elsafty. Exs. 9-10.
On May 13, 2010, a status conference was held. The undersigned ordered petitioners to
file additional medical records and affidavits from each of the petitioners.
On June 14, 2010, a status conference was held. The undersigned ordered petitioners to
file their affidavits by July 14, 2010 and file an expert report by September 14, 2010.
Respondent’s Rule 4(c) Report was due by July 14, 2010.
On July 13, 2010, petitioners moved for an enlargement of time by thirty days to file
affidavits from each petitioner. The undersigned granted the motion for an enlargement of time
to file petitioners’ affidavits. The undersigned ordered petitioners to file additional medical
records by August 12, 2010.
On July 14, 2010, respondent filed his Rule 4(c) Report, stating that this case was not
appropriate for compensation.
On August 12, 2010, petitioners filed their affidavits and additional medical records from
Goryeb Children’s Hospital. Exs. 11-13. In their affidavits, petitioners described Dan’s
condition in the three weeks after his vaccination on May 30, 2008 and before his death on June
22, 2008. Dan’s father, Shingshan Liu, recalled that Dan suffered from a bad headache and
fever of 101 degrees Fahrenheit the day after vaccination. Ex. 12, at 1. Mr. Liu affirmed that
Dan continued to go to school despite his condition, but stayed home for one day on June 9,
2008. Id. at 1-2. Mr. Liu also affirmed that Dan’s temperature lowered by June 10, 2008 and
Dan never returned to his Karate class post-vaccination. Id. at 2. Dan’s mother, Sue Liu, stated
that between May 31, 2008 and June 22, 2008, “Dan seemed not himself.” Ex. 13, at 2. Mrs.
Liu described Dan as suffering from bad headaches, fatigue, poor appetite, and overall tiredness.
Ex. 13, at 2-4. Petitioners both stated on the night before his death, Dan lifted weights, but less
than what he could do previously before May 30, 2008. Ex. 12, at 2; Ex. 13, at 4. Mr. Liu
stated that petitioners planned to take Dan to see the doctor. Ex. 12, at 2.
On September 14, 2010, petitioners filed a motion for an extension of time to file their
expert report by November 15, 2010. The undersigned granted petitioners’ motion. On
November 15, 2010, petitioners filed a second motion for an extension of time to file an expert
report by December 30, 2010. The undersigned granted petitioners’ motion.
On December 30, 2010, petitioners filed a third motion for an extension of time to file an
2
expert report. During a status conference held on January 6, 2011, the undersigned granted the
motion for petitioners to file an expert report by April 1, 2011. On April 1, 2011, petitioners
filed a fourth motion for an extension of time until June 1, 2011 to file an expert report. The
undersigned granted petitioners’ motion on April 6, 2011.
On May 25, 2011, petitioners orally moved to stay the deadline for filing their expert
report. Respondent did not object. The undersigned granted the motion and additionally,
ordered petitioners to inform the undersigned of the status of obtaining an expert report at the
next status conference set for August 30, 2011.
During the status conference held on August 30, 2011, petitioners’ counsel reported that
petitioners were in the process of obtaining additional organ samples and autopsy photographs
from the Union County medical examiner in order to send them to their pathological expert, Dr.
Douglas C. Miller.
During a status conference held on October 11, 2011, petitioners’ counsel reported that
he was sending Dr. Miller photos of Dan’s autopsy and the Union County coroner would work
with Dr. Miller to provide him with new tissue samples from the autopsy.
During a status conference held on November 15, 2011, petitioners’ counsel reported that
he requested additional tissue samples of Dan’s brain from the medical examiner’s office for Dr.
Miller to determine cause of death.
A status conference was held on December 16, 2011. Petitioners did not receive the
tissue samples from the medical examiner’s office.
A status conference was held on January 19, 2012. Petitioners’ counsel reported that the
tissue blocks were sent to Dr. Miller for analysis.
On March 13, 2012, petitioners’ counsel stated during a status conference that Dr. Miller
had the tissue samples and new slides were being cut in order for Dr. Miller to examine the
brainstem structures.
During the status conference on April 12, 2012, petitioners’ counsel reported that Dr.
Miller was still reviewing the new autopsy slides. Petitioners’ counsel gave Dr. Miller a
deadline of May 14, 2012 to formulate an opinion.
A status conference was held on May 25, 2012. Petitioners’ counsel conveyed that Dr.
Miller believed Dan died of severe and rapid brain swelling, not of cardiac arrhythmia.
Petitioners’ counsel were consulting with a neurologist about what caused the rapid swelling.
The undersigned stated that petitioners’ neurologist should address the gap in timing between
when Dan received the vaccine on May 30, 2008 and when Dan died of rapid brain swelling on
June 22, 2008. The undersigned ordered petitioners to file Dr. Miller’s report by June 8, 2012
and the neurologist expert report by July 23, 2012.
3
On June 5, 2012, petitioners filed Dr. Miller’s expert report. Ex. 14. In his report, Dr.
Miller essentially criticized the medical examiner Dr. Hua’s inadequate autopsy of Dan, stating
that Dr. Hua’s conclusion that Dan died due to cardiac arrhythmia was “informed speculation
and not to a reasonable medical probability.” Id. at 2. Dr. Miller noted that Dan’s heart was
abnormally heavy, but even so, arrhythmia would not be considered as a primary cause of death.
Id. Because Dan’s brain was severely heavy, Dr. Miller opined “that the cause of death in this
case is primarily brain swelling with brainstem compression.” Id. at 4. Dr. Miller noted that,
even though it cannot be completely excluded, it is “implausible that the small amount of
meningitis present at the time of death was responsible for the cerebral edema,” and that “[w]hile
at first the finding of meningitis in brain sections from Dan Liu might throw suspicion upon the
vaccine, in fact this makes no sense…. The vaccine did not infect Dan Liu with an organism or
virus causing meningitis.” Id. Dr. Miller concluded that “to a reasonable degree of medical
probability, the cause of Dan Liu’s death was cerebral edema from some unknown catastrophic
cause… with death occurring rapidly from onset, certainly no more than about two hours and
quite possibly in only minutes.”2 Id. at 5.
On July 23, 2012, petitioners filed a motion for extension of time to file another expert
report. The undersigned granted the motion. On September 24, 2012, petitioners filed a second
motion for extension of time to file an expert report. The undersigned granted the motion. On
November 26, petitioners filed a third motion for extension of time to file an expert report. The
undersigned granted the motion.
On December 26, 2012, petitioners filed the expert report of Dr. Yehuda Shoenfeld. Ex.
16. In Dr. Shoenfeld’s expert report, in support of vaccine causation, he claimed that Dr. Miller
“indicated [an] immune system (reactive) cell infiltration to the brain,” and further, that Dr.
Miller described Dan’s death as a “cascade of inflammation the morning of his death, leading to
significant edema (as evidenced by the substantial brain weight noted on autopsy).” Id. at 4.
The undersigned considered this statement as not reflective of Dr. Miller’s report which stated
the cause of death was from minutes to at most two hours before Dan died, not three weeks
before.
A status conference was held on January 16, 2013. The undersigned discussed Dr.
Shoenfeld’s expert report with the parties. Dr. Shoenfeld concluded that meningococcal vaccine
induced an immunological reaction in Dan’s brain that caused his brainstem compression and
death. The undersigned ordered respondent to (1) file an expert report, (2) engage in settlement
negotiations, or (3) file an expert report and engage in settlement negotiations.
2
The undersigned has the impression that petitioners’ counsel never read Dr. Miller’s expert report before he filed it
on June 5, 2012. If he had read it, why would he file it since Dr. Miller says the vaccination had nothing to do with
Dan’s death, and the death process lasted at most two hours before he died and was due to brain edema. If Mr.
Caldwell had read Dr. Miller’s expert report, he should have sent it to petitioners and suggested they agree to
dismiss the case. If they refused, Mr. Caldwell should have withdrawn from the case. Instead, petitioners’ counsel
prolonged a case without reasonable basis for another six years.
4
During a status conference on January 30, 2013, respondent requested additional records
regarding Dan’s condition prior to his death including his school, extracurricular, and
psychology records. Dan’s psychology records were received via email. Petitioners asserted
that they would file Dan’s high school records and extracurricular records, as well as retrieve
affidavits from Dan’s physical education teacher, martial arts teacher, and friends about how Dan
was behaving before and after the date of Dan’s vaccination.
During a status conference on March 20, 2013, petitioners reported that they were still in
the processing of filing Dan’s high school records and attempting to contact and obtain affidavits
from Dan’s friends and martial arts teacher.
On April 22, 2013, a status conference was held. Petitioners reported that Dan’s high
school records were incomplete and therefore, they would request complete records. The
undersigned ordered petitioners to file affidavits by Dan’s friends and sensei by May 22, 2013.
On May 23, 2013, petitioners filed an affidavit from Angel Albanese, Dan’s martial arts
teacher. On the same day, petitioners filed a motion for an extension of time to file affidavits by
June 24, 2013. The undersigned granted petitioners’ motion.
On June 11, 2013, petitioners filed affidavits from Alice Li, Dan’s family friend and
classmate, and Xinyi Zhang, Dan’s close friend. Exs. 62-63. In both affidavits, neither could
recall any changes in Dan or anything unusual about Dan after May 30, 2008, the date of
vaccination.
On June 28, 2013, a status conference was held and subsequently, on July 1, 2013, the
undersigned issued an Order stating the undersigned’s difficulties with this case. Specifically,
the undersigned noted that Dr. Shoenfeld’s basis for his expert opinion relied on Dan
manifesting, during the three weeks after vaccination, an inflammatory process that caused him
fatigue, lethargy, and a headache, which culminated in brain edema. Doc 54. However, the
affidavits filed, aside from petitioners’, did not support Dan displaying such conditions during
the three weeks after vaccination and before death. Id.
During a status conference held on August 15, 2013, the undersigned reviewed the
weaknesses in this case. The undersigned stated that Dr. Shoenfeld’s expert opinion that Dan
was manifesting an inflammatory process over three weeks prior to his death failed to address
Dr. Miller’s expert opinion that Dan suffered cerebral edema from an unknown catastrophic
cause that caused his death rapidly from onset. Doc 55. The undersigned questioned Dr.
Shoenfeld’s failure to discuss accurately Dr. Miller’s opinion regarding onset of inflammation.
Id. at 1-2. The undersigned also questioned Dan’s ability to attend school, complete his
projects, and take his examinations if the inflammatory process were occurring in Dan for over
three weeks as Dr. Shoenfeld posited. Id. at 2. The undersigned ordered petitioners’ counsel to
present three options to petitioners: (1) move to dismiss this case; (2) attempt to reach a litigative
risk settlement; or (3) continue on the current course based on Dr. Shoenfeld’s theory of
causation. Id.
5
On September 24, 2013, a status conference was held. Petitioners’ counsel stated that
there were no additional school records to obtain, but he would file Dan’s final report card by
November 8, 2013. In addition, petitioners would provide respondent a list of Dan’s teachers
and their contact information for depositions.
On November 8, 2013, petitioners filed Dan’s high school transcript record. Ex. 64.
On the same day, respondent filed a motion for an extension of time to file affidavits or
depositions of Dan’s teachers.
On November 12, 2013, the undersigned granted respondent’s motion for an extension of
time until December 23, 2013 to obtain and file statements or depositions from Dan’s teachers.
A status conference was held on the same day. The undersigned discussed Judge Bruggink’s
decision in Allen v. Secretary of Health and Human Services, 24 Cl. Ct. 295 (1991), where a
conclusion of vaccination causation can be legitimately drawn where there is an observable and
relatively uninterrupted progression from vaccination to death. The undersigned ordered the
parties to consider whether Dan’s brain inflammation had observable effects over the three
weeks after vaccination and whether those effects indicated a relatively uninterrupted
progression.
On December 23, 2013, respondent filed a second motion for an extension of time to file
affidavits or depositions of Dan’s teachers. On January 2, 2014, the undersigned granted
respondent’s second motion for an extension of time to file the statements or depositions of
Dan’s teachers by February 18, 2014.
On February 12, 2014, respondent filed a Statement of Molly Dennis, Dan’s former AP
Biology teacher, and a status report stating the results of respondent’s efforts in contacting Dan’s
teachers. According to Ms. Dennis’ statement, she did not recall any differences or notable
changes in Dan during the time he was her student in 2007 to 2008. Ex. A, at 1. According to
respondent’s status report, Dan’s high school’s principal at the time, Peter Renwick, started his
position after Dan’s death and, thus, did not know Dan. Doc 62, at 2. Since two of Dan’s
teachers retired and were unavailable to speak with respondent, Ms. Dennis was the only teacher
from whom respondent was successful in obtaining a statement. Id. at 2-3.
On March 10, 2014, a status conference was held. During the status conference, the
undersigned and counsel discussed the difficulties of this case, specifically Dr. Shoenfeld
attributing falsely statements to Dr. Miller and how Dr. Shoenfeld ignored salient aspects of Dr.
Miller’s report to reach his conclusion.3 Also, respondent reminded the undersigned that
petitioners’ affidavits differed from their statements4 to the police on the day of Dan’s death.
3
The undersigned has the impression that petitioners’ counsel never read Dr. Shoenfeld’s expert report before he
filed it on December 26, 2012. If he had read it, why would he file it since Dr. Shoenfeld attributed statements to
Dr. Miller that Dr. Miller never made in his expert report. Mr. Caldwell eventually moved to strike the report at the
undersigned’s order.
4
According to the police report, petitioners stated that Dan felt and acted normally before going to bed the night
6
Doc 64.
Following the status conference on March 13, 2014, the undersigned issued an Order that
discussed the issues in this case and granted petitioners’ counsel’s request to file supplemental
expert reports from both Dr. Miller and Dr. Shoenfeld. In her order, the undersigned
summarized the records filed in this case including the police report, petitioners’ affidavits
regarding Dan’s condition during the three weeks after vaccination, Dr. Miller’s findings and
conclusions, and Dr. Shoenfeld’s disparate opinion. Id.
On April 25, 2014, petitioners filed a motion for an extension of time to file
supplemental expert reports. On April 28, 2013, the undersigned granted the motion for an
extension of time until June 27, 2014 for petitioners to file supplemental expert reports.
On June 27, 2014, petitioners filed a second motion for an extension of time to file a
supplemental expert report or a motion to withdraw/substitute counsel. The motion stated that
petitioners and petitioners’ counsel have amicably parted ways and petitioners’ counsel
anticipated filing a motion to withdraw/substitute counsel or filing a supplemental expert report
by August 26, 2014. On July 1, 2014, after discussing the motion during the status conference,
the undersigned granted in part and denied in part petitioners’ motion for an extension of time.
During the status conference on July 1, 2014, petitioners’ counsel reported that Dr. Miller
provided a supplemental expert report in which Dr. Miller opined that Dan’s vaccination did not
cause his death. The undersigned ordered petitioners to file the supplemental expert report and
any medical literature cited in the report by July 1, 2014. While petitioners had consulted with
other doctors and wished to pursue an alternative theory of causation, petitioners’ counsel did not
want to pursue the case further. Since Dr. Shoenfeld’s report did not reflect accurately Dr.
Miller’s expert report and the facts in this case, the undersigned ordered petitioners to inform the
court whether they wish to strike Dr. Shoenfeld’s expert report by July 8, 2014. The
undersigned also ordered that if petitioners did not move to dismiss their petition by August 26,
2014, the undersigned would issue an Order to Show Cause.
On July 1, 2014, petitioners filed Dr. Miller’s supplemental expert report reiterating his
expert opinion that the cause of Dan’s death was cerebral swelling with brainstem compression.
Ex. 65, at 2.
On July 8, 2014, petitioners filed a motion to strike Exhibit 16 (Dr. Shoenfeld’s expert
report) and 17 (Dr. Shoenfeld’s curriculum vitae). The undersigned granted the motion on the
same day.
On August 26, 2014, a status conference was held. Petitioners’ counsel found a
cardiologist, Dr. Robert Waugh, to prepare an expert report. The undersigned reminded
petitioners’ counsel that, according to Dr. Miller, the diagnosis of cardiac arrhythmia as the
cause of Dan’s death was informed speculation. Respondent’s counsel requested Dr. Miller’s
before his death. Ex. 9, at 5.
7
slides from tissue blocks and information regarding his methodology in making the slides in
order to prepare respondent’s expert report. The undersigned ordered petitioners to file Dr.
Waugh’s expert report by October 20, 2014.
On October 20, 2014, petitioners filed a motion for an extension of time until November
20, 2014 to file Dr. Waugh’s expert report. On the same day, the undersigned granted the
motion. On November 20, 2014, petitioners filed a second motion for an extension of time until
December 22, 2014 to file Dr. Waugh’s expert report. On November 24, 2014, the undersigned
granted the motion for an extension time. On December 22, 2014, petitioners filed a third
motion for an extension of time until January 21, 2015 to file Dr. Waugh’s expert report. On
December 29, 2014, the undersigned granted the motion. On January 21, 2015, petitioners filed
a fourth motion for an extension of time until February 13, 2015 to file Dr. Waugh’s expert
report. On January 23, 2015, the undersigned granted the motion. On February 13, 2015,
petitioners filed a fifth motion for an extension of time until February 20, 2015 to file Dr.
Waugh’s expert report. On February 18, 2015, the undersigned granted the motion.
Petitioners filed Dr. Waugh’s expert report on February 20, 2015. Ex. 66. On March 3,
2015, petitioners filed a motion to strike and refile Dr. Waugh’s expert report because the initial
filing was unsigned. Doc 84. The undersigned granted the motion on the same day and
petitioners refiled Dr. Waugh’s expert report on March 4, 2015.
During a status conference on February 25, 2015, the undersigned reviewed Dr. Waugh’s
expert report with the parties. Dr. Waugh concluded that Dan died from eosinophilic
myocarditis, relying on an article consisting of two case reports. The undersigned ordered
respondent to file a status report stating how respondent wished to proceed with the case after
reviewing Dr. Waugh’s expert report.
On March 27, 2015, respondent filed a status report stating that respondent was
continuing to evaluate Dr. Waugh’s expert report. Respondent requested additional time to
determine whether respondent wanted to file a responsive expert report or to resolve this case
informally. The undersigned granted respondent’s request on March 30, 2015, giving
respondent until May 4, 2015 to file another status report to state respondent’s position.
On May 4, 2015, respondent filed a status report stating that an informal resolution was
not appropriate and respondent intended to file a responsive expert report to Dr. Waugh’s expert
report.
On June 15, 2015, respondent filed a responsive expert report by Dr. Laurence Sperling,
expert cardiovascular reviewer. Dr. Sperling opined that Dr. Waugh’s diagnosis that Dan had
“eosinophilic myocarditis cannot be substantiated by the available evidence including clinical
and anatomic data.” Ex. B, at 4. Moreover, Dr. Sperling noted that there was no evidence of
myocarditis and that “[e]sosinophils within the lungs which were noted by Dr. Miller can be
consistent with a known history of asthma.” Id. Dr. Sperling concluded that “it is highly
unlikely that the administration of the vaccine resulted in or had any causal or significant effect
8
on Dan Liu’s cardiovascular status or death.” Id. at 5.
During a status conference on June 19, 2015, the undersigned discussed Dr. Sperling’s
responsive expert report with the parties. Petitioners wished to file a responsive expert report
from Dr. Waugh and respondent objected to prolonging this case with another supplemental
expert report. Citing to Vaccine Rule 3(b)(2), the undersigned discussed that she must give each
side a “full and fair opportunity” to present their or his case.
On August 3, 2015, petitioners filed Dr. Waugh’s supplemental expert report responding
to Dr. Sperling’s responsive expert report. Dr. Waugh disagreed with Dr. Sperling, stating that
the absence of histological evidence of eosinophilic myocarditis does not preclude the diagnosis.
Ex. 70, at 1. Instead, Dr. Waugh posited that “inflammation itself is sufficient to cause cardiac
instability and arrest” and in Dan’s case, based on his “pre-death’s symptoms of low grade fevers
and general malaise … [Dr. Waugh] believes [Dan] had an eosinophilic myocarditis that led to
cardiac instability, arrhythmia, and death.” Id.
On August 13, 2015, the undersigned discussed Dr. Waugh’s supplemental expert report
with the parties during a status conference. The undersigned stated that the parties can either
settle or the case can proceed to hearing. Respondent’s counsel reported that she will convey
any demand she receives from petitioners, but did not know whether respondent was receptive to
settlement negotiations. The undersigned then ordered petitioners to communicate a demand to
respondent and file a status report indicating such by September 14, 2015.
On September 14, 2015, petitioners filed a status report stating that petitioners
transmitted a demand to respondent. Petitioners requested filing a joint status report on the
progress of settlement negotiations. The undersigned denied petitioners’ request in light of the
scheduled status conference.
On October 15, 2015, a status conference was held. Respondent’s counsel stated that
respondent wants to defend the claim and the parties requested an entitlement hearing.
On November 6, 2015, the undersigned issued a Pre-Hearing Order, setting a one-day
entitlement hearing for February 26, 2016.
On January 26, 2016, respondent filed a prehearing brief. On January 29, 2016,
petitioners filed their prehearing brief along with medical literature (Exs. 72-117).
On February 4, 2016, the undersigned and the parties discussed the prehearing
submissions that petitioners filed during a status conference. Respondent’s counsel stated that
petitioners’ prehearing brief and medical articles presented a more detailed theory of causation
than what Dr. Waugh had discussed, including a theory that molecular mimicry caused Dan’s
death. The undersigned discovered that Amber Wilson, petitioners’ counsel’s associate, who
has a doctorate in cellular pharmacology and a master’s degree in genetics, co-authored
petitioners’ prehearing brief. Respondent’s counsel requested the undersigned postpone the
9
hearing in order for Dr. Sperling to prepare adequately for the hearing given petitioners’ recent
filings and different theory of causation. The undersigned, again, cited to Vaccine Rule 3(b)(2),
which required the undersigned to give each party a “full and fair opportunity” to present their or
his case. The undersigned cancelled the hearing scheduled for February 26, 2016 and ordered
petitioners to ask Dr. Waugh to write a third expert report stating whether he concurs with the
theories submitted in petitioners’ prehearing brief.
On March 4, 2016, petitioners filed another supplemental expert report from Dr. Waugh,
which stated that Dr. Waugh agreed and adopted the medical discussions in petitioners’
prehearing brief. Dr. Waugh reiterated that he believed “to a reasonable degree of medical
probability, the Menactra vaccine was a substantial factor in bringing about the cardiac event that
resulted in the death of Dan Liu.” Ex. 118, at 1.
On March 14, 2016, a status conference was held. Respondent’s counsel was concerned
with Dr. Waugh’s concurrence with medical theories relating to immunology when Dr. Waugh is
a cardiologist. Petitioners’ counsel requested having Dr. M. Eric Gershwin, an immunologist,
write an expert report for petitioners. Respondent’s counsel expected to file a responsive expert
report from an immunologist if petitioners filed an expert report from Dr. Gershwin.
On May 26, 2016, a status conference was held. The undersigned ordered petitioners to
file Dr. Gershwin’s expert report by June 28, 2016.
On June 2, 2016, petitioners filed Dr. Gershwin’s expert report. Dr. Gershwin opined he
knew nothing about eosinophilic myocarditis but relied on Dr. Waugh that Dan died from it.
Dr. Gershwin relied on medical articles to posit that after receiving the vaccine, Dan “developed
a cytokine-driven, tissue-specific accumulation of eosinophils.” Ex. 119, at 6. In his report,
Dr. Gershwin discussed hypersensitivity cardiomyopathies, where “it is common for patients to
die suddenly” and “it is generally believed that such inflammatory myocardial lesions are related
to a drug reaction.” Id. at 2. Dr. Gershwin stated that for Menactra vaccines, “[a]llergic
reactions have been described but eosinophilic cardiomyopathy would be extremely rare” and, in
Dan’s case, the tissue specificity seen would make it difficult to explain. Id. at 5. However,
Dr. Gershwin noted that “[a] vaccine should be considered the same as any foreign substance”
that can produce tissue-specific reactions. Id. at 5-6.
On June 28, 2016, a status conference was held where the undersigned discussed Dr.
Gershwin’s expert report with the parties. Petitioners’ counsel was in the process of sending
respondent the requested autopsy slides and the slides created by Dr. Miller. The undersigned
ordered respondent to file responsive expert reports by September 23, 2016.
On September 22, 2016, respondent filed a motion for an extension of time until October
24, 2016 to file expert reports. On the same day, the undersigned granted respondent’s motion.
On October 21, 2016, respondent filed a second motion for an extension of time until November
7, 2016 to file expert reports. On October 24, 2016, the undersigned granted respondent’s
motion.
10
On November 7, 2016, respondent filed a supplemental expert report from Dr. Sperling
and an expert report from Dr. Noel Rose, immunologist. Dr. Sperling concluded that “it is
highly unlikely that the administration of the vaccine resulted in or had any causal or significant
aggravating effect on Dan Liu’s cardiovascular status or death.” Ex. D, at 3. Regarding Dan’s
heart, Dr. Rose stated that “there was neither evidence of myocyte disarray nor inflammatory
heart disease, virtually excluding acute or chronic myocarditis of any type. Specifically, there
was no evidence of eosinophilic myocarditis.” Ex. E, at 6. Dr. Rose opined that there was no
causal connection between Menactra vaccination and Dan’s death. Id. Both doctors explained
that the eosinophilic material found in Dan’s lungs could be consistent with chronic asthma or
allergies. Ex. D, at 2; Ex. E, at 2.
On November 14, 2016, a status conference was held. The undersigned discussed Dr.
Sperling’s and Dr. Rose’s expert reports. Petitioners’ counsel requested time for Dr. Waugh and
Dr. Gershwin to review respondent’s experts’ reports. The undersigned ordered petitioners to
file supplemental expert reports by January 20, 2017, if petitioners’ expert Dr. Gershwin wished
to reply.
On January 20, 2017, petitioners filed Dr. Gershwin’s supplemental expert report. Ex.
126. Dr. Gershwin mischaracterized respondent’s experts’ opinions as being in agreement that
Dan died from cardiac arrhythmia. Id. at 1. He continued to adhere to his original opinion.
Id.
On January 30, 2017, a status conference was held. The undersigned discussed Dr.
Gershwin’s supplemental expert report with the parties. Petitioners wanted to proceed with an
entitlement hearing. The undersigned ordered the parties to provide available dates for hearing
by March 1, 2017.
On March 1, 2017, the undersigned granted a joint motion for an extension of time until
March 22, 2017 to provide available dates for an entitlement hearing.
On March 23, 2017, the undersigned issued a Pre-Hearing Order, setting a two-day
entitlement hearing to start on March 7, 2018.
On April 27, 2017, a status conference was held. Petitioners’ counsel reported that
petitioners were looking for a cardiologist to replace Dr. Waugh, who was in hospice and would
not be able to participate further in this case. The undersigned stated that there were certain
difficulties with this case including Dr. Waugh’s opinion that Dan had eosinophilic myocarditis
when there was no evidence of eosinophils in Dan’s heart. The undersigned encouraged
petitioners’ counsel to speak with petitioners about dismissing the case.
On June 7, 2017, a status conference was held. Petitioners’ counsel reported that
petitioners retained a cardiologist to review the records and if the cardiologist’s opinion did not
support this case, petitioners’ counsel would move to dismiss the case. The undersigned
11
ordered petitioners to file either an expert report or the appropriate pleading to dismiss the case
by August 7, 2017.
On August 7, 2017, petitioners filed a motion for an extension of time until August 21,
2017 to file an expert report. On the same day, the undersigned granted petitioners’ motion.
On August 21, 2017, petitioners filed an expert report from Dr. Frederick Yturralde, a
cardiologist. Dr. Yturralde concluded that “within a reasonable degree of medical probability,
that the [Menactra] vaccine did, in fact, cause Dan’s death.” Ex. 128, at 1. Dr. Yturralde
opined that Dan had fulminant myocarditis, rather than eosinophilic myocarditis as Dr. Waugh
opined. Dr. Yturralde stated that “the fatigue, loss of appetite, fevers, and the fact that [Dan] no
longer had the stamina to engage in martial arts or weight lifting, all point toward progressive
heart failure due to fulminant myocarditis,” and “[t]he final finding supporting fulminant
myocarditis was the thickened septum found on autopsy.” Id. at 2. Dr. Yturralde stated he
could not prove causation from the vaccine and deferred that opinion to an immunologist.
On August 24, 2017, the undersigned issued an order giving petitioners until September
29, 2017 to file a second supplemental expert report from Dr. Gershwin discussing whether or
not Menactra vaccine can cause fulminant myocarditis and, if so, whether three weeks was an
appropriate interval that would fit within petitioners’ causation theory.
On September 29, 2017, petitioners filed Dr. Gershwin’s second supplemental expert
report. Dr. Gershwin stated that he reviewed Dr. Yturralde’s report and believed that the
thickened septum, as Dr. Yturralde pointed out, was consistent with inflammation and
eosinophilic myocarditis. Ex. 130, at 1. Dr. Gershwin repeated his findings in his first report
and added that he continued to “opine that the septal defect is due to tissue-specific accumulation
of inflammatory cells, of which eosinophils would be dominant.” Id. He concluded by
emphasizing that “there was no history of viral infection, nor was there any evidence of any
other environmental factor,” and “that reactions such as this are extremely rare and unpredictable
and illustrate the diversity of the immune system and the unique promiscuous response of an
individual.” Id.
On October 24, 2017, the undersigned issued an order and filed Court Exhibit 1, an
article discussing low-grade inflammation relating to hypertrophic cardiomyopathy. In her
Order of October 24, 2017, the undersigned did not make a finding that Dan had hypertrophic
cardiomyopathy.
On November 30, 2017, respondent filed a motion for an extension of time until
December 15, 2017 to file two supplemental expert reports. On the same day, the undersigned
granted respondent’s motion.
On December 8, 2017, a status conference was held. Respondent reported that, since Dr.
Sperling could no longer participate in this case, respondent intended to file an expert report
from respondent’s new cardiologist. The undersigned ordered respondent to file a status report
12
by January 8, 2018 to let the court knows when a new expert report would be filed. After
reviewing and discussing petitioners’ expert reports and cited medical literature, the undersigned
questioned how it was possible that a tissue-specific accumulation of eosinophils can explain
Dan’s thickened septum when Dan did not have eosinophils in his heart. Moreover, Dr.
Gershwin’s second supplemental report did not reflect the change in petitioners’ theory from
eosinophilic myocarditis to fulminant myocarditis. The undersigned then ordered petitioners to
file a status report by December 22, 2017 stating petitioners’ view on (1) striking medical
literature referenced in Dr. Shoenfeld’s stricken expert report; (2) striking Dr. Waugh’s expert
report and cited medical literature; and (3) striking Dr. Gershwin’s second supplemental expert
report.
On December 21, 2017, petitioners filed a status report requesting the undersigned to
strike only the cited medical literature in Dr. Shoenfeld’s expert report. On December 22, 2017,
the undersigned granted petitioners’ informal motion to strike.
On January 8, 2018, respondent filed a status report notifying the undersigned that
respondent expected to file an expert report from respondent’s new cardiologist by March 16,
2018.
On January 19, 2018, a status conference was held. In light of the change of expert
witnesses for both parties, the undersigned cancelled the hearing that was scheduled for March 7-
8, 2018.
On March 14, 2018, respondent filed a motion for an extension of time until March 28,
2018 to file an expert report. On the same day, the undersigned granted respondent’s motion.
On March 23, 2018, respondent filed an expert report from Dr. Scott Yeager, a
cardiologist. Dr. Yeager stated, “The finding of eosinophilic proteinaceous fluid in the lungs is
a nonspecific observation of pink stained fluid that has no relationship to a hypersensitivity
reaction. It appears that both Dr. Gershwin, Dr. Waugh, and possibly Dr. Sperling misinterpreted
this finding as describing actual eosinophils in the lungs.” Ex. G, at 3-4. Dr. Yeager concluded
that in his neuropathologic opinion and to a reasonable degree of medical certainty, Dan’s cause
of death was cerebral edema and that the Menactra vaccine did not contribute to Dan’s death in
any significant way. Id. at 9.
On April 9, 2018, a status conference was held. The undersigned discussed Dr. Yeager’s
expert report and Dr. Gershwin’s supplemental expert report with the parties. The undersigned
stated that Dr. Gershwin did not support the theory that Menactra vaccine could cause fulminant
myocarditis in support of Dr. Yturralde’s theory. The undersigned ordered petitioners to file Dr.
Yturralde’s responsive expert report by June 8, 2018 and Dr. Gershwin’s third supplemental
expert report by July 9, 2018.
On June 6, 2018, petitioners filed a motion for an extension of time until June 11, 2018 to
file Dr. Yturralde’s responsive expert report. On the same day, the undersigned granted
13
petitioners’ motion.
On June 11, 2018, petitioners filed the responsive expert report from Dr. Yturralde. Ex.
131. Dr. Yturralde stayed with his conclusion that Dan had fulminant myocarditis and opined
Menactra caused it, relying on Dr. Waugh’s and Dr. Gershwin’s prior opinions that Menactra
caused Dan to have eosinophilic myocarditis and Dr. Yturralde’s accepting that Dan changed
during the three weeks after vaccination (an assessment that Dan’s two classmates and teacher
deny in their affidavits stating that Dan seemed normal during that time period).
On July 3, 2018, the undersigned issued an Order requiring Dr. Gershwin to recognize
Dr. Yturralde’s rejection that Dan had eosinophilic myocarditis. The undersigned continued to
state that petitioners filed expert reports that provided inconsistent theories. The undersigned
stated that she would strike Dr. Gershwin’s third supplemental expert report when filed if he
insisted that Dan died of eosinophilic myocarditis.
On July 5, 2018, petitioners filed a motion for an extension of time to file Dr. Gershwin’s
third supplemental expert report. On the same day, the undersigned granted petitioners’ motion.
On July 19, 2018, petitioners filed a motion to dismiss. The undersigned dismissed the
petition on the same day. In her decision dismissing the petition, the undersigned stated that
petitioners should have moved to dismiss after filing Dr. Miller’s initial expert report because
that was when a reasonable basis to proceed ceased. Judgment entered on August 22, 2018.
MOTION AND FILINGS
On October 30, 2018, petitioners filed a motion for attorneys’ fees and costs. Petitioners
requested $235,509.90 in attorneys’ fees and $37,342.69 in attorneys’ costs, for a total request of
$272,852.59. Petitioners did not incur any personal costs.
On November 5, 2018, petitioners filed an amended motion for payment of petitioners’
attorneys’ fees and reimbursement of case costs pursuant to 42 U.S.C. § 300aa-15 and Vaccine
Rule 13. The motion included a supplemental invoice for case costs incurred in September
2012 for an expert report from Dr. Shoenfeld. Ex. 141. The undersigned granted petitioners’
motion to amend. Following amending, petitioners requested $235,509.90 in attorneys’ fees
and $46,342.69 in attorneys’ costs for a total request of $281,852.59. Petitioners did not incur
any personal costs.
Along with petitioners’ motion for attorneys’ fees and costs, petitioners filed a brief in
support of an award of attorneys’ fees and costs. Doc 148. Petitioners argued that “the
testimonial, medical, literature, and expert facts adduced in this case fulfilled the requirements to
meet the ‘reasonable basis’ standard from the time the case was filed until it was voluntarily
dismissed.” Id. at 1-2. Petitioners stated that reasonable basis is an objective consideration that
is determined by the totality of circumstances. Id. at 2 (citing Chusiano v. United States, 116
Fed. Cl. 276, 289 (2014); McKellar v. Sec’y of HHS, 101 Fed. Cl. 297, 303 (2011)). Petitioners
14
claimed that they were entitled to investigate two different medical theories that could have
explained Dan’s death as being causally related to his vaccination based on petitioners’
recollection of Dan’s symptoms after receiving the vaccination, Dan’s autopsy report, and Dr.
Miller’s expert report.
Petitioners argued that Dr. Miller, in his first report, stated “simply that there was no fatal
brain inflammation and that he found no other cause of death.”5 Doc 148, at 4. Petitioners
stated that after Dr. Miller confirmed his findings6 in his second expert report, the brain-based
theory to Dan’s death was ruled out, but the heart-based theory7 remained, and therefore
reasonable basis was not lost. Id. Petitioners posited that vaccination caused a heart-based
reaction that led to Dan’s death based on Dr. Miller’s note of eosinophilic proteinaceous fluid in
Dan’s lungs and that there was a history in the Vaccine Program of cardiac-based vaccine
injuries. Id. at 12-13; Id. at footnote 3-5. Petitioners continued to argue that they had a
reasonable basis to investigate “the case from the perspective of the heart-based theory,” by
discussing a plethora of various medical theories concerning the difficulty in diagnosing
myocarditis and the association between myocarditis and vaccinations. Id. at 13-26.
Petitioners argued Dr. Yturralde’s diagnosis that Dan had fulminant myocarditis rather
than eosinophilic cardiomyopathy was likely a scrivener’s error.8 Id. at 11. Petitioners added
that regardless of the error, “fulminant myocarditis is simply a subset of myocarditis and it
includes fulminant eosinophilic myocarditis,” and therefore, petitioners never strayed from a
logical investigation based on the heart-based theory and continued to have reasonable basis to
pursue their claim. Id. However, the undersigned finds that there is no proof that fulminant
myocarditis includes fulminant eosinophilic myocarditis, particularly since Dr. Yturralde
rejected diagnosing Dan with eosinophilic myocarditis.
Further, petitioners argued the undersigned acknowledged that reasonable basis existed
by telling petitioners to make a demand on respondent in her Order of August 13, 2015. Id. at 5.
Petitioners argued Vaccine Rule 59 requires special masters to know the facts of each case
5
Actually, Dr. Miller had “no good answer” for what caused the cerebral edema, but he did conclude to a reasonable
degree of medical probability that Dan’s cerebral edema “led to neurogenic pulmonary edema and histological
changes of subendocardial ischemia, with death occurring rapidly from onset, certainly no more than about two
hours and quite possibly in only minutes.” Ex. 14, at 4-5. Moreover, as the undersigned discussed in her dismissal
decision, Dr. Miller stated that it “makes no sense” to connect the meningitis vaccine to Dan’s death even though he
found meningitis in some of Dan’s brain sections. Id. at 4.
6
In his supplemental report, Dr. Miller essentially reiterated the conclusions he stated in his first report, which ruled
out vaccination as a cause of the brain swelling that led to Dan’s death. Ex. 65, at 2.
7
There was no heart-based theory indicated in Dr. Miller’s report. Dr. Miller stated that there were eosinophils in
Dan’s lungs, not in Dan’s heart. Ex. 14 at 3.
8
Actually, in both of his reports, Dr. Yturralde explicitly theorized that Dan had fulminant myocarditis and rejected
that Dan had eosinophilic cardiomyopathy. Dr. Yturralde wrote, “I agree, generally, with Dr. Waugh’s opinion in
this case. Dan Liu had a myocarditis. Based on the young man’s clinical history and progressive decline physically,
a diagnosis of fulminant, rather than eosinophilic, myocarditis, is more appropriate.” Ex. 128, at 1.
9
Vaccine Rule 5(a) addresses the preliminary status conference and tentative findings and conclusions, and states
“The special master will hold a status conference within 30 days after the filing of respondent’s report under
Vaccine Rule 4(c) to: (1) afford the parties an opportunity to address each other’s positions; (2) review the materials
15
comprehensively and therefore, “[i]t would be tantamount to entrapment to suggest to the parties
that settlement be attempted and then deprive counsel of the fees and costs necessary to get the
case to that point.” Id. at 7.
On December 21, 2018, respondent filed a response opposing petitioners’ motion stating
that petitioners failed to demonstrate a reasonable basis for their claim and therefore petitioners’
motion for attorneys’ fees and costs should be denied. Doc 151. Respondent argued that a
claim cannot gain or lose reasonable basis during the course of litigation. Id. at 11.
Respondent requested the undersigned reject the interpretation in Perreira v. Secretary of Health
and Human Services, 33 F.3d 1375 (Fed. Cir. 1994) that permits “limited awards of attorneys’
fees if the special master concludes that the claim had and lost reasonable basis.” Respondent
argued that Perreira is best understood as addressing the good faith inquiry and not reasonable
basis. Id. at 13-14.
Respondent opposed any award of attorneys’ fees and costs because “petitioners did not
offer any evidence of a factual or medical basis for their claim of vaccine causation at any point,
including from the time they filed their petition up to the time that Dr. Miller filed his first or
second opinion.” Id. at 14. Respondent stated that at the time of filing, petitioners’ claims did
not cite to any evidentiary support and neither of the alleged medical theories was developed.
Id. at 15. Respondent also argued that “Further investigating a second theory of causation after
their primary theory fell apart is tantamount to a fishing expedition.” Id. at 16. Respondent
reasoned that petitioners are essentially claiming that they had reasonable basis based on their
counsel’s persistent investigation of two medical theories, but counsel’s conduct is irrelevant to a
reasonable basis analysis. Id. at 16-17 (citing Simmons, 875 F.3d 632, 636 (Fed. Cir. 2017)).
Lastly, respondent argued that “Neither Section 13 of the Vaccine Act nor Vaccine Rule
5 supports petitioners’ argument regarding a nexus between being directed to present a
settlement demand and reasonable basis in this case.” Id. 17 (citing Woods v. Sec’y of HHS,
105 Fed. Cl. 148, 153 (2012) (ruling that “engaging in settlement negotiations does not in itself
establish the reasonable basis of a claim.”)). Respondent stated that “the special master set a
deadline ordering petitioners to convey a demand by a certain date was simply an exercise in
docket management, not an indication regarding whether petitioners’ claim had reasonable
basis.” Id. at 18.
On January 29, 2019, petitioners filed a reply to respondent’s response to petitioners’
motion for attorneys’ fees and costs. Doc 153. Along with their reply, petitioners filed an
updated fee invoice for work in filing petitioners’ reply. Ex. 142. Petitioners requested an
additional $8,327.20 in attorneys’ fees. Following the requested additional fees, petitioners now
submitted and evaluate the parties’ respective positions; and (3) present tentative findings and conclusions.”
Regarding imposing fees and costs, section (c) states, “to ensure effective case management, the special master is
authorized under RCFC 16(f)(2) to order a party, its attorney, or both to pay the reasonable expenses – including
attorneys’ fees – incurred because of any noncompliance with a scheduling or other pretrial order unless the
noncompliance was substantially justified or other circumstances make an award of expenses unjust.” The
undersigned does not see how Rule 5 supports petitioners’ counsel’s argument since the conference in question was
neither a preliminary status conference nor did the undersigned issue any tentative findings and conclusions.
16
request $243,837.10 in attorneys’ fees and $46,342.69 in attorneys’ costs for a total request of
$290,179.79.
Petitioners argued that respondent conflated good faith with reasonable basis and
specifically, that “There has been no argument offered here that Dan Liu’s mother and father had
less than an honest belief that they were entitled to compensation.” Doc 153, at 3.
Petitioners relied heavily on the “totality of circumstances” test to affirm that petitioners’
claim had reasonable basis, arguing that factors include “the attorney’s diligence in bringing the
claims when considering whether there was a reasonable basis for a claim under the Vaccine
Act.” Id. at 4-5 (citing Simmons, 128 Fed. Cl. 579, 583 (2017)). However, the Federal Circuit
held in Simmons that the attorney’s diligence is not relevant. Simmons, 875 F.3d at 636. The
only relevant inquiry is whether petitioners objectively had a reasonable basis to file a petition.
By extension, under Perreira, when petitioners had a reasonable basis to file a petition, did they
objectively lose that reasonable basis during the pendency of the case?
Petitioners proceeded to list the “ample supportive evidence” to show that petitioners’
claim had reasonable basis throughout the pendency of the case including Dan’s pre-vaccination
and vaccination medical records, autopsy and police reports, petitioners’ affidavits, Dr. Miller’s
expert report, and Dr. Waugh’s expert report. Id. (citing Chuisano, 116 Fed. Cl. 276, 286-88
(2014)). Petitioners continued to argue the petition was filed in compliance with the pleading
requirements under Vaccine Rule 2 and that medical opinion is not required to be filed at the
time of filing. Id. at 10-11. Again, petitioners offered that Dr. Miller’s report did not end
reasonable basis because the finding of eosinophils in Dan’s lungs warranted further
investigation into a diagnosis of eosinophilic myocarditis. Id. at 12.
Petitioners stated that respondent’s argument to reject the holding in Perreira that
reasonable basis may exist at the time of filing and later lost completely ignores “well-settled
law.” Id. at 9.
This matter is now ripe for adjudication.
DISCUSSION
I. Entitlement to Fees Under the Vaccine Act
a. Legal Standard
Under the Vaccine Act, a special master or a judge on the U.S. Court of Federal Claims
may award fees and costs for an unsuccessful petition if “the petition was brought in good faith
and there was a reasonable basis for the claim for which the petition was brought.” 42 U.S.C. §
300aa-15(e)(1); Sebelius v. Cloer, 133 S. Ct. 1886, 1893 (2013).
17
“Good faith” is a subjective standard. Hamrick v. Sec’y of HHS, No. 99-683V, 2007
WL 4793152, at *3 (Fed. Cl. Spec. Mstr. Nov. 19, 2007). A petitioner acts in “good faith” if he
or she holds an honest belief that a vaccine injury occurred. Turner v. Sec’y of HHS, No. 99-
544V, 2007 WL 4410030, at *5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007). Petitioners are “entitled
to a presumption of good faith.” Grice v. Sec’y of HHS, 36 Fed. Cl. 114, 121 (1996).
“Reasonable basis” is not defined in the Vaccine Act or Rules. Deciding whether a
claim was brought in good faith and had a reasonable basis “is within the discretion of the
Special Master.” Simmons v. Sec’y of HHS, 128 Fed. Cl. 579, 582 (2016), aff’d, 875 F.3d 632
(2017) (quoting Scanlon v. Sec’y of HHS, 116 Fed. Cl. 629, 633 (2014) (citing Davis v. Sec’y of
HHS, 105 Fed. Cl. 627, 633 (2012)). In determining reasonable basis, the Federal Circuit has
clarified in Simmons that it is “an objective inquiry unrelated to counsel’s conduct.” Simmons,
875 F.3d at 636. In determining reasonable basis, the court looks “not at the likelihood of
success [of a claim] but more to the feasibility of the claim.” Turner, 2007 WL 4410030, at *6
(citing Di Roma v. Sec’y of HHS, No. 90-3277V, 1993 WL 496981, at *1 (Fed. Cl. Spec. Mstr.
Nov. 18, 1993)).
While a petitioner may have a reasonable basis to file a petition, the reasonable basis can
be lost as the case develops. In Perreira, the Federal Circuit upheld a special master’s decision
awarding attorneys’ fees and costs only up until the hearing began. Perreira, 33 F.3d at 1377.
The special master found that petitioners should have realized that they did not have a reasonable
basis to move forward with the case once they reviewed their expert’s opinion prior to the
hearing and saw the opinion was unsupported by medical literature or studies. Id. at 1377. The
Federal Circuit noted that “Congress must not have intended that every claimant . . . collect
attorney fees and costs” because the funds that are payable under the statute are limited. Id.
“Petitioners are not given a blank check to incur expenses without regard to the merits of their
claim.” Perreira, 27 Fed. Cl. 29, 34 (Fed. Cl. 1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994).
b. Good faith and reasonable basis
Petitioners are entitled to a presumption of good faith, and respondent does not contest
that the petition was brought in good faith.10 Grice, 36 Fed. Cl. at 121. As the Federal Circuit
stated in Simmons, good faith and reasonable basis are two distinct facets with good faith being
subjective while reasonable basis being an objective inquiry. Simmons, 875 F.3d at 635 (citing
Chuisano, 116 Fed. Cl. 276, 289 (2014)). The undersigned finds that petitioners had good faith.
Therefore, the undersigned finds that the good faith requirement is satisfied.
Petitioners alleged that Menactra vaccine, a vaccine listed on the Table, administered
three weeks prior to their otherwise healthy son, was causally related to his sudden death.
10
In crafting his argument persuading the undersigned to reject the interpretation that reasonable basis can be lost,
respondent cited a statement in Perreira that good faith can be lost once it is evident that a petitioner’s claim no
longer has reasonable basis. Doc 151, at 13 (citing Perreira, 33 F.3d at 1377 (“when the reasonable basis that may
have been sufficient to bring the claim ceases to exist, it cannot be said that the claim is maintained in good faith.”)).
The undersigned doubts that this statement is more than dictum. Moreover, respondent never contested petitioners’
good faith in this case.
18
Petitioners also filed vaccination records evidencing the receipt of the related vaccine, prior
medical records indicating no brain swelling three months prior to the vaccination, and the
autopsy report finding slight brain swelling and edema after death. At the initial stage of
pursuing petitioners’ claim, the reasonable basis requirement was satisfied.
Although, reasonable basis was initially satisfied, petitioners subsequently lost reasonable
basis when they filed Dr. Miller’s first expert report on June 5, 2012. Similar to petitioners in
Perreira, petitioners here should have realized that they did not have a reasonable basis to
proceed once they reviewed their expert’s report stating the cause of Dan’s death was not related
to his meningococcal vaccination. Dr. Miller also ruled out cardiac arrhythmia as the cause of
Dan’s death and attributed the cause to brain swelling from an unknown cause. Moreover, Dr.
Miller’s report concluded that Dan died no more than two hours or even quite possibly minutes
from the onset of whatever killed him. At this point, when petitioners’ own expert denied Dan’s
death was related to his vaccination, petitioners’ claim was clearly undermined and no longer
objectively feasible.
Contrary to petitioners’ counsel’s attempt to justify proceeding by attempting to equate
eosinophils in the lungs with eosinophilic myocarditis by mischaracterizing Dr. Miller’s first
expert report and misrepresenting Dr. Yturralde’s diagnosis as a scrivener’s error, the objective
evidence shows petitioners lost reasonable basis to proceed in their case.
Petitioners’ argument that the undersigned acknowledged reasonable basis by asking
petitioners to make a demand on respondent is not only without merit, but also in opposition to
the policy of settlement negotiations within the Vaccine Program. See Woods, 105 Fed. Cl. at
153 (“The policy of encouraging settlement is paramount in the context of the Vaccine Act,
which Congress designed to ‘provide for a less-adversarial, expeditious, and informal proceeding
for the resolution of petitions.’”).
Petitioners’ argument regarding the attorneys’ diligence in bringing the claims has no
merit and conflicts with the Federal Circuit’s holding in Simmons, which held that an attorney’s
conduct is irrelevant in accessing whether there is a reasonable factual basis for a petitioner’s
claim. Simmons, 875 F.3d at 636.
In light of the Federal Circuit’s recent decision confirming that “A claim can lose its
reasonable basis as the case progresses,” respondent’s argument rejecting this interpretation of
Perreira is without merit. R.K., L.K., on Behalf of A.K., a Minor v. Sec’y of HHS, 2019 WL
1222835, at *2 (Fed. Cir. Mar. 15, 2019) (citing Perreira, 33 F.3d at 1376-77). In R.K., the
Federal Circuit affirmed the special master’s decision declining an award of attorneys’ fees and
costs associated with an appeal of entitlement because the appeal lacked reasonable basis.
After the filing of Dr. Miller’s expert report on June 5, 2012, reasonable basis no longer
existed for petitioners’ claim. Thus, the undersigned awards reasonable attorneys’ fees up until
June 5, 2012. However, the undersigned will award the attorneys’ fees incurred in filing the
motion for attorneys’ fees and costs as well as the reply to respondent’s response to petitioner’s
19
motion for attorneys’ fees and costs.11 Accordingly, this results in an initial deduction of
$178,122.10 from the total award in attorneys’ fees.
II. Reasonableness of Requested Attorneys’ Fees and Costs
A “reasonable hourly rate” is defined as the rate “prevailing in the community for similar
services by lawyers of reasonably comparable skill, experience and reputation.” Avera, 515
F.3d 1343, 1348 (Fed. Cir. 2008). This rate is based on “the forum rate for the District of
Columbia” rather than “the rate in the geographic area of the practice of petitioner’s attorney.”
Rodriguez v. Sec’y of HHS, 632 F.3d 1381, 1384 (Fed. Cir. 2011) (citing Avera, 515 F.3d at
1349). For cases in which forum rates apply, McCulloch provides the framework for
determining the appropriate hourly rate range for attorneys’ fees based upon the attorneys’
experience. See McCulloch v. Sec’y of HHS, No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec.
Mstr. Sept. 1, 2015).
Once the applicable hourly rate is determined, it is applied to the “number of hours
reasonably expended on the litigation.” Avera, 515 F.3d at 1348. Counsel should not include
in their fee requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton v.
Sec’y of HHS, 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424,
434 (1983)). Counsel must submit fee requests that include contemporaneous and specific
billing entries indicating the task performed, the number of hours expended on the task, and who
performed the task. See Savin v. Sec’y of HHS, 85 Fed. Cl. 313, 316-18 (Fed. Cl. 2008). 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. Furthermore, the special
master may reduce fees sua sponte, apart from objections raised by respondent and without
providing petitioners notice and opportunity to respond. See Sabella v. Sec’y of HHS, 86 Fed.
Cl. 201, 208-09 (Fed. Cl. 2009). A special master need not engage in a line-by-line analysis of
petitioner’s fee application when reducing fees. Broekelschen v. Sec’y of HHS, 102 Fed. Cl.
719, 729 (Fed. Cl. 2011).
a. Reasonable Hourly Rates
Petitioner requests the following hourly rates for the period from June 25, 2009 to June 5,
2012 and for the period of July 20, 2018 to January 29, 2019:
2009 2010 2011 2012 2018 2019
Kimberly Miller $75 N/A N/A N/A N/A N/A
Sarah Kolke $95 $95 $135 $135 N/A N/A
Elizabeth Beckwith $75 $75 N/A N/A N/A N/A
Elizabeth Giese N/A $75 N/A N/A N/A N/A
Gricel Candelaria N/A $75 N/A N/A N/A N/A
11
After a review of the billing records, petitioners incurred $7,769.30 in preparing and filing the motion for
attorneys’ fees and costs and $8,327.20 in preparing and filing the reply, totaling $16,096.50 in attorneys’ fees
relating to petitioners’ motion for attorneys’ fees and costs.
20
Anisley Valdes N/A N/A $105 N/A N/A N/A
Kimberly Grabbe (paralegal) N/A $75 $105 $135 N/A N/A
Jennifer Lally (paralegal) N/A N/A N/A N/A $148 N/A
Liya Mogese (paralegal) N/A N/A N/A N/A $148 N/A
Tabitha Stone (paralegal) N/A N/A $135 $135 N/A N/A
Tara Thorn (paralegal) N/A N/A N/A N/A $148 $154
Altom Maglio (atty) $275 N/A N/A N/A N/A N/A
Franklin John Caldwell (atty) $275 $275 $300 $300 $391 $404
Based on her experience and review of the billing records submitted by petitioners, the
undersigned finds petitioners’ attorneys’ fees rates to be acceptable and in conformance with
what other special masters have awarded Maglio Firm attorneys and paralegals except for the
attorney rates for Mr. Caldwell. Petitioners’ request for an hourly rate of $391 for 2018 and
$404 for 2019 for Mr. Caldwell’s work will be reduced to an hourly rate of $385 for 2018 and
$400 for 2019, which reflects what the Office of Special Masters has previously awarded Mr.
Caldwell based on his experience and work with the Vaccine Program. This rate reduction
results in a further deduction of $153.0012 of the total attorneys’ fees award.
b. Reasonable Hours
Special masters have previously reduced the fees paid to petitioners due to excessive and
duplicative billing. See Ericzon v. Sec’y of HHS, No. 10-103V, 2016 WL 447770 (Fed. Cl.
Spec. Mstr. Jan. 15, 2016) (reduced overall fee award by 10 percent due to excessive and
duplicative billing); Raymo v. Sec’y of HHS, No. 11-654V, 2016 WL 7212323 (Fed. Cl. Spec.
Mstr. Nov. 2, 2016) (reduced overall fee award by 20 percent), mot. for rev. denied, 129 Fed. Cl.
691 (2016). Special masters have previously noted the inefficiency that results when cases are
staffed by multiple individuals and have reduced fees accordingly. Sabella, 86 Fed. Cl. at 209.
Additionally, the undersigned has previously found it reasonable to reduce the fees paid to
petitioners due to billing for intra-office communication. Soto v. Sec’y of HHS, No. 09-897V,
2011 WL 2269423, at *6 (Fed. Cl. Spec. Mstr. June 7, 2011); Carcamo v. Sec’y of HHS, No. 97-
483V, 2011 WL 2413345, at *7 (Fed. Cl. Spec. Mstr. May 20, 2011).
After reviewing the billing records, the undersigned finds that counsel included entries
that are duplicative due to both attorneys and paralegals billing for review of the same electronic
notices and scheduling orders. Notably, some of the orders that were double-billed were
straightforward orders concerning future filing dates or a notice of appearance by respondent’s
counsel. This task does not take 0.1 hour to review nor does it require both an attorney and
paralegal to complete. There were duplicative billing entries for review of the same electronic
notices and/or scheduling orders on February 22, 2010, April 1, 2010, June 14, 2010, January 7,
2011,13 January 12, 2011, January 14, 2011, October 12, 2011, November 15, 2011, January 19,
12
In 2018, Mr. Caldwell billed 12.3 hours on work relating to petitioners’ motion for attorneys’ fees and costs. In
2019, Mr. Caldwell billed 19.8 hours on work relating to petitioners’ reply to respondent’s response to petitioners’
motion for attorneys’ fees and costs.
13
A review of the docket does not show a scheduling order issued before January 7, 2011 that either Mr. Caldwell
21
2012, and January 23, 2012. Moreover, there were duplicative billing entries for both attorney
and paralegal attending the same telephone conference on May 25, 2011. These duplicative
billing entries result in a further deduction of $211.50 of the total attorneys’ fees award.
The undersigned finds the remaining billing entries for fees incurred up until June 5,
2012 and relating to petitioners’ motion for attorneys’ fees and costs reasonable. Thus, the
total amount of attorneys’ fees is reduced by $178,486.60 and $65,350.50 is awarded.
c. Reasonable Costs
As discussed, since reasonable basis for petitioners’ claim was lost after they filed Dr.
Miller’s expert report on June 5, 2012, the undersigned will award only reasonable attorneys’
costs up until June 5, 2012. This results in a deduction of $36,646.56 in attorneys’ costs.
The undersigned finds the remaining $9,696.13 in attorneys’ costs incurred up until June 5,
2012 reasonable. Petitioners did not incur any personal costs.
CONCLUSION
The undersigned finds petitioners had a reasonable basis to file a petition and this
reasonable basis continued until petitioners filed the expert report from Dr. Miller on June 5,
2012. Accordingly, the undersigned GRANTS petitioners’ application for attorneys’ fees and
costs. The undersigned awards $75,046.63, representing attorneys’ fees and costs. The
award shall be in the form of a check made payable jointly to petitioners and Maglio Christopher
& Toale, PA in the amount of $75,046.63.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court is directed to enter judgment herewith.14
IT IS SO ORDERED.
Dated: April 19, 2019 /s/ Laura D. Millman
Laura D. Millman
Special Master
or a paralegal had not previously reviewed.
14
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or jointly,
filing a notice renouncing the right to seek review.
22