Lefkowitz v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
*********************
TZIPORA LEFKOWITZ, *
Individually, and for the Minor, M.L., *
* No. 17-987V
Petitioner, * Special Master Christian J. Moran
*
v. *
* Filed: May 24, 2019
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * Attorneys’ fees and costs,
* Reasonable basis
Respondent. *
*********************
Jessica A. Wallace, Siri & Glimstad, LLP, New York, NY, for petitioner;
Ashley M. Simpson, United States Dep’t of Justice, Washington, DC, for
respondent.
PUBLISHED DECISION DENYING PETITIONER’S
MOTION FOR ATTORNEYS’ FEES AND COSTS1
On May 31, 2018, the undersigned issued a decision dismissing Ms.
Lefkowitz’s petition. Ms. Lefkowitz subsequently filed a timely motion for
attorneys’ fees and costs on January 2, 2019, requesting $17,060.22.
For the reasons set forth below, the undersigned finds that Ms. Lefkowitz
did not have a reasonable basis to bring her petition. Thus, Ms. Lefkowitz is
ineligible for an award of attorneys’ fees and costs.
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.
I. Brief Factual and Procedural History
Ms. Lefkowitz’s child, M.L., received the MMR, DTaP-IPV, and hepatitis A
vaccinations on July 24, 2014, at four years of age. Exhibit 2 at 106. By the
evening of the same day, Ms. Lefkowitz averred that “M.L.’s right arm had
swollen to nearly twice its normal size and was exquisitely painful.” Exhibit 1 ¶ 6
(Ms. Lefkowitz’s affidavit). The swelling in M.L.’s arm resolved through
treatment at home by July 31, 2014. Id. Over the next few months, M.L. had ten
separate appointments at Rufuah Medical Center for various issues, none of which
concerned his right arm or skin. Exhibit 2 at 81-103.
On February 22, 2015, M.L. was seen again at Rufuah Medical Center and
was observed to have a “rash on back, underarms, and chest.” Exhibit 2 at 79. The
record indicates that Ms. Lefkowitz noticed the rash on M.L. just that day but
stated the rash may have started two days prior. Id. The next documented instance
of M.L.’s rash is May 12, 2016, where his father reported that M.L. had a rash on
his back for the past week. Id. at 47. The medical records contain two more
instances of M.L’s rashes through September 2017. To supplement M.L.’s
medical history, Ms. Lefkowitz asserts that M.L. suffered episodes of “acute-onset
hives and painful itching,” which she termed “flares,” every four months and that
the flares lasted for approximately one week. Exhibit 1 at 1-2. Ms. Lefkowitz
stated that most of the flares were treated at home with cool compresses, Benadryl,
and soaking baths. Id.
Ms. Lefkowitz filed a claim on behalf of her son, M.L., that the vaccinations
he received on July 24, 2014, caused him to suffer from “chronic, recurrent
urticaria complicated by pain and social isolation.” Pet. filed on July 21, 2017.
After an initial status conference on August 23, 2017, the parties were ordered to
file a joint statement of completion. Following an extension of time and an
authorization to subpoena documents, the joint statement of completion was filed
on December 4, 2017.
The respondent then submitted his report pursuant to Vaccine Rule 4. In this
report, respondent contended that Ms. Lefkowitz had not met her burden to
establish entitlement to compensation. Respondent argued that the medical records
did not support Ms. Lefkowitz’s assertion that M.L. had an immediate reaction to
the vaccination. Resp’t’s Rep., filed Jan. 5, 2018, at 7. The respondent also
maintained that a treating doctor had not diagnosed M.L. as suffering from chronic
urticaria. Id.
2
At the next status conference, Ms. Lefkowitz stated her intent to retain an
expert to address the issues raised in respondent’s Rule 4 report. Ms. Lefkowitz
received two extensions of time to file a status report advising whom she had
retained as an expert.
Ms. Lefkowitz never filed a status report and instead filed a motion for a
decision dismissing her petition on May 2, 2018. In the motion, Ms. Lefkowitz
stated that she “believes [M.L.] was injured by a vaccine however [she does] not
believe that under the Rules of the Vaccine Program [she] will be able to prove
[she is] entitled to compensation.” Pet’r’s Mot. at 1. The case was dismissed on
May 31, 2018. Decision, 2018 WL 3216315.
On January 2, 2019, Ms. Lefkowitz brought the present motion for
attorneys’ fees and costs. On March 1, 2019, the undersigned issued an order
directing respondent to address whether Ms. Lefkowitz had reasonable basis, if at
all, and if Ms. Lefkowitz lost reasonable basis.2
Respondent filed a response arguing that Ms. Lefkowitz had filed no
evidence to satisfy reasonable basis. Respondent pointed out that, despite M.L.’s
numerous medical appointments, the medical records only reflected a few times
where M.L. was observed to have rashes. Resp’t’s Resp., filed Mar. 4, 2019, at 3.
Respondent concluded that Ms. Lefkowitz did not have reasonable basis when she
filed her petition and never established reasonable basis. Id. at 6.
On March 11, 2019, Ms. Lefkowitz filed a reply arguing that she had
reasonable basis until she was unable to retain an expert to opine on causation.
Pet’r’s Reply at 3. Ms. Lefkowitz cited her affidavit as evidence of M.L.’s initial
reaction to the vaccinations and as a gap-filler for the medical records. Ms.
Lefkowitz argued that the medical records do not contain every instance of M.L.’s
rashes because many instances of M.L.’s recurrent, but not continuous, rashes
could be treated at home and did not require further medical attention. Id. Ms.
Lefkowitz also asserted that home treatment of M.L.’s rashes also explains the gap
in time between the vaccinations and the first reported rash in the medical records.
Id. at 4.
Ms. Lefkowitz’s motion is now ripe for adjudication.
2
The due date for the Secretary’s response to the motion for attorneys’ fees and costs had
been extended until March 5, 2019, because of a government shutdown.
3
II. Standards for Adjudication
Even when a petitioner in the Vaccine Program does not prevail on his or
her claim and does not receive compensation, a special master “may” award
reasonable attorneys’ fees and other costs 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). 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. Sec'y of Health & Human
Servs., 875 F.3d 632, 635 (Fed. Cir. 2017).
“Good faith” is a subjective standard. Id.; Hamrick v. Sec’y of Health &
Human Servs., 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 honestly believes that a
vaccine injury occurred. Turner v. Sec’y of Health & Human Servs., No. 99-544V,
2007 WL 4410030, at * 5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007). The Secretary has
not challenged Ms. Lefkowitz’s good faith here, and the undersigned has little
doubt that Ms. Lefkowitz brought the claim with an honest belief that a vaccine
injury occurred. For that reason, the petition’s reasonable basis is the focus of this
decision.
In contrast to good faith, reasonable basis is purely an objective evaluation
of the weight of the evidence. Simmons, 875 at 636. Because evidence is
“objective,” the Federal Circuit’s description is consistent with viewing the
reasonable basis standard as creating a test that petitioners meet by submitting
evidence. See Chuisano v. Secʼy of Health & Human Servs., No. 07-452V, 2013
WL 6234660, at *12-13 (Fed. Cl. Spec. Mstr. Oct. 25, 2013) (explaining that
reasonable basis is met with evidence), mot. for rev. denied, 116 Fed. Cl. 276
(2014). However, a looming statute of limitations, as was the case here, shall not
be considered in determining whether reasonable basis for the petition existed.
Simmons, 875 F.3d at 636.
The Federal Circuit and judges of the Court of Federal Claims have provided
some guidance as to what reasonable basis is not. A petition based purely on
“unsupported speculation,” even speculation by a medical expert, is not sufficient
to find a reasonable basis. Perreira v. Sec'y of Health & Human Servs., 33 F.3d
1375, 1377 (Fed. Cir. 1994) (“Congress must not have intended that every
claimant, whether being compensated or not under the Vaccine Act, collect
attorney fees and costs by merely having an expert state an unsupported opinion
that the vaccine was the cause in-fact of the injury”). As another example, when
“the medical and other written records contradict the claims brought forth in the
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petition,” a special master is not arbitrary in concluding that reasonable basis for
the petition did not exist. Murphy v. Sec'y of Health & Human Servs., 30 Fed. Cl.
60, 62 (1993), aff’d without opinion, 48 F.3d 1236 (Fed. Cir. 1995) (table).
Establishing the petition’s reasonable basis in a motion for attorneys’ fees
and costs is the burden of the petitioner. Carter v. Sec'y of Health & Human
Servs., 132 Fed. Cl. 372, 379 (2017) (citing Woods v. Sec'y of Health & Human
Servs., 105 Fed. Cl. 148, 152 (2012) and McKellar v. Sec’y of Health & Human
Servs., 101 Fed. Cl. 297, 305 (2011)).
III. Analysis
The objective evidence provides little basis for Ms. Lefkowitz’s claim.
Simmons, 875 at 636. To repeat, the petition claims that M.L. developed chronic
urticaria as a result of the vaccinations.
While Ms. Lefkowitz alleges an injury of chronic urticaria, Ms. Lefkowitz
has not pointed to any diagnosis from a treating physician for this condition. M.L.
was diagnosed with other skin conditions, but it is not even discussed whether
these conditions were related as part of an ongoing skin disorder. M.L.’s two
earliest documented episodes of rashes were diagnosed as herpes zoster and viral
exanthem, both conditions that are caused by viruses. It is not simply that M.L.’s
diagnosis was unknown, but rather the diagnoses of viral disorders point away
from a vaccine-related injury.
By now, it is well established that to recover compensation a petitioner must
demonstrate that the vaccinee suffers from the condition allegedly caused by the
vaccine. Broekelschen v. Sec'y of Health and Human Servs., 618 F.3d 1339, 1346
(Fed. Cir. 2010). Ms. Lefkowitz’s failure to present any evidence showing that
M.L. has the disease claimed in her petition undermines the reasonable basis of her
claim.
In addition to the lack of diagnosis, Ms. Lefkowitz’s case suffers from a
problem with chronology. As stated in her affidavit, M.L.’s initial reaction to the
vaccinations was swelling, not rashes, that resolved within seven days of the
vaccination on July 24, 2014. Exhibit 1. The first documentation of M.L.’s rashes
was at an appointment on February 22, 2015. Exhibit 2 at 79. At the appointment,
Ms. Lefkowitz stated that she first noticed M.L.’s rashes on the same day but
believed the rashes could have existed for two days prior. Id. The February 22,
2015 medical record does not note any prior rashes or history of rashes and
assessed M.L as having herpes zoster. Id. at 79-80. Ms. Lefkowitz asserts no
medical records support an earlier onset of rashes because M.L’s rashes were
5
treated at home. Pet’r’s Reply at 4. However, Ms. Lefkowitz’s affidavit and
petition do not specifically state when M.L’s rashes first appeared and only
generally stated that M.L. was having episodes of rashes/hives “approximately
every four months.” Exhibit 1; Pet. ¶ 4. With this evidence, it appears that M.L.’s
rashes first appeared around February 22, 2015, making the time from M.L.’s
vaccinations to his first rashes be almost seven months. This duration of onset is
very long compared to the accepted onset of other vaccine injuries.
The next documented instance of M.L.’s rashes is May 12, 2016, almost 15
months after the previous documented instance of rashes. Exhibit 2 at 47. At this
appointment, the assessment of M.L.’s rashes was viral exanthem and no recent
rashes or history of rashes were reported. Id. at 48. On June 21, 2016, M.L. was
assessed to have lesions and referred to a dermatologist. Id. at 39. Ms. Lefkowitz
did not report any other recent rashes or a history of rashes at this appointment. Id.
Apparently connected to this episode, Ms. Lefkowitz stated that M.L.’s “flare” had
resolved before he could be seen by a dermatologist. Pet. ¶ 11.
As noted by respondent, on September 24, 2017, after the petition was filed,
M.L. was assessed to have a rash and, for the first time, reported a history that
M.L. “often gets hives.” Exhibit 5 at 10. At this appointment, M.L. was diagnosed
with cutaneous mastocytosis. Id.
While it is understandable that Ms. Lefkowitz might have treated less severe
rash episodes at home, Ms. Lefkowitz never reported M.L.’s other recent rash
episodes or provided a history of rashes. Ms. Lefkowitz had many opportunities at
numerous medical appointments to document this trend of rashes. M.L. had at
least ten medical appointments between the vaccinations (July 24, 2014) and the
first documented instance of rashes (February 22, 2015) and had almost thirty
appointments from the first documented instance of rashes until the petition was
filed (July 24, 2017). The medical records do not support a chronic condition.
Even when considering the lower standard of reasonable basis, Ms. Lefkowitz’s
affidavit does not fill the evidentiary gaps because it is overly general. Ms.
Lefkowitz did not submit any other contemporaneous evidence to support M.L.’s
rash episodes.
Finally, even if Ms. Lefkowitz presented persuasive evidence that M.L. had
continuously experienced a rash and that he suffered urticaria, she would still have
to present some evidence to support her claim that the vaccine caused the urticaria.
Ms. Lefkowitz has presented no evidence on this point as well. The lack of a
medical record or medical opinion weighs heavily against the finding of reasonable
basis because “[t]he special master or court may not make ... a finding [of
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causation] based on the claims of a petitioner alone, unsubstantiated by medical
records or by medical opinion.” 42 U.S.C. § 300aa–13(a)(1).
For the these reasons, the undersigned finds that an objective inquiry of the
evidence indicates that there was not “a reasonable basis for the claim for which
the petition was brought.” 42 U.S.C. § 300aa-15(e). Because it is Ms. Lefkowitz’s
burden to establish such a reasonable basis before an award of attorneys’ fees and
costs can be made, the undersigned finds that Ms. Lefkowitz’s motion for
attorneys’ fees and costs must be DENIED.
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.3
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
3
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.
7