Hiland v. Secretary of Health and Human Services

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OFFICE OF SPECIAL MASTERS
No. 10-491V
Filed: July 31, 2015 FlLED
To be Published
JUL 3 1 2015
>l=******>|<***************************** US. COURT 0‘58
CHANDRA HILAND, Parent of * FEDERAL CLA‘
LILLYEN HILAND, Deceased, *
*
Petitioner, * Final attorneys’ fees and costs; reasonable
* basis contested; prior interim fees and costs
v. * award; Sudden Infant Death Syndrome
* (SIDS)
SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
*
Respondent. *
*
*************************************
Chandra Hiland, Kalispell, MT, petitioner (pro se).
Justine E. Walters, Washington, DC, for respondent.
MILLMAN, Special Master
FINAL ATTORNEYS’ FEES AND COSTS DECISION1
I. Procedural History
On July 29, 2010, Chandra Hiland, on behalf of her daughter Lillyen Hiland, the
vaccinee, filed a petition under the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-
10—34 (2012) (“Vaccine Act” or “Act”). Petitioner alleged that diphtheria-tetanus-acellular-
Pertussis (“DTaP”), Inactivated Polio (“IPV”), haemophilus influenzae type b (“Hib”),
pneumococcal conjugate (“PCV”), and Rotavirus vaccinations caused Lillyen’s death.
Petitioner was represented by Conway, Homer & Chin—Caplan, PC. The attorney of
1 Vaccine Rule 18(b) states that all decisions ofthe 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. 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.
record was Ronald Homer, although Christina Ciampolillo and other attorneys at the firm also
worked on petitioner’s case. On May 9, 2011, petitioner’s then-counsel indicated that petitioner
was searching for alternative counsel to represent her. On July 21, 2011, petitioner filed a
motion for interim attorneys’ fees and costs. On October 7, 2011, petitioner’s counsel filed a
motion to withdraw, which the undersigned granted on October 28, 2011.
On January 31, 2012, the undersigned issued a decision awarding $20,116.38 in interim
attorneys” fees and costs. Respondent filed a motion for review on March 1, 2012, arguing that
the undersigned lacked authority to award interim attorneys’ fees and costs and that there was no
reasonable basis for petitioner’s claim. The appeal was assigned to Judge Lawrence Block. On
March 15, 2012, petitioner’s former counsel, Ronald Homer, filed a motion for leave to file a
response to respondent’s motion for review. Respondent filed a response to this motion on April
27, 2012, in which she objected to providing Mr. Homer with a copy of her motion for review
and supporting memorandum absent written consent from petitioner.
From January to May 2012, the undersigned held several telephonic status conferences in
this matter, during which petitioner said she had contacted several different attorneys to see if
they would represent her. After being unable to find another attorney to represent her, during a
status conference on May 31, 2012, petitioner requested her case be dismissed because she did
not have an expert to support her allegations. On May 31, 2012, the undersigned issued a
decision dismissing petitioner’s claim. Judgment entered on July 3, 2012.
On March 18, 2015, petitioner’s former counsel Mr. Homer filed a second motion for
leave to file a response to respondent’s motion for review. Respondent filed a response to the
motion on April 1, 2015, and Mr. Homer filed a reply on April 13, 2015.
The case was reassigned from Judge Block to Chief Judge Patricia Campbell-Smith on
June 10, 2015. On June 11, 2015, Chief Judge Campbell-Smith filed an order remanding the
issue back to the special master. Chief Judge Campbell—Smith directed the undersigned to
“address whether the intervening dismissal of petitioner’s claim affects her determination that
petitioner’s claim was brought in good faith and had a reasonable basis.” Order, June 10, 2015,
ECF No. 57.
The undersigned issued an order on June 12, 2015, alerting petitioner to the issue
regarding attorneys’ fees and costs. This order was mailed to petitioner’s two last known
addresses. The undersigned stated that she intended to hold a telephonic status conference with
petitioner’s former counsel, Mr. Homer, and respondent’s counsel, Justine Walters, and that
petitioner may participate in any further proceedings. Petitioner phoned the undersigned’s law
clerk on June 18, 2015. She stated she had received the undersigned’s order and did not wish to
participate in further proceedings regarding attorneys” fees and costs.
A telephonic status conference with Mr. Homer and Ms. Walters was scheduled for June
26, 2015. However, due to Mr. Homer’s unavailability on June 26, the conference was held on
June 29, 2015. The parties stated that they did not think any further briefing was necessary
before the undersigned issues a decision.
II. Legal Standard for Attorneys’ Fees and Costs
Under the Vaccine Act, a special master or a Court of Federal Claims judge 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).
“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 (Fed. C1. 1996).
“Reasonable basis” is not defined in the Vaccine Act or Program Rules. It has been
determined to be an “objective consideration determined by the totality of the circumstances.”
McKellar v. Sec’y of HHS, 101 Fed. C1. 297, 303 (Fed. C1. 2011). 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. C1. Spec. Mstr. Nov. 18, 1993)). Factors to be considered include
factual basis, medical support, jurisdictional issues, and the circumstances under which a petition
is filed. Turner, 2007 WL 4410030, at *6—*9. Traditionally, special masters have been “quite
generous” in finding reasonable basis. Turpin v. Sec’y of HHS, No. 99-564V, 2005 WL
1026714, at *2 (Fed. Cl. Spec. Mstr. Feb. 10, 2005); see also Austin v. Sec__’y of HHS, 10-362V,
2013 WL 659574, at *8 (Fed. Cl. Spec. Mstr. Jan. 31, 2013) (“The policy behind the Vaccine
Act’s extraordinarily generous provisions authorizing attorney fees and costs in unsuccessful
cases—«ensuring that litigants have ready access to competent representation—militates in favor
of a lenient approach to reasonable basis”). Special masters have found reasonable basis to file
a claim absent medical records or opinions supporting vaccine causation. _S_e_c_ Austin, 2013 WL
659574, at *8; Hamrick, 2007 WL 4793152.
Additionally, counsel must ensure that a reasonable basis exists throughout the course of
litigation. A petition containing only bare allegations of a vaccine injury or death still has a
reasonable basis at the time of filing if a petitioner obtains and files supporting medical records
or an expert opinion as the case proceeds. Turner, 2007 WL 4410030, at *6. Conversely, a
' petition with a reasonable basis at the beginning of litigation may no longer be supported by a
reasonable basis at a later phase, for example, if an expert report has not been filed for a
prolonged time or an expert report is unsupported and deficient. Perreira v. Sec’y of HHS, 27
Fed. Cl. 29, 3l~34 (Fed. C1. 1992) (affirming a special master’s denial of fees after the
submission of an unsupported expert opinion based on the finding there was no reasonable basis
to continue the case).
III. Reasonable Basis Analysis
Good faith and reasonable basis are necessary findings when awarding fees in any case
where a petitioner has not yet prevailed on entitlement, whether the petitioner seeks final
attorneys’ fees and costs or interim attorneys’ fees and costs.2 It logically follows that when a
- petitioner requests interim attorneys’ fees and costs, the special master must analyze the
reasonableness of the case at the time of the fee request, although occasionally, special masters
have deferred ruling on interim fee requests when they feel the record is not complete enough
to establish a reasonable basis. See Morris v. Sec’Lof HHS, No. 12-415V, 2014 WL
8661863, at *6 (Fed. Cl. Spec. Mstr. June 4, 2014) (Special Master Corcoran deferred ruling
on petitioner’s interim fee application because he found the petitioner had not established
reasonable basis at that time and the “existing record suggests proving causation in this case
may be very difficult”); Austin, 2012 WL 592891 (order deferring a decision on interim fees
and costs application and expressing concern about whether the case had a reasonable basis).
In the instant case, petitioner filed her petition on July 29, 2010, alleging that the
vaccinations Lillyen received on July 30, 2008 caused her death on August 5, 2008. The
petition was timely filed—but only by a week’s time. See 42 U.S.C. § 300aa~16(a)(3)
(petition must be filed before the expiration of 24 months from the date of death). If petitioner
had not filed her petition by August 5, 2010, it would have been time-barred, adding further
impetus to filing the petition when she did. Petitioner filed medical records on compact disc
on August 23, 2010, and then filed her affidavit, an amended petition, and medical literature
on September 3, 2010. The postmortem examination report stated that Lillyen died of
sudden infant death syndrome (“SIDS”).3 Ex. 17, at 1,4.
2 The Federal Circuit ruled that interim fee awards are permissible under the Vaccine Act in Avera v.
Secretary of Health and Human Services, 515 F .3d 1343, 1352 (Fed. Cir. 2008)). The Court stated, “A
special master can often determine at an early stage of the proceedings whether a claim was brought in
good faith and with a reasonable basis.” I_d_. The Federal Circuit again found interim fee awards
appropriate under the Vaccine Act and ruled that interim fee decisions are appealable in Shaw v.
Secretary of Health and Human Services, 609 F.3d 1372, 1376 (Fed. Cir. 2010). Post—Avera, a number of
judges and many special masters have found interim fee awards permissible under various circumstances,
including when petitioner’s counsel withdraws from the case. See, eg, Woods v. Sec’y of HHS, 105 Fed.
Cl. 148, 154 (Fed. C1. 2012) (Judge Williams affirmed the special master’s award of interim fees and
suggested that when counsel withdraws, and it is unknowable how long case resolution might take, an
interim award may be appropriate); Bear v. Sec’y ofHHS, No. 11—362V, 2013 WL 691963, at *5 (Fed.
Cl. Spec. Mstr. Feb. 4, 2013) (Special Master Hastings awarded interim fees over respondent’s objection
in a case where petitioner’s counsel was going to withdraw, and the petition had been pending for more
than 19 months); Lumsden v. Sec’y of HHS, No. 97-588V, 2012 WL 1450520, at *6 (Fed. Cl. Spec. Mstr.
Mar. 28, 2012) (Special Master Vowel] awarded interim fees in an autism case over respondent’s
objection when petitioner’s attorney was withdrawing from the case); Edmonds v. Sec’y of HHS, No. 04-
87V, 2012 WL 1229149, at * 13 (Fed. Cl. Spec. Mstr. Mar. 22, 2012) (Then—Chief Special Master
Campbell—Smith awarded interim fees over respondent’s objection in an autism case in which petitioner’s
counsel was preparing to withdraw). Thus, the special master’s authority to award interim attorneys’ fees
and costs has been repeatedly affirmed, both prior and subsequent to the undersigned’s interim award
decision in this case. However, whether or not interim fees are awardable is no longer an issue since the
undersigned dismissed this case on May 31, 2012. This decision therefore addresses final fees.
3 SIDS is defined as “the sudden and unexpected death of an apparently healthy infant, typically
occurring between the ages of three weeks and five months, and not explained by careful postmortem
studies.” Dorland’s Illustrated Medical Dictionary 1850 (32d ed. 2012).
The billing records reveal that petitioner’s former counsel obtained a report from Dr.
Gill and reviewed it on January 14, 2011. Fee App. at 14. Presumably, since petitioner did
not file the report before withdrawing from the case, Dr. Gill’s opinion was not favorable to
petitioner. After reviewing this report, petitioner’s former counsel expended hours conferring
with the client, searching for alternative counsel, communicating counsel’s efforts to the court
and respondent’s counsel, and preparing a fee application. See Fee App. at 14‘17. Petitioner’s
counsel filed a motion to withdraw as counsel on October 7, 2011, and the motion was granted
on October 28, 2011.
The undersigned previously determined that there was a reasonable basis for petitioner
to proceed up until petitioner’s former counsel withdrew as counsel from the case in 2011.
The basis for this conclusion included the fact that Lillyen’s organs at the time of her death
were larger than the average weights for a five—month—old child’s organs,4 which could
conceivably indicate some kind of inflammatory process. The undersigned also noted that
Lillyen had been “fussy” and had a rash prior to her sudden death, which might have indicated
a vaccine reaction or an infectious process made worse by the vaccines.5 Respondent contends
that these conclusions were arbitrary and capricious because no medical doctor had opined that
Lillyen’s organs were abnormally large, and the medical records did not mention any
infections or inflammatory process prior to Lillyen’s vaccination. Mot. for Review at l7~20.
However, the undersigned was not ruling that larger—than—average organs, a rash, and fussiness
were appropriate symptoms to indicate causation—~only that these appeared to be
abnormalities which an expert could possibly find support a finding of a vaccine reaction. S_ee
gg., Bigbee v. Sec_’y of HHS, 06~663V, 2012 WL 1237759 (Fed. Cl. Spec. Mstr. 2012) (a case
of SIDS after vaccination in which petitioners’ expert opined that the infant’s enlarged organs
were evidence of an inflammatory process; the special master ultimately found respondent’s
expert more persuasive). Moreover, the timing of Lillyen’s death, six days after vaccination,
also helps to establish reasonable basis.
Respondent also contends that petitioner’s counsel failed to adequately investigate the
case by waiting until after filing the petition to engage a medical consultant, even though counsel
represented petitioner for almost two years before filing the petition. Mot. for Review at 17.
Respondent contends that consulting a medical expert falls under the basic inquiries required
prior to filing a petition. 1d, It is true that an attorney’s pre-filing investigation into the
feasibility of the claim is a relevant factor in analyzing whether a petition had a reasonable basis.
Cortez v. Sec’y of HHS, No. 09-176V, 2014 WL 1604002, at *6 (Fed. Cl. Spec. Mstr. Mar. 26,
2014). However, while consulting with an expert prior to filing may be appropriate in some
vaccine cases, to require all petitioners to present medical expert support at the time of filing the
petition would be wasteful and contrary to Congress’ intent. There are numerous cases (for
example, cases of Guillain—Barre’ Syndrome after flu vaccination, or shoulder injuries after any
4 Compare Ex. 6, at 2 (Lillyen’s autopsy) with Ex. 16, at 5 (“Organ Weights in Children,” in Jurgen
Ludwig, Handbook of Autopsy Practice 561 (3d ed. 2002)).
5 Petitioner’s affidavit describes Lillyen as becoming more irritable and sleeping and crying more in the
days following her four—month vaccinations. Ex. 10 at 11 3—4. Petitioner also states in her affidavit that
Lillyen had watery, puffy eyes and a rash on her face. Li Petitioner told Dr. Sorenson on July 30, 2008,
when Lillyen received the vaccinations at issue, that Lillyen had been “fussy lately.” Ex. 7, at 9.
5
vaccination) in which counsel need not consult a medical expert because such cases generally
settle. Requiring an expert report for every petition would cause needless expense in many cases
and could dissuade attorneys from taking vaccine claims. As the Federal Circuit stated in Avera,
“[O]ne of the underlying purposes of the Vaccine Act was to ensure that vaccine injury claimants
have readily available a competent bar to prosecute their claims.” 515 F.3d at 1352. To make a
blanket requirement that all cases require expert opinion support at the filing of the petition
seems contrary to the liberal underpinning of the Vaccine Act.
In this case, petitioner’s counsel’s first billing record was in October 2008, and counsel
worked consistently until the filing of the petition in July 2010 to obtain additional missing
medical records. Fee App. at 4—6. Counsel had to file by August 2010 in order to prevent the
claim from being time—barred. Counsel did not unreasonably delay their review of the case and
made appropriate efforts to “wind up” the case after determining they would withdraw as
counsel.
The undersigned based her May 31, 2012 dismissal decision on the lack of medical
expert opinion or other evidence substantiating petitioner’s allegations. However, the
dismissal decision does not negate the undersigned’s previous determination that the petition
had a reasonable basis at the time she awarded interim fees and costs. No additional evidence
was presented to weaken the claim; rather, petitioner failed to present the additional evidence
that would be needed to prevail on her claim. Even though this is now a final attorneys” fees
decision instead of an interim fees decision, the analysis of reasonable basis remains the same.
No additional evidence has been presented to disturb the undersigned’s previous finding.
Therefore, the undersigned concludes that there was a reasonable basis for the petition up to
the point that petitioner’s former counsel withdrew as counsel.
IV. Conclusion
Accordingly, the undersigned awards the amounts previously determined in her then-interim
attorneys’ fees and costs decision:
a. $18,113.34, representing reimbursement for attorneys’ fees and costs. The award
shall be in the form of one check made jointly payable to petitioner and Conway,
Homer & Chin-Caplan, PC;
b. $1,638.00, representing reimbursement for attorneys’ fees and costs. The award
shall be in the form of one check made jointly payable to petitioner and Buxbaum,
Daue & Fitzpatrick, PLLC; and
c. $365.04, representing reimbursement for petitioner’s costs. The award shall be
in the form of a check made payable to petitioner.
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.6
6 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party’s filing a notice
renouncing the right to seek review.
IT IS SO ORDERED.
Dated: July 31, 2015 W W
Laura D. Millman
Special Master