Cottingham v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
*********************
SUSAN COTTINGHAM, on behalf *
of her minor child, K.C., * No. 15-1291
*
Petitioner, * Special Master Christian J. Moran
*
v. *
* Filed: April 20, 2017
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * Attorneys’ fees and costs; reasonable
* basis; reconsideration
Respondent. *
*********************
Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for petitioner;
Ann D. Martin, United States Dep’t of Justice, Washington, DC, for respondent.
PUBLISHED DECISION DENYING MOTION FOR RECONSIDERATION
OF DECISION DENYING ATTORNEYS’ FEES AND COSTS 1
Susan Cottingham maintained a claim in the Vaccine Program for
approximately one year until her case was dismissed. Decision, 2016 WL 6575170
(Oct. 13, 2016). She then sought her attorneys’ fees and costs, but was denied
because she did not establish eligibility. Fees Decision, issued Mar. 30, 2017. She
is now requesting reconsideration of that Fees Decision. For the reasons explained
below, Ms. Cottingham has not satisfied the standards for reconsideration. Her
motion, therefore, is DENIED.
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 ruling on its
website. 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.
Background
Ms. Cottingham alleged that a human papillomavirus (HPV) vaccine, which
was administered on July 5, 2012, harmed her daughter, K.C. The petition set
forth three discrete injuries: headaches, allegedly starting in November 2012; two
instances of fainting in March and May 2013; and menstrual problems, allegedly
starting in the latter part of 2013. Pet., filed Oct. 30, 2015.
Ms. Cottingham first communicated with her current attorney, Andrew
Downing, in May 2015, nearly five months before the case was filed in court. Mr.
Downing’s staff collected most (but not all) of the medical records within a few
months. For example, the law firm received medical records from Vestavia
Pediatrics by June 23, 2015.
Mr. Downing submitted the petition on October 30, 2015. Ms. Cottingham
maintained in it that K.C. first experienced symptoms of a condition the HPV
vaccine caused on November 1, 2012. Therefore, in Mr. Downing’s view, the 36-
month statute of limitations expired on November 1, 2015. Pet’r’s Mot. for
Attorneys’ Fees and Costs, filed Oct. 26, 2016, at 5.
At least five months after he filed the petition, Mr. Downing consulted two
experts, Dr. Nemechek and Dr. Lee. Neither provided a helpful opinion. See
Pet’r’s Mot. for Attorneys’ Fees and Costs at 6-7.
On October 6, 2016, Ms. Cottingham filed a motion for a decision. The
ensuing October 13, 2016 decision dismissed Ms. Cottingham’s case due to a lack
of evidence.
On October 26, 2016, Ms. Cottingham filed the motion for attorneys’ fees
and costs that the March 31, 2017 Fees Decision resolved. The Fees Decision
noted that the parties disputed whether Ms. Cottingham satisfied the reasonable
basis standard. Ms. Cottingham had argued that the press of the statute of
limitations entitled her to a more lenient standard. In contrast, the Secretary had
argued that a looming expiration of the statute of limitations should not affect the
reasonable basis analysis.
The March 31, 2017 Fees Decision denied Ms. Cottingham’s motion for an
award of attorneys’ fees and costs under different standards for reasonable basis.
Pursuant to an evidence-based standard, the relevant question is whether any
evidence supported the three claims asserted in the petition. The Fees Decision
2
found that no evidence, except a temporal sequence of events, supported the
allegations in the petition. The Fees Decision additionally analyzed the reasonable
basis using the broader totality of the circumstances test also applied in disputes
over reasonable basis. The Fees Decision found that if Mr. Downing had acted
more diligently in reviewing the material that he possessed before filing the
petition, he would have realized that the petition lacked a reasonable basis before
he filed the case. Each of the petition’s three claims faced significant challenges
because the allegations in the petition were not consistent with the medical records,
particularly the records from Vestavia Pediatrics, and the temporal relationship
between the vaccination and the onset of the illnesses seemed attenuated. Thus,
under either the evidence-based standard or the totality of the circumstances
standard, Ms. Cottingham did not establish the reasonable basis for any of the three
claims in her petition. Without this predicate showing, Ms. Cottingham could not
be awarded attorneys’ fees and costs.
On April 7, 2017, Ms. Cottingham filed the pending motion for
reconsideration pursuant to Vaccine Rule 10(e). She presents essentially two
arguments: (1) the only proper test for evaluating reasonable basis is the totality of
the circumstances, and (2) under the totality of the circumstances test, Ms.
Cottingham’s petition was supported by a reasonable basis.2
Standards for Adjudication
Vaccine Rule 10(e) affords parties in the Vaccine Program the opportunity
to seek reconsideration. The movant must establish that reconsideration is
warranted “in the interest of justice.” Vaccine Rule 10(e)(3); see also Krakow v.
Sec’y of Health & Human Servs., No. 03-632V, 2010 WL 5572074, at *3 (Fed. Cl.
Spec. Mstr. Nov. 12, 2010). Motions for reconsideration are not intended to serve
as vehicles for the submission of evidence that could have been presented earlier.
See Biery v. United States, 818 F.3d 704, 711 (Fed. Cir. 2016) (interpreting Rule
59(a)(1) of the Court of Federal Claims); Golden Bridge Technology, Inc. v.
Apple, Inc., 758 F.3d 1362, 1369 (Fed. Cir. 2014) (following Third Circuit law);
Cedillo v. Sec'y of Health & Human Servs., 617 F.3d 1328, 1348 (Fed. Cir. 2010).
2
The motion for reconsideration actually is divided into five headings. However, the
headings relate to one of the two arguments summarized in the text above.
3
Analysis
The analysis below first addresses petitioner’s argument that the proper
standard for analyzing reasonable basis is the totality of the circumstances. It goes
on to address the argument that Ms. Cottingham’s petition was supported by
reasonable basis under a totality of the circumstances standard.
I. The Proper Standard for Analyzing Reasonable Basis
Ms. Cottingham’s first point is more an observation, than a true argument.
Ms. Cottingham states “Special Masters overwhelmingly apply a reasonable basis
analysis that considers both the conduct of a petitioner’s attorney and a looming
statute of limitations.” Pet’r’s Mot. for Recons. at 2. Ms. Cottingham then cites a
series of cases illustrating her observation. She concludes that the undersigned
special master “has ignored a substantial amount of persuasive authority.” Id. at 5.
Ms. Cottingham is wrong to say that the Fees Decision “ignored” the cases
on which Ms. Cottingham relied. The Fees Decision cited them. The Fees
Decision also explained that as decisions from special masters, they do not
establish binding precedent. Hanlon v. Sec’y of Health & Human Servs., 40 Fed.
Cl. 625, 630 (1998). 3
Moreover, the Fees Decision explained why, in the undersigned’s view, an
evidence-based approach to the reasonable basis is correct. “The first and most
important step when interpreting a statute is, of course, analyzing its text.” Terran
v. Sec’y of Health & Human Servs., 195 F.3d 1302, 1310 (Fed. Cir. 1999). The
3
In addition to not being bound by decisions of other special masters, special masters do
not have to follow their own decisions. Hanlon, 40 Fed. Cl. at 630. This principle means that
the undersigned does not have to evaluate reasonable basis according to the totality of the
circumstances test, despite using that test in Hamrick v. Sec’y of Health & Human Servs., No.
99-683V, 2007 WL 4793152 (Fed. Cl. Spec. Mstr. Jan. 9, 2008).
Hamrick, which may have originated the totality of the circumstances test for reasonable
basis, drew upon cases that interpreted the Equal Access to Justice Act (EAJA). Id. at *4, citing
Smith v. Principi, 343 F.3d 1358, 1363 (Fed. Cir. 2003). However, the Court of Federal Claims
later determined that the principles that govern the award of attorneys’ fees in the Vaccine Act
differ from those under EAJA. Morse v. Sec’y of Health & Human Servs., 98 Fed. Cl. 780, 785
(2010). This determination undermines the pedigree of the totality of the circumstances test.
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portion of the Vaccine Act that authorizes special masters to award attorneys’ fees
and costs to unsuccessful petitioners requires that the special master find “there
was a reasonable basis for the claim for which the petition was brought.” 42
U.S.C. § 300aa–15(e). According to section 11(c), which is captioned “Petition
content,” a Vaccine Program petition “shall contain . . . supporting documentation,
demonstrating” five elements, listed as subparagraphs (A) through (E). 42 U.S.C.
§ 300aa–11(c). Thus, the Vaccine Act links “reasonable basis” to “supporting
documentation.” The Fees Decision stated: “Ms. Cottingham has offered no
argument based on the text of the Vaccine Act that supports an interpretation of the
reasonable basis standard that depends upon the statute of limitations.” Fees
Decision, issued Mar. 30, 2017. Ms. Cottingham quoted this sentence in her
pending motion. Pet’r’s Mot. for Recons. at 2. Yet, Ms. Cottingham still has not
presented any argument based on the text of the Vaccine Act. In her motion for
reconsideration, Ms. Cottingham would have been better served to present some
argument derived from the words and structure of the Vaccine Act that supports
her argument that the reasonable basis depends upon the totality of circumstances.
The omission of this argument is telling.
Rather than focus on the text of the Vaccine Act, Ms. Cottingham
emphasizes a “public policy” rationale. She devotes one section in her motion to
this topic. See Pet’r’s Mot. for Recons. at 15. However, the Fees Decision
addressed “public policy” by discussing Saunders v. Sec’y of Health & Human
Servs., 25 F.3d 1031 (Fed. Cir. 1994), and Perreira v. Sec’y of Health & Human
Servs., 33 F.3d 1375 (Fed. Cir. 1994). Ms. Cottingham makes no attempt to
explain how her view of reasonable basis is compatible with the Federal Circuit’s
statement that “Congress must not have intended that every claimant, whether
being compensated or not under the Vaccine Act, collect attorneys’ fees and costs
by merely having an expert state an unsupported opinion.” Perreira, 33 F.3d at
1377.
In short, in advancing a motion for reconsideration, Ms. Cottingham has
simply recast arguments that she presented in her October 26, 2016 motion and her
November 28, 2016 reply. Ms. Cottingham has not addressed the primary points
in the Fees Decision — (1) the lack of textual support for the totality of the
circumstances test for reasonable basis and (2) Perreira. Thus, Ms. Cottingham has
not established that “it is in the interest of justice” to reconsider the Fees
Decision’s use of an evidence-based approach to reasonable basis.
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II. Whether the Totality of the Circumstances Supports
the Claims Ms. Cottingham Set Forth in Her Petition
The heart of Ms. Cottingham’s motion for reconsideration is an argument
that the totality of the circumstances supports the claims set forth in the petition
she filed on K.C.’s behalf. In this regard, she appears to make arguments along
three lines. First, the special master failed to consider the entire record. Second,
the special master wrongly imposed a duty on the petitioner’s attorney to
investigate his client’s claims. Third, the special master wrongly imposed a duty
on the petitioner’s attorney to consider the temporal relationship between the
vaccination and the onset of the injury the vaccination allegedly caused.
A. Consideration of the Entire Record
In determining whether to award compensation, the Vaccine Act requires
special masters to consider the “record as a whole.” 42 U.S.C. § 300aa–13(a)(1).
In deciding the Fees Motion, the undersigned considered the entire record.
Ms. Cottingham seems to suggest that the Fees Decision was erroneous,
stating “the Special Master cherry pick[ed] the evidence” in finding that the
evidence did not support the petition’s allegations. Pet’r’s Mot. for Recons. at 5.
Ms. Cottingham, however, does not immediately identify any records that were not
discussed in the Fees Decision. Likewise, another review of Ms. Cottingham’s
October 26, 2016 fees application does not suggest that she cited any medical
records omitted from the Fees Decision. In any event, the omission of a discussion
of a particular medical record does not mean that the records were not considered.
See Hazlehurst v. Sec’y of Health & Human Servs., 604 F.3d 1343, 1352 (Fed. Cir.
2010).
In other parts of the motion for reconsideration, Ms. Cottingham seems to
suggest that the Fees Decision did not give enough weight to K.C.’s affidavit or the
records from University of Alabama-Birmingham, Gynecology Clinic. See Pet’r’s
Mot. for Recons. at 12-13. An argument about how the special master valued
evidence is not the same as an argument that the special master failed to consider
the evidence. See Paterek v. Sec'y of Health & Human Servs., 527 Fed. Appx.
875, 884 (Fed. Cir. 2013)(“Finding certain information not relevant does not lead
to – and likely undermines – the conclusion that it was not considered.”).
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B. Counsel’s Duty to Investigate Petitioner’s Allegations
K.C.’s affidavit underlies much of Ms. Cottingham’s argument about the
reasonable basis for Ms. Cottingham’s claim that the HPV vaccination harmed
K.C., especially the claim for headaches. The following paragraphs of K.C.’s
affidavit discuss headaches:
5. However, things changed on November 1, 2012.
At that time, I began getting regular weekly headaches.
Over the next few weeks, not only did the frequency of
the headaches increase but I also began to experience
episodes of near black-outs where my vision became
temporarily impaired. I also found myself having the
occasional low-grade fever.
6. On November 30, 2012, I returned to my doctor
and told him of my symptoms. He examined me but only
prescribed me an antibiotic. He advised me to drink
plenty of water.
7. The headaches, low-grade fevers and near black-
outs continued. I didn't want to complain because I was
taught to tough out what I thought was a temporary
condition.
8. I also began to notice that occasionally during
majorette practice I would find the need to stop because I
was feeling dizzy. That feeling had never occurred prior
to this school year.
9. I went to the doctor again on January 31, 2013
with a low-grade fever, headaches and what appeared to
me to be a cold or sinus infection. The doctor treated me
for a viral infection.
Exhibit 1. Significant portions of the affidavit quoted above are not consistent
with the medical records created contemporaneously with the events that they
describe.
Specifically, the Fees Decision noted that the medical record from
November 30, 2012, was not consistent with the allegation that the headaches
7
started on “November 1, 2012.” K.C.’s affidavit did not note that on November
30, 2012, the doctor diagnosed her with “acute sinusitis.” See exhibit 3 at 88.
Further, the medical record from January 31, 2013, is not consistent with the
allegation that K.C. was having “regular weekly headaches.” Instead, the medical
record says K.C. “[h]as had a headache today.” Exhibit 3 at 78.
Given the affidavit’s assertion that K.C. was having “regular weekly
headaches,” it would seem reasonable for K.C. to seek medical attention for these
“regular weekly headaches.” However, in three briefs, Ms. Cottingham has not
identified any record in which K.C. or her mother informed a doctor that K.C. was
having recurring headaches. The lack of a report should raise a question about the
accuracy of K.C.’s assertion. For example, K.C. saw her pediatrician on August
14, 2014, and reported that she has “Been doing well. No concerns.” Exhibit 3 at
109-10.
To the lack of record support for the assertion about “regular weekly
headaches,” Ms. Cottingham offers two answers. First, Ms. Cottingham presents a
story of what K.C. might have said in an entitlement hearing. Pet’r’s Mot. for
Recons. at 7-8. The problem with this answer is that K.C. already presented an
affidavit and she did not attempt to reconcile her assertion of “regular weekly
headaches” in the way Ms. Cottingham is now proposing. Furthermore, in light of
the lack of any medical records discussing “regular weekly headaches” from any
time, the affidavit strains credibility.
As to a credibility assessment, Ms. Cottingham argues that “Petitioner’s
Counsel does not have the luxury of interpreting the record against the Petitioner.”
Pet’r’s Mot. for Recons. at 8. The motion cites no authority for this proposition.
The lack of legal support is especially noticeable because the Fee Decision
contained a lengthy quotation from Wisconsin Chiropractic Ass’n v. State, 676
N.W.2d 580, 589-90 (Wis. Ct. App. 2004) that indicates that an attorney’s reliance
on a client’s statement is not always reasonable. Although the discussion was not
as detailed as the Wisconsin Court of Appeals, the Supreme Court of Arizona, the
state where Mr. Downing practices, took a consistent position in In re Alexander,
300 P.3d 536, 540 (Ariz. 2013) (en banc). Though the Fee Decision cited to both
cases, Ms. Cottingham’s motion for reconsideration did not address either case.
Closer to home, even cases from the Vaccine Program that have considered
the totality of the circumstances in assessing reasonable basis have required the
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attorney to investigate a claim before filing it. See Chuisano v. Sec'y of Health &
Human Servs., 116 Fed. Cl. 276, 291 (2014) (finding that a special master acted
within his discretion in not finding reasonable basis because, in part, the attorneys
did not establish diligence and noting “an earlier telephone call to one of the firm’s
regularly retained experts might have provided some evidence of timely due
diligence”); Rehn v. Sec’y of Health & Human Servs., 126 Fed. Cl. 86, 93 (2016)
(“If an attorney does not actively investigate a case before filing, the claim may not
have a reasonable basis and so may not be worthy of attorneys' fees and costs”);
Solomon v. Sec’y of Health & Human Servs., No. 14-0748V, 2016 WL 8257673,
at *4 (Fed. Cl. Spec. Mstr. Oct. 27, 2016) (“Petitioner's counsel still is required to
perform due diligence, given the available evidence and amount of time prior to
the running of the statute of limitations”); cf. Silva v. Sec'y of Health & Human
Servs., 108 Fed. Cl. 401, 405 (2012) (noting the Vaccine Act “contemplates the
sort of review prior to filing a claim that defendant highlighted: a simple review of
available medical records to satisfy the attorneys that the claim is feasible”).
“Vaccine Program attorneys still have the duty to investigate a Vaccine Act claim
even if they find their client to be credible in describing the claim’s purported
factual basis.” Livingston v. Sec’y of Health & Human Servs., No. 12-268V, 2015
WL 4397705, at *10 (Fed. Cl. Spec. Mstr. June 26, 2015) (finding no reasonable
basis because counsel should have explored whether the petitioner actually
received a vaccination as claimed).
In this case Mr. Downing received the Vestavia Pediatric records by June
23, 2015, and had ample time to review them. A simple review would have
revealed that K.C. did not report to her pediatrician any “regular weekly
headaches.” Mr. Downing knew or should have known that this client’s story
about her daughter did not have support in these medical records.
The amount of information available to Mr. Downing before he filed the
petition, including medical records from several doctors, makes arguments about
the press of the statute of limitations suspect. Ms. Cottingham came to Mr.
Downing approximately five months before Mr. Downing believed that the statute
of limitations for one claim (the headache claim) would expire. Mr. Downing
received medical records relatively quickly. Mr. Downing could have diligently
evaluated those medical records and determined whether those records are
consistent with his client’s recollection of events.
9
C. Counsel’s Duty to Investigate the Temporal Relationship
In addition to the discrepancies between the medical records created
contemporaneously with the events they are describing and K.C.’s affidavit, the
Fees Decision also found that the three claims the petition asserted (headaches,
fainting, and menstrual difficulties) were relatively remote in time from the
vaccination. Ms. Cottingham challenges this finding, asking “How could Mr.
Downing give Ms. Cottingham a medical opinion as to onset of autonomic
dysfunction on the eve of the statute of limitations, when he is not appropriately
credentialed to do so?” Pet’r’s Mot. for Recons. at 13. Ms. Cottingham adds “The
Special Master attempts to use a six week time frame for disease onset, as if
anything that manifests outside of six weeks could never be considered vaccine-
related.” Id.
These arguments are flawed in multiple respects. First, the petition did not
claim that the HPV vaccination caused “autonomic dysfunction.” The petition
claimed that the HPV vaccination caused headaches, fainting, and menstrual
difficulties. Pet., filed Oct. 30, 2015.
Second, “the eve of the statute of limitations” depends upon assuming the
accuracy of the affidavit’s allegation that K.C. started having “regular weekly
headaches” on November 1, 2012. As just discussed, this assumption is highly
questionable.
Third, the Fees Decision did not limit the appropriate time to “six weeks.”
Of the three asserted claims, the earliest onset of injury is November 1, 2012, for
headaches. The Fees Decision observed that the interval between the HPV
vaccination and November 1, 2012 is “119 days, nearly four months.” Fees
Decision, issued Mar. 30, 2017. The Fees Decision also observed that Ms.
Cottingham did not cite any cases in which special masters have accepted a four-
month interval. Id. This observation remains accurate, as the motion for
reconsideration also does not cite any cases with an interval as long as four
months.
Fourth, Mr. Downing possesses the ability to research cases to find out if
any special master found that a four-month interval was acceptable. Under the
totality of the circumstances, Mr. Downing’s pre-filing diligence should have
included some preliminary research about the amount of time that could be
considered reasonable. Mr. Downing possessed sufficient records, including the
records from Vestavia Pediatrics that document when K.C. started having
10
menstrual difficulties, to explore this fundamental inquiry. See exhibit 3 at 174-75
(“has not had a period in 4 mo . . . Mom is concerned that the Gardasil series may
have had something to do with the recent changes noted in her menstrual cycle”)
(dated May 14, 2015).
In connection with Mr. Downing’s ability to research whether special
masters have accepted a nearly four-month onset, it bears repeating that Mr.
Downing met Ms. Cottingham nearly five months before Mr. Downing filed her
petition. Mr. Downing possessed the medical records from Vestavia Pediatrics,
which document two headaches, for approximately four months before the petition
was filed. Mr. Downing has not explained why he could not perform any basic
research before he filed the petition.
Fifth, to the extent that Ms. Cottingham is arguing that Mr. Downing
required the assistance of an expert witness to assess the temporal interval, this
point simply returns to the undersigned’s preference for looking at evidence in
assessing reasonable basis. If Mr. Downing needed to consult a doctor to find out
whether four months (headache), nearly nine months (first episode of fainting), or
28 months (menstrual difficulties) could constitute an appropriate temporal
interval, then he should have obtained a report from a doctor. The timesheets do
not indicate any efforts to obtain an expert’s report until months after the petition
was filed.
D. Additional Arguments
Ms. Cottingham makes several additional arguments that question the
soundness of the Fees Decision’s finding that the totality of the circumstances does
not support the claims set forth in the petition. These arguments repeat arguments
presented in the October 26, 2016 motion for attorneys’ fees and costs and/or in the
November 28, 2016 reply. A party’s simple disagreement with an outcome does
not justify the granting of a motion for reconsideration.
Conclusion
The March 31, 2017 Fees Decision found that under either the evidence-
based approach or the totality of the circumstances approach to reasonable basis
Ms. Cottingham failed to establish the reasonable basis for any of the three claims
set forth in the petition. A finding of reasonable basis is a predicate to an award of
attorneys’ fees and costs to an unsuccessful petitioner. 42 U.S.C. § 300aa–15(e).
Thus, Ms. Cottingham was denied attorneys’ fees and costs.
11
The pending April 7, 2017 motion for reconsideration fails to demonstrate
that a different outcome is “in the interests of justice.” Vaccine Rule 10(e). Thus,
the motion for reconsideration is DENIED and the March 31, 2017 Fees Decision
remains valid.
IT IS SO ORDERED.
S/Christian J. Moran
Christian J. Moran
Special Master
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