CHRISTIAN J. MORAN, Special Master.
Susan Cottingham filed a petition under the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-10 through 34 (2012), on October 30, 2015, on behalf of her minor daughter, K.C. However, the case was dismissed within a year of its filing.
However, after Ms. Cottingham filed a motion for review, the Court vacated the Fees Decision and remanded for additional consideration.
K.C. was born in 1998. Her health through 2011 was relatively routine and overall good.
In March 2012, a Middle Creek Urgent Care facility diagnosed K.C. with mononucleosis. A week later, K.C.'s regular pediatrician saw her. K.C. stated that her throat was hurting, she felt tired, and she had headaches. The doctor diagnosed her as having a viral illness on top of the mononucleosis. Exhibit 3 at 55-56.
Before starting high school, K.C. returned to the pediatrician's office. The doctor did not record any significant health concerns. During this appointment, which occurred on July 5, 2012, K.C. received three vaccinations — the hepatitis A vaccine, the meningococcal conjugate vaccine, and the human papillomavirus (HPV) vaccine. Exhibit 3 at 99-100. Ms. Cottingham's claim rested upon the HPV vaccine.
Approximately one month later, while performing as a majorette in her school's band, K.C. twisted her right knee. The pediatrician recorded that except for the problem with her right knee, a review of symptoms was "negative." Exhibit 3 at 64. For the knee injury, K.C. went to physical therapy. Exhibit 5.
On October 10, 2012, K.C. went to the Children's Hospital of Alabama where she saw a pediatric gynecologist. The history of present illness from this visit states:
Exhibit 9 at 4. Except as noted in the history of present illness, the doctor's review of symptoms was "negative times 10."
According to an affidavit K.C. signed for this litigation, her health changed on November 1, 2012 (almost four months after her receipt of the HPV vaccination). K.C. stated: "I began getting regular weekly headaches. Over the next few weeks, not only did the frequency of headaches increase but I also began to experience episodes of near black-outs where my vision became temporarily impaired." Exhibit 1 ¶ 5. Ms. Cottingham's attorney asserted that November 1, 2012, marked the onset of the problems the HPV vaccine allegedly caused in K.C. Pet'r's Mot. for Attorneys' Fees and Costs, filed Oct. 26, 2016, at 5.
On November 30, 2012, K.C. returned to her pediatrician's office. She complained about having a fever, yellow mucous, a sore throat in the mornings, and headaches "off and [on] all week." The doctor diagnosed her as having "acute sinusitis." Exhibit 3 at 87-88.
Approximately two months later, K.C. had another appointment with her pediatrician. The history of present illness states that K.C.
Exhibit 3 at 78 (record created Jan. 31, 2013). The doctor's assessment was "rhinitis" and "acute viral pharyngitis."
On March 29, 2013, K.C. "fainted upon getting up this morning." She also had a fever and dizziness. She vomited once. The doctor's assessment was "gastroenteritis" and "dehydration." The doctor believed that K.C. was "at the early stage of an intestinal virus." Exhibit 3 at 80-81. March 29, 2013 is 267 days (nearly 9 months) after July 5, 2012, the date of the first HPV vaccination.
K.C. fainted again on May 23, 2013, while at a pool. The history of present illness from her treatment after this incident states that after waking up this morning, K.C. did not have anything to eat or drink. When at the pool with a friend, K.C. felt "very hot" and "hungry" "so she stood up quickly to go get something to eat. She says at that point her vision became black and she felt very light headed. Soon after she fell backwards." Exhibit 3 at 70. The doctor thought that K.C. "was dehydrated prior to this event. [She] also [thought] laying out in the sun may have contributed." The doctor recommended that K.C. increase her intake of fluids.
On July 25, 2013, K.C. visited the pediatric cardiology clinic of the University of Alabama-Birmingham. The history of present illness recounts the two incidents of fainting from March and May. In addition, K.C. "has had other episodes of dizziness and near passing out. With all the episodes, she is standing or walking. She does not participate in any competitive athletics. She does participate as a majorette. She has not had any dizziness or syncope with physical activity." Exhibit 3 at 111. The doctor conducted various tests and determined that she had a "structurally and functionally normal heart. This syncope/presyncope is consistent with a vasovagal etiology." The doctor "emphasized aggressive fluid hydration."
Following the July 25, 2013 visit with the pediatric cardiologist, nearly eight months passed before the next medical record. On March 14, 2014, K.C. went to the office of her pediatrician. Her chief complaint was listed as "cough, congestion, [sore throat], low-grade fever." The doctor's assessment was "cough," "acute viral pharyngitis," and "acute upper respiratory infection." Exhibit 3 at 106.
K.C. again saw a pediatrician for a checkup on August 18, 2014. The history of present illness states: "Been doing well. No concerns." The office notes also indicate that the date of Casey's last menstruation was July 25, 2014. They also say that an oral contraceptive was discontinued, although the date of discontinuance was not given. At this appointment, K.C. received another dose of the hepatitis A vaccine, another dose of the meningococcal conjugate vaccine, and another dose of the HPV vaccine. Exhibit 3 at 109-10.
Pursuant to a history given to a gynecologist in April 2015, K.C. took oral contraceptives until October or November 2014 when her prescription ran out. This same history reports that K.C. had a menstrual period in December 2014, but none since that month. Exhibit 7 at 7. During the April 28, 2015 appointment, the gynecologist came to the impression that K.C. was suffering from "secondary amenorrhea." The doctor also indicated that polycystic ovarian syndrome was possible. The doctor ordered an ultrasound.
Because of problems scheduling the ultrasound, Ms. Cottingham called the office of K.C.'s pediatrician on May 14, 2015. Ms. Cottingham was "concerned that the Gardasil series may have had something to do with the recent changes noted in [K.C.'s] menstrual cycle. Mom is requesting that a note be made in [her] chart regarding this concern." Exhibit 3 at 175.
The day after this May 2015 phone call, Ms. Cottingham retained her current attorney, Andrew Downing. Pet'r's Mot. at 4. Within a few days, a paralegal was requesting information from Ms. Cottingham to obtain medical records. Timesheets, pages 9-10.
K.C. returned to the pediatric gynecology clinic of the University of Alabama-Birmingham on July 8, 2015. The doctor recorded that her abnormal uterine bleeding was now resolved with the use of oral contraceptives. The doctor continued the prescription. Exhibit 7 at 11-13.
At the law firm, a paralegal continued the process of requesting and obtaining medical records throughout the summer of 2015. On October 16, 2015, Mr. Downing reviewed the medical records received to date. Timesheets, page 1. Shortly thereafter, Mr. Downing and his paralegal began working on a witness statement and drafting a petition. Timesheets, pages 1, 6.
Mr. Downing submitted the petition on October 30, 2015. He 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. at 5.
The petition was not very specific. The introductory paragraph alleged that K.C. suffered "a severe adverse reaction." Paragraph four of the petition references headaches that began on November 1, 2012. Paragraphs six and seven refer to episodes of fainting in March and May 2013, respectively. Paragraph nine asserts that K.C. began having menstrual problems in the latter part of 2013.
Over the next few months, Mr. Downing's office obtained more medical records and filed them. On March 15, 2016, Mr. Downing submitted a statement of completion, representing that Ms. Cottingham had filed all the medical records of which she was aware.
On March 28, 2016, a status conference was held. The Secretary stated that he was concerned about the reasonable basis for the petition. In response, Mr. Downing stated that Ms. Cottingham would attempt to retain an expert.
Mr. Downing called one doctor, whom Mr. Downing has retained in other Vaccine Program cases, Dr. Nemechek. However, Dr. Nemechek did not provide a favorable opinion. After consulting Ms. Cottingham, Mr. Downing consulted a second expert, Dr. Lee. However, Dr. Lee also could not provide a favorable opinion.
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.
Ms. Cottingham filed her first motion for attorneys' fees and costs on October 26, 2016. She devoted one section of her accompanying brief to an argument that reasonable basis supported her petition. Ms. Cottingham primarily contended that her attorney was required to file her petition before the expiration of the time set by the statute of limitations. Therefore, the standard for evaluating reasonable basis should be more lenient. Pet'r's Mot. for Attorneys' Fees and Costs, filed Oct. 26, 2016, at 7.
After this discussion about the requirements to be eligible for attorneys' fees and costs, Ms. Cottingham discussed the amount of attorneys' fees and costs that would be reasonable.
The Secretary opposed the motion for attorneys' fees and costs. He argued that Ms. Cottingham's case lacked a reasonable basis. To the Secretary, the pendency of the statute of limitations does not affect the analysis of reasonable basis. Resp't's Resp., filed Nov. 14, 2016. As to the reasonable amount of attorneys' fees and costs, the Secretary did not comment.
Ms. Cottingham submitted a reply, reinforcing and repeating her arguments regarding reasonable basis. Pet'r's Reply, filed Nov. 28, 2016. Ms. Cottingham added that an attorney's leaving a potential petitioner with only a short time either to find a new attorney to represent her or to file a case
Respondent submitted a sur-reply noting that the Court had granted a motion for review in
The March 30, 2017 Fees Decision found that Ms. Cottingham had failed to satisfy the reasonable basis standard. Preliminarily, the Fees Decision ruled that petitioners satisfy the reasonable basis standard by presenting evidence supporting the claims set forth in the petition. The Fees Decision determined that an evidence-based standard was in accord with the language and structure of the Vaccine Act. The Fees Decision found that Ms. Cottingham had not presented sufficient evidence to establish a reasonable basis for the claims set forth in the petition. 2017 WL 1476242, at *6-11.
The Fees Decision also considered an alternative to an evidence-based standard, the "totality of the circumstances" standard. Under the totality of the circumstances standard, the Fees Decision found that Ms. Cottingham had not established the reasonable basis for any of the three claims set forth in the petition (headaches, fainting, and menstrual difficulties). The Fees Decision found that the medical records were inconsistent with the claims in the petition and that the timing was a problem. The Fees Decision also stated that Mr. Downing did not accurately assess the information available to him before he filed the petition. 2017 WL 1476242, at *11-15.
Following the Fees Decision, Ms. Cottingham filed a 16-page motion for reconsideration. The motion for reconsideration argued that the Fees Decision erred in using an evidence-based standard to evaluate reasonable basis. Ms. Cottingham's motion for reconsideration also contended that the Fees Decision failed to account for K.C.'s affidavit and the affidavit did not conflict with the medical records.
The undersigned denied the motion for reconsideration. With respect to the proper standard by which to evaluate reasonable basis, the undersigned stated that Ms. Cottingham did not address the lack of textual support in the Vaccine Act for the totality of circumstances standard and Ms. Cottingham did not address
Ms. Cottingham filed a motion for review. The Secretary responded.
As previously mentioned, the Court granted the motion for review. Opinion, 2017 WL 4546579. For each of the two reasons the Fees Decision gave for finding that there was not a reasonable basis for the claim set forth in the petition, the Court stated that the standard was not correct. With respect to the discrepancy between the contemporaneously created medical records, the Court stated: "To interpret these medical records to vitiate any reasonable basis for the claim places too onerous a burden on counsel at the pleading stage." 2017 WL 4546579, at *7. The Court continued: "Insisting that an injured claimant's testimony precisely mesh with medical records is too exacting a standard to apply in assessing whether a claim has a reasonable basis."
The Court's ruling with respect to the temporal relationship between the vaccination and the onset of symptoms was similar. "The Special Master's conclusion that Petitioner's counsel was required to marshal evidence and precedent on the timing of onset of [HPV] vaccine injuries to establish a reasonable basis for filing a claim asks too much." 2017 WL 4546579, at *8. Accordingly, the Court vacated the fees decision and remanded for additional adjudication under the standard articulated in its ruling.
After the Court issued its Opinion, Ms. Cottingham filed a supplemental motion for attorneys' fees and costs. This motion captures efforts of Mr. Downing and others beginning October 21, 2016. The motion encompassed work on the October 26, 2016 motion for attorneys' fees and costs, the reply brief, the motion for reconsideration, and the motion for review. Ms. Cottingham is seeking $20,182.50 for attorneys' work in litigating the fee dispute as well as an additional $1,758.09 in costs. Pet'r's Supp'l Mot., filed Sept. 19, 2017.
The Secretary filed a short response. The Secretary stated: "In response to petitioner's application for supplemental fees, respondent respectfully maintains his position on reasonable basis as set forth in previous filings in order to preserve the arguments for a potential appeal. On the amount to be awarded in light of Judge Coster Williams' Opinion and petitioner's supplemental application for fees, respondent defers to the sound discretion of the Special Master." Resp't's Resp., filed Oct. 3, 2017.
Following an informal request from the undersigned, Ms. Cottingham submitted her General Order #9 statement on November 6, 2017, indicating that Ms. Cottingham had not incurred any costs personally. This submission makes the motions for attorneys' fees and costs ready for adjudication.
When a petitioner, like Ms. Cottingham, does not receive compensation, "the special master or court may award an amount of compensation to cover petitioner's reasonable attorneys' fees and other costs incurred in any proceeding on such petition if the special master or court determines that 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). Thus, non-prevailing petitioners must establish two conditions precedent for being eligible for an award of attorneys' fees: "good faith" and "reasonable basis." Here, Ms. Cottingham acted in good faith. Thus, the critical element is "reasonable basis."
In the absence of precedential guidance from the Federal Circuit, the Court held that reasonable basis should be evaluated according to the totality of the circumstances. Opinion, 2017 WL 4546579, at *5-6. This holding is binding in this case.
In further defining the "totality of the circumstance," the Court indicated that an affidavit from a petitioner does not need to "precisely mesh with medical records" to support a finding of reasonable basis. The Court also indicated that special masters may not expect petitioners to support the temporal sequence with either evidence or precedent.
Under this standard, Ms. Cottingham satisfies the reasonable basis standard. K.C.'s affidavit, alone, justifies this result. In reaching this conclusion, the undersigned does not consider the discrepancies between the affidavit and K.C.'s medical records. The undersigned also does not consider that the latency between the vaccination and the onset of K.C.'s headaches or fainting or menstrual difficulties. K.C.'s affidavit, by itself, carries Ms. Cottingham's burden to establish a reasonable basis. Ms. Cottingham is eligible for an award of attorneys' fees and costs.
The remaining issue is quantifying a reasonable amount for attorneys' fees and costs. These are taken up separately below.
The Federal Circuit has approved the lodestar approach to determine reasonable attorneys' fees and costs under the Vaccine Act. This is a two-step process.
In the October 26, 2016 fee motion, the petitioner seeks attorneys' fees for work four professionals performed.
For the September 19, 2017 supplemental fee motion, three professionals contributed: Mr. Downing, associate attorney Courtney Van Cott, and Ms. Avery. Ms. Cottingham requests that these professionals be compensated at the following hourly rates: Mr. Downing — $375, Ms. Van Cott — $195, and Ms. Avery — $135.
The second factor in the lodestar formula is a reasonable number of hours. Reasonable hours are not excessive, redundant, or otherwise unnecessary.
Tasks "that a paralegal can accomplish should be billed at a paralegal's hourly rate."
Overall, the timesheets from Mr. Downing and people from his law firm are sufficiently detailed that the activity can be assessed for its reasonableness. In only a handful of instances, the attorney or paralegal charged an excessive or unreasonable amount of time on a given task.
In light of the relatively small unsupported increases in hourly rate for Mr. Downing and Ms. Avery and the few tasks for which the charge was unreasonable, a small adjustment is required. According to the United States Supreme Court, tribunals determining reasonable amounts of attorneys' fees do not have to present calculations with the precision of a "green eye-shade accountant."
In addition to seeking an award of attorneys' fees, Ms. Cottingham seeks an award for her attorneys' costs. The initial motion requested $1,105.77 and the supplemental motion requested $1,758.09. The total amount, $2,863.86, is adequately documented, reasonable, and awarded in full.
Based upon the Court's interpretation of reasonable basis, Ms. Cottingham is eligible for an award of attorneys' fees and costs. A reasonable amount is
This shall be paid as follows:
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk shall enter judgment accordingly.
