MARY ELLEN COSTER WILLIAMS, Judge.
This vaccine injury case comes before the Court on Petitioner's Motion for Review of the Special Master's decision denying Petitioner's requested attorney's fees and costs,
Because the Special Master imposed an overly onerous burden on Petitioner to establish a reasonable basis for her claim and failed to adequately consider the impending statute of limitations, the Court vacates the Special Master's decisions and remands this matter.
K.C. was born on June 22, 1998. Pet'r's Ex. 3, at 5. Other than a diagnosis of mononucleosis in March 2012, K.C. had no significant recorded health concerns prior to the administration of the HPV vaccine on July 5, 2012.
In the months following vaccine administration, K.C. was seen by her doctors for complaints regarding a knee injury and "heavy menstrual cycles and irregular bleeding."
According to K.C.'s sworn statement, on November 1, 2012, approximately four months post-vaccine, K.C. began experiencing "regular weekly headaches" followed by episodes of near-blackouts and occasional low-grade fever. Pet'r's Ex. 1, at ¶ 5.
Between January of 2013 and May of 2014, K.C. reported additional symptoms to her treatment providers, and her pediatrician attributed all these symptoms to causes unrelated to the HPV vaccine. On January 31, 2013, K.C. reported symptoms that included runny nose, congestion, low-grade fever, sore throat, and headache; her pediatrician attributed her symptoms to rhinitis and acute viral pharyngitis. Pet'r's Ex. 3, at 78-79. On March 29, 2013, K.C. saw her physician for treatment of "acute onset [that] morning of fever and dizziness," reporting that she "had actually fainted upon getting up this morning."
On May 23, 2013, K.C. reported that she had "[p]assed out today while at the pool," hit the back of her head on the pool deck, and thereafter suffered from "slight [headache] and queasiness."
On July 25, 2013, a pediatric cardiologist attributed K.C.'s recent episodes of dizziness and fainting to a vasovagal etiology unrelated to any vaccine.
In early 2015, K.C. experienced menstrual irregularities.
On May 15, 2015, Petitioner retained counsel to pursue her vaccine claim. Mot. for Review 7. Over the next five months, between May 15, 2015, and October 30, 2015, counsel requested and obtained medical records from K.C.'s pediatrician, orthopedist, physical therapist, urgent care provider, and gynecologist before filing the petition on October 30, 2015.
According to Petitioner's sworn statement dated March 7, 2016, K.C. continued to suffer from headaches at that time. Pet'r's Ex. 8, at 2. In her own sworn statement, K.C. stated that she was still suffering from headaches in July of 2013, but did not mention these headaches to her doctor at that time. K.C. testified that these headaches subsequently lessened at the beginning of her sophomore year of high school and returned "shortly after" the second vaccination on August 18, 2014. Pet'r's Ex. 1, at ¶¶ 14, 16-18.
On October 30, 2015, Petitioner filed a petition under the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-10 to 34 (2012) ("Vaccine Act"), alleging that a Gardasil vaccination administered on July 5, 2012, caused K.C. to develop "a severe adverse reaction" including "headaches unlike anything she experienced before . . . on a regular basis," "episodes of lightheadedness, which she described as near black-out," two episodes of fainting — once where she "walked to the bathroom and passed out and hit her head" and another where she was "unconscious for about a minute," and "menstrual problems, missing her period for 5 or 6 months." Pet. ¶¶ 4-7, 9.
Petitioner first contacted counsel on May 15, 2015, and signed a retention agreement that same day. Mot. for Fees 4-5. According to timesheets, counsel first requested K.C.'s medical records on June 17, 2015, from Vestavia Pediatrics and UAB Department of Obstetrics and Gynecology.
Based on his review of the medical records then collected from Vestavia Pediatrics, OK Orthopedics, Millennium PT, Middle Creek Medical, and UAB Department of Obstetrics and Gynecology, and K.C.'s sworn statement, counsel was of the opinion that the onset of K.C.'s vaccine-caused injury occurred on November 1, 2012, when K.C. developed "regular weekly headaches," and that the applicable statute of limitations therefore expired on November 1, 2015. Mot. for Fees 2, 4-5. Counsel filed the petition on October 30, 2015, two days prior to the expiration of the statute of limitations. At the time of filing, counsel did not yet have Petitioner's records from Children's of Alabama, or additional records from UAB Department of Obstetrics and Gynecology.
By March 15, 2016, counsel had collected and filed all relevant medical records. On March 28, 2016, the Special Master conducted a status conference. During the discussion, Respondent's counsel "noted that reasonable basis for bringing the case may not be present for petitioner." Order (Mar. 28, 2016). "Acknowledg[ing] the reasonable basis issue," Petitioner's counsel requested and was granted an opportunity to review the case with a medical expert and file a supporting expert report.
On June 15, 2016, after Petitioner had missed her June 10, 2015 deadline to file a status report or an expert report, the Special Master ordered Petitioner to "immediately file a motion requesting an extension of time, or, in the alternative, file the expert report or status report." When, as of June 28, 2016, Petitioner had not filed either a status report or an expert report, the Special Master issued an order to show cause why Petitioner's case "should not be dismissed for failure to prosecute and/or failure to comply with the court's order." Order 1 (June 28, 2016). On August 3, 2016, Petitioner's counsel contacted a second potential expert, Dr. Lee. On August 26, 2016, Petitioner filed her response to the Order to Show Cause, stating that she had been "attempting to secure an expert to opine in this matter," and that she had secured an expert who reviewed the claim but had ultimately been unable to offer an opinion. Pet'r's Resp. to Show Cause Order 1. Petitioner stated that she "wish[ed] to continue to pursue her vaccine claim" and that she was attempting to locate another expert.
On October 7, 2016, Petitioner moved to dismiss her petition, acknowledging that "an investigation of the facts and science supporting [her] case, as medical records were received and investigation was ongoing, has demonstrated to Petitioner that she will likely be unable to meet her burden of proof." Mot. for Dec. 1. The Special Master issued a dismissal decision on October 13, 2016.
On October 26, 2016, Petitioner filed an Application for Final Attorneys' Fees and Costs seeking $10,363 in attorneys' fees and $1,105.77 in costs. Mot. for Fees 21. This amount includes $5,223 for attorney time and $5,140 in legal assistant time. On November 14, 2016, Defendant filed a Response to Petitioner's Application arguing that the Special Master should deny any attorneys' fees and costs because Petitioner's claim lacked a reasonable basis. Fee Resp. 13-14.
On March 30, 2017, the Special Master issued a decision denying Petitioner any attorneys' fees or costs. Fee Dec. *16. The Special Master noted that, in the absence of guidance from the Federal Circuit on the reasonable basis standard, the parties had endorsed two competing standards for assessing reasonable basis: a "totality of the circumstances" standard, advocated by Petitioner, and an evidentiary standard, advocated by Respondent.
The Special Master ultimately held that, under either standard, Petitioner had failed to prove that her claim had a reasonable basis, finding the medical records collected at the time the petition was filed did not support causation, and the extended period between vaccination and the onset of K.C.'s injuries placed her injuries "outside the typical temporal window."
On April 27, 2017, Petitioner petitioned for review of the Special Master's decisions denying fees and reconsideration. On review, Petitioner contends that the Special Master erred in applying an evidence-based standard on reasonable basis and in failing to take into account the impending statute of limitations. Mot. for Review 2-14. Petitioner further argues that medical records support her claimed injuries and that the Special Master erred in concluding that the length of time between vaccination and onset was implausible.
Respondent argues that Petitioner's claim lacked a reasonable basis because it was not supported by medical records or expert opinion and because the time frame between vaccination and onset of K.C.'s injury was "facially suspect." Resp. 17-20. Respondent further argues that, because Petitioner had retained counsel five months prior to the expiration of the statute of limitations, Petitioner should not now be permitted to rely on the statute of limitations as an excuse for counsel's failure to exercise due diligence.
This Court exercises jurisdiction pursuant to § 300aa-12(e)(1) of the Vaccine Act. In reviewing a decision rendered by a Special Master, this Court may: (1) uphold the findings of fact and conclusions of law by sustaining the special master's decision; (2) set aside any findings of fact or conclusions of law "found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" and issue its own findings of fact or conclusions of law; or (3) "remand the petition to the Special Master for further action in accordance with the court's direction." 42 U.S.C. § 300aa-12(e)(2)(A)-(C) (2016).
To reverse for an abuse of discretion, this Court must find that the Special Master's decision was "clearly unreasonable, arbitrary, or fanciful," "based on an erroneous conclusion of the law,'" "based on clearly erroneous fact findings," or, alternatively, that the "`record . . . contains no evidence on which the [Special Master] could rationally base [his] decision.'"
Special Masters are statutorily authorized to determine and award "reasonable attorneys' fees" and costs under the Vaccine Act. 42 U.S.C. § 300aa-15(e)(1) (2016). To award attorneys' fees and costs to a petitioner who has been denied compensation, the Special Master must "determine 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). "Good faith" and "reasonable basis" are assessed separately. Unlike good faith, reasonable basis is not presumed, and it is assessed using an objective standard.
The Federal Circuit has not addressed what legal standard tribunals should apply in assessing whether a petitioner's Vaccine Act claim has a "reasonable basis" for purposes of fee awards. Here, Respondent urges the Court to apply an evidence-based standard, while Petitioner espouses the totality-of-the-circumstances standard. The Special Master applied both standards but expressed a preference for the evidence-based standard.
In this Court's view, the Special Master's preferred evidence-based standard is too narrow. As the Court of Federal Claims has repeatedly noted, the Vaccine Act grants Special Masters "maximum discretion" in applying the reasonable basis standard.
This Court agrees with the majority of the Court of Federal Claims' opinions, finding that the reasonable basis of a Vaccine Act claim should be assessed based on the totality of the circumstances.
The reasonable basis requirement is "objective, looking not at the likelihood of success of a claim but more to the feasibility of the claim."
This totality of the circumstances assessment should take into account evidence available at the time a claim is filed and evidence that becomes available as the case progresses. Assessment of reasonable basis should not be a static, one-time inquiry at the time of filing a petition. Rather, petitioners' counsel have an obligation to voluntarily dismiss a Vaccine Act claim once counsel knows or should know a claim cannot be proven.
Petitioner challenges the Special Master's finding that Petitioner lacked a reasonable basis for her claim, arguing that the Special Master analyzed her claim "under an elevated entitlement standard, not a reasonable basis standard." Mot. for Review 6. Petitioner argues that the Special Master erred in concluding that there was no evidence to support Petitioner's claim that the HPV vaccination caused K.C.'s headaches, fainting, or menstrual problems, as her medical records supported Petitioner's claims. Id. at 6-11.
In finding that K.C.'s medical records did not support "recurring headaches," the Special Master discounted K.C.'s sworn statement, finding that it lacked credibility. See Recons. Dec. *4 ("In light of the lack of any medical records discussing `regular weekly headaches' from any time, the affidavit strains credibility."). In his reconsideration decision, the Special Master stated:
However, the allegation that K.C. suffered from recurring headaches was based on counsel's reasonable reliance on contemporaneous medical records documenting K.C.'s headaches in late November 2012 and on January 31, 2013.
Regarding Petitioner's claim for fainting, the Special Master found that the "Vestavia Pediatrics records further undermine the reasonableness of the claim" because they attributed both fainting episodes to underlying causes unrelated to K.C.'s receiving the Gardasil vaccine. Fee Dec. *14. Regarding Petitioner's claim of menstrual problems, the Special Master stated that the Vestavia Pediatrics records "again call into question the assertions in the petition," as there is no evidence that K.C. was having menstrual difficulties at either her 2013 or 2014 check-up, as the first evidence that K.C. had begun missing her period was a nurse's note dated May 14, 2015.
In her sworn statement, K.C. explained why she had failed to report her headaches and dizziness on other occasions — she was a high school student afraid that reporting these conditions might prevent her from going to band camp, a reasonable fear for a girl that age. Contrary to the Special Master's finding, for purposes of assessing the reasonable basis of Petitioner's claim, the medical records referenced K.C.'s injuries consistently with her and her mother's sworn statements, and her counsel reasonably credited their sworn statements that K.C. suffered from recurrent headaches, fainting, and menstrual problems. 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 Special Master found a lack of temporal proximity between vaccination and onset for each of Petitioner's claimed injuries — headaches, dizziness, and menstrual difficulties. The intervals between the date of first vaccination and the onset of injury were: 119 days for headaches, 267 days for the first fainting episode and 322 days for the second fainting episode, and over two years for menstrual difficulties. Petitioner challenged the Special Master's findings on temporal proximity, arguing that the Special Master essentially required counsel to perform an
The Special Master's conclusion that Petitioner's counsel was required to marshal evidence and precedent on the timing of onset of Guardasil vaccine injuries to establish a reasonable basis for filing a claim asks too much. There is only one Federal Circuit decision addressing the proximate temporal relationship between Gardasil and an injury, and that case involved a different injury. In
The HPV vaccine at issue here, the Gardasil vaccine, was approved by the Food and Drug Administration on June 8, 2006, and neither Petitioner nor Respondent cited evidence regarding an appropriate temporal window for the onset of the claimed injuries caused by this vaccine. This case does not involve a vaccine or injury whose onset window has been established by case law, expert opinion, or medical literature. Presumably, this is an issue that would have been addressed by Petitioner's causation expert, had one been retained. Retention of a causation expert is not, however, a prerequisite for filing a vaccine petition.
Although Petitioner's inability to present evidence regarding the timeliness of injury onset may, ultimately, have constituted a "changed circumstance" warranting reexamination of reasonable basis, Petitioner's failure to marshal more legal precedent and evidentiary support for this aspect of her claim at the time her petition was filed does not mean the claim lacked a reasonable basis, warranting a denial of any fees. As the Court of Federal Claims explained in
116 Fed. Cl. at 285.
Petitioner argues that the Special Master failed to take into account the impending statute of limitations and counsel's conduct in making his determination on reasonable basis, two factors that have been analyzed by other Special Masters. Mot. for Review 4. The Special Master addressed the statute of limitations for the first time in his reconsideration decision, stating:
Recons. Dec. *5.
The Special Master's suggestion that Petitioner's counsel failed to act with due diligence is unwarranted.
Once Petitioner's counsel obtained all the records, he attempted to secure a supporting expert opinion. Less than one month after receiving the final installment of medical records, counsel contacted the first potential expert, Dr. Nemechek, on April 8, 2016, with follow up calls on May 16, 2016, and May 24, 2016, and contacted a second expert, Dr. Lee, on August 3, 2016, with an email on August 30, 2016, and follow-up calls September 20, 2016, and September 22, 2016. Once the experts were unable to support Petitioner's claim, Petitioner's counsel promptly sought dismissal of the petition on October 7, 2016. In short, counsel acted with due diligence.
Petitioner is correct that an impending statute of limitations should play a role in a reasonable basis determination.
Petitioner's motion for review is
On remand, the Special Master shall apply a totality of the circumstances standard and reassess whether Petitioner's claim had a reasonable basis at the time the petition was filed and at intervals when additional evidence became available to Petitioner's counsel thereafter.
Pursuant to 42 U.S.C. § 300aa-12(e)(2), the Court allows 90 days for completion of proceedings on remand.
The Clerk shall not disclose this decision publicly for 14 days.
Fee Dec. *13, 15 (internal citations and footnote omitted).