LAURA D. MILLMAN, Special Master.
On September 20, 2017, petitioner filed a petition under the National Childhood Vaccine Injury Act, 42 U.S.C. § 300aa-10-34 (2012), alleging that influenza ("flu") vaccine administered in her left deltoid on September 25, 2014 caused a severe exacerbation of a prior condition occurring on August 1, 2014 of sudden pain in her right shoulder, right arm, right hand, upper back, and all over her body, causing her brachial plexopathy ("Parsonage-Turner syndrome" or "PTS"). Pet. ¶¶ at 4, 9, 26.
On August16, 2018, the undersigned dismissed the case. On November 21, 2018, petitioner filed a motion for attorneys' fees and costs. For the reasons set forth below, the undersigned
On November 22, 2017, the undersigned issued her first Order to Show Cause in this case. In light of the medical records, the undersigned questioned vaccine causation based on petitioner's treating doctor's diagnosis that petitioner's right plexopathy was thought due to a varicella infection, another herpes infection, or a reactivated Epstein-Barr virus with secondary autoimmune response. Doc 10, at 1.
Petitioner continued filing medical records until filing a Statement of Completion on January 30, 2018. Also on January 30, 2018, petitioner filed a status report requesting an extension of time until April 30, 2018 to file expert reports from a neurologist and immunologist, their CVs, and any medical literature cited in the reports. On the same day, the undersigned granted petitioner's informal motion for an extension of time until April 30, 2018.
On April 30, 2018, petitioner filed a motion for an extension of time until June 14, 2018 to file expert reports from a neurologist and immunologist, their CVs, and any medical literature cited in the reports. On the same day, the undersigned granted petitioner's motion for an extension of time until June 14, 2018.
On June 18, 2018, petitioner filed a motion for an extension of time until July 30, 2018 to file expert reports from a neurologist and immunologist, their CVs, and any medical literature cited in the reports. Petitioner's counsel states in the motion that he has "not been able to get the experts to finalize their opinions as yet." Doc 21, at 1. On the same day, the undersigned granted petitioner's motion for an extension of time until July 30, 2018.
On August 2, 2018, the undersigned issued a second Order to Show Cause. Again, the undersigned evaluated petitioner's issue regarding vaccine causation by emphasizing petitioner's treating doctors ascribing petitioner's PTS to a viral infection, either varicella, another herpes infection, or a reactivated Epstein-Barr virus. Doc 22, at 2. The undersigned noted that eight months passed since her first Order to Show Cause and petitioner had not shown why her case should not be dismissed.
After the undersigned issued her second Order to Show Cause, that same day, petitioner filed another motion for extension of time until August 23, 2018 to file two expert reports. On the same day, the undersigned granted petitioner's motion for an extension of time until August 23, 2018.
On August 16, 2018, petitioner filed a status report stating that the neurologist and immunologist whom petitioner's counsel contacted to serve as experts told him that "they could not proceed with demonstrating a relationship between the vaccination and injury." Doc 24, at 1. On the same day, the undersigned dismissed the case for failure to make a prima facie case.
On November 21, 2018, petitioner filed a motion for attorneys' fees and costs. Petitioner requests $8,780.00 in attorneys' fees, $3,934.51 in attorneys' costs, and $190.52 in petitioner's costs, for a total request of $12,905.03.
On December 4, 2018, respondent filed a response to petitioner's motion for attorneys' fees and costs stating that an objection to a fee application is not required for a fee award reduction or denial. Doc 30, at 2 (citing
This matter is now ripe for adjudication.
Under the Vaccine Act, a special master or a judge on the U.S. Court of Federal Claims 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);
"Good faith" is a subjective standard.
"Reasonable basis" is not defined in the Vaccine Act or Rules. Deciding whether a claim was brought in good faith and had a reasonable basis "is within the discretion of the Special Master."
Petitioner is entitled to a presumption of good faith, and respondent does not contest that the petition was filed in good faith.
Petitioner's request for attorneys' fees and costs claimed that retention of petitioner's counsel occurred within 15 days of the Statute of Limitations expiring. Doc 29, at 1. The Federal Circuit has clarified in
The undersigned finds that an award of attorneys' fees and costs to petitioner is unreasonable. Therefore, the undersigned
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.