CHRISTIAN J. MORAN, Special Master.
Elmer Graham filed a petition for compensation, on behalf of his child, G.G.G., under the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-10 through 34 (2012). His petition alleged that G.G.G. suffered intractable seizures, limbic encephalopathy, respiratory failure, and death as the result of a flu vaccine that she received on October 15, 2012. He failed to establish that the flu vaccine harmed G.G.G. and was denied compensation.
Despite being denied compensation, Mr. Graham has filed a motion for an award of attorneys' fees and costs as permitted by the Vaccine Act. The Secretary has opposed this motion in many respects. Because Mr. Graham has not established that "reasonable basis" supported his petition, he is not eligible for an award of attorneys' fees and costs. Therefore, his motion is denied.
G.G.G. was born in 2006. At the age of 6, she received a flu vaccine on October 15, 2012. Exhibit 1 at 1-3. In his motion for attorneys' fees, Mr. Graham emphasizes that the vaccine contained a live, attenuated version of the influenza virus. The tradename for this vaccine is FluMist.
Approximately one month later, G.G.G. started having discomfort when she was urinating and lower back pain. The doctor diagnosed her with a urinary tract infection and prescribed an antibiotic. Exhibit 3 at 54-57.
On November 19, 2012, G.G.G. reported that she had achiness, a sore throat, and a fever that began the previous day. The doctor again diagnosed her as suffering from a urinary tract infection and prescribed a different antibiotic. Exhibit 3 at 50-53.
On November 21, 2012, G.G.G. went a third time to the urgent care center where she had been seen previously.
On November 23, 2012, G.G.G. had "seizure-like activity" for which her family called an ambulance. While traveling to the hospital, paramedics observed several seizures. Exhibit 5 at 4-5. In the emergency room, G.G.G. required intubation.
The next day, G.G.G. was transferred to Arkansas Children's Hospital by airlift. Her diagnoses at discharge from the first hospital were viral meningitis, an allergic reaction to antibiotics, and a seizure. Exhibit 5 at 11.
G.G.G. remained in Arkansas Children's Hospital from November 24, 2012, until her unfortunate death on December 14, 2012. Exhibit 11 at 11. During those three weeks, G.G.G. continued to have seizures despite being placed on multiple anti-seizure medications.
G.G.G. underwent many tests. On December 3, 2012, a test indicated that G.G.G. had elevated levels of thyroglobulin and thyroid peroxidase antibodies. Exhibit 11 at 11, 434. An endocrinologist stated that G.G.G. could possibly be suffering from Hashimoto's encephalopathy
When G.G.G. died, the diagnosis included intractable seizures, limbic encephalopathy of unknown etiology, and respiratory failure. Exhibit 3 at 3, 88. Additional information about G.G.G. was learned in an autopsy, which was performed on December 17, 2012 by Carmen Steigman, M.D. Exhibit 11 at 10. In her view, G.G.G.'s brain had nonspecific findings consistent with the findings reported in Hashimoto's encephalopathy. G.G.G.'s thyroid and other endocrine organs appeared normal. Dr. Steigman concluded "the patient died of Hashimoto['s] encephalopathy, complicated by status epilepticus and respiratory failure." Exhibit 11 at 12. Dr. Steigman also drafted an addendum that discussed whether G.G.G. died of Hashimoto's encephalitis.
On January 4, 2013, Mark Heulitt, M.D., completed the death certificate. It states that G.G.G. died from respiratory failure as a consequence of status epilepticus. Exhibit 13 at 1.
On March 19, 2013, Mr. Graham telephoned Ms. Toale's office and spoke with a paralegal. Over the next five months, paralegals obtained medical records.
On December 13, 2013, Ms. Toale was summarizing additional medical records. Over the next few days, Ms. Toale emailed a pathologist regarding causation. At the end of December 2013, the paralegal was drafting a letter to Douglas C. Miller, M.D., Ph.D. On January 3, 2014, the paralegal was preparing a "package for expert, Dr. Miller."
On January 13, 2014, the paralegal spent 0.3 hours drafting a petition. On January 16, 2014, Ms. Toale spent 1.5 hours reviewing the records and finalizing the petition for filing.
The clerk's office docketed Mr. Graham's petition on January 22, 2014.
On March 18, 2014, Ms. Toale and her paralegal communicated with Dr. Miller more than once. The subject of these emails included "slides and autopsy."
On March 28, 2014, respondent filed a status report stating that petitioner's medical records appeared complete. Respondent filed her Rule 4 report on May 27, 2014, stating that petitioner had not met his burden of proof and was not entitled to compensation. Resp't's Rep. at 7.
Respondent also argued that "none of G.G.G.'s treating providers suggested a causal relationship between the flu vaccine and either her illness or death."
On June 6, 2014, Ms. Toale spent 0.2 hours in conference with a pathologist. On June 9, 2014, Ms. Toale spent 0.2 hours emailing her staff regarding her conference with an expert and spent 0.5 hours reviewing emails with a consultant and preparing for a status conference.
A status conference was held on June 9, 2014, to discuss respondent's Rule 4 report. Order, issued June 9, 2014. During this conference, Ms. Toale stated that she was awaiting feedback from a pathologist consultant before beginning a search for an expert witness to opine on his case.
A follow-up status conference was held on July 17, 2014, to discuss Mr. Graham's progress pursuing an expert report. Ms. Toale reported that she expected a report from a pathologist soon and might seek a report from a neurologist. Order, issued July 17, 2014.
On July 30, 2014, Mr. Graham filed a status report stating that he intended to file a motion to dismiss his case. Mr. Graham filed his motion to dismiss on August 18, 2014, including a report from Dr. Miller. In his report, Dr. Miller concludes that, "my review of the case including the slides, which showed that in fact there is an inflammatory process in the thyroid consistent with Hashimoto's Thyroiditis, provides a firmer support for the conclusion that [G.G.G.] in fact did die of complications of Hashimoto's Encephalopathy." Pet'r's Mem. at 5.
On September 24, 2014, Mr. Graham's case was dismissed. 2014 WL 5448705. This dismissal concluded the merits aspect of his case.
On April 23, 2015, Mr. Graham filed the pending motion for an award of attorneys' fees and costs. He requested $23,065.60 in fees and $7,441.37 in attorneys' costs. Pet'r's Mot. for Att'ys' Fees and Costs at 1. The motion also represented that Mr. Graham did not incur any costs personally. Mr. Graham supported his request with a relatively lengthy memorandum of which a significant portion was directed to establishing the reasonableness of the hourly rates for Ms. Toale and other members of her firm. Pet'r's Mem. The memorandum, in turn, is supported by an appendix of which approximately 150 pages are devoted to the hourly rates.
The Secretary opposed the motion for attorneys' fees and costs, raising two arguments. The Secretary primarily contended that "the present petition lacked a reasonable basis when filed, and one was never established." Resp't's Opp'n at 13. Secondarily, the Secretary maintained that the amount requested was excessive, but did not make a particular objection to the proposed hourly rate. The Secretary identified three relatively minor issues.
Mr. Graham filed a reply. The first five pages were devoted to reasonable basis. The next ten pages addressed the amount requested, focusing on the hourly rate for Dr. Miller. With the submission of the reply, the matter is ready for adjudication.
Under the "American rule," each litigant pays for its participation in litigation.
The Federal Circuit has not interpreted this phrase or provided any guidance as to how petitioners satisfy the reasonable basis standard.
Recent decisions have examined whether any evidence supports "the claim for which the petition was brought." When some (as yet undefined) quantity and quality of evidence supports the claim for which the petition was brought, then the petitioner satisfies the reasonable basis standard. However, when the only evidence supporting the claim that the vaccine caused an injury is a sequence of events in which the vaccination preceded the injury, then the petitioner does not satisfy the reasonable basis standard.
The statute requires "a reasonable basis for the claim for which the petition was brought." 42 U.S.C. § 300aa-15(e)(1). These are the words that Congress used. But, Mr. Graham has proposed a different test. In his view, the "question is whether, under the totality of circumstances of the instant case, it was reasonable to bring the claim." Pet'r's Mem. at 8. Mr. Graham's shift from "reasonable basis for the claim for which the petition was brought" to reasonable basis "to bring the claim" alters the statute. Although more attorneys would become eligible for attorneys' fees for representing unsuccessful petitioners if the statute required only a showing that filing the petition was reasonable, the statute is not written in those terms. The duty of judicial officers "is limited to interpreting the statute as it was enacted, not as it arguably should have been enacted."
Moreover, the statute's use of the phrase "reasonable basis for the claim for which the petition was brought" is consistent with other portions of the statute that require the petition to be filed with evidence.
Mr. Graham's petition claimed that the FluMist vaccination on October 15, 2012, caused G.G.G.'s seizures and her eventual death. Pursuant to the explication above, Mr. Graham becomes eligible for attorneys' fees and costs by presenting some evidence in the form of medical records or expert reports that supports this allegation.
By this standard, the answer to this question is straightforward. Mr. Graham cited no evidence that the FluMist caused G.G.G.'s seizures and/or her death. Mr. Graham did not cite to any medical record in which a treating doctor linked the FluMist vaccination to G.G.G.'s seizures. Mr. Graham also did not file a report from an independently retained expert who opined that the FluMist caused G.G.G.'s seizures and/or her death. The absence of evidence means that there is no basis (reasonable or otherwise) for the claim set forth in the petition. Mr. Graham does not satisfy the reasonable basis standard.
Mr. Graham's case closely resembles
The undersigned special master denied the motion for an award of attorneys' fees and costs because the petitioner did not satisfy the reasonable basis standard. In particular, the petitioner did not present any evidence that the flu vaccine contributed to her mother's death.
As mentioned earlier, Mr. Graham cited the Chief Judge's opinion in
Mr. Graham's primary argument for finding reasonable basis is that the treating doctor's diagnosis that G.G.G. suffered from Hashimoto's encephalitis was wrong. The reasoning seems to be that if G.G.G. did not suffer from Hashimoto's encephalitis, then she suffered from a different form of encephalitis. In Mr. Graham's view, this different form of encephalitis must be an encephalitis caused by the FluMist vaccine.
Mr. Graham cited some evidence that called into question Hashimoto's encephalitis as the diagnosis.
Yet, the Federal Circuit has stated repeatedly that the ruling out of potential other causes does not entitle a petitioner to compensation. In an off-Table case, the petitioner bears the burden of presenting evidence that the vaccine caused the injury.
Here, Mr. Graham has presented no evidence that the FluMist caused G.G.G.'s death. At best, Mr. Graham argues "the instant case could have proceeded on a theory that vaccine-associated encephalitis was a more likely diagnosis than Hashimoto's." Pet'r's Mem. at 9. But, "[t]o establish a reasonable basis, a petitioner must rely on more than speculation."
Mr. Graham argues that because FluMist is a vaccine that contains an attenuated version of the live virus, FluMist can cause any problems that the influenza virus can cause. This proposition does not satisfy the reasonable basis standard. Technically, Ms. Toale has made this assertion without any evidence.
Here, two facts in G.G.G.'s history raise obvious questions about the applicability of live attenuated virus theory. G.G.G.'s first presenting symptoms were problems with urinating and Mr. Graham has presented no evidence that a flu infection causes urination problems. In addition, the medical records show the latency between G.G.G.'s encounter with the live attenuated flu virus from the FluMist vaccine and her onset of symptoms was approximately one month. If Mr. Graham wanted to proceed on a theory that the live attenuated virus caused symptoms in G.G.G., he would need to present some evidence that virus would not lead to symptoms in G.G.G. for approximately 30 days.
In short, Mr. Graham's case contains many gaps. These places where Mr. Graham submitted no evidence distinguish his case from numerous other cases in which a petitioner presented some evidence but the evidence was not sufficiently persuasive to carry the petitioner's burden of proof.
Mr. Graham's second argument supporting reasonable basis is not an argument about the evidence supporting Mr. Graham's claim. It is an argument about gathering evidence. Pursuant to the Court's order in
Mr. Graham initially argued that "in death cases, petitions are filed as soon as possible in order to prevent spoliation of critical evidence." Pet'r's Mem. at 11. In reply, he expanded on this argument. Mr. Graham's attorney, Ms. Toale, stated:
Pet'r's Reply, filed May 22, 2015, at 5.
If the facts and circumstances actually corresponded to this argument, it might be a persuasive reason to overlook the lack of evidence supporting the claim that the FluMist vaccine caused G.G.G.'s seizure and death. Like the question about whether a looming statute of limitations affects the reasonable basis analysis, whether the obligation to present evidence to support reasonable basis should be suspended in a case in which the attorney filed a case to gather otherwise unavailable evidence is difficult.
However, Mr. Graham's case does not present this challenging question. Ms. Toale did not request the authority to issue a subpoena. It appears that her office possessed all the documents relating to G.G.G.'s case when Ms. Toale filed the petition. While paralegals communicated with the hospital where G.G.G.'s autopsy was performed, none of the entries mention that the reason for the communication was the autopsy. The paralegals' entries are too cryptic and too cursory to conclude that the hospital resisted providing access to autopsy materials. And, even if the hospital did not turn over autopsy materials immediately, the hospital did give material to Dr. Miller eventually. Again, the hospital made this material available without Ms. Toale using a subpoena.
As the Secretary argued, Ms. Toale "could have completed her entire review of this case and obtained Dr. Miller's finalized report before the statute of limitations would have run." Resp't's Opp'n at 14. Ms. Toale's filing of the petition did not promote the investigation of the claim. She could have conducted the exact steps before she filed the lawsuit. For example, Ms. Toale was apparently consulting Dr. Miller in December 2013, the month before she submitted the petition on Mr. Graham's behalf. If Ms. Toale had investigated the claim and gotten a response from Dr. Miller before filing the petition, she would have reached the same conclusion that she did after the case was filed — there was no evidence to support the claim that the FluMist vaccine caused G.G.G.'s death.
For these reasons, Mr. Graham has not established "a reasonable basis for the claim for which the petition was brought." This showing is a condition for an award of attorneys' fees and costs to a non-prevailing party. Without this showing, Mr. Graham is not eligible for an award of attorneys' fees and costs.
Mr. Graham's motion for attorneys' fees is costs is DENIED.
At first blush, the "totality of the circumstances" may seem different from the special master's approach to look at the evidence. However, the issues the Chief Judge identified as part of the totality of the circumstances are, generally speaking, issues resolved by analyzing evidence.
The primary point of departure between the two opinions in Chuisano is whether the actions of the petitioner's attorney are relevant to the reasonable basis inquiry. The attorney's conduct is arguably most relevant when the petitioner contacts the attorney close to the expiration of the time set forth in the statute of limitation. But, this issue is not present here because Mr. Graham communicated with Ms. Toale more than one year before the deadline for filing his petition.
