KATHERINE E. OLER, Special Master.
On September 12, 2016, Cary Johnson ("Petitioner") filed a petition seeking compensation under the National Vaccine Injury Compensation Program (the "Vaccine Program"),
On July 6, 2018, Petitioner filed this Motion for Attorneys' Fees and Costs.
Petitioner was born on October 18, 1967. Ex. 8 at 9; see generally Ex. 4. At the time of her flu vaccination on October 8, 2014, Petitioner was a 46-year-old woman with a history of hypertension, hyperlipidemia, and renal disorder. Ex. 1; Ex. 2 at 4. Petitioner's history includes a 21-year history of smoking, though it is unclear if Petitioner currently smokes.
On October 12, 2014, Petitioner presented at the emergency department of St. Luke's North Hospital Barry Road ("SLHS-BR") in Kansas City, Missouri, complaining of severe headaches, nausea, and vomiting. Ex. 2 at 4. Petitioner stated that, while she was at church, "she had a sudden onset of a frontal headache that quickly progressed to the back of her head," and that "she's never had a headache like this before." Ex. 2 at 6. The records reflect Petitioner experienced some dizziness, loss of balance, and neck pain. Id. While at the emergency department, several diagnostic tests were conducted. See generally Id. Petitioner's laboratory tests and CT scan returned mostly normal results, with the exception of elevated CRP (C-reactive protein), AST (alanine aminotransferase), and ALT (aspartate aminotransferase). Id. at 9. Additionally, Petitioner's CT contained a notation of "a small berry aneurysm [that] may be obscured." Id. Petitioner was released the same day with a diagnosis of migraine headaches and a prescription for Maxalt, hydrocodone, and Zofran. Id. at 8, 31-32.
On October 16, 2014, Petitioner presented to her primary care physician, Dr. Baskins. Petitioner had similar complaints of headaches on the day of the visit. Ex. 8 at 16. Dr. Baskins noted her emergency room visit from five days earlier. Additionally, Dr. Baskins noted that Petitioner "had her flu shot 9 days ago. Got sick after with vomiting and chills. Achy all over for days. Was just starting to feel better ... when this headache started." Id. Furthermore, Dr. Baskins noted that "[Petitioner] is worried that she [sic] bad headache may be related to the flu shot."
On October 19, 2014, Petitioner presented at the emergency department at SLHS-BR complaining of a sudden onset of headache at church. Ex. 2 at 53. Petitioner was examined, provided treatment for her symptoms, and released. Id. at 64.
On October 22, 2014, at approximately 1:30 a.m., Petitioner presented at the emergency department at SLHS-BR with a complaint of severe headache, nausea, and vomiting. Id. at 79. Records from that visit indicate that Petitioner informed the treating provider that her "symptoms started two weeks ago following receipt of the flu shot." Id. Petitioner was again treated for her symptoms and discharged. Id. at 82-83.
Petitioner was brought to the emergency department at St. Luke's North Hospital in Smithville (SLHS-S) several hours later with her husband and mother. Ex. 3 at 6. Petitioner's husband reported that Petitioner was confused and "not making any sense." Id. at 8. Petitioner presented with an "altered mental state" and was nonverbal. Id. Petitioner's husband provided the patient history, reporting "onset of her headaches 2 weeks ago about 3 hours after on her [sic] after a flu shot." Id. Petitioner is listed as a current every day smoker, and it is noted that the history was given fully by Petitioner's husband. Id. at 7. Petitioner was administered Ativan, at which point she relaxed and rested. Id. at 8. Arrangements were made to transfer Petitioner to SLHS-BR.
Petitioner arrived at SLHS-BR with family. Ex. 2 at 105. Petitioner underwent a CT, which showed an interval development of a 1.7 x 2.8 cm right parietal-occipital intraparenchymal hematoma. Ex. 2 at 109. Petitioner's results were communicated to her family and, in light of her continued unresponsiveness, arrangements were made for transfer to St. Luke's Hospital — Plaza at Kansas City (SLHS-KS) for further evaluation. Id.
Shortly after admission to SLHS-KS, Petitioner was intubated on October 23, 2014. Ex. 4 at 1092. Intubation allowed for Petitioner to receive full treatment for seizures, which had been "conservative avoiding oversedation ... to preserve her mental status... This will allow more aggressive seizure management." Id.
On October 23, 2014, Petitioner underwent an MRI. Ex. 4 at 582. MRI results showed that there was no change to the right parietal-occipital hemorrhage, but that there was a development of a similar hemorrhage on the left. Id. at 583. Radiology records indicate a possible finding of posterior reversible encephalopathy syndrome ("PRES"), vasculitis, arterial infarction, or venous thrombosis. Id. More clearly, an acute infarction within the right anterior cerebral artery ("ACA") was visible. Id. Petitioner was prescribed Keppra for possible partial seizures arising from the infarct. Id. at 1092.
Petitioner's attending neurologist, Dr. Jason Day, diagnosed Petitioner with PRES and reversible cerebral vasoconstrictive syndrome ("RCVS") with cerebrovascular accident ("CVA"). Ex. 4 at 1083. In leading to his diagnosis, Dr. Day considered a multitude of factors
Petitioner also underwent a cerebral angiogram on October 23, 2014. Ex. 4 at 1042. Radiology notes found findings to be "subtle and non-specific." Id. The radiologist commented that "entities associated with this angiographic appearance include reversible cerebral vasoconstriction syndrome, CNS vasculitis, and encephalitis." Id. A lumber puncture showing elevated white blood cell count and was negative for meningitis or encephalitis, and a CT scan confirming stable conditions were performed on October 24, 2014 and October 26, 2014, respectively. Id. at 1083; see also id. at 1033.
Several consultations were made to confirm Petitioner's condition, treatment, and diagnosis. See generally Ex. 4. An infectious disease consult found "no evidence of an infectious problem." Id. at 1064. Rheumatology consultation confirmed Dr. Day's diagnosis of PRES/RCVS. Id. at 1069. In fact, rheumatology found that Petitioner's "age, sex, kinetics of illness (sudden severe headache), presence of vasospastic agents and LP all favor diagnosis of reversible cerebral vasoconstriction syndrome rather than primary CNS vasculitis." Id. at 1070.
On October 28, 2014, Petitioner's condition was reviewed by Dr. Olds from neurology. Id. at 1184. Dr. Olds expressed hesitation in a diagnosis between RCVS and vasculitis but recommended adding treatment for vasculitis. Id. She further noted that Petitioner had been given DHE (dihydroergotamine) prior to the alteration in her mental state. Id. Petitioner was extubated on October 29, 2014. Id. at 1166.
On November 3, 2014, Petitioner's condition had improved, and she was discharged. Id. at 1033. Petitioner's discharge diagnosis was recorded as an ischemic CVA, and her hospital stay was summarized. Id.
Petitioner presented to Dr. Baskins, her primary care physician, on November 6, 2014. Ex. 8. Dr. Baskins noted a higher level of ESR (erythrocyte sedimentation rate), but stated this finding was expected given a consideration of vasculitis. Id. at 30. Dr. Baskins did not discuss Petitioner's hospital diagnoses and did not provide any additional comments regarding Petitioner's October 8, 2014 flu vaccination.
On November 7, 2014, Petitioner presented to the Moyes Eye Center. Ex. 7 at 7. Petitioner had partial left inferior quadrant defect in both eyes following, and consistent with, stroke.
On November 24, 2014, Petitioner presented for a neurology follow-up to Dr. Suzanne Crandall. Ex. 5 at 3. Dr. Crandall noted that Petitioner was able to conduct daily activities independently and that she was attending speech and occupational therapy two times per week. Id. She also expressed that Petitioner had not returned to driving due to her vision and seizure medication. Id. After reviewing Petitioner's records and conducting an examination, Dr. Crandall provided in her assessment that "there is a suspected diagnosis of reversible cerebral vasoconstriction syndrome" Id. at 5. She further considers RCVS in her determination of a care plan for Petitioner. Id. Dr. Crandall also suggested that Petitioner consider returning to work. Id.
Between November 20, 2014, and December 16, 2014, Petitioner attended five sessions of occupational therapy, canceled two sessions, and did not show for four sessions. Ex. 6 at 100. Specifically, Petitioner did not show for the last three sessions, and occupational health was not able to retest Petitioner's long-term goals. Id. at 101. The discharge notes further state that Petitioner would "benefit from further skilled therapy," and that, due to Petitioner's missed sessions, they were "unable to provide further guidance regarding return to driving and return to work skills." Id.
On February 18, 2015, Petitioner underwent MRI and MRA testing. Ex. 8 at 52-53. In comparison to Petitioner's October 23, 2014 MRI, the results showed an evolution of hemorrhagic products with a slight decrease in hematomas and no evidence of an acute intracranial hemorrhage. Id. at 53. Petitioner's MRA results were normal except for a possible left ICA aneurysm, identified in Petitioner's previous cerebral angiogram. Id. at 52.
On March 8, 2016, Petitioner visited her primary care physician for a follow-up appointment. Id. at 58. Petitioner stated to Dr. Baskins that she occasionally gets dull headaches on her left side, and that she "fatigues easier" and "sleeps more than she used to." Id. On March 30, 2016, Petitioner underwent MRI and MRA testing. Id. at 147, 152. Petitioner's MRA results were unchanged from the previous year's results. Id. at 147. Petitioner's MRI results included an impression of "stable areas of chronic encephalomalacia and chronic hemosiderin staining involving bilateral occipital lobes compatible with chronic sequela of prior intraparenchymal hemorrhage." Id. at 152.
On October 14, 2016, Petitioner reported to Dr. Baskins for a follow-up. Ex. 8 at 63. Dr. Baskins noted that Petitioner still suffered from muscle fatigue, cognitive issues, and poor memory. Id. She recommended to Petitioner that she not return to work as a nurse and that she receive a neuropsychology evaluation. Id. at 64. In light of Dr. Baskins' recommendation, Petitioner underwent a neuropsychology evaluation with Mr. Christopher Evans at Noll Psych Group on November 15, 2016. Ex. 12 at 1. Mr. Evans concurred with Dr. Baskins' recommendation that Petitioner not return to work as a registered nurse but suggested that she engage in other group or social activities. Id. at 8.
Petitioner contacted Mr. William P. Ronan, III, of RLF on November 30, 2014, less than two months after her October 8, 2014 flu vaccination. For the next two years, Mr. Ronan and his paralegal worked on Petitioner's case, obtaining records and reviewing Petitioner's claim, before filing the petition. Mr. Ronan requested medical records from North Kansas City Hospital, St. Luke's Medical Group, Mast Ambulance, St. Luke's Smithville, St. Luke's Plaza, St. Luke's Occupational and Speech Therapy, Moyes Eye Center, and St. Luke's Outpatient Rehabilitation.
On September 12, 2016, nearly two years after contacting her attorney, Petitioner, through her attorney, filed her Petition with the Vaccine Program and a Notice of Intent to File on Compact Disc. ECF No. 1. On September 14, 2016, the case was assigned to then Special Master Hastings, and he issued an initial order. ECF No. 3; ECF No. 4. Petitioner filed a statement of completion on September 21, 2016. ECF No. 5.
On October 20, 2016, Respondent filed a status report, highlighting missing records. ECF No. 8. Specifically, Respondent requested that Petitioner file records from "primary care physician(s) and/or any sub-specialists in the three years prior to vaccination." Id. Petitioner requested and filed records from her primary care physician, Dr. Baskins, and, on December 9, 2016, represented that all such records had been filed. ECF No. 12; see generally ECF No. 11.
Respondent filed his Rule 4(c) Report ("Resp't's Report, ECF No. 14) on January 27, 2017, stating that "[P]etitioner has failed to submit preponderant evidence establishing the specific injury that she claims was caused by the influenza vaccine." Resp't's Report at 13. Furthermore, Respondent noted that "[P]etitioner has yet to offer a reputable scientific or medical theory establishing that the trivalent influenza vaccine either can cause [P]etitioner's various ailments (general causation), or that it did so in her case (specific causation)." Id. Respondent recommended that the petition be dismissed. Id. at 14.
On January 30, 2017, Petitioner was ordered to seek an expert opinion in support of her claims. ECF No. 15. In February 2017, Mr. Ronan made several additional attempts to secure a medical opinion by contacting four additional named experts (Dr. Fisher, Dr. Sheth, Dr. Rordorf, and Dr. Dubinsky). Ex. 17 at 5. Instead of filing her expert report on the ordered deadline, however, Petitioner filed for her first extension of time on March 22, 2017. ECF No. 16.
On April 3, 2017, Petitioner filed a Consented Motion to Substitute Attorney Anne C. Toale of MCT in place of Mr. Ronan. ECF No. 18. Petitioner, now through Ms. Toale, proceeded to file a second Motion for Extension of Time on May 30, 2017, requesting an additional ninety (90) days to file Petitioner's expert report. ECF No. 21. In the Motion, Petitioner represented that a tentative expert had been retained. Id.
Mr. Ronan filed a Motion for Interim Attorneys' Fees on July 27, 2017. ECF No. 23. Respondent issued a brief response on August 22, 2017, stating that he deferred to "the discretion of the Special Master to determine whether the statutory and other legal requirements for an interim award of attorneys' fees and costs are met in this case." ECF No. 25 at 2.
Petitioner filed her third request for an extension of time to file an expert report on August 28, 2017, representing that the appropriate MRI and CT images, filed as Exhibits 10 and 11, were sent to the expert. ECF No. 26. Petitioner requested an additional sixty (60) days to file her report.
On October 26, 2017, Petitioner filed her fourth Motion for Extension of Time, stating that the conclusions of the expert had now been communicated to Petitioner. ECF No. 30. In this fourth request, Petitioner asked for an additional sixty (60) days to submit her expert report. Special Master Corcoran held a status conference on November 06, 2017, before granting, in part, Petitioner's request. See Non-PDF Order of 11/06/2017.
Less than a month later, Petitioner filed her Motion to Dismiss her Petition on November 28, 2017. ECF No. 31. A Decision Dismissing the Case for Insufficient Proof was issued by Special Master Corcoran on November 29, 2017. ECF No. 32. This case was assigned to my docket on December 6, 2017 (ECF No. 34); judgment was entered on January 10, 2018. ECF No. 36.
On March 20, 2018, Mr. Ronan filed a Motion for Leave to File Standing to Resolve Attorneys' Fees and Costs. ECF No. 38. In that Motion, Mr. Ronan detailed the work his firm has performed in this case prior to the substitution of MCT and requested standing to file his request for attorneys' fees. Id. I issued an Order on April 11, 2018, denying his motion for standing. ECF No. 39. In that Order, I clarified that only the attorney of record, then Ms. Anne Toale, may file in this case. Id at 2. I further addressed the outstanding Motion for Interim Attorneys' Fees, filed on July 24, 2017, finding that a consideration of interim fees was no longer appropriate. Id. I directed Mr. Ronan to submit his fees invoice to the attorney of record in this case.
On July 6, 2017, a Motion for Final Fees was filed by Petitioner through her counsel of record, now Ms. Amber Wilson of MCT. ECF. No. 41. Respondent filed his response to that Motion on July 20, 2018, asserting that "[P]etitioner has failed to establish a reasonable basis for her petition and is therefore not entitled to receive a discretionary attorneys' fees and costs award." Resp't's Resp. at 1, ECF No. 42. In support of his position, Respondent argues that "[P]etitioner failed to submit preponderant evidence establishing the specific injury that she claimed was caused by the influenza vaccine," and that Petitioner's asserted onset of her injuries is not temporally appropriate to suggest causation. Id. at 4-5. Petitioner submitted a lengthy reply ("Pet'r's Reply") to Respondent's Response on July 27, 2018, asserting that "Petitioner possessed a reasonable basis when filing her claim." Pet'r's Reply at 7, ECF No. 43. Petitioner asserts that the evidence submitted supported a feasibility of the claims, though admitting that the "medical record ... offers evidence both for and against vaccine causation of her associated injuries." Id.
I held a status conference on February 12, 2019. See Minute Entry for 2/19/2019; see also ECF No. 45. During that conference, I inquired whether Petitioner could provide further information regarding the case transfer process. ECF No. 45. Specifically, I questioned counsel's decision to take Petitioner case from Mr. Ronan even after numerous attempts to obtain an expert report had proved fruitless. Id.
On February 21, 2019, Petitioner filed a response to my order, as well as an affidavit from Mr. Ronan. Ms. Wilson represented that Petitioner and Mr. Ronan sought MCT's assistance in finding an expert. ECF No. 47. After case transfer, MCT sought to acquire a substantive review of Petitioner's medical records before dismissing the case. Id. Mr. Ronan further added that he had not been able to acquire a substantive expert review of Petitioner's case, despite his numerous attempts. Ex. 27.
The matter of final attorneys' fees and costs in this case is now ripe for a decision.
While Respondent has no objection that the petition was filed in good faith, Respondent argues that "Petitioner's claim never possessed a reasonable basis." Resp't's Resp. at 4. Respondent notes that Petitioner's previous attorney, Mr. Ronan, had worked on this case for two years prior to filing the petition, and that Petitioner requested four extensions of time to acquire an expert opinion prior to moving for a dismissal of her case. Id. at 2. Respondent states that "a special master may not award compensation `based on the claims of a petitioner alone, unsubstantiated by medical records or by medical opinion.'" Id. at 3 (citing 42 U.S.C. § 300aa-13(a)(1)). Respondent further states that in order for a claim to have a reasonable basis, such claim must, "at a minimum, be supported by medical records or medical opinion." Id. at 3 (citing Everett v. Sec'y of Health & Human Servs., No. 91-1115V, 1992 WL 35863, at *2 (Cl. Ct. Spec. Mstr. Feb. 7, 1992)). Citing Simmons v. Sec'y of Health and Human Servs., 875 F.3d 632, 636 (Fed. Cir. 2017), Respondent adds that establishing reasonable basis is dependent on the "evidentiary support for the claim set forth in the petition." Id. at 4. In assessing the application of Simmons, Respondent argues that Petitioner has not provided sufficient evidence in her records to support reasonable basis for filing her claim. Id. In addition to the lack of evidence, Respondent reiterates that the medical records reflect a symptom onset of just three hours following the administration of the flu vaccine.
Petitioner replied to Respondent's Response on July 27, 2018. Pet'r's Reply. Petitioner offered the following arguments in support of a reasonable basis: (1) Petitioner's medical records contain numerous notations of an allergy to flu vaccination; (2) Petitioner's treating physicians recommend that Petitioner not receive future flu vaccinations; (3) other special masters have found vaccine causation for Petitioner's alleged injuries; and (4) reasonable basis can be found without offering expert opinions in support of vaccine causation. See generally id. While Petitioner did not directly address Respondent's argument that onset occurred within three hours of vaccination, Petitioner included that her records reflect her "symptoms started two weeks ago following receipt of the flu shot."
Under the Vaccine Act, an award of reasonable attorneys' fees and costs is mandatory where a Petitioner is awarded compensation; where compensation is denied, as it was in this case, the special master must first determine whether the petition was brought in good faith and whether the claim had a reasonable basis. § 15(e)(1).
The good faith requirement is met through a subjective inquiry. Di Roma v. Sec'y of Health & Human Servs., No. 90-3277V, 1993 WL 496981, at *1 (Fed. Cl. Spec. Mstr. Nov. 18, 1993). Such requirement is a "subjective standard that focuses upon whether [a] petitioner honestly believed he [or she] had a legitimate claim for compensation." Turner v. Sec'y of Health & Human Servs., No. 99-544V, 2007 WL 4410030, at *5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007). Without evidence of bad faith, "petitioners are entitled to a presumption of good faith." Grice v. Sec'y of Health & Human Servs., 36 Fed. Cl. 114, 121 (1996). Thus, so long as Petitioners had an honest belief that their claim could succeed, the good faith requirement is satisfied. See Riley v. Sec'y of Health & Human Servs., No. 09-276V, 2011 WL 2036976, at *2 (Fed. Cl. Spec. Mstr. Apr. 29, 2011) (citing Di Roma, 1993 WL 496981, at *1); Turner, 2007 WL 4410030, at *5.
Regarding the reasonable basis requirement, it is incumbent on Petitioners to "affirmatively demonstrate a reasonable basis," which is an objective inquiry. McKellar v. Sec'y of Health & Human Servs., 101 Fed. Cl. 297, 305 (2011); Di Roma, 1993 WL 496981, at *1. When determining if a reasonable basis exists, many special masters and U.S. Court of Federal Claims judges employ a totality of the circumstances test.
The Federal Circuit has emphasized that reasonable basis "is an objective inquiry" and concluded that "counsel may not use [an] impending statute of limitations deadline to establish a reasonable basis for [appellant's] claim." See Simmons, 875 F.3d 632 at 636. In interpreting Simmons, some judges have determined that an impending statute of limitations should not even be one of several factors the special master considers in her reasonable basis analysis. "[T]he Federal Circuit forbade, altogether, the consideration of statutory limitations deadlines—and all conduct of counsel—in determining whether there was a reasonable basis for a claim." Amankwaa, 2018 WL 3032395, at *7.
Unlike the good faith inquiry, reasonable basis requires more than just Petitioners' belief in their claim. See Turner, 2007 WL 4410030, at *6. Instead, the claim must at least be supported by objective evidence — medical records or medical opinion. Sharp-Roundtree v. Sec'y of Health & Human Servs., No. 14-804V, 2015 WL 12600336, at *3 (Fed. Cl. Spec. Mstr. Nov. 3, 2015). The evidence presented must be "sufficient to give the petitioner a reasonable expectation of establishing causation." Bekiaris v. Sec'y of Health & Human Servs., No. 14-750V, 2018 WL 4908000, at *6 (Fed. Cl. Spec. Mstr. Sep. 25, 2018). Temporal proximity between vaccination and onset of symptoms is a necessary component in establishing causation in non-Table cases, but without more, temporal proximity "fails to establish a reasonable basis for a vaccine claim." Id; see also Chuisano, 116 Fed. Cl. at 287.
Although "special masters have historically been quite generous in finding reasonable basis for petitions," Turpin v. Sec'y of Health & Human Servs., No. 99-564V, 2005 WL 1026714, at *2 (Fed. Cl. Spec. Mstr. Feb. 10, 2005); see Turner, 2007 WL 4410030, at *6-7, the court expects counsel for Petitioner to make a pre-filing inquiry into the claim to ensure that it has a reasonable basis. See Turner, 2007 WL 4410030, at *6-7.
However, even if reasonable basis exists at the time the petition is filed, it "may later come into question if new evidence becomes available or the lack of supporting evidence becomes apparent." Chuisano, 116 Fed. Cl. at 288; see also Perreira v. Sec'y of Health & Human Servs., 33 F.3d 1375, 1377 (Fed. Cir. 1994) (affirming the special master's finding that reasonable basis existed until the evidentiary hearing); Hamrick, 2007 WL 4793152, at *4 (observing that "Petitioner's counsel must review periodically the evidence supporting [P]etitioner's claim").
Petitioner is entitled to a presumption of good faith, and Respondent does not contest that the petition was filed in good faith. Grice, 36 Fed. Cl. at 121. There is no evidence that this petition was brought in bad faith. Thus, I find that the good faith requirement is satisfied.
The reasonable basis standard is objective and requires Petitioner to submit some evidence in support of "the claim for which the petition was brought." § 15(e). The petition in this case alleges that Petitioner received the flu vaccine on October 8, 2014, and thereafter suffered from headaches, nausea, vomiting, and a multitude of other injuries (see footnote 3) that arose from her initial symptoms. See generally Pet. Petitioner states that her flu vaccination caused or contributed to Petitioner's numerous injuries. Id. at 7.
Petitioner highlights the following evidence in support of a reasonable basis for filing the petition: (1) Petitioner's medical records contain numerous notations of an allergy to the flu vaccination; (2) Petitioner's treating physicians recommend that Petitioner not receive future flu vaccinations; (3) other special masters have found vaccine causation for Petitioner's alleged injuries; and (4) reasonable basis can be found without offering opinions in support of vaccine causation. See generally Pet'r's Reply. After my careful study of the record and as discussed in more detail below, I do not find the majority of the claims articulated in the petition to be supported by objective evidence. I do, however, find that the notations by Petitioner's primary care provider, Dr. Baskins, reflecting a possible adverse reaction to the flu vaccine, and the considerations of a vasculitis diagnosis in the medical records provide some minimal evidence in support of further investigating Petitioner's claims. Therefore, I find that reasonable basis was established at the time of filing.
Petitioner avers that the notations in her medical records, the recommendations by treating physicians, and special master findings of vaccine causation of vasculitis and encephalitis support "a vaccine injury" and thus establish reasonable basis to file the petition. I find that Petitioner met her burden in producing some evidence in support of her claim, thereby establishing reasonable basis for filing her Petition.
Petitioner argues that several of her treating physicians and specialists, as well as her primary care physician, have asserted vaccine causation of her injuries and noted as such in her medical records. To provide a few examples, Petitioner's emergency visit notes from October 22, 2014, have a notation of the receipt of flu shot under patient history. Ex. 2 at 79 ("Symptoms started two weeks ago following receipt of the flu shot."). In the same report, however, the exact same notation was included in quotation marks, indicating the patient's direct dictation. Ex. 2 at 82 ("Pt reports to the ER tonight with c/o ongoing headache that started approx. 2 weeks ago `after she had the flu shot.'"). The flu vaccination is also listed as an allergy on many of her records from her October 12, 2014 and October 22, 2014 visits to St. Luke's Health System.
While it is true that there are several references to Petitioner's October 8, 2014 flu vaccination in the medical records, the notations are always a part of Petitioner's provided history and none of Petitioner's treating physicians, with the exception of Dr. Baskins, attributed her symptoms or injuries to the flu vaccine. Given the appearance of the flu vaccination in the patient history sections (suggesting that the implication of a possible vaccine causation was frequently introduced by Petitioner or her family), the distinct lack of discussion regarding the flu vaccination as a possible cause is demonstrative of the treating physicians' considerations regarding causation. Moreover, the purposeful use of quotations in several instances suggests the intention of the treating physician to attribute the notation only to Petitioner. Though Petitioner's treating physicians from her hospital visits often noted her flu vaccination in the patient-provided history, no provider discussed the flu vaccine in their impressions and treatment plans or considered the possibility of vaccine causation.
Dr. Baskins' notation from October 16, 2014, however, references four previous occasions of adverse medical problems due to flu vaccination. Ex. 8 at 21. While there is no indication in the records of these other incidents, the notation itself suggests that Petitioner's primary care provider considered that the flu vaccine may have caused Petitioner adverse reactions. Additionally, Dr. Baskins' noted that Petitioner "may not take an influenza vaccination again due to severe reaction." Id. at 20. This notation goes beyond a recitation of history provided by Petitioner and indicates that Dr. Baskins attributed Petitioner's symptoms to her flu vaccine. I find that Dr. Baskins' notations provide some evidence on which Petitioner can base her claim that reasonable basis has been established.
Petitioner contends that since other special masters have found causation between the flu vaccination and vasculitis or encephalitis, Petitioner possessed reasonable basis when filing her claim. Petitioner states that, at the time of discharge, her diagnosis was unclear. Without further medical opinion, Petitioner asserts that a diagnosis of vasculitis or encephalitis may be plausible. In light of a possible vasculitis or encephalitis diagnosis, Petitioner argues that her claim alleging vaccine causation was a feasible one.
Though Petitioner's records generally indicate that Petitioner was diagnosed with posterior reversible encephalopathy syndrome and reversible cerebral vasoconstrictive syndrome following a cerebrovascular accident, there are a few records indicating the possibility of vasculitis. Ex. 4 at 1069, 1083. Petitioner's attending neurologist, after consulting with three other physicians and considering a multitude of factors, arrived at Petitioner's diagnosis of RCVS following an ischemic CVA. Ex. 4 at 1083. This diagnosis was then confirmed by a rheumatology consultation, intended to rule out vasculitis. Ex. 4 at 1069. However, impression notes mentioning RCVS were at times, coupled with considerations of possible vasculitis. Ex. 4 at 1033, 1044, 1184. Dr. Olds, a neurologist from Petitioner's hospital stay, was reluctant to rule out vasculitis and proceeded to add treatment for vasculitis. Ex. 4 at 1184. During a follow-up appointment, Dr. Baskins' considered the possibility of vasculitis given Petitioner's higher ESR level. Ex. 8 at 30. There were also minimal considerations of encephalitis, although lumbar puncture was negative for encephalitis, and no final findings by treating physicians diagnosed Petitioner with encephalitis.
Petitioner must present a likelihood of a medically-appropriate temporal onset of symptoms to suggest a finding of reasonable basis. In order to find vaccine causation, the temporal interval between the flu vaccination and the onset of symptoms must be medically feasible. "Cases in which onset is too soon" fail to establish a medically feasible temporal relationship between the vaccination and the injury, thereby rendering a petitioner's claim untenable. See De Bazan v. Sec'y of Health and Human Servs., 539 F.3d 1347, 1352 (Fed. Cir. 2008). Special Masters have continuously found that an onset of less than two days is a medically inappropriate time frame for symptom onset of immune-regulated responses following flu vaccination. See generally id.
Based on the medical records and the detailed statements of Petitioner's husband, I find that Petitioner's symptom onset is likely between three hours and four days after her flu vaccination. Petitioner's husband provided her patient history at the emergency visit on October 22, 2014, "reporting onset of her headaches 2 weeks ago about 3 hours after on [sic] her after a flu shot." Ex. 3 at 5. Petitioner herself asserts that the medical records reflect notations indicating that her "symptoms started two weeks ago following receipt of the flu shot," placing onset at October 8-9, 2014. Ex. 2 at 79; see also Pet'r's Reply at 10.
Conversely, on October 16, 2014, Petitioner provided a chronology of events for Dr. Baskins: "46 year old white female who comes in with sudden onset of headache 5 days ago at church.... Had her flu shot 9 days ago. Got sick after with vomiting and chills. Achy all over for a few days. Was just starting to feel better from this when the headache started." Ex. 8 at 16. Based on these records, onset of Petitioner's headache began four days after her flu vaccination. While Petitioner does not posit this argument, I believe the medical records provide some evidence of an onset interval of four days. Accordingly, I am not persuaded by Respondent's insistence that a finding of reasonable basis must be ruled out based on the issue of onset.
Based on the evidence in the medical records, I find there was a reasonable basis to file the petition because of Dr. Baskins' assessment that Petitioner could no longer receive flu vaccinations and the consideration, however briefly, of a vasculitis or encephalitis diagnosis by Petitioner's treating physicians.
As reasoned above, I find that Petitioner established reasonable basis to file her petition. On February 12, 2019, I held a status conference to determine whether reasonable basis had been maintained through dismissal of Petitioner's claims. See Minute Entry of 2/19/2019. Specifically, I questioned Petitioner's counsel on whether there was reasonable basis for MCT to continue prosecution of the petition after RLF had attempted and failed numerous times to acquire an expert.
In her response to my Order (see ECF No. 45), Petitioner represented that RLF had not been able to procure a substantive review of the medical records. ECF No. 47 at 2. MCT continued prosecution of the petition in order to obtain a substantive review; once an expert review proved unable to support Petitioner's case, Petitioner moved to dismiss the petition. Id. at 7.
I find that it was reasonable for Petitioner to seek a substantive expert review of her medical records until one could be obtained. Once Petitioner received a negative review of her claims, she filed her motion for a dismissal decision. Accordingly, I find that reasonable basis was maintained throughout the pendency of the matter, and I award Attorneys' Fees and Costs to both RLF and MCT.
As discussed in detail above, Petitioner established that there was a reasonable basis at the time of filing her Petition. In her Fees App., Petitioner requested a total of $20,620.00 in attorneys' fees, and $902.27 in attorneys' costs, for RLF.
Petitioner requests compensation for her attorney, Mr. William P. Ronan, III, and his paralegal, both members of RLF. Ex. 17 at 6; see generally Fees App. Petitioner requests the following hourly rates for work performed by each member of the firm from 2014 to 2017:
Mr. Ronan's requested hourly rated for work performed between 2014-2017 have been previously found to be reasonable and awarded by other Special Masters and will be awarded in full in this present case. RLF's paralegal hourly rate of $100.00 has been previously awarded and is well within the range of hourly rates awarded to paralegals by this Program. I similarly find it to be reasonable in this case.
Accordingly, Petitioner's requested hourly rates for Mr. Ronan and his paralegal are awarded in full.
Based on my review of the billing records submitted with Petitioner's Fees App., I find that RLF billed hours that I consider "excessive, redundant, or otherwise unnecessary." Saxton v. Sec'y of Health and Human Servs., 3 F.3d at 1521 (Fed. Cir. 1993). For example, the time entries submitted by RLF reflect that Mr. Ronan and/or his paralegal billed excessive time for tasks such as filing or reviewing filings. Mr. Ronan also included entries that were seemingly duplicative in nature.
For these reasons, I will reduce the total award of Petitioner's requested attorneys' fees by 10%. A 10% reduction
Therefore, Petitioner is awarded attorneys' fees in the amount of
Petitioner requests a reimbursement of $902.27 in attorneys' costs for RLF. Ex. 17 at 6. The requested costs herein are miscellaneous case costs and appear to be reasonable. Therefore, I award Petitioner her requested attorneys' costs for RLF in full, totaling
In her Fees App., Petitioner requested a total of $15,288.90 in attorneys' fees, and
$3,259.02 in attorneys' costs, for MCT.
Petitioner requests compensation for her attorneys and paralegals of MCT. Ex. 15 at 13; see generally Fees App. Petitioner requests the following hourly rates for work performed by each attorney of the firm in 2017 and 2018:
Petitioner also requests that paralegals of MCT be compensated for work performed from 2017-2018 at rates varying from $145.00 per hour to $148.00 per hour, based on the year and the individual paralegal. See Ex. 15 at 13.
The requested hourly rates for work performed by MCT attorneys in 2017 and 2018 have been previously found to be reasonable by several special masters and, therefore, will be awarded in full.
MCT's paralegal hourly rates range, as listed above, has been previously found reasonable. See Ritchie v. Sec'y of Health & Human Servs., No. 16-514V, 2018 WL 2224203 (Fed. Cl. Spec. Mstr. Mar. 23, 2018). Accordingly, I award the requested hourly rates for MCT paralegals in full.
Therefore, Petitioner's requested hourly rates for MCT attorneys and paralegals are awarded in full.
Petitioner requested a total of $11,597.00 for the work completed by MCT attorneys and $3,691.90 for the work completed by MCT paralegals, for a total of $15,288.90. Ex. 15 at 13. I find that the billing invoices reveal instances of duplicative review
MCT acquired the case in order to assist Petitioner in obtaining a substantive expert review and dismissed the case within eight months. As such, I find it excessive for MCT to have assigned such a large team to this matter, requiring continuous duplicative review of the case status and records and ongoing internal communications between attorneys and paralegals to discuss the case. Moreover, both Ms. Toale and Ms. Wilson have extensive experience in this particular field. Ms. Toale has been practicing for over 25 years and has been practicing in this court for over 15 years. Ms. Wilson has a M.S. in Genetics and a Ph.D. in Molecular and Cellular Pharmacology. She has been practicing for seven years and, for the last five years, has been primarily representing petitioners in the Program. I find that this case was not so complex, nor was it in an advanced stage, such that two highly experienced attorneys were necessary throughout the pendency of the matter.
Furthermore, based on my review of the billing records submitted with Petitioner's Interim Motion (see generally Ex. 15), I also find that the MCT firm billed hours that I consider "excessive, redundant, or otherwise unnecessary." Saxton, 3 F.3d 1517 at 1521. Specifically, on several occasions, both attorneys and paralegals of MCT invoiced for completing administrative tasks such as updating case files, invoicing, completing retainer agreements, and mailing packages.
For these reasons, I will reduce the total award of MCT's requested attorneys' fees by 15%. This results in a reduction
Therefore, Petitioner is awarded attorneys' fees for MCT in the amount of
Petitioner requests a reimbursement of $3,259.02 in attorneys' costs for MCT. Ex. 16 at 1. The requested costs herein are for both expert costs and miscellaneous case costs. I find the miscellaneous case costs to be reasonable and award them in full.
Petitioner retained MCT in order to assist in obtaining a substantive review by an expert of Petitioner's case. MCT represented that Petitioner retained Dr. Seemant Chaturvedi. See Ex. 26. Dr. Chaturvedi reviewed the case and did not submit an expert report. He invoiced $3,000, for six hours of review at a $500 hourly rate. Ex. 26 at 3. Likely based on Dr. Chaturvedi's review of this matter, Petitioner subsequently dismissed her petition.
In examining the invoice and taking into account Dr. Chaturvedi's qualifications, expertise in applicable fields of study, and level of experience in the Program, I find Dr. Chaturvedi's requested rate to be higher than the usual rates awarded to new experts in the program. In fact, even experts with significant experience in the Program are not awarded hourly rates higher than $500 per hour. Moreover, I find it difficult to determine whether Dr. Chaturvedi should be paid at the highest rate paid to experts, given that no expert report or substantive review materials were filed. Accordingly, I will reduce Dr. Chaturvedi's hourly rate to $400, to reflect the lack of material filed and an inability to determine an appropriate rate based on quality of work produced.
Therefore, Petitioner is awarded attorneys' costs for MCT in the amount of
Based on the foregoing, I hereby
I award a total of
Additionally, I award a total of
The clerk shall enter judgment accordingly.
The billing entries mentioned above are examples and are not exhaustive; they provide a mere sampling of the excessive and duplicative tasks in Mr. Ronan's billing invoice.
The billing entries mentioned above are examples and are not exhaustive; they provide a sampling of the many non-compensable administrative tasks billed by MCT.
