Roy v. Secretary of Health and Human Services ( 2019 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-323V
Filed: July 31, 2019
* * * * * * * * * * * * * * *
JAMES J. ROY and MARY ANN * UNPUBLISHED
BOGER, as Administrators and Legal *
Representatives of the ESTATE OF *
PAUL E. ROY, * Decision on Interim Attorneys’ Fees and
* Costs; Denial; Reasonable Basis
Petitioner, *
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * *
Ramon Rodriguez, III, Esq., Sands Anderson, PC, Richmond, VA, for petitioner.
Adriana Teitel, Esq., U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON INTERIM ATTORNEYS’ FEES AND COSTS1
Roth, Special Master:
On March 9, 2017, James J. Roy and Mary Ann Boger (“petitioners”) filed a petition for
compensation under the National Vaccine Injury Compensation Program as administrators and
legal representatives of the estate of Paul E. Roy (“Mr. Roy”).2 See Petition (“Pet.”), ECF No. 1.
Petitioners allege that Mr. Roy sustained injuries “secondary to his receipt of the seasonal influenza
1
Although this Decision has been formally designated “unpublished,” it will nevertheless be posted on the
Court of Federal Claims’s website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-
347, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). This means the Decision
will be available to anyone with access to the internet. However, the parties may object to the Decision’s
inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party
has fourteen days within which to request redaction “of any information furnished by that party: (1) that is
a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes
medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of
privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public. Id.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
and/or pneumococcal vaccines administered to him on October 2, 2014,” at the age of 94. Pet. at
1. Petitioner has requested an award of interim attorneys’ fees and costs. Petitioner’s Motion is
hereby DENIED.
I. Procedural History
Petitioners filed their petition on behalf of Mr. Roy on March 9, 2017. Petition, ECF No.
1. This case was assigned to me on March 9, 2017. See ECF No. 4. Petitioners filed medical
records, documentation regarding their appointment as administrators of Mr. Roy’s estate, and an
affidavit from counsel regarding failed attempts at securing Mr. Roy’s complete medical records
on May 10, 2017. Petitioner’s Exhibits (“Pet. Ex.”) 1-6, ECF No. 6. An initial status conference
was held on May 25, 2017, after which respondent was ordered to file a status report identifying
any outstanding medical records and indicating how he intended to proceed by July 24, 2017.
Order, ECF No. 8. On July 24, 2017, respondent filed a status report requesting a 45-day extension
to file his status report. Respondent’s Status Report (“Resp. S.R.”), ECF No. 9. This request was
granted and respondent’s deadline to file a status report was set for September 7, 2017. Non-PDF
Order, dated July 24, 2017. On August 28, 2017, petitioners filed updated medical records. Pet.
Ex. 7-13, ECF No. 11.
On September 7, 2017, respondent filed a status report identifying outstanding medical
records and requesting that petitioners’ obtain and file the records. Resp. S.R., ECF No. 13. He
also requested that he be given 45 days following the filing of petitioners’ records to file a status
report updating the Court on his progress. Id. Petitioners’ deadline to file the outstanding medical
records was set for October 23, 2017 and respondent’s deadline to file a status report was set for
December 11, 2017. Non-PDF Order, dated September 8, 2017.
On October 23, 2017, petitioners filed a motion for extension of time to file the outstanding
medical records requesting an additional 45 days. Motion, ECF No. 14. Petitioners’ motion was
granted and they were ordered to file the outstanding records by December 7, 2017. Non-PDF
Order, dated October 23, 2017. Respondent’s deadline to file a status report indicating how he
intended to proceed was suspended. Id.
After a second extension of time, petitioners filed additional records on January 8, 2018.
Pet. Ex. 14, ECF No. 19. Petitioners also filed a third motion for extension of time to file additional
records by January 29, 2018. Motion, ECF No. 21. This motion was granted, and petitioners filed
additional medical records and a Statement of Completion on January 29, 2018. Non-PDF Order,
dated January 9, 2018; Pet. Ex. 15, ECF Nos. 22-24. Respondent was ordered to file a status report
advising on the completeness of the record and indicating how he intended to proceed by March
15, 2018. Non-PDF Order, dated January 29, 2018.
On March 15, 2018, respondent filed a status report advising the record was sufficiently
complete and requesting a deadline to file his Rule 4(c) Report as he intended to continue to defend
this claim. Resp. S.R., ECF No. 25. Accordingly, a deadline for respondent’s Rule 4(c) Report was
set for April 30, 2018. Non-PDF Order, dated May 16, 2018. Respondent filed his Rule 4(c) Report
on April 30, 2018, stating petitioners had failed to offer a reputable scientific or medical theory
establishing that the flu vaccine can cause cellulitis leading to pneumonia and death or that it did
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so in this case. Respondent’s Report (“Resp. Report”) at 10, ECF No. 26. Respondent also noted
that petitioners have not established that the alleged cellulitis was caused by the administration of
the flu vaccine and not the pneumococcal vaccine petitioner received on the same day. Id. 10-11.
Respondent further argued petitioners have not provided a scientific or medical theory establishing
that the flu vaccine can significantly aggravate generalized weakness, fatigue, unsteadiness of gait,
and other neurological signs and symptoms or that it did so in this case. Id. at 12.
Petitioners were ordered to file an expert report and supporting medical literature by July
2, 2018. Non-PDF Order, dated April 30, 2018. After two extensions of time, petitioners filed an
expert report from Dr. Patrick Holly on November 2, 2018. Motions, ECF Nos. 27-28; Pet. Ex. 16,
ECF No. 29. Petitioners also filed a motion for extension of time requesting an additional 45 days
to file a second expert report and supporting medical literature. Motion, ECF No. 31. Petitioners’
motion was granted and their deadline to file an additional expert report was set for December 17,
2018. Non-PDF Order, dated November 5, 2018.
On December 17, 2018, petitioners filed an expert report authored by Dr. Eric Gershwin
and supporting medical literature. Pet. Ex. 17-21, ECF No. 32. Respondent was ordered to file a
responsive expert report by March 19, 2019. Non-PDF Order, dated December 18, 2018. On March
19, 2019, respondent filed a motion for extension of time requesting an additional 60 days to file
his expert report. Motion, ECF No. 34. Respondent’s motion was granted and his deadline to file
an expert report was set for May 20, 2019. Non-PDF Order, dated March 20, 2019.
On May 1, 2019, petitioners filed the instant Motion for Interim Attorneys’ Fees and Costs
(“Mot. Int. Fees”). ECF No. 35. Petitioners requested attorneys’ fees in the amount of $14,453.35
and attorneys’ costs in the amount of $1,408.37, for a total of $15,861.72. Id. at 10. Petitioners
explained that when the petition was filed on March 9, 2017, Dr. Rodriguez was employed with
Rawls McNelis, which is now doing business as Rawls Law Group (“RLG”). Id. at 1-2. On August
7, 2017, Dr. Rodriguez transitioned his practice to Sands Anderson, PC, where he is currently
employed. Id. In the instant motion, petitioners request reimbursement of attorneys’ fees and costs
incurred while Dr. Rodriguez was employed by RLG. Id. Petitioners submitted that, “[b]ecause
RLG employees are no longer involved in this case[,] RLG is experiencing financial hardship and
delay for work billed by Dr. Rodriguez…”. Id. at 7. Petitioners further submitted that “they meet
the criteria for interim fees and costs requested herein due to the two-plus year delay and hardship
RLG has and would continue to otherwise face…”. Id. at 14.
On May 19, 2019, respondent filed a Motion to Amend the Schedule, seeking to suspend
his deadline to file a response to Dr. Gershwin’s report and requesting a status conference be
scheduled in order to discuss how the parties should proceed in this case. Motion, ECF No. 38.
Respondent’s motion pointed out the inconsistencies between the incompleteness of the causal
theories put forth by Drs. Holly and Gershwin in their expert reports. Id. at 1.3
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A status conference was held on July 9, 2019, during which several issues with Mr. Roy’s medical records and Dr.
Gershwin’s expert report were discussed. Order, ECF No. 40. Petitioners were ordered to file an expert report from
Dr. Gershwin addressing the highlighted issues or a status report indicating how they intend to proceed by
September 9, 2019. Id.
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On May 29, 2019, respondent filed a response to petitioner’s motion. Response, ECF No.
30. Respondent questioned whether petitioners had a reasonable basis in bringing this claim, noting
that “petitioners have not provided evidence that demonstrates Mr. Roy’s flu vaccination, rather
than his pneumococcal vaccination, caused his cellulitis.” Response at 7. Respondent further noted
that petitioners have not “presented a cogent theory connecting his flu vaccination, cellulitis, and
death, or demonstrated how his clinical course was altered as a result of his vaccination.” Id. at 7-
8. Ultimately, respondent stated that “the current case record fails to establish that a reasonable
basis exists for petitioners’ claim.” Id. at 8. Respondent “respectfully recommend[ed] that, if the
Special Master finds that there is a reasonable basis for petitioners’ claim and that an award of
interim fees and costs is permissible in this case, then she exercise her discretion and determine a
reasonable award for attorneys’ fees and costs.” Id. at 11.
Petitioner did not file a reply. This matter is now ripe for decision.
II. Applicable Law and Analysis
The Vaccine Act permits an award of “reasonable attorneys’ fees” and “other costs.”
§ 15(e)(1). If a petitioner succeeds on the merits of his or her claim, he or she is entitled to an
award of reasonable attorneys’ fees and costs. Id.; see Sebelius v. Cloer, 133 S. Ct. 1886, 1891
(2013). However, a petitioner need not prevail on entitlement to receive a fee award as long as the
petition was brought in “good faith” and there was a “reasonable basis” for the claim to proceed.
§ 15(e)(1).
Good faith is a subjective inquiry that questions whether petitioner’s counsel exercised
adept professional judgement in determining whether a petitioner may be entitled to compensation.
Chuisano v. United States, 116 Fed. Cl. 276, 286 (2014) (citations omitted). In the absence of a
showing of bad faith, petitioners in the Vaccine Program are “entitled to a presumption of good
faith.” Grice v. Sec’y of Health & Human Servs., 36 Fed. Cl. 114, 121 (1996). Petitioners have
made no showing of bad faith; therefore, I presume that petitioners have brought this claim in good
faith.
A. Reasonable Basis
Reasonable basis is an objective standard determined by evaluating the sufficiency of the
medical records in petitioners’ possession at the time the claim is filed. “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).
However, the Federal Circuit recently denied an award of attorney’s fees based on petitioner’s lack
of reasonable basis. See Simmons v. Sec’y of Health & Human Servs., 875 F.3d 632, 636 (Fed.
Cir. 2017). In Simmons, the Federal Circuit determined that petitioner lacked reasonable basis for
filing a claim when, at the time of filing: (1) petitioner’s counsel failed to file proof of vaccination,
(2) there was no evidence of a diagnosis or persistence injury allegedly related to a vaccine in
petitioner’s medical records, and (3) the petitioner had disappeared for approximately two years
prior to the filing of the petition and only resurfaced shortly before the status of limitations deadline
on his claim expired. See id. at 634-35. The Federal Circuit specifically stated that the reasonable
basis inquiry is objective and unrelated to counsel’s conduct prior to filing a claim. The Court
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consequently affirmed the lower court’s holding that petitioner’s counsel lacked reasonable basis
in filing this claim based on the insufficiency of petitioner’s medical records and proof of
vaccination at the time the petition was filed. Id. at 636.
In light of Simmons, the Court of Federal Claims determined, “[I]n deciding reasonable
basis[,] the Special Master needs to focus on the requirements for the petition under the Vaccine
Act to determine if the elements have been asserted with sufficient evidence to make a feasible
claim for recovery. . . Under the objective standard articulated in Simmons, the Special Master
should have limited her review to the claim alleged in the petition to determine if it was feasible
based on the materials submitted.” Santacroce v. Sec’y of Health & Human Servs., No. 15-555V,
2018 WL 405121 at *7 (Fed. Cl. 2018). When evaluating a case’s reasonable basis, petitioner’s
“burden [in demonstrating reasonable basis] has been satisfied . . . where a petitioner has submitted
a sworn statement, medical records, and [a] VAERS report which show that recovery is feasible.”
Id. Moreover, the special master may consider various objective factors including “the factual
basis of the claim, the novelty of the vaccine, and the novelty of the theory of causation.”
Amankwaa v. Sec’y of Health & Human Servs., 138 Fed. Cl. 282, 289 (2018).
In their application for interim fees, petitioners submitted that they have met the reasonable
basis requirement by virtue of the expert reports authored on their behalf by Drs. Holly and
Gershwin. Mot. Int. Fees at 6. Petitioners’ are correct that an expert opinion supported by medical
literature bolsters the basis for a claim. However, as highlighted in respondent’s response to
petitioners’ motion, petitioners’ experts have not “presented a cogent theory connecting [Mr.
Roy’s] flu vaccination, cellulitis, and death, or demonstrated how his clinical course was altered
as a result of his vaccination.” Id. at 7-8. Moreover, during a recent status conference, several
issues regarding Mr. Roy’s medical records were discussed, including: (1) how Mr. Roy’s fall on
October 4, 2014 was caused by his vaccinations as compared to Mr. Roy’s previous falls due to
ongoing progressive bilateral lower extremity weakness; (2) how Mr. Roy’s fall and/or cellulitis
resulted in his decline five months later; and (3) how the UTI and community acquired pneumonia
he suffered from 5 months after his vaccination were causally related to his vaccinations and/or
cellulitis.
Petitioners’ counsel is currently working with Dr. Gershwin to address the above-
referenced issues. In the context of Mr. Roy’s complicated medical history and serious
comorbidities, reasonable basis cannot be determined until the above inconsistences are addressed
and the experts have had the opportunity to provide opinions based on the clarified record.
Once the entitlement phase of this matter has concluded, petitioner may file an application
for attorneys’ fees and costs, at which time reasonable basis will be determined.
B. Interim Attorneys’ Fees and Costs
Special masters have discretion to award interim fees while the litigation is ongoing if “the
cost of litigation has imposed an undue hardship” and there is “a good faith basis for the claim.”
Shaw v. Sec’y of Health & Human Servs., 609 F.3d 1372, 1375 (Fed. Cir. 2010); see Avera v. Sec’y
of Health & Human Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008). The Court in Avera held that
interim fees may be awarded “in appropriate circumstances.” 515 F.3d at 1351. The Court then
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listed some circumstances—cases involving “protracted” proceedings and “costly experts”—in
which it would be “particularly appropriate” to award interim fees. Id. at 1352. But “the Federal
Circuit in Avera . . . did not enunciate the universe of litigation circumstances which would warrant
an award of interim attorney’s fees,” Woods v. Sec’y of Health & Human Servs., 105 Fed. Cl. 148,
154 (2012), and “special masters [retain] broad discretion in determining whether to award” them,
Al-Uffi ex rel. R.B. v. Sec’y of Health & Human Servs., No. 13-956V, 2015 WL 6181669, at *5
(Fed. Cl. Spec. Mstr. Sept. 30, 2015). In making this determination, “the special master may
consider any of the unique facts of a case.” Rehn v. Sec’y of Health & Human Servs., 126 Fed. Cl.
86, 94 (2016).
Interim fees are the exception rather than the rule; indeed, “there is not a presumption of
entitlement to interim fees.” McKellar v. Sec’y of Health & Human Servs., 101 Fed. Cl. 297, 300
(2011). Under the circumstances of this case, interim fees are not warranted. There are neither
“protracted proceedings” nor “costly experts,” and petitioners have not made a “special showing”
that an award of interim fees and costs is necessary to avoid undue hardship.
Petitioners’ Motion cites the “two-plus year delay” in the proceedings as justification for
an award of interim fees. However, the overall amount of fees requested does not appear to be
unduly burdensome, RLG did not incur expert costs on the petitioners’ behalf, and any costs going
forward will be paid by Dr. Rodriguez’s current firm, Sands Anderson. Furthermore, counsel has
not withdrawn from representing the petitioners in this matter, but merely changed law firms. Dr.
Rodriguez can protect the fees and costs incurred by his prior firm by including them in a
subsequent application for fees and costs, submitted at a more appropriate time. As petitioners do
not meet any of the circumstances typically invoked in awarding interim fees, I find that interim
fees are not appropriate at this juncture.
Based on the foregoing, petitioners’ Motion for Interim Attorneys’ Fees and Costs is
DENIED. The Clerk of the Court is directed to enter judgment in accordance with this Decision.4
IT IS SO ORDERED.
s/ Mindy Michaels Roth
Mindy Michaels Roth
Special Master
4
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice
renouncing the right to seek review.
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