Bodak v. Secretary of Health and Human Services

• Court: United States Court of Federal Claims
• Decided: March 11, 2025
• Docket: 19-2019
• Status: Unpublished

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-2019V

TROY J. BODAK, Chief Special Master Corcoran

Petitioner, Filed: February 4, 2025 v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

Richard H. Moeller, Moore, Heffernan, et al., Sioux City, IA, for Petitioner.

Nina Ren, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING ATTORNEY’S FEES AND COSTS1

On December 31, 2019, Troy J. Bodak filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”), alleging that he suffered a shoulder injury related to vaccine administration (“SIRVA”) as a result of an influenza vaccine that he received on October 31, 2018. Petition, ECF No. 1 at 1.

Although the claim was unsuccessful, I find it possessed sufficient reasonable basis to permit an award of attorney’s fees. And I have reviewed the submitted billing records and find no reduction in the amount of fees to be awarded is needed.

1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made

publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government Services). This means the Decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease

of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018). I. Relevant Procedural History

Following briefing by the parties, I issued a ruling dismissing Petitioner’s Table claim. ECF No. 45. Although I also doubted that Petitioner could prevail pursuant to a causation-in-fact claim, I allowed him the opportunity to provide sufficient evidence to show why the claim as a whole should not be dismissed. Id. at 10. But he failed to do so, and I accordingly dismissed the claim in its entirety. Dismissal Decision, issued Oct. 31, 2023, ECF No. 49.

On December 1, 2023, Petitioner filed a request for an award of $43,792.03 in attorney’s fees and costs. Petitioner’s Application for Attorneys’ Fees and Costs at ¶ 2, ECF No. 50. Citing Petitioner’s unwillingness to participate further after the dismissal of his claim, Petitioner’s counsel represented that he does not believe Petitioner incurred any out-of-pocket litigation costs. Id. at ¶¶ 3-4. He also asked that I award the fees in a check made payable solely to counsel. Id. at ¶ 5. Accompanying the request, Petitioner filed a brief addressing the requested manner of payment and good faith and reasonable – additional requirements which must be met before a fees award is made in non- compensated vaccine cases. ECF No. 50-1; see Section 15(e)(1).

Respondent reacted the same day, providing his usual response - that he is satisfied that the statutory requirements for an award of attorney’s fees and costs are met in this case, but deferring resolution of the amount to be awarded to my discretion. Respondent’s Response to Motion at 2-3, 3 n.2, ECF No. 52. Although he did not address good faith and reasonable, he opposed Petitioner’s request for direct payment. Id. at 3-5.

In his reply, filed on December 4, 2023, Petitioner noted Respondent’s lack of opposition to a fees award. Petitioner’s Reply to Response at 1, ECF No. 52. He countered Respondent’s arguments related to the manner of payment, maintaining there is no support for Respondent’s assertion that any check be made payable to both Petitioner and counsel, and criticizing Respondent’s suggestion that he sue Petitioner to ensure payment. Id. at 2-4. (But because the payment for attorney’s fees and costs will now be made electronically to the IOLTA account maintained by Petitioner’s counsel, the issue raised regarding the form of this payment has been rendered moot).

II. Reasonable Basis

A. Legal Standard

Motivated by a desire to ensure that petitioners have adequate assistance from counsel when pursuing their claims, Congress determined that attorneys’ fees and costs may be awarded even in unsuccessful claims. H.R. REP. NO. 99-908, at 22 reprinted in

2 1986 U.S.C.C.A.N. 6344, 6363; see also Sebelius v. Cloer, 133 S.Ct. 1886, 1895 (2013) (discussing this goal when determining that attorneys’ fees and costs may be awarded even when the petition was untimely filed). As Judge Lettow noted in Davis, “the Vaccine Program employs a liberal fee-shifting scheme.” Davis v. Sec’y of Health & Hum. Servs., 105 Fed. Cl. 627, 634 (2012). It may be the only federal fee-shifting statute that permits unsuccessful litigants to recover fees and costs.

However, Congress did not intend that every losing petition be automatically entitled to attorney’s fees. Perreira v. Sec’y of Health & Hum. Servs., 33 F.3d 1375, 1377 (Fed. Cir. 1994). And there is also a prerequisite to even obtaining fees in an unsuccessful case. The special master or court may award attorney’s fees and costs in a case in which compensation was not awarded only if “that the petition was brought in good faith and there was a reasonable basis for the claim for which the petition was brought.” Section 15(e)(1). Reasonable basis is a prerequisite to a fee award for unsuccessful cases – but establishing it does not automatically require an award, as special masters are still empowered by the Act to deny or limit fees. James-Cornelius on behalf of E. J. v. Sec'y of Health & Hum. Servs., 984 F.3d 1374, 1379 (Fed. Cir. 2021) (“even when these two requirements are satisfied, a special master retains discretion to grant or deny attorneys’ fees”).

As the Federal Circuit explained, whether a discretionary fees award is appropriate involves two distinct inquiries – a subjective one when assessing whether the petition was brought in good faith and an objective one when ascertaining whether reasonable basis existed. Simmons v. Sec’y of Health & Hum. Servs., 875 F.3d 632, 635 (quoting Chuisano v. Sec’y of Health & Hum. Servs., 116 Fed. Cl. 276, 289 (2014)). “Good faith is a subjective test, satisfied through subjective evidence.” Cottingham v. Sec’y of Health & Hum. Servs., 971 F.3d 1337, 1344 (Fed. Cir. 2020) (“Cottingham I”). “[T]he ‘good faith’ requirement . . . focuses upon whether petitioner honestly believed he had a legitimate claim for compensation.” Turner v. Sec’y of Health & Hum. Servs., No. 99-0544V, 2007 WL 4410030, at *5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007).

Cases in which good faith has been found to be lacking often involve petitioners who failed to produce or actively concealed evidence undermining their claims. Purnell- Reid v. Sec’y of Health & Hum. Servs., No. 18-1101V, 2020 WL 2203712 (Fed. Cl. Spec. Mstr. Apr. 6, 2020); Crowding v. Sec’y of Health & Hum. Servs., No. 16-0876V, 2019 WL 1332797 (Fed. Cl. Spec. Mstr. Feb. 26, 2019); Heath v. Sec'y of Health & Hum. Servs., No. 08-0086V, 2011 WL 4433646 (Fed. Cl. Spec. Mstr. Aug. 25, 2011); Carter v. Sec'y of Health & Hum. Servs., No. 90-3659V, 1996 WL 402033 (Fed. Cl. Spec. Mstr. July 3, 1996).

3 “Additionally, a petitioner’s attorney’s conduct may also be relevant when evaluating good faith.” Purnell-Reid, 2020 WL 2203712, at *6. “Counsel still have a duty to investigate a Program claim even if they reasonably find their client to be a credible individual.” Cortez v. Sec'y of Health & Hum. Servs., No. 09-0176V, 2014 WL 1604002, at *8 (Fed. Cl. Spec. Mstr. Mar. 26, 2014). Factors, such as a looming statute of limitations and the conduct of counsel, are properly considered when determining whether good faith exists – but do not bear on the claim’s objective basis. Simmons, 875 F.3d at 636; Amankwaa v. Sec'y of Health & Hum. Servs., 138 Fed. Cl. 282, 289 (2018) (“the effort that an attorney makes to investigate a claim or to ensure that a claim is asserted before the expiration of the statutory limitations period . . . are properly evaluated in determining whether a petition was brought in good faith”).

“Reasonable basis, on the other hand, is an objective test, satisfied through objective evidence.” Cottingham I, 971 F.3d at 1344. The reasonable basis requirement examines “not at the likelihood of success [of a claim] but more to the feasibility of the claim.” Turner, 2007 WL 4410030, at *6 (quoting Di Roma v. Sec’y of Health & Hum. Servs., No. 90-3277V, 1993 WL 496981, at *1 (Fed. Cl. Spec. Mstr. Nov. 18, 1993)). The Federal Circuit recently explained “that a reasonable basis analysis is limited to objective evidence, and that subjective considerations, such as counsel’s subjective views on the adequacy of a complaint, do not factor into a reasonable basis determination.” James- Cornelius, 984 F.3d at 1379.

Although clearly easier to meet than the preponderant standard required for compensation, “courts have struggled with the nature and quantum of evidence necessary to establish a reasonable basis.” Wirtshafter v. Sec’y of Health & Hum. Servs., 155 Fed. Cl. 665 at 671 (Fed. Cl. 2021). “[I]t is generally accepted that ‘a petitioner must furnish some evidence in support of the claim.’” Id. (quoting Chuisano, 116 Fed. Cl. at 288, emphasis added in Wirtshafter). Citing the prima facie elements of a successful claim described in Section 11(c)(1), the Federal Circuit recently instructed that the level of the objective evidence sufficient for a special master to find reasonable basis should be “more than a mere scintilla but less than a preponderance of proof.” Cottingham I, 971 F.3d at 1345-46. “This formulation does not appear to define reasonable basis so much as set its outer bounds.” Cottingham v. Sec’y of Health & Hum. Servs., 159 Fed. Cl. 328, 333, (Fed. Cl. 2022) (“Cottingham II”). “[T]he Federal Circuit’s statement that a special master ‘could’ find reasonable basis based upon more than a mere scintilla does not mandate such a finding.” Cottingham II, 159 Fed. Cl. at 333 (citing Cottingham I, 971 F.3d at 1346).

Furthermore, the issue of reasonable basis is not a static inquiry. The reasonable basis which existed when a claim was filed may cease to exist as further evidence is presented. Perreira, 33 F.3d at 1377. In Perreira, the Federal Circuit affirmed a special master’s determination that reasonable basis was lost after Petitioner’s “expert opinion,

4 which formed the basis of the claim, was found to be unsupported by either medical literature or studies.” Id. at 1376.

B. Existence of Reasonable Basis in this Case

I previously determined that preponderant evidence in this case supported a delayed pain onset - more than 48 hours post-vaccination – and revealed symptoms which were not limited to his vaccinated shoulder. Dismissal Decision at 10, ECF No. 45. However, I based this determination on the inconsistent histories provided by Petitioner, noting that “some contemporaneous records do support a Table SIRVA onset.” Id. at 9. Similarly, Petitioner reported symptoms that extended beyond his left shoulder at some, albeit not all, medical appointments. Id. at 9-10.

Thus, it was conceivable that the claim inconsistencies I identified in this case could have been resolved with additional evidence – whether provided by an expert, medical literature, or the record itself. Petitioner’s inability to produce the evidence needed to satisfy the greater standard required to prevail on entitlement does not affect the feasibility of his claim, or that a few scintillas of objective evidence existed to support it.

Thus, and even though evidence did not meet the level of preponderance required for a finding of entitlement, reasonable basis – a standard far lower – existed for the claim, at least through the time of its dismissal. And there is no other basis for a denial of fees, despite the claim’s lack of success. Therefore, the only remaining question is the appropriate amount of the attorney’s fees and costs to be awarded.

III. Appropriate Amount to be Awarded

Counsel must submit fee requests that include contemporaneous and specific billing records indicating the service performed, the number of hours expended on the service, and the name of the person performing the service. See Savin v. Sec’y of Health & Hum. Servs., 85 Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health & Hum. Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). It is “well within the special master’s discretion to reduce the hours to a number that, in [her] experience and judgment, [is] reasonable for the work done.” Id. at 1522. Furthermore, the special master may reduce a fee request sua sponte, apart from objections raised by respondent and without providing a petitioner notice and opportunity to respond. See Sabella v. Sec’y of Health & Hum. Servs., 86 Fed.

5 Cl. 201, 209 (2009). A special master need not engage in a line-by-line analysis of petitioner’s fee application when reducing fees. Broekelschen v. Sec’y of Health & Hum. Servs., 102 Fed. Cl. 719, 729 (2011).

B. Attorney’s Fees and Costs

I have reviewed the billing records submitted with Petitioner’s request. In my experience, the request appears reasonable, and I find no cause to reduce the requested hours or rates. Petitioner billed a reasonable amount of time using hourly rates previously approved for all attorneys and paralegals performing this work. ECF No. 50-2. He provided supporting documentation for all claimed costs. ECF No. 50-3. And Respondent offered no specific objection to the rates or amounts sought.

Conclusion

I have determined that an award of reasonable attorney’s fees and costs is appropriate in this case even though compensation was not awarded. Section 15(e)(1). Additionally, no reduction in the amount of attorney’s fees and costs is warranted.

Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs and award a total of $43,792.03 (representing $43,002.40 in fees and $789.63 in costs) to be paid through an ACH deposit to Petitioner’s counsel’s IOLTA account for prompt disbursement. The Clerk of the Court is directed to enter judgment in accordance with this Decision.3

IT IS SO ORDERED.

s/Brian H. Corcoran Brian H. Corcoran Chief Special Master

3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice

renouncing the right to seek review.