Sciortino v. Secretary of Health and Human Services

Federal Claims

Sciortino v. Secretary of Health and Human Services

United States Court of Federal Claims·Decided January 8, 2025·No. 22-0099V·Unpublished

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-99V

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BARBARA SCIORTINO, * Chief Special Master Corcoran

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Petitioner, * Filed: October 31, 2024

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v. *

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SECRETARY OF HEALTH * AND HUMAN SERVICES, *

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Respondent. *

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Michael G. McLaren, Black McLaren, et al., PC, Memphis, TN, for Petitioner.

Parissa Tabassian, U.S. Dep’t of Justice, Washington, DC, for Respondent.

DECISION GRANTING AWARD OF ATTORNEY’S FEES AND COSTS1

On February 1, 2022, Barbara Sciortino filed a petition seeking compensation under the National Vaccine Injury Compensation Program (the “Vaccine Program”).2 Petitioner alleged that an influenza (“flu”) vaccine she received on October 30, 2019 caused her to suffer polymyalgia rheumatica (“PMR”). Petition (ECF No. 1) at 1.

Petitioner was initially represented by the attorneys at Conway Homer, P.C. (“Conway Homer”), but on January 18, 2023, the attorneys at Black McLaren Jones Ryland & Griffee (“BMJRG”) were substituted as counsel. ECF No. 19. Parties filed expert reports and briefs, and after a complete review of the record, I denied entitlement on July 24, 2024. See Sciortino v. Sec’y

1 Under Vaccine Rule 18(b), each party has fourteen (14) 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 in its present form. Id. 2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”). Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).

of Health & Hum. Servs., No. 22-99V, 2024 WL 4579389 (Fed. Cl. Spec. Mstr. July 24, 2024). That determination was not appealed.

Petitioner has now filed a motion for a final award of attorney’s fees and costs. Motion, dated September 25, 2024 (ECF No. 33) (“Fees Mot.”). Petitioner requests $83,572.95, reflecting $67,186.00 in fees and $16,386.95 in costs incurred by the attorneys at BMJRG. Fees Mot. at 1. Included in the fees motion is a second fees application pertaining to work performed by Conway Homer, and requesting $23,900.71 - $19,682.00 in fees, $4,201.61 in attorneys’ costs, and $17.10 for Petitioner’s personal costs. Former Counsel’s Application, dated June 28, 2024 (ECF No. 33- 5) (“App.”). Taken together, Petitioner requests a grand total of $107,473.66. Fees Mot. at 1.

Respondent has reacted to the motion, confirming that Petitioner satisfies the statutory requirements for a fees award. Response, dated October 2, 2024, 2024 (ECF No. 34) (“Response”). But Respondent also calls two issues to my attention – the expenses incurred by Petitioner’s counsel for two cross-country trips, and counsel’s significant billing following completion of briefing – but otherwise defers the calculation of the amount to be awarded to my discretion. Response at 3-4.

Petitioner filed a reply, clarifying the issues raised by Respondent. Reply, dated October 2, 2024 (ECF No. 35) (“Reply”). First, Petitioner explains that $3,701.45 covered the expenses of two in-person client meetings. Reply at 1. The first meeting cost $2,581.78, due to the high cost of air travel at that time. Id. at 1-2. Petitioner also notes that the cost of the hotel room ($375/night) was reasonable considering the trip’s somewhat-impromptu scheduling. Id. Petitioner adds that it is counsel’s standard practice to conduct an initial, in-person meeting with Program clients. Id. at 2 n.1. The second meeting, which cost about $1,100.00, provided Petitioner’s counsel with the opportunity to carefully review all settlement options with the Petitioner. Id. at 2. Between briefing and the Entitlement Decision, Petitioner’s counsel billed $10,304.70 – notably less than Respondent alleged. Id. at 4. Petitioner defends this amount by pointing me to her counsel’s detailed billing entries. Id.

For the reasons set forth below, I hereby GRANT Petitioner’s motion, awarding fees and costs in the total amount of $107,473.66.

ANALYSIS

I. Petitioner’s Claim had Reasonable Basis

Although the Vaccine Act only guarantees a fees award to successful petitioners, a special master may also award fees and costs in an unsuccessful case if: (1) the “petition was brought in good faith”; and (2) “there was a reasonable basis for the claim for which the petition was brought.” Section 15(e)(1). I have in prior decisions set forth at length the criteria to be applied when determining if a claim possessed “reasonable basis” sufficient for a fees award. See, e.g., Sterling

v. Sec’y of Health & Hum. Servs., No. 16-551V, 2020 WL 549443, at *4 (Fed. Cl. Spec. Mstr. Jan. 3, 2020). Importantly, establishing reasonable basis does not automatically entitle an unsuccessful claimant to fees, but is instead a threshold obligation; fees can still thereafter be limited, if unreasonable, or even denied entirely.

A claim’s reasonable basis3 must be demonstrated through some objective evidentiary showing. Cottingham v. Sec’y of Health & Hum. Servs., 971 F.3d 1337, 1344 (Fed. Cir. 2020) (citing Simmons v. Sec’y of Health & Hum. Servs., 875 F.3d 632, 635 (Fed. Cir. 2017)). This objective inquiry is focused on the claim—counsel’s conduct is irrelevant (although it may bulwark good faith). Simmons, 875 F.3d at 635. In addition, reasonable basis inquiries are not static—they evaluate not only what was known at the time the petition was filed, but also take into account what is learned about the evidentiary support for the claim as the matter progresses. Perreira v. Sec’y of Health & Hum. Servs., 33 F.3d 1375, 1377 (Fed. Cir. 1994) (upholding the finding that a reasonable basis for petitioners’ claims ceased to exist once they had reviewed their expert's opinion, which consisted entirely of unsupported speculation). As a result, a claim can “lose” reasonable basis over time.

The standard for finding the existence of reasonable basis is lesser (and thus inherently easier to satisfy) than the preponderant standard applied when assessing entitlement, as cases that fail can still have sufficient objective grounding for a fees award. Braun v. Sec’y of Health & Hum. Servs., 144 Fed. Cl. 72, 77 (2019). The Court of Federal Claims has affirmed that “[r]easonable basis is a standard that petitioners, at least generally, meet by submitting evidence.” Chuisano v. Sec’y of Health & Hum. Servs., 116 Fed. Cl. 276, 287 (Fed. Cl. 2014) (internal quotations omitted) (affirming special master). The factual basis and medical support for the claim is among the evidence that should be considered. Carter v. Sec’y of Health & Hum. Servs., 132 Fed. Cl. 372, 378 (Fed. Cl. 2017). Under the Vaccine Act, special masters have “maximum discretion” in applying the reasonable basis standard. See, e.g., Silva v. Sec’y of Health & Hum. Servs., 108 Fed. Cl. 401, 401–02 (Fed. Cl. 2012).4

Although Petitioner’s claim was ultimately unsuccessful, I find that there was a sufficient objective basis to entitle her to a fees and costs award – even though existing Program decisions are uniformly unsupportive of claims alleging PMR as a vaccine injury. There was objective evidence in the medical record that Petitioner experienced arguably PMR-like symptoms (persistent full body aches) shortly after receiving the flu vaccine. Although a causal mechanism

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