In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-0177V UNPUBLISHED
JULIA SHATLOCK, Chief Special Master Corcoran
Petitioner, Filed: November 8, 2021 v. Pre-Assignment Review; Attorney’s SECRETARY OF HEALTH AND Fees and Costs; Reasonable Basis; HUMAN SERVICES, Influenza (Flu) Vaccine; Shoulder Injury Related to Vaccine Respondent. Administration (SIRVA)
Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Heather Lynn Pearlman, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS1
On January 7, 2021, Julia Shatlock filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petitioner alleged that she suffered a shoulder injury related to vaccine administration (“SIRVA”), a defined Table Injury, after receiving the influenza (“flu”) vaccine on October 3, 2019. Petition at 1, ¶ 2.
Along with the petition, which sets forth only the basic elements of his claim, Ms. Shatlock filed an affidavit from Petitioner’s counsel (labeled Exhibit 1) indicating the petition was filed without medical records “[d]ue to the potential Table amendment
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in accordance with the E- Government Act of 2002. 44 U.S.C. § 3501 note (2012) (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.
2National 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 (2012). proposed by [R]espondent which would divest victims of shoulder injuries related to vaccine administration (SIRVA) the benefit of a ‘Table’ claim.” Exhibit 1 at ¶ 1.
After failing to provide any medical records to support her claim on April 27, 2021, the parties filed a joint stipulation seeking a voluntarily dismissal of Petitioner’s claim pursuant to Vaccine Rule 21(a).3 ECF No. 9. No reason for the dismissal was provided. Id. On April 28, 2021, I issued an order concluding proceedings, dismissing Petitioner’s claim without prejudice. ECF No. 10.
On August 16, 2021, Petitioner filed a motion seeking a total of $4,008.00 in attorney’s fees and costs. Petitioner’s Application for Attorney’s Fees (“Motion”), ECF No. 12. Maintaining that Petitioner has failed to establish there was a reasonable basis for her claim, Respondent opposes Petitioner’s request. Respondent’s Objection to Motion (“Opp.”), filed August 26, 2021, ECF No. 13. On October 29, 2021, Petitioner’s counsel notified an OSM paralegal and staff attorney, by email communication, that Petitioner did not intend to file a reply. See Informal Remark, dated Oct. 29, 2021. Respondent’s counsel was copied on all email correspondence. Id.
Because Petitioner has failed to provide any evidence supporting her assertions, she has failed to establish there was a reasonable basis for her claim. Thus, she is not entitled to an award of attorney’s fees and costs.
I. 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 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 & Human 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 & Human Servs., 33 F.3d 1375, 1377 (Fed. Cir. 1994). And there is 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
3Pursuant to Vaccine Rule 21(a), “a petition may be dismissed by a stipulation of dismissal signed by all parties who have appeared in the action.” Vaccine Rule 21(a)(1)(B).
2 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 & Human 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, the reasonable basis determination 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 & Human Servs., 875 F.3d 632, 635 (quoting Chuisano v. Sec’y of Health & Human Servs., 116 Fed. Cl. 276, 289 (2014)). “Good faith is a subjective test, satisfied through subjective evidence.” Cottingham v. Sec’y of Health & Human Servs., 971 F.3d 1337, 1344 (Fed. Cir. 2020). “[T]he ‘good faith’ requirement . . . focuses upon whether petitioner honestly believed he had a legitimate claim for compensation.” Turner v. Sec’y of Health & Human 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 & Human Servs., No. 18-1101V, 2020 WL 2203712 (Fed. Cl. Spec. Mstr. Apr. 6, 2020); Crowding v. Sec’y of Health & Human Servs., No. 16-0876V, 2019 WL 1332797 (Fed. Cl. Spec. Mstr. Feb. 26, 2019); Heath v. Sec'y of Health & Human Servs., No. 08-0086V, 2011 WL 4433646 (Fed. Cl. Spec. Mstr. Aug. 25, 2011); Carter v. Sec'y of Health & Human Servs., No. 90-3659V, 1996 WL 402033 (Fed. Cl. Spec. Mstr. July 3, 1996).
“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 & Human Servs., No. 09-0176V, 2014 WL 1604002, at *8 (Fed. Cl. Spec. Mstr.
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In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-0177V UNPUBLISHED
JULIA SHATLOCK, Chief Special Master Corcoran
Petitioner, Filed: November 8, 2021 v. Pre-Assignment Review; Attorney’s SECRETARY OF HEALTH AND Fees and Costs; Reasonable Basis; HUMAN SERVICES, Influenza (Flu) Vaccine; Shoulder Injury Related to Vaccine Respondent. Administration (SIRVA)
Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Heather Lynn Pearlman, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS1
On January 7, 2021, Julia Shatlock filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petitioner alleged that she suffered a shoulder injury related to vaccine administration (“SIRVA”), a defined Table Injury, after receiving the influenza (“flu”) vaccine on October 3, 2019. Petition at 1, ¶ 2.
Along with the petition, which sets forth only the basic elements of his claim, Ms. Shatlock filed an affidavit from Petitioner’s counsel (labeled Exhibit 1) indicating the petition was filed without medical records “[d]ue to the potential Table amendment
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in accordance with the E- Government Act of 2002. 44 U.S.C. § 3501 note (2012) (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.
2National 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 (2012). proposed by [R]espondent which would divest victims of shoulder injuries related to vaccine administration (SIRVA) the benefit of a ‘Table’ claim.” Exhibit 1 at ¶ 1.
After failing to provide any medical records to support her claim on April 27, 2021, the parties filed a joint stipulation seeking a voluntarily dismissal of Petitioner’s claim pursuant to Vaccine Rule 21(a).3 ECF No. 9. No reason for the dismissal was provided. Id. On April 28, 2021, I issued an order concluding proceedings, dismissing Petitioner’s claim without prejudice. ECF No. 10.
On August 16, 2021, Petitioner filed a motion seeking a total of $4,008.00 in attorney’s fees and costs. Petitioner’s Application for Attorney’s Fees (“Motion”), ECF No. 12. Maintaining that Petitioner has failed to establish there was a reasonable basis for her claim, Respondent opposes Petitioner’s request. Respondent’s Objection to Motion (“Opp.”), filed August 26, 2021, ECF No. 13. On October 29, 2021, Petitioner’s counsel notified an OSM paralegal and staff attorney, by email communication, that Petitioner did not intend to file a reply. See Informal Remark, dated Oct. 29, 2021. Respondent’s counsel was copied on all email correspondence. Id.
Because Petitioner has failed to provide any evidence supporting her assertions, she has failed to establish there was a reasonable basis for her claim. Thus, she is not entitled to an award of attorney’s fees and costs.
I. 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 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 & Human 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 & Human Servs., 33 F.3d 1375, 1377 (Fed. Cir. 1994). And there is 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
3Pursuant to Vaccine Rule 21(a), “a petition may be dismissed by a stipulation of dismissal signed by all parties who have appeared in the action.” Vaccine Rule 21(a)(1)(B).
2 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 & Human 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, the reasonable basis determination 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 & Human Servs., 875 F.3d 632, 635 (quoting Chuisano v. Sec’y of Health & Human Servs., 116 Fed. Cl. 276, 289 (2014)). “Good faith is a subjective test, satisfied through subjective evidence.” Cottingham v. Sec’y of Health & Human Servs., 971 F.3d 1337, 1344 (Fed. Cir. 2020). “[T]he ‘good faith’ requirement . . . focuses upon whether petitioner honestly believed he had a legitimate claim for compensation.” Turner v. Sec’y of Health & Human 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 & Human Servs., No. 18-1101V, 2020 WL 2203712 (Fed. Cl. Spec. Mstr. Apr. 6, 2020); Crowding v. Sec’y of Health & Human Servs., No. 16-0876V, 2019 WL 1332797 (Fed. Cl. Spec. Mstr. Feb. 26, 2019); Heath v. Sec'y of Health & Human Servs., No. 08-0086V, 2011 WL 4433646 (Fed. Cl. Spec. Mstr. Aug. 25, 2011); Carter v. Sec'y of Health & Human Servs., No. 90-3659V, 1996 WL 402033 (Fed. Cl. Spec. Mstr. July 3, 1996).
“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 & Human 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 & Human 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”).
3 “Reasonable basis, on the other hand, is an objective test, satisfied through objective evidence.” Cottingham, 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 & Human 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 on Behalf of E. J. v. Sec'y of Health & Hum. Servs., 984 F.3d 1374, 1379 (Fed. Cir. 2021).
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 & Human Servs., --- Fed. Cl. ---, 2021 WL 4188429, at *5 (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, 971 F.3d at 1345-46. In a prior case, it affirmed a special master’s determination that reasonable basis was lost after Petitioner’s “expert opinion, which formed the basis of the claim, was found to be unsupported by either medical literature or studies.” Perreira, 33 F.3d at 1376.
II. Analysis
Listing the prima facie elements for which objective evidence needs to be provided, Respondent argues that attorney’s fees and costs should not be awarded in this case. Opp. at 4, 4 n.2 (citing Cottingham, 971 F.3d at 1345-46). He maintains that Petitioner “has submitted no evidence to support any element of her claim.” Opp. at 5 (emphasis in original). As stated above, Petitioner declined to file a reply.
Overall, the present record does not demonstrate the reasonable basis required for an attorney’s fees and cost award. Petitioner filed no medical records or other evidence to establish the prima facie elements of a SIRVA claim. Specifically, Petitioner has failed to provide any evidence to establish that she received the flu vaccine on October 3, 2019, as alleged, or that she suffered the residual effects of her alleged SIRVA for more than six months.
4 III. Conclusion
The Vaccine Act permits an award of reasonable attorneys’ fees and costs even to an unsuccessful litigant as long as the litigant establishes 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). In this case, Petitioner has not established there was a reasonable basis for filing her claim. Petitioner’s motion for attorney’s 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/Brian H. Corcoran Brian H. Corcoran Chief Special Master
4 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.