Young v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 05-207V
Filed: March 27, 2014

NOT TO BE PUBLISHED 1
*******************************************
RICHARD CHRISTOPHER YOUNG and *
CHRISTINA YOUNG , as parents and natural *
guardians of KLY, a minor, *
* Vaccine Act Denial of Interim
Petitioners, * Costs; Expert Costs; Reasonable
* Basis; Reasonable Costs
v. *
*
SECRETARY OF HEALTH AND HUMAN *
SERVICES, *
*
Respondent. *
*******************************************
Clifford Shoemaker, Shoemaker & Associates, Vienna, VA, for Petitioners.
Heather Pearlman, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION DENYING PETITIONERS’ APPLICATION FOR INTERIM COSTS

HASTINGS, Special Master.

In this case under the National Vaccine Injury Compensation Program (hereinafter Athe
Program@), Richard and Christina Young (“Petitioners”) seek, pursuant to 42 U.S.C. '
300aa-15(e), 2 an award of interim costs for prepayment of $5000 in expert fees demanded by
Petitioners’ expert and $2,400 for certain medical testing that Petitioners’ expert indicates is
necessary in order for her to prepare an expert report in this case. After careful consideration, I
have determined to deny the request in full.

1
Because I have designated this document to be published, this document will be made available
to the public unless Petitioner files, within fourteen days, an objection to the disclosure of any
material in this decision that would constitute Amedical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of privacy.@ See 42 U.S.C.
' 300aa-12(d)(4)(B); Vaccine Rule 18(b).
2
The applicable statutory provisions defining the Program are found at 42 U.S.C. ' 300aa-10 et
seq. (2006). Hereinafter, for ease of citation, all ' references will be to 42 U.S.C. (2006).

1
 I

PROCEDURAL BACKGROUND

A. Omnibus Autism Proceeding

This case concerning KLY is one of more than 5000 cases filed under the Program in
which it has been alleged that a child’s disorder known as “autism,” or a similar disorder, was
caused by one or more vaccinations. A brief summary of that proceeding follows.

In anticipation of dealing with such a large group of cases involving a common factual
issue--i.e., whether vaccinations can cause autism--the Office of Special Masters (“OSM”) devised
special procedures. On July 3, 2002, the Chief Special Master, acting on behalf of the OSM, issued
a document entitled the Autism General Order # 1, 3 which set up a proceeding known as the
“Omnibus Autism Proceeding” (OAP). In the OAP, a group of counsel selected from attorneys
representing petitioners in the autism cases, known as the Petitioners’ Steering Committee
(“PSC”), was charged with obtaining and presenting evidence concerning the general issue of
whether those vaccines can cause autism, and, if so, in what circumstances. The evidence obtained
in that general inquiry was to be applied to the individual cases. (Autism General Order # 1, 2002
WL 31696785, at *3.)

Ultimately, the PSC elected to present two different theories concerning the causation of
autism. The first theory alleged that the measles portion of the MMR vaccine can cause autism, in
situations in which it was alleged that thimerosal-containing vaccines previously weakened an
infant’s immune system. That theory was presented in three separate Program “test cases,” during
several weeks of trial in 2007. The second theory alleged that the mercury contained in the
thimerosal-containing vaccines can directly affect an infant’s brain, thereby substantially
contributing to the development of autism. The second theory was presented in three additional
“test cases” during several weeks of trial in 2008.

On February 12, 2009, decisions were issued concerning the three “test cases” pertaining to
the PSC’s first theory. In each of those three decisions, the petitioners’ causation theories were
rejected. I issued the decision in Cedillo v. HHS, No. 98-916V, 2009 WL 331968 (Fed. Cl. Spec.
Mstr. Feb. 12, 2009). Special Master Patricia Campbell-Smith issued the decision in Hazlehurst v.
HHS, No. 03-654V, 2009 WL 332306 (Fed. Cl. Spec. Mstr. Feb. 12, 2009). Special Master Denise

3
The Autism General Order # 1 is published at 2002 WL 31696785, 2002 U.S. Claims LEXIS
365 (Fed.Cl.Spec.Mstr. July 3, 2002). I also note that the documents filed in the Omnibus Autism
Proceeding are contained in a special file kept by the Clerk of this court, known as the “Autism
Master File.” An electronic version of that File is maintained on this court's website. This
electronic version contains a “docket sheet” listing all of the items in the File, and also contains the
complete text of most of the items in the File, with the exception of a few documents that are
withheld from the website due to copyright considerations or due to § 300aa-12(d)(4)(A). To
access this electronic version of the Autism Master File, visit this court's website at
http://www.uscfc.uscourts.gov/docket-omnibus-autism-proceeding
2
Vowell issued the decision in Snyder v. HHS, No. 01-162V, 2009 WL 332044 (Fed. Cl. Spec.
Mstr. Feb. 12, 2009).

Those three decisions were later each affirmed in three different rulings, by three different
judges of the U.S. Court of Federal Claims. Hazlehurst v. HHS, 88 Fed. Cl. 473 (2009); Snyder v.
HHS, 88 Fed. Cl. 706 (2009); Cedillo v. HHS, 89 Fed. Cl. 158 (2009). Two of those three rulings
were then appealed to the U.S. Court of Appeals for the Federal Circuit, again resulting in
affirmances of the decisions denying the petitioners’ claims. Hazlehurst v. HHS, 604 F. 3d 1343
(Fed. Cir. 2010); Cedillo v. HHS, 617 F. 3d 1328 (Fed. Cir. 2010).

On March 12, 2010, the same three special masters issued decisions concerning three
separate “test cases” pertaining to the PSC’s second causation theory. Again, the
Petitioners’ causation theories were rejected in all three cases. King v. HHS, No. 03-
584V, 2010 WL 892296 (Fed.Cl.Spec.Mstr. Mar. 12, 2010); Mead v. HHS, No. 03-
215V, 2010 WL 892248 (Fed.Cl.Spec.Mstr. Mar. 12, 2010); Dwyer v. HHS, No. 03-
1202V, 2010 WL 892250 (Fed.Cl.Spec.Mstr. Mar.12, 2010). None of the petitioners elected to
seek review any of those three decisions.

Thereafter, petitioners remaining in the OAP were required to file amended petitions and
submit case-specific expert reports in support of their claim if they elected to pursue their petitions
for vaccine compensation. (See Autism Master File, Autism Update filed Jan. 12, 2011 at 4.) 4

B. Case-specific proceedings

On February 10, 2005, Petitioners filed a “Short-Form Autism Petition for Vaccine
Compensation,” on behalf of KLY under the Vaccine Act. (Pet. at 1.) Petitioners thereby alleged
that KLY’s autism was vaccine-caused, but provided no further details regarding the nature of the
alleged vaccine-related injury. (Id.)

During the pendency of the OAP, Petitioners filed the required medical records, as ordered
by the court in anticipation of the rulings from the test cases. (See Pet. Exs. 1-22.) On July 27,
2010, Respondent filed a Statement indicating that Petitioners’ claim was timely filed within the
Vaccine Act’s statute of limitations, and involved a diagnosed autism disorder. (Notice, ECF No.
43.)

Subsequent to the conclusion of the OAP test cases, Petitioners on August 15, 2011, filed
an Amended Petition, alleging that KLY’s MMR vaccination of August 8, 2002, caused him to
develop an encephalopathy. Petitioners were ordered on August 26, 2011, to file an expert report
in support of their Amended Petition by no later than November 28, 2011. (Order, ECF No. 48.)
For over one year thereafter, Petitioners’ counsel filed status reports indicating that counsel had
sent KLY’s medical records to an expert for “his” review and that additional time would be
4
An electronic copy of the Autism Update filed January 12, 2011, can be obtained from the
electronic version of the Autism Master File at
http://www.cofc.uscourts.gov/docket-omnibus-autism-proceeding.

3
required for the expert to review the material and ascertain if “he” could prepare an expert report.
(See Status Report, ECF No. 49, Nov. 28, 2011; Status Report, ECF No. 50, Jan. 27, 2012; Status
Report, ECF No. 51, Mar. 27, 2012; Status Report, ECF No. 52, May 30, 2012; Status Report, ECF
No. 53, July 30, 2012; Status Report, ECF No. 54, Sept. 28, 2012.)

On November 2, 2012, I expressed my concern that case this was not proceeding to
resolution more quickly, and ordered Petitioners to identify their medical expert and explain the
delay in producing their expert report. (See Order, ECF No. 55.). On January 18, 2013,
Petitioners filed a motion for a further enlargement of time, indicating that the expert who was
reviewing their case and preparing an expert report was Theresa A. Deisher, Ph.D. (Motion, ECF
No. 56.) 5 Along with the Motion, Petitioners filed a document that they described in that Motion
as an “Affidavit” of Dr. Deisher. The “Affidavit” was 28 pages long, but was unsigned by
Dr. Deisher. (See page 28 of that document.) The document, as Petitioners noted in their
Motion, provided a general description of Dr. Deisher herself and her work on a theory as how
vaccines might cause autism. However, it did not mention KLY’s case specifically.

On April 22 and July 29, 2013, I granted Petitioners further extensions of time to file
Dr. Deisher’s expert report specific to this case, since, according to Petitioners’ motions,
Dr. Deisher had been unable to prepare her report due to clinical commitments. However, in light
of the protracted proceedings in this case, in the Order of July 29, 2013, I warned Petitioners that if
their expert report was not filed within the next three months, absent good cause shown, I would
dismiss this case for failure to prosecute.

Petitioners have yet to file a case-specific expert report in support of their claim, despite
being under court order for more than two and one-half years to do so.

C. Petitioners’ application for interim costs

On August 15, 2013, Petitioners filed a motion that both sought another extension of time
to file Dr. Deisher’s report, and also constituted an application for interim costs. (Hereinafter, “Pet.
App.”) Petitioners’ application sought $5000 to cover the cost of a retainer charged by their
expert Dr. Deisher, plus $2,400 for the prepayment of costs for certain medical testing ordered by
Dr. Deisher. Respondent opposed Petitioners’ application for interim costs. (“R. Resp.,” filed
on Sep. 20, 2013.) Petitioners then filed another memorandum concerning the fee application on
October 11, 2013. (“Pet. Reply.”)

5
This filing occurred after I had convened a status conference in a separate but similar case
involving the same attorney and Dr. Deisher on January 8, 2013, to discuss my concerns regarding
the use of Dr. Deisher, who is not a medical doctor, as a medical expert. (See Fuesel v. HHS, No.
02-95V, Decision Denying Petitioners’ Application for Interim Costs filed March 19, 2014, slip.
op. at 4.)

4
 II

LEGAL STANDARD FOR AWARDING ATTORNEYS= FEES AND COSTS

A. In general

Special masters have the authority to award “reasonable” attorneys’ fees and litigation
costs in Vaccine Act cases. ' 300aa-15(e)(1). This is true even when a petitioner is unsuccessful
on the merits of the case, if the petition was filed in good faith and with a reasonable basis. Id.
“The determination of the amount of reasonable attorneys’ fees [and costs] is within the special
master=s discretion.” Saxton v. HHS, 3 F.3d 1517, 1520 (Fed. Cir. 1993); see also Shaw v. HHS,
609 F.3d 1372, 1377 (Fed. Cir. 2010).

Further, as to all aspects of a claim for attorneys’ fees and costs, the burden is on the
petitioner to demonstrate that the attorneys’ fees claimed are “reasonable.” Hensley v. Eckerhart,
461 U.S. 424, 437 (1983); Sabella v. HHS, 86 Fed. Cl. 201, 215 (Fed. Cl. 2009); Rupert v. HHS, 52
Fed.Cl. 684, 686 (2002); Wilcox v. HHS, No. 90-991V, 1997 WL 101572, at *4 (Fed. Cl. Spec.
Mstr. Feb. 14, 1997). The petitioner=s burden of proof to demonstrate “reasonableness” applies
equally to costs as well as attorneys’ fees. Perreira v. HHS, 27 Fed. Cl. 29, 34 (1992), aff=d 33
F.3d 1375 (Fed. Cir. 1994).

B. AInterim@ fees and costs

In Avera v. HHS, 515 F.3d 1343 (Fed. Cir. 2008), the U.S. Court of Appeals for the Federal
Circuit indicated that an award of “interim” fees and costs--that is, an award prior to the entry of a
final judgment on the initial question of whether the Petitioner is entitled to compensation for the
alleged vaccine injury--can be appropriate in Vaccine Act cases. Id. at 1352. The Avera court
did not specify in what particular circumstances such an award might appropriately be issued, but
the court made it clear that such “interim” awards can be appropriate. Id. The Federal Circuit
gave the same indication again in Shaw. Shaw, 609 F.3d at 1374.

III

RESPONDENT=S GENERAL LEGAL ARGUMENT THAT AN AWARD OF INTERIM
FEES AND COSTS IS ALWAYS INAPPROPRIATE PRIOR TO RESOLUTION OF THE
MERITS

In Avera v. HHS, the U.S. Court of Appeals for the Federal Circuit indicated that an award
of “interim fees”--that is, an award of fees prior to the entry of a final judgment on account of the
alleged vaccine injury--can be appropriate in Vaccine Act cases. Avera, 515 F.3d at 1352.
However, the Avera court did not specify in what particular circumstances such an award might
appropriately be issued. Id. In this case, Respondent first raises a legal argument that an
“interim” award is appropriate only in a very narrow set of circumstances--i.e., either after an
award of compensation resulting from the alleged vaccine injury has been made to the Petitioners,
or after a judgment denying such compensation has been entered by the court. (R. Resp., pp 5-9.)

5
 I reject Respondent=s legal argument. Avera clearly held that interim awards are
permissible. Avera, 515 F.3d at 1352. Further, the Federal Circuit’s opinion in Shaw stated
unequivocally that the Avera court had rejected “the government=s argument that a fee award is
only permissible after judgment under '300aa-15.” Shaw, 609 F.3d at 1374 (emphasis added).
Thus, the Shaw court explicitly interpreted the Avera court to have rejected the very argument that
Respondent raises here, that a fee award Ais only permissible after judgment.@ Id. I and other
Special Masters have found on numerous occasions that an award of interim fees is permissible
prior to the entry of judgment or an award of compensation resulting from the alleged vaccine
injury. See, e.g. Bender v. HHS, No. 11-693V, 2014 WL 448860, at *2-4 (Fed. Cl. Spec. Mstr.
Jan. 15, 2014). Special masters, rather, clearly have discretion to consider whether an interim
award is appropriate in a specific case. Saxton, 3 F.3d at 1520.

IV

THE CIRCUMSTANCES OF THIS CASE DO NOT JUSTIFY THE
REQUESTED AWARD OF INTERIM COSTS

A. Overview

I have reviewed and carefully considered Petitioners’ Application, as well as all the filings
from both parties concerning Petitioners’ Application. I find that the circumstances of this case
clearly do not justify an award for the interim costs sought by Petitioners at this time. I will not
reiterate each of the many deficiencies in Petitioners’ application, which were set forth in
Respondent’s Response. I will instead discuss the major weaknesses that prevent me from
awarding interim costs in this claim at this time: 1) Petitioners have not established that a
reasonable basis exists to proceed in the prosecution of this claim; and 2) Petitioners have not
established that the costs sought are reasonable.

As discussed above, under the Vaccine Act, Petitioners may recover reasonable attorneys’
fees and costs even if they have not established entitlement to compensation for their injury, if
their petition was filed in good faith, possessed a reasonable basis, and the requested fees and costs
are reasonable. 6 ' 300aa-15(e)(1); Perreia, 27 Fed. Cl. at 34. In the instant case it is not clear at
this stage of the proceeding whether or not Petitioners have a reasonable basis to proceed, or
whether the requested costs are reasonable.

B. Petitioners have not established a reasonable basis to proceed.

Since Petitioners’ claim is still pending, an award of interim costs is permissible only if
Petitioners can demonstrate that their claim possesses a reasonable basis. Perreia, 27 Fed. Cl. at
34. While a claim may possess a reasonable basis at the time of its filing, the reasonableness of
further pursuing the claim may come into question later in the proceeding through either the

6
Under the Vaccine Act, Petitioners are entitled to an award of reasonable fees and costs if they
prevail on their vaccine injury claim. ' 300aa-15(e)(1).
6
introduction of new evidence or an inability to demonstrate supporting evidence. Id. at 33.
Petitioners assert that a reasonable basis exists for the prosecution of this claim because they have
filed a complete set of medical records, and they have an “expert willing to testify.” (Pet. Reply at
4.) However, a reasonable basis to proceed in the prosecution of this claim requires more than the
filing of medical records and retaining an “expert willing to testify.”

As an initial matter, the medical records filed to date do not demonstrate or even suggest
vaccine causation. Accordingly, I cannot find a reasonable basis based on the medical records
alone.

Additionally, while Petitioners’ have filed a somewhat vague general affidavit of their
expert Dr. Deisher, concerning herself and her work, Dr. Deisher has yet to offer a case-specific
expert opinion in this case. Dr. Deisher has never, to my knowledge, testified in a claim before
the Office of Special Masters. Nor is she a medical doctor. Accordingly, I do not have sufficient
evidence to conclude that this claim possesses a reasonable basis to proceed, based merely upon
counsel’s assertion that Dr. Deisher might in the future offer a case-specific opinion favorable to
Petitioners in this case. While Dr. Deisher may eventually offer a reliable opinion regarding
causation in this matter, sufficient to establish a reasonable basis to proceed in the prosecution of
this claim, at this time she has yet to do so. Perreia, 33 F.3d at 1377 (“Congress must not have
intended that every claimant, whether being compensated or not under the Vaccine Act, collect
attorney fees and costs by merely having an expert state an unsupported opinion that the vaccine
was the cause in-fact of the injury”). Accordingly, at this time, Petitioners have not demonstrated
a reasonable basis to proceed with the prosecution of this claim, and therefore I may not award
interim costs.

C. Petitioners have not established that the interim costs sought are reasonable.

Petitioners seek $5000 to pay Dr. Deisher’s retainer, as well as $2,400 for medical testing
to be performed at the recommendation of Dr. Deisher. The Vaccine Act indicates that reasonable
costs may be awarded to Petitioners. ' 300aa-15(e)(1). However, at this stage of the
proceedings I cannot determine, for a number of reasons, whether or not the costs Petitioners seek
are reasonable.

As an initial matter, as discussed above, Dr. Deisher has yet to offer a medical expert
opinion in this case, she has not testified in previous vaccine cases, she has been subject to
criticism in the scientific community, 7 and she is not a medical doctor. Accordingly, I do not

7
As discussed by former Chief Special Master Campbell-Smith in reviewing a discovery request
in another case related to a proposed study by Dr. Deisher concerning vaccines and autism
spectrum disorders, a panel of Dr. Deisher’s peers -- i.e., National Institutes of Health reviewers
evaluating a study proposed by Dr. Deisher -- offered three independent critiques of her proposal,
opining that her proposal was “notably devoid of ‘strengths,’ but replete with ‘weaknesses,’”
indicating a “very poor view of her proposed study.” Mostovoy v. HHS, No. 02-10V, 2013 WL
3368236, at *23 (Fed. Cl. Spec. Mstr. June 12, 2013).

7
have the necessary information to determine that it is reasonable to award the prepayment of $5000
for Dr. Deisher’s expert services in this case, or to award Petitioners $2,400 for the prepayment of
costs for medical testing ordered at her request.

Additionally, Petitioners did not submit the retainer agreement that they allegedly signed
agreeing to pay Dr. Deisher $5000 for her expert services in this case. Nor did Petitioners submit
documentation regarding any of the following: the hourly rate that Dr. Deisher will charge for her
services in this case, the rate Dr. Deisher typically charges for her expert services, the customary
rate for an expert with Dr. Deisher’s qualifications, the number of hours Dr. Deisher anticipates
expending in this case, and the types of tasks she intends to undertake in proffering her medical
opinion on behalf of Petitioners.

Finally, Petitioners have submitted no invoice evidencing the costs for the medical tests
ordered by Dr. Deisher, 8 nor have Petitioners submitted any evidence demonstrating that their
medical insurance will not cover the costs of the testing. In sum, I have absolutely no basis upon
which to determine that the costs requested in this case are reasonable.

IV

CONCLUSION

Accordingly, for the reasons set forth above, I deny Petitioners’ Application for interim
costs.

/s/ George L. Hastings, Jr.
______________________________
George L. Hastings, Jr.
Special Master

8
Petitioners in the Fuesel case also initially sought prepaymnent of $2,400 to cover the costs of
apparently the same tests ordered by Dr. Deisher. However, in Fuesel I was later advised that the
Fuesel family elected to pay for the tests with their own funds at a cost of $1,900. (Fuesel v. HHS,
No. 02-95V, Decision Denying Petitioners’ Application for Interim Costs filed March 19, 2014,
slip. op. at fn. 3.) Accordingly, it is unclear in this case whether the costs sought by Petitioners for
prepayment of the medical testing requested by Dr. Deisher represents the actual cost of the
testing.
8