ORIGINAL REISSUED FOR PUBLICATION 25 APR 2017
OSM
U.S. COURT OF FEDERAL CLAIMS
]n tqr lnttrh §tatrn C!lourt of 1J1rhrral C!llatmn
OFFICE OF SPECIAL MASTERS F ILE D
********************* APR -4 2017
MICHELLE STOKES, * OSM
US.COURTOF
* N 0. 14- 433v FEDERAL CLAIMS
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: April 4, 2017
*
SECRETARY OF HEALTH * Attorneys' fees and costs;
AND HUMAN SERVICES, * reasonable basis; withdrawal
* of counsel.
Respondent. *
* * * * * * * *** ** * ** * * * * * *
Michelle Stokes, Antioch, TN, pro se;
William E. Cochran, Jr., Black McLaren Jones Ryland & Griffee, PC, Memphis,
TN, former counsel of record for petitioner;
Sarah C. Duncan, United States Dep't of Justice, Washington, DC, for respondent.
PUBLISHED DECISION DENYING ATTORNEYS' FEES AND COSTS 1
Represented by an attorney at the onset of this case, Michelle Stokes filed a
petition under the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-10
through 34 (2012), on May 21, 2014. Her petition alleged that she suffered from
lymphadenopathy and other injuries as a result of her receipt of a human
papillomavirus ("HPV") vaccine on June 17, 2011. After Ms. Stokes's attorney
withdrew his representation, Ms. Stokes did not prosecute her case and it was
dismissed.
1 TheE-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services), requires that the Court post this decision on its
website. Pursuant to Vaccine Rule l 8(b), the parties have 14 days to file a motion proposing
redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4).
Any redactions ordered by the special master will appear in the document posted on the website
Before Ms. Stokes's attorney withdrew, he filed a motion for an award of
attorneys' fees and costs on an interim basis. No action was taken on this motion
while the case remained pending. Now, because the merit of Ms. Stokes's case has
been adjudicated, the motion is ripe. The undersigned has reviewed the record and
determined that Ms. Stokes's case does not fulfill a statutory requirement to be
eligible for an award of attorneys' fees - reasonable basis. Therefore, the motion
for an award of attorneys' fees and costs is DENIED.
BACKGROUND
Ms. Stokes received the first dose of the HPV vaccine on April 15, 2011.
On June 17, 2011, she received a second dose. Exhibit 11 at 15-16. Ms. Stokes
returned to her primary care physician, Joy Brasfield, on August 4, 2011, with
complaints of"continued swelling" on the left side of her neck, which was
diagnosed as "swollen adenoid/ leukocytosis." Exhibit 11 at 14. Dr. Brasfield's
note does not state the duration of this swelling. Dr. Brasfield referred her to an
ear, nose, and throat physician for further evaluation. Id., exhibit 5 at 19.
Based on that referral, Ms. Stokes saw ENT doctor Glenn Williams for her
"swollen lymph node" on August 17, 2011. Dr. Williams's notes state that the
swelling had been present for six weeks. 2 His assessment was that she had a neck
mass, lymph node enlargement, and acute sialadenitis. 3 Exhibit 5 at 19. The
doctor ordered a CT scan and requested that she return when the results of the
testing were known.
The CT scan revealed additional masses, leading to a conclusion that Ms.
Stokes was suffering from "bilateral cervical lymphadenopathy." The interpreting
doctor stated that "bilateral cervical lymphadenopathy is a nonspecific finding, but
in a patient of this age, is most likely infectious in nature." Exhibit 17d at 223.
Over the next few years, Ms. Stokes was consistently diagnosed as suffering
from lymphadenopathy. Upon discharge from a hospital, Ms. Stokes was given a
2 The reference to "six weeks" suggests that the onset of the swollen lymph node was in
early July 2011. In the affidavit that Ms. Stokes produced for this litigation, she similarly
suggests that her symptoms began one month after her June 17, 2011 vaccination. Exhibit 1 if 4.
3 Sialadenitis is inflammation of a salivary gland. Dorland's Illustrated Medical
Dictionary 1705 (32d ed. 2012).
2
handout providing basic information about lymphadenopathy. This sheet
indicated:
Lymphadenopathy means "disease of the lymph glands."
But the term is usually used to describe swollen or
enlarged lymph glands, also called lymph nodes ....
Lymph glands are part of the immune system, which
fights infections in your body. Lymphadenopathy can
occur in just one area of the body, such as the neck, or
can be generalized, with lymph node enlargement in
several areas. The nodes found in the neck are the most
common sites of lymphadenopathy.
CAUSES
Enlarged lymph nodes can be caused by many diseases:
Bacterial disease, such as strep throat or a skin infection.
Viral disease, such as a common cold.
Other germs, such as Lyme disease, tuberculosis, or
sexually-transmitted diseases.
Cancers, such as lymphoma (cancer of the lymphatic
system) or leukemia (cancer of the white blood cells).
Inflammatory diseases such as lupus or rheumatoid
arthritis.
Reactions to medications.
Exhibit l 7d at 210.
After Dr. Williams reviewed the results from the CT scan, he aspirated a
lymph node during the next appointment with Ms. Stokes. Exhibit 5 at 21. The
result showed "several small lymphocytes with few macrophages and occasional
benign epithelial cells. Favor reactive process/lymph node." Id. at 49. Dr.
Williams next recommended a biopsy of a lymph node. Id. at 22.
A biopsy was conducted on October 13, 2011. The result showed "No
immunophenotypic evidence of involvement by a neoplastic lymphoid
3
proliferation." Exhibit 5 at 47. Dr. Williams planned to obtain another biopsy and
also ordered a series of laboratory tests. Id. at 13-14.
The laboratory tests showed that Ms. Stokes had a low hemoglobin and low
hematocrit. Exhibit 5 at 45. (Later, Ms. Stokes was treated for anemia. See
exhibit 5 at 53.) The biopsy of her left salivary gland "shows marked distorting
fibrosis and numerous suppurative granulomata. There is no morphologic
evidence of a malignant process." Id. at 36.
On January 4, 2012, Dr. Williams again saw Ms. Stokes. He referred her to
a specialist in infectious diseases. Exhibit 5 at 11.
It appears that the infectious disease specialist who saw Ms. Stokes was
William Mason. See exhibit 12 at 30. Dr. Mason saw Ms. Stokes frequently
between March 26, 2012 and March 18, 2013. See exhibit 13, passim.
At the first appointment with Ms. Stokes, Dr. Mason recorded that she "is a
very pleasant 18 year old lady with no real contributory [past medical history] who
presents to clinic for further evaluation and management of a 6 month history of
lymphadenopathy." Exhibit 13 at 13-14. According to the history Ms. Stokes
provided, "the onset was in August 2011 [when] she noticed left sided neck pain."
Dr. Mason also recorded that Ms. Stokes received an HPV "vaccination in
March/April 2011 with post vaccination abdominal pain 1-3 days post
vaccination." Id. at 14. 4
Dr. Mason obtained a comprehensive history from Ms. Stokes and examined
her. His assessment was that "Ms. Stokes appears to have a prolonged case of
cervical lymphadenitis/lymphadenopathy without a clear diagnosis and lack of
improvement despite several courses of various antibiotics. The biopsy specimens
thus far have not yielded a diagnosis." Exhibit 13 at 15-16. For purposes of this
case, it is important to note that Dr. Mason stated: "I am not suspicious that the
vaccination preceding this has caused this complication, but I will speak with the
company to see if any post marketing experience has been seen with regard to her
specific complaints." Id. at 16. He ordered an extensive series of laboratory
studies as well as more imaging.
4
While Ms. Stokes did receive an HPV vaccination on April 15, 2011, she also received
an HPV vaccination on June 17, 2011. Exhibit 11 at 15-16.
4
CT scans continued to show that Ms. Stokes had swollen lymph glands. See
exhibit 15 at 25 (April 11, 2012), exhibit l 7c at 136 (July 16, 2012). Despite
various treatments, Ms. Stokes did not significantly improve. Exhibit 13 at 8 (Dr.
Mason's report from June 11, 2012).
On August 24, 2012, a doctor affiliated with Dr. Williams's group removed
Ms. Stokes's tonsils and adenoids. Exhibit 5 at 25. The interpreting pathologist
indicated that the diagnosis was "extranodal Rosai-Dorfman disease." Id. at 31. 5
Throughout the fall 2012, Ms. Stokes continued to see various doctors for
her swollen lymph nodes. See exhibit 11 at 4-8 (Dr. Brasfield's note from Sep. 27,
2012); exhibit 15 at 46 (abdominal ultrasound); exhibit 17b at 126 (abdominal CT,
dated October 8, 2012).
On December 10, 2012, Dr. Mason saw her again. He reported that "Ms.
Stokes continues to have ongoing LAD with no specific cause other than possible
histoplasmosis. She has been on treatment for this and she is not
immunosuppressed in any way as far as we can tell." Exhibit 13 at 7. In addition
to ordering more tests, Dr. Mason concluded: "we may need to consider referral to
another specialized facility for a second opinion. This is a very complicated case
with complicated medical decision-making to say the very least." Id.
Dr. Mason referred Ms. Stokes to Charles Arkin, a rheumatologist. The
history that Dr. Arkin obtained states that "a year ago," Ms. Stokes "received her
second HPV vaccination and soon after that she began to notice feeling sick. She
subsequently developed swollen and enlarged lymph nodes in the neck area."
Exhibit 12 at 37 (Jan. 24, 2013). Dr. Arkin's history is more or less consistent with
the previous recitation of events. Dr. Arkin assessed her as having
lymphadenopathy, arthralgia, and pericardia! effusion. He commented that he
wanted to evaluate her for the "possibility of IgG [4] syndrome." Id. at 41.
On February 8, 2013, Dr. Arkin saw Ms. Stokes in follow up. He ordered a
series of labs, including an ANA panel. Exhibit 12 at 32-36. His note also states:
5 Rosai-Dorfman disease is "a rare syndrome, seen usually in children or adolescents, in
which cervical lymph nodes (and sometimes other lymph nodes) are massively swollen and
contain large numbers ofhistiocytes." Dorland's at 542.
5
I did talk to Dr. McCollum allergist and with Dr.
Lieberman's group and she said that [it] has been
reported after HPV vaccinations lymphadenopathy a low
[sic] [S]he doesn't have any idea how long it last in his
[sic] not an IgE mediated reaction. I also called to check
to see if any of the tissue remaining from her biopsies
was available and that [has] all been destroyed after 6
months .... Laboratory studies today are normal
including IgG 4 level. [N]eed to reconsider re biopsying
the lymph node with staining for IgG 4.
Exhibit 12 at 36.
When Dr. Arkin received the results of laboratory studies is not entirely
clear, but his records include a note dated February 19, 2013 saying Ms. Stokes's
IgG 4 "level is 282 with normal being up to 86. This would be compatible with the
IgG [4] related syndrome diagnosis. I called and talked with Dr. William Mason ...
And he has no objection for her start[ing] ... prednisone." Exhibit 12 at 30. 6
In this same February 19, 2013 note, Dr. Arkin states that Ms. Stokes
indicated that "she has become aware of an article in the New England Journal of
Medicine suggesting that Gardasil has been associated with an abnormal IgG[4]
and aluminum toxicity causing disease. Her initial effort to find the article was
unsuccessful but she is going to send us a copy of the article." Id.
Dr. Mason corroborates what Dr. Arkin reported. In a note from an
appointment on February 18, 2013, Dr. Mason wrote: "I spoke with Dr. Arkin
today who has supportive testing indicating that she has an IgG4 related
disease/syndrome and is planning a course of steroids for this." Exhibit 13 at 3.
Records from both Dr. Mason and Dr. Arkin showed that Ms. Stokes began
taking prednisone. However, Dr. Mason and Dr. Arkin differed about any
consequence of taking the steroid. Dr. Mason reported "her lymphadenopathy has
improved significantly." Exhibit 13 at 1. Dr. Arkin stated "Enlarged lymph nodes
no [sic] have cleared." Exhibit 12 at 25.
6 Although Dr. Arkin reported the results of the tests, the test results could not be readily
located among the materials filed in this case.
6
On May 13, 2013, Ms. Stokes saw Dr. Arkin, stating that she has swelling in
her right mandible and a nodule in her left forearm. Exhibit 12 at 19. Dr. Arkin
stated that he "read the report that the patient brought." Id. at 22. 7 Dr. Arkin
added that he spoke with Dr. Mark Lyda, a pathologist, who looked to see "if
there's any other tissue that might be used to stain for IgG 4 an estimated number
of plasma cells." Finally, Dr. Arkin recommended that Ms. Stokes reduce her use
of prednisone. Id.
The next visit between Dr. Arkin and Ms. Stokes occurred on May 28, 2013.
Ms. Stokes stated that "she is just not feeling well." Exhibit 12 at 15. Dr. Arkin's
plan was: "Talk to Dr. R. [sic]. He'll obtain a biopsy of the nodule on the forearm
for a superior and [I] also talked with Dr. Lieberman about elevation of IgG for
[sic, should be 4?] an immunization [Dr. Lieberman] is going to get back with me
on that." Id. at 17-18.
A July 3, 2013 report by Dr. Arkin indicates that Dr. Andrews performed a
biopsy of a subcutaneous nodule in Ms. Stokes's left forearm. Dr. Arkin's note
states that "The path report came back compatible with xanthogranulomatous
infiltrate. There was gram-positive plasma cells for both IgG for [sic, should be
4?] an IgG of less than I 0 percent of IgG 4 positive cells which are usually
necessary to make the diagnosis ofigG4 related to his syndrome." Exhibit 12 at
11.
The final visit between Dr. Arkin and Ms. Stokes was on August 13, 2013.
Ms. Stokes indicated that she was likely to obtain a new primary care physician
because she was "now on Tenncare." Id. at 10.
A record from September 3, 2013, indicates that Ms. Stokes recently moved
from Memphis to Nashville and was seeking a new primary care physician.
Exhibit 14 at 13. Ms. Stokes was requesting a referral for a new rheumatologist.
The person who evaluated Ms. Stokes, apparently nurse practitioner Patricia M.
Michael, sent a request for a referral to a rheumatologist "for evaluation/treatment
ofigG4 deficiency." Id. at 14.
7
It appears that this article is Wanda Ruiz et al., Kinetics and isotype profile of antibody
responses in rhesus macaques induced following vaccination with HPV 6, 11, 16 and 18 L !-
virus-like particles formulated with or without Merck aluminum adjuvant, 3(1) J oflmmune
Based Ther. Vaccines 3 (2005).
7
The ensuing appointment at Comprehensive Rheumatology Care occurred
on September 25, 2013 with Marla Anderson, also a nurse practitioner. Ms. Stokes
complained about "polyarthralgias and other complaints. These symptoms started
3 days after HPV vaccination." Exhibit 4 at 1. Ms. Anderson's examination
revealed two enlarged lymph nodes. Ms. Anderson ordered a series of lab studies.
Id. at 2.
About two months later, Ms. Stokes returned to the rheumatology clinic and
was seen by a physician assistant, Jennifer Saale. Ms. Saale's history mentions
that Dr. Arkin had previously diagnosed Ms. Stokes "with IgG 4 related disease."
Ms. Stokes told Ms. Saale that her lymphadenopathy had returned. Exhibit 4 at 7.
Ms. Saale recommended decreasing prednisone and starting Plaquenil. Ms. Saale
added a test for IgG4 to the labs. She wrote: "IfigG 4 is positive, will consider
repeat lymph node biopsy and will be sure pathology uses the correct stain this
time." Id. at 9.
However, on February 3, 2014, Ms. Saale stated: "ordered IgG 4 with last
labs, but it was not done. We will test for IgG 4 level again at a later time."
Exhibit 4 at 13.
On February 17, 2014, Ms. Stokes went to Ear, Nose & Throat Specialists of
Nashville, where a certified physician's assistant Wendy Beth Sumner Alexander
saw her. Ms. Sumner Alexander's history is comprehensive and mentions that Ms.
Stokes's "symptoms began after she received her second Gardasil injection and
[Ms. Stokes] attributes the problems to this immunization." Exhibit 16 at 1. Ms.
Sumner Alexander recommended that Ms. Stokes return in six weeks to see Dr.
Williams.
By self-referral, Ms. Stokes saw Bruce Wolf, a doctor at Allergy & Asthma
Specialists, P.L.L.C. Ms. Stokes was requesting an "evaluation of possible
immune deficiency to account for [a] mysterious illness that has been plaguing her
over the last few years." Exhibit 2 at 3. After a history and physical, Dr. Wolf's
plan was "to read about IgG4 syndrome and make inquiries to Merck regarding
possible reports of adverse reaction to Gardasil as seen in this woman." Id. at 2.
In the bottom margin of this typed report, there is a hand written entry saying:
"NEJM article says [biopsy] ([unknown symbol] in lgG4) needs to be supportive
8
for IgG4 syndrome [diagnosis]. Her [biopsy] was stained accordingly and found
not to be supportive." Id. (emphasis in original). 8
On March 25, 2014, Ms. Stokes returned to Dr. Wolf because she was "not
feeling any better.... The third rheumatologist that she has seen has no ready
explanation for her problems or treatment besides nonsteroidals." Dr. Wolf
recorded that he had a "long conversation" "discussing her lab results and that her
antibody status looks normal." Dr. Wolf also "told her that I do not know anything
else that I can offer to help her situation." Exhibit 2 at 1.
Shortly after this appointment with Dr. Wolf, Ms. Stokes contacted her
former attorney, Mr. Cochran. By April 28, 2014, Mr. Cochran was reviewing
"medical records provided by client, develop[ing] brief chronology, identify[ing]
additional information needed and conduct[ing] search for literature linking her
injuries to HPV vaccine." Timesheets. 9 A few days later, Mr. Cochran was
drafting a petition.
Once Mr. Cochran started drafting the petition, a paralegal at the law firm
began requesting medical records. On May 7, 2014, the paralegal prepared 15
letters to various health care providers. Within a week, the law firm received some
medical records, including records from Dr. Williams and Dr. Arkin. Other
records, including records from Dr. Wolf, followed in the next few days.
Timesheets.
Mr. Cochran submitted the petition on May 21, 2014. The timesheets,
however, do not indicate that Mr. Cochran had reviewed any of the medical
records his paralegal had obtained before Mr. Cochran submitted the petition.
The paralegal continued to obtain additional medical records. Eventually,
the law firm planned to file those records and, in this context, Mr. Cochran
reviewed all the records received to date on July 30, 2014. On Ms. Stokes's
8
The underlying report does not appear in Dr. Wolfs records.
9
The timesheets are found as exhibit A to the motion for attorneys' fees and costs.
9
behalf, Mr. Cochran filed her affidavit and medical records on August 1, 2014.
Exhibits 1-7, 9-16. 10
The Secretary filed her report pursuant to Vaccine Rule 4 on October 28,
2014. In his report, the Secretary argued that Ms. Stokes did not establish that she
was entitled to compensation as neither a treating doctor nor a retained expert
presented this opinion.
On the day that the Secretary filed his report, Mr. Cochran "communicate[d]
with [a] potential expert, and forward[ed] case materials to expert for review."
Timesheets. Although Mr. Cochran did not identify this expert, it is likely that Mr.
Cochran spoke with Dr. Eric Gershwin because Dr. Gershwin has submitted an
invoice for his work in this case.
During the status conference to discuss the Rule 4(c) report, the Secretary's
concerns regarding onset were discussed. At this time, Mr. Cochran stated that an
expert would be retained to opine on the case. Following the status conference,
Mr. Cochran and other attorneys worked with an expert to obtain a favorable
opinion. See timesheet entries for November 19, 2014; November 20, 2014;
December 4, 2014; and December 5, 2014.
Meanwhile, on November 17, 2014, Ms. Stokes underwent another biopsy
of a cervical lymph node. The interpreting pathologist stated that the "Histologic
features are classic for Rosai-Dorfman disease." Exhibit 19 at I. Mr. Cochran
filed this biopsy report on December 5, 2014.
Mr. Cochran consulted Dr. Gershwin to provide an opinion on vaccine
causation on December 5, 2014. Dr. Gershwin's invoice states that he "[reviewed]
literature on IgG4 diseases/lymphadenopathy and also on Rosai-Dorfman" disease.
Pet'r's Mot., exhibit A at 33. However, Dr. Gershwin did not produce a report.
Without a positive response from Dr. Gershwin, Mr. Cochran filed a motion
to extend the deadline for Ms. Stokes to file an expert report. This motion stated
10
Although Mr. Cochran appears to have intended to file exhibits 1-16, inclusive, exhibit
8 was overlooked. Years later, after Mr. Cochran was no longer counsel of record, efforts to
obtain exhibit 8 from either Ms. Stokes or the Secretary were unsuccessful.
10
that Ms. Stokes was seeking alternate counsel to proceed with her claim. Pet'r's
Mot., filed Jan. 7, 2015.
During the status conference held to discuss the motion for an extension of
time, Mr. Cochran expressed his intent to withdraw from representing Ms. Stokes
and stated that he would not be filing an expert report. The undersigned explained
that an expert report would be required if Ms. Stokes continued her case. The
undersigned ordered Ms. Stokes's attorney to file his motion to withdraw. Order,
filed Jan. 22, 2015.
On April 6, 2015, while still representing Ms. Stokes, Mr. Cochran filed the
pending motion for attorneys' fees and costs. The motion for attorneys' fees
includes five medical articles. A few days later, Mr. Cochran filed his motion to
withdraw, which was granted. Order, filed May 15, 2015.
Over the next several months, Ms. Stokes, on a pro se basis, filed status
reports stating that she was seeking alternate counsel and an expert to opine on her
case. Ms. Stokes did not obtain alternate counsel or retain an expert, and
ultimately stopped responding to orders. This failure to prosecute eventually led to
the issuance of two orders to show cause as to why her case should not be
dismissed. When Ms. Stokes did not respond to these orders, her case was
dismissed. Decision, filed Jan. 12, 201 7.
With respect to the motion for attorneys' fees, the Secretary filed an
opposition. The Secretary presented two arguments. Preliminarily, the Secretary
argued that an award of attorneys' fees on an interim basis was not appropriate.
Resp't's Opp'n, filed April 23, 2015, at 22-25. This objection has now been
rendered moot, as the motion is being adjudicated after the merit of Ms. Stokes's
case has been resolved.
The Secretary's main argument was that Ms. Stokes's case lacked a
reasonable basis, offering four points. Id. at 10-22. First, the Secretary argued that
the submission of an expert report would not automatically confer reasonable
basis. Resp't's Opp'n at 11. Second, the Secretary argued that cases lacking
medical or factual supports lack a reasonable basis. Id. Third, the Secretary
asserted that the petition cannot stand on timing alone. The Secretary argued that
Mr. Cochran has asserted an onset that is inconsistent with Ms. Stokes's affidavit
and the medical records. Id. at 19-20. Lastly, the Secretary argues that the
literature Mr. Cochran cited in the fee motion is insufficient to confer reasonable
basis as well as inapposite to the case at hand. Id. at 21.
11
When the Secretary filed this opposition, Mr. Cochran was still counsel of
record. He confirmed during a May 14, 2015 status conference that he was not
filing a reply to the Secretary's opposition. Order on Mot. to Withdraw, filed May
15, 2015, n.1.
Because the Secretary questioned the reasonable basis for Ms. Stokes's
claim that the HPV vaccine caused her lymphadenopathy, the record was left open.
With the dismissal of Ms. Stokes's case and Mr. Cochran's representation that he
did not intend to file a reply brief, the record has closed. Thus, the motion for
attorneys' fees and costs is ready for adjudication.
STANDARDS FOR ADJUDICATION
Under the "American rule," each litigant pays for its participation in
litigation. Baker Botts, L.L.P. v. ASARCO, L.L.C., 135 S.Ct. 2158, 2160 (2015).
However, the Vaccine Act (like many other statutes) shifts the responsibility for
fees under certain circumstances. First, when a petitioner in the Vaccine Program
receives compensation, the special master "shall" award reasonable attorneys' fees
and costs. 42 U.S.C. § 300aa-15(e)(l). Because Ms. Stokes did not receive
compensation, an award of attorneys' fees is not mandatory in this case. Instead,
her attorney relies upon a second provision in the Vaccine Act. When the
petitioner does not receive compensation, "the special master or court may award
an amount of compensation to cover petitioner's reasonable attorneys' fees and
other costs incurred in any proceeding on such petition ifthe special master or
court determines that the petition was brought in good faith and there was a
reasonable basis for the claim for which the petition was brought." Id. Thus, non-
prevailing petitioners must establish two conditions precedent for being eligible for
an award of attorneys' fees: "good faith" and "reasonable basis." Here, resolution
of Ms. Stokes's good faith is not required because the remaining element (whether
"there was a reasonable basis for the claim for which the petition was brought") is
dispositive.
The Federal Circuit has not interpreted this phrase or provided any guidance
as to how petitioners satisfy the reasonable basis standard. Chuisano v. Sec'y of
Health & Human Servs., 116 Fed. Cl. 276, 285 (2014) (citing Woods v. Sec'y of
Health & Human Servs., 105 Fed. Cl. 148 (2012)). In the absence of guidance,
special masters have taken different approaches. Silva v. Sec'y of Health &
Human Servs., No. 10-lOlV, 2012 WL 2890452, at *8-9 (Fed. Cl. Spec. Mstr.
June 22, 2012), mot. for rev. denied, 108 Fed. Cl. 401 (2012).
12
Recent decisions have examined whether any evidence supports "the claim
for which the petition was brought." The statute's use of the phrase "reasonable
basis for the claim for which the petition was brought" is consistent with other
portions of the statute that require the petition to be filed with evidence. See
Chuisano v. Sec'y of Health & Human Servs., No. 07-452V, 2013 WL 6234660, at
*8-10 (Fed. Cl. Spec. Mstr. Oct. 25, 2013), mot. for rev. denied, 116 Fed. Cl. 276
(2014 ). 11 Evidence that is relevant to determining whether there is reasonable
basis for a claim may include medical records, affidavits from percipient witnesses,
and opinions from retained experts. See 42 U.S.C. § 300aa-l l(c).
When some (as yet undefined) quantity and quality of evidence supports the
claim for which the petition was brought, then the petitioner satisfies the
reasonable basis standard. However, when the only evidence supporting the claim
that the vaccine caused an injury is a sequence of events in which the vaccination
preceded the injury, then the petitioner does not satisfy the reasonable basis
standard. Chuisano, 116 Fed. Cl. at 287 ("Temporal proximity is necessary, but
not sufficient.").
"The burden is on the petitioner to affirmatively demonstrate a reasonable
basis." McKellar v. Sec'y of Health & Human Servs., 101 Fed. Cl. 297, 305
(2011), decision on remand vacated, 2012 WL 1884703 (May 3, 2012).
ANALYSIS
In determining whether there was a reasonable basis for Ms. Stokes's claim
that the HPV vaccine caused her to suffer lymphadenopathy, the preliminary
question is the standard by which to evaluate "reasonable basis." The motion for
11
Although the undersigned's decision in Chuisano indicated that petitioners may satisfy
the reasonable basis standard by submitting "evidence," the former Chief Judge in some respects
agreed and in some respects disagreed. The former Chief Judge agreed with the emphasis on
"evidence." But, the former Chief Judge also stated that a more amorphous standard would be
appropriate, one that took into account the "totality of the circumstances." Chuisano, 116 Fed.
Cl. at 286.
At first blush, the "totality of the circumstances" may seem different from the
undersigned special master's approach to look at the evidence. However, the issues the former
Chief Judge identified as part of the totality of the circumstances are, generally speaking, issues
resolved by analyzing evidence. The primary point of departure between the two opinions in
Chuisano is whether the actions of the petitioner's attorney are relevant to the reasonable basis
mqmry.
13
attorneys' fees and costs advances a "totality of the circumstances" test. Pet'r's
Mot., filed April 6, 2015, at 8. In contrast, the Secretary maintains that the
"statutory language of the Vaccine Act supports [an] evidentiary-based reasonable
basis analysis." Resp't's Resp. at 13. Both are considered below.
Evidence
At the most basic level, the evidence shows that Ms. Stokes received two
doses of the HPV vaccine (one on April 15, 2011, and the other on June 17, 2011 ),
and, then, developed swollen lymph nodes. The date of onset for Ms. Stokes's
swollen lymph nodes is somewhat vague. In the briefs regarding reasonable basis,
the parties assert different dates. Mr. Cochran argues that onset was approximately
July 6, 2011. Pet'r's Mot. at 6 (citing exhibit 5 at 17, which is Dr. Williams's note
from November 16, 2011 ). The July 6, 2011 date is 19 days after vaccination.
In contrast, the Secretary argues that the more likely onset was between one
and three days after vaccination. Resp't's Resp. at 20. For this proposition, the
Secretary cites three medical records (exhibit 2 at 3, exhibit 13 at 14, exhibit 4 at 1)
plus Ms. Stokes's own affidavit, which discusses the onset of abdominal pain
(exhibit 1 iJ 3 ).
Given the issue at hand- whether reasonable basis supports Ms. Stokes's
claim that the HPV vaccination caused her lymphadenopathy - delving deeply
into this particular onset dispute is not necessary. Although the Secretary has a fair
degree of support for arguing that the onset of the swollen lymph nodes occurred
within three days of the second dose of the HPV vaccine, the Secretary fails to
connect this potential finding of fact to the question of reasonable basis. The
relatively short interval could have made an award of compensation problematic.
However, the latency between vaccination and the Secretary's understanding of
onset is not so brief that the claim would be unreasonable. 12
12
In the context of addressing onset, the Secretary also suggested- without citing any
cases - that the statute of limitations could present a "legal impediment" to an award of fees.
Resp't's Resp. at 20. This argument seems based on an incorrect understanding of the
controlling case Jaw.
14
Finding the sequence of events in Ms. Stokes's case is just the first step in
evaluating whether reasonable basis supported her claim. "Temporal proximity is
necessary, but not sufficient." Chuisano, 116 Fed. Cl. at 287.
At the next level of analysis, Ms. Stokes's argument that her claim was
supported by reasonable basis begins to falter. In determining whether to award
compensation, the Vaccine Act directs special masters to base decisions upon
"medical records or opinions." 42 U.S.C. § 300aa-13(a). Likewise, "medical
records or opinions" are a foundation for evaluating the reasonable basis for the
claim in the petition.
With respect to opinions of specially retained experts, Ms. Stokes did not
present any. Although Mr. Cochran consulted Dr. Gershwin, Dr. Gershwin did not
provide a report. Thus, Ms. Stokes cannot rely upon a medical opinion as evidence
to support a finding of reasonable basis.
With respect to medical records, the evidence weighs against finding
reasonable basis. Mr. Cochran has not cited and the undersigned has not
independently located a medical record from a treating doctor that indicates that a
doctor believed that the HPV vaccine caused Ms. Stokes's lymphadenopathy. It is
certainly true that some doctors and some affiliated health care providers, such as
nurse practitioners and certified physician's assistants, included the HPV
vaccinations in the history that they obtained. However, presenting a sequence of
events in which A preceded B is not the same as expressing an opinion that A
caused B. Caves v. Sec'y of Health & Human Servs., 100 Fed. Cl. 119, 139-40
(2010), aff'd without opinion, 463 Fed. App'x 932 (Fed. Cir. 2012). Moreover, a
doctor who directly opined on a possible causal relationship between the HPV
vaccination and Ms. Stokes's lymphadenopathy, Dr. Mason, stated "I am not
suspicious that the vaccination preceding this has caused this complication."
Exhibit 13 at 16.
The evidence shows that Ms. Stokes received two doses of the HPV vaccine.
The evidence shows that she subsequently developed lymphadenopathy. This
sequence of events is temporally consistent with an allegation that the vaccination
caused the lymphadenopathy in that the vaccination preceded the onset of the
lymphadenopathy. However, by itself, timing is not enough to satisfy the
reasonable basis standard. The evidence that is lacking is evidence that could be a
basis for finding a causal connection. Thus, the claim in Ms. Stokes's petition
lacks a reasonable basis.
15
Totality of the Circumstances
Although the Secretary advocated for an "evidentiary-based reasonable basis
analysis" (Resp't's Resp. at 13), Mr. Cochran advocates for the "totality of the
circumstances." Pet'r's Mot. at 9-10 (citing cases). However, the totality of the
circumstances does not change the outcome.
The totality of the circumstances includes an evaluation of the medical
records. See Pet'r's Mot. at 11. In the early days of Mr. Cochran's representation
of Ms. Stokes, Mr. Cochran received important medical records from multiple
doctors, including Dr. Arkin, Dr. Wolf, and Dr. Blake Williams. (Mr. Cochran
eventually filed these records as exhibits 12, 2, and 5, respectively). Mr. Cochran
also received some less vital records including those from Dr. Williams of
Nashville, Dr. Dungas, and Dr. Yu (exhibits 16, 3, and 10) as well as the
Comprehensive Rheumatology Clinic and the West Clinic (exhibits 4 and 15). The
records from Dr. Blake Williams set out Ms. Stokes's health, beginning in August
2011, two months after the allegedly causal HPV vaccination. Dr. Arkin's records
show the complexity of Ms. Stokes's case. Dr. Wolf explored the possibility of
IgG4 syndrome and determined that Ms. Stokes did not suffer from that condition.
Exhibit 2 at 2. As explained in the previous section, these medical records do not
support a finding of reasonable basis for the claim set out in Ms. Stokes's petition.
Other petitioners and their attorneys have invoked the "totality of the
circumstances" when the petitioner consulted an attorney shortly before the
expiration of the time set in the statute of limitations. However, as the Secretary
pointed out (see Resp't's Resp. at 16 n. l 0), Mr. Cochran did not assert that the
statute of limitations affected his conduct. See Pet'r's Mot., passim. This
argument would be particularly difficult to sustain here because the law firm's
timesheets do not suggest that Mr. Cochran reviewed the medical records before he
filed the petition on May 21, 2014. 13
A more thorough review of the medical records available to Mr. Cochran
before he filed the petition could have led Mr. Cochran to consult an expert much
13
The allegedly causal HPV vaccination was administered on June 12, 2011. Thus, even
if the cause of action accrued on the date of vaccination, Mr. Cochran had approximately three
more weeks to continue to gather and to assess medical records before filing the petition.
16
earlier. As it turns out, Mr. Cochran appears to have first contacted an expert on
October 28, 2014. In the briefregarding attorneys' fees, Mr. Cochran did not
justify this delay in consulting an expert. An expert's review may have been
helpful because after Mr. Cochran did consult Dr. Gershwin, Mr. Cochran declined
to pursue the case. See Pet'r's Mot., filed Jan. 7, 2015. The absence ofa report
from Dr. Gershwin does not assist Ms. Stokes in carrying her burden to establish
the reasonable basis for the claim in her petition for the reasons already discussed.
Arguably, the totality of circumstances could also include an assessment of
the medical articles that Mr. Cochran filed in support of the motion for attorneys'
fees. But, without the assistance of an expert or at least an attorney's explicit and
specific assertion about the import of an article, comprehending the relevance of
any article is difficult. See Cedillo v. Sec'y of Health & Human Servs., 617 F.3d
1328, 1347 (Fed. Cir. 2010) ("Given that there was no testimony offered by any
expert as to the validity or import of such an article for this case, the Special
Master did not err in disregarding such evidence, which at best addressed a
peripheral issue."). For example, while some of Ms. Stokes's treating doctors
explored the possibility that she suffered from lgG4 related syndrome, none of Mr.
Cochran's articles address that condition. Whether Ms. Stokes truly suffered from
IgG4 related syndrome itself is not clear as different doctors reached different
conclusions about this possible diagnosis, depending upon the information
available to them. Compare exhibit 12 at 30 (Dr. Arkin, on February 19, 2013,
stating that Ms. Stokes's IgG level was "compatible with the IgG [4] related
syndrome diagnosis") with exhibit 2 at 2 (Dr. Wolf, on March 3, 2014, stating that
Ms. Stokes's biopsy did not fit the diagnostic criteria for lgG4 syndrome). At best,
Mr. Cochran's collection of articles appears to demonstrate the unremarkable
proposition that lymphadenopathy has been reported to occur after an HPV
vaccination. This temporal sequence is not the same as a report presenting the
opinion that HPV vaccination caused the lymphadenopathy. Moreover, the
Vaccine Act requires "a reasonable basis for the claim for which the petition was
brought" and, in this case, the petition was brought for Ms. Stokes's
lymphadenopathy.
From the information available to Mr. Cochran before he filed the petition,
including medical records from Dr. Arkin and Dr. Wolf, Mr. Cochran knew or
should have known, in the words of Dr. Mason, that Ms. Stokes presents "a very
complicated case with complicated medical decision-making to say the very least."
Exhibit 13 at 7. This apparent complication should have led Mr. Cochran to
conduct additional diligence before filing the petition. This diligence could have
17
(and probably would have) revealed that there was not a reasonable basis for the
claim that the HPV vaccination caused Ms. Stokes's lymphadenopathy.
CONCLUSION
Ms. Stokes's claim was not supported by a reasonable basis. The April 6,
2015 motion for attorneys' fees and costs is DENIED.
The Clerk's Office is instructed to send this decision to the last known
address for Ms. Stokes. In addition, when this decision becomes available on the
court's website (see footnote 1, above), the Clerk's Office shall transmit a courtesy
copy of this decision to Ms. Stokes's former counsel by facsimile or email.
IT IS SO ORDERED.
C/k,(,