In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-1503V
Filed: August 30, 2017
Not for Publication
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GINGER SMITH, *
*
Petitioner, *
* Attorneys’ fees and costs decision;
v. * lack of reasonable basis
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SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
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Wade H. Abed, II, Mankato, MN, for petitioner.
Robert P. Coleman, III, Washington, DC, for respondent.
MILLMAN, Special Master
DECISION DENYING AN AWARD OF ATTORNEYS’ FEES AND COSTS 1
On November 14, 2016, petitioner filed a petition under the National Childhood Vaccine
Injury Act, 42 U.S.C. §§ 300aa-10–34 (2012) alleging that her receipt of influenza (“flu”)
vaccine caused her to develop arthritis. On January 23, 2017, the undersigned issued a decision
dismissing the case. On May 15, 2017, petitioner filed a motion for attorneys’ fees and costs.
For the reasons set forth below, the undersigned DENIES petitioner’s motion for attorneys’ fees
and costs.
1
Because this unpublished decision contains a reasoned explanation for the special master’s action in this
case, the special master intends to post this unpublished decision on the United States Court of Federal
Claims’s 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). Vaccine Rule 18(b) states that
all decisions of the special masters will be made available to the public unless they contain trade secrets
or commercial or financial information that is privileged and confidential, or medical or similar
information whose disclosure would constitute a clearly unwarranted invasion of privacy. When such a
decision is filed, petitioner has 14 days to identify and move to redact such information prior to the
document=s disclosure. If the special master, upon review, agrees that the identified material fits within
the banned categories listed above, the special master shall redact such material from public access.
PROCEDURAL HISTORY
Petitioner filed her petition on November 14, 2016.
On January 4, 2017, the undersigned filed an Order to Show Cause. In her Order to
Show Cause, the undersigned explained that petitioner had osteoarthritis 2 both before and after
her receipt of flu vaccine. 3 The undersigned said petitioner could amend her petition to allege
the flu vaccine significantly aggravated her osteoarthritis, but that petitioner was unlikely to
succeed with that claim because her osteoarthritis appeared to be the same before and after her
receipt of flu vaccine. The undersigned noted petitioner did not complain of pain in her left arm
until three months after her receipt of flu vaccine. When she did finally complain of pain in her
left arm, she said her left bicep hurt, not her shoulder. She did not relate the pain in her arm to
her receipt of flu vaccine until one year after she received the vaccination.
On January 20, 2017, petitioner filed a Motion for a Decision Dismissing Petition. In
paragraph 5 of her motion, petitioner said she was moving under section 21(a)(2) and she
intended to elect to reject judgment and to file a civil action. Because she wanted to elect to
reject judgment, on January 23, 2017 the undersigned issued a decision dismissing petitioner’s
petition, which enabled petitioner to get a judgment and sue civilly.
On May 15, 2017, petitioner filed a motion for attorneys’ fees and costs, requesting
attorneys’ fees of $7,315.00 and attorneys’ costs of $1,397.82, for a total request of $8,712.82.
In accordance with General Order #9, petitioner submitted a signed statement saying she had
incurred no costs in pursuit of her claim.
On May 22, 2017, respondent filed a response to petitioner’s motion for attorneys’ fees
and costs, arguing that petitioner did not have a reasonable basis to bring her claim. Resp. at 1.
Respondent pointed out the same issues raised in the undersigned’s Order to Show Cause: that
petitioner was diagnosed with osteoarthritis before receiving flu vaccine, and that petitioner’s
medical records show petitioner did not experience significant aggravation of her preexisting
osteoarthritis. Id. at 2. Finally, respondent argues that petitioner’s counsel had ample time to
review the records before he filed the petition. Id. at 5.
On June 2, 2017, petitioner filed a reply to respondent’s response to her application for
attorneys’ fees and costs. In her reply, petitioner argues her case was supported by reasonable
2
Osteoarthritis is “a noninflammatory degenerative joint disease seen mainly in older persons,
characterized by degeneration of the articular cartilage, hypertrophy of bone at the margins, and changes
in the synovial membrane. It is accompanied by pain, usually after prolonged activity, and stiffness,
particularly in the morning or with inactivity.” Dorland’s Illustrated Medical Dictionary 1344 (32nd ed.
2012).
3
Petitioner did not clarify in her petition whether she was alleging that the flu vaccine caused
osteoarthritis or rheumatoid arthritis. However, petitioner was diagnosed with osteoarthritis prior to her
receipt of flu vaccine on November 19, 2013. She was never diagnosed with rheumatoid arthritis.
Therefore, the undersigned based her Order to Show Cause on petitioner having osteoarthritis.
2
basis. Petitioner filed a letter to her attorney dated January 16, 2017 in which she says the
injection of flu vaccine on November 19, 2013 was so painful she screamed and tears came out
of her eyes. Reply at 3. Petitioner argues she did not immediately report this pain to her
doctor because she was accustomed to dealing with pain in her day-to-day life and because
caring for her ill mother was her primary concern. Id. She said she treated the pain with
rubbing alcohol and Tylenol. Id. Petitioner’s counsel also argues that petitioner told him she
believed her doctors would be willing to relate her alleged injuries to the flu vaccine. Id. at 4.
Petitioner filed an affidavit from her attorney saying petitioner told him her treating doctors
would be willing to provide a medical opinion supporting her case. See Abed Aff. at ¶2.
This matter is now ripe for adjudication.
FACTUAL HISTORY
Pre-vaccination records
Petitioner has had primary osteoarthritis of the knee since March 12, 2008. Med. recs.
Ex. 4, at 140.
On March 7, 2013, RN Katie Lashway noted that petitioner needed transportation to get
to medical appointments and diabetes group visits because she was unable to ride the bus due to
her inability to walk the length of a city block without having to stop for rest due to pain in her
legs and joints. Med. recs. Ex. 3, at 26.
On May 5, 2013, petitioner saw NP Carol A. Thiel for right biceps tendinitis. Id. at 32.
Petitioner had had right shoulder pain for almost one month. The right anterior upper arm pain
radiated to the deltoid area and above. She had been washing clothes the day before the pain
started. Id.
On May 14, 2013, petitioner saw Dr. Michael Mendoza for left shoulder pain, which she
described as the “worst pain ever.” Id. at 35. Petitioner pointed to the deltoid region of her left
shoulder as being painful with radiation of pain down her left arm. Id. The pain was 10 out of
10. Id. On physical examination, petitioner had limited flexion of her left arm compared to her
right arm. Id. at 36. She could move up to 100 degrees on her left, but up to 160 degrees on
her right. She had pain with abduction against force when isolating the deltoid and
supraspinatus muscles. Her rotator cuff tendinitis was improving but persistent. Id.
On May 31, 2013, petitioner saw Dr. Thomas L. Campbell complaining of severe left arm
pain, which might have been tendinitis, which resolved on ibuprofen. Id. at 42.
However, on June 24, 2013, petitioner started physical therapy for left shoulder pain,
with an onset three months earlier. Med. recs. Ex. 4, at 143. She said she started a new
exercise program three months previously plus she also did a lot of housework. Id. She had
been disabled since 2005 and was previously a hairdresser. Id. at 144. The pain in her left
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shoulder was lateral and anterior, sometimes extending to her wrist. It was aching and painful.
On a scale of 10, she rated her pain at 8. The symptoms worsened with reaching, lifting,
carrying, and overhead activity. Her left shoulder had forward flexion of 100 degrees and
abduction of 100 degrees. Id. P-T Mary Jane Bouley wrote petitioner’s findings were
consistent with a 56- year-old woman with adhesive capsulitis with pain, range of motion
limitations, strength limitations, and functional limitations. Id. at 145.
On June 5, 2013, petitioner saw Dr. Campbell, complaining of a recurrence of left arm
pain when she moved that arm or lifted things. Med. recs. Ex. 3, at 55. He diagnosed her with
rotator cuff tendinitis. Id. at 56.
Post-vaccination records
On November 19, 2013, petitioner received flu vaccine. Id. at 66.
On December 17, 2013, petitioner saw Dr. Campbell for allergic rhinitis, diabetes type II,
and benign essential hypertension. Id. at 69. She did not complain about her left arm.
On January 9, 2014, petitioner saw Dr. Elizabeth Loomis for sinusitis and benign
essential hypertension. Id. at 73. She did not complain about her left arm. On
musculoskeletal physical examination, petitioner had normal range of motion, without swelling
or tenderness. Id. at 74.
On January 28, 2014, petitioner saw Dr. Campbell for a sinus infection. Id. at 77. She
did not complain about her left arm.
On January 29, 2014, petitioner saw Dr. Stephen Lurie, complaining of nasal congestion
occasional bilateral epistaxis (nosebleed), and abdominal pain. Id. at 91. She did not complain
about her left arm.
On February 14, 2014, petitioner saw Dr. Thomas Gregg, complaining about left arm
pain that had lasted three months. Id. at 95. The pain was dull and in the biceps region. Id.
On physical examination, petitioner had pain on resisted external rotation of her left shoulder and
mild biceps tendon tenderness, but all other physical examination maneuvers were normal
without pain or tenderness. Id. at 96. Dr. Gregg diagnosed petitioner with muscle strain of her
left biceps. Id.
On February 27, 2014, petitioner saw Dr. Campbell for various reasons, including
diabetes, gastroesophageal reflux, losing weight, left arm pain, and neck pain. Id. at 99-100.
She said her neck and shoulder pain were the “worst pain ever”. Id. at 100. Dr. Campbell
noted that petitioner’s left arm pain had been occurring the prior one to two weeks from the
triceps into the left biceps. Id. He reflected she had left arm pain in spring 2013 when she had
a shoulder injection in May 2013 that was helpful. She denied any injury in the area. Id. Dr.
Campbell’s assessment was her left arm pain was likely musculoskeletal. Id. at 106.
4
On April 23, 2014, petitioner went for a P-T evaluation with P-T Danielle Blankenship.
Med. recs. Ex. 4, at 161. Petitioner told P-T Blankenship that there was no specific cause for
her left upper arm pain. Its onset was over a year previously. The pain started in her shoulder
and then went down her wrist to her hand. It then went into her left axilla. She had been
exercising, but was afraid to keep exercising for fear it might cause further pain to her left arm.
The pain was aching, sharp, and constant. It was in all aspects of her left arm and shoulder,
including the left scapular muscles. She had decreased range of motion. It hurt at night, when
she reached overhead to the side or behind her back, or when she lifted. Id.
On April 30, 2014, petitioner returned to P-T and felt her pain improved. Id. at 192.
She had received a cortisone injection to her left shoulder since her last P-T. Id. at 205.
On May 29, 2014, petitioner saw Dr. Campbell for a variety of reasons including pain in
her left shoulder. Med. recs. Ex. 3, at 115. She went to an orthopedist in Brockport who
diagnosed her with arthritis of her shoulder and gave her a steroid injection which helped
somewhat. Id. at 116. She was undergoing physical therapy, which helped. Id.
On August 1, 2014, petitioner saw PA Colleen McTammany for a follow up to her left
elbow and shoulder pain. Med. recs. Ex. 4, at 232. An earlier cortisone injection in the lateral
epicondylitis had helped her pain significantly. Now she complained of an occasional ache in
her forearm. She had 5 out of 5 strength in her shoulder, elbow, and wrist. The assessment
was lateral epicondylitis. Id.
On November 14, 2014, petitioner returned to PA McTammany for follow up. Id. at
258. She had forearm pain that day and felt a popping and pain in her neck. There was no
known injury. PA McTammany reviewed petitioner’s MRI of her shoulder in 2010. X-ray
revealed petitioner had glenohumeral joint arthritis with a spur. Id.
On December 1, 2014, petitioner saw Dr. Donna G. Ferrero, complaining of chronic, left-
sided shoulder pain following a flu shot in 2013. Id. at 272-73. This was over one year since
she had the flu vaccination and it was the first time petitioner told a doctor that her shoulder pain
followed a flu vaccination. Petitioner told Dr. Ferrero that her symptoms had progressed so that
she now had left-sided neck pain and wrist pain. Id. at 273. Doctors had diagnosed her with
rotator cuff tendinitis, lateral epicondylitis, and wrist sprain. Physical therapy did not help. Id.
On December 11, 2014, petitioner underwent a physical assessment with OTD Dana
Emery during which petitioner made less than optimal effort with grip and pinch testing. Id. at
326. If petitioner had given full effort, a bell curve would have resulted from grip testing in all
five positions. However, petitioner’s readings were nearly identical across all positions,
indicating poor effort. Petitioner reported inability to use her left arm due to pain, although she
was able to get in and out of a bathtub without assistance. Petitioner also reported independence
in feeding, including cutting meat, and independence in grooming, including opening containers.
OTD Emery noted that these findings were not consistent with grip and pinch strength testing.
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Id.
On January 9, 2015, petitioner saw NP Lori Conway with numerous complaints,
including left arm pain, which she related to her flu vaccination on November 19, 2013. Med.
recs. Ex. 3, at 121-22. Petitioner said she remembered the vaccination was very painful. Id. at
122. However, NP Conway noted that petitioner’s MRI in 2010 showed problems with her
rotator cuff. Moreover, there were recent x-rays showing petitioner had arthritis and a bone
spur. On physical examination, petitioner had left arm pain and tenderness over the shoulder,
biceps, and triceps. Id. NP Conway commented that she “again reiterated that [she] did not
think this was related to her influenza vaccine.” Id. at 123.
On March 23, 2015, petitioner saw Dr. Campbell, complaining of ongoing pain in her left
shoulder. Id. at 130. A recent MRI showed significant arthritis of her left shoulder. Id.
On March 30, 2015, Dr. Jonathan C. Gabel wrote that imaging of petitioner’s left
shoulder showed: (1) mild left supraspinatus tendinopathy with superimposed partial-thickness
articular surface tear; (2) moderate infraspinatus tendinopathy, and moderate tendinopathy of the
intra-articular portion of the long head of the biceps tendon; and (3) severe glenohumeral joint
osteoarthritis, degeneration/tearing of the labrum, and small glenohumeral joint effusion with
debris vs. synovitis. Med. recs. Ex. 4, at 91. His assessment was degenerative joint disease of
the left shoulder. His suggestion was to another cortisone injection and undergo physical
therapy.
On November 9, 2015, Dr. Natercia Rodrigues wrote that petitioner injured herself
moving her mother. Med. recs. Ex. 3, at 188. Petitioner’s mother had been in and out of the
hospital for congestive heart failure. Petitioner took care of her while she was in the hospital,
helping her mother with washing herself and moving around. Petitioner reported she had back
pain generalized to her left side. Petitioner had to push manually the footrest of her mother’s
recliner down into her chair and, when she did this, petitioner felt pain on her left shoulder and
left side down into her back. She felt as if she pulled a muscle. Petitioner had known left
shoulder osteoarthritis and doctors instructed her not to do any lifting with her left shoulder.
She got a steroid shot every three to four months. Petitioner was getting an aide to help her
mother. Id.
On November 24, 2015, petitioner saw Dr. Assunta Ritieni for left shoulder pain of two
months, and left rib pain after trying to lift her mother. Id. at 192. She also complained of
aching and worsening with lifting her arm and coughing. Id.
On January 7, 2016, petitioner saw Dr. Campbell who noted that petitioner was recently
evaluated for her left shoulder pain and was found to have a rotator cuff tear with significant
tendinopathy. Id. at 198. On physical examination, she had a very tender left rotator cuff with
limited range of motion of her shoulder. Id. at 199.
On March 21, 2016, MRI evaluation of petitioner’s left shoulder concluded: (1) mild left
6
supraspinatus tendinopathy with superimposed partial-thickness articular surface tear; (2)
moderate infraspinatus tendinopathy and moderate tendinopathy of the intra-articular portion of
the long head of the biceps tendon; and (3) severe glenohumeral joint osteoarthritis,
degeneration/tearing of the labrum, and small glenohumeral joint effusion with debris vs.
synovitis. Med. recs. Ex. 4, at 125. The diagnosis was left glenohumeral arthritis, partial tear
of left rotator cuff, and left shoulder pain. This diagnosis was consistent with arthritis and
partial rotator cuff tear. Id.
DISCUSSION
I. Entitlement to Fees Under the Vaccine Act
a. Legal Standard
Under the Vaccine Act, a special master or the U.S. Court of Federal Claims may award
fees and costs for an unsuccessful petition if “the petition was brought in good faith and there
was a reasonable basis for the claim for which the petition was brought.” 42 U.S.C. § 300aa-
15(e)(1); Sebelius v. Cloer, 133 S. Ct. 1886, 1893 (2013).
“Good faith” is a subjective standard. Hamrick v. Sec’y of HHS, No. 99-683V, 2007
WL 4793152, at *3 (Fed. Cl. Spec. Mstr. Nov. 19, 2007). A petitioner acts in “good faith” if he
or she holds an honest belief that a vaccine injury occurred. Turner v. Sec’y of HHS, No. 99-
544V, 2007 WL 4410030, at *5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007). Petitioners are “entitled
to a presumption of good faith.” Grice v. Sec’y of HHS, 36 Fed. Cl. 114, 121 (Fed. Cl. 1996).
“Reasonable basis” is not defined in the Vaccine Act or Rules. It has been determined to
be an “objective consideration determined by the totality of the circumstances.” McKellar v.
Sec’y of HHS, 101 Fed. Cl. 297, 303 (Fed. Cl. 2011). In determining reasonable basis, the court
looks “not at the likelihood of success [of a claim] but more to the feasibility of the claim.”
Turner, 2007 WL 4410030, at *6 (citing Di Roma v. Sec’y of HHS, No. 90-3277V, 1993 WL
496981, at *1 (Fed. Cl. Spec. Mstr. Nov. 18, 1993)). Factors to be considered include factual
basis, medical support, jurisdictional issues, and the circumstances under which a petition is
filed. Turner, 2007 WL 4410030, at *6–*9.
Traditionally, special masters have been “quite generous” in finding reasonable basis.
Turpin v. Sec’y of HHS, No. 99-564V, 2005 WL 1026714, at *2 (Fed. Cl. Spec. Mstr. Feb. 10,
2005); see also Austin v. Sec’y of HHS, No. 10-362V, 2013 WL 659574, at *8 (Fed. Cl. Spec.
Mstr. Jan. 31, 2013) (“The policy behind the Vaccine Act’s extraordinarily generous provisions
authorizing attorney fees and costs in unsuccessful cases—ensuring that litigants have ready
access to competent representation—militates in favor of a lenient approach to reasonable
basis.”). However, as former-Chief Judge Campbell-Smith noted in her affirmance of Special
Master Moran’s decision not to award attorneys’ fees in Chuisano, “Fee denials are expected to
occur. A different construction of the statute would swallow the special master’s discretion.”
Chuisano v. United States, 116 Fed. Cl. 276, 286 (Fed. Cl. 2014). See also Dews v. Sec'y of
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HHS, No. 13-569V, 2015 WL 1779148 (Fed. Cl. Spec. Mstr. Mar. 30, 2015) (in which the
undersigned found petitioner was not entitled to attorneys’ fees and costs because she did not
have a reasonable basis to bring the petition).
b. Good faith and reasonable basis
Petitioner is entitled to a presumption of good faith, and respondent does not contest that
the petition was filed in good faith. Grice, 36 Fed. Cl. at 121. There is no evidence that this
petition was brought in bad faith. Therefore, the undersigned finds that the good faith
requirement is satisfied. However, for the reasons outlined below, the undersigned agrees with
respondent that petitioner did not have a reasonable basis to bring her claim.
Petitioner’s medical records do not support her claim that her receipt of flu vaccine on
November 19, 2013 caused her to develop osteoarthritis because petitioner was diagnosed with
osteoarthritis before she received the vaccine. Med. recs. Ex. 4, at 140. Petitioner’s medical
records also do not support that her receipt of flu vaccine significantly aggravated her preexisting
osteoarthritis. After receiving the flu vaccine, petitioner visited various treaters on four different
occasions but did not mention pain in her left arm until she visited Dr. Thomas Gregg nearly
three months later. Id. at 96. Petitioner specifically complained to Dr. Gregg of pain in her left
bicep, not in her left shoulder where she received the vaccine. Id. at 95. Petitioner did not
originally link her left arm pain to her receipt of flu vaccine. She only connected the pain in her
left arm to her flu vaccination on December 1, 2014, more than a year after her receipt of flu
vaccine. Med. recs. Ex. 3, at 272-73. This lack of reporting is even more surprising in light of
petitioner’s statement in the letter to her attorney January 16, 2017 that she immediately cried out
in pain and started crying when she received the flu vaccine because it was so painful.
Moreover, none of her treaters attributed her arm pain to her receipt of flu vaccine. In fact, NP
Conway noted she did not think petitioner’s condition was related to her influenza vaccine. Id.
at 123.
Counsel has a duty to investigate a claim before filing it. In Rehn v. Secretary of Health
and Human Services, Judge Lettow explained “if an attorney does not actively investigate a case
before filing, the claim may not have a reasonable basis and so may not be worthy of attorneys'
fees and costs.” 126 Fed. Cl. 86, 93 (Fed. Cl. 2016). The fact that petitioner believed her
treating doctors would support her case did not give her reasonable basis to bring her claim.
Review of petitioner’s medical records would have shown petitioner’s attorney that her treaters
would be extremely unlikely to support petitioner’s claim.
Petitioner did not contact her counsel on the eve of the running of the statute of
limitations. She received flu vaccine on November 19, 2013. Even if petitioner’s alleged
vaccine injury began the day she received the vaccine, she had until November 21, 2016 before
the statute of limitations would run on her claim. Petitioner’s attorney’s billing records show
she had contacted counsel by April 23, 2015, over one year and six months before the running of
the statute of limitations. Fee App., Tab 4, at 2. This should have been plenty of time for
petitioner’s counsel to receive and review petitioner’s medical records and discover the same
issues that led to the dismissal of petitioner’s case. Petitioner’s counsel had ample time to
8
perform this due diligence. See Chuisano v. Sec'y of HHS, 116 Fed. Cl. 276, 291 (May 15,
2014) (finding that a special master acted within his discretion in not finding reasonable basis
because, in part, the attorneys did not establish diligence and noting “an earlier telephone call to
one of the firm's regularly retained experts might have provided some evidence of timely due
diligence”); Solomon v. Sec'y of HHS, No. 14–0748V, 2016 WL 8257673, at *4 (Fed. Cl. Spec.
Mstr. Oct. 27, 2016) (“Petitioner's counsel still is required to perform due diligence, given the
available evidence and amount of time prior to the running of the statute of limitations.”).
CONCLUSION
The undersigned finds that an award of attorneys’ fees and costs to petitioner is
unreasonable. Therefore, the undersigned DENIES petitioner’s motion for attorneys’ fees and
costs.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court is directed to enter judgment herewith. 4
IT IS SO ORDERED.
Dated: August 30, 2017 s/ Laura D. Millman
Laura D. Millman
Special Master
4
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or
jointly, filing a notice renouncing the right to seek review.
9