In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-354V
Filed: October 9, 2019
* * * * * * * * * * * * * * *
CHERYL DOSTER-ANDERSON, * UNPUBLISHED
*
Petitioner, *
v. * Decision on Attorneys’ Fees and Costs;
* Reasonable Basis
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * *
Bridget McCullough, Esq., Muller Brazil, LLP, Dresher, PA, for petitioner.
Alexis Babcock, Esq., U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
Roth, Special Master:
On March 7, 2018, Cheryl Doster-Anderson (“Ms. Doster-Anderson,” or “petitioner”) filed
a petition for compensation under the National Vaccine Injury Compensation Program.2 Petitioner
alleges that she developed Guillain-Barre syndrome (“GBS”) after receiving an influenza (“flu”)
vaccination on October 2, 2015. Petition (“Pet.”), ECF No. 1. Petitioner now seeks an award of
attorneys’ fees and costs.
1
Although this Decision has been formally designated “unpublished,” it will nevertheless be posted on the
Court of Federal Claims’s website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-
347, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). This means the Decision
will be available to anyone with access to the internet. However, the parties may object to the Decision’s
inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party
has fourteen days within which to request redaction “of any information furnished by that party: (1) that is
a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes
medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of
privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public. Id.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
I. Background
A. Summary of Relevant Medical Records
Petitioner’s prior medical history was significant for chronic abdominal pain, ulcerative
colitis status post-colectomy and ileostomy, depression, anxiety, post traumatic stress disorder
(“PTSD”), and tobacco use. Pet. Ex. 3 at 10.
Prior to receipt of the allegedly causal vaccine, petitioner was evaluated by her primary
care physician (“PCP”) on September 22, 2015 for ongoing nausea, vomiting, and sharp upper left
quadrant pain that had persisted for over one month. Id. at 9. On September 27, 2015, petitioner
presented to the Lake Bennett Health and Rehabilitation emergency department with complaints
of persistent nausea and vomiting. Pet. Ex. 4 at 506-07. Petitioner was diagnosed with intractable
nausea and vomiting, chronic abdominal pain with chronic narcotic use, and leukocytosis, likely
reactive. Id. at 507. She was prescribed Rocephin, likely for a bacterial infection, and admitted to
the hospital for further evaluation. Id. The next day, petitioner underwent a gastrointestinal (“G.I.”)
consultation with Dr. Kenneth Feuer who confirmed the diagnosis of acute abdominal pain. Id. at
499-504.
Petitioner received the allegedly causal influenza (“flu”) vaccine on October 2, 2015 at a
visit with an internal medicine physician while she was hospitalized for G.I. issues. Pet. Ex. 1 at
2; Pet. Ex. 4 at 510. During this visit, petitioner reported that most of her symptoms had resolved
but she was still experiencing generalized weakness. Pet. Ex. 4 at 292-95.
On October 4, 2015, petitioner was discharged from the hospital and admitted to a
rehabilitation center for “strengthening and unsteady gait.” Id. at 508-13, 746. Petitioner returned
to the emergency department on October 8, 2015 complaining of severe chest pain. Id. at 432-43.
She was again admitted for observation and evaluated by a cardiologist the following day. Id. at
449-51. Petitioner’s cardiologist, Dr. Nasir Rahmatullah, noted that petitioner had no previous
cardiac history but presented with symptoms of ischemia. Id. at 450. Dr. Rhamatullah
recommended that petitioner could be discharged from a cardiac standpoint. Id. at 451.
On November 8, 2015, petitioner returned to the emergency department reporting nausea,
vomiting, and abdominal pain. Id. at 642-43. She stated her current symptoms “started gradually
over the course of the last 24 hours” and were similar to what brought her to the hospital
previously. Id. at 642. She was again admitted for observation. Id. at 643. She was discharged on
November 13, 2015 and readmitted to a rehabilitation facility for skilled nursing due to her
generalized weakness. Id. at 605, 632-33 Petitioner was discharged from the rehabilitation facility
on December 28, 2014. Id.at 832. Petitioner was ordered to continue physical therapy and continue
on her current medications. Id.
Petitioner presented to her PCP on December 29, 2015 to request a neurology referral “to
confirm her diagnosis of neuropathy and to get started on a treatment plan for it.” Pet. Ex. 3 at 19.
Petitioner noted she had been experiencing sharp pain and tingling in her extremities for an
undisclosed period of time. Id. She had been taking Neurontin and Lyrica but had not yet
underwent a nerve conduction study to confirm a neuropathy diagnosis. Id. No overt weakness
2
was noted. Id. Petitioner also underwent an initial orthopedic evaluation by Dr. Jay Wright on the
same day. Pet. Ex. 5 at 22-24. Dr. Wright noted decreased sensation in a bilateral stocking type
distribution, with absent reflexes at the Achilles tendons. Id. Dr. Wright diagnosed petitioner with
chronic abdominal pain, idiopathic peripheral neuropathy, low back pain, and long-term drug
therapy. Id. at 24. He also recommended that petitioner undergo EMG/NCV studies. Id.
Petitioner underwent the EMG/NCV studies on January 15, 2015. Pet. Ex. 5 at 20-22, 25-
27. The findings were consistent with a sensorimotor axonal and demyelinating polyneuropathy.
Id. Petitioner returned to her PCP on January 26, 2016 who confirmed a neuropathy diagnosis. Pet.
Ex. 3 at 33-36. Petitioner was evaluated by a neurologist, Dr. Rahul Dewan on February 2, 2016
regarding her “five month history3 of numbness, tingling, and weakness in the extremities.” Pet.
Ex. 6 at 4. Petitioner reported her symptoms began in September 2015 when she was admitted to
the hospital for nausea and vomiting. Id. Upon evaluation, Dr. Dewan assessed possibly acute
inflammatory demyelinating polyneuropathy (“AIDP”), a form of GBS. Id. at 6. However, he also
stated that “[s]ince she is now about five months out from her initial symptom onset and continues
to have weakness, she may be developing a chronic form,” known as chronic inflammatory
demyelinating polyneuropathy (“CIDP”). Id. Dr. Dewan requested to review petitioner’s
EMG/NCV studies and hospital records “to see what kind of G.I. illness she was admitted for since
there is some association with Campylobacter4 and Guillain-Barre syndrome.” Id. He also
discussed petitioner’s treatment options, including IVIG therapy. Id. Petitioner returned to Dr.
Dewan on February 29, 2016 for follow up of her EMG/NCV studies. Id.at 8-10. After thoroughly
reviewing petitioner’s results, he stated that they suggested axonal and demyelinating neuropathy
and again suggested IVIG therapy. Id.
On March 1, 2016, petitioner was admitted to the hospital to begin a five-day course of
IVIG therapy. Pet. Ex. 6 at 23-26. On March 15, 2016, petitioner returned to Dr. Dewan who noted
petitioner reported improvement with her lower extremity weakness and he noticed an increase in
her bilateral lower extremity strength as well. Id. at 11-12.
Petitioner had another follow up visit with Dr. Dewan on May 16, 2016 during which she
reported new symptoms of Restless Leg Syndrome (“RLS”). Id. at 14-16. Dr. Dewan noted these
symptoms were likely caused by petitioner’s ongoing iron deficiency she was being treated for.
On August 22, 2016, petitioner returned to Dr. Dewan for evaluation. Id. at 17-19. Dr.
Dewan noted that while petitioner’s symptoms had improved and she was now able to walk
without a walker for further distances, she was experiencing fatigue in her legs the following day.
Id. at 17. He also indicated that petitioner continued to experience decreased tone and absent deep
tendon reflexes in her legs, diminished sensation in her feet, and a slightly antalgic, but stable gait.
Id.
3
This would place onset of petitioner’s symptoms in mid-September, weeks before she received the
allegedly causal flu vaccine.
4
According to DICP medical personnel, “one of the strongest associations between an antecedent infections
pathogen and subsequent GBS has been that of infection with the gastrointestinal bacterium Campylobacter
jejuni.” Resp. Report at 6, n.6.
3
Petitioner followed up with Dr. Dewan on December 16, 2016 reporting that while her leg
strength had been improving, she was still experiencing numbness in her legs at times. Id. at 20-
22. At this visit, Dr. Dewan noted he “suspect[ed] that [petitioner’s] symptoms may be secondary
to a chronic inflammatory demyelinating polyneuropathy – CIDP.” Id. at 22. He also indicated
petitioner had responded well to the IVIG therapy and that she was able to walk without any
assistance from a walker. Id.
There have been no updated medical records filed in this matter.
B. Procedural History
Petitioner filed her petition and several medical records on March 7, 2018.5 Petition,
Petitioner’s Exhibits (“Pet. Ex.”) 1-7, ECF No. 1. She filed a Statement of Completion on March
8, 2018. ECF No. 5. Respondent filed his Rule 4(c) Report on March 21, 2019. Respondent’s
Report (“Resp. Report”), ECF No. 16. In his report, respondent argued petitioner failed to satisfy
her burden of proof under Althen prongs I and II as she did not provide evidence to support actual
causation. Id. at 10 (citing Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274 (Fed. Cir.
2005)). Respondent pointed out that none of petitioner’s treaters ever attributed her condition to
her vaccination, but instead thought it was likely precipitated by a gastrointestinal illness. Id.
(citing Pet. Ex. 2 at 3-4; Pet Ex. 6 at 6). Respondent further argued that onset of petitioner’s
symptoms occurred prior to her vaccination, and thus submitted that petitioner also cannot meet
her burden under Althen prong III. Id. Respondent also identified several outstanding medical
records. Id.
On the following day, March 22, 2019, petitioner filed a Motion to Voluntarily Dismiss
pursuant to Rule 21(a). Motion, ECF No. 18. An Order Concluding Proceedings was issued the
same day. Decision, ECF No. 19.
On June 30, 2019, petitioner filed an application for attorneys’ fees and costs. ECF No.
22 (“Fees App.”). Petitioner requested total attorneys’ fees and costs in the amount of
$7,002.10 (representing $6,379.10 in attorneys’ fees and $623.00 in costs). Fees App. at 2.
Pursuant to General Order No. 9, petitioner warranted that she did not incur any costs in pursuit
of this litigation. Id. Respondent responded to the motion on July 2, 2019, stating “Respondent
defers to the Special Master to determine whether the statutory requirements for an award of
attorneys’ fees and costs are met in this case.” Response at 2, ECF No. 24. Petitioner did not file
a reply thereafter.
This matter is now ripe for consideration.
5
According to the billing records submitted with petitioner’s fees application, petitioner’s counsel began
working on this case on October 31, 2016. Fees App. Ex. A at 1. Prior to the filing of the petition on March
7, 2018, petitioner’s counsel’s firm had spent several hours over approximately 18 months compiling and
reviewing petitioner’s medical record. See id. at 1-4.
4
II. Applicable Law and Analysis
A. Good Faith and Reasonable Basis
The Vaccine Act permits an award of “reasonable attorneys’ fees” and “other costs.”
§ 15(e)(1). If a petitioner succeeds on the merits of his or her claim, petitioner’s counsel is entitled
to a reasonable attorneys’ fee award. Id.; see Sebelius v. Cloer, 133 S. Ct. 1886, 1891 (2013).
However, a petitioner need not prevail on entitlement to receive a fee award so long as the petition
was brought in “good faith” supported by “reasonable basis.” § 15(e)(1).
Inquiry into whether counsel brought a claim in good faith is a subjective inquiry that
questions whether the attorney exercised adept professional judgment in determining whether a
petitioner may be entitled to compensation. Chuisano v. United States, 116 Fed. Cl. 276, 286
(2014) (citations omitted). Here, respondent did not question petitioner’s counsel’s subjective good
faith in bringing the claim. Therefore, petitioner’s good faith requires no further analysis.
Reasonable basis is an objective standard determined by evaluating the sufficiency of the
medical records in petitioner’s possession at the time the claim is filed. “Special masters have
historically been quite generous in finding reasonable basis for petitions.” Turpin v. Sec’y of Health
& Human Servs., No. 99-564, 2005 WL 1026714 at *2 (Fed. Cl. Spec. Mstr. Feb. 10, 2005).
However, the Federal Circuit recently denied an award of attorney’s fees based on petitioner’s lack
of reasonable basis in Simmons v. Secretary of Health and Human Services. 875 F.3d 632, 636
(Fed. Cir. 2017). In Simmons, the Federal Circuit determined that petitioner lacked reasonable
basis for filing a claim when, at the time of filing: (1) petitioner’s counsel failed to file proof of
vaccination, (2) there was no evidence of a diagnosis or persistent injury allegedly related to a
vaccine in petitioner’s medical records, and (3) the petitioner had disappeared for approximately
two years prior to the filing of the petition and only resurfaced shortly before the statute of
limitations deadline on his claim expired. See id. at 634-35. The Federal Circuit specifically stated
that the reasonable basis inquiry is objective and unrelated to counsel’s conduct prior to filing a
claim. The Court consequently affirmed the lower court’s holding that petitioner’s counsel lacked
reasonable basis in filing this claim based on the insufficiency of petitioner’s medical records and
proof of vaccination at the time the petition was filed. Id. at 636.
In light of Simmons, the Court of Federal Claims determined, “[I]n deciding reasonable
basis[,] the Special Master needs to focus on the requirements for the petition under the Vaccine
Act to determine if the elements have been asserted with sufficient evidence to make a feasible
claim for recovery. . . Under the objective standard articulated in Simmons, the Special Master
should have limited her review to the claim alleged in the petition to determine if it was feasible
based on the materials submitted.” Santacroce v. Sec’y of Health & Human Servs., No. 15-555V,
2018 WL 405121 at *7 (Fed. Cl. 2018). When evaluating a case’s reasonable basis, petitioner’s
“burden [in demonstrating reasonable basis] has been satisfied . . . where a petitioner has submitted
a sworn statement, medical records, and [a] VAERS report which show that recovery is feasible.”
Id. Moreover, the special master may consider various objective factors including “the factual
basis of the claim, the novelty of the vaccine, and the novelty of the theory of causation.”
Amankwaa v. Sec’y of Health & Human Servs., 138 Fed. Cl. 282, 289 (2018).
5
In his Response, respondent “defer[red] to the Special Master to determine whether the
statutory requirements for an award of attorneys’ fees and costs are met in this case.” Response at
2. Upon evaluation of the medical records filed with the petition, it appears that petitioner’s claim
lacked a reasonable basis for the duration of the claim. These records indicated that petitioner’s
treaters believed her symptoms to be related to her gastrointestinal infection she experienced prior
to receipt of the flu vaccine. See Pet. Ex. 4 at 292-95, 432-43, 449-51, 508-13, 632-33. Further,
petitioner was already hospitalized for G.I. issues and generalized weakness at the time she
received the vaccine. Pet. Ex. 1 at 2; Pet. Ex. 4 at 510. She continued to experience ongoing G.I
and neuropathic issues after the vaccination that were admittedly similar to the symptoms she
experienced prior to the vaccine. Pet. Ex. 4 at 642-43. Additionally, on February 2, 2016, Dr.
Dewan specifically attributed petitioner’s neuropathy to the September 2015 G.I. infection. Pet.
Ex. 6 at 6.
Reasonable basis “looks not at the likelihood of success” but rather “the feasibility of the
claim.” Chuisano, 116 Fed. Cl. at 286. The reasonable basis inquiry is “broad enough to encompass
any material submitted in support of the claim at any time in the proceeding, whether with the
petition or later.” Id. at 287. Ultimately, petitioner’s claim was not supported by the medical
records filed. It is clear from even a cursory review of the records that petitioner’s symptoms were
more likely attributable to her ongoing G.I. issues that arose in the month prior to her receipt of
the flu vaccine and thus, her claim was not feasible. Moreover, petitioner’s counsel was in
possession of this case for approximately 18 months prior to the filing of the petition and the billing
records show time spent reviewing and summarizing the medical records during that timeframe.
Fees App. Ex. A at 1. Petitioner should have realized that her symptoms were most likely related
to her G.I. infection during the 18 months prior to the filing of the petition, but she failed to do so
and continued to move forward with this case. Accordingly, I find that this case lacked a
reasonable basis at the time of filing and for the entire duration of its pendency before the Court.
Therefore, petitioner’s request for attorneys’ fees and costs is hereby denied.
III. Conclusion
In accordance with the foregoing, petitioner’s motion for attorneys’ fees and costs is
DENIED. The Clerk of the Court is directed to enter judgment in accordance with this Decision.6
IT IS SO ORDERED.
s/ Mindy Michaels Roth
Mindy Michaels Roth
Special Master
6
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice
renouncing the right to seek review.
6