                                            ORIGINAL
    JJn tbe Wntteb $tates ~ourt of jfeberal ~latms
                                 OFFICE OF SPECIAL MASTERS
                                          No. 13-799V
                                      Filed: April 24, 2017
                                       Not for Publication                            FILED
                                                                                       APR   2~   2017
*************************************
JESSICA FOUCH,                      *
                                    *
            Petitioner,             *
                                    *                        Interim attorneys' fees and costs
v.                                  *                        decision; respondent objects to fee
                                    *                        award; lack of information to
SECRETARY OF HEALTH                 *                        determine reasonable basis
AND HUMAN SERVICES,                 *
                                    *
            Respondent.             *
                                    *
*************************************
Jessica Fouch, Manhattan Beach, CA, prose.
Jennifer L. Reynaud, Washington, DC, for respondent.

MILLMAN, Special Master


            DECISION DENYING INTERIM ATTORNEYS' FEES AND COSTS 1

         On February 6, 2017, petitioner filed a motion for interim attorneys' fees and costs on
behalf of her attorney, Ms. Diana L. Stadelnikas. Petitioner requests $39,311.80 in attorneys'
fees and $3,810.10 in attorneys' costs, for a total request of$43,121.90. This is petitioner's
second request for interim attorneys' fees and costs. On February 22, 2016, the undersigned
granted petitioner's first motion for interim attorneys' fees after the withdrawal of petitioner's
first attorney, Ms. Jamie Moss.


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  Because this unpublished decision contains a reasoned explanation for the special master's action in this
case, the special master intends to post this unpublished decision on the United States Court of Federal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' website, in accordance with the E-Govemment Act of2002, 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.
        On February 24, 2017, respondent filed a response to petitioner's motion for interim
attorneys' fees. Respondent objects to an award of interim attorneys' fees and costs, arguing that
petitioner's claim does not have a reasonable basis. In petitioner's reply filed on February 28,
2017, petitioner's counsel states that although she was planning on withdrawing from the case,
petitioner's claim "could still be found to have been brought with good faith and reasonable
basis." Pet'r's reply at 3.

         The Vaccine Act provides that a special master may award reasonable attorneys' fees and
costs if the special master determines that the petition was "brought in good faith and there was a
reasonable basis for the claim .... " 42 U.S.C. § 300aa-15(e)(l). However, a special master is
not bound by an earlier determination that a case had reasonable basis. Reasonable basis can be
lost as the case develops. In Perreira, the Federal Circuit upheld a special master's decision
awarding attorneys' fees and costs only up until the hearing began. Perreira v. Sec'y of HHS, 33
F.3d 1375, 1377 (Fed. Cir. 1994). The special master found that petitioners should have realized
that they did not have reasonable basis to move forward with the case once they reviewed their
expert's opinion prior to the hearing and saw the opinion was unsupported by medical literature
or studies. Id.

        On the same date that petitioner filed her motion for interim attorneys' fees and costs,
petitioner's counsel filed a motion to withdraw as petitioner's attorney, which the undersigned
granted on April 6, 2017. Petitioner is now pro se and being representing by her parents under
United States Court of Federal Claims Rule 83.l(a)(3). At the request of petitioner's parents,
attorney Clifford Shoemaker participated in the most recent status conference call on April 20,
2017. Mr. Shoemaker explained that he intends to represent petitioner. He will file a motion for
substitution of counsel shortly.

        At this time, it is premature for the undersigned to decide whether petitioner's case
continued to have reasonable basis after her first attorney, Ms. Moss, withdrew. It is possible
that petitioner's new attorney, Mr. Shoemaker, may prove that the Tdap vaccine caused
petitioner's alleged injuries. However, it is also possible that Mr. Shoemaker will run into the
same roadblocks as petitioner's two prior attorneys. The undersigned simply does not have
enough information to determine the issue of reasonable basis at this juncture in the case.
Therefore, the undersigned DENIES petitioner's motion for interim attorneys' fees and costs.
She will decide whether petitioner is entitled to an award of interim attorneys' fees and costs for
Ms. Stadelnikas' work once the case has developed further and the issue ofreasonable basis can
be resolved.

        In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the
court is directed to enter judgment. 2




2 Pursuant to Vaccine Rule l l(a), entry of judgment can be expedited by each party, either separately or
jointly, filing a notice renouncing the right to seek review.
                                                     2
IT IS SO ORDERED.


Dated: April 24, 2017       cll:wiw._ .EL~~
                               Laura D. Millman
                                Special Master




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