                                                                                     REISSUED FOR PUBLICATION
                                                                                                   JAN 3 2019
                                                                                                     OSM
                                                                                         U.S. COURT OF FEDERAL CLAIMS
                       3Jn tbe Wniteb �tates qtourt of jfeberal qt{aint.s
                                            OFFICE OF SPECIAL MASTERS
                                                Filed: December 11, 2018
    * *    *       * * * * * *          *    *   *   *   *   *
    HEATHER ROGERO and WALTER A.                             *
    ROGERO, II, Friends of W.R., a minor,                    *

                         Petitioners,                        *       No. 11-770V
                                                             *
    V.                                                       *       Chief Special Master Dorsey
                                                             *
    SECRETARY OF HEALTH                                      *
    AND HUMAN SERVICES,                                      *
                                                             *
                         Respondent.                         *
                                                             *
    * *    *       * * * * * *          *   * * * *          *

          ORDER DENYING MOTION TO RECONSIDER AND MOTION TO REDACT 1

          On September 17, 2018, Heather Rogero and Walter A. Rogero, II ("petitioners") filed a
   motion to reconsider and a motion to redact the undersigned's Decision Awarding Attorneys'
   Fees and Costs ("Fees Decision") dated August 22, 2018 (ECF No. 207). 2 For the reasons
   discussed below, the undersigned denies petitioners' motions.

         I. Relevant Procedural History

         On November 15, 2011, petitioners filed a petition for compensation under the National
   Vaccine Injury Compensation Program3 ("the Program") on behalf of W.R., a minor. Petitioners

               1
             The undersigned intends to post this Order on the United States Court of Federal
   Claims' website. This means the Order will be available to anyone with access to the
   Internet. In accordance with Vaccine Rule 18(b), petitioners have 14 days to identify and move
   to redact medical or other information, the disclosure of which would constitute an unwarranted
   invasion of privacy. If, upon review, the undersigned agrees that the identified material fits
   within this definition, the undersigned will redact such material from public access. Because this
   unpublished order contains a reasoned explanation for the action in this case, the undersigned is
   required to post it on the United States Court of Federal Claims' 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).
            2
           Petitioners had previously been granted an extension of time to file the motion to redact.
   Order dated Sept. 6, 2018 (ECF No. 208).
            3
' ' '              The National Vaccine Injury Compensation Program is set forth in Part 2 of the
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alleged that a series of vaccinations administered to W.R. on November 19, 2008, January 19,
2009, April 27, 2009, August 1, 2009, September 24, 2009, and May 4, 2010, caused a variety of
neurodevelopmental and immunological injuries. Among these neurodevelopmental conditions,
W.R. was diagnosed with autism spectrum disorder. On September 1, 2017, Special Master
Hastings issued a decision finding that petitioners were not entitled to compensation.
Entitlement Decision dated Sept. 1, 2017 (ECF No. 185). Petitioners filed a timely motion for
review, which the Court of Federal Claims denied on January 11, 2018. Rogero v. Sec'y of
Health & Human Servs., No. 11-770V, slip op. (Fed. Cl. Jan. 11, 2018). Petitioners' subsequent
appeal to the Comt of Appeals for the Federal Circuit was likewise dismissed on September 12,
2018. Rogero v. Sec'y of Health & Human Services, No. 18-1684, 2018 WL 4355990 (Fed. Cir.
Sept. 12, 2018).

       On February 9, 2018, petitioners filed a motion for attorneys' fees and costs, requesting
compensation for the attorneys and law clerks who worked on their case. Petitioners' Motion
("Mot.") for Fees and Costs dated February 9, 2018 (ECF No. 196). The undersigned granted
this motion in pmt, awarding $431,334.11 in fees and costs to petitioners and their attorneys.
Fees Decision at 2. On September 17, 2018, petitioners filed a motion for reconsideration of the
undersigned's decision awarding fees and costs. Mot. for Reconsideration dated Sept. 17, 2018
(ECF No. 210). Petitioners do not ask the undersigned to reconsider the fees or costs awards
themselves. Instead, they articulate three primary objections to the Fees Decision and the
Entitlement Decision:

              •   Petitioners claim that the following words from the Entitlement Decision,
                  repeated in the Fee Decision, misstated their position: "Petitioners alleged that a
                  series of vaccinations administered to W.R. on November 19, 2008, January 19,
                  2009, April 27, 2009, August 1, 2009, September 24, 2009, and May 4, 2010,
                  caused ... "

              •   Petitioners object to the use of the terms "neurodevelopmental injuries,"
                  "neurodevelopmental conditions," and "autism spectrum disorder" to describe
                  W.R.'s condition.

              •   Petitioners' assert that the opinions of Dr. Megson, Dr. Deth, and Dr. Palevsky,
                  their experts, were "portrayed differently than the actual record with subjective
                  phrases in contradiction to the record." They also maintain that the decision
                  "Conceded Two Experts Medical Theories."

Id. at 3-4.

       The same day that they filed their motion for reconsideration, petitioners also filed a
motion for redaction of the undersigned's Fees Decision. Mot. for Redaction dated Sept. 17,
2018 (ECF No. 211 ). Petitioners seek the redaction of information which, they allege,


National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as
amended, 42 U.S.C. §§ 300aa-1-34 (2012) ("Vaccine Act" or "the Act"). All citations in this
decision to individual sections of the Vaccine Act are to 42 U.S.C. § 300aa.
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constitutes an invasion of privacy. Mot. for Redaction at 6 (citing Vaccine Rule 18(b)).
Drawing on the tort doctrines of false light and invasion of privacy, they argue that their
"Constitutional right ... to not have false or misleading information made public" has been
violated. Id. In short, petitioners allege that the undersigned's Fees Decision "quotes the false
and legally wrong allegations of the [Entitlement] Decision." Id. at I. Therefore, petitioners
seek to redact this information both from the undersigned's Fees Decision and from Special
Master Hastings' Entitlement Decision. Id. at 23. They also ask the undersigned to "set aside"
the Entitlement Decision "for not applying the correct vaccine, injury and medical theory." Id. at
24.

        Respondent filed a response to petitioners' motions on September 19, 2018.
Respondent's (Resp.) Response dated Sept. 19, 2018 (ECF No. 212). Respondent asserts that
"the primary purpose of [petitioners'] motion is not to seek redactions based on an asserted
privacy interest in information contained in the Fee Decision, but rather to re-litigate the merits
of their underlying claim for compensation." Id. at I. Noting that the Court of Appeals for the
Federal Circuit has affirmed the Entitlement Decision, he emphasizes that the undersigned is
"not legally authorized to re-evaluate the merits of petitioners' underlying claim for Vaccine Act
Compensation." Id. at 1-2. Petitioners filed a reply on October 1, 2018, arguing that the
"erroneous science" in the Entitlement Decision required redaction and maintaining their
position that the decision constituted "manifest injustice." Petitioners' Reply at 2, 4.

        Although petitioners filed two separate motions addressing the Fees Decision, the
motions assert many of the same arguments. Respondent's response, and petitioners' subsequent
reply, also deal with both motions simultaneously. This Order will therefore address both
motions.

   II. Discussion

           a. Motion for Reconsideration

        Reconsideration of decisions issued pursuant to the Vaccine Act are governed by Vaccine
Rule I0(e). "The special master has the discretion to grant or deny the motion [for
reconsideration], in the interest of justice." Vaccine Rule 10(e)(3). This rule grants a special
master significant discretion to determine in a particular case what result is "in the interest of
justice." See Krakow v. Sec'y of Health & Human Servs., No. 03-632V, 2010 WL 5572074, at
*5 (Fed. Cl. Spec. Mstr. Nov. 12, 2010); see also Yuba Nat. Res., Inc. v. United States, 904 F.2d
 1577, 1583 (Fed. Cir. 1990) ("The decision whether to grant reconsideration lies largely within
the discretion of the [trial] court.").

        Neither of petitioners' motions express dissatisfaction with the fees or costs awarded by
the undersigned. Rather, as respondent observed, both motions attempt to re-litigate the
substantive controversies adjudicated by Special Master Hastings in his Entitlement Decision.
The undersigned has no power to grant this relief. Vaccine Rule 23 allows an unsatisfied
petitioner to file a motion for review with the Court of Federal Claims; if unsuccessful there,
Vaccine Rule 32 allows appeal to the Court of Appeals for the Federal Circuit. As noted above,
petitioners have already exhausted these options.


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       Additionally, the undersigned will address each of petitioners' primary objections in turn:

           •   Petitioners' filings confirm that W.R. did indeed receive vaccinations on each
               date listed in the Decisions. See Petitioners' Prehearing Memorandum ("Pet.
               Prehr'g Memo") dated Nov. 9, 2015 (ECF No. 131) at 7-18. Although petitioners
               initially alleged injury only from vaccines administered on November 19, 2008,
               their theory evolved substantially as litigation continued. See Petition at 1; Pet.
               Prehr'g Memo at 66; Entitlement Decision at 8 n.7. Therefore, the Decisions
               offer an accurate description of petitioners' allegations. See Entitlement Decision
               at 1; Fees Decision at 1.

           •   The undersigned uses the phrases "neurodevelopmental injuries,"
               "neurodevelopmental conditions," and "autism spectrum disorder" because this
               language is used in the Entitlement Decision. See, e.g .. Entitlement Decision at 1,
               20, 36. As for whether these descriptions are accurate, the undersigned does not
               have the authority to re-litigate this question.

           •   The undersigned's characterization of the expert testimony in this case relies in
               part on Special Master Hastings' evaluation in the Entitlement Decision, which
               has been upheld by both the Court of Federal Claims and the Court of Appeals for
               the Federal Circuit. See Entitlement Decision at 28-40; Fees Decision at 5-9.
               Based on the Entitlement Decision, as well as her own review of the experts'
               reports and testimony, the undersigned does not find that her discussion of the
               experts in her Fees Decision was inaccurate or unfair. As for the Court's alleged
               concession of two of the experts' medical theories, the undersigned once again
               reiterates that such questions of causation were settled in the Entitlement
               Decision.

           b. Motion for Redaction

        A motion for redaction is governed by section 12(d)(4)(B) of the Vaccine Act. See 42
U.S.C. § 300aa-12(d)(4)(B); Vaccine Rule 18(b). That section provides that information
concerning "medical files and similar files" may be redacted if its disclosure "would constitute a
clearly unwarranted invasion of privacy." § 300aa-12(d)(4)(B). What constitutes a "clearly
unwarranted invasion of privacy" requires balancing petitioners' "right of privacy against the
public purpose of the Vaccine Act." W.C. v. Sec'y of Health & Human Servs., 100 Fed. Cl. 440,
460 (2011 ). While petitioners have an interest in keeping sensitive medical or other
embarrassing information private, the public has an interest in disclosure, so as to increase public
awareness of vaccines and the medical conditions they may cause. Id. at 461. In other words,
sensitive information is often the subject of the litigation, and "in cases where sensitive
information is the subject of the dispute, that information is routinely disclosed in decisions, to
enable the reader to follow and understand the decision maker's rationale." Castagna v. Sec'y of
Health & Human Servs., No. 99-411V, 2011 WL 4348135, at *13 (Fed. Cl. Spec. Mstr., Aug. 25,
2011 ).




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        Here, petitioners misconstrue the scope of the redactions contemplated by the Vaccine
Act. Special masters frequently redact the names of minor vaccinees to display only initials, as
the undersigned has done in this case. See Vaccine Rule 16(b); Order dated June 28, 2013 (ECF
No. 40). However, petitioners request the redaction of allegations and alleged injuries as well as
substantive opinions of the special master: the use of the phrase "neurodevelopmental disorder"
to describe W.R.'s condition; the Court's interpretation of their experts' opinions; the
characterization of W.R.'s condition as autism; and so on. See Mot. to Redact at 4, 9-10, 20.
These substantive objections do not qualify as the "compelling reason, tailored to meet the
individual interest it services," necessary to "overcome the presumption for public access." See
Anderson v. Sec'y of Health & Human Servs., No. 08-396V, 2014 U.S. Claims LEXIS 641, at
* 18 (Fed. Cl. Spec. Mstr. June 4, 2014).

        Petitioners' reliance on the to1t doctrines of false light and invasion of privacy is also
misplaced. Unlike in the tort context, the Vaccine Act "must . .. be construed in light of the
traditional common law right of access to judicial opinions." Castagna, 2011 WL 4348135, at
*4. The undersigned determines that Congress did not contemplate the imposition of tmi
principles in this circumstance so as to redact the information requested. See Anderson, 2014
U.S. Claims LEXIS 641, at *22-25 (chronicling "the difference in analyses under the Freedom of
Information Act and the Vaccine Act").

       To the extent that petitioners seek redactions of Special Master Hastings' Entitlement
Decision, this request is untimely. Because they failed to submit a motion for redaction within
14 days of its issuance, petitioners forfeited their opportunity to seek redactions of that Decision.
See Vaccine Rule 18(b).

    III. Conclusion

        For the reasons discussed above, petitioners' motion for reconsideration and motion for
redaction of the undersigned's Fees Decision are both DENIED.

        IT IS SO ORDERED.



        Dated:   Id ·I I - o(Q/25
                                               Nora Beth Dorsey
                                               Chief Special Master




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