  G!NAL
In the United Statea Court of Iieheral Glliz_ii\ijx_ziE D

()FFICE OF SPECIAL MASTERS  __ 8 
>l<>l<>l<>|<>|<>l<>|<>l<>l<>l<>|<>l<>l<>l<>l<>l<>|<>|<>|<>l<>l< OSM
U.S. COUREA?§S
SONAL PATEL, * "E°ER’“'°
* No. 14-421\/
Petitioner, * Special Master Christian J. Moran
>l<
v. * Filed: January 8, 2016
>l<
SECRETARY OF HEALTH * Attorneys’ fees; reasonable basis;
AND HUl\/IAN SERVICES, * withdrawal of counsel
»»<
Respondent. *

>l<>l<>l<>l<>|<>l=>|<>|<>l<>|<>l<>l<>|<>l<>|<>|<>l<>|<>|<>l=>l<

Sonal Patel, Stamford, CT, pro se;

l\/lichael G. l\/IcLaren, Black McLaren Jones Ryland & Griffee, PC, l\/Iemphis, TN,
former counsel of record for petitioner;

Lara A. Englund, United States Dep’t of Justice, Washington, DC, for respondent

PUBLISHED DECISION DENYING ATTORNEYS’ FEES'

Represented by an attorney at the onset of this case§ Sonal Patel filed a
petition under the National Childhood Vaccine injury Act, 42 U.S.C. §300aa-l0

through 34 (2012), on May l5, 2()14. Her petition alleged that she suffered
injuries, including neurologic impairments, tachycardia, heart/chest palpitations,

l Because this published decision contains a reasoned explanation for the special master’s
action in this case, the special master intends to post it on the United States Court of Federal
Claims’s website, in accordance with the E~Government Act of 2002, Pub. L. No. 107-347, 116
Stat. 2899, 2913 (Dec. 17, 2002).

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 clearly be an unwarranted invasion of
privacy. When such a decision or designated substantive order is filed, a party has 14 days to
identify and to move to delete such information before the document’s disclosure. If the special
master, upon review, agrees that the identified material fits within the categories listed above, the
special master shall delete such material from public access. 42 U.S.C. § 300aa-l2(d)(4);
Vaccine Rule l8(b).

breast cysts, chest pain, insomnia, physical impairments, Sjogren’s syndrome-like

gsyrrifptoms, conversion disorder-like symptoms, and/or other injuries, resulting

from the receipt of the human papillomavirus ("HPV") vaccination administered to
her on November 15, 2012. After l\/ls. Patel’s attorney withdrew his
representation, l\/ls. Patel did not prosecute her case and the case was dismissed.

Before l\/ls. Patel’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 merits of l\/Is. Patel’s case
have been adjudicated, the motion for attorneys’ fees is ripe. The undersigned has
reviewed the record and determined that l\/Is. Patel’s case does not fulfill a
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.

Procedural History

l\/ls. Patel’s attorney submitted her petition on l\/lay 15, 2014. The attorney
also submitted medical records six days later. Exhibits l~9.

After l\/Is. Patel’s attorney filed a statement of completion, an initial status
conference was held on October 28, 2014. The parties expressed some interest in
attempting to resolve the case. Order, issued Oct. 30, 2014. However, for
unknown reasons, l\/ls. Patel’s attorney could not present a demand to the
Secretary.

On April l3, 2015, l\/ls. Patel’s attorney filed two motions. One was a
motion to withdraw (ECF No. 23). The other was a motion for attorneys’ fees and
costs (ECF No. 22). Although l\/ls. Patel filed an objection to the motion to
withdraw, the motion to withdraw was granted. Simultaneously, l\/[s. Patel was
ordered to file a status report describing her plan to proceed. Order, issued June 2,
2015. l\/Is. Patel never responded to this order or to any of several efforts to

communicate with her. This failure to prosecute eventually led to the dismissal of
her case. Decision, filed Dec. 2, 2015.

With respect to the motion for attorneys’ fees, the Secretary filed an
opposition. The Secretary presented two arguments. First, the Secretary argued
that an award of attorneys’ fees on an interim basis was not appropriate. Resp’t’s
Opp’n, filed April 27, 2015, at 2-4. This objection has now been rendered moot, as
the motion is being adjudicated after Ms. Patel’s merits case has been resolved.

Second, the Secretary argued that l\/Is. Patel’s case lacked a reasonable basis I_cL at
4-6.

When the Secretary filed this opposition, Ms. Patel’s attorney was still
counsel of record. He remained counsel of record for slightly more than one
month before his motion to withdraw was granted. During this time, he did not file
a reply brief to answer any of the Secretary’s objections to the pending request for
attorneys’ fees.

Standards for Ad}`udication

Under the "American rule," each litigant pays for its participation in
litigation. Bal<er Botts L.L.P. v. ASARCO L.L.C., 135 S.Ct. 2158, 2160 (2015).
However, the Vaccine Act (lil<e 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-l5(e)(l). Because Ms. Patel did not receive
compensation, an award of attorneys’ fees is not mandatory in this case. lnstead,
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 if the 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." ld; Thus, non-
prevailing petitioners must establish two conditions precedent for being eligible for
an award of attorneys’ fees: "good faith" and "reasonable basis." Here, the
Secretary appears to raise some question about Ms. Patel’s good faith as the
Secretary states "it is not clear that [l\/Is. Patel] suffered any injury at all." Resp’t’s
Opp’n at 6. However, resolution of l\/ls. Patel’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., ll6 Fed. Cl. 276, 285 (2014) (citing Woods v. Sec’y of
Health & Human Servs., 105 Fed. Cl. 148 (2012)). ln the absence of guidance,
special masters have taken different approaches. Silva v. Sec'y of Health &
Human Servs., No. l0-l0lV, 2012 WL 2890452, at *8-9 (Fed. Cl. Spec. Mstr.
June 22, 2012), mot. for rev. denied, 108 Fed. Cl. 401 (2012).

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 _S_e§
Chuisano v. Sec'y of Health & Human Servs., No. 07-452\/, 2013 WL 6234660, at
*8~10 (Fed. Cl. Spec. l\/Istr. Oct. 25, 2013), mot. for rev. denied, 116 Fed. Cl. 276
(2014).2 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. _S_ee 42 U.S.C. § 300aa-11(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 ofHealth & Human Servs., 101 Fed. Cl. 297, 305
(2011), decision on remand vacated, 2012 WL 1884703 (May 3, 2012).

A[)_[)_lication

Here, the Secretary challenged the reasonable basis of l\/ls. Patel’s claim that
the HPV vaccine harmed her in three respects. First, the Secretary argued that
whether l\/ls. Patel suffered any injury is not clear. The Secretary maintains that
"While [l\/Is. Patel] reported several symptoms to her doctors, none of them were

ever confirmed on examination or by testing." Resp’t’s Opp’n at 6. Second, if l\/Is.

2 Although the undersigned’s decision in Chuisano indicated that petitioners may satisfy
the reasonable basis standard by submitting "evidence," the Chief Judge in some respects agreed
and in some respects disagreed. The Chief Judge agreed with the emphasis on "evidence." But,
the 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 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
rnqurry.

4

Patel suffered from any disease or condition, Ms. Patel has not presented any
evidence that the HPV vaccine caused that disease or condition. "None of [l\/ls.
Patel’s] treating physicians attributed her symptoms to the HPV vaccine, and
petitioner never filed an expert report." id Third, l\/ls. Patel has not presented any
evidence to satisfy the severity requirement found in the Vaccine Act. __S§_Q 42

U.S.C. § BO()aa-l l(c)(l)(D). "There are no medical records dated after April 5,
2013, which is less than five months after the vaccination." Resp’t’s Opp’n at 6.

As noted above, although the Secretary filed her opposition when Ms.
Patel’s attorney was her counsel of record, there was no reply filed. Thus, the
Secretary’s objections remain unanswered. _S_»_e_e Vaccine Rule S(f)(l).

Nevertheless, the undersigned has reviewed the evidence in this case to
determine whether the claim alleged in the petition was supported by reasonable
basis. _S__e_§ 42 U.S,C. § 300aa~l3(a). The undersigned’s review of the record
confirms the information the Secretary communicated The most obvious
deficiency is that the most recent medical record is from April 5, 2013. Exhibit 5
at 6. An April 5, 2013 report does not fulfill the requirement that problems last for
more than six months.3 Because the attorneys filed the petition on l\/lay l5, 2014,
slightly more than one year after the April 5, 20 l3 visit, the attorneys should have
gathered additional medical records documenting the existence of a continued
health problem.

Similarly, there is a lack of evidence that the HPV vaccine caused any
problems. Although some doctors recorded the history that Ms. Patel provided to
them that a particular problem or particular problems started after the HPV
vaccination, the doctors did not suggest that the HPV vaccination was causally
related to any proble1n. A simple chronology in which the vaccination precedes

the onset of symptoms does not establish a reasonable basis for the claim.
Chuisano, ll6 Fed. Cl. at 287.

In short, the evidence does not cross the reasonable basis threshold. Thus,
l\/ls. Patel is not eligible for an award of attorneys’ fees and costs.

3 ln this report, l\/ls. Patel told the doctor that she was experiencing pain in both breasts.
However, the doctor stated: "l did my best to reassure her that she has a normal clinical exam,
normal imaging, and that many young women experience breast pain, and that it does not
increase the risk of breast cancer." Exhibit 5 at 7, Thus, this medical record does not satisfy the
Act’s severity requirement In addition, this record does not advance Ms. Patel’s claim that HPV
vaccine caused her breast pain.

5

If the "totality of the circumstance" test were used to evaluate the reasonable
basis for l\/Is. Patel’s claim, then the same result would occur. To an evaluation of
evidence, the "totality of the circumstance" test primarily adds a review of the
attorney’s conduct and this "totality of the circumstance" test might be justified
when an attorney is confronted with filing a case shortly before the statute of
limitations runs. l_d_. at 288.4

Here, the "totality of the circumstances" does not support a finding that l\/ls.
Patel’s claim was supported by reasonable basis. The statute of limitations did not
pose any looming deadline. Actually, the attorney had ample time to investigate
the case because the attorney filed the case on l\/l`ay 15, 2014, which was
approximately 18 months after Ms. Patel was vaccinated (November 15, 2012).5
The attorney could have spent several more months investigating the case before
the statute of limitations would have presented a problem. At a minimum, the
attorney should have obtained and filed medical records that demonstrated Ms.
Patel’s disease or condition extended for more than six months before filing the
petition. After the attorney had verified that Ms. Patel could meet this element
required for compensation, the attorney could have proceeded to investigate
whether l\/ls. Patel truly suffered any injury because the medical records are not
clear on this point.

If the attorney had remained counsel of record, the attorney may have
obtained additional evidence that could have supported a finding that l\/Is. Patel’s
case was supported by reasonable basis or even a finding that l\/ls. Patel was
entitled to compensation. The statute requires that the persuasive evidence be
more than.the petitioner’s assertions. 42 U.S.C. § 300aa~l3(a)(l). But, what
could have happened is simply conjecture.é Suppositions, plans, and hopes are not
grounds for deciding a motion in petitioner’s favor.

4 The "totality of the circumstances" seems not to include the Secretary’s willingness to
consider settlement. Woods v. Sec’_y_gf_llealth & Human Servs., 105 Fed. Cl. 148, 152-153
(2012).

5 A cause of action accrues when the vaccinee experiences "the first symptom or
manifestation of onset." 42 U.S.C. § 300aa~l6(a)(2). The onset is typically days or weeks after
the vaccination. Thus, the reference to when l\/ls. Patel received the vaccination is merely used
as proxy for the onset date to demonstrate that her attorney had time to investigate her claim
before he filed it.

6 Ms. Patel’s former attorney represented that l\/ls. Patel had recorded a phone message
from a doctor saying that she inadvertently received a double dose of the HPB vaccine.
However, this recording was not filed into evidence When l\/Is. Patel played the recording
during a status conference, the words were not understandable.

6

Conclusion

There has not been a demonstration that l\/Is. Patel’s claim was supported by
a reasonable basis. Thus, she has not fulfilled one of the prerequisites for an award
of attorneys’ fees. The April 23, 2015 motion for attorneys’ fees is DENIED.

The Clerk’s Office is instructed to send this decision by certified mail to the
last two known addresses for l\/Is. Patel. In addition, when this decision becomes
available on the court’s website (see footnote l, above), the Clerl<’s Office shall
transmit a courtesy copy of this decision to Ms. Patel’s former counsel by
facsimile.

IT IS SO ORDERED.

 £)Ag,zi   _>“'“cf€r,,,»»»

Christian J. l\//Ioran
Special l\/laster

