        In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                           No. 13-869V
                                     Filed: October 22, 2015

* * * * * * * * * * * * * *                       *                UNPUBLISHED
MATTHEW RUPPERT,                                  *
                                                  *
                Petitioner,                       *
                                                  *
v.                                                *                Attorneys’ Fees and Costs;
                                                  *                Reasonable Basis
SECRETARY OF HEALTH                               *
AND HUMAN SERVICES,                               *
                                                  *
                Respondent.                       *
                                                  *
* * * * * * * * * * * * * *                       *

Thomas P. Gallagher, Thomas Gallagher Law Firm, Somers Point, NJ, for petitioner.
Debra A. Filteau Begley, U.S. Department of Justice, Washington, D.C., for respondent.

          DECISION AWARDING INTERIM ATTORNEYS’ FEES AND COSTS1

Gowen, Special Master:

        On November 1, 2013, Matthew Ruppert (“petitioner”) filed a petition for compensation
under the National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 – 34 (2012) 2
(the “Vaccine Act” or “the Program”). Petitioner alleged that as a result of receiving the Human
Papillomavirus (“HPV” or “Gardasil”), Hepatitis A, and/or influenza (“Flu”) vaccines on
December 8, 2012, he developed Multiple Sclerosis (“MS”). Petition at Preamble; Amended
Petition at Preamble. Petitioner’s counsel, Thomas P. Gallagher, has requested to withdraw as
1
  Because this decision contains a reasoned explanation for the undersigned’s action in this case, the
undersigned intends to post this ruling on the website of the United States Court of Federal Claims, in
accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913
(codified as amended at 44 U.S.C. § 3501 note (2006)). As provided by Vaccine Rule 18(b), each party
has 14 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).
2
  The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood
Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-
1 to -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.A. § 300aa.


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counsel due to health reasons. Pet. Status Report, filed May 4, 2015. Prior to withdrawal of his
representation, he has sought payment of interim attorneys’ fees and costs. Pet. Motion for
Interim Attorneys’ Fees and Costs; Pet. Amended Motion for Interim Attorneys’ Fees and Costs.
Respondent has objected based on her contention that petitioner has failed to show a reasonable
basis for his claim, and petitioner has filed a response to respondent’s objections. The
undersigned finds that petitioner has demonstrated a reasonable basis for his petition, and is
therefore entitled to an award of reasonable interim attorneys’ fees and costs.

   I.      Procedural History

         Petitioner filed a petition for compensation on November 1, 2013, wherein he alleged that
as a result of receiving the Gardasil vaccination on December 8, 2012, he developed MS.
Petition at Preamble. Pursuant to the initial order, petitioner was ordered to complete the filing
of his medical records by December 18, 2013, and to file an expert report by March 11, 2014.
Initial Order, December 11, 2013. Petitioner filed a Statement of Completion on December 12,
2013, and filed an amended petition on August 14, 2014, alleging that in addition to the Gardasil
vaccine he received on December 8, 2012, Hepatitis A and Influenza vaccines administered the
same day also contributed to the development of his MS. Amended Petition at Preamble.
Following four extensions of time, petitioner filed the expert report of Dr. David Axelrod on
September 11, 2014. Pet. Ex. 14. Dr. Axelrod, a clinical immunologist, opined that petitioner’s
vaccinations caused his MS. Id. In his report, Dr. Axelrod set forth a theory of how vaccines
could cause petitioner’s MS by applying a “consensus approach” developed by Dr. Frederick
Miller to determine the plausibility of assigning causality of a disorder to environmental factors.
Id. at 1-2. In addition, Dr. Axelrod noted an appropriate temporal association between
vaccination and the onset of petitioner’s symptoms, and noted that he did not find an alternative
explanation for petitioner’s disorder. Id. at 2-3.

         On January 26, 2015, respondent filed her Rule 4(c) report stating that the case was not
appropriate for compensation due to petitioner’s failure to provide “a sufficient medical opinion
or theory establishing a causal link between his vaccinations and his alleged injury.” Resp. Rule
4(c) Report at 7. Respondent did not assert that there was a lack of reasonable basis to file the
claim. Along with her Rule 4(c) report, respondent also filed the expert report of Dr. Soe Mar, a
neuro-immunologist. Resp. Ex. A. Dr. Mar opined that petitioner does not meet the diagnostic
criteria for MS, and that he more likely suffered from radiographically isolated syndrome
(“RIS”) and migraine headaches that predated the December 8, 2012, vaccinations. Id. at 4-5, 8-
9.

        Following a status conference on March 9, 2015, the court ordered petitioner to file a
supplemental expert report and updated medical records addressing: (1) whether petitioner had
MS or RIS; (2) whether petitioner’s lesions pre-dated the receipt of the vaccine; (3) whether
petitioner has ongoing symptomatology related to his diagnosis; and (4) whether additional
medical records exist to support petitioner’s claim of a chronic condition. Order, filed Mar. 9,
2015.

       On March 30, 2015, petitioner requested an extension of time to obtain the opinion of a
neurologist because Dr. Axelrod, an immunologist, did not feel able to address the specific


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neurological issues raised in the court’s order. Pet. Status Report, filed Mar. 30, 2015. Shortly
thereafter, on May 4, 2015, petitioner filed a status report indicating that his attorney was
withdrawing as counsel and that he would informally submit an interim fee request to
respondent’s counsel. Pet. Status Report, filed May 4, 2015.

        Petitioner filed a second report from Dr. Axelrod on May 6, 2015, which did not respond
to the questions raised in the March 9, 2015, status conference. See Pet. Ex. 42. Petitioner also
filed additional medical records on June 1, 2015. These medical records included the results of
an examination by Suzanne Brown DO and a brain MRI performed May 26, 2015. See Pet. Ex.
46, 47. On July 22, 2015, petitioner filed a motion for interim attorneys’ fees and costs.
Petitioner filed an amended motion for interim attorneys’ fees and costs on October 7, 2015.

   II.     Analysis

           A. Attorneys’ Fees and Costs: Good Faith and Reasonable Basis

        Section 15(e) of the Vaccine Act governs attorneys’ fees. 42 U.S.C. § 300aa-15(e).
When awarding compensation on a petition, the special master “shall also award” reasonable
attorney’s fees and costs. Id. at §15(e)(1)(A)-(B). Even when compensation is not awarded, the
special master “may award” reasonable attorneys’ fees and costs “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.” Id. at § 15(e)(1). Respondent does not challenge that
petitioner’s claim was filed in good faith. Resp. Opposition to Pet. App. for Interim Attorneys’
Fees and Costs at 7 (“Resp. Opp”). Therefore, the only question at issue is whether petitioner
had reasonable basis to pursue his claim.

           B.   Reasonable Basis

         The Vaccine Act does not define “reasonable basis,” and case law in the Federal Circuit
does not address how courts should interpret the Vaccine Act’s reasonable basis standard. Silva
v. Sec’y of Health & Human Servs., 108 Fed. Cl. 401, 402 (Fed. Cl. 2012). However, the Court
of Federal Claims has held that the statutory language of 42 U.S.C. § 300aa-15(e)(1)(B) grants
the special master “maximum discretion in applying the standard.” Id. at 402. Accordingly, the
term has been interpreted differently at various points during the history of the Vaccine Program.
See Silva v. Sec’y of Health & Human Servs., 2012 WL 2890452, *9 (Fed. Cl. Spec. Mstr. June
22, 2012) (summarizing the special masters’ treatment of the meaning of “reasonable basis” over
time). The court has historically been “quite generous” in finding a reasonable basis, and in
recent years the term has been liberally interpreted to foster payment of attorneys’ fees. Turpin
ex rel. v. Sec’y of Health & Human Servs., 2005 WL 1026714, *2 (Fed. Cl. Spec. Mstr. Apr. 26,
2005); Silva, 2012 WL 2890452 at *12.

        While the burden is on petitioner to affirmatively demonstrate a reasonable basis,
“petitioner need not establish entitlement to compensation, or even that a claim is likely to
succeed.” McKellar v. Sec’y of Health & Human Servs., 2012 WL 362030, *6-7 (Fed. Cl. Spec.
Mstr. Jan 13, 2012) (reversed on other grounds). In determining reasonable basis, the court
looks “not at the likelihood of success, but more to the feasibility of the claim.” Di Roma v.


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Sec’y of Health & Human Servs., 1993 WL 496981, *1 (Fed. Cl. Spec. Mstr. Nov. 18, 1993).
Indeed, while petitioner must furnish “some evidence” supporting the claims in the petition, the
evidentiary showing is less than a preponderance of the evidence. Chusiano v. Sec’y of Health
& Human Servs., 2013 WL 6234660, *1, 13 (Fed. Cl. Spec. Mstr. Oct. 25, 2013).

        The reasonable basis requirement is an objective standard based upon an evaluation of
the totality of circumstances. Mckellar v. Sec’y of Health & Human Servs., 101 Fed. Cl. 297,
303 (Fed. Cl. 2011) (citing Hamrick v. Sec’y of Health & Human Servs., 2007 WL 4793152, *4
(Fed. Cl. Spec. Mstr. Jan. 9, 2008)). To determine reasonable basis, courts have considered
factors including “factual basis, medical support, jurisdictional issues, and the circumstances
under which a petition is filed.” Hiland v. Sec’y of Health & Human Servs., 2015 WL 4985247,
*2 (Fed. Cl. Spec. Mstr. July 31, 2015) (citing Turner v. Sec’y Health & Human Servs., 2007
WL 4410030, *6 (Fed. Cl. Spec. Mstr. Nov. 30, 2007).

         Claims have been found to lack reasonable basis where there is a complete lack of factual
or medical support submitted in support of the claim, or there are other serious problems with the
underlying medical or factual support. See,e.g. Brown ex rel. Brown v. Sec’y of the Dept. of
Health & Human Servs., 2005 WL 1026713, *2 (Fed. Cl. Spec. Mstr. Mar. 11, 2005) (no
reasonable basis where there were “[n]o medical records . . . filed whatsoever. No analysis either
by a medical expert or by a treating physician has been filed. Based on the dearth of evidentiary
filings, no record has been presented under which a special master could find that the petitioner
was even injured.”); Murphy v. Sec’y of Health & Human Servs., 30 Fed. Cl. 60, 62 (Fed. Cl.
1993) (no reasonable basis where the medical and other written records contradicted the claims
in the petition, and the expert opinion submitted was based on this unreliable version of facts);
Perreira v. Sec’y of Health & Human Servs., 33 F.3d 1375, 1377 (Fed. Cir. 1994) (an expert
report “grounded in neither medical literature nor studies” that was simply “unsupported
speculation” did not provide a reasonable basis).

           C.    Reasonable Basis for Petitioner’s Claim

         In this case, respondent asserts that there are “crucial gaps” in petitioner’s claim, and that
“petitioner has not and cannot satisfy Althen prongs 2 and 3.” Resp. Opp. at 16. Respondent
states that “although petitioner has submitted an expert report, Dr. Axelrod has not addressed the
court’s specific questions [posed in the March 9, 2015, Order] regarding petitioner’s correct
diagnosis, whether petitioner’s lesions are in an area of his brain that would produce the speech
disturbance that manifested in early January 2013, or whether petitioner’s lesions could have pre-
existed petitioner’s December 8, 2012 vaccinations.” Id. Respondent also asserts that petitioner
has failed to establish that he suffered six months of residual symptoms, as required by the Act,
because “[p]etitioner’s speech disturbance resolved on January 18, 2013, and he has not reported
any similar persisting symptoms.” Id. Respondent notes that petitioner consulted with at least
two neurologist but “notably refrained” from offering the opinion of either one to address the
gaps. Id. The foregoing objections bear on the ultimate merit of the claim, rather than whether
there is a reasonable basis for the claim. However, as described above, the standard for finding a
reasonable basis is significantly lower than the standard for finding entitlement. In fact,
petitioner need not even establish that a claim is likely to succeed. McKellar, 2012 WL 362030,
*6-7. Thus, the fact that petitioner has not yet fully addressed the questions raised in the March


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9, 2015 status conference and has not yet demonstrated entitlement to compensation does not
demonstrate a lack of reasonable basis so long as there is “some evidence” supporting his claims.
Chusiano, 2013 WL 6234660, at *1. Claims of the relationship between vaccines and
demyelinating diseases, including MS, are frequently seen in this court with varying opinions on
both sides as to causation, including immunology opinions similar to that submitted by Dr.
Axelrod.

        The March 9, 2015, Order set forth several issues that “needed to be addressed in light of
the expert reports from both parties and respondent’s Rule 4(c) Report.” Order, filed Mar. 9,
2015, at 1. However, despite the fact that the court identified several issues requiring
clarification, this is not a case that is so devoid of factual or medical support as to lack a
reasonable basis. While petitioner’s claim may not be “likely to succeed” should he fail to
address these questions in the future, petitioner has already submitted two expert reports from
Dr. Axelrod, a qualified immunologist, which set forth a basis for a connection between the
administration of vaccines and MS. See Pet. Ex. 14, 42. In addition, petitioner has
supplemented the record with medical reports that tend to support his claim and address some of
the issues raised in the status conference order. See Pet. Ex. 15-39, 43-45. Dr. Axelrod was
unable to address the court’s more specific questions posed after the March 9, 2015 status
conference because he is not a neurologist. Accordingly, as respondent observes, petitioner’s
counsel consulted with at least two neurologists. The fact that petitioner’s counsel ultimately did
not submit an opinion from a neurologist is likely due to the fact that his sudden withdrawal as
counsel is due to health reasons, and he was not in a position to follow through on obtaining such
a report. He did however, arrange for capable counsel to take over the file and to further develop
the claim.

        In addition, on June 1, 2015, petitioner filed additional medical records which included
the results of an examination by Suzanne Brown DO and a new brain MRI performed May 26,
2015. See Pet. Ex. 46, 47. These records address the questions—raised in the March 9, 2015
status conference—of whether petitioner suffered an isolated or chronic event after his
vaccination, and whether he currently suffers from residual symptoms. The examination
performed by Suzanne Brown provides some evidence that petitioner continues to suffer residual
symptoms. Her assessment report from May 21, 2015, states that there has been “some
numbness of his right thigh and foot,” and notes “[i]nattention and memory issues” and “reported
cognitive impairments that have caused him to withdraw from college.” Pet. Ex. 46 at 2, 4. The
brain MRI performed May 26, 2015, supports petitioner’s contention that he suffers from MS,
rather than RIS. The MRI showed a lesion 6 cm in maximal diameter with 4 mm focus of
abnormal solid enhancement in the left precentral gyrus. Pet. Ex. 47. The radiologist reported
that this lesion is a new lesion since the exam on December 7, 2013, and makes considerably
more likely the diagnosis of MS as opposed to a clinically isolated syndrome. Id.

        Petitioner has submitted the expert opinion of a qualified immunologist, has
supplemented the record with medical reports relevant to his claim, and has submitted medical
records that support his assertion that he has suffered six months of residual symptoms. The
most recent records, in particular the brain MRI, appear to support the diagnosis of MS rather
than a clinically isolated syndrome. Accordingly, petitioner has shown a reasonable basis for the



                                                 5
filing of this petition. Respondent has not asserted that this petition was not filed in good faith,
so the requested fees and costs are granted.

    I.      Conclusion

        On July 22, 2015, counsel for petitioner, in contemplation of his withdrawal as counsel,
submitted an initial fee petition claiming attorney’s fees of $28,755.00 costs paid by counsel of
$1,579.11, costs paid by petitioner of $3,400.00, and unpaid costs of $1,507.50. Subsequently,
on October 7, 2015, counsel submitted an amended petition claiming an additional $4,680.00 in
attorneys’ fees for time spent since the initial fee petition as well as additional costs of $9,480.00
which represented the time billing of Sylvia Chin Caplan who is the successor attorney on this
case and whose billing represented her time spent in preparing a brief in reply to respondent’s
brief objecting to the payment of attorney’s fees.

       Counsel has claimed an hourly rate of $300 an hour which is reasonable given his years
of experience and long standing work in this program. He has also submitted detailed time
records for the claimed hours. I find that the fees claimed in the initial fee petition are
reasonable. However, the attorneys’ fees claimed for Mr. Gallagher in the supplemental petition
appear to be somewhat excessive given his planned exodus from the case. Accordingly, I will
reduce that request to $3,000.

        Finally, the billing of Ms. Chin Caplan’s attorney time as unpaid costs will not be
awarded as costs at this time. This bill may be resubmitted by her at the conclusion of this case
as part of her claim for attorneys’ fees in the case.

         Accordingly, an award shall be made as follows:

         (1) in the form of a check jointly payable to petitioner and petitioner’s attorney,
             Thomas Gallagher, in the amount of $34,841.61 for attorneys’ fees and costs
             paid by counsel.

         (2) in the form of a check payable to petitioner, Matthew Ruppert, for $3,400.00 as
             reimbursement for costs paid by him.

       In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court SHALL ENTER JUDGMENT in accord with this decision.3


IT IS SO ORDERED.

                                                          s/ Thomas L. Gowen
                                                          Thomas L. Gowen
                                                          Special Master


3
  Pursuant to Vaccine Rule 11 (a), the parties can expedite entry of judgment by each party filing or by
jointly filing a notice renouncing the right to seek review.

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