Denial of Fees-No Basis to Claim


Livingston v. HHS, Case No. 12-268V (Fed. Cl. Spec. Mstr. Jun.26, 2015) (Corcoran)

This case was previously dismissed after an exhaustive inquiry revealed that the child had not actually received the Rotateq vaccine as the parents believed, but rather Rondec, a prescription cough and cold medicine.  The child was alleged to have been administered this dose of Rotateq shortly after his second birthday, which would have been contraindicated at that age. The case was filed pro se, but then Petitioner obtained counsel shortly thereafter.

Respondent opposed an award of fees and costs, arguing that a reasonable basis was absent from the start, without a resolution of the threshold issue of proof of vaccine receipt.

In denying fees and costs altogether, the Court focused on the experience of vaccine counsel and the fact that the proof of vaccination was absent from the time counsel entered an appearance in the case.  Although suggesting that a partial award of fees and costs would be appropriate in some cases where proof of vaccination were never to be obtained, the Court held that such was not called for in this case because counsel was not efficient and diligent in addressing the vaccination issue from the outset.  Rather, the case proceeded for some eighteen months while counsel obtained general medical records as opposed to focusing on the missing vaccine record.  Further, the Court held that a pre-appearance investigation should have been conducted to ascertain whether a vaccine record could be located.  According to the Court, counsel should have contacted the physician’s office prior to appearing in the case, and if this effort had been unavailing, then “[f]ocused, limited discovery on the topic might have resolved the issue in a few months.”

The Court rejected the argument that an attorney’s obligation to “zealously” pursue his client’s claim justified the investigatory efforts in the case. “Even if Vaccine Program counsel are properly expected to do all in their power to advance their client’s claim, such efforts must serve an honest analysis of the claim’s strengths and weaknesses. . . An inefficient and unfocused investigation into the bases for a claim is not justified by the desire to serve the client.”

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