Review of Recent Cases – Attorney Fees; Entitlements; Damages


Attorney Fees

Reasonable Basis

Alicock v. HHS, (Fed. Cl. Nov. 9, 2016) (Wheeler, J)

Denial of motion for review filed by HHS.  SM had awarded fees and costs in a claim for significant aggravation of developmental delay. According to mom, treating physician told her there was encephalopathy possibly caused by vaccination.  Medical records included encephalopathy diagnosis, but no attribution to vaccine.  Petitioner promptly dismissed claim shortly after medical records were filed and after SM noted that reasonable basis was in doubt at a status conference.  On review, the judge found the SM decision was not clearly erroneous and not an abuse of discretion. HHS is appealing to the Circuit.

Simmons v. HHS, (Fed. Cl. Oct. 10, 2016) (Firestone, J)

CFC granted HHS’ motion for review of a finding of reasonable basis.  Petitioner first retained firm in 2011 with a flu/GBS case.  Petitioner then disappeared and was discharged by the firm after 20 attempts to contact the client.  Petitioner resurfaced 9 days before the expiration of the SOL and agreed to comply with firm.  The firm filed a bare bones petition with no records and Petitioner was never heard from again.  The case was dismissed for lack of prosecution. SM awarded fees and costs noting it would have been unethical not to file petition. Judge Firestone held that the SM erred, as no evidence was ever produced in support of the claim.  She reasoned that reasonable basis requires that petitioners and counsel make some effort to establish the fact of vaccination and an injury linked to the vaccine. The short SOL did not excuse counsel’s obligation to show some evidence for the claim beyond a conversation with Petitioner.  This case is also on appeal to the Circuit.

Foxx v. HHS, (Fed. Cl. Spec. Mstr. Dec. 21, 2016) (Roth, SM)

Reasonable basis existed where counsel substituted in for pro se petitioner several months after case had been filed, requested and filed outstanding medical records and promptly dismissed the claim one month later after realizing the records did not support the claim.  The SM noted that counsel’s involvement helped all parties in the case and sped the resolution of the claim.

Hourly Rates

Anthony v. HHS, (Fed. Cl. Spec. Mstr. Dec. 15, 2016) (Moran, SM)

Cheyenne, WY attorney not entitled to McCulloch rates under Davis exception, because difference in rates of 50% was “very significant.”  Local rates awarded.  SM used BLS inflation rate of 2.6% instead of RRR used in McCulloch.


L.A.M. v. HHS, (Fed. Cl. Spec. Mstr. Jan 31, 2017) (Millman, SM)

In this Gardasil-POTS/CFS/UCTD case, Petitioner had filed the expert report of Yehuda Shoenfeld espousing his ASIA causation theory.  In response, HHS filed FIVE expert reports: immunology, toxicology, pediatric rheumatology, pediatric neurology and pediatrics/immunology.

The Court found that the vast majority of Petitioner’s symptoms were conversion, but all agreed that she had been correctly diagnosed with POTS.  The Court held there was no proof that Gardasil could cause non-autoimmune POTS and, in any event, the onset was too long.  The Court reached the same conclusions with regard to CFS.

The Court considered Petitioner’s UCTD diagnosis, and held that all three Althen prongs were not satisfied.  In particular, the court emphasized a study which found that people who develop autoimmune disorders typically have autoantibodies for many years before they develop symptoms.

Escalera v. HHS, (Fed. Cl. Spec. Mstr. Nov. 23, 2016) (Hamilton-Fieldman, SM)

Ruling on the record (agreed to by both parties) finding entitlement in a DTaP/Hib – celiac case.  Interesting decision discussing the “Miller criteria” to establish the plausibility of an environmental exposure as the cause of a disease.

D’Tiole v. HHS, (Fed. Cl. Spec. Mstr. Nov. 28, 2016) (Corcoran, SM)

SM granted HHS’ motion for ruling on record and denied entitlement in a flu/narcolepsy case.  The case was decided without a hearing over Petitioner’s objection.  The Vaccine Act and Rules not only contemplate but encourage special masters to decide petitions on the papers rather than via evidentiary hearing, where (in the exercise of their discretion) they conclude that the former means of adjudication will properly and fairly resolve the case. Section 12(d)(2)(D); Vaccine Rule 8(d).  Moreover, the medical theory was not sufficiently reliable where premised on the European version of the vaccine which, although associated with narcolepsy, was significantly different in its composition.

K.O. v. HHS, Fed. Cl. Spec. Mstr.  Jan. 3, 2017) (Moran, SM)

Denial of entitlement in Pneumococcal/OMS case.  SM held that molecular mimicry theory was not automatically persuasive merely because it holds true for some vaccines and some conditions, noting that Petitioner could have closed the analytical gap in his theory by presenting evidence of homology between the PCV vaccine and brain proteins.


Day v. HHS, (Fed. Cl. Dec. 7, 2106) (Wolski, J)

CFC denied HHS’ motion for review of an interim damages decision.  HHS agreed that Petitioner should be awarded $250,000 pain and suffering, but disagreed that interim damages are permissible under the Act.  The reviewing judge held that the CSM had reasonably interpreted the Vaccine Act to allow for an award of interim damages.  Although HHS initially appealed this decision to the Circuit, the Secretary dismissed the appeal prior to briefing.

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