Malloy v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 21-1153V

Filed: February 11, 2025

* * * * * * * * * * * * * * *

MADELYN MALLOY, *

*

Petitioner, *

*

v. *

*

SECRETARY OF HEALTH *

AND HUMAN SERVICES, *

*

Respondent. *

* * * * * * * * * * * * * * *

Andrew Downing, Esq., Downing, Allison & Jorgenson, Phoenix, AZ, for petitioner.

Alexis Babcock, Esq., U.S. Dept. of Justice, Washington, DC, for respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS1

Roth, Special Master:

On April 2, 2021, Madelyn Malloy (“Ms. Malloy” or “petitioner”) filed a petition for

compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10,

et seq.2 (“Vaccine Act” or “Program”).3 Petitioner alleged that she developed “new food

hypersensitivities, POTS and autonomic dysfunction” as a result of the Gardasil4 vaccines she

received on June 26, 2018, August 17, 2018, and December 20, 2018. Petition, ECF No. 1. On

December 28, 2021, petitioner elected to withdraw her petition after the expiration of the 240-day

statutory period and now seeks an award of attorneys’ fees and costs. ECF Nos. 13, 19.

After careful consideration, petitioner’s Motion for Attorneys’ Fees and Costs is granted

1

Because this Decision contains a reasoned explanation for the action taken in this case, it must be made publicly

accessible and will be posted on the United States Court of Federal Claims' website, and/or at

https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002.

44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government Services). This means

the Decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b),

Petitioner has 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 finds that the identified material fits

within this definition, such material will be redacted from public access.

2

National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (1986). Hereinafter, for ease of

citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).

3

The petitioner states that petitioner is “statutorily compelled to initiate this claim prior to pursuing a cause of action

against Merck directly. 42 U.S.C. § 300aa-11(a)(2).”

4

Gardasil is a brand name for the human papillomavirus (“HPV”) vaccine.

for the reasons set forth below.

I. Background

The petition filed on April 2, 2021, alleged that petitioner’s “new food hypersensitivities,

POTS and autonomic dysfunction were caused-in-fact by the Gardasil vaccinations”. Petition, ECF

No. 1. Petitioner filed medical records on April 15, 2021. Petitioner’s Exhibit (“Pet. Ex.”) 1-7,

ECF No. 6. The case was assigned to the undersigned on September 29, 2021, after completing

the Pre-Assignment Review (“PAR”) process. ECF No. 10.

On November 30, 2021, the undersigned issued a notice indicating that the statutory 240-

day period for the special master’s issuance of a decision in this case had expired. ECF No. 13. On

December 28, 2021, petitioner filed a Notice of Intent to Withdraw her Petition pursuant to §300aa-

21(b) and requested that the Court issue an order concluding proceedings. ECF No. 14. An order

concluding proceedings was entered on December 29, 2021. ECF No. 15. Thereafter, petitioner

filed additional medical literature. Pet. Ex. 8-12, ECF No. 18.

On January 28, 2022, petitioner filed a Motion for Attorneys’ Fees and Costs seeking

$7,957.79, representing $7,175.505 in attorneys’ fees and $782.29 in costs. Motion for Fees, ECF

No. 19. Respondent filed a response on February 8, 2022, arguing that petitioner lacks a reasonable

basis for her claim and did not file or maintain the claim in good faith, and is therefore not entitled

to an award of attorneys’ fees and costs. Response, ECF No. 20. Petitioner filed a reply on February

15, 2022. ECF No. 21.

On March 2, 2022, petitioner filed a supplemental Motion for Attorneys’ Fees and Costs,

seeking an additional $2,626.00 in attorneys’ fees to account for additional attorney’s fees incurred

since the original Motion. Supp. Motion for Fees, ECF No. 22. Petitioner requests a total of

$10,583.79 in attorneys’ fees and costs. Id. Respondent did not file a response to the supplement.

On June 7, 2022, petitioner filed a Notice of Supplemental Authority, citing the decision

in Wingerter on behalf of H.W. v. Sec’y of Health & Human Servs., No. 20-1408V, 2022 WL

1843522 (Fed. Cl. Spec. Mstr. May 17, 2022), stating that the decision addressed respondent’s

position and determined it lacked merit. ECF No. 24.

On August 17, 2022, petitioner filed a Transfer Order from the United States Judicial Panel

on Multidistrict Litigation, explaining that the “Judicial Panel recognized that Plaintiffs in all

involved actions exhausted the Vaccine Act claim process as a prerequisite to filing suit against

Merck” and granted consolidation of the cases into a multidistrict litigation. ECF No. 26.

On December 9, 2022, petitioner contemporaneously filed a Notice of Additional Authority

and an article that she stated was “additional, newly published authority” related to Gardasil. Pet.

Ex. 136, ECF No. 27; ECF No. 28.

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In the body of petitioner’s Motion, she requests $7,174.50 in attorneys’ fees, but the billing records show a total of

$7,175.50 in attorneys’ fees. See Motion for Fees, Ex. A at 8.

6

Jesper Mehlsen et al., Autoimmunity in patients reporting long-term complications after exposure to human

papilloma virus vaccination, J. AUTOIMMUNITY (2022), filed as “Pet. Ex. 15.”

2

II. Entitlement to Attorneys’ Fees and Costs

The Vaccine Act permits fees in unsuccessful cases where appropriate, including in cases

that are terminated without final resolution such as here. This is in keeping with the Program’s

goal of ensuring that petitioners have adequate assistance from counsel when pursuing their claims.

H.R. REP. NO. 99-908, at 22 reprinted in 1986 U.S.C.C.A.N. 6344, 6363; see also Sebelius v.

Cloer, 133 S.Ct. 1886, 1895 (2013) (discussing this goal when determining that attorney’s fees

and costs may be awarded even when the petition was untimely filed). There is a threshold

requirement for fees under such circumstances, however – petitioners must demonstrate “that the

petition was brought in good faith and there was a reasonable basis for the claim for which the

petition was brought.” Section 15(e)(1). However, fees can still be adjusted or denied entirely even

where reasonable basis is established.

The Federal Circuit has explained that the relevant analysis involves two distinct inquiries:

(1) a subjective one assessing whether the petition was brought in good faith and (2) an objective

one ascertaining whether reasonable basis for the petition existed. Cottingham v. Sec'y of Health

& Human Servs., 971 F.3d 1337, 1344 (Fed. Cir. 2020) (“Good faith is a subjective test, satisfied

through subjective evidence”); Turner v. Sec’y of Health & Human Servs., No. 99-0544V, 2007

WL 4410030, at *5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007) (“[T]he ‘good faith’ requirement . . .

focuses upon whether petitioner honestly believed he had a legitimate claim for compensation.”);

Simmons v. Sec’y of Health & Hum. Servs., 875 F.3d 632, 635 (Fed. Cir. 2017) (quoting Chuisano

v. Sec’y of Health & Hum. Servs., 116 Fed. Cl. 276, 289 (2014)) (addressing the objective

requirements of reasonable basis).

Good faith is a subjective standard. Simmons, 875 F.3d at 635. Simply put, good faith is

“whether petitioner honestly believed he had a legitimate claim for compensation.” Turner v. Sec’y

of Health & Hum. Servs., No. 99-544V, 2007 WL 4410030, at *5 (Fed. Cl. Spec. Mstr. Nov. 30,

2007. As a result, a petitioner’s mere belief in the legitimacy of a vaccine claim can supply the

required good faith – no matter how factually misplaced that belief may be. See Atjian, 2022 WL

17587757, at *5-6 (discussing good faith extensively).

“Reasonable basis … is an objective test, satisfied through objective evidence.”

Cottingham, 971 F.3d at 1344. The reasonable basis requirement examines “not at the likelihood

of success [of a claim] but more to the feasibility of the claim.” Turner, 2007 WL 4410030, at *6

(quoting Di Roma v. Sec’y of Health & Human Servs., No. 90-3277V, 1993 WL 496981, at *1

(Fed. Cl. Spec. Mstr. Nov. 18, 1993)). As noted in prior cases, reasonable basis is a lenient

standard. Hughes v. Sec’y of Health & Human Servs., No. 16-930V, 2021 WL 6621169, at *3

(Fed. Cl. Spec. Mstr. Dec. 29, 2021) mot. for rev. denied, 154 Fed. Cl. 640 (2021). Citing the prima

facie elements of a successful claim described in Section 11(c)(1), the Federal Circuit recently

instructed that the level of the objective evidence sufficient for a special master to find reasonable

basis should be “more than a mere scintilla but less than a preponderance of proof.” Cottingham,

971 F.3d at 1345-46. A recent attempt to clarify what quantifies a “scintilla” looked to the Fourth

Circuit, which characterized “more than a mere scintilla of evidence” as “‘evidence beyond

speculation that provides a sufficient basis for a reasonable inference of causation.’” Cottingham

3

v. Sec’y of Health & Human Servs., 154 Fed. Cl. 790, 795 (2021) (quoting Sedar v. Reston Town

Ctr. Prop., LLC, 988 F.3d 756, 765 (4th Cir. 2021)).

III. Parties’ Arguments

A. Petitioner’s Motion

Petitioner argued that she was statutorily compelled to initiate this claim prior to pursuing

a cause of action against the vaccine manufacturer directly. Motion for Fees at 1. When the Court

did not act on petitioner’s case within 240 days, she opted to withdraw her claim from the Vaccine

Program. This did not change the fact that the claim was filed with a good faith reason for believing

the vaccination was the trigger for petitioner’s injuries and that a reasonable basis existed for

submitting the claim. Id. at 1-2.

Petitioner argued that the existence of good faith in filing the claim is evidenced by

petitioner’s affidavit stating her belief that she was injured by the Gardasil vaccine. Motion for

Fees at 2. Further, petitioner chose to withdraw her petition for the purpose of pursuing her claim

against the manufacturer directly. Id. Regarding reasonable basis, petitioner argued that her

medical chart supports the causal connection between vaccination and the injury claimed. Id. at 3.

Referencing the medical record, petitioner stated that she experienced periodic

lightheadedness and dizziness after she received the first Gardasil vaccine on June 26, 2018, “but

did not really think anything about it.” Motion for Fees at 3 (citing Pet. Ex. 1 at 1). After the second

Gardasil vaccine on August 17, 2018, the lightheadedness worsened, and she began feeling weak

and fatigued. Id. The dizziness, weakness, and fatigue continued to worsen after she received the

third Gardasil vaccine on December 20, 2018. Motion for Fees at 3 (citing Pet. Ex. 1 at 2).

Petitioner described an episode at a restaurant on March 3, 2019, when she “felt her whole

body drop.” Her arms and legs were weak, her heart was pounding, she could not swallow, and

she was shaking. She turned pale and gray with redness on her chest and neck, and was transported

to the hospital by ambulance, where the doctors concluded she most likely experienced a food

allergy attack. She had never had food allergies prior. Motion for Fees at 3 (citing Pet. Ex. 1 at 2-

3). As her symptoms continued, petitioner underwent various testing and was diagnosed with

orthostatic intolerance/postural orthostatic tachycardia syndrome (“POTS”). She continues to deal

with these symptoms and still suffers from severe anxiety. Motion for Fees at 4 (citing Pet. Ex. 1

at 7; Pet. Ex. 7 at 27, 32).

Petitioner alleged that her injuries were caused-in-fact by all three Gardasil vaccines, and

her worsening after each in the series is evidence of re-challenge. The Institute of Medicine has

determined that “re-challenge is strongly probative of a causal relationship.” Motion for Fees at 4.

Further, she submitted that the symptoms she suffered are the same as those contained in the

Gardasil package insert as occurring post-vaccination. Id. (citing Pet. Ex. 9).

Finally, petitioner argued that she has a diagnosis of autonomic dysfunction with

confirmation of POTS, which is well-documented in the literature as related to the HPV vaccine.

Motion for Fees at 6 (citing Pet. Ex. 8-12).

4

B. Respondent’s Response

Respondent argued that petitioner lacks a reasonable basis for her claim and did not file or

maintain the claim in good faith; therefore, she is not entitled to attorneys’ fees and costs in this

matter. Response at 1.

Respondent argued it was apparent that the petition was filed solely to satisfy the statutory

requirement of filing a claim for a vaccine-related injury in the Program, so petitioner could then

exit the Program to pursue a civil suit. Response at 8-9. Respondent noted that prior to the 240-

day statutory deadline on November 30, 2021, petitioner “only filed a limited number of medical

records”, so the record in this case remained incomplete at the time of withdrawal and no attempts

were made to complete the record. Id. at 9. Thus, petitioner did not bring her petition in a good

faith attempt to adjudicate the case on the merits of the claim, but rather filed the petition “solely

as a step towards her ultimate goal of bringing a cause of action against Merck directly.” Id.

Regarding reasonable basis, respondent argued that petitioner’s claims lack reasonable

basis because the claims are unsubstantiated by petitioner’s medical records or a medical opinion.

Response at 10. First, while the claim alleged “food hyper insensitivity” and “autonomic

dysfunction”, the records do not demonstrate that she suffered symptomology consistent with these

conditions, nor was she ever diagnosed with autonomic dysfunction or food hypersensitivity by a

treating physician. Id. at 11. Respondent stated that the medical records show that petitioner

experienced anxiety related to an adverse reaction to a meal she consumed, and it was noted that

she was “not eating, crying a lot, had panic attacks, and ‘nightmares about anaphylaxis.’” Id.

Petitioner’s ultimate diagnosis was anxiety related to anaphylaxis; she was never diagnosed with

food hyper insensitivity or autonomic dysfunction. Thus, petitioner’s attorney “failed to use

reasoned judgment in determining whether to accept and pursue a claim as it relates to food hyper

insensitivity and autonomic dysfunction.” Id.

Further, petitioner was diagnosed with POTS on September 2, 2020, more than a year after

she received her third dose of the HPV vaccine. Response at 11 (citing Pet. Ex. 6 at 145). However,

none of her treating physicians have linked petitioner’s condition to the HPV vaccine, nor has

petitioner presented a medical theory causally linking the HPV vaccine to her alleged injuries. Id.

Additionally, petitioner has not offered evidence to establish that the onset of her alleged injuries

occurred in a timeframe within which vaccine causation could be ascribed. Id. at 11-12.

Respondent also noted that petitioner filed four pieces of medical literature after the

petition was withdrawn and proceedings concluded. Response at 12. He argued that “it is clear that

petitioner filed this literature solely for the purpose of attempting to support her request for

attorneys’ fees and costs.” Id. Respondent cited Goodgame, in which Judge Somers criticized the

petitioner’s counsel for filing literature with a fee application to support the reasonable basis of

the petition after the petitioner had already been dismissed. Id. at 12-13 (citing Goodgame v. Sec’y

of Health & Human Servs., No. 17-339V, 2021 WL 5365635 (Fed. Cl. Oct. 29, 2021)).

Respondent concluded that petitioner has not met her burden under the reasonable basis

analysis, because she failed to provide a reliable medical theory causally linking the HPV vaccine

to her alleged injury in general, failed to show that the HPV vaccine was the cause of her specific

5

injury, and failed to demonstrate a medically appropriate temporal relationship between her

vaccine and alleged injury to support find a causal association. Response at 13. Finally, respondent

added that finding reasonable basis and good faith in this case would thwart the Program’s goal,

which encourages petitioner’s attorneys to perform fundamental due diligence and pursue claims

that have some basis in fact, science, and law. Further, it would delay compensation for those cases

where petitioners intend to develop and litigate meritorious claims. Petitioner only used this Court

to reach the goal of bringing her action against Merck directly, and the request for fees and costs

should be denied. Id. at 13-14.

C. Petitioner’s Reply

Petitioner replied that respondent has already unsuccessfully raised these same arguments

in cases such as Thomas, Hoover, and more. Reply at 1-2; see Thomas v. Sec’y of Health & Human

Servs., No. 20-886V, 2021 WL 2389837, at *1 (Fed. Cl. Spec. Mstr. May 17, 2021), Hoover v.

Sec'y of Health & Human Servs., No. 20-1394V, 2021 WL 5575768 (Fed. Cl. Spec. Mstr. Nov. 1,

2021).

Petitioner argued that Congress did not contemplate nor does the Vaccine Program provide

absolute immunity for vaccine manufacturers, and therefore there is no basis to state that petitioner

is not within her rights to withdraw her petition and litigate against the manufacturer, and

respondent cannot point to anything in the statute to support the argument that petitioner must

litigate the claim to completion on the merits. Reply at 2-4, 6. Further, good faith does not require

a claim be continued through to an entitlement ruling, and if successful, through damages. Id. at

2-4. Petitioner cited to decisions in Hoover and Thomas to support his assertion that withdrawing

a petition at 240 days to pursue a civil action was explicitly contemplated by the Vaccine Act, and

the good faith requirement refers to petitioner’s belief that the vaccine caused her injury and not

his intention to litigate his claim to completion within the Program. Reply at 5-6 (citing Hoover,

2021 WL 5575768 at 8 (Fed. Cl. Spec. Mstr. Nov. 1, 2021) and Thomas, 2021 WL 2389837 at 7-

8 (Fed. Cl. Spec. Mstr. May 17, 2021)). Further, petitioner noted that the statute requires petitioners

to first file in the Vaccine Program before pursuing the vaccine manufacturer directly, and

petitioner has complied with that requirement. Id. at 6.

Further, petitioner submitted that petitioners are entitled to a presumption of good faith

absent direct evidence of bad faith, and if petitioner honestly believes she has suffered a vaccine

injury, then the good faith requirement is satisfied. Reply at 7. Petitioner argued that she clearly

believes she was injured by the Gardasil vaccine because she filed an affidavit to this point and

discussed her belief that the Gardasil vaccine caused or contributed to her injuries with her medical

providers, as supported by the medical records. Id.

Regarding reasonable basis, petitioner argued that her medical records consistently support

a causal connection between her injury and the Gardasil vaccines she received on June 26, 2018;

August 17, 2018; and December 20, 2018. Reply at 7-8. Petitioner stated that she suffers from

autonomic dysfunction, and cites to a note in her medical records from a section titled “Additional

Chief Complaints” that states “wants to discuss possible side effects from HPV vaccine.” Id. at 8

(citing Pet. Ex. 6 at 70). She referred to the discussion of re-challenge in her Motion, noting that

6

given her condition worsened after each dose of Gardasil, “re-challenge is strongly probative

evidence for causation, so it definitely supports reasonable basis.” Id.

Petitioner argued that the medical literature supports that she has a “probable injury from

Gardasil.” Reply at 9. Specifically, petitioner suffered nine out of the ten major symptoms

associated with Gardasil vaccine as listed in the Ozawa7 criteria, and having five or more of these

symptoms would place an individual in the clinical category of having a “probable” injury. Id. She

argued a probable injury from Gardasil is “well above the scintilla test for reasonable basis for

bringing a claim in the first place.” Id.

Petitioner then discussed respondent’s citation to Goodgame v. Sec’y of Health & Human

Servs., No. 17-339V, 2021 WL 5365635 (Fed. Cl. Oct. 29, 2021). Reply at 9. Petitioner argued

that the circumstances in Goodgame, where the Court was critical of counsel filing medical

literature to support a fee application after entitlement was determined on the merits, are different

than those in the instant matter, where petitioner’s claim was withdrawn at the 240-day mark. Id.

at 9-10. Petitioner asserted that, even with these circumstances aside, the logic in Goodgame is

“markedly unsound”, because compensation to petitioner is not closed until attorneys’ fees and

costs are resolved. Id. at 10. Petitioner stated that it cannot be argued that petitioner cannot provide

any information in support of a Motion for Attorneys’ Fees and Costs, because it is considered a

separate motion from compensation and petitioner has the burden to support it at the time of filing.

Id. Further, petitioners always submit evidence that was not before the Court during the entitlement

stage at the time of a Motion for Attorneys’ Fees and Costs, such as billing invoices. Id. at 10-11.

Petitioner concluded that she received a covered vaccine in the Program and manifested

known vaccine-related symptoms following receipt of the vaccine that are documented in medical

literature and the product monograph, and reasonable basis therefore exists. Reply at 11.

Petitioners in the Program are entitled to representation by counsel and can exercise their statutory

rights to withdraw or dismiss their petition. To penalize them for doing so would constitute legal

error. Id. at 11-12. Petitioner made the decision to withdraw her petition as she is specifically

authorized to do, and the claim was brought in good faith and with a reasonable basis, so petitioner

is entitled to payment of attorneys’ fees and costs. Id. at 12.

IV. Fees Are Appropriate for This Matter

A. Good Faith

The claim had sufficient good faith, even if counsel expected to withdraw it before its

adjudication. Petitioner correctly stated that she “was statutorily compelled to initiate this claim

prior to pursuing a cause of action against [the vaccine manufacturer] directly.” Motion for Fees

at 1. She withdrew her petition eight months after filing and before the claim’s substantive basis

could be evaluated. As discussed in my decision in Hendrix, there are numerous detailed decisions

involving the same counsel alleging injuries related to the HPV vaccine, all of which were

withdrawn in accordance with the terms of the Vaccine Act and its Rules solely for the purpose of

7

Kazuki Ozawa et al., Suspected Adverse Effects After Human Papillomavirus Vaccination: A Temporal Relationship

Between Vaccine Administration and the Appearance of Symptoms in Japan, 40 DRUG SAFETY 1219 (2017), filed

as “Pet. Ex. 12.”

7

joining them with other similar cases against the vaccine manufacture pending in another forum.

The same issues and arguments presented herein have been addressed, and it has been concluded

that the withdrawal of a petitioner at the 240-day mark does not preclude a finding of good faith

and reasonable basis. See Hendrix v. Sec'y of Health & Human Servs., No. 20-868V, 2024 WL

1989031 (Fed. Cl. Spec. Mstr. Apr. 11, 2024); Atjian v. Sec’y of Health & Human Servs., No. 21-

1413V, 2022 WL 17587757, at *1 (Fed. Cl. Spec. Mstr. Oct. 18, 2022); Thomas v. Sec’y of Health &

Human Servs., No. 20-886V, 2021 WL 2389837 (Fed. Cl. Spec. Mstr. May 17, 2021).

Respondent argued that for a case to be brought in good faith, it must be brought “in an

attempt to adjudicate this case on the merits of the claim” in the Program. Response at 9. However,

the Chief Special Master rejected that definition in favor of petitioner’s definition of good faith,

which is the same as proposed herein, and found that good faith was satisfied simply because the

petitioner believed the vaccine was injurious. Atjian, No. 21-1413V, 2022 WL 17587757, at *5-*6;

see Motion for Fees at 2-3.

Here, petitioner’s affidavit and her report to a medical provider on November 26, 2019 that

she “want[ed] to discuss possible side effects from HPV vaccine” demonstrate that she believed

that the subject vaccines caused her symptoms. Pet. Ex. 6 at 70. Further, it is clear that petitioner

still believes she was injured by the Gardasil vaccines, because the petition was withdrawn for the

sole purpose of pursuing the claim against the vaccine manufacturer directly. Motion for Fees at

2. I find that this is sufficient to satisfy the standard for good faith.

B. Reasonable Basis

Respondent argued that the medical literature petitioner filed after the withdrawal of her

petition and in support of her Motion for Attorneys’ Fees and Costs should not be considered

supportive of reasonable basis because “it is clear that petitioner filed this literature solely for the

purpose of attempting to support her request for attorneys’ fees and costs.” Response at 12.

Respondent cited to Goodgame, where the Court declined to consider medical literature filed after

the Special Master denied entitlement to support a claim for attorneys’ fees. Id. at 12-13 (citing

Goodgame v. Sec’y of Health & Human Servs., No. 17-339V, 2021 WL 5365635 (Fed. Cl. Oct.

29, 2021).

This argument has already been addressed in Merino v. Sec'y of Health & Human Servs.,

No. 19-1723V, 2022 WL 16579475 (Fed. Cl. Spec. Mstr. Sept. 20, 2022). In that matter, the

Special Master reasoned that:

. . . [while] it is generally preferable for petitioners to file evidence before a decision

on the merits, especially if such evidence will assist in the prosecution of their

claim, there are instances where filing evidence during the fees stage may also be

appropriate. For example, in the case at bar, Petitioner decided to leave the Vaccine

Program in order to pursue a claim against the vaccine manufacturer. Under these

circumstances, it seems of little consequence whether she filed evidence in support

of her application for fees after I dismissed her case but before she requested

attorneys’ fees and costs. The evidence would not have assisted Petitioner in the

8

prosecution of her Vaccine Program claim because her intent was to exit the

program and file a civil action.

Merino, 2022 WL 16579575 at *9. Based on the similarities of the case herein and Merino, I apply

the same logic as the Special Master in Merino and find that filing evidence to support reasonable

basis during the fees stage is not improper under these circumstances. See id. Accordingly, I will

consider the medical literature petitioner filed in support of her claim for purposes of determining

reasonable basis.

Reasonable basis requires sufficient objective evidence to support the claim. Respondent

challenged reasonable basis, arguing that petitioner’s claim was not supported by either her

medical records or a medical opinion. Response at 10. He further submitted that petitioner was

never diagnosed with food hypersensitivities and autonomic dysfunction as alleged in her petition,

and while she was eventually diagnosed with POTS, it was not until over a year after she received

the third dose of Gardasil, and none of her treating physicians linked her condition to the

vaccinations. Id. at 11; Petition at 1.

While the evidence filed may have been insufficient for a ruling on entitlement in favor of

petitioner, a finding of reasonable basis requires a mere scintilla of objective evidence to support

a feasible claim—a burden that is much lower than the preponderance of evidence standard

required for entitlement. It is well-established that an expert report addressing causation is not

necessary to show that a claim had a reasonable basis. James-Cornelius v. Sec’y of Health &

Human Servs., 984 F.3d 1374, 1379-80 (Fed. Cir. 2021). Further, the Federal Circuit explained in

James-Cornelius that affidavits or sworn statements may provide objective evidence supporting a

claim in the Vaccine Program. Id. at 1380-81.

The petition alleges that petitioner developed new food hypersensitivities, POTS, and

autonomic dysfunction as a result of the Gardasil vaccines she received on June 26, 2018; August

17, 2018; and December 20, 2018. Petition at 3. In a sworn statement, petitioner affirmed that she

experienced lightheadedness following the first dose that worsened after the second dose and

included weakness and fatigue. Pet. Ex. 1 at 2. After the third dose, her dizziness, weakness, and

fatigue continued to worsen, and she began experiencing anaphylactic episodes. Id. Her medical

records indicate petitioner experienced symptoms including nausea, headache, abdominal pain,

and fatigue, which were consistent with the symptoms listed in the Gardasil package insert. Pet.

Ex. 2; Pet. Ex. 6 at 3, 12-13, 31-33, 54, 77, 84. Petitioner was ultimately diagnosed with POTS.8

Pet. Ex. 6 at 145, 129, 139; see Pet. Ex. 7 at 27.

Additionally, petitioner filed medical literature supportive of a causal connection between

POTS, dysautonomia, and orthostatic intolerance and the HPV vaccine. Pet. Ex. 89; Pet. Ex. 910;

8

A note from a medical visit on June 25, 2020 states “[h]istory is most consistent with non anaphylactic systemic

symptomatology with peppers, most likely secondary to vasomotor response to capsaicin, which may be exaggerated

given her known diagnosis of POTS.” Pet. Ex. 6 at 133.

9

Manuel Martinez-Lavin, Hypothesis: Human papillomavirus vaccination syndrome—small fiber neuropathy and

dysautonomia could be its underlying pathogenesis, 34 CLINICAL RHEUMATOLOGY 1165 (2015), filed as “Pet. Ex. 8.”

10

Louise S. Brinth et al., Orthostatic intolerance and postural tachycardia syndrome as suspected adverse effects of

vaccination against human papilloma virus, 33 VACCINE 2602 (2015), filed as “Pet. Ex. 9.”

9

Pet. Ex. 1011; Pet. Ex. 1112; Pet. Ex. 1213. Specifically, petitioner cited to the Ozawa article, which

outlines ten diagnostic criteria for suspected adverse effects after HPV vaccine, arguing that

petitioner experienced nine out of ten symptoms based on her medical records and sworn

statement. Reply at 8-9 (citing Pet. Ex. 1 at 2-3; Pet. Ex. 6 at 25, 67, 70, 128; Pet. Ex. 7 at 27); Pet.

Ex. 12.14 To prevail on entitlement, petitioner would have needed to provide evidence beyond her

sworn statement, the vaccine package insert, and medical literature. However, this evidence, taken

with the medical records filed and petitioner’s sworn statement, provide more than the “mere

scintilla” of evidence required to support a determination of reasonable basis. Thus, I find that the

claim was filed and maintained with a reasonable basis.

V. Attorneys’ Fees and Costs Calculation

A. Legal Standard

Counsel must submit fee requests that include contemporaneous and specific billing

records indicating the service performed, the number of hours expended on the service, and the

name of the person performing the service. See Savin v. Sec’y of Health & Human Servs., 85 Fed.

Cl. 313, 316-18 (2008). Counsel should not include hours in their fee requests that are “excessive,

redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517,

1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). It is “well within

the special master’s discretion to reduce the hours to a number that, in [her] experience and

judgment, [is] reasonable for the work done.” Id. at 1522. Furthermore, the special master may

reduce a fee request sua sponte, apart from objections raised by respondent and without providing

a petitioner notice and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86

Fed. Cl. 201, 209 (2009). A special master need not engage in a line-by-line analysis of petitioner’s

fee application when reducing fees. Broekelschen v. Sec’y of Health & Hum. Servs., 102 Fed. Cl.

719, 729 (2011). Rather, when assessing attorney’s fees and costs, the goal is to achieve a “rough

justice.” Fox v. Vice, 563 U.S. 826, 838 (2011).

B. Attorneys’ Fees

1. Reasonable Hourly Rates

Petitioner requests compensation based on the following rates: for attorney Andrew

Downing, $385 per hour for work performed in 2020 and 2021, and $415 for work performed in

2022; for attorney Courtney Van Cott, $275 per hour; and for paralegals Robert Cain and Danielle

Avery, $135 per hour. Motion for Fees, Ex. A; Supp. Motion for Fees, Ex. A. The requested rates

are reasonable and consistent with what has previously been awarded for work these individuals

11

Tomomi Kinoshita et al., Peripheral Sympathetic Nerve Dysfunction in Adolescent Japanese Girls Following

Immunization with the Human Papillomavirus Vaccine, 53 INTERNAL MED. 2185 (2014), filed as “Pet. Ex. 10.”

12

S. Blitshteyn, Postural tachycardia syndrome following human papillomavirus vaccination, 21 EUR. J. NEUROLOGY

135 (2013), filed as “Pet. Ex. 11.”

13

Ozawa et al., supra note 7.

14

Id.

10

have performed in other cases.15 See Hendrix, No. 20-868V, 2024 WL 1989031; Atjian, No. 21-

1413V, 2022 WL 17587757.

2. Hours Reasonably Expended

Attorneys’ fees are awarded for the “number of hours reasonably expended on the

litigation.” Avera, 515 F.3d at 1348. Counsel should not include in their fee requests hours that are

“excessive, redundant, or otherwise unnecessary.” Saxton ex rel. Saxton v. Sec’y of Health &

Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424,

434 (1983)). “Unreasonably duplicative or excessive billing” includes “an attorney billing for a

single task on multiple occasions, multiple attorneys billing for a single task, attorneys billing

excessively for intra office communications, attorneys billing excessive hours, [and] attorneys

entering erroneous billing entries.” Raymo v. Sec’y of Health & Human Servs., 129 Fed. Cl. 691,

703 (2016). While attorneys may be compensated for non-attorney-level work, the rate must be

comparable to what would be paid for a paralegal. O’Neill v. Sec’y of Health & Human Servs., No.

08-243V, 2015 WL 2399211, at *9 (Fed. Cl. Spec. Mstr. Apr. 28, 2015). Clerical and secretarial

tasks should not be billed at all, regardless of who performs them. McCulloch, 2015 WL 5634323,

at *26. Hours spent traveling are ordinarily compensated at one-half of the normal hourly attorney

rate. See Scott v. Sec’y of Health & Human Servs., No. 08-756V, 2014 WL 2885684, at *3 (Fed.

Cl. Spec. Mstr. June 5, 2014) (collecting cases). And “it is inappropriate for counsel to bill time

for educating themselves about basic aspects of the Vaccine Program.” Matthews v. Sec’y of Health

& Human Servs., No 14-1111V, 2016 WL 2853910, at *2 (Fed. Cl. Spec. Mstr. Apr. 18, 2016).

Ultimately, it is “well within the Special Master’s discretion to reduce the hours to a number that,

in [her] experience and judgment, [is] reasonable for the work done.” Saxton, 3 F.3d at 1522. In

exercising that discretion, special masters may reduce the number of hours submitted by a

percentage of the amount charged. See Broekelschen, 102 Fed. Cl. at 728-29 (affirming the Special

Master’s reduction of attorney and paralegal hours); Guy v. Sec’y of Health & Human Servs., 38

Fed. Cl. 403, 406 (1997) (same).

The overall hours spent on this matter appear reasonable. I have reviewed the billing entries

and find that they adequately describe the work performed and the amount of time spent on that

work. None of the entries appear objectionable, nor has respondent identified any entries as

objectionable. Accordingly, petitioner is awarded total attorneys’ fees of $9,801.50.16

C. Attorneys’ Costs

Petitioner requests $782.29 in costs. Motion for Fees, Ex. A at 8-9. This amount is

comprised of costs for obtaining medical records, postage costs, and the Court’s filing fee. Id. In

his Motion, pursuant to General Order No. 9, counsel indicated that petitioner did not incur out-

15

The 2015-2024 Fee Schedules can be accessed at http://www.cofc.uscourts.gov/node/2914. The hourly

rates contained within the schedules are updated from the decision in McCulloch v. Sec’y of Health &

Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015).

16

This amount includes the attorneys’ fees requested in petitioner’s Motion ($7,175.50) and petitioner’s Supplemental

Motion ($2,626.00).

11

of-pocket litigation costs. Motion for Fees at 8. I have reviewed the requested costs, find them to

be reasonable, and award them in full.

VI. Conclusion

Based on the foregoing, petitioner’s Motion for Attorneys’ Fees and Costs is GRANTED.

Accordingly, I award a total of $10,583.79, representing $9,801.50 in attorneys’ fees and $782.29

in costs, to be paid through an ACH deposit to petitioner’ counsel Mr. Andrew Downing’s

IOLTA account for prompt disbursement. The Clerk of Court is directed to enter judgment in

accordance with this decision. 17

IT IS SO ORDERED.

s/ Mindy Michaels Roth

Mindy Michaels Roth

Special Master

17

Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice renouncing the

right to seek review.

12