“[s]pecial masters have broad discretion in awarding attorneys’ fees where no compensation is awarded on the petitioner”
How later courts described this case
- “[s]pecial masters have broad discretion in awarding attorneys’ fees where no compensation is awarded on the petitioner”
Written by the judges who cited it.
The opinion
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 12-268V
(To be Published)
*************************
PERCELL LIVINGSTON, Father and *
Natural Guardian of D.L., a minor, *
* Special Master Corcoran
Petitioner, *
* Dated: June 26, 2015
v. *
* Attorney’s Fees and Costs;
* Reasonable Basis; Proof of
SECRETARY OF HEALTH AND * Vaccination; Duty to
HUMAN SERVICES, * Investigate Claim
*
Respondent. *
*
*************************
Clifford John Shoemaker, Shoemaker and Associates, Vienna, VA, for Petitioner.
Traci R. Patton, U.S. Dep’t of Justice, Washington, DC, for Respondent.
ATTORNEY’S FEES AND COSTS DECISION1
On April 23, 2012, Percell Livingston, as father and natural guardian of D.L., a minor, filed
a pro se petition seeking compensation under the National Vaccine Injury Compensation Program
(the “Vaccine Program”).2 Two years later, Mr. Livingston’s case was dismissed for insufficient
proof of vaccination - a threshold issue in any vaccine case. Petitioner now requests an award of
attorney’s fees and costs in the amount of $31,146.41 for Clifford Shoemaker, Esq., the attorney
who later appeared in the action on Petitioner’s behalf. Respondent challenges this requested fee
1
Because this decision contains a reasoned explanation for my actions in this case, I will post it on the United States
Court of Federal Claims website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116
Stat. 2899, 2913 (Dec. 17, 2002) (current version at 44 U.S.C. § 3501 (2014)). As provided by 42 U.S.C. § 300aa-
12(d)(4)(B), however, the parties may object to the published decision’s inclusion of certain kinds of confidential
information. Specifically, under Vaccine Rule 18(b), each party has fourteen 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). Otherwise, the whole decision will be available to
the public. Id.
2
The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2006) [hereinafter “Vaccine Act” or “the
Act”]. Individual section references hereafter will be to § 300aa of the Act.
award, asserting that Petitioner’s claim lacked reasonable basis even before he obtained counsel.
As discussed below, I hereby deny Petitioner’s fee request.
Factual History
D.L. was born at Ridgewood State Hospital on February 11, 2009. Pet., filed Apr. 23, 2012
(ECF No. 1), at 9; Amended Pet., dated April 15, 2013 (ECF No. 34) at ¶ 3; Pet’r’s Ex. 4 at 4.
When he was about seven months old, D.L. presented to his pediatrician, Dr. Anthony Ricciardi,
on September 18, 2009, after experiencing a bout of diarrhea. Pet’r’s Ex. 6 at 33; Pet’r’s Ex. 26 at
7. According to the billing records from the treatment history filed in this case, Dr. Ricciardi
administered to D.L. the RotaTeq vaccine3 during this visit. Pet’r’s Ex. 26 at 2.
D.L. had an office visit on March 10, 2011, approximately a month after turning two.
Amended Pet. at ¶ 13. Mr. Livingston alleged in this case that during this visit he witnessed D.L.
receiving a second dose of RotaTeq. As conceded by Respondent, if this in fact had occurred, it
would have been medically inadvisable, as RotaTeq is not appropriately administered to infants
over eight months of age. Rule 4(c) Report, dated June 16, 2014 (ECF No. 54) at 7. However (and
as discussed in greater detail below), beyond Mr. Livingston’s assertions, there is no direct,
circumstantial, or otherwise corroborative evidence in the record establishing that D.L. actually
received a second dose of the RotaTeq vaccine – at this time or any other.4
On March 15, 2011, D.L. was admitted to the Clara Maass Medical Center in Belleville,
New Jersey after having a fever for two days and experiencing swelling of his lymph nodes in the
left side of his neck for two weeks. Pet’r’s Ex. 3 at 19. A week later, on March 23, 2011, D.L. was
diagnosed with Kawasaki disease.5 Pet. at 24; Amended Pet. at ¶15. He was discharged with an
ultimate diagnosis of left cervical adenitis and a history of Kawasaki disease. Pet’r’s Ex. 3 at 15.
Following D.L.’s hospital discharge, D.L. was seen periodically thereafter for cervical adenitis,
nasal congestion, conjunctivitis, and sleep apnea. Pet’r’s Ex. 6 at 2-4, 22; Pet’r’s Ex. 26 at 15, 17.
By the end of 2012, D.L. had a normal echocardiogram, and D.L’s pediatrician concluded that the
Kawasaki disease had resolved. Pet’r’s Ex. 14 at 20, 25-26.
3
RotaTeq is a trademark for a preparation of a rotavirus vaccine. Rotavirus is a genus of viruses that can cause acute
infantile gastroenteritis and diarrhea in young children. Dorland’s Illustrated Medical Dictionary 1655 (32d ed. 2012)
[Dorland’s]. It is administered orally as a three-dose series to infants between the ages of 6 and 32 weeks, with the
first dose being administered between 6 and 12 weeks. Pet’r’s Ex. 23 at 1 and 4 (ECF No. 33-2).
4
There is, however, evidence in the treatment history that the symptoms Petitioner alleges occurred after D.L.’s receipt
of RotaTeq on March 10, 2011 may have begun a week and half before. Pet’r’s Ex. 3 at 19. Indeed, a few weeks prior
to that March visit, D.L. presented to Valley Hospital emergency room on January 27, 2011, in Ridgewood, New
Jersey, and was diagnosed with the flu. Pet’r’s Ex. 9 at 7-8. D.L. returned to the emergency room two weeks later for
upper respiratory symptoms and lumps on his neck. Id. at 5. He was ultimately diagnosed with lymphadenopathy and
viral illness. Id. at 2-3.
5
Kawasaki disease is also known as mucocutaneous lymph node syndrome. Dorland’s at 977.
2
Billing/Record Evidence and Procedural History
The present fees petition puts into contention whether and when Petitioner or his counsel
knew, or should have known, that the evidence establishing D.L.’s receipt of a second RotaTeq
vaccination was lacking. Because Petitioner submitted copies of his counsel’s billing records in
support of this petition, consideration of what those records reveal, within the context of the case’s
procedural history, will help shed light on the efforts of Petitioner and his counsel to address this
significant threshold question.
Mr. Livingston initiated his claim as a pro se petitioner in April of 2012. Instead of a written
pleading, however, he filed a collection of D.L.’s medical records and related documents that were
construed by the Clerk of Court to constitute a Vaccine Act claim. See generally Pet. Included
with the filed medical records was an incomplete ledger maintained by Dr. Ricciardi over two and
a half years of D.L.’s care that chronicled D.L.’s pediatric visits, including his immunization
history, plus D.L.’s New Jersey State Personal Immunization Record. Pet. at 5. Neither document
mentions the RotaTeq vaccine having been administered on March 10, 2011, Mr. Livingston’s
allegations to the contrary, although neither document memorializes the earlier RotaTeq vaccine
administration either.
Petitioner’s counsel first learned of the case on May 7, 2012, barely a month after its filing
(Mot. for Attorney Fees (ECF No. 61) (“Fee App.”) at 19), although he did not formally appear in
the matter until July 16, 2012. Mot. for Entry of Appearance and Aff. of Appointment (ECF No.
8). In the two-month interim period, Mr. Shoemaker spent 10.6 hours investigating and preparing
for his appearance. Fee App. at 19-20. It appears that this time was spent mostly corresponding
with Mr. Livingston, reviewing the available medical records, and dealing with paperwork related
to appearing in the matter. Id. From the billing records it does not appear that during this time
period Mr. Shoemaker made any attempt to verify proof of vaccination. After his appearance,
Petitioner’s counsel participated in an initial status conference with the special master first
assigned to the case on July 17, 2012. Significantly, however, the billing records reveal that on
that same day Mr. Shoemaker both e-mailed Petitioner, and then spoke to him, in a “long phone
conference” about “contact with doctor” as well as “dates of RotaTeq administration.” Id. at 20.
Petitioner thereafter embarked on a course of discovery – both to obtain medical records
relevant to D.L.’s alleged injuries, along with proof of vaccination. ECF Nos. 11, 13, and 16. Thus,
during the initial July 17th conference, Petitioner’s counsel orally requested issuance of a “general
subpoena authorizing his counsel to issue subpoenas for the relevant medical records in this case,”6
and his request was granted by order dated July 18, 2012. ECF No. 9. Pursuant to that subpoena,
additional medical records (including records from Dr. Ricciardi, Clara Maass Medical Center,
and Valley Hospital) were obtained and filed three months later on October 18, 2012, but without
6
All additional requests for subpoenas were made in writing, but all were similarly worded, requesting a general
subpoena for all relevant medical records.
3
the necessary proof of vaccination. ECF No. 12.
Mr. Livingston subsequently renewed his motion requesting a general subpoena (which
had expired), and the motion was again granted. ECF Nos. 13 and 14. On October 26, 2012, the
special master extended Petitioner’s deadline to December 26, 2012, for Petitioner to file all
outstanding medical records. On December 7, 2012, Petitioner filed yet another motion to issue a
general subpoena (ECF No. 16), which was for a third time granted. ECF No. 19.
Thereafter, on December 21, 2012, Petitioner filed additional medical records, none of
which included any documents relevant to the vaccination question. ECF No. 21. After receiving
another extension of time in which to file records in the case, on January 28, 2013, Petitioner filed
additional medical records, but still did not provide the missing proof of vaccination. ECF No. 24.
Petitioner then requested another extension of time of one month to file all outstanding records.
ECF No. 23. Only one additional exhibit was filed on February 28, 2013, along with another
request for an extension. ECF Nos. 25 and 26. Medical records, including a sleep study and medical
records from another doctor, were filed on March 1, 2013. ECF No. 27. However, Petitioner had
still not identified documentary proof of vaccination, or other corroborative direct or circumstantial
evidence. Indeed – as the billing records reveal, by midwinter of 2013, Petitioner and his counsel
had devoted the entirety of their discovery efforts to collecting general medical records, rather than
the specific proof of vaccination that counsel knew was missing from the date of his appearance
in the matter. See, e.g., ECF No. 61 at 38-39 (listing expenses incurred in obtaining records from
other hospitals and care providers, but making no mention of documents obtained from Dr.
Ricciardi’s pediatric practice or any attempts to contact Dr. Ricciardi).
Approximately a year after the case was initiated, Mr. Livingston filed a Statement of
Completion on March 1, 2013. ECF No. 28. Petitioner was subsequently ordered to file an
amended petition, along with additional medical records to substantiate his claim. Scheduling
Order, filed Mar. 28, 2013 (ECF No. 29). In so doing, the special master expressly noted that no
records had been filed in the case (by this time, nearly a year old) establishing that D.L. had
received RotaTeq a second time as alleged. Id.
Petitioner then filed the amended petition, which specifically alleged that D.L. had suffered
Kawasaki disease as a result of his alleged receipt of the RotaTeq vaccine on March 10, 2011.
Amended Pet. at 2. It also fleshed out the alleged circumstances pertaining to the claimed second
RotaTeq dose. Mr. Livingston alleged that he had witnessed a member of Dr. Ricciardi’s practice,
Dr. Roger Cooper, mistakenly administer RotaTeq a second time to D.L., and then attempt to hide
the error (by refusing to acknowledge what he had done to Petitioner), as part of a larger effort to
cover up “violating the suggested vaccination schedule.” Reply at 4-5; Amended Pet. at ¶ 13.7 If
7
Petitioner also appears to have based his belief in part on the fact that he saw “the RotaTeq package insert” laying
atop Dr. Cooper’s desk – thereby presumably assuming that it correlated to whatever D.L. had received. Amended
Pet. at ¶ 13.
4
true, this would explain why Dr. Ricciardi was unwilling simply to admit that his office had
administered the second dose of RotaTeq, and why the existing vaccine ledger did not reflect it
either.
In May of 2013, Mr. Livingston filed a status report requesting (yet again) additional time
in which to complete the filing of medical records. See May 24, 2013 Mot. for Enlargement of
Time and Status Report (ECF No. 35). In the report/motion, Petitioner explained that he had
spoken to Dr. Ricciardi about the prior RotaTeq vaccine administered to D.L. in September of
2009, but needed to speak to him further about the alleged events of March 2011. Id. He also
indicated that he had not yet been able to speak directly with Dr. Cooper (the treater alleged to
have administered the relevant dose of RotaTeq) but would include that as a topic in speaking
further with Dr. Ricciardi. The procedural record does not explain why these conversations could
not have been conducted earlier in the case’s history.
In response, the special master issued an Order on June 3, 2013. ECF No. 36. In it, she
specifically noted that a status conference in the case held in March of 2013 discussed a matter
similar to one addressed in a prior conference held in July 2012 after Mr. Shoemaker’s appearance
– “the fact that the petition and the records filed to date do not identify the vaccine alleged to have
caused the injuries.” Id. She also noted that Mr. Shoemaker had “acknowledged that no inquiry
has been made of the doctor’s office in some time and that additional inquiry was necessary.” Id.
(emphasis added). (In fact, the contemporaneous billing records reveal no efforts to contact Dr.
Ricciardi until May of 2013 (ECF No. 61 at 24), even though counsel and Mr. Livingston had
discussed the proof of vaccination issue at the time of Mr. Shoemaker’s appearance. Id. at 20. The
special master ordered Petitioner to either file the missing proof of vaccination, affidavits from
Drs. Ricciardi and/or Cooper, or other evidence that he was making formal requests for the missing
information, by August 2, 2013. ECF No. 36 at 2.
On August 2, 2013, in lieu of complying with the special master’s order, Petitioner filed a
“Status Report and Request for Hearing.” ECF No. 37. In it, Petitioner attempted to show that he
was trying to obtain the missing information but faced resistance from Dr. Ricciardi, suggesting
that shoddy record-keeping practices were to blame. Id. Repeating his allegation that he had in fact
witnessed D.L. receiving the RotaTeq vaccine in March of 2011, Petitioner asked that a fact
hearing be scheduled so he could establish the matter through his own testimony. Status Report
and Request for Fact Hearing, filed Aug. 2, 2013 (ECF No. 37). In response, the special master
(by order dated August 5, 2013 (ECF No. 38)) noted that Petitioner had not complied with the
August 2nd order requiring him to establish proof that he had formally requested the missing
vaccine proof from Drs. Ricciardi and Cooper, and set a mid-August deadline to do so.
Two days later, Mr. Livingston filed affidavits from himself and his wife, although they
pertained to their efforts to obtain discovery from Dr. Ricciardi rather than their underlying
allegations about D.L.’s purported second RotaTeq dose. ECF No. 39. He followed that filing with
5
yet another discovery-based motion on August 14, 2013, requesting the issuance of subpoenas
aimed at obtaining documents from Drs. Ricciardi and Cooper (ECF No. 40).
Little thereafter happened in the case8 until it was transferred to me in January of 2014.
ECF No. 47. On January 31, 2014, Petitioner at long last filed some additional documents obtained
from Dr. Ricciardi. Pet’r’s Ex. 26 (ECF No. 50-2).9 Many of these materials appeared either
duplicative of the documents first filed by Petitioner at the outset of the case, or (in the case of the
New Jersey immunization record) were simply more complete versions of previously-filed
records. None of these materials, however, supported Mr. Livingston’s allegations that D.L.
received a second RotaTeq vaccination in March of 2011. Indeed, a handwritten record from the
March 10, 2011 visit that was filed with this compilation suggests that D.L. was administered
“Rondec” 10 rather than RotaTeq (and it is conceivable in retrospect that the fact that the medicine
has a similar name to the vaccine had something to do with Petitioner’s confusion).
Petitioner subsequently filed a final statement of completion on April 15, 2014 (ECF. No.
53), with Respondent filing her Rule 4(c) Report approximately two months later. That Rule 4(c)
Report observed, among other things, that even after multiple attempts to obtain additional
documentation and compel the pediatricians to disclose medical records referencing the alleged
second RotaTeq administration, Petitioner still lacked any direct or indirect proof of vaccination.
ECF No. 54. A month later, Petitioner filed a Motion for Dismissal of his claim, acknowledging
that he could not establish entitlement to a Program award. Mot. for Dismissal, filed July 10, 2014
(ECF No. 55). I granted the motion on July 11, 2014. ECF No. 56.
Mr. Livingston filed the present motion for reimbursement of attorney’s fees and costs on
8
After the retirement of the special master formerly presiding over the case, the matter was transferred for a short time
to Special Master Hastings in the fall of 2013. During this period, Petitioner asked in September of 2013 for additional
time to file the subpoenaed information (ECF No. 44), which was also permitted, but did not file any of these materials
before I was assigned the matter.
9
Although I presume that these materials constituted what had been obtained from Dr. Ricciardi after the many-month
effort detailed above, the cover sheet of the documents filed indicates “[r]eceived from Client 4/17/2013” – suggesting
that the materials were in the Petitioner’s possession long before they were filed. Petitioner’s reply in support of his
fees petition (ECF No. 66) states that these materials were obtained in March of 2013. Reply at 4. There is nothing in
the procedural record explaining why these documents could not have been filed earlier if in fact they had been in Mr.
Livingston’s possession. Indeed the status reports filed by Petitioner between April 17, 2013, and the time the records
were filed in January of 2014, indicate that the doctors continuously maintained that they had already given copies of
the records to Petitioner. See, e.g., Status Report, filed Nov. 25, 2013 (ECF No. 46).
10
Rondec is a prescription cough, cold, and allergy product consisting of dextromethorphan hydrobromide and
pseudoephedrine hydrochloride. It is often administered orally. “Drugs,” U.S. Food and Drug Administration
http://www.fda.gov/Drugs/GuidanceComplianceRegulatoryInformation/EnforcementActivitiesbyFDA/SelectedEnfo
rcementActionsonUnapprovedDrugs/ucm245106.htm (last accessed June 18, 2015). Given D.L.’s recent flu
diagnosis, it is likely that Rondec was administered to provide D.L. with relief from his flu symptoms.
6
February 4, 2015, in accordance with the time permitted him under the Vaccine Rules.11 In it, he
requests a fee award of $30,023.96 for his attorney’s time. Fee App. at 21. Mr. Livingston also
requests $1,122.45 in costs incurred in this case. Id. at 1. In total, Petitioner requests fees and costs
of $31,146.41. Id.
Respondent opposed Petitioner’s fees and costs request on February 18, 2015, asserting
that Petitioner’s claim lacked a reasonable basis because it was evident from the outset of the
matter that he could not prove vaccination, and therefore the request should be denied in its
entirety. ECF No. 62 (“Fee App. Opp.”). In so asserting, Respondent contended that before
appearing as counsel of record, Mr. Shoemaker was obligated to conduct a thorough investigation
into the threshold issue of proof of vaccination. Id. at 5.
Petitioner thereafter filed a reply on April 23, 2015, addressing each of Respondent’s points
in turn and re-asserting that his claim had a reasonable basis. ECF No. 66 (“Reply”). Petitioner
specifically argued that the ambiguity of the treatment history record, in combination with
Petitioner’s adamant assertions that the RotaTeq vaccine had been improperly administered to D.L.
in March of 2011, amounted to reasonable basis. Id. at 2-5. He also asserted that the applicable
attorney professional responsibility and ethical conduct guidelines dictated his attorney’s zealous
representation, and that therefore his counsel’s efforts, albeit unsuccessful, to establish D.L.’s
receipt of the RotaTeq vaccine deserve compensation. Id. at 5.
Mr. Livingston’s application for attorney’s fees and costs is now ready for adjudication.
ANALYSIS
I. General Principles Regarding Attorney’s Fees and Costs Awards
Vaccine Program petitioners who receive compensation for their injuries are by statute
entitled to an award of “reasonable” attorney’s fees and costs. Section 15(e)(1). In those cases
where compensation is denied, a special master may, in his or her discretion, award reasonable
attorney’s fees and costs if (a) the petition was brought in good faith; and (b) there was a reasonable
basis for the claim for which the petition was brought. Id.; Silva v. Sec’y of Health & Human
Servs., 108 Fed. Cl. 401, 405 (2012) (“[s]pecial masters have broad discretion in awarding
attorneys’ fees where no compensation is awarded on the petitioner”). Thus, in the absence of a
showing of either “good faith” or “reasonable basis” (since the two elements of this test are
conjunctive), an application for attorney’s fees may be denied.12
11
Judgment entered on August 20, 2014. ECF No. 58. Counting from the date judgment entered, Petitioner’s fee
request was due 180 days thereafter or on or before February 16, 2015. Vaccine Rule 13(a).
12
In rendering decisions on the entitlement of counsel to fee awards, some special masters have observed that the
Vaccine Act effectively creates “three classes” of litigants: (i) prevailing litigants, whom the statute mandates “shall”
receive an award of reasonable fees and costs; (ii) unsuccessful petitioners, who “may” in the special master’s
7
Determining whether a petition was filed in good faith is a subjective inquiry. Good faith
can be established as long as the petitioner demonstrates an honest belief that he suffered a
compensable vaccine injury. See Di Roma v. Sec’y of Health & Human Servs., No. 90-3277V,
1993 WL 496981, at *1 (Fed. Cl. Spec. Mstr. Nov. 18, 1993). This element is therefore the more
easily established of the two. Austin v. Sec’y of Health & Human Servs., No. 10-362V, 2013 WL
659574, at *7 (Fed. Cl. Spec. Mstr. Jan. 31, 2013) (“[d]ue to its subjective nature, the standard for
good faith is very low”). Indeed, some cases stand for the proposition that absent an affirmative
showing that a petitioner acted in bad faith, a petitioner is entitled to a presumption of good faith.
Grice v. Sec’y of Health & Human Servs., 36 Fed. Cl. 114, 121 (1996). Here, I see no evidence
suggesting Petitioner did not act in good faith in proceeding with this claim, nor does Respondent
argue to the contrary. See Fee App. Opp. at 4.
The reasonable basis requirement, by contrast, involves an objective inquiry with no such
favorable presumption. See McKellar v. Sec’y of Health & Human Servs., 101 Fed. Cl. 297, 303-
34 (2011) (citing Perreira v. Sec’y of Health & Human Servs., 33 F.3d 1375 (Fed. Cir. 1994))
(“[t]he petitioner must affirmatively establish a reasonable basis to recover attorneys’ fees and
costs”)). An assessment of reasonable basis “look[s] not at the likelihood of success but more to
the feasibility of the claim.” Di Roma, 1993 WL 496981, at *1.
There is no explicit instruction from the Federal Circuit as to the precise nature of the
evidentiary burden imposed on a petitioner attempting to establish reasonable basis. Rather, the
analysis has been characterized as requiring application of a “totality of the circumstances” test
that will vary in form depending upon a case’s circumstances. Chuisano v. United States, 116 Fed.
Cl. 276, 288 (2014). If nothing else, an unsuccessful petitioner has some burden of showing that
his case was reasonably pursued. McKellar, 101 Fed. Cl. at 304; Chuisano, 116 Fed. Cl. 276 at
286.
In determining reasonable basis, other special masters have considered whether a claim has
support in the contemporaneous medical records and/or a medical opinion, or if the petitioner can
demonstrate at least that “fundamental inquiries” were made to locate evidentiary support for the
claim. Melbourne v. Sec’y of Health & Human Servs., No. 99-694V, 2007 WL 2020084, at *6
(Fed. Cl. Spec. Mstr. June 25, 2007) (petitioner cannot obtain fee award for work performed after
reasonable basis ceases to exist, e.g., after counsel becomes aware that the medical record or expert
opinion fails to support the claim); Di Roma, 1993 WL 496981, at *2.
The scope and sufficiency of an attorney’s investigation into the basis for a petitioner’s
discretion receive a fee award if the proper criteria are established; and (iii) unsuccessful petitioners who cannot
demonstrate the proper criteria – historically a “very small” class of litigants. Chuisano v. Sec’y of Health & Human
Servs., No. 07-452V, 2013 WL 6234660, at *10 (Fed. Cl. Spec. Mstr. Oct. 25, 2013), aff’d, 116 Fed. Cl. 276 (May
15, 2014) (citing Austin v. Sec’y of Health & Human Servs., No. 10-362V, 2013 WL 659574, at *7 (Fed. Cl. Spec.
Mstr. Jan. 31, 2013)).
8
claim is also relevant to determining if reasonable basis existed for a claim. See Di Roma, 1993
WL 496981, at *2 (citing Lamb v. Sec’y of Health & Human Servs., 24 Cl. Ct. 255, 258-59 (1991)).
Vaccine Program attorneys are expected to conduct a reasonable pre-filing investigation –
including at a minimum an evaluation of the factual bases for a claim. See Turner v. Sec’y of Health
& Human Servs., No. 99-544V, 2007 WL 4410030, at *7 (Fed Cl. Spec. Mstr. Nov. 30, 2007). In
determining the adequacy of the pre-filing inquiry, special masters have considered the
circumstances under which the petition was filed, including whether petitioner filed with the
assistance of counsel, and if so, how much time before the filing deadline petitioner provided
counsel for pre-filing investigation. Turner, 2007 WL 4410030, at *6.13
Although in the history of the Vaccine Program special masters have tended to be “quite
generous in finding a reasonable basis for petitioners” in granting fee awards in unsuccessful cases,
that generosity wanes where it is evident that counsel failed to investigate sufficiently the facts
underlying the claim. Riley v. Sec’y of Health & Human Servs., No. 09-276V, 2011 WL 2036976,
at *3 (Fed. Cl. Spec. Mstr. Apr. 29, 2011) (citation omitted); see also Murphy v. Sec’y of Health
& Human Servs., 30 Fed. Cl. 60, 62 (1993) (affirming denial of attorney’s fees where
contemporaneous records provided no basis for alleged injury), aff’d, 48 F.3d 1236 (Fed. Cir.
1995); Di Roma, 1993 WL 496981, at *3 (denying attorney’s fees and costs where “[m]inimal
research and good sense should have indicated that th[e] case had no basis under the law”).
In particular, special masters have denied fee awards in cases in which a petitioner’s claim
was found to lack reasonable basis because the case was pursued despite the evident fact that the
petitioner could never demonstrate that she received a vaccine set forth on the Vaccine Injury
Table. See, e.g., Cortez v. Sec’y of Health & Human Servs., No. 09-176V, 2014 WL 1604002 (Fed.
Cl. Spec. Mstr. Mar. 26, 2015); Schmidt v. Sec’y of Health & Human Servs., No. 11-410V, 2012
WL 1392632 (Fed. Cl. Spec. Mstr. Mar. 30, 2012); Rydzewski v. Sec’y of Health & Human Servs.,
No. 99-571V, 2008 WL 382930, at *7-8 (Fed. Cl. Spec. Mstr. Jan. 29, 2008) (“[r]eceipt of a
vaccine is an indispensable part of the Vaccine Program”).
The specific facts of Rydzewski are especially instructive under the present circumstances.
In Rydzewski, the petitioner (who initiated the action as a pro se litigant) had been administered
hexabrix (an agent that creates contrasts when used during arteriograms and other procedures) in
connection with a September 1995 cardiac catheterization procedure. 2008 WL 382930, at *1. The
petitioner, however, alleged that she had received and been injured by the Hepatitis B vaccine
(which, if true, would unquestionably serve as the basis for a Vaccine Program claim). Id. at *4-
13
This flows naturally from the fact that (even if this requirement is not always expressly adhered to) Section
11(c)(1)(A) of the Act contemplates that petitioners will include with their petition an affidavit and documentation
that the injured party received a vaccine set forth in the Vaccine Injury Table, and that such vaccine caused the alleged
injury.
9
5.14 The petitioner originally filed her claim on her own, but counsel appeared for her
approximately five months later. Id. at *2. After the special master entered an order denying
petitioner compensation for insufficient proof of vaccination, the petitioner filed a fee application
seeking to recover approximately $9,000 in fees and costs. Id.
The Rydzewski special master held that the petitioner lacked reasonable basis when she
filed the petition, since, despite her pro se status, she could have confirmed pre-filing whether a
vaccine had been administered to her by review of her own medical records. Id. at *3. But he found
that “the lack of a reasonable basis [was] even more evident after the time Petitioner obtained
counsel.” 2008 WL 382930, at *7. Despite evidence (revealed in counsel’s billing records) that
petitioner’s attorneys had conferred with their client about the status of the medical records
collection – and in particular, had received some documentation already collected by her – and
were therefore aware of the issue, counsel proceeded “without having persuasive evidence to
establish the most basic of elements – that Ms. Rydzewski received a covered vaccine.” 2008 WL
382930, at *8. Because counsel was reasonably presumed to understand that establishing that a
claimant had received a covered vaccine is a critical component of any Program claim, counsel’s
failure to diligently investigate the matter, and thereby avoid wasting time and resources, made a
fee award inappropriate.
II. Reasonable Basis in Petitioner’s Case
Proof of vaccination is a fundamental threshold issue in all Vaccine Program cases – for
absent evidence that a covered vaccine was administered, a petitioner has no grounds for
proceeding with a claim in this forum. See, e.g., Rich v. Sec’y of Health & Human Servs., No. 12-
742, 2013 WL 4476751 (Fed. Cl. Spec. Mstr. July 26, 2013); § 11(c)(1) (setting forth necessary
contents for a petition, which include establishing proof of vaccination). The lack of such proof at
a case’s outset is not necessarily fatal to a claim, however. Centmehaiey v. Sec’y of Health &
Human Servs., 32 Fed. Cl. 612, 621 (1995). A petitioner can overcome the lack of direct proof of
a vaccine having been administered by marshaling a variety of circumstantial evidence tending to
establish that he did in fact receive the alleged vaccine. See, e.g., Lamberti v. Sec’y of Health &
Human Servs, No. 99–507V, 2007 WL 1772058, at *7 (Fed. Cl. Spec. Mstr. May 31, 2007)
(finding multiple medical record references to vaccine receipt constituted adequate evidence of
administration); Groht v. Sec’y of Health & Human Servs, No. 00–287V, 2006 WL 3342222, at
*2 (Fed. Cl. Spec. Mstr. Oct. 30, 2006) (finding a treating physician's note—“4/30/97—Hep B.
inj. # 1 (not given here) (pt. wanted this to be charted)”—to be sufficient proof of vaccination).
From the start of this case, Mr. Livingston was on notice that establishing D.L.’s receipt of
RotaTeq in March 2011 was not merely a matter of obtaining a document from a pharmacy or
treating physician. What documentary evidence of D.L.’s vaccination history that the Petitioner
14
The Rydzewski special master inferred that the petitioner in that case may have confused “hexabrix” with “hepatitis
B,” given their homophonous similarities. Rydzewski, 2008 WL 382930, at *4.
10
did possess (such as the vaccine ledger) did not substantiate his recollection, and D.L.’s subsequent
treatment history made no reference to his having received a second RotaTeq dose. Mr. Livingston
would thus require other circumstantial proof to substantiate his personal recollection – either the
admissions of Drs. Ricciardi and/or Cooper that Mr. Livingston’s recollection was correct, or some
kind of other persuasive evidence that their denials were false, such as internal office records
recording the alleged vaccination.
Mr. Livingston was never able to locate such proof, even after eighteen months. But as the
billing records strongly suggest, far more could have been done early on, and with counsel’s help,
to evaluate the claim’s viability. Mr. Shoemaker appeared in this matter approximately three
months after the case had been filed as a pro se matter, but was aware of it a month after its filing.
It is indisputable that he possessed at that time the compiled materials constituting Mr.
Livingston’s petition, and was aware from the exact date of his appearance, if not earlier, of the
proof of vaccination issue. The action itself was filed about a year from the date of the alleged
RotaTeq vaccine in 2011, meaning that there was no time pressure to act in the face of the pending
expiration of the Act’s three-year statute of limitations. Section 300aa-16(a)(2). Counsel thus had
ample time prior to his appearance to investigate the proof of vaccination issue.
Based on the above, I find that, because of the clear absence of proof of vaccination from
the case’s outset, reasonable basis for Mr. Livingston’s case was lacking – if not at the time Mr.
Livingston initiated the claim, then certainly by the time Mr. Shoemaker appeared for him a few
months after. Petitioner and his counsel could have done far more to address the matter at the
outset of this proceeding. If counsel are to be compensated in losing cases where such a threshold
issue cannot be established, then they should at least be able to demonstrate appreciation of the
importance of the issue, as well as diligence in addressing it.
Admittedly, reasonable basis can change over a matter’s progression. Perreira, 33 F.3d at
1377. Thus, in some circumstances it would be proper to grant a partial attorney’s fees award to
compensate counsel for some post-filing discovery efforts to establish proof of vaccination –
especially where counsel have demonstrated efficiency and diligence in pursuing the issue, given
its baseline importance to any Program claim.
Two factors militate strongly against awarding a partial fees award in this case. First, the
procedural history (amplified by the billing records) suggests that counsel’s pre-appearance
investigation of the matter was inadequate. As noted above, Mr. Shoemaker appeared in the case
only three months from its date of filing, was under no time pressure from a pending limitations
cut-off date to act, and was aware as of the date of his appearance that proof of vaccination was at
issue (since the billing records reveal that Petitioner spoke to his counsel about just that topic on
the day counsel first appeared). He thus had ample time before appearing to review the case records
and make obtaining proof of vaccination a priority. He could have informally contacted D.L.’s
11
treaters, like Dr. Ricciardi, to inquire about Mr. Livingston’s allegations, and why the vaccination
ledger made no mention of the purported second dose.15 Had Dr. Ricciardi resisted such contact,
counsel could have (upon his appearance in the case) immediately brought that to the attention of
this forum and requested a subpoena specifically directed at Dr. Ricciardi. Focused, limited
discovery on the topic might have resolved the issue in a few months.
Instead, Petitioner’s counsel spent a significant amount of time collecting general medical
records. Counsel did not home in on the vaccination question until the spring of 2013, even though
(as the billing records show) he was aware of it as of the day of his first status conference in the
matter. And as of the spring of 2013 (a year from the filing of this action), counsel was in
possession of written records that contradicted Petitioner’s recollection (see, e.g., Ex. 26), but did
not file them in this matter until early 2014. Only when it was beyond dispute that Petitioner could
not prove his case did he ask to dismiss his claim – but by this point, counsel had billed 66.7 hours
in attorney time alone (at a requested rate of $348.70/hour) working on the case, with his firm
running up a bill in excess of $30,000.
Petitioner’s rationalizations for the lengthy discovery process in which his counsel engaged
are not persuasive. Mr. Livingston argues that the records he initially obtained after issuance of
the first subpoena (and then filed on October 18, 2012) were “extremely sloppy and incomplete,”
and thus gave substance to Petitioner’s suspicion that Drs. Ricciardi and Cooper were attempting
to hide the fact of the second RotaTeq administration. Reply at 2-4. But it is not clear from the
billing or procedural records that in fact the most relevant pediatric records were even requested
until much later in the case’s history. And while such a lengthy discovery effort might be justified
where there is other circumstantial evidence supporting the vaccination allegation (such as
references to the vaccine’s administration in the treatment history), it is not justified under these
circumstances, where the sole basis for the allegation of vaccination is Petitioner’s recollection.
Second, Mr. Shoemaker’s experience with Vaccine Program cases16 bears on my
15
The pre-filing availability of the individual alleged to have administered a vaccine to answer a Petitioner’s questions
can be highly relevant in resolving reasonable basis. In Cortez, for example, a petitioner had ample time before a case
was filed to speak to the physician who had purportedly administered the flu vaccine she claimed had caused her
injury, and was in possession of the medical records contradicting her claim. Instead, she and her counsel waited until
years into the case before contacting the treater - at which point he resolved the question by recalling, as the medical
records already indicated, that he had not administered the vaccine as alleged, but instead had only administered a
blood pressure injection. Cortez, 2014 WL 1604002, at *9.
16
Currently Mr. Shoemaker is attorney of record in twenty-seven active Vaccine Program cases. According to his
website, his firm’s stated mission is to “represent children and adults who are injured by vaccinations,” and Mr.
Shoemaker (who graduated from law school 32 years ago) has a practice consisting “almost exclusively” of vaccine
litigation. “Clifford J. Shoemaker,” Shoemaker & Associates http: //www.shoemakerassociates.com/
index.php?option=com_content&view=article&id=15&Itemid=66 (last visited June 5, 2015).
12
determination that his investigation was inadequate.17 It is reasonable to expect experienced
counsel to understand the importance of establishing the fact of vaccination as soon as possible.
And Mr. Shoemaker is not only experienced counsel, but has specific familiarity with these very
circumstances – as he was also counsel in Rydzewski, a factually-similar case also involving an
initially pro se litigant. There, as here, it was known from the beginning of the case that proof of
vaccination was a significant issue in the case, and it appeared (as in the present case) that the
petitioner may have mistakenly believed that a vaccination was administered based on a
misapprehension of the name of the treatment in question.18 Equally, in this case and Rydzewski,
Mr. Shoemaker appeared in the matter months after it was initiated by a pro se petitioner, and had
adequate time to conduct an investigation. Yet Mr. Shoemaker devoted considerable attorney time
(there and here) in the attempt to prove the matter through discovery. Mr. Shoemaker therefore
has been on notice since 2008 (when Rydzewski was published) of the need to exercise special
diligence when accepting a formerly pro se case where proof of vaccination is plainly at issue.
Mr. Livingston argues that it was reasonable for his attorney to rely on Petitioner’s word
in averring that D.L. received a second RotaTeq vaccination, and that this should inform my
reasonable basis analysis. Reply at 3. This argument, however, confuses the reasonable basis prong
of the test with the good faith prong. Reasonable basis is not measured by whether Petitioner (or
his counsel, for that matter) possesses a subjective good faith belief in the facts as alleged, but is
instead an objective inquiry. See Di Roma, 1993 WL 496981, at *1. Vaccine Program attorneys
still have the duty to investigate a Vaccine Act claim even if they find their client to be credible in
describing the claim’s purported factual basis. Here, Mr. Shoemaker should have done more to
probe Mr. Livingston’s recollection, and should also have taken into account that Petitioner is not
himself a medical professional - and therefore his unsubstantiated belief, however sincerely held,
that he had witnessed D.L. receive RotaTeq could easily be erroneous.
Petitioner is similarly incorrect in arguing that an attorney’s obligation to “zealously”
pursue his client’s claim justifies the investigatory efforts in this case. See Reply at 5; MODEL
RULES OF PROF’L CONDUCT R. 1.3 cmt. 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. See Perreira v. Sec'y of Health & Human Servs., 27 Fed.
Cl. 29, 35 (Fed. Cl. 1992) (“[w]hile an attorney has an ethical obligation to be a zealous advocate
17
The “totality of the circumstances” includes the conduct of a petitioner’s counsel. Chuisano, 116 Fed. Cl. at 288. I
thus find that Mr. Shoemaker’s performance of attorney tasks in this matter, such as his investigative efforts, and in
light of his extensive Program experience, is relevant herein.
18
Thus, here Mr. Livingston appears to have confused D.L.’s receipt of Rondec with RotaTeq (see p. 6 above), while
in Rydzewski the petitioner confused hexabrix with Hepatitis B. Rydzweski, 2008 WL 382930, at *4. Counsel appears
to understand as well that the common nature in which the two are administered (orally) could have been another basis
for Petitioner’s confusion. See Reply at 1 (“[Petitioner] also referred to the fact that he didn’t remember any of [his
other children] getting all the doses of that “liquid vaccine”).
13
for the client's cause, this does not mean that an attorney has license to proceed with a frivolous
case on behalf of the client”), aff'd, 33 F.3d 1375, 1377 (Fed.Cir.1994).19 An inefficient and
unfocused investigation into the bases for a claim is not justified by the desire to serve the client
well.
Program attorneys enjoy the benefit of a uniquely generous fees statute that compensates
them under circumstances for which attorneys practicing in other civil contexts would not expect
to be paid. As a result, it is not unfair to place the risk of nonpayment upon Program counsel in
those rare instances in which a nonviable claim is unreasonably pursued. McCabe v. Sec’y of
Health & Human Servs., 1993 WL 135860, at *2 (Fed. Cl. Spec. Mstr. Apr. 15, 1993) (“it is . . .
reasonable to put on [petitioners] the risk of not being compensated for attorneys’ fees and costs
if they file a petition without the necessary supporting documentation and are later unable to
produce such documentation”). Here, I find that the overall circumstances do not justify a fees
award.
CONCLUSION
Accordingly, in the exercise of the discretion afforded to me in determining the propriety
of fee awards in unsuccessful Program cases, and based on the foregoing, I DENY Petitioner’s
Motion for Attorney’s Fees in its entirety. In the absence of a motion for review filed pursuant to
RCFC Appendix B, the clerk of the court SHALL ENTER JUDGMENT in accordance with the
terms of this decision.20
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Special Master
19
Petitioner also argues that reasonable basis is supported by the fact that the RotaTeq package insert acknowledges
some risks from its administration. Reply at 2. But whether or not a given vaccine “can cause” injury after its
administration is irrelevant if the vaccine cannot be shown to have been administered in the first place.
20
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment if (jointly or separately) they file notices
renouncing their right to seek review.
14