The opinion
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 02-235V
(To be published)
*************************
KELLIE MILLER and *
RON MILLER, as mother and father of *
A.H.M., a minor, * Filed: June 3, 2016
*
Petitioners, *
* Vaccine Act Fees and Costs;
v. * Autism Case; Reasonable Basis
*
SECRETARY OF HEALTH AND *
HUMAN SERVICES *
*
Respondent. *
*************************
Michael L. Cave, Cave Law Firm, Baton Rouge, LA, for Petitioners.
Linda Renzi, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING ATTORNEYS’ FEES AND COSTS
HASTINGS, Special Master.
In this case under the National Vaccine Injury Compensation Program (hereinafter “the
Program”1), Petitioners seek, pursuant to 42 U.S.C. § 300aa-15(e)(1), an award for attorneys’
fees and other costs incurred in attempting to obtain Program compensation. They seek a total
award of $63,669. After careful consideration, I have decided to grant the request in part, but to
deny most of the request, because it was not reasonable for Petitioners to take to trial their very
weak case contending that A.H.M.’s autism spectrum disorder was vaccine-related.
1
The applicable statutory provisions defining the Program are found at 42 U.S.C. § 300aa-
10 et seq. (2012 ed.). Hereinafter, for ease of citation, all "§" references will be to 42 U.S.C.
(2012 ed.). The statutory provisions defining the Program are also sometimes referred to as the
“Vaccine Act.”
1
I
BACKGROUND LAW CONCERNING ATTORNEYS’ FEES AND COSTS AWARDS
A. General
Special masters have the authority to award “reasonable” attorneys' fees and litigation
costs in Vaccine Act cases. §300aa–15(e)(1). This is true even when a petitioner is unsuccessful
on the merits of the case -- in such cases, a special master “may” award fees, if the petition was
filed in good faith and with a reasonable basis. Id. “The determination of the amount of
reasonable attorneys' fees is within the special master's discretion.” Saxton v. HHS, 3 F.3d 1517,
1520 (Fed. Cir. 1993); see also Shaw v. HHS, 609 F.3d 1372, 1377 (Fed. Cir. 2010).
Further, as to all aspects of a claim for attorneys' fees and costs, the burden is on the
petitioner to demonstrate that the attorneys' fees claimed are “reasonable.” Sabella v. HHS, 86
Fed. Cl. 201, 215 (2009); Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); Rupert v. HHS, 52
Fed. Cl. 684, 686 (2002); Wilcox v. HHS, No. 90–991V, 1997 WL 101572, at *4 (Fed. Cl. Spec.
Mstr. Feb. 14, 1997). The petitioner's burden of proof to demonstrate “reasonableness” applies
equally to costs as well as attorneys' fees. Perreira v. HHS, 27 Fed. Cl. 29, 34 (1992), aff'd, 33
F.3d 1375 (Fed. Cir. 1994).
One test of the “reasonableness” of a fee or cost item is whether a hypothetical petitioner,
who had to use his own resources to pay his attorney for Vaccine Act representation, would be
willing to pay for such expenditure. Riggins v. HHS, No. 99–382V, 2009 WL 3319818, at *3
(Fed. Cl. Spec. Mstr. June 15, 2009), aff'd by unpublished order (Fed. Cl. Dec. 10, 2009), aff’d,
406 Fed. App’x. 479 (Fed. Cir. 2011); Sabella v. HHS, No. 02–1627V, 2008 WL 4426040, at
*28 (Fed. Cl. Spec. Mstr. Aug. 29, 2008), aff'd in part and rev'd in part, 86 Fed. Cl. 201 (2009).
In this regard, the United States Court of Appeals for the Federal Circuit has noted that:
[i]n the private sector, ‘billing judgment’ is an important component in fee setting. It is
no less important here. Hours that are not properly billed to one's client also are not
properly billed to one's adversary pursuant to statutory authority.
Saxton, 3 F.3d at 1521 (emphasis in original) (quoting Hensley, 461 U.S. at 433–34). Therefore,
in assessing the number of hours reasonably expended by an attorney, the court must exclude
those “hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private
practice ethically is obligated to exclude such hours from his fee submission.” Hensley, 461 U.S.
at 434; see also Riggins, 2009 WL 3319818, at *4.
The Federal Circuit has also made clear that special masters may rely on their prior
experience in making reasonable fee determinations, without conducting a line-by-line analysis
of the fee bill, and are not required to rely on specific objections raised by respondent. See
Saxton, 3 F.3d at 1521; Sabella, 86 Fed. Cl. 201, 209 (2009); see also Wasson v. HHS, 24 Cl. Ct.
482, 484, 486 (1991), aff’d, 988 F.2d 131 (Fed. Cir. 1993) (holding that, in determining a
reasonable number of hours expended in any given case, a special master may rely on her
experience with the Vaccine Act and its attorneys, without basing his decision on a line-by-line
2
examination of the fee application). A unanimous Supreme Court has articulated a similar
holding:
We emphasize, as we have before, that the determination of fees “should not result in a
second major litigation.” The fee applicant (whether a plaintiff or a defendant) must, of
course, submit appropriate documentation to meet “the burden of establishing entitlement
to an award.” But trial courts need not, and indeed should not, become green-eyeshade
accountants. The essential goal in shifting fees (to either party) is to do rough justice, not
to achieve auditing perfection. So trial courts may take into account their overall sense of
a suit, and may use estimates in calculating and allocating an attorney’s time. And
appellate courts must give substantial deference to these determinations, in light of “the
district court’s superior understanding of the litigation.” We can hardly think of a sphere
of judicial decisionmaking in which appellate micromanagement has less to recommend
it.
Fox v. Vice, 563 U.S. 826, 838 (2011) (internal citations omitted).
B. Reasonable basis
The statute and legislative history afford no guidance as to the precise meaning of
“reasonable basis,” and the case law is relatively scant. The Chief Judge of this Court has
explained that not all claims should be found to have a reasonable basis, and that whether a
reasonable basis exists is determined by the “totality of the circumstances.” Chuisano v. HHS,
116 Fed. Cl. 276, 285-286 (2014). A special master has “discretion” in determining whether a
reasonable basis existed. Murphy v. HHS, 30 Fed. Cl. 60, 61 (1993), aff’d without opinion, 48
F.3d 1236 (1995) (judge affirmed a denial of reasonable basis, noting that the determination
concerning reasonable basis is reviewed under an “abuse of discretion” standard). In other cases
in which, as in Murphy, a judge affirmed a denial of reasonable basis, the court remarked that the
special master’s discretion is “wide” (Perreira v. HHS, 27 Fed. Cl. 29, 34 (1992)), and “very
broad” (Silva v. HHS, 108 Fed. Cl. 401, 405 (2012)). In fact, in Silva, the court remarked that it
is “difficult to imagine a broader grant of authority and discretion.” 108 Fed. Cl. at 405.
The only opinion of the United States Court of Appeals for the Federal Circuit,
discussing the “reasonable basis” requirement in a Vaccine Act case, is Perreira v. HHS, 33 F.
3d 1375 (Fed. Cir. 1994). In Perreira, the special master concluded that the petitioners had a
reasonable basis for initially filing the case and for the first part of their prosecution of the case,
but concluded that there was no reasonable basis for pursuing the case beyond the point when
the Perreiras submitted an expert report, at which time the Perreiras’ attorneys should have
realized that their expert’s theory was plainly deficient to demonstrate causation. 33 F.3d at
1376. The special master denied fees and costs for work performed after that point, in taking the
case to an evidentiary hearing. Id. Both the Court of Federal Claims (27 Fed. Cl. 29 (1992)),
and the Federal Circuit (33 F.3d at 1376-77) affirmed.
The Court of Federal Claims judge rejected the Perreiras’ argument that they
automatically passed the “reasonable basis” test because they were relying on an expert’s report,
finding that argument to be “unreasonable.” 27 Fed. Cl. at 33-34. The judge found that under all
the circumstances of the case, for the petitioners to take the case to an evidentiary hearing “with
3
no support in the contemporaneous medical records,” and with no “reputable medical opinion or
scientific studies” (emphasis added) was also “unreasonable.” Id. at 34.
The Federal Circuit agreed with the court below, observing that “counsel’s duty to
zealously represent their client does not relieve them of their duty to the court to avoid frivolous
litigation.” 33 F.3d. at 1377. The appellate court added that Congress did not intend that every
claimant qualify for an attorneys’ fee award “by merely having an expert state an unsupported
opinion that the vaccine was the cause in-fact of the injury.” Id. The court concluded that the
special master did not err in determining that the Perreiras “no longer had a reasonable basis for
claiming causation in-fact” after their expert report was filed. Id.
II
BACKGROUND: THE OMNIBUS AUTISM PROCEEDING (“OAP”)
This case is one of more than 5,400 cases filed under the Program in which petitioners
alleged that conditions known as “autism” or “autism spectrum disorders” (“ASD”)2 were caused
by one or more vaccinations. A special proceeding known as the Omnibus Autism Proceeding
(“OAP”) was developed to manage these cases within the Office of Special Masters (“OSM”). A
detailed history of the controversy regarding vaccines and autism, along with a history of the
development of the OAP, was set forth in the six entitlement decisions issued as “test cases” for
two theories of causation litigated in the OAP (see cases cited below), and will only be
summarized here.
A group called the Petitioners’ Steering Committee (“PSC”) was formed in 2002 by the
many attorneys who represented Vaccine Act petitioners who raised autism-related claims.
About 180 attorneys participated in the PSC. Their responsibility was to develop any available
evidence indicating that vaccines could contribute to causing autism, and eventually present that
evidence in a series of “test cases,” exploring the issue of whether vaccines could cause autism,
and, if so, in what circumstances. Ultimately, the PSC selected groups of attorneys to present
evidence in two different sets of “test cases” during many weeks of trial in 2007 and 2008. In
2
“Autism Spectrum Disorder” is a general classification which as of 2010 included five
different specific disorders: Autistic Disorder, Childhood Disintegrative Disorder, Asperger’s
Syndrome, Rett Syndrome, and Pervasive Developmental Disorder Not Otherwise Specified
(PDD-NOS). King v. HHS, No. 03-584V, 2009 WL 892296 at *5 (Fed. Cl. Spec. Mstr. Feb. 12,
2010). The term “autism” is often utilized to encompass all of the types of disorders falling
within the autism spectrum. (Id.) I recognize that since the OAP test cases, the consensus
description of ASDs, contained now in the “DSM-V” as opposed to the prior “DSM-IV,” revises
the prior subcategories of ASD set forth in the first sentence of this footnote. However, the
DSM-V retains the same general description of ASDs. An ASD is a serious form of
neurodevelopmental disorder defined by a collection of symptoms and behaviors, including
significant impairment of social interaction and language skills, and the presence of repetitive,
stereotyped interests. E.g., Snyder v. HHS, No. 01-162V, 2009 WL 332044, at *31 (Fed. Cl.
Spec. Mstr. Feb. 12, 2009).
4
the six test cases, the PSC presented two separate theories concerning the causation of ASDs.
The first theory alleged that the measles portion of the measles, mumps, rubella (“MMR”)
vaccine could cause ASDs. That theory was presented in three separate Program test cases
during several weeks of trial in 2007. The second theory alleged that the mercury contained in
thimerosal-containing vaccines could directly affect an infant’s brain, thereby substantially
contributing to the causation of ASD. That theory was presented in three additional test cases
during several weeks of trial in 2008.
Decisions in each of the three test cases pertaining to the PSC’s first theory rejected the
petitioners’ causation theories. Cedillo v. HHS, No. 98-916V, 2009 WL 331968 (Fed. Cl. Spec.
Mstr. Feb. 12, 2009) aff’d, 89 Fed. Cl. 158 (2009), aff’d, 617 F.3d 1328 (Fed. Cir. 2010);
Hazlehurst v. HHS, No. 03-654V, 2009 WL 332306 (Fed. Cl. Spec. Mstr. Feb. 12, 2009), aff’d
88 Fed. Cl. 473 (2009), aff’d, 604 F.3d 1343 (Fed. Cir. 2010); Snyder v. HHS, No. 01-162V,
2009 WL 332044 (Fed. Cl. Spec. Mstr. Feb. 12, 2009), aff’d, 88 Fed. Cl. 706 (2009).3 Decisions
in each of the three “test cases” pertaining to the PSC’s second theory also rejected the
petitioners’ causation theories, and the petitioners in each of those three cases chose not to
appeal. Dwyer v. HHS, No. 03-1202V, 2010 WL 892250 (Fed. Cl. Spec. Mstr. Mar. 12, 2010);
King v. HHS, No. 03-584V, 2010 WL 892296 (Fed. Cl. Spec. Mstr. Mar 12, 2010); Mead v.
HHS, No. 03-215V, 2010 WL 892248 (Fed. Cl. Spec. Mstr. Mar. 12, 2010).
The “test case” decisions were comprehensive, analyzing in detail all of the evidence
presented on both sides. The three test case decisions concerning the PSC’s first theory
(concerning the MMR vaccine) totaled more than 600 pages of detailed analysis, and were
solidly affirmed in many more pages of analysis in three different rulings by three different
judges of the United States Court of Federal Claims, and in two rulings by two separate panels of
the United States Court of Appeals for the Federal Circuit. The three special master decisions
concerning the PSC’s second theory (concerning vaccinations containing the preservative
“thimerosal”) were similarly comprehensive.
All told, the 11 lengthy written rulings by the special masters, the judges of the U.S.
Court of Federal Claims, and the panels of the U.S. Court of Appeals for the Federal Circuit
unanimously rejected the petitioners’ claims, finding no persuasive evidence that either the
MMR vaccine or thimerosal-containing vaccines could contribute in any way to the causation of
autism.
Thus, the proceedings in the six “test cases” concluded in 2010. Thereafter, the
Petitioners in this case, and the petitioners in other cases within the OAP, were instructed to
decide how to proceed with their own claims. The vast majority of those autism petitioners
elected either to withdraw their claims, or to request that the special master file a decision
denying their claim on the written record, resulting in a decision rejecting the petitioner’s claim
for lack of support. However, a small minority of the autism petitioners have elected to continue
to pursue their cases, seeking other causation theories and/or other expert witnesses. A number
of such cases have gone to trial before a special master, and in the cases of this type decided thus
far, all have resulted in rejection of petitioners’ claims that vaccines played a role in causing
their child’s autism. See, e.g., Henderson v. HHS, No. 09-616V, 2012 WL 5194060 (Fed. Cl.
Spec. Mstr. Vowell Sept. 28, 2012) (autism not caused by pneumococcal vaccination); Franklin
3
The petitioners in Snyder did not appeal the decision of the U.S. Court of Federal Claims.
5
v. HHS, No. 99-855V, 2013 WL 3755954 (Fed. Cl. Spec. Mstr. Hastings May 16, 2013) (MMR
and other vaccines found not to contribute to autism); Coombs v. HHS, No. 08-818V, 2014 WL
1677584 (Fed. Cl. Spec. Mstr. Hastings Apr. 8, 2014) (autism not caused by MMR or Varivax
vaccines); Long v. HHS, No. 08-792V, 2015 WL 1011740 (Fed. Cl. Spec. Mstr. Hastings Feb.
19, 2015) (autism not caused by influenza vaccine); Brook v. HHS, No. 04-405V, 2015 WL
3799646 (Fed. Cl. Spec. Mstr. Hastings May 14, 2015) (autism not caused by MMR or Varivax
vaccines); Holt v. HHS, No. 05-136V, 2015 WL 4381588 (Fed. Cl. Spec. Mstr. Vowell June 24,
2015) (autism not caused by hepatitis B vaccine); Lehner v. HHS, No. 08-554V, 2015 WL
5443461 (Fed. Cl. Spec. Mstr. Vowell July 22, 2015) (autism not caused by influenza vaccine);
Miller v. HHS, No. 02-235V, 2015 WL 5456093 (Fed. Cl. Spec. Mstr. Vowell August 18, 2015)
(ASD not caused by combination of vaccines); Allen v HHS, No. 02-1237V, 2015 WL 6160215
(Fed. Cl. Spec. Mstr. Vowell Sept. 26, 2015) (autism not caused by MMR vaccination); R.K. v.
HHS, No. 03-632V (Fed. Cl. Spec. Mstr. Vowell Sept. 28, 2015) (autism not caused by influenza
vaccine) (not yet published), aff’d 2016 WL 552481 (Fed. Cl. J. Braden Feb. 12, 2016); Hardy v.
HHS, No. 08-108V, 2015 WL 7732603 (Fed. Cl. Spec. Mstr. Hastings Nov. 3, 2015) (autism not
caused by several vaccines); Sturdivant v. HHS, No. 07-788V, 2016 WL 552529 (Fed. Cl. Spec.
Mstr. Hastings Jan. 21, 2016) (autism not caused by Hib and Prevnar vaccines); Vernacchio v.
HHS, No. 08-504 (Fed. Cl. Spec. Mstr. Corcoran Feb. 19, 2016) (autism not caused by influenza
vaccine) (not yet published); Murphy v. HHS, No. 05-1063V (Fed. Cl. Spec. Mstr. Corcoran
April 25, 2016) (autism not caused by DTaP or MMR vaccines) (not yet published).
In addition, some autism causation claims have been rejected without trial, at times over
the petitioner’s objection, in light of the failure of the petitioner to file plausible proof of
vaccine-causation. See, e.g., Waddell v. HHS, No. 10-316V, 2012 WL 4829291 (Fed. Cl. Spec.
Mstr. Campbell-Smith Sept. 19, 2012) (autism not caused by MMR vaccination); Fester v. HHS,
No. 10-243V, 2016 WL 1745436 (Fed. Cl. Spec. Mstr. Dorsey April 7, 2016) (autism not caused
by measles, mumps, rubella, and varicella (MMRV) vaccine); Fresco v. HHS, No. 06-469V,
2013 WL 364723 (Fed. Cl. Spec. Mstr. Vowell Jan. 7, 2013) (autism not caused by multiple
vaccines); Fesanco v. HHS, No. 02-1770, 2010 WL 4955721 (Fed. Cl. Spec. Mstr. Hastings
Nov. 9, 2010) (autism not caused by multiple vaccines); Miller v. HHS, No. 06-753V, 2012 WL
12507077 (Fed. Cl. Spec. Mstr. Hastings Sept. 25, 2012) (autism not caused by DTaP or MMR
vaccines); Blake v. HHS, No. 03-31V, 2014 WL 2769979 (Fed. Cl. Spec. Mstr. Vowell May 21,
2014) (autism not caused by MMR vaccination); Pietrucha v. HHS, No. 00-269V, 2014 WL
4538058 (Fed. Cl. Spec. Mstr. Hastings Aug. 22, 2014) (autism not caused by multiple
vaccines); Bushnell v. HHS, No. 02-1648, 2015 WL 4099824 (Fed. Cl. Spec. Mstr. Hastings June
12, 2015) (autism not caused by multiple vaccines); Bokmuller v. HHS, No. 08-573, 2015 WL
4467162 (Fed. Cl. Spec. Mstr. Hastings June 26, 2015) (autism not caused by multiple vaccines);
Canuto v. HHS, No. 04-1128, 2015 WL 9854939 (Fed. Cl. Spec. Mstr. Hastings Dec. 18, 2015)
(autism not caused by DTP and DTaP vaccines); Valle v. HHS, No. 02-220V, 2016 WL 2604782
(Fed. Cl. Spec. Mstr. Hastings April 13, 2016) (autism not caused by DTaP vaccine). Judges of
this court have affirmed the practice of dismissal without trial in such cases. E.g., Fesanco v.
HHS, 99 Fed. Cl. 28 (2011) (Judge Braden affirming); Canuto v. HHS (filed 4-18-16) (Judge
Yock affirming).
6
In none of the rulings since the test cases has a special master or judge found any merit in
an allegation that any vaccine can contribute to causing autism.4
III
PROCEDURAL HISTORY5
The Petitioners, Kellie Miller and Ron Miller, filed this petition on March 26, 2002,
alleging that their minor daughter, A.H.M., was injured by several vaccinations. (Petition, ECF
4
I am well aware, of course, that during the years since the “test cases” were decided, in
two cases involving vaccinees suffering from ASDs, Vaccine Act compensation was granted.
But in neither of those cases did the Respondent concede, nor did a special master find, that there
was any “causation-in-fact” connection between a vaccination and the vaccinee’s ASD. Instead,
in both cases it was conceded or found that the vaccinee displayed the symptoms of a Table
Injury within the Table time frame after vaccination. (See §300aa-11(c)(1)(C)(i); §300aa-14.)
In Poling v. HHS, the presiding special master clarified that the family was compensated
because the Respondent conceded that the Poling child had suffered a Table Injury--not because
the Respondent or the special master had concluded that any vaccination had contributed to
causing or aggravating the child’s ASD. See Poling v. HHS, No. 02-1466V, 2011 WL 678559,
at *1 (Fed. Cir Spec. Mstr. Jan. 28, 2011) (a fees decision, but noting specifically that the case
was compensated as a Table Injury).
Second, in Wright v. HHS, No. 12-423, 2015 WL 6665600 (Fed. Cl. Spec. Mstr. Sept. 21,
2015), Special Master Vowell concluded that a child, later diagnosed with ASD, suffered a
“Table Injury” after a vaccination. However, she stressed that she was not finding that the
vaccinee’s ASD in that case was “caused-in-fact” by the vaccination--to the contrary, she
specifically found that the evidence in that case did not support a “causation-in-fact” claim,
going so far as to remark that the petitioners’ “causation-in-fact” theory in that case was
“absurd.” Wright v. HHS, No. 12-423, 2015 WL 6665600, at *2 (Fed. Cl. Spec. Mstr. Sept. 21,
2015).
The compensation of these two cases, thus, does not afford any support to the notion that
vaccinations can contribute to the causation of autism. In setting up the Vaccine Act
compensation system, Congress forthrightly acknowledged that the Table Injury presumptions
would result in compensation for some injuries that were not, in fact, truly vaccine-caused. H.R.
Rept. No. 99-908, 18, 1986 U.S.C.C.A.N. 6344, 6359. (“The Committee recognizes that there is
public debate over the incidence of illnesses that coincidentally occur within a short time of
vaccination. The Committee further recognizes that the deeming of a vaccine-relatedness
adopted here may provide compensation to some children whose illness is not, in fact, vaccine-
related.”)
5
A more detailed procedural history of this case was presented in Chief Special Master
Vowell’s Decision denying compensation in this case. See 2015 WL 5456093, at *1-6. Here I
lay out only those details relevant to this Decision.
7
No. 1.) Because this case involved a child who suffered from an autism spectrum disorder
(ASD), proceedings in the case, as explained in Section II of this Decision above, were stayed
until the outcomes of the OAP “test cases” became final. On March 22, 2007, the case was
assigned to Special Master Denise Vowell.
In April 2011, after the final appellate decision in the OAP test cases was issued,
Petitioners were ordered to inform the special master whether they intended to proceed with their
claim, either on a new theory of causation or with new evidence on one or both of the rejected
causation theories. (Order, issued Apr. 29, 2011.) On July 18, 2011, Petitioners filed an
amended petition, which claimed that the varicella vaccination received on June 4, 1999, was a
causal vaccination, in addition to the vaccinations received on September 15, 1999. (ECF No.
27.)
However, Special Master Vowell found that the --
filed medical records did not establish the diagnosis of a mitochondrial dysfunction
claimed in the amended petition, and [an] affidavit of Dr. Amy Holmes, a treating
physician, filed with the original petition in 2002 as Pet. Ex. 7, was inadequate to
establish vaccine causation.
2015 WL 5456093, at *4. The special master expressed these views in an Order filed on July 28,
2011. (ECF No. 28.)
On December 1, 2011, Petitioners’ attorney, Michael L. Cave, filed the expert report of
his mother, Dr. Stephanie Cave, in support of Petitioners’ causation claim. (ECF No. 34.)
Special Master Vowell immediately expressed to Mr. Cave her doubts about Dr. Cave’s report,
filing an Order containing a lengthy list of “significant problems” with the report substantively,
and ordered Mr. Cave to file a supplemental report of Dr. Cave, or the report of a different
expert, curing the defects. (Order, issued Dec. 6, 2011, ECF No. 35.) In that same order, Special
Master Vowell indicated concerns about the familial relationship between Dr. Cave and Mr.
Cave, noting that such relationship could make payment of expert fees “problematic.” (ECF No.
35, p. 2, fn. 3.)
Petitioners filed a supplemental report from Dr. Cave on January 23, 2012, and chose to
keep Dr. Cave as their testifying expert in this case. Special Master Vowell noted that during the
last four years before her Decision was filed, Petitioners --
modified their claim repeatedly, raising new theories and re-litigating old ones, but ***
failed to produce reliable evidence that any vaccine or combination of vaccines that
A.H.M. received actually caused her condition.
2015 WL 5456093 at *1.
An evidentiary hearing was held on May 10, 2013, in which Dr. Cave was the sole expert
for Petitioners, and Dr. Max Wiznitzer, a pediatric neurologist, testified for Respondent.
On August 18, 2015, Special Master Vowell filed her Decision denying Petitioners’ claim
for Program compensation. (ECF No. 79.) That decision will be discussed in detail in Section
8
IV of this Decision below. Petitioners did not seek review of that Decision, so that judgement
denying their claim was entered on September 18, 2015. (ECF No. 83.)
Due to Special Master Vowell’s imminent retirement, the case was reassigned to my
docket on August 21, 2015. (ECF No. 81.)
On March 7, 2016, Petitioners filed an application seeking attorneys’ fees and costs
incurred in their attempt to gain compensation in this proceeding. (ECF No. 84.) They seek a
total of $63,668.82 in fees and costs. Respondent filed a short Response on March 23, 2016,
arguing generally that I should award a reduced amount, but offering no substantial analysis of
the application. (ECF No. 85.) The Respondent takes the position that the Vaccine Act does not
contemplate a “role for Respondent in the resolution of a request by a petitioner for an award of
attorneys’ fees and costs,” (id., p. 1), and requests that the special master “exercise his
discretion” in determining a reasonable award (id., p. 4).
IV
SPECIAL MASTER VOWELL’S DECISION
Special Master Vowell rejected the Petitioners’ claim in a Decision filed on August 18,
2015. Although the special master provided a lengthy discussion of why she denied the
Petitioners’ claim, I will highlight a few of her points here.
A. General deficiencies in Dr. Cave’s qualifications and Petitioners’ presentation
Special Master Vowell found that, in general, Dr. Cave’s and Mr. Cave’s presentations
were poorly developed and quite unpersuasive. She summarized that --
Petitioners’ hearing presentation and post-hearing arguments were not well-developed or
presented. In spite of my cautions during several status conferences and in orders that I
did not intend to permit re-litigation of the rejected OAP test case theories, absent new
evidence, Dr. Cave presented testimony about mercury, oxidative stress, and brain
inflammation that had been heard and rejected in the OAP test cases, without producing
any new evidence. The presentation of their new mitochondrial disorder theory was
highly speculative, poorly explained by Dr. Cave, and did not fit the facts of petitioners’
case.
2015 WL 5456093, at *7 (footnote omitted). In her discussion, Special Master Vowell
emphasized that --
Dr. Wiznitzer’s qualifications to opine on the causes of ASD and whether A.H.M. has
ASD, or a mitochondrial dysfunction masquerading as ASD, far exceed those of Dr.
Cave. Doctor Wiznitzer is more highly credentialed in relevant areas such as pediatrics
and neurology than Dr. Cave.
2015 WL 5456093, at *11. The special master noted that while Dr. Cave is board-certified in
family medicine, Dr. Cave was severely underqualified to testify in the specialized area
concerning the causation of ASDs. 2015 WL 5456093, at *8. Special Master Vowell stated that
9
Despite her lack of training, research, or board certification in relevant disciplines, Dr.
Cave opined on a range of medical conditions, but offered little support for her opinions,
*** [and gave] sweeping statements about causation (see, e.g., Tr. at 70-71) and opinions
in areas in which she has neither the training nor the experience to opine credibly.
Id., at *11. The special master summarized that Dr. Cave had “poor qualifications to opine as an
expert” in this case. Id. at *12.
B. Dr. Cave’s and Mr. Cave’s misreading and/or disregard of the medical records
One significant aspect of Special Master Vowell’s reasoning in rejecting Petitioners’
claim was that --
after reviewing the entire record and weighing the experts’ testimony, I conclude that the
symptoms and behaviors that Dr. Cave relied upon for her conclusion that A.H.M.
regressed did not occur as she described them.
2015 WL 5456093, at *24. For example, regarding Dr. Cave’s assertion that A.H.M.
experienced a “sudden” or “dramatic” reaction to either his June 1999 or September 1999
vaccinations, Special Master Vowell found that assertion to be incorrect. Id. at *25. She found
that that statement by Dr. Cave was inconsistent with the contemporaneous medical records. Id.
She also found that Dr. Cave’s assertion that A.H.M. experienced a sharp increase in illnesses
after the September vaccination was also inconsistent with the contemporaneous medical
records. Id. The Special Master further found that Dr. Cave’s testimony about A.H.M.’s
language “demonstrated a lack of familiarity with and a selective reading of the information
contained in A.H.M.’s records.” Id. at *26. She also observed that “Doctor Cave’s assertions
about a developmental regression were based on a selective reading of the medical records.” Id.
at *27.
In short, Special Master Vowell criticized both Dr. Cave and Mr. Cave for basing their
allegations of vaccine-caused injury upon a major distortion of the facts of A.H.M.’s case. She
stated that “Petitioners’ assertions regarding the factual predicate for their claims are so far
removed from the facts of this case that I could deny petitioners’ claims on that basis alone.”
2015 WL 5456093, at *37.
C. Dr. Cave’s confused and incorrect testimony concerning an alleged “mitochondrial
disorder”
One major difference between the opposing experts was whether A.H.M. suffered from a
mitochondrial disorder, as Dr. Cave asserted. On this point, Special Master Vowell stated that
“[n]o treating physician or specialist ever diagnosed A.H.M. with a mitochondrial disorder,
mitochondrial disease, or mitochondrial dysfunction.” 2015 WL 5456093 at *28. The special
master engaged in a lengthy analysis of the “Morava Criteria” for identifying the existence of a
mitochondrial disorder (id. at 30-34), and found that Dr. Cave’s attempt to use those criteria
“reflected a fundamental misunderstanding of the nature of the symptoms involved in
mitochondrial disorders and how such disorders are diagnosed” (id. at *30). She added that
Petitioners’ presentation of their mitochondrial disorder theory “was highly speculative, poorly
explained by Dr. Cave, and did not fit the facts of Petitioners’ case.” Id. at *7. The special
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master found that Dr. Cave was clearly wrong in asserting that A.H.M. suffered from either a
“mitochondrial disorder” or a “mitochondrial dysfunction.” Id. at *34-36.
D. The Petitioners’ “Table Injury” claim
As Special Master Vowell pointed out in her Decision, there are two ways to establish
entitlement to causation under the Vaccine Act -- either by demonstrating that the vaccinee
suffered a “Table Injury,” or by demonstrating that one or more vaccines “caused-in-fact” an
injury to the vaccinee. 2015 WL 5456093, at *36. Less than one month before the hearing in
this case, Petitioners for the first time raised a claim of “Table Injury encephalopathy,” allegedly
occurring after the vaccinations of September 1999. 2015 WL 5456093, at *7. After listening to
their Table Injury claim at the evidentiary hearing, Special Master Vowell found the claim to be
without merit. Id. at *37-39. She found the claim to be “poorly articulated.” Id. at *37. The
special master found --
nothing in the record to indicate A.H.M. suffered any reaction to the DTaP and MMR
vaccines she received on September 15, 1999, much less an encephalopathy as defined in
the *** Vaccine Injury Table. Certainly, she did not suffer an acute encephalopathy
within the time periods required by the Vaccine Injury Table. See 42 C.F.R. §
100.3(a)II.B and III.B.
Id. at *38.
Further, quite relevantly to this Decision’s ruling concerning “reasonable basis,” Special
Master Vowell concluded not only that Petitioners’ Table Injury claim was without merit, but
added that -- “[u]nder the facts of this case, it was unreasonable to maintain that A.H.M.
experienced a Table encephalopathy.” Id. at *37 (emphasis added).
E. Petitioners’ “causation-in-fact” claims in general
I have already discussed above that Special Master Vowell found the “mitochondrial
disorder” aspect of Petitioners’ “causation-in-fact” claim to be wrong, and reflective of a
“fundamental misunderstanding” of the science concerning that alleged disorder. 2015 WL
5456093, at *30. As to other aspect of Petitioners’ two-pronged “causation-in-fact” theory in
this case, Special Master Vowell again found Petitioners’ claims to be completely unpersuasive.
Id. at *39-43. The special master listed many defects in Dr. Cave’s presentation. For example,
Special Master Vowell observed that --
Doctor Cave provided few details about and little support for her theory. The medical
literature offered by Dr. Cave either did not indicate what she claimed or did not provide
support for her theories. She referred to oxidative stress on several occasions but failed to
explain how the vaccines A.H.M. received could have caused oxidative stress sufficient
to result in the damage she describes. Identifying the “toxins” in the vaccines A.H.M.
received, Dr. Cave listed monosodium glutamate and heavy metals such as aluminum and
mercury but sometimes included other components as well as the live virus itself. See,
e.g., Pet. Ex. 11–a at 10–11. She offered no information regarding the quantities required
for toxicity, the quantities present in the vaccines, or any reliable evidence that these
11
amounts could cause mitochondrial dysfunction, impair mitochondrial dysfunction or
cause ASD to develop.
2015 WL 5456093, at *41 (footnote omitted). The special master also noted that during the
evidentiary hearing, “Doctor Cave switched with abandon between *** variations of her theory.”
Id.
F. Summary comments of Special Master Vowell
Special Master Vowell summarized that “Petitioners’ hearing presentation and post-
hearing arguments were not well-developed or presented.” 2015 WL 5456093, at *7. The
special master found the “content” of Dr. Cave’s opinion and testimony to be “troubling.” Id. at
*12. She noted inconsistencies in Petitioners’ presentation, noting, for example, that --
[p]recisely how petitioners squared their claim in the petition that A.H.M. suffered a
progressive decrease in brain function with their claim that A.H.M. improved on
treatment and now has fewer deficits was never elucidated.
Id. at *6.
The special master also noted with concern that at the evidentiary hearing Mr. Cave first
stated that he had talked with Petitioner Kellie Miller on the night before the hearing, but later
admitted that he had not been in contact with the Petitioners for some months before the hearing.
2015 WL 5456093, at *5.
Finally, Special Master Vowell also commented that Mr. Cave’s election to utilize his
mother as his sole expert witness at the evidentiary hearing reflected poorly on the “judgment” of
Mr. Cave in presenting his clients’ case. 2015 WL 5456093, at *12.
V
DETERMINATION CONCERNING “REASONABLE BASIS”
A. There was a reasonable basis prior to the decision to engage Dr. Cave as the testifying
expert.
As set forth above in Section II of this Decision, in the early 2000s major controversies
arose as to the question of whether autism spectrum disorders might be caused or otherwise
affected by either MMR vaccines or thimerosal-containing vaccines. Therefore, thousands of
parents filed Vaccine Act claims during the early 2000s alleging that their children’s ASDs were
vaccine-caused. I and other special masters have found that these claims were brought in good
faith. Further, given the scientific uncertainty at the time, I find that the filing of this particular
petition in 2002, along with thousands like it, was reasonable. It was further reasonable to keep
such claims, including this one, pending until the OAP “test cases” became final in 2010, and for
some period of time thereafter, in order for counsel to digest the complicated science, and to
consult with qualified experts to see if a reasonable basis to go forward with the claims could be
12
found. Accordingly, I will compensate counsel in this case for his reasonable efforts in filing the
petition, and for his efforts up until the time in 2011 that he chose an unqualified expert, his own
mother, to become his expert witness.
B. There was no reasonable basis to pursue this case subsequent to the decision to engage Dr.
Cave as the testifying expert.
As demonstrated by the excerpts from Special Master Vowell’s opinion cited above, that
special master clearly was of the opinion that Petitioners’ counsel and Dr. Cave presented an
extremely defective case. After reviewing the record of this case myself, I agree with all of
Special Master Vowell’s comments. I have reviewed Dr. Cave’s expert reports and other filings,
Dr. Cave’s testimony during the evidentiary hearing, and the many filings of Mr. Cave on
Petitioners’ behalf, including his post-hearing memorandum. I conclude, like Special Master
Vowell, that Petitioners’ and Dr. Cave’s pre-hearing, hearing, and post-hearing arguments were
extremely poorly developed and presented -- to the point of being, in essence, frivolous.
I agree with Special Master Vowell that Dr. Cave, certified in family medicine but
without any special training or qualifications pertinent to the main issues in this case -- i.e.,
whether a Table Injury encephalopathy took place, whether A.H.M. suffered from a
mitochondrial disorder, or the causation of autism spectrum disorders -- was unqualified to
present a persuasive opinion in this case. E.g., 2015 WL 5456093, at *7, *11, *12.
I agree with Special Master Vowell that the presentations of both Dr. Cave and Mr. Cave
were based upon a serious misreading and/or a disregard of the medical records pertaining to
A.H.M. E.g., 2015 WL 5456093, at *24-27, *37. For example, the medical records do not
support Dr. Cave’s assertion that A.H.M. suffered a “sudden” or “dramatic” reaction after either
her June 1999 or September 1999 vaccinations. Id. at *25. As the Special Master summarized,
“Petitioners’ assertions regarding the factual predicate for their claims are *** far removed from
the facts of this case.” Id. at *37.
I also agree with Special Master Vowell that Dr. Cave’s testimony about an alleged
“mitochondrial disorder” in A.H.M. was confused and plainly incorrect. 2015 WL 5456093 at
*28-36. As that special master concluded, Dr. Cave’s testimony concerning that issue “reflected
a fundamental misunderstanding of the nature of the symptoms involved in mitochondrial
disorders and how such disorders are diagnosed.” 2015 WL 5456093, at *30.
Further, I agree with Special Master Vowell that Mr. Cave’s and Dr. Cave’s argument
that A.H.M. suffered a “Table Injury encephalopathy” was completely contradicted by the
medical records, and completely devoid of merit. 2015 WL 5456093, at *37-39. The special
master went so far as to remark that it was “unreasonable” for Mr. Cave and Dr. Cave to argue
that A.H.M. experienced a Table Injury encephalopathy. Id. at *37.
I also agree with Special Master Vowell that, in addition to Dr. Cave’s misguided
“mitochondrial disorder” contention mentioned above, the other aspects of Petitioners’
“causation-in-fact” theories were completely unpersuasive. 2015 WL 5456093, at *39-43.
Accordingly, in light of all the gross deficiencies in Petitioners’ case described above, I
come inevitably to the conclusion that there was no reasonable basis for Petitioners’ counsel to
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go forward with this extremely weak case, subsequent to his decision in 2011 to engage Dr. Cave
as Petitioners’ testifying expert. The only reasonable course for Petitioners’ counsel at that time,
given the facts in the medical record, and if the only expert that he could obtain was Dr. Cave,
was either to persuade Petitioners to abandon their claim, or, failing that, to withdraw from the
case. For Mr. Cave to incur the expense of Dr. Cave’s defective reports, then to push this case
forward to an evidentiary hearing on the basis of theories that were so unpersuasive, and so
contrary to the actual medical records of A.H.M., was simply not reasonable.
Adding to the lack of reasonable basis in this case is that prior to 2011, when Mr. Cave
solicited the report of Dr. Cave, there were several strong indications, of which Mr. Cave was
aware, that he was retaining an underqualified and unpersuasive expert. For example, in Nilson
v. HHS, No. 98-797V, 2005 WL 6122524 (Fed. Cl. Spec. Mstr. Aug. 31, 2005), Special Master
Sweeney (now Judge Sweeney) compared the expert reports and testimony of Dr. Cave and Dr.
Wiznitzer regarding several disputed issues, and found that Dr. Wiznitzer’s opinion on each was
more credible. Id. at *17-20. The special master concluded that “[i]n this case, Dr. Cave’s
theories of causation were effectively rebutted by a highly-credentialed pediatric neurologist, Dr.
Wiznitzer, whose testimony was far more credible and compelling.” Id. at *20. In Berge v. HHS,
No. 08-223V, 2010 WL 3431601 (Fed. Cl. Spec. Mstr. Aug. 2, 2010), Special Master Vowell
dismissed the case largely because of the fact that “Dr. Cave’s expert report being premised upon
information supplied by the parents, [without discussing] the medical records at all, that opinion
is rejected as without factual predicate.” Id. at *2 (citation omitted). Thus, in 2010 Dr. Cave was
made aware of the necessity to substantiate her factual allegations in Vaccine Act cases by citing
the medical records, but nevertheless, she failed to do so in this case. Thus, the Nilson and Berge
opinions demonstrate that by 2011 Mr. Cave should have been aware that Dr. Cave was not a
credible witness for this case.6
VI
NOTATION CONCERNING “REASONABLE BASIS” IN AUTISM CASES IN
GENERAL
As discussed above in Section II of this Decision, in the early 2000s controversies arose
concerning whether autism spectrum disorders might be caused or affected by vaccines. Thus,
thousands of Vaccine Act claims were filed during those years alleging that ASDs were vaccine-
caused. These claims were certainly brought in good faith. Further, in light of the scientific
uncertainty at the time, I find that the filing of those petitions was reasonable. It was further
reasonable to keep such claims pending until the OAP “test cases” became final in 2010, and for
6
I also note that in Mooney v. HHS, No. 05-266V, 2014 WL 7715158 (Fed. Cl. Spec. Mstr.
Dec. 29, 2014), Special Master Vowell declined to award costs for the production of Dr. Cave’s
expert opinion, awarding only a small amount for “consultation” services, and added that “I am
unlikely to authorize Dr. Cave’s consultant fees for hearing preparation in any similar cases filed
by Mr. Cave.” Id. at *14.
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some period of time thereafter, in order for counsel for each petitioner to digest the complicated
science, and to consult with experts to see if a reasonable basis to go forward could be found.
However, by the end of 2010, the two major theories of vaccine-causation of autism had
been thoroughly considered and rejected in the OAP test cases, with opinions that, among other
things, found that all of the many reputable epidemiological studies had found no association
between any vaccines and autism. At that point, the vast majority of the approximately 5,000
autism petitioners elected either to withdraw their claims, or to request that the special master
enter a decision denying their claim on the written record. Only a small minority of the autism
petitioners elected to continue to pursue their cases, seeking other causation theories and/or other
expert witnesses. Since 2010, a number of such cases have gone to trial before special masters,
and in the cases of this type decided thus far, all have resulted in rejection of petitioners’ claims
that vaccines were the cause-in-fact of their children’s ASDs. See the cases cited above in
Section II.
There is now, therefore, a serious question concerning whether it is reasonable for
additional Vaccine Act petitioners to continue to pursue highly speculative theories concerning
vaccinees with autism spectrum disorders. In each such case, of course, a case-specific decision
must be made concerning if and when it became unreasonable, under all the circumstances of the
case, to continue to go forward. In many of the cases since 2010, as in this case, petitioners have
tried to avoid the conclusions of the test cases by alleging that a child suffered a vaccine-caused
“encephalopathy” that resulted in “autistic-like features,” or that a child had an underlying
“mitochondrial disorder” that somehow made the child more vulnerable to injuries by vaccines.
But such cases, in essence, have amounted to attempts to prove that vaccines can cause or
aggravate symptoms of ASDs. And, except for the two highly unusual Table Injury cases
described at footnote 4 above, all such theories have been rejected.
Further, a review of the post-test case decisions enumerated in Section II above
demonstrates that those cases typically involved expert witnesses who were quite underqualified
to opine on the vaccine-causation issues at hand, and/or presented theories with no substantial
scientific merit, and/or disregarded the facts contained in the medical records of the case.
Accordingly, I hereby put counsel, especially in autism-related cases, on notice, once
again, that if counsel continue to go forward with such extremely weak cases, I am not likely to
find that there was a reasonable basis for their continued prosecution of the case.
VII
CALCULATIONS OF FEES AND COSTS AWARDED
1. Attorney’s hourly rates
Attorney Cave has practiced law since 1999. In this case, he seeks compensation at the
hourly rates of $161 for attorney services performed in 2002; $165 for 2003; $169 for 2004;
$175 for 2005; $181 for 2006; $186 for 2007; $193 for 2008; $248 for 2009; $253 for 2010;
$261 for 2011; and higher amounts for 2012 to 2015. (ECF No. 84-2.) The rates for 2006 –
15
2011 are the same as or quite similar to the rates that Special Master Vowell granted to him for
those years in the case of Mooney v. HHS, 2014 WL 7715158, at *9. I find those claimed rates
to be reasonable. I will compensate Mr. Cave at his claimed rates from 2002 through 2011.
2. Attorney hours in general
I find reasonable the number of hours Mr. Cave billed for 2002 through 2010, for the reasons
set forth above. As to the hours billed for 2011, I will compensate Mr. Cave for the hours billed
from the beginning of that year through May 31, 2011. Based on Mr. Cave’s billing records,
however, it appears that about that time Mr. Cave solicited an expert report from Dr. Cave,
which he “reviewed” on July 15, 2011. (ECF No. 84-4, p. 2.) I will not compensate Mr. Cave
for the hours after May 31, 2011, for the reasons cited above -- i.e., as explained, I find no
reasonable basis for Mr. Cave to solicit an expert report from Dr. Cave, and I find no reasonable
basis for the claim for Vaccine Act compensation that Mr. Cave and Dr. Cave put forward after
that time.
3. Summary of attorney hours
Utilizing Mr. Cave’s summary in his fees application (ECF No. 84-4, p. 9), I award him the
fees requested for 2002 through 2010, which total $3,440.02. For 2011, I award him fees for the
hours claimed through May 31, 2011. (3.66 hours times $261 per hour = $956.82.)
4. Costs
Of the costs claimed at ECF No. 84-4, p. 9, I allow only the $150 for the filing fee paid in
2002. I deny the other costs claimed on that page, as they were all incurred during 2012. (ECF
No. 84-4, pp. 13-20.) I also deny all costs claimed at ECF No. 84-4, p. 10, consisting of $25,443
paid to Dr. Cave, plus the costs of the evidentiary hearing.
5. Summary
As explained above, I award Petitioners $150 in costs, $3,440.02 for Mr. Cave’s services in
2002-2010, and $956.82 for Mr. Cave’s services in January through May of 2011, for a total
award of $4,546.84.
VIII
CONCLUSION
For the foregoing reasons, I award Petitioners $4,546.84 in attorneys’ fees and costs. The
$4,546.84 award shall be made in the form of a check payable jointly to Petitioners and
Petitioners’ counsel. The Clerk of this Court shall enter judgment accordingly.
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IT IS SO ORDERED.
/s/ George L. Hastings, Jr.
George L. Hastings, Jr.
Special Master
17