Taylor v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

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

BETH TAYLOR, *

N/F of K.S., a Minor, * No. 16-1382V

* Special Master Christian J. Moran

Petitioner, *

v. *

* Filed: October 30, 2017

SECRETARY OF HEALTH *

AND HUMAN SERVICES, * Attorneys’ fees and costs; subject

* matter jurisdiction; capacity to file

Respondent. * petition for minor; reasonable basis

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

Scott W. Rooney, Nemes, Rooney P.C., Farmington Hills, MI, for petitioner;

Adriana R. Teitel, United States Dep’t of Justice, Washington, DC, for respondent.

DECISION DENYING MOTION FOR ATTORNEYS’ FEES AND COSTS 1

Attorney Scott Rooney requests that he be compensated for work he

performed in this case. The person for whom Mr. Rooney performed this work is

not entirely clear, as discussed below. Because of the uncertainty of the

petitioner’s legal relationship to the allegedly injured minor (K.S.), the Secretary

argues that a lack of subject matter jurisdiction precludes an award of attorneys’

fees and costs. This argument is not persuasive. Separately, the Secretary also

opposes an award of attorneys’ fees and costs due to a lack of reasonable basis.

This point, which Mr. Rooney has not addressed, is meritorious. Thus, the motion

is DENIED.

1

The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and

Promotion of Electronic Government Services), requires that the Court post this decision on its

website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing

redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4).

Any redactions ordered by the special master will appear in the document posted on the website.

I. Background

A critical event happened on August 29, 2012. On that date, a Michigan

state court ordered that Nathan Silva have sole legal and physical custody of the

daughters he shared with Beth (Silva) Taylor. Exhibit 7. One of those girls is

K.S., the person who was allegedly harmed by a vaccine administered on October

25, 2013. 2

Approximately five months after the vaccinations, Mr. Rooney’s assistant

prepared a letter identified as “Silva.” Timesheets.3 Mr. Rooney stated that Mr.

Silva originally retained him by oral agreement. Fees Mot. ¶ 2. Over the next two

years, Mr. Rooney and an assistant worked on the case, primarily gathering

medical records, sporadically. Months passed without any work being recorded on

the timesheets. On September 28, 2016, Mr. Rooney spoke via telephone with

Beth Taylor, whom Mr. Rooney identified as “mother of child client.” Timesheets.

On October 24, 2016, Mr. Rooney filed a petition alleging K.S. was injured

by a vaccination. The caption of the petition and paragraph 4 of the petition

identify Ms. Taylor as “next friend” of K.S.

By January 2017, Ms. Taylor informed Mr. Rooney that she did not want to

pursue this claim. Fees Mot. ¶ 9; see also id. at ¶ 11 (recounting similar

communication with Ms. Taylor in December 2016). With this information, Mr.

Rooney filed a motion to withdraw as counsel. Mr. Rooney’s motion explained

Ms. Taylor told him that Mr. Silva “now has legal custody of K.S. and he wishes to

retain another attorney.” Mot. to Withdraw as Counsel, filed Feb. 14, 2017, ¶ 6. In

response, Mr. Rooney was instructed to file relevant custody documents. Order,

issued Feb. 23, 2017.

On March 17, 2017, Mr. Rooney filed the 2012 Custody Order as exhibit 7.

Because this order indicated that Mr. Silva, not Ms. Taylor, was the custodial

parent of KS, the petitioner was instructed to address certain questions regarding

the authority to prosecute actions on behalf of a minor. Order, issued March

20, 2017.

2

The petition also states that K.S. received a vaccination on November 22, 2013, but the

filed immunization records do not show that a vaccination occurred on that date. Pet. at 2;

exhibit 2 at 1 (only listing vaccinations administered on October 25, 2013).

3

The timesheets are found as exhibit 1 to the Mot. for Attorneys’ Fees and Costs, filed

July 13, 2017 (Fees Mot.).

2

Under a caption continuing to identify the petitioner as Beth Taylor as the

K.S.’s best friend, Mr. Rooney filed a status report on March 24, 2017. In this

status report, Mr. Rooney stated that Mr. Silva requested withdrawal of the case.

Then, on April 14, 2017, Mr. Rooney filed another status report, indicating

that both Mr. Silva and Ms. Taylor requested withdrawal. In the April 14, 2017

status report, Mr. Rooney identified Rule 2.201(E)(1)(b) of the Michigan Rules of

Court (MCR) as authorizing Ms. Taylor to prosecute this action. This provision

provides: “If a minor or incompetent person does not have a conservator to

represent the person as plaintiff, the court shall appoint a competent and

responsible person to appear as next friend on his or her behalf, and the next friend

is responsible for the costs of the action.” However, Mr. Rooney acknowledged

that a court has not appointed Ms. Taylor as K.S.’s best friend and Ms. Taylor did

not sign a form to act as K.S.’s best friend.

Having learned about the 2012 Custody Order, the Secretary filed a motion

to dismiss the case on April 24, 2017. The Secretary essentially argued that a non-

custodial parent does not automatically qualify as the “legal representative” of a

minor under section 11(b)(1)(A) of the Vaccine Act. The Secretary concluded:

“Because Ms. Taylor was not recognized as a legal guardian of K.S. under

Michigan law at the time the petition in this case was filed, she cannot be deemed a

‘legal representative’ of K.S. as the term is used in § 11(b(1)(A) of the Vaccine Act

and thus lacked standing to file the petition. Therefore, this vaccine injury claim

must be dismissed on jurisdictional grounds.” Resp’t’s Mot. to Dismiss, filed Apr.

24, 2017, at 4.

The undersigned issued an order concluding proceedings on May 30, 2017.

The undersigned expressly refrained from resolving the question of subject matter

jurisdiction, noting that the parties could address that issue if a motion for

attorneys’ fees and costs were filed.

Mr. Rooney filed such a motion on July 13, 2017. Mr. Rooney emphasized

his desire to protect the interest of K.S. He stated:

Petitioner’s counsel believes that the acts of Petitioner’s counsel in trying to

ensure that the rights of the minor child were protected in light of a statute of

limitations issue, that Petitioner’s counsel should be entitled to attorney fees

and costs as Petitioner’s counsel’s efforts undertaken, in order to protect the

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rights of the minor child, which were not properly being protected by the

parents of the minor child.

Fees Mot. ¶ 14. In addition to preserving K.S.’s vaccine claim, Mr. Rooney

suggests that by filing the vaccine petition he may have also preserved K.S.’s state

product liability claim. Id. at ¶ 16. Mr. Rooney further emphasized the oral

representations from Ms. Taylor and Mr. Silva:

Petitioner’s counsel believes that the actions of Petitioner’s counsel, in an

effort to adequately protect the rights of the minor child, should outweigh

whether or not a retainer agreement had been signed and whether Beth

Taylor had had legal custody of the minor child, as representations had been

consistently made that Beth Taylor was authorized to act on behalf of the

minor child. Additionally, the father Nathan verbally stated that he

authorized Beth to act on the behalf of K.S. There is nothing that prevents

the custodial parents from authorizing another to act on behalf of the child as

was done in this case.

Id. at ¶ 19.

The Secretary opposed the motion with two arguments. First, the Secretary

incorporated her April 24, 2017 arguments that subject matter jurisdiction was

lacking. Second, the Secretary contended that the case lacked reasonable basis.

Mr. Rooney filed a reply on September 15, 2017. He addressed the

Secretary’s arguments regarding subject matter jurisdiction.4 But, he left

unaddressed the Secretary’s arguments regarding reasonable basis.

II. Analysis

The Secretary is opposing Mr. Rooney’s motion for an award of attorneys’

fees and costs for two reasons. First, the Secretary argues subject matter

jurisdiction is lacking. Second, the Secretary contends that the petition was not

supported by a reasonable basis. These arguments are considered in turn.

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As discussed below, Mr. Rooney’s September 15, 2017 reply cited new authority to

support subject matter jurisdiction. Considering that Mr. Rooney was aware of the Secretary’s

arguments regarding subject matter jurisdiction since the April 24, 2017 motion to dismiss and

that Mr. Rooney was directed to address subject matter jurisdiction in the May 30, 2017 order

concluding proceedings, the better practice would have been to include these arguments in the

initial motion.

4

Subject Matter Jurisdiction

“Every federal court has the responsibility to determine whether it, as well

any tribunal it is reviewing, has jurisdiction.” Martin v. Sec’y of Health & Human

Servs., 62 F.3d 1403, 1406 (Fed. Cir. 1995). The Secretary has challenged the

subject matter jurisdiction by presenting an argument with two steps. First, the

Secretary maintains that “Ms. Taylor cannot be considered a legal representative of

K.S. for purposes of the Vaccine Act.” Resp’t’s Mot. to Dismiss, filed Apr. 24,

2017, at 3. Second, when the wrong person files a petition, a court lacks subject

matter jurisdiction. On the first step, the Secretary may or may not be correct.

Resolution of this issue is not required because on the second step, the Secretary is

mistaken.

Whether a non-custodial parent may automatically file a lawsuit for her (or

his) minor child is not entirely clear. In section 11(b), which is captioned

“Petitioners,” the Vaccine Act states “the legal representative of . . . a minor” may

file a petition. 42 U.S.C. § 300aa-11(b)(1)(A). The Vaccine Act defines “legal

representative” as “a parent or an individual who qualifies as a legal guardian

under State law.” 42 U.S.C. § 300aa-33(2).

The question is does the clause “who qualifies as a legal guardian under

State law” modify the term “parent?” The Secretary maintains that “the phrase

‘who qualifies as a legal guardian under State law’ applies to both ‘parent’ and

‘individual.’ A ‘legal representative’ under the Act is thus properly defined as ‘a

parent who qualifies as a legal guardian under State law’ or ‘an individual who

qualifies as a legal guardian under State law.’” Resp’t’s Mot. to Dismiss at 1-2.

However, one judge of the Court of Federal Claims disagreed with this

position. Relying upon the “last antecedent rule,” the Court stated “parents are

always viewed as the legal guardians of a son or daughter, whether or not they also

qualify as such under state law.” Kennedy v. Sec’y of Health & Human Servs., 99

Fed. Cl. 535, 542 (2011), aff’d without op., 485 F. App’x 435 (Fed. Cir. 2012).

Kennedy, however, recognized that “the statutory language here is hardly a picture

of clarity.” Id.; accord Spates v. Sec’y of Health & Human Servs., 76 Fed. Cl. 678,

681 n.1 (2007) (recognizing an ambiguity in “whether a parent is a legal

representative per se, irrespective of state law, or whether a parent must

simultaneously qualify as a legal guardian under state law to be a legal

representative under the Act”).

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The Secretary did not directly address Kennedy, which Mr. Rooney did not

cite until his September 15, 2017 reply. Absent a more detailed analysis of the

statute and Kennedy from the parties, the undersigned sees little need to delve

deeply into exploring whether non-custodial parents are automatically legal

representatives of their children.

Analyzing the rights of non-custodial parents is not required because even if

Ms. Taylor could not function as the legal representative of K.S., the Secretary’s

proposed consequence — a dismissal for lack of subject matter jurisdiction — is

not correct. An improper petitioner does not require a dismissal for lack of subject

matter jurisdiction.

The final two sentences of the Secretary’s motion to dismiss reveal the gap

in the Secretary’s reasoning.

Because Ms. Taylor was not recognized as a legal guardian of K.S. under

Michigan law at the time the petition in this case was filed, she cannot be

deemed a “legal representative” of K.S. as the term is used in § 11(b)(1)(A)

of the Vaccine Act and thus lacked standing to file the petition. Therefore,

this vaccine injury claim must be dismissed on jurisdictional grounds.

Resp’t’s Mot. to Dismiss at 4. “Thus” and “therefore” do not replace substantive

legal analysis.

The Secretary seems to overlook Cloer v. Sec’y of Health & Human Servs.,

654 F.3d 1322 (Fed. Cir. 2011) (en banc). Before Cloer, the Federal Circuit held

the Vaccine Act’s statute of limitation was an aspect of subject matter jurisdiction.

Brice v. Sec’y of Health & Human Servs., 240 F.3d 1367 (Fed. Cir. 2001).

However, the en banc Federal Circuit overruled Brice, making a failure to file

within the statute of limitations a defense subject to equitable tolling, but not a

jurisdictional limitation. Cloer, 654 F.3d at 1340-44. In doing so, the Federal

Circuit cited and distinguished Martin. Id. at 1341 n.9. Thus, Cloer demonstrates

that some defenses are jurisdictional and some defenses are not. The ensuing

question — one the parties largely skip past — is on what side of the jurisdictional

line does an improper petitioner fall?

The answer is found in Rule 17 of the Rules of the Court of Federal Claims.

Although this rule is not part of the Vaccine Rules, special masters may rely upon

it. Hodge v. Sec’y of Health & Human Servs., No. 09-453V, 2015 WL 9685916,

at *5-6 (Fed. Cl. Spec. Mstr. Dec. 21, 2015) (citing Kennedy, 99 Fed. Cl. at 542).

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Rule 17 directs a court to appoint a guardian ad litem to protect a minor who is

unrepresented in an action. The way Rule 17 authorizes a court to take remedial

measures contradicts the Secretary’s assertion that problems with the identification

of parties is jurisdictional because the solution to a jurisdictional problem is to

dismiss the action. See Strategic Housing Financing Corp. of Travis County v.

United States, 608 F.3d 1317, 1332 (Fed. Cir. 2010) (noting that when the Court of

Federal Claims lacks subject matter jurisdiction, it should not have analyzed the

agency’s actions under the Administrative Procedure Act); Johns-Manville Corp.

v. United States, 893 F.2d 324, 327 (Fed. Cir. 1989) (“where the court has no

jurisdiction, it has no power to do anything but strike the case from its docket”).

When other courts have considered the analogous provision of the Federal Rules of

Civil Procedure, they have reached a similar conclusion. See, e.g., Summers v.

Interstate Tractor & Equip. Co., 466 F.2d 42, 50 (9th Cir. 1972) (stating “The

question of a litigant’s capacity or right to sue or to be sued generally does not

affect the subject matter jurisdiction of the district court”); 6A Charles Alan

Wright & Arthur R. Miller, Federal Practice and Procedure § 1559 (3d ed. 2008).

For these reasons, this court possesses subject matter jurisdiction over Ms.

Taylor’s petition.

Reasonable Basis

Finding subject matter jurisdiction is a condition for the undersigned to act

upon Mr. Rooney’s motion for an award of attorneys’ fees and costs. To be

granted these fees and costs, a petitioner must also meet the eligibility

requirements set forth in the Vaccine Act. Here, as an unsuccessful petitioner, Ms.

Taylor bears the burden of showing that “the petition was brought in good faith

and there was a reasonable basis for the claim for which the petition was brought.”

42 U.S.C. § 300aa-15(e)(1).

Here, while the Secretary has not presented any argument regarding good

faith, the Secretary challenges whether “there was a reasonable basis for the claim

for which the petition was brought.” See Resp’t’s Resp. to Mot. for Attorneys’

Fees and Costs, filed July 31, 2017. This objection requires an analysis of the

petition.

Relevant allegations in the petition include the following, which are

paraphrased:

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1. Petitioner, Beth Taylor, is the mother of K.S. and is acting as

K.S.’s next friend.

3. On October 25, 2013, K.S. received the human papillomavirus

vaccine, the hepatitis A vaccine, the influenza vaccine, the meningococcal

vaccine, and tetanus-diphtheria-acellular pertussis vaccine. Exhibit 2

supports this allegation.

11. During an examination on November 1, 2013, K.S. informed her

doctor that she had an upper respiratory infection three weeks earlier.

Exhibit 4 at 32 supports this allegation.

12. The test results from blood drawn on November 1, 2013 showed

that K.S. had very low platelets leading the doctors to diagnose and to treat

K.S. for idiopathic thrombocytopenia purpura (ITP). Exhibit 4 at 34 and

exhibit 3 at 13 support this allegation.

16. On November 7, 2013, K.S. was discharged from DeVos

Children’s Hospital with a diagnosis of ITP. Exhibit 5 at 84 supports this

allegation.

20. K.S. continues to suffer from a reaction to the vaccinations.

21. The vaccinations caused K.S. to suffer ITP.

22. K.S. “has experienced the residual effects of these injuries for

more than six months.”

The Secretary points to gaps in the evidence. For example, the Secretary

asserted that the most recent medical record is from January 2014, which is

approximately three months after K.S. was vaccinated and approximately two

months after she was discharged. Resp’t’s Resp. at 2-3.

Although Mr. Rooney filed a reply, he did not address the Secretary’s

argument regarding reasonable basis. The undersigned’s review of the record has

not identified any medical records created after January 2014. This apparent lack

of medical record leaves questions unanswered because the timesheets show that

Mr. Rooney and his assistant began obtaining medical records in 2014. Mr.

Rooney has not identified any basis, reasonable or otherwise, for the assertions that

8

K.S. continues to suffer from ITP and that K.S.’s injury lasted more than 6

months.5 See Vaccine Rule 8(f)(1).

In addition to noting the lack of evidentiary support for the allegation that

K.S. injuries lasted more than six months, the Secretary raises questions about the

assertion that the vaccinations caused K.S.’s ITP. The Secretary notes that the

petitioner did not submit a report from a separately retained expert.

Once again, the lack of reply from Mr. Rooney regarding reasonable basis

hinders the analysis. The Secretary’s observation that petitioner did not file any

expert report is easy to confirm. However, a petitioner may establish causation by

relying upon “medical records or medical opinion.” 42 U.S.C. § 300aa-13(a)(1).

Here, the undersigned has not identified any “medical record” supporting

causation. At best, Dr. Green, a pediatrician, stated “ITP question if secondary to

coadministration of influenza and HPV.” Exhibit 3 at 12. This record, which

raises a “question,” is not tantamount to a “medical opinion” supporting the claim

in the petition. The undersigned has not found any other record potentially

supporting the claim and Mr. Rooney has not directed the undersigned’s attention

to any other medical record.

Finally, Ms. Taylor’s alleged status as K.S.’s “next friend” was not

supported with evidence. MCR 2.201 establishes a procedure by which a court

could appoint someone to act as a minor’s next friend. This person could be a non-

custodial parent. However, Mr. Rooney forthrightly recognizes that Ms. Taylor

did not take advantage of this provision.

Mr. Rooney’s timesheets contain no indication that he actively investigated

whether Mr. Silva or Ms. Taylor could act as a legal representative of K.S. before

Mr. Rooney filed the petition. This omission is troubling because the issue is one

that an attorney should be capable of investigating, if not actually resolving. Mr.

Rooney had many months to obtain the 2012 Custody Order. Mr. Rooney could

have recommended that Ms. Taylor become K.S.’s next friend using MCR 2.201.

Until Mr. Rooney was on much firmer footing in identifying who his client was,

Mr. Rooney should not have taken further steps in prosecuting the lawsuit.

5

An injury lasting more than six months is one of three ways to demonstrate the severity

requirement. See 42 U.S.C. § 300aa-11(c)(1)(D). Another way is to demonstrate an “inpatient

hospitalization and surgical intervention.” The petition alleges that K.S. underwent a bone

marrow biopsy while hospitalized. Pet. ¶ 17. However, the petition does not allege that a bone

marrow biopsy constitutes a surgical intervention.

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All these factors contribute to the totality of circumstances, sometimes used

to evaluate reasonable basis. Based upon this material and the undersigned’s

experience, the undersigned finds that there was not a reasonable basis for the

claims set forth in the petition. This finding means that the undersigned may not

award attorneys’ fees and costs.

III. Conclusion

The person (or people) authorized to file a petition on behalf of K.S. remains

unsettled and Mr. Rooney’s lack of investigation about this point before filing the

petition is troubling. However, a problem with respect to authority to file on

behalf of another, if it exists, is not a deficit with respect to subject matter

jurisdiction. Thus, the undersigned could award attorneys’ fees and costs if Mr.

Rooney established other eligibility requirements.

Mr. Rooney did not establish one of the statutory elements for awarding

attorneys’ fees and costs to non-prevailing petitioners: reasonable basis. In the

absence of such a finding, the undersigned may not award attorneys’ fees and

costs. Thus, the July 13, 2017 motion for attorneys’ fees and costs is DENIED.

Any questions may be directed to my law clerk, Andrew Schick, at (202)

357-6360.

IT IS SO ORDERED.

s/Christian J. Moran

Christian J. Moran

Special Master

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