stating that the reasonable factual basis is “an objective inquiry”
How later courts described this case
- stating that the reasonable factual basis is “an objective inquiry”
Written by the judges who cited it.
The opinion
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
*********************
ANDREW KOZEL, *
* No. 14-797V
Petitioner, * Special Master Christian J. Moran
*
* Filed: April 2, 2018
v. *
* Attorneys’ fees; reasonable basis;
SECRETARY OF HEALTH * waiver of objections to amount
AND HUMAN SERVICES, *
*
Respondent. *
*********************
Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for petitioner;
Adriana R. Teitel, United States Dep’t of Justice, Washington, DC, for respondent.
PUBLISHED DECISION AWARDING ATTORNEYS’ FEES AND COSTS1
After his petition was dismissed, Andrew Kozel filed a motion for attorneys’
fees and costs. Mr. Kozel is awarded nearly the full amount of his request,
$56,835.24.
* * *
The petition alleged that Mr. Kozel suffered numerous injuries after he
received a series of human papillomavirus (“HPV”) vaccines on June 15, 2012,
August 7, 2012, and December 27, 2012. See Petition, filed Sept. 2, 2014. The
parties developed their cases including obtaining reports from expert witnesses.
While the case was being scheduled for a hearing, Mr. Kozel decided not to
proceed and filed a motion to dismiss his case. Mr. Kozel’s action resulted in a
1
The E-Government Act, 44 § 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.
decision, finding that he was not entitled to compensation. Decision, issued Dec.
11, 2017, 2017 WL 6811903. With the merits of Mr. Kozel’s case resolved, the
parties addressed attorneys’ fees and costs.
Mr. Kozel filed a motion for attorneys’ fees and costs on September 8, 2017.
Mr. Kozel argued that he is eligible for an award of attorneys’ fees and costs
because he fulfills the statutory standard of good faith and reasonable basis. As
evidence for the reasonable basis for the claims set forth in the petition, Mr. Kozel
pointed to the report from one of his treating doctors (Dr. Mielke), the report from
Dr. Axelrod, the report from Dr. Nemechek, and the result of ANSAR testing.
Exhibits 13, 14, 27, and 110. As to the amount of attorneys’ fees and costs, the
motion sought $43,960.50 in attorneys’ fees, $11,685.85 in attorneys’ costs, and
$209.89 in costs personally born by the petitioner.
The Secretary responded on September 22, 2017. With respect to reasonable
basis, the Secretary questioned whether the reports Mr. Kozel submitted satisfied
the reasonable basis standard. The Secretary focused particularly on Dr.
Nemechek’s work. As to the amount of attorneys’ fees and costs, the Secretary did
raise one set of specific objections and otherwise recommended that the special
master “exercise his discretion” when determining a reasonable award. Resp’t’s
Resp., filed Sept. 22, 2017, at 5.
Mr. Kozel submitted a reply. He generally defended the reasonable basis for
his claim and specifically supported the work Dr. Nemechek performed. Pet’r’s
Reply, filed Sept. 27, 2017. Because of a need to file another brief, Mr. Kozel
sought an additional $1,329.00 in attorneys’ fees.
This matter is now ripe for adjudication.
* * *
Because Mr. Kozel did not receive compensation, he must establish that the
“petition was brought in good faith and there was a reasonable basis for the claim”
before he can receive an award of reasonable attorneys’ fees and costs. 42 U.S.C.
§ 300aa–15(e)(1). As noted above, the Secretary questions whether reasonable
basis is satisfied.2
2
The Secretary has not challenged Mr. Kozel’s good faith in filing his petition.
Therefore, the undersigned finds that the petition was filed in good faith.
2
The parties’ briefs do not propose interpretations of the term “reasonable
basis.” “Reasonable basis” is an evidentiary standard, meaning that petitioners
fulfill this statutory requirement by submitting evidence. See Simmons v. Secʼy of
Health & Human Servs., 875 F.3d 632, 636 (Fed. Cir. 2017) (stating that the
reasonable factual basis is “an objective inquiry”). The evidentiary standard for
reasonable basis is lower than the preponderance of the evidence standard. The
type of evidence relevant to determining whether reasonable basis exists includes
two forms of evidence the Vaccine Act mentions: medical records and medical
opinions. See Carter v. Sec'y of Health & Human Servs., 132 Fed. Cl. 372, 380
(2017), citing 42 U.S.C. § 300aa-11(c).
Here, Mr. Kozel identifies the medical opinions of three doctors: Doctors
Mielke, Axelrod, and Nemechek. These are taken up in sequence.
Dr. Lynne R. Mielke
Dr. Mielke is board-certified by the American Board of Psychiatry and
Neurology. She practices “integrative psychiatry,” and treated Mr. Kozel for
several years. Exhibit 13 (Dr. Mielke letter). In this context, she wrote a letter to
Mr. Kozel’s attorney, Mr. Downing, and explained some of Mr. Kozel’s health
problems, including “an autonomic nervous system dysfunction and an immune
system imbalance.” Id. at 2. At the end of her letter, Dr. Mielke stated that “it is
more likely than not that [Mr. Kozel’s] autonomic and immune system
dysfunctions were caused by his receipt of, and reaction to, the [human
papillomavirus] vaccine.” Id.
In opposing Mr. Kozel’s argument that reasonable basis supports his
petition, the Secretary says relatively little about Dr. Mielke. At best, the Secretary
remarks: “No board certified neurologist or immunologist has diagnosed petitioner
with dysfunction.” Resp’t’s Resp. at 4. Although the Secretary may legitimately
distinguish a board-certified neurologist from a board-certified psychiatrist, the
Secretary did not present any argument explaining why a board-certified
psychiatrist is not qualified to opine that Mr. Kozel has “an autonomic nervous
system dysfunction.” And, even if the Secretary had made this argument, the
Secretary would need to go one step further to demonstrate that a doctor’s report
was so blatantly erroneous that the petitioner was not justified in relying upon the
report.
If the case had proceeded to a hearing on entitlement, Dr. Mielke’s opinion
may not have carried the day for Mr. Kozel. But, as noted above, the evidentiary
3
threshold for establishing reasonable basis is less than the preponderance of the
evidence. Dr. Mielke’s report crosses this line.
Dr. David Axelrod
Dr. Axelrod has presented opinions for petitioners in other cases, and Mr.
Downing communicated with Dr. Axelrod in Mr. Kozel’s case. Dr. Axelrod
describes himself as a “clinical immunologist.” Exhibit 14 at 1. Citing one of Mr.
Kozel’s underlying medical records, Dr. Axelrod asserted that Mr. Kozel suffered
from an anxiety disorder. Id. at 2. Dr. Axelrod then put forth a theory to explain
how the HPV vaccine can cause and did cause Mr. Kozel’s anxiety disorder. Id. at
2-4. However, largely because of Dr. Nemechek’s opinion, Mr. Kozel opted not to
pursue a claim based upon Dr. Axelrod’s theory. See Pet’r’s Status Rep., filed
Mar. 16, 2017 (not including Dr. Axelrod as a witness to testify at hearing).
In retrospect, Mr. Kozel’s decision to move away from Dr. Axelrod was
probably wise. Special masters have not found Dr. Axelrod persuasive and his
report in this case seems to stray into topics on which Dr. Axelrod appears to lack
expertise. But, once again, the reasonable basis analysis is not retrospective. At
the time Dr. Axelrod presented his report, Dr. Axelrod did support at least a
portion of the claims set forth in the petition and, therefore, constitutes objective
evidence supporting reasonable basis.
Dr. Patrick Nemechek
Although Doctors Mielke and Axelrod were Mr. Kozel’s experts originally,
he ultimately relied upon Dr. Nemechek. Dr. Nemechek describes himself as a
specialist in internal medicine whose practice “has centered on the diagnosis and
treatment of autonomic-related disorders.” Exhibit 27 at 1. Dr. Nemechek
presented a series of reports. Exhibits 27, 103, 105, and 106. Dr. Nemechek was
asked to file multiple reports because the undersigned had difficulty understanding
Dr. Nemechek’s opinion. Ultimately, it appears that Dr. Nemechek presented the
theory that the HPV vaccinations, via an expansion in cytokines, caused autonomic
dysfunction that was manifest in two ways: (1) neurogenic orthostatic hypotension
/ postural orthostatic tachycardia syndrome, and (2) small intestine bacterial
overgrowth. The Secretary’s two experts challenged Dr. Nemechek’s opinion on
multiple levels.
To support Dr. Nemechek’s theory that Mr. Kozel suffered from autonomic
dysfunction, Mr. Kozel traveled from his home near San Francisco, California, to
4
Dr. Nemechek’s office near Phoenix, Arizona. Dr. Nemechek performed ANSAR
testing and the results, as interpreted by Dr. Nemechek, support a finding of
autonomic dysfunction. Exhibit 110.
One of the Secretary’s experts questioned the usefulness of ANSAR testing.
Exhibit J; see also Resp’t’s Status Rep., filed Aug. 16, 2016. Mr. Kozel submitted
material to support its validity. See Pet’r’s Status Rep. filed Aug. 9, 2016, at 2;
exhibit 110 (Dr. Nemechek’s supplemental report regarding ANSAR); Pet’r’s
Reply at 3 and associated exhibits. The value of ANSAR testing, if any, was not
resolved because the case did not proceed to a hearing on entitlement.
However, ANSAR testing has emerged as an issue with respect to
reasonable basis. The Secretary
questions whether this circular loop of having petitioner’s
expert use a questionable diagnostic test to generate the
results then relied on by the same expert to support his
proposed vaccine injury and justify payment of the fees
charged by that expert, as well as the other fees and costs
incurred by petitioner’s counsel, is consistent with the
Act’s reasonable basis standard.
Resp’t’s Resp. at 4-5.
The Secretary’s objection goes too far, at least in this case. Some evidence
supports the usefulness of ANSAR testing. There is at least enough evidence to
show Mr. Kozel’s attorney, who is not a medical doctor, that Dr. Nemechek, who
is a medical doctor, had some reason for using ANSAR testing. Thus, Dr.
Nemechek’s opinion supports a finding of reasonable basis.
On the other hand, if this pattern were to repeat in future cases, the Secretary
could more credibly argue that Dr. Nemechek was engaging in dubious medical
practices to promote financial gain through litigation in the Vaccine Program. If
the Secretary were to present some evidence, then the issue may need to be
reconsidered. Without this evidence, the undersigned is very reluctant to find
misconduct.3
3
While the motion for attorneys’ fees and costs was pending, another special master
found Dr. Nemechek had misrepresented qualifications on his curriculum vitae and otherwise
was not persuasive. Combs v. Secʼy of Health & Human Servs., No. 14-878V, 2018 WL
5
Dr. Nemechek’s opinions are just some of the justification for finding that
Mr. Kozel’s claim was supported by reasonable basis. Mr. Kozel has additional
support from Dr. Mielke and Dr. Axelrod, as explained above. Consequently, Mr.
Kozel is eligible for an award of attorneys’ fees and costs.
With respect to the amount of attorneys’ fees and costs, the Secretary
pointed out that Mr. Kozel is requesting reimbursement for costs of the ANSAR
testing and the costs associated with Mr. Kozel’s trip from his home to Dr.
Nemechek’s office. Resp’t’s Resp. at 4 n.3. Mr. Kozel largely did not justify
these charges. At best, Mr. Kozel remarked that the reason Mr. Kozel did not seek
this treatment with his usual doctors “was fully discussed at multiple status
conferences.” Pet’r’s Reply at 2. However, the undersigned does not recall any
discussion.
In any event, the costs for medical tests should be submitted to insurance for
reimbursement. See Ceballos v. Secʼy of Health & Human Servs., No. 99-97V,
2004 WL 784910, at *13-14 (Fed. Cl. Spec. Mstr. Mar. 25, 2004); see also Fuesel
v. Sec'y of Health & Human Servs., No. 02-95V, 2014 WL 1379241, at *5 (Fed.
Cl. Spec. Mstr. Mar. 19, 2014) (absent evidence that insurance would not cover
cost of medical testing, special master could not determine if the cost for proposed
medical testing was reimbursable as an item of attorneys’ fees and costs). If Dr.
Nemechek did not submit the tests for reimbursement to an insurance company
because the insurance company would not reimburse this expense, then there may
be a concern about the legitimacy of the testing. Consequently, the $350 that Dr.
Nemechek has charged for the testing is removed. On the other hand, insurance
companies do not routinely reimburse for travel expenses. Therefore, the costs
associated with the travel are allowed.
Other than the notation about expenses associated with ANSAR testing, the
Secretary did not interpose any other specific objections. The requests are
otherwise reasonable.
Accordingly, the following amounts are reasonable:
1581672 (Fed. Cl. Spec. Mstr. Feb. 15, 2018). Because Mr. Downing appears to have learned
these facts about Dr. Nemechek in Combs after Dr. Nemechek was retained in Mr. Kozel’s case,
Combs does not affect the outcome of the pending motion in this case. The reasonableness of
using Dr. Nemechek in future cases is debatable.
6
Attorneys’ Fees in Original Request $43,960.50
Attorneys’ Fees in Supplemental Request $1,329.00
TOTAL Attorneys’ Fees $45,289.50
Attorneys’ Costs Requested $11,685.85
Reduction for ANSAR testing ($350.00)
TOTAL Attorneys' Costs $11,335.85
Petitioner's Costs $209.89
* * *
The total amount awarded in attorneys’ fees and costs is $56,835.24. This
amount shall be paid as follows:
A lump sum of $56,625.35 in the form of a check made payable to
petitioner and petitioner’s attorney, Andrew Downing, and
A lump sum of $209.89 in the form of a check made payable to
petitioner.
These amounts represent reimbursement attorneys’ fees and other litigation
costs available under 42 U.S.C. § 300aa-15(e). In the absence of a motion for
review filed pursuant to RCFC Appendix B, the clerk of the court is directed to
enter judgment herewith.4
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
4
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint
filing of notice renouncing the right to seek review.
7