Pachasa v. Secretary of Health and Human Services

REISSUED FOR PUBLICATION

Corrected APR 12 2021

OSM

U.S. COURT OF FEDERAL CLAIMS

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 19-557V

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KATHLEEN E. PACHASA, * TO BE PUBLISHED

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Petitioner, * Special Master Katherine E. Oler

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v. * Filed: September 18, 2020

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SECRETARY OF HEALTH AND * Attorneys’ Fees & Costs;

HUMAN SERVICES, * Reasonable Basis

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Respondent. *

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Vincent E. Pachasa, pro se, Avon OH, for Petitioners.

Glenn Alexander MacLeod, U.S. Department of Justice, Washington, D.C., for Respondent.

RULING ON MOTION FOR FINAL ATTORNEYS’ FEES AND COSTS1

On April 15, 2019, Vincent E. Pachasa and Christopher M. Pachasa, acting on behalf of

their mother, Ms. Kathleen E. Pachasa (“Petitioner”)2 filed a petition seeking compensation under

the National Vaccine Injury Compensation Program (the “Vaccine Program”)3 alleging that she

1

This Ruling will be posted on the Court of Federal Claims’ website. This means the Ruling will be

available to anyone with access to the internet. As provided by 42 U.S.C. § 300aa-12(d)(4)(B), however,

the parties may object to the Ruling’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). If, upon review, I agree that

the identified materials fit within this definition, I will redact such material from public access. Otherwise,

the Ruling in its present form will be available. Id.

2

At the time, Christopher and Vincent Pachasa were acting on behalf of their mother. The caption was

amended to reflect Ms. Pachasa as the sole Petitioner on May 20, 2019.

3

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 (2012) (“Vaccine

Act” or “the Act”). Individual section references hereafter will be to § 300aa of the Act (but will omit that

statutory prefix).

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suffered from 1) assault;4 2) rotator cuff tear/shoulder injury related to vaccine administration

(SIRVA); 3) loss of independence; 4) “crippling weakness”; and 5) cognitive impairment/static

dementia as a result of the PCV-13 vaccination she received on May 13, 2016. Pet. at 3, ECF No.

1.

For the reasons discussed below, I hereby GRANT IN PART Petitioner’s application and

award a total of $1,337.93 in costs.

I. Procedural History

In conjunction with her Petition, Petitioner filed several medical records (Exs. 3-6, 23, 26,

28, 29, 31, 32, 61, ECF No. 25) medical literature (Ex. 3, 7, 11, 12, 20, 26, 30, 34-38, 40, 41, 44-

46, 50, 55, 57-60) and affidavits (Exs. 51-52) in this case.

On April 19, 2019, I issued an initial order in this case, ordering Petitioner to file a status

report addressing Petitioner’s efforts to secure legal representation. ECF No. 6. On May 16, 2019,

Vincent Pachasa filed a Notice indicating that Petitioners would proceed pro se in this matter. ECF

No. 16.

On May 17, 2019, I held a status conference. See Scheduling Order of May 20, 2019, ECF

No. 15. At this conference, Vincent Pachasa informed me that they were contemplating dismissal

of the Petition. Id. at 2. I also explained to Mr. Pachasa that they may be awarded costs in this

action regardless of its outcome so long as there was reasonable basis to file the petition and the

filing was done in good faith. Id. at 3.

Petitioner filed a Motion for a Dismissal Decision on May 29, 2019. ECF No.16. On May

31, 2019, I issued a decision dismissing the Petition for insufficient proof. ECF No. 17.

On January 8, 2020, Petitioner filed the instant motion for attorneys’ fees and costs,

requesting an unspecified amount in attorneys’ fees and $1595.14 in costs. Fees App. at 10, ECF

No. 25. Respondent submitted his response on January 22, 2020, stating that it is within the special

master’s discretion to award Petitioners their costs. Fees Resp. at 2, ECF No. 36. Respondent did

not take a position on the issue of reasonable basis. Id.

II. Relevant Medical Record Evidence

On May 13, 2016, Kathleen Pachasa received the Prevnar-13 vaccination. Ex. 4 at 1. At

the time, her medical history included a history of multiple sclerosis, benign essential

hypertension, osteoporosis, mitral valve disorders, esophageal reflux, vitamin B12 deficiency, and

basal cell carcinoma of the skin. ECF No 2 at 244.

4

Assault is not a covered injury.

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Medical records filed at ECF No. 2 were not submitted as exhibits. To the extent these medical records

are cited, I have referred to them by the docket page number.

2

On May 18, 2016, Vincent Pachasa6 placed a phone call to the Cleveland Clinic at 4:02

PM, indicating that Kathleen Pachasa “had increased fatigue/weakness since [appointment].” ECF

No. 2 at 258. On the same day, at 7:04 PM, Vincent Pachasa called again to inform Ms. Kimberly

Covas that Ms. Pachasa was suffering from “weakness, fatigue and sleeping more on the evening

she received the vaccine.” Id. Ms. Covas further noted that onset of symptoms began “the evening

[patient] got the shot.” Id.

III. Legal Standard

Under the Vaccine Act, an award of reasonable attorneys’ fees and costs is presumed where

a petition for compensation is granted. Where compensation is denied, or a petition is dismissed,

as it was in this case, the special master must determine whether the petition was brought in good

faith and whether the claim had a reasonable basis. § 15(e)(1).

A. Good Faith

The good faith requirement is met through a subjective inquiry. Di Roma v. Sec’y of Health

& Human Servs., No. 90-3277V, 1993 WL 496981, at *1 (Fed. Cl. Spec. Mstr. Nov. 18, 1993).

Such a requirement is a “subjective standard that focuses upon whether [P]etitioner honestly

believed he had a legitimate claim for compensation.” Turner v. Sec’y of Health & Human Servs.,

No. 99-544V, 2007 WL 4410030, at *5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007). Without evidence

of bad faith, “petitioners are entitled to a presumption of good faith.” Grice v. Sec’y of Health &

Human Servs., 36 Fed. Cl. 114, 121 (1996). Thus, so long as Petitioner had an honest belief that

his claim could succeed, the good faith requirement is satisfied. See Riley v. Sec’y of Health &

Human Servs., No. 09-276V, 2011 WL 2036976, at *2 (Fed. Cl. Spec. Mstr. Apr. 29, 2011) (citing

Di Roma, 1993 WL 496981, at *1); Turner, 2007 WL 4410030, at *5.

B. Reasonable Basis

Unlike the good-faith inquiry, an analysis of reasonable basis requires more than just a

petitioner’s belief in his claim. Turner, 2007 WL 4410030, at *6-7. Instead, the claim must at

least be supported by objective evidence -- medical records or medical opinion. Sharp-Roundtree

v. Sec’y of Health & Human Servs., No. 14-804V, 2015 WL 12600336, at *3 (Fed. Cl. Spec. Mstr.

Nov. 3, 2015).

While the statute does not define the quantum of proof needed to establish reasonable basis,

it is “something less than the preponderant evidence ultimately required to prevail on one’s

vaccine-injury claim.” Chuisano v. United States, 116 Fed. Cl. 276, 283 (2014). The Court of

Federal Claims affirmed in Chuisano that “[a]t the most basic level, a petitioner who submits no

evidence would not be found to have reasonable basis….” Id. at 286. The Court in Chuisano

found that a petition which relies on temporal proximity and a petitioner’s affidavit is not sufficient

to establish reasonable basis. Id. at 290. See also Turpin v. Sec'y Health & Human Servs., No. 99-

564V, 2005 WL 1026714, *2 (Fed. Cl. Spec. Mstr. Feb. 10, 2005) (finding no reasonable basis

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While the record indicates that Christopher Pachasa placed the phone call, Petitioners have annotated this

record to reflect that Petitioner Vincent Pachasa placed the phone call. Regardless of who placed the call,

I am satisfied that it took place.

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when petitioner submitted an affidavit and no other records); Brown v. Sec'y Health & Human

Servs., No. 99-539V, 2005 WL 1026713, *2 (Fed. Cl. Spec. Mstr. Mar. 11, 2005) (finding no

reasonable basis when petitioner presented only e-mails between her and her attorney). The

Federal Circuit has affirmed that “more than a mere scintilla but less than a preponderance of proof

could provide sufficient grounds for a special master to find reasonable basis.” Cottingham v.

Sec’y of Health & Human Servs., No. 2019-1596, 2020 WL 4810095 at *5 (Fed. Cir. Aug. 19,

2020) (finding Petitioner submitted objective evidence supporting causation when she submitted

medical records and a vaccine package insert).

Temporal proximity between vaccination and onset of symptoms is a necessary component

in establishing causation in non-Table cases, but without more, temporal proximity alone “fails to

establish a reasonable basis for a vaccine claim.” Chuisano, 116 Fed. Cl. at 291.

The Federal Circuit has stated that reasonable basis “is an objective inquiry” and concluded

that “counsel may not use [an] impending statute of limitations deadline to establish a reasonable

basis for [appellant’s] claim.” Simmons v. Sec’y of Health & Human Servs., 875 F.3d 632, 636

(Fed. Cir. 2017). Further, an impending statute of limitations should not even be one of several

factors the special master considers in her reasonable basis analysis. “[T]he Federal Circuit

forbade, altogether, the consideration of statutory limitations deadlines—and all conduct of

counsel—in determining whether there was a reasonable basis for a claim.” Amankwaa v. Sec’y

of Health & Human Servs., 138 Fed. Cl. 282, 289 (2018). Objective medical evidence, including

medical records, can constitute evidence of causation supporting a reasonable basis. Cottingham,

2020 WL 4810095 at *7.

“[I]n deciding reasonable basis the [s]pecial [m]aster needs to focus on the requirements

for a petition under the Vaccine Act to determine if the elements have been asserted with sufficient

evidence to make a feasible claim for recovery.” Santacroce v. Sec’y of Health & Human Servs.,

No. 15-555V, 2018 WL 405121, at *7 (Fed. Cl. Jan. 5, 2018). Special masters cannot award

compensation “based on the claims of petitioner alone, unsubstantiated by medical records or by

medical opinion.” 42 U.S.C. § 300aa-13(a)(1). Special masters and judges of the Court of Federal

Claims have interpreted this provision to mean that petitioners must submit medical records or

expert medical opinion in support of causation-in-fact claims. See Waterman v. Sec'y of Health &

Human Servs., 123 Fed. Cl. 564, 574 (2015) (citing Dickerson v. Sec'y of Health & Human Servs.,

35 Fed. Cl. 593, 599 (1996) (stating that medical opinion evidence is required to support an on-

Table theory where medical records fail to establish a Table injury)).

When determining if a reasonable basis exists, many special masters and judges consider

a myriad of factors. It is appropriate to analyze reasonable basis through a totality of the

circumstances test that focuses on objective evidence. Cottingham, 2020 WL 4810095 at *4. The

factors to be considered may include “the factual basis of the claim, the medical and scientific

support for the claim, the novelty of the vaccine, and the novelty of the theory of causation.”

Amankwaa, 138 Fed. Cl. at 289. This approach allows the special master to look at each

application for attorneys’ fees and costs on a case-by-case basis. Hamrick v. Sec’y of Health &

Human Servs., No. 99-683V, 2007 WL 4793152, at *4 (Fed. Cl. Spec. Mstr. Nov. 19, 2007).

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IV. Discussion

A. Good Faith

Petitioners are entitled to a presumption of good faith. See Grice, 36 Fed. Cl. 114 at 121.

Respondent has not raised an issue with respect to good faith in this matter. See Fees Resp. Based

on my own review of the case, I find that Petitioner acted in good faith when filing this petition.

B. Reasonable Basis for the Claims in the Petition

The reasonable basis standard is objective and requires Petitioner to submit evidence in

support of the petition. The Petition in the case asserts Kathleen Pachasa suffered from 1) assault;

2) rotator cuff tear/shoulder injury related to vaccine administration (SIRVA); 3) loss of

independence; 4) “crippling weakness”; and 5) cognitive impairment/static dementia as a result of

the PCV-13 vaccination she received on May 13, 2016. Pet. at 3.

The special master’s analysis of reasonable basis should center around “an objective

evaluation of the relevant medical information that served as the basis for petitioner’s claim.”

Frantz v. Sec’y of Health & Human Servs., 2019 WL 6974431 (Fed. Cl. 2019) (denying motion

for review); Cottingham, 2020 WL 4810095, at *4 (“Reasonable basis…is an objective test,

satisfied through objective evidence.”).

As an initial matter, I find no objective evidence in the medical record that Kathleen

Pachasa suffered from a SIRVA injury, loss of independence, or dementia as a result of the PCV-

13 vaccine she received on May 13, 2016. See generally, ECF No. 2. And, as previously noted,

assault is not a covered injury under the Vaccine Program.

I find, however, that there is reasonable basis to support the claim that Ms. Pachasa suffered

from weakness. Vincent Pachasa called the doctor’s office five days after Ms. Pachasa’s

vaccination to inform the doctor that Ms. Pachasa had been suffering from weakness since

administration of the vaccine. ECF No. 2 at 258. This call is specifically referenced in Ms.

Pachasa’s medical records along with the note, “PATIENT COMPLAINING OF: weakness,

fatigue and sleeping more the evening she received the vaccine.” Id. Petitioners also filed the

package insert for the PCV-13 vaccine, which states that “adults have reported…fatigue” as one

of the side effects. Ex. 3 at 1. The package insert also indicates that “signs of a severe allergic

reaction can include…weakness…within a few minutes to a few hours after the vaccination.” Id.

at 2.

I therefore find, based on the objective evidence in the record, that Petitioner had a

reasonable basis to file the petition in this case alleging weakness following the PCV-13 vaccine.

See Cottingham, 2020 WL 4810095 at *4 (holding that medical records combined with package

insert constituted objective evidence).

C. Attorneys’ Fees

Petitioner has requested an unspecified amount in fees. See Fees App. at 10. Under 42

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U.S.C. § 300aa-15(e)(1) and Vaccine Act case law, it is firmly established that pro se petitioners

are not entitled to attorneys' fees. See Long v. Sec'y of Health & Human Servs., No. 94-310V,

1995 WL 1093129, at *1 (Fed. Cl. Spec. Mstr. Oct. 27, 1995) (finding that a non-attorney pro se

petitioner was not entitled to attorneys' fees); see also Kay v. Ehrler, 499 U.S. 432, 435 (finding

that a pro se litigant is not entitled to attorneys' fees for a case brought under 42 U.S.C. § 1988,

which contains a fee provision similar to the Vaccine Act's); Kooi v. Sec'y of Health & Human

Servs., No. 05-438V, 2007 U.S. Claims LEXIS 509, *6 (Fed Cl. Spec. Mstr. Nov. 21, 2007)

(finding a husband is not entitled to attorneys' fees for research and work regarding his wife's

petition); Brauer v. Sec’y of Health & Human Servs., 2013 U.S. Claims LEXIS 468 (Fed. Cl. Spec.

Mstr. Apr. 29, 2013) (holding that pro se Petitioner was not entitled to be reimbursed for expending

her own time in pursuit of her petition). Based on this established case law, I do not award any

attorneys’ fees to Petitioner.

D. Petitioner’s Costs

Petitioner requests a total of $1,595.14 in costs, which includes the Court’s filing fee,

shipping, preparing the petition, office supplies, and miscellaneous expenses. Fees App. at 9.

Petitioners have submitted receipts totaling $871.78. See Fees App., Exs. 1-8, ECF No. 25 at 17-

24. Although Petitioner did not submit a receipt for the filing fee, I note that the Court received the

filing fee of $400.00. Receipt number CFC100004611.

Petitioner did not submit receipts for several office expenses and shipping expenses.7 As

noted in Section X of the Guidelines for practice in the Vaccine Program, “before reimbursement

of costs is made, sufficient supporting documentation, such as invoices, receipts, and billing

statements, must be provided.” However, I have made an exemption for the shipping costs

associated with the return of the petition and supporting documentation from Ms. Leah Durant to

Petitioner. Petitioner has submitted supporting documentation showing that it cost $22.05 to ship

each box to Ms. Durant. See Fees App., Ex. 2. I therefore will award Petitioner reimbursement for

this expense ($22.05 x 3 = $66.15).

I therefor award Petitioner $1,337.93 in costs.

V. Conclusion

Accordingly, in the exercise of the discretion afforded to me in determining the propriety of

fee and cost awards, and based on the foregoing, I GRANT IN PART Petitioner’s application, as

follows:

A lump sum in the amount of $1,337.93 representing reimbursement of Petitioner’s costs.

In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of

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See Fees App. at 2-5, where Petitioner notes at several junctures that they do “not have the receipt for

these expenses.”

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Court SHALL ENTER JUDGMENT in accordance with this decision.8

A copy of this Decision shall be mailed to Petitioner via Federal Express at the following

address:

Kathleen E. Pachasa

3286 Beech Lane

Avon, OH 44011

Any questions regarding this Order may be directed to my law clerk, Neil Bhargava, by

email at neil_bhargava@cfc.uscourts.gov.

IT IS SO ORDERED.

s/ Katherine E. Oler

Katherine E. Oler

Special Master

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Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of a notice

renouncing the right to seek review.

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