Hoerth v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

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

SCOTT A. HOERTH, *

* No. 19-1016V

* Special Master Christian J. Moran

*

Petitioner, * Filed: July 20, 2021

*

v. *

* Attorneys’ fees and costs; reasonable

SECRETARY OF HEALTH * basis; onset of shoulder injury.

AND HUMAN SERVICES, *

*

Respondent. *

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

Stephanie A. Thompson, Krueger & Hernandez S.C., Middleton, WI, for

petitioner;

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

PUBLISHED DECISION DENYING ATTORNEYS’ FEES AND COSTS1

Scott Hoerth alleged that an influenza (“flu”) vaccine he received on

December 6, 2016, caused him to suffer right shoulder pain resulting in Parsonage-

Turner Syndrome. Am. Pet. ¶¶ 2, 8. The parties disputed the timing of onset and

the undersigned ruled that “Mr. Hoerth’s right shoulder pain began on November

27, 2016, and worsened on March 18, 2017, after he performed exercises involving

his upper body.” Hoerth v. Sec’y of Health & Human Servs., No. 19-1016V, 2020

WL 5230358, at *1 (Fed. Cl. Spec. Mstr. July 29, 2020).

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The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17,

2002), requires that the Court post this decision on its website. Anyone will be able to access

this decision via the internet (https://www.uscfc.uscourts.gov/aggregator/sources/7). 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

Mr. Hoerth filed a motion for voluntary dismissal, resulting in an order

concluding proceedings. He then filed a motion for attorneys’ fees and costs,

arguing that because a reasonable basis supported the claim set forth in his petition,

he was eligible to receive attorneys’ fees and costs as the Vaccine Act permits.

The Secretary, however, disagreed, maintaining that Mr. Hoerth did not have a

reasonable basis. Adjudication of Mr. Hoerth’s motion was deferred while the

Federal Circuit considered the factors contributing to an analysis of reasonable

basis. The Federal Circuit provided additional guidance in Cottingham v.

Secretary of Health & Human Services, 971 F.3d 1337 (Fed. Cir. 2020). The

parties address the impact of Cottingham in a second round of briefs. The Federal

Circuit then issued another decision regarding the reasonable basis standard in

James-Cornelius v. Secretary of Health & Human Services, 984 F.3d 1374 (Fed.

Cir. 2021). The parties were afforded the opportunity submit additional briefs in

light of this most recent decision.

Mr. Hoerth does not qualify for an award of attorneys’ fees because he has

failed to establish a reasonable basis for the assertion that Mr. Hoerth received the

vaccine within a medically acceptable time frame after vaccination to support

causation. Accordingly, his motion for attorneys’ fees and costs is DENIED.

I. Procedural History

Mr. Hoerth filed his petition on July 16, 2019, alleging that the flu

vaccination he received on December 6, 2016, caused him to suffer right shoulder

pain resulting in Parsonage-Turner Syndrome. Pet. ¶¶ 2, 8. After collecting and

filing medical records and affidavits over the course of multiple months, as well as

a final amended petition, Mr. Hoerth filed a statement of completion on June 9,

2020. During this time, the parties also identified a dispute regarding the onset of

Mr. Hoerth’s right shoulder pain and scheduled a fact hearing to resolve this issue.

An onset hearing was held on June 23, 2020. Mr. Hoerth, along with his

wife Melissa Wheeler and his brother Chad Hoerth, testified. In a fact ruling

issued on July 29, 2020, the undersigned found that Mr. Hoerth’s right shoulder

pain began on November 27, 2016, and worsened on March 18, 2017, after Mr.

Hoerth performed upper body exercises. Hoerth, 2020 WL 5230358, at *1.

In light of this fact finding, which established onset as occurring prior to

vaccination, Mr. Hoerth elected to move for a voluntary dismissal. Pet’r’s Status

Rep., filed Aug. 19, 2020, at 1. Mr. Hoerth filed a motion for voluntary dismissal

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on August 20, 2020, and the undersigned issued an order concluding proceedings

on September 1, 2020.

Mr. Hoerth then filed a motion for attorneys’ fees and costs on November

18, 2020. The Secretary filed a response on December 2, 2020, deferring to the

undersigned regarding the question of attorneys’ fees. Mr. Hoerth filed a reply on

December 8, 2020. On December 8, 2020, the undersigned ordered the Secretary

to file a response taking a position on the issue of reasonable basis. The Secretary

filed his supplemental response on January 4, 2021, contesting reasonable basis,

and Mr. Hoerth filed a reply on January 11, 2021. This second round of briefs also

addressed the impact of the then recent decision in Cottingham. After the decision

in James-Cornelius was issued on January 8, 2021, the parties were afforded an

opportunity to submit supplemental briefs regarding reasonable basis considering

this new precedent. Mr. Hoerth filed his supplemental brief on March 22, 2021.

The Secretary filed his response on April 13, 2021. Thus, the matter is now ripe

for adjudication.

II. Standards for Adjudication

Petitioners who have not been awarded compensation (like Mr. Hoerth here)

are eligible for an award of attorneys’ fees and costs when “the petition was

brought in good faith and there was a reasonable basis for the claim.” 42

U.S.C. § 300aa—15(e)(1). As the Federal Circuit has stated, “good faith” and

“reasonable basis” are two separate elements that must be met for a petitioner to be

eligible for attorneys’ fees and costs. Simmons v. Secʼy of Health & Human

Servs., 875 F.3d 632, 635 (Fed. Cir. 2017). Here, the Secretary has not raised a

challenge to Mr. Hoerth’s good faith. Thus, the disputed issue is reasonable basis.

In Cottingham, the Federal Circuit stated that the evidentiary burden for

meeting the reasonable basis standard “is lower than the preponderant evidence

standard.” Something “more than a mere scintilla” might establish the reasonable

basis standard. 917 F.3d at 1356. Petitioners meet their evidentiary burden with

“objective evidence.” Id. at 1344. In categorizing medical records as objective

evidence, the Federal Circuit stated, “[m]edical records can support causation even

where the records provide only circumstantial evidence of causation.” Id. at 1346.

Finally, the Federal Circuit in Cottingham specified that “[w]e make no

determination on the weight of the objective evidence in the record or whether that

evidence establishes reasonable basis, for these are factual findings for the Special

Master and not this court.” Id. at 1347.

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In its most recent opinion regarding the reasonable basis standard, the

Federal Circuit stated that medical records, affidavits, and sworn testimony all

constitute objective evidence to support reasonable basis. James-Cornelius v.

Sec’y of Health & Human Servs., 984 F.3d 1374, 1379-81 (Fed. Cir. 2021). The

Federal Circuit further clarified that “absence of an express medical opinion on

causation is not necessarily dispositive of whether a claim has reasonable basis.”

Id. at 1379 (citing Cottingham, 971 F.3d at 1346). These two most recent

decisions guide the analysis regarding what types of evidence constitute objective

evidence of reasonable basis, as originally articulated in Simmons, though the

ultimate weighing of such evidence is left up to the special master.

III. Analysis

Preliminarily, the outcome of the Fact Ruling does not control the result of

Mr. Hoerth’s pending motion for attorneys’ fees and costs. The Fact Ruling

weighed the evidence regarding onset according to the preponderance of the

evidence standard. However, the evidentiary standard for determining reasonable

basis is less than the preponderance of the evidence. Chuisano v. Sec’y of Health

& Human Servs., No. 07-452V, 2013 WL 6324660, at *12-13 (Fed. Cl. Spec.

Mstr. Oct. 25, 2013), mot. for rev. denied, 116 Fed. Cl. 276 (2014).

However, the analysis in the Fact Ruling regarding the weight of different

pieces of evidence is instructive here, given that the undersigned must consider and

weigh objective evidence to determine if Mr. Hoerth has met the reasonable basis

standard. The two competing categories of evidence in this case are (1) Mr.

Hoerth’s medical records, which include multiple reports to treating doctors

regarding the onset of his shoulder pain, and (2) affidavits submitted by Scott

Hoerth, Chad Hoerth, and Melissa Wheeler. The content of these two types of

evidence conflict as to whether Mr. Hoerth’s shoulder pain began post-vaccination.

To his doctors, Mr. Hoerth consistently reported an onset that places the

beginning of his shoulder pain in October or November 2016 (before vaccination)

at three separate medical appointments. On March 20, 2017, Mr. Hoerth reported

to a medical assistant and a physician’s assistant at an urgent care clinic that he

experienced shoulder pain as a result of sleeping on his shoulder wrong beginning

“4 months ago.” See exhibit 4 at 5-6. On April 6, 2017, Mr. Hoerth reported to

sports medicine specialist Dr. David Bernhardt a “6-month history of shoulder pain

which became suddenly worse a couple weeks ago when he was doing a functional

fitness class,” again consistently placing onset of his shoulder pain around

October/November 2016. Id. at 21. Finally, on July 11, 2017, Mr. Hoerth reported

to orthopedic sports medicine specialist Dr. John Orwin “right shoulder pain and

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weakness that started 9 months ago” and that he “noticed dull pain and weakness

in his shoulder without a specific event or injury.” Id. at 27. Again, this places

onset in approximately October/November 2016. Thus, Mr. Hoerth consistently

reported that his right shoulder pain began before vaccination and never attributed

his symptoms to the vaccination.

Furthermore, though Mr. Hoerth argued that medical providers merely

copied his medical history over from appointment to appointment, this is

unpersuasive given the unique notations in each subsequent record that backtracks

from each appointment to approximately October/November 2016 (e.g., 4-month

history in March, 6-month history in April, and 9-month history in July). Medical

records in which multiple treating doctors over the course of multiple months

noted Mr. Hoerth’s reports of pre-vaccination shoulder pain are highly persuasive

both because of the reliability of contemporaneous medical records and because of

the particular consistency of reporting in this case. In general, contemporaneously

created medical records are considered reliable and persuasive evidence. See

Cucuras v. Sec’y of Health & Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993)

(finding that medical record evidence more persuasive than testimony and stating

“[m]edical records, in general, warrant consideration as trustworthy evidence”).

Mr. Hoerth counters this evidence by pointing to the two affidavits

submitted by Chad Hoerth and Melissa Wheeler, in asserting that he has met the

reasonable basis standard. He argues that these affidavits should not be afforded

less weight than the medical records in weighing evidence. See Pet’r’s Supp. Br.,

filed Mar. 22, 2021, at 3. However, these affidavits, which were prepared three

years after Mr. Hoerth’s vaccination and whose content is relatively weak in

showing a post-vaccination onset, are simply not as valuable as the

contemporaneous medical records created within six months of onset and

vaccination.

First, Chad Hoerth stated in his affidavit that he heard from Mr. Hoerth in

April 2017 that his shoulder pain began in “late 2016.” Exhibit 10 ¶ 5. This does

little to place the onset after vaccination, as Mr. Hoerth appears not to have

attributed the shoulder pain to the vaccination in speaking with Chad Hoerth and

his report of the pain beginning in “late 2016” is still consistent with an onset of

October/November 2016 as reflected in the medical records.

Second, Melissa Wheeler stated in her affidavit that Mr. Hoerth first

mentioned shoulder pain to her in December 2016, but stated that she “do[es]n’t

necessarily know that [Mr. Hoerth] is in pain unless [she] see[s] something on his

face. He doesn’t talk about it.” Exhibit 9 ¶ 2. Therefore, it is likely given her

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characterization that Mr. Hoerth may not have reported his symptoms to her

exactly when they began. He also appears not to have attributed his symptoms to

his vaccination when speaking with Ms. Wheeler. Therefore, the affidavits do not

provide persuasive evidence showing a post-vaccination onset.

In addition to the affidavits from Mr. Chad Hoerth and Ms. Wheeler, Mr.

Hoerth also submitted his own affidavit. While Mr. Hoerth does not emphasize his

own testimony, the undersigned has considered petitioner’s testimony as well. Mr.

Hoerth’s testimony about the onset of his shoulder pain is again outweighed by the

multiple contemporaneous medical records reflecting reports of pre-vaccination

shoulder pain. In his affidavit, Mr. Hoerth stated that he began to experience pain

within a day or two of the vaccination, which he attributed to the vaccination only

in hindsight. Exhibit 3 ¶ 4. He also did not dispute the accuracy of the reports in

his medical records, instead stating that, although he reported the pain had started

in early winter, he “do[es] not believe [he] indicated it was before the vaccine.” Id.

¶ 6 (emphasis in original). This contention still does not amount to any affirmative

evidence in the medical records that Mr. Hoerth’s pain began after vaccination. In

fact, the medical records conflict with Mr. Hoerth’s testimony and, for the reasons

explained in this decision, continue to outweigh both Mr. Hoerth’s and his

witnesses’ affidavits.

Likewise, the oral testimony in the June 23, 2020 hearing does not carry Mr.

Hoerth’s burden to establish a reasonable basis for the petition’s assertion that his

shoulder pain developed after (and was caused by) his vaccination. Again, this

burden is lower than the preponderance of the evidence standard. While his oral

testimony was more-or-less consistent with his affidavit, the oral testimony

revealed additional weaknesses.2 For example, Mr. Hoerth acknowledged people’s

memories are more accurate closer in time to when the events occurred. Tr. 22, 64.

He admitted to not remembering details about his activities in the relevant time.

See Tr. 38. More importantly, Mr. Hoerth did not provide any persuasive reason

for finding the reports medical personnel created were inaccurate. See Tr. 64-67.

The three affidavits submitted by Mr. Hoerth as well as the oral testimony

from the witnesses during the hearing constitute evidence of reasonable basis. See

James-Cornelius, 984 F.3d at 1379-81. As such, the undersigned has duly

considered the affidavits and testimony in determining whether Mr. Hoerth has

established reasonable basis. However, to the extent that different pieces of

objective evidence conflict, the undersigned must assess the relative weight of

these pieces of evidence in making this determination. See Cottingham, 971 F.3d

2

Mr. Hoerth’s demeanor suggested that he was hesitant and/or reserved in his testimony.

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at 1347. Here, the persuasiveness of the medical records greatly outweighs that of

the affidavits and oral testimony upon which Mr. Hoerth relies. Furthermore, the

consistency of the medical records in this case as to the onset of Mr. Hoerth’s

shoulder pain only add to their reliability and persuasiveness. Thus, as detailed in

the Fact Ruling, the undersigned credits the medical records and weighs them more

heavily than the affidavits and oral testimony in showing that Mr. Hoerth’s

shoulder pain began before vaccination. Because these records also so clearly

show a pre-vaccination onset date, the undersigned therefore finds that Mr. Hoerth

has not satisfied the reasonable basis standard.

A finding that Mr. Hoerth’s case lacked a reasonable basis is consistent with

an appellate authority with similar facts. See Murphy v. Secʼy of Health & Human

Servs., No. 90-882V, 1991 WL 74931 (Cl. Ct. Spec. Mstr. Apr. 25, 1991). Today,

Murphy is often cited as a well-known case in which a special master weighed the

value of medical records created contemporaneously with the events the medical

records described against the value of affidavits created many years later. The

special master found that the medical records were more reliable, id. at *5, and the

Claims Court ruled that this finding was not arbitrary. 23 Cl. Ct. 726, 734 (1991),

affʼd, 968 F.2d 1226 (Fed. Cir. 1992). Under the representations presented in the

contemporaneously created medical records, the petitioners in Murphy were not

entitled to compensation.

A less recognized aspect to Murphy is the ensuing motion for attorneys’ fees

and costs, which is more relevant to the case at hand. Although the special

master’s 1993 decision denying an award of attorneys’ fees and costs is

unpublished, the opinion on a motion for review states the special master found a

lack of reasonable basis because “the medical records and other written records

contradict the claims brought forth in the petition.” 30 Fed. Cl. 60, 61 (1993).

Upon a motion for review, the petitioners argued that the special master abused his

discretion in denying attorneys’ fees and costs. More specifically, the petitioners

argued that “because they submitted expert opinion to support their claim, they had

a reasonable basis for their case as a matter of law.” Id. at 62.

The Court, however, rejected the petitioners’ argument and ruled that the

special master was not arbitrary in finding a lack of reasonable basis. The Court

reasoned that an expert report premised on unreliable assertions does not confer

reasonable basis:

[The petitioners’] position assumes that special masters rely upon

expert testimony without determining whether it is corroborated by

the facts. This position is not plausible, as expert testimony in and of

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itself does not determine reasonableness. . . . [T]he expert opinion

submitted by petitioners was founded upon Mrs. Murphy’s version of

the events, a version found to be unreliable by the special master.

Id. at 63.

While neither the special master’s decision nor the opinion denying the

motion for review from the judge of the Court of Federal Claims constitutes

binding authority, see Boatmon v. Sec’y of Health & Human Servs., 941 F.3d

1351, 1358 (Fed. Cir. 2019), Murphy does provide some appellate guidance.

According to Murphy, a discrepancy between medical records created

contemporaneously and later-given assertions could, in some cases, weigh against

a finding that reasonable basis supported the claim set forth in the petition. This

guidance points against a finding of reasonable basis in Mr. Hoerth’s case.3

The Vaccine Act recognizes that a special master might credit an assertion

that a vaccinee developed a medical condition at a time other than the time shown

in the medical records. 42 U.S.C. § 300aa–13(b)(2). Thus, the Vaccine Act does

not prohibit Mr. Hoerth’s assertion that he developed a shoulder problem earlier

than the time listed in his medical records. Mr. Hoerth’s attempt to take advantage

of this opportunity appears to be in good faith.

However, good faith differs from reasonable basis. The reasonable basis

inquiry, as emphasized in Simmons, is “objective.” 875 F.3d at 635. An

evaluation of reasonable basis necessarily involves weighing the value of evidence.

See Cottingham, 971 F.3d at 1347.

The evidence in the present case does not support a finding of reasonable

basis. Needless to say, when the evidence differs, the result might differ.

Accordingly, the undersigned is not ruling that whenever a petitioner fails to

establish the onset of a shoulder injury closely followed a vaccination, the

petitioner necessarily lacked a reasonable basis. Adjudications of other cases must

depend upon the record in those cases. See Silva v. Sec’y of Health & Human

Servs., 108 Fed. Cl. 401, 402 (2012) (denying motion for review of a decision

3

While the outcome in Murphy, a denial of attorneys’ fees and costs, is consistent with

the outcome in this decision, also a denial of attorneys’ fees and costs, Murphy does not require

this result. Other special masters might reasonably reach different conclusions, especially when

the nature of the inconsistency between versions of events differs. Cf. SiOnyx LLC v.

Hamamatsu Photonics K.K., 981 F.3d 1339, 1355 (Fed. Cir. 2020) (indicating that while a

district court “may have been within its right” to award attorneys’ fees pursuant to 35 U.S.C.

§ 285, the denial of fees was not an abuse of discretion).

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finding no reasonable basis and affording special masters “maximum” discretion in

this context).

V. Conclusion

Mr. Hoerth’s eligibility for an award of attorneys’ fees and costs depends

upon his establishing a reasonable basis for the claim set forth in the petition.

While the standard for showing reasonable basis is lower than the preponderance

of the evidence (and therefore, easier to satisfy), Mr. Hoerth has failed to present

sufficient objective evidence that would ground a finding of reasonable basis that

Ms. Hoerth’s symptoms began after his vaccination. Accordingly, Mr. Hoerth’s

motion for an award of attorneys’ fees and costs is DENIED.

IT IS SO ORDERED.

s/Christian J. Moran

Christian J. Moran

Special Master

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