Brunker v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 18-683V

Filed: November 29, 2022

PUBLISHED

MERRICK BRUNKER,

Special Master Horner

Petitioner,

v. Attorneys’ Fees and Costs; Denial;

Reasonable Basis; Meningococcal

SECRETARY OF HEALTH AND vaccine; Human papillomavirus

HUMAN SERVICES, (“HPV”) vaccine

Respondent.

Phyllis Widman, Widman Law Firm, LLC, Northfield, NJ, for petitioner.

Alexis Babcock, U.S. Department of Justice, Washington, DC, for respondent.

DECISION REGARDING ATTORNEYS’ FEES AND COSTS 1

On May 14, 2018, petitioner, Merrick Brunker, filed a petition under the National

Childhood Vaccine Act, 42 U.S.C. § 300aa-10-34 (2012) 2 alleging that he suffered

myalgia, headaches, unsteady movements, tics, chest pain, aggression and depression,

emotional and psychological distress caused-in-fact, or alternatively, significantly

aggravated, by his July 15, 2016 meningococcal and human papillomavirus (“HPV”)

vaccinations. (ECF No. 1, p. 1.) On December 9, 2021, petitioner voluntarily dismissed

his petition. (ECF No. 84.) Petitioner now moves for an award of attorneys’ fees and

costs which respondent opposes, arguing that petitioner lacked a reasonable basis in

bringing his petition. (ECF Nos. 91-92.) For the reasons described below, I find that

1

Because this decision contains a reasoned explanation for the special master’s action in this case, it will

be posted on the United States Court of Federal Claims’ website in accordance with the E-Government

Act of 2002. See 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic

Government Services). This means the decision will be available to anyone with access to the

Internet. In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact

medical or other information the disclosure of which would constitute an unwarranted invasion of privacy.

If the special master, upon review, agrees that the identified material fits within this definition, it will be

redacted from public access.

2

Hereinafter, all references to “§ 300aa” refer to sections of the Vaccine Act.

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petitioner should be awarded attorneys’ fees and costs in a reduced amount, because

this case lost its reasonable basis after my June 26, 2020 Rule 5 conference.

I. Factual History

Petitioner’s medical history prior to vaccination was significant for difficulty

sleeping, anxiety, tics, and chest pain. (Ex. 2, pp. 93, 97, 112-13, 124.) On July 15,

2016, petitioner presented to Tina Kosakyan, M.D., for “pain and [a] Tdap [vaccine]”

after stepping on a nail the day prior. (Id. at 133.) Dr. Kosakyan found that petitioner

had a “[s]uperficial skin abrasion, no signs of infection.” (Id. at 134.) Dr. Kosakyan

administered petitioner’s meningococcal and HPV vaccinations during this visit. (Id. at

134, 136.) Four days later, on July 19, 2016, petitioner returned to Dr. Kosakyan for a

follow-up and complained that his ankle was still swollen and in pain. (Id. at 142-43.)

Dr. Kosakyan assessed petitioner with cellulitis and prescribed Bactrim. (Id. at 144.)

The record from this visit does not indicate that petitioner reported any additional

symptoms. (See id. at 142-51.)

Petitioner presented to Community Memorial Hospital on July 21, 2016, with his

parents. (Ex. 6, p. 3-4.) Petitioner’s father indicated that since petitioner stepped on a

nail and received meningitis and HPV vaccinations the week prior, petitioner had been

exhibiting increasingly agitated and aggressive behavior and had not been sleeping.

(Id.) Petitioner’s parents attributed petitioner’s aggressive behavior to his

meningococcal and HPV vaccinations. (Id.) The physician also noted that petitioner

had a history “of possible Tourettes [sic] w/ verbal and physical tics which have also

improved in the past week.” (Id. at 3.) Results from a brain CT, lumbar puncture, blood

analysis, and urine toxin screen returned normal. (Id. at 4.) Petitioner was discharged

and diagnosed with aggressive behavior and was encouraged to follow up with a

psychiatrist. (Id.) The following day, on July 22, 2016, petitioner’s father called Kaiser

Permanente and notified them that petitioner had undergone a lumbar puncture the day

before and was currently experiencing a headache, with pain scoring 4/10, and

intermittent tingling and jolts in his legs. (Ex. 2, p. 153.)

On July 27, 2016, petitioner reported to The Claudia Jensen Center for

Integrated Medicine (“CJC”). (Ex. 4, pp. 10-18.) In a self-completed questionnaire,

petitioner indicated that he had insomnia, fatigue, headaches, depression, anxiety,

muscle pain, and “P.O.T.S., 10 days. After HPV vaccine.” (Id. at 12.) Margaret

Peterson, M.D., noted that petitioner had experienced a general worsening of his

neurological symptoms after the Gardasil vaccine. (Id. at 10.) Dr. Peterson’s

assessment was an uncontrolled anxiety disorder and a possible neurological disorder

that she questioned was secondary to the vaccines. (Id.)

The following day, on July 28, 2016, petitioner returned to Kaiser Permanente

where he saw Heidi Escurra, M.D., and complained of chest tightness, sharp pain in his

chest, and sensitivity to light and noise as a reaction to the HPV vaccine. (Ex. 2, p. 158-

59.) Petitioner told Dr. Escurra that as soon as he got his HPV vaccine on July 15,

2016, he had a strange taste in his mouth and felt dizzy and faint. (Id. at 159.) He

indicated that his Tourette-like movements (since childhood) then intensified, that he felt

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weak with a strong headache, and felt chest pressure and sharp pains. (Id.) Petitioner

also indicated that he had cellulitis at the vaccination site for which he was prescribed

Bactrim. (Id.) He also complained that he had a constant headache that would get

worse when sitting down. (Id.) The family indicated that they had looked into taking him

to a hyperbaric oxygen chamber for detoxification from the vaccines and were willing to

pay for it on their own. 3 (Id. at 159-60.) Dr. Escurra’s assessment was an adverse drug

reaction, along with myalgia, chest pressure, muscle spasms, and headaches. (Id. at

161.) Dr. Escurra later consulted with neurologist, Nazely Ashikian, M.D., who indicated

that it was unlikely that petitioner’s symptoms were from the HPV vaccine. (Id. at 159.)

On August 9, 2016, petitioner returned to Kaiser Permanente and requested that

his doctor’s note originally excusing him from work until July 27, 2016, be extended to

August 8, 2016, since he had taken an additional week off from work but now felt ready

to go back. (Ex. 2, p. 168.) Petitioner indicated that he had not been experiencing any

other symptoms. (Id.) Dr. Escurra signed off on the modified work note that allowed

petitioner to return to work on August 8, 2016. (Id.)

Petitioner returned to CJC on April 22, 2017. (Ex. 4, p. 9.) At this visit, Dr.

Peterson’s assessment included “anxiety – somewhat better” and “tics/spasm/neuro

injury s/p [status post] HPV vaccine.” (Id.) Dr. Peterson also noted that petitioner’s

father had completed a VAERS report and had retained an attorney to assist with

compensation. (Id.) On July 19, 2017, petitioner returned to CJC and completed

another questionnaire wherein he indicated that he sought medication for muscle

spasms, nausea, migraines, anxiety, and insomnia. (Id. at 6.) Dr. Peterson’s

assessment was anxiety and tics, and petitioner indicated that cannabis had been

helping his symptoms. (Id. at 5-6.) Two years post-vaccinations, on July 11, 2018,

petitioner returned to CJC. (Ex. 8, p. 2.) No new problems were reported. (Id.) Dr.

Peterson’s assessment was anxiety, tics, and insomnia, and the continued use of

cannabis was recommended. (Id.)

On November 13, 2019, petitioner had an office visit and examination with his

expert for this case, rheumatologist Arthur Brawer, M.D. (Ex. 22.) Dr. Brawer indicated

that petitioner developed a “multisystem illness [that] encompasses numerous

symptoms and signs, including headaches, dizziness, fatigue, fever, temperature

dysregulation, reactivation of a prior Tourette-like syndrome, widespread generalized

pain, chest pressure, weakness, photophobia, nausea, paresthesias, dysesthias,

emotional lability, palpitations, abdominal pains, alternating constipation and loose

stools, insomnia, nonrestorative sleep, cognitive dysfunction, dry eyes and dry mouth,

night sweats, odor and smell hypersensitivity, recurrent infections (sinusitis and sore

throats), weight loss, tinnitus, polyarthralgias, and peripheral nerve dysfunction (both

sensory and motor).” (Id. at 3.) However, Dr. Brawer did not offer any specific

diagnosis to explain these multisystem signs and symptoms.

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Petitioner presented to Hyperbaric Centers of California on August 1, 2016. (Ex. 5.) In a self-completed

questionnaire, petitioner indicated a history of a vaccine reaction and headaches. (Id. at 4.) Petitioner

received hyperbaric therapy on that date. (Id. at 10.)

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II. Procedural History

On May 14, 2018, petitioner filed his petition alleging that he suffered from

various conditions, including myalgia, headaches, unsteady movements, tics, chest

pain, aggression and depression, and emotional and psychological distress caused-in-

fact, or alternatively, significantly aggravated by his July 15, 2016 meningococcal and

human papillomavirus (“HPV”) vaccinations. (ECF No. 1, p. 1.) This case was initially

assigned to Special Master Moran. (ECF No. 4.) On June 4 and June 22, 2018,

petitioner filed his vaccination record and medical records. (ECF Nos. 9-10.) Petitioner

filed additional medical records on August 8, 2018. (ECF No. 17.) On November 23,

2018, respondent filed his Rule 4(c) report arguing that the evidence presented did not

meet petitioner’s burden of proof and recommending against compensation. (ECF No.

20.)

The case was reassigned to my docket on August 27, 2019. (ECF No. 46.)

Thereafter, petitioner filed an expert report by rheumatologist Arthur Brawer, M.D., on

December 11, 2019. (ECF No. 53; Ex. 22.) In his first report, Dr. Brawer confirmed that

he conducted an evaluation and physical examination of petitioner. (Ex. 22.) He did not

offer any specific diagnosis but indicated that petitioner “developed a chronic and

permanent multisystem illness.” (Id. at 3.) He opined that petitioner’s condition was

“caused by organosiloxanes (organosilicones) and silica (silicon dioxide) all of which are

components present in the HPV vaccine.” (Id.) He cited to a single article of which he

was the author. (Id.)

On January 28, 2020, I issued a scheduling order explaining that “Dr. Brawer’s

expert report is insufficient to meet petitioner’s burden under Althen for a number of

reasons.” (ECF No. 55, p. 1.) First, I noted the report was incomplete in that Dr.

Brawer did not confirm that he had reviewed petitioner’s medical records. Second,

petitioner did not file the article cited in the report. Third, the theory of causation was

“vague at best,” especially in that Dr. Brawer did not explain what injury he believed

petitioner suffered. And, finally, the opinion appeared to be based on temporal

association alone. (Id. at 2.) I ordered petitioner to file a supplemental report from Dr.

Brawer that more thoroughly explained his opinion, more explicitly discussed petitioner’s

medical records, and included a more thorough review of relevant medical literature.

(Id.)

Thereafter, petitioner filed a supplemental report by Dr. Brawer and

accompanying literature on March 6, 2020. (ECF No. 56; Ex. 24.) Respondent filed

responsive expert reports by immunologist Andrew MacGinnitie, M.D., Ph.D., and

toxicologist Kendall Wallace, Ph.D., on June 9, 2020. (ECF Nos. 59, 60; Exs. A, C.) On

June 26, 2020, I held a Rule 5 status conference. (ECF No. 61.) Following my review

of the expert reports I identified numerous fundamental flaws in Dr. Brawer’s opinion

and recommended that petitioner “either dismiss his petition or present a different

theory of causation.” (Id. at 1.) Specifically:

• Dr. Brawer’s opinion was premised on the HPV vaccine containing silica

and/or organosiloxanes; however, he provided no support for such an

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assertion while respondent’s toxicology expert submitted evidence tending

to refute the assertion. (Id. at 2.)

• Continuing from that initial unsupported premise, Dr. Brawer based his

opinion in significant part on comparison of the HPV vaccine to injuries

stemming from silicone breast implants; however, this was based solely

on Dr. Brawer’s ipse dixit extension of observations from one medical

context to another unrelated context and his own prior writings suggested

a dramatically different dose with respect to breast implants than would

potentially be implicated by vaccination, a point underscored and further

discussed by respondent’s toxicology expert. (Id. at 3.)

• Dr. Brawer offered no diagnosis for petitioner’s condition and instead

premised his opinion on the existence of a novel HPV-vaccine syndrome.

However, this was based on specific studies that I had previously

addressed and found unreliable. (Id. at 4 (citing Balasco v. Sec’y of

Health & Human Servs., No. 17-215V, 2020 WL 1240917, at *29-32 (Fed.

Cl. Spec. Mstr. Feb. 14, 2020).)

• Because Dr. Brawer had not identified any pertinent diagnosis apart from

the unreliable HPV-vaccine syndrome, it was not clear petitioner would be

able to specify his injury and shoulder his burden of proof on causation.

(Id. at 5 (citing Broekelschen v. Sec’y of Health & Human Servs., 618 F.3d

1339, 1346 (Fed. Cir. 2010); Stillwell v. Sec’y of Health & Human Servs.,

118 Fed. Cl. 47, 56 (2014).)

• While Dr. Brawer clearly based his causal opinion on silica and

organosiloxane toxicity, he also less clearly cited articles purporting to

show that vaccines can lead to either autism or HPV-vaccine syndrome

via the theory of “ASIA” or autoimmune Syndrome Induced by Adjuvants;

however, I noted that prior decisions in the program have been highly

critical of ASIA. (Id. at 5-6.)

• Dr. Brawer appeared to be opining beyond his area of expertise. I noted

that “Dr. Brawer is a rheumatologist, yet he has not based his opinion on

any identified rheumatological injury . . . Moreover, he specifically

identifies the condition as multisystemic and seeks to ground his opinion in

toxicology, neurology, and metabolic medicine. Despite his prior interest

in breast implant toxicity, Dr. Brawer does not have any credentials in any

of these specialties.” (Id. at 6.)

Based on these observations, I advised petitioner that

Dr. Brawer’s opinion remains unpersuasive after the filing of two reports.

Moreover, based on the specific issues discussed above, I am not at this

point persuaded that Dr. Brawer will be able to meaningfully remedy the

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issues inherent to his causation opinion. Accordingly, petitioner is urged to

either dismiss this case or present a report by a different expert presenting

a different theory that is based on a cognizable injury and is more firmly

grounded in sound and reliable scientific explanation.

(Id. at 6.) Citing the above-referenced Balasco case, I explained that some prior cases

alleging a post-HPV-vaccine syndrome did ultimately have a reasonable basis despite

failing to preponderantly establish entitlement to compensation. Accordingly, I

explained that

though I do not reach that question at this time, it may potentially be the

case upon subsequent analysis that there was a reasonable basis for filing

this petition. Notably, however, I caution that the above-described

shortcomings in Dr. Brawer’s opinion are significant and substantial enough

that I am not confident there will be a reasonable basis for further

development of his opinion moving forward. Failure to meaningfully and

persuasively address the concerns raised herein could result in non-

payment of fees post-dating this order.

(Id.)

Petitioner subsequently filed three supplemental reports by Dr. Brawer, including

a report directly responding to the Rule 5 order. (ECF No. 62; Exs. 35-37.) In that

report, Dr. Brawer indicated that two additional self-authored articles should be

considered that “bolster my medical theories.” (Ex. 37, pp. 1-2.) He contended that

with these articles “the burden of proving causation is also patently satisfied.” (Id. at 2.)

Dr. Brawer reaffirmed his reliance on breast implant illnesses as providing “both a

sound foundation and a plausible scientific explanation.” (Id. at 3.) However, he offered

no further information regarding the contents of the HPV vaccine and instead suggested

that the fact of, and quantity of, harmful substances in the vaccine should be considered

a “non issue” unless depositions of the biochemists and product engineers responsible

for the vaccine are conducted. (Id. at 2.) He acknowledged that the injury he proposes

in this case is “genuinely novel” and indicated that “[a]s with any novel medical entity

that initially appears on the scene, ‘preponderant evidence’ takes decades to

assemble.” (Id. at 2-3.) He disclaimed any reliance on ASIA, calling it a “fantasia.” (Id.)

He contended that it is “naïve” to conclude that his opinion extended beyond

rheumatology. (Id.)

In a follow up order, I noted that Dr. Brawer had cited unfiled literature. I ordered

petitioner to file the outstanding literature and to confer with respondent regarding how

to proceed. (ECF No. 64.) I cautioned that “[t]he parties are encouraged to have a full

and frank discussion and petitioner is urged to carefully consider whether further

litigation is reasonably necessary to reach an informed outcome in this case given his

initial burden of proof and his filings to date.” (Id. at 2 (emphasis original).) Thereafter,

petitioner advised that he wished to continue the case and a status conference was

requested. (ECF No. 67.)

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The requested status conference was held on November 16, 2020. (ECF No.

69.) Noting that I had previously provided guidance pursuant to Vaccine Rule 5, “I

explained that Dr. Brawer’s three subsequently filed reports have not substantially

changed the status of this case and many of the previously raised issues remain active

considerations.” (Id. at 1.) Respondent requested the opportunity to file responsive

expert reports and I provided some further guidance to the parties on additional points

to address “[t]o the extent the parties do wish to supplement the record.” (Id.)

Specifically, I noted that respondent’s expert had raised the issue that Dr. Brawer’s self-

authored articles appear in unreliable “predatory” journals. (Id.) I also filed as a Court

Exhibit the FDA warning recommendation for silicone breast implants previously cited

by Dr. Brawer, noting that the document in fact indicates the casual relationship

between breast implants and so-called “breast implant illness” remains “unclear.” (Id. at

2.)

After respondent filed supplemental reports by Drs. MacGinnitie and Wallace

(ECF No. 70; Exs. E, H), petitioner was ordered to file a status report indicating how he

intended to proceed; however, he instead filed a further supplemental report by Dr.

Brawer (ECF No. 71; Ex. 40). In this report, Dr. Brawer reiterated that his theory is

based on “chemical toxicity present in human papillomavirus vaccines.” (Ex. 40, p. 1.)

He indicated that the HPV-vaccine syndrome he proposes might involve autoantibodies

as part of “secondary amplification loops” but that “autoimmune mechanisms are not

likely to be the initiators of this type of vaccination induced disorder.” (Ex. 40, p. 2.)

Thereafter, a follow up status conference was held on February 4, 2021. (ECF

No. 73.) During the status conference, petitioner’s counsel inquired as to whether she

had a reasonable basis to pursue a toxicology expert to opine in the case. (Id.) In

response, I explained that

I would allow petitioner time to explore whether a possible toxicology expert

report is feasible, noting that respondent has filed reports by a toxicology

expert and acknowledging that there are aspects of petitioner’s theory that

could hypothetically be strengthened by a credible toxicology report.

However, I cautioned that I cannot speak to petitioner’s further question of

reasonable basis without knowing the basis, quality, and scope of the

toxicologist’s ultimate opinion. I also cautioned that my Rule 5 order of June

26, 2020 discussed issues going beyond the toxicological aspects of the

case that would remain relevant to any ultimate reasonable basis analysis.

(Id.)

Petitioner subsequently filed an expert report by toxicologist Ernest Chiodo on

July 2, 2021. (ECF No. 77; Ex. 45.) Despite confirming that he had reviewed Dr.

Brawer’s reports, Dr. Chiodo did not discuss or support Dr. Brawer’s theory at all. (Ex.

45.) Instead, Dr. Chiodo offered a conclusory opinion that adverse effects from the HPV

vaccine are due to “an immunological response induced by the foreign chemicals,”

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citing only the aluminum adjuvant contained in the vaccine. (Id. at 5-6.) One might

suspect that Dr. Chiodo was expressing an opinion consistent with the ASIA concept Dr.

Brawer disclaimed as “fantasia,” but that is not explicit in the report. Dr. Chiodo

purported to have conducted a review of medical literature, but did not disclose what

literature supported his opinion. Another follow up status conference was held on

August 26, 2021. (ECF No. 79.) I advised that

after reviewing his report it does not appear that Dr. Chiodo endorses Dr.

Brawer’s opinion as he does not explicitly discuss the prior reports, instead

discusses aluminum adjuvants rather than silica specifically, and ultimately

provides only a very general report without citing to any medical literature

or providing analysis explaining the basis of his opinion. I explained that

due to the lack of detail in Dr. Chiodo’s report, the concerns with petitioner’s

ability to meet his burden that I expressed in the previous Rule 5 conference

remain unresolved. I explained that, given the lack of analysis supporting

Dr. Chiodo’s opinion, petitioner’s counsel would likely be in the best position

to assess the strength of petitioner’s case after speaking with Dr. Chiodo to

evaluate the basis for his opinion. Petitioner’s counsel indicated that she

understood the issues I raised, and that she would consult Dr. Chiodo and

petitioner in order to assess how to proceed in this case. If Dr. Chiodo is

not prepared to add substantial additional information to his report, then I

continue to recommend that petitioner consider voluntarily dismissing this

case.

(Id.)

Petitioner subsequently advised that he would seek dismissal (ECF No. 82) and

filed a motion to voluntarily dismiss on December 10, 2021, acknowledging that “[a]n

investigation into the facts and science supporting this case has demonstrated to

petitioner that he [would] be unable to prove that he is entitled to compensation in the

Vaccine Program” and that “to proceed further would be unreasonable and would waste

the resources of the Court, the respondent, and the Vaccine Program.” (ECF No. 85, p.

1.) A decision dismissing this case issued the same day. (ECF No. 86.)

Petitioner filed an application for attorney fees and costs seeking $70,620.49 on

February 25, 2022. (ECF No. 91.) Respondent filed a response on March 10, 2022.

(ECF No. 92.) Petitioner filed a reply on March 16, 2022. (ECF No. 93.)

III. Legal Standard

Petitioners who are denied compensation for their claims brought under the

Vaccine Act may still be awarded attorneys’ fees and costs “if the special master or

court determines 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);

Cloer v. Sec’y of Health & Human Servs., 675 F.3d 1358, 1360-61 (Fed. Cir. 2012). But

even when a claim was brought in good faith and has a reasonable basis, a special

8

master may still deny attorneys’ fees. See 42 U.S.C. § 300aa-15(e)(1); Cloer, 675 F.3d

at 1362.

“Good faith” and “reasonable basis” are two distinct requirements under the

Vaccine Act. Simmons v. Sec’y of Health & Human Servs., 875 F.3d 632, 635 (Fed.

Cir. 2017). Good faith is a subjective inquiry while reasonable basis is an objective

inquiry that does not factor subjective views into its consideration. See James-

Cornelius v. Sec’y of Health & Human Servs., 984 F.3d 1374, 1379 (Fed. Cir. 2021). In

this case, petitioner’s good faith is not challenged, leaving only the question of whether

there was a reasonable basis for the filing of the petition.

The evidentiary standard for establishing a reasonable basis as prerequisite to

an award of attorneys’ fees and costs is lower than the evidentiary standard for being

awarded compensation under the Vaccine Act. To establish a reasonable basis for

attorneys’ fees, the petitioner need not prove a likelihood of success. See Woods v.

Sec’y of Health & Human Servs., No. 10-377V, 2012 WL 4010485, at *6-7 (Fed. Cl.

Spec. Mstr. Aug. 23, 2012). Instead, the special master considers the totality of the

circumstances and evaluates objective evidence that, while amounting to less than a

preponderance of evidence, constitutes “more than a mere scintilla” of evidence.

Cottingham v. Sec’y of Health & Human Servs., 971 F.3d 1337, 1344, 1346 (Fed. Cir.

2020); see also Amankwaa v. Sec’y of Health & Human Servs., 138 Fed. Cl. 282, 287

(Fed. Cl. 2018).

“More than a mere scintilla” of objective evidence supporting causation can

derive from medical records that provide “only circumstantial evidence of causation.”

James-Cornelius, 984 F.3d at 1379-80. For example, in James-Cornelius the Federal

Circuit found significance in 1) petitioner’s medicals records containing a doctor’s note

questioning whether a vaccine adverse event should be reported, 2) the medical course

suggesting a challenge-rechallenge event of petitioner’s symptoms becoming worse

after additional injections of the vaccine, 3) medical articles hypothesizing that the

vaccine can cause the symptoms at issue, and 4) petitioner having suffered some of the

same symptoms that were listed in the vaccine’s package insert as potential adverse

reactions of the vaccine); 4 see also Cottingham, 971 F.3d at 1346 (finding that

petitioner’s medical records showed at minimum circumstantial evidence of causation

where petitioner’s medical records showed that petitioner received the Gardasil vaccine

and subsequently experienced symptoms that were identified in the Gardasil package

insert as potential adverse reactions of the vaccine).

Important to this case, however, the Federal Circuit has confirmed that a case

can lose its reasonable basis as it proceeds. Perreira v. Sec’y of Health & Human

4

Nothing in James-Cornelius suggests the full extent of what may constitute circumstantial evidence, but

the four examples of circumstantial evidence in James-Cornelius provide some guidance regarding the

types of circumstantial evidence that may be considered in determining whether a reasonable basis was

established. Conversely, the Federal Circuit also stressed in James-Cornelius that an award of attorneys’

fees and costs is within the special master’s discretion and remanded the case for further proceedings.

984 F.3d at 1381. Accordingly, it is also not the case that the presence of these specific elements of

circumstantial evidence necessarily compel a finding that reasonable basis exists.

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Servs., 33 F.3d 1375, 1376-77 (Fed. Cir. 1994). Counsel has a duty to avoid frivolous

litigation and should use “reasoned judgment in determining whether to . . . pursue a

claim.” Murphy v. Sec’y of Health & Human Servs., 30 Fed. Cl. 60, 62 (1993), aff’d, 48

F.3d 1236 (Fed. Cir. 1995). “[T]he [Vaccine] Program’s interest in promoting attorney

representation in vaccine cases, as contemplated by the attorneys’ fees provision of the

statute, must be balanced carefully against the court’s examination of the

reasonableness of the basis for bringing the vaccine petition.” Turner v. Sec’y of Health

& Human Servs., No. 99-544V, 2007 WL 4410030, at *11 (Fed. Cl. Spec. Mstr. Nov. 30,

2007). Although counsel has an “ethical obligation to be a zealous advocate,” that does

not give counsel a “blank check to incur expenses without regard to the merits of [the]

claim.” Perreira, 27 Fed. Cl. 29, 34-35 (1992).

IV. Party Contentions

Petitioner’s initial motion did not contain a legal argument for why petitioner

should be awarded attorneys’ fees and costs. (See ECF No. 91.) Respondent

responded by arguing that petitioner provided no objective evidence because petitioner

1) did not clearly identify any diagnosed vaccine injury, 2) has not offered either a

reputable scientific medical theory of causation or a medically acceptable temporal

window such that causation could be inferred, and 3) did not, in fact, furnish any reliable

expert opinion. (ECF No. 92, pp. 9-12.)

In reply, petitioner disputes that he had no diagnosis. (ECF No. 93, p. 3.)

Instead, he contends that he “had a diagnosis that was simply novel. Petitioner’s theory

of the case is that the listed symptoms he experienced are the diagnosis: that is,

vaccine-induced toxicity.” (Id. (emphasis in original).) Further, petitioner argues that

“Althen prong three was present and he and his experts believed that they would be

able to prove Althen prongs one and two.” (Id.) Petitioner stresses that Dr. Brawer filed

reports responsive to the undersigned’s Rule 5 order and that respondent subsequently

requested an opportunity to respond to those reports. (Id. at 1-2.) Petitioner intimates

that the fact that respondent felt the need to rebut Dr. Brawer’s supplemental reports is

evidence that they advanced the case subsequent to the Rule 5 order. (Id. at 2.)

Petitioner contends that there was a reasonable basis to pursue this case throughout its

pendency and specifically indicates that reasonable basis remained “until after

Petitioner’s toxicologist’s opinion.” (Id. at 3.)

V. Reasonable Basis Determination

This is not the first case to allege that the HPV vaccine caused a constellation of

symptoms. While these cases have typically resulted in dismissal, determining whether

there was a reasonable basis for filing has been less clear cut given that there is

literature available that purports to link these symptoms to the HPV vaccine. In fact, the

Cottingham case discussed above involved such an allegation. 971 F.3d 1337. In

Cottingham, the petitioner alleged post-HPV vaccine headaches, fainting, and

menstrual difficulties, which were documented in her medical records, but for which she

could not obtain a supporting causal opinion from an expert. Id. at 1341. Though the

case was remanded for further proceedings to weigh the evidence, the Federal Circuit

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reasoned that medical record evidence of symptoms coupled with separate evidence

addressing vaccine-causation of those symptoms (in that case the vaccine package

insert) would constitute circumstantial objective evidence that could help support a

reasonable basis. Id. at 1346.

Similar to the Cottingham case, the record of this case includes objective

evidence in the form of contemporaneous medical records documenting the existence

of petitioner’s alleged post-vaccination symptoms, particularly petitioner’s myalgia,

headaches, unsteady movements, tics, 5 and chest pain. (See, e.g., Ex. 2, p. 153, 156-

161; Ex. 4, p. 12.) Additionally, this case contains literature authored by Dr. Brawer that

in turn relies on several pieces of medical literature beyond his own ipse dixit purporting

to causally link at least some of those symptoms to the HPV vaccine. Specifically, the

studies emphasize that patients have exhibited an array of symptoms, including fatigue,

headaches, and widespread pain, following the HPV vaccine. See Arthur E. Brawer,

Hidden Toxicity of Human Papillomavirus Vaccine Ingredients, 5 J. RHEUMATIC DISEASES

& TREATMENT 1, 2 (Ex. 25) (citing Svetlana Blitshteyn et al., Autonomic Dysfunction and

HPV Immunization: An Overview, 66 IMMUNOLOGICAL RESEARCH 744 (2018); Kazuki

Ozawa et al., Suspected Adverse Effects After Human Papillomavirus Vaccination: A

Temporal Relationship Between Vaccine Administration and the Appearance of

Symptoms in Japan, 40 DRUG SAFETY 1219 (2017); Manuel Martínez-Lavín,

Fibromyalgia-like Illness in 2 Girls After Human Papillomavirus Vaccination, 20 J.

CLINICAL RHEUMATOLOGY 392 (2014)). Moreover, as explained above, petitioner’s

treating physicians, Dr. Peterson and Dr. Escurra, were wiling to at least question

whether petitioner was experiencing neurologic symptoms secondary to his vaccination.

(Ex. 4, p. 10 (Dr. Peterson questioning neurologic symptoms secondary to vaccination;

Ex. 2, p. 159 (Dr. Escurra assessing adverse drug reaction to vaccine and

recommending neurology follow up (but see Ex. 2, p. 161 (neurologist disagreeing).)

As I explained in the prior Rule 5 conference, the above-referenced medical

articles discussed in Dr. Brawer’s own publication, even if directly filed into the record,

would not meet petitioner’s preponderant burden of proof. Balasco, 2020 WL 1240917,

at *29-32. However, the body of literature does provide some (albeit weak) support

underlying Dr. Brawer’s opinion. When coupled with the available medical records, all of

it together is sufficient (if barely) to satisfy the far less onerous “more than a mere

scintilla” of evidence required to support a reasonable basis for the initial filing of this

petition. Accord Thomas v. Sec’y of Health & Human Servs., No. 20-886V, 2021 WL

2389837, at *8-9 (Fed. Cl. Spec. Mstr. May 17, 2021); Balasco v. Sec’y of Health &

Human Servs., No. 17-215V, 2020 WL 2461911 (Fed. Cl. Spec. Mstr. Apr. 16, 2020);

Merino v. Sec’y of Health & Human Servs., No. 19-1723V, 2022 WL 1657945 (Fed. Cl.

Spec. Mstr. Sept. 20, 2022). Given that prior experience has shown that some experts

have somewhat plausibly, if not ultimately persuasively, fit cases such as this into an

5

Petitioner’s overall clinical history is also complicated by his preexisting Tourette syndrome; however, it

was not ultimately necessary to resolve this issue given petitioner’s voluntary dismissal. Petitioner did

plead significant aggravation in addition to causation-in-fact and Dr. Brawer opined that petitioner’s

Tourette syndrome was “reactivated,” though this was not explained. (Ex. 22, p. 3.)

11

existing HPV-syndrome hypothesis, it was reasonable for petitioner under the totality of

the circumstances to try to press his case by securing Dr. Brawer’s first two reports.

Nonetheless, it is also well established that a case can lose its reasonable basis

as it progresses. Perreira, 33 F.3d at 1376-77. Here, Dr. Brawer’s own opinion for this

case was based on silica toxicity and a direct comparison to so-called breast implant

illness, a point that he repeatedly emphasized in his later reports and which is not a

consideration in the above-referenced HPV vaccine studies cited in his own prior article.

There is little to nothing on this record that supports either Dr. Brawer’s assertion that

evidence of adverse effects from silicone breast implants are at all relevant to the post-

vaccination context or his assertion the HPV vaccine even contains any of the silica he

opines is harmful. Thus, once Dr. Brawer’s opinion was fully articulated in his second

report, it was readily apparent that it was unreliable. Accordingly, by absolutely no later

than the date of the Rule 5 conference, petitioner’s counsel was on notice that Dr.

Brawer’s opinion was inherently flawed and unworkable. Although petitioner’s counsel

subsequently attempted repeatedly to address the shortcomings of Dr. Brawer’s

opinion, none of the subsequent filings meaningfully addressed the previously identified

issues with Dr. Brawer’s opinion. In particular, petitioner’s subsequently retained

toxicologist conspicuously did not offer any discussion of or support for Dr. Brawer’s

silica opinion, purporting instead to provide an opinion alternatively based on aluminum

adjuvants. (Ex. 45, pp. 5-6.) Moreover, that toxicology opinion was itself conclusory

and obviously deficient.

In her reply, petitioner’s counsel refers repeatedly to her “belief” that the claim

could be supported; however, this goes to petitioner’s good faith rather than the

reasonable basis for the claim. See Simmons, 875 F.3d at 635-36 (Fed. Cir. 2017)

(explaining that the reasonable basis requirement reflects “an objective inquiry

unrelated to counsel’s conduct”). In that regard, I cautioned petitioner during the Rule 5

conference that reasonable basis would be an issue moving forward and thereafter

repeatedly advised petitioner at each step that the issues raised in the Rule 5

conference continued to go unaddressed. (ECF No. 61, p. 6; ECF No. 64, p. 2; ECF

No. 69, pp. 1-2; ECF No. 73; ECF No. 79.)

For all these reasons, I find that petitioner did have reasonable basis to file this

petition. However, I find that the case lost its reasonable basis when I advised

petitioner during the Rule 5 conference on June 26, 2020, that Dr. Brawer’s causal

opinion was unreliable. At that point it was apparent that petitioner would not have a

viable path forward based on Dr. Brawer’s assessment of the case. All of the hours and

costs incurred from that date up to the point petitioner began the process of dismissing

his petition on November 16, 2021, were unreasonable. 6

6

During the Rule 5 conference petitioner represented that Dr. Brawer had substantially completed

supplemental reports responsive to respondent’s experts’ reports. (ECF No. 61, p. 6 n.4.) Accordingly, I

will include Dr. Brawer’s June 29, 2020 invoice reflecting work responding to those reports (ECF No. 91-2,

p. 8) within my below consideration of compensable costs.

12

VI. Amount of the Award

The Federal Circuit has approved the lodestar approach to determine reasonable

attorneys’ fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Human

Servs., 515 F.3d 1343, 1347 (Fed. Cir. 2008). This is a two-step process. Id. at 1347-

48. First, a court determines an “initial estimate . . . by ‘multiplying the number of hours

reasonably expended on the litigation times a reasonable hourly rate.’” Id. (quoting

Blum v. Stenson, 465 U.S. 886, 888 (1984)). Second, the court may make an upward

or downward departure from the initial calculation of the fee award based on specific

findings. Id. at 1348. Special Masters have “wide latitude in determining the

reasonableness of both attorneys’ fees and costs.” Hines v. Sec’y of Health & Human

Servs., 22 Cl. Ct. 750, 753 (Fed. Cl. 1991.) Moreover, Special Masters are entitled to

rely on their own experience and understanding of the issues raised. Wasson v. Sec’y

of Health & Human Servs., 24 Cl. Ct. 482, 483 (Fed. Cl. 1991), aff’d in relevant part, 988

F.2d 131 (Fed. Cir. 1993) (per curiam).

In this case, I have reviewed the billing records and additional documentation

submitted with petitioner’s motion. Upon my review, the overall amount sought in

attorneys’ fees is reasonable and the hourly rates and hours billed are reasonable and

appropriate, except as discussed above. Petitioner seeks total attorneys’ fees of

$46,420.50. (ECF No. 91, p. 3.) Petitioner’s counsel billed 64.95 hours at a rate of

$350 per hour for work performed in 2018 and 2019 for a total of $22,732.50. (ECF No.

91-1, p. 9.) This is all allowable based on my above finding as to reasonable basis.

Counsel billed a total of 60.50 hours at a rate of $375 per hour for work performed in

2020 and 2021 for a total of $22,687.50 (Id. at 17); however, fees billed between June

26, 2020, and November 16, 2021, are not being reimbursed. Based on my review,

counsel billed 13.35 hours in 2020 up to and including the June 26, 2020 Rule 5

conference. At her rate of $375 per hour, this amounts to $5,006.25. Petitioner advised

that he would be dismissing his claim on November 16, 2021. From that point forward,

petitioner’s counsel billed 5 hours at $375 per hour and 3 hours at $400 per hour, for a

total of $3,075.00. Thus, the total attorneys’ fees awarded are $30,813.75, a reduction

of $15,606.75 from the $46,420.50 originally requested.

In addition to attorneys’ fees, petitioner seeks total costs of $24,199.99. This

includes the $400 filing fee, a $103.95 transcript fee, $7,550.00 in expert costs for Dr.

Brawer’s reports, $15,300.00 in expert costs for Dr. Chiodo’s report, and petitioner’s

own travel costs for his in-person evaluation with Dr. Brawer, which totaled $846.04.

(ECF No. 91, p. 3.) Consistent with the reasonable basis analysis above, Dr. Brawer’s

March 23, 2021 invoice for $1,800.00 will not be reimbursed, reducing his billing to

$5,750.00. (ECF No. 91-2, pp. 10-11.) Petitioner also submits an invoice by Dr. Chiodo

billing 23.9 hours for review of the case materials, 3.5 hours to review medical literature,

and 3.2 hours to prepare his report, all at a rate of $500 per hour. (ECF No. 91-3.)

Again, consistent with the reasonable basis analysis above analysis, this invoice will not

be reimbursed. 7

7

Here, because I concluded that petitioner had lost any reasonable basis prior to consulting Dr. Chiodo, I

do not reach the question of whether his rate or hours billed were reasonable. However, I also note that I

would have serious concerns regarding the quality of Dr. Chiodo’s report. Based on quality of work

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Additionally, further reduction of the remaining invoices by Dr. Brawer is also

warranted due to the poor quality of the reports. In addition to the reasonable basis

question, expert costs are also subject to the same reasonableness requirements as

attorneys’ fees. See Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34

(1992) (“The conjunction ‘and’ conjoins both ‘attorneys’ fees’ and ‘other costs’ and the

word ‘reasonable’ necessarily modifies both. Not only must any request for

reimbursement of attorneys’ fees be reasonable, so also must any request for

reimbursement of costs.”). This is assessed using the same type of lodestar calculation

used to determine attorneys’ fees. Thus, expert costs must be assessed with regard to

whether the quality of the work product ultimately aligns with the hours and rates

requested. See Gruber v. Sec’y of Health & Human Servs., 91 Fed. Cl. 773, 796-798

(2010) (holding that the special master was justified in reducing expert fees given the

“level of work performed”).

As explained above, Dr. Brawer’s reports in this case included fundamental

flaws. While the Rule 5 conference represented the point at which petitioner was put on

notice that those flaws were untenable, quality issues suffused all of his reports. The

basic inadequacies of Dr. Brawer’s first report prompted an order requiring petitioner to

file the second report. (ECF No. 55, pp. 1-2.) The second report expounded on Dr.

Brawer’s unsupported assumption that the HPV vaccine contained silicates while his

direct response to my Rule 5 order confirmed he could not actually support the

assumption. (Ex. 24, p. 2; Ex. 37, p. 2.) The fact that Dr. Brawer has previously

included this ipse dixit in prior publications does not render the assertion supported and

Dr. Brawer knew, or surely should have known, at the time he drafted these reports that

he was engaged in speculation.

Dr. Brawer has largely used a flat rate billing method and his invoices do not

uniformly delineate the hours he expended or identify any specific hourly rate.

Accordingly, his invoices completely stymie any direct lodestar calculation. This has

been a repeated issue in prior cases in which Dr. Brawer has been involved. See, e.g.,

Drobbin v. Sec’y of Health & Human Servs., No. 14-225V, 2022 WL 1515024, at *4

(Fed. Cl. Spec. Mstr. Apr. 28, 2022); Moses v. Sec’y of Health & Human Servs., No. 19-

739V, 2020 WL 6778002, at *4 (Fed. Cl. Spec. Mstr. Oct. 23, 2020); Hanson v. Sec’y of

Health & Human Servs., No. 18-590V, 2020 WL 5628694, at *2 n.3 (Fed. Cl. Spec.

Mstr. Aug. 24, 2020); Whelan v. Sec’y of Health & Human Servs., No. 16-1174V, 2019

product it is highly unlikely his requested rate of $500 per hour could be supported. Moreover, it appears

that the hours expended were also unreasonable. Dr. Chiodo billed 23.9 hours of work totaling

$11,950.00 to review the medical records and prior filings in the case. (ECF No. 91-3, p. 2.) However, his

report reflects only a cursory understanding of petitioner’s medical history or the prior expert opinions.

(Ex. 45.) For example, Dr. Chiodo billed 2 hours for review of respondent’s experts’ reports and Dr.

Brawer’s specific responses. (ECF No. 91-3, p. 2.) Yet his report includes not even a passing reference

to the substance of either Dr. MacGinnitie’s or Dr. Wallace’s opinion. (Ex. 45.) He also billed 3.5 hours

for a literature search. (ECF No. 91-3.) He stressed the fact of this search in his resulting report, but

conspicuously declined to discuss the outcome of his search or cite to any pertinent literature addressing

the causation question at issue. (Ex. 45, pp. 5-6.)

14

WL 5290521, at *3 n.6 (Fed. Cl. Spec. Mstr. Sept. 11, 2019). In light of the

shortcomings of both Dr. Brawer’s reports and his invoices, I reduce his remaining

billing by 50%. This represents a reduction of $2,875.00.

Therefore, petitioner will be reimbursed costs totaling $846.04 and petitioner’s

counsel will be reimbursed costs totaling $3,378.95, a reduction in expert costs of

$19,975.00.

VII. Conclusion

For the reasons set forth above, petitioner established a reasonable basis for the

initial filing of his petition as required for an award for attorneys’ fees and costs.

Accordingly, an award for attorneys’ fees and costs is GRANTED. However, attorneys’

fees and costs are awarded in the reduced amount of $35,038.74 for all the reasons

discussed above.

Accordingly, I award a total of $35,038.74 as follows:

• a lump sum of $34,192.70 in the form of a check payable to petitioner

and his counsel, Phyllis Widman, Esq.; and

• a lump sum of $846.04 in the form of a check payable to petitioner.

The clerk of the court shall enter judgment in accordance herewith.

IT IS SO ORDERED.

s/Daniel T. Horner

Daniel T. Horner

Special Master

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