# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 15

- 1462 V

Filed: September 22, 2017

Not for Publication

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

BETSY REDFERN

, *

*

* Petitioner, *

v. *

*

SECRETARY OF HEALTH * AND HUMAN SERVICES, *

* Respondent. *

*

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

Maximillian J. Muller

, Dresher, PA , for petitioner.

Lisa A. Watts

, Washington, DC, for respondent.

MILLMAN, Special Master

DECISION DENYING AN AWARD OF ATTORNEYS ’ FEES AND COSTS 1

On December 3, 2015 , petitioner filed a petition under the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa

- 10

– 34 (2012)

, alle ging that her receipt of Twinrix ( combined hepatitis A and B) vaccine on June 30, 2014 caused her to develop a shoulder injury related to vaccine administration (“SIRVA”) . On February 15, 2017 , the undersigned issued a decision dismissing the case. On June 23, 2017 , petitioner filed a motion for attorneys’ fees and costs. For the reasons set forth below, the undersigned DENIES petitioner’s motion for attorneys’ fees

and costs.

PROCEDURAL HISTORY

Petitioner filed her petition on December 3, 2015

.

1 Because this unpublished decision contains a reasoned explanation f or the special master’s action in this case, the special master intends to post th is unpublished decision on the United States Court of Federal

Claims’ website, in accordance w ith the E

- Government Act of 2002

, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services) . Vaccine Rule 18(b) states tha t all decisions of the special masters will be made available to the public unless they contain trade secrets or commercial or financial information that is privileged and confidential, or medical or similar information

whose disclosure would constitute a clearly unwarranted invasion of privacy. When such a decision is filed, petitioner has 14 days to identify and move to redact such information prior to the document = s disclosure. If the special master, upon review, agrees that the identified material fits within the banned categories listed above, the special master shall redact such material from public access. Attorneys’ fees and costs decision;

lack of reasonable basis2 Th e case was originally assigned to an attorney in the Special Processing Unit. On April 4, 2016, respondent filed a Rule 4(c) Report contesting an award of compensation in this case. On June 21, 2016, the case was reassigned to the undersigned.

On July 21, 2016, the undersigne d ordered petitioner to show cause why her case should not be dismissed. The undersigned explained that petitioner’s medical records show she did not have SIRVA and that her pain was likely caused by osteoarthritis 2 which a vaccine could not

cause.

Petitioner filed her response to the undersigned’s Order to Show Cause on October 18, 2016 in which she argued that her “injury and course of treatment is largely consistent with a SIRVA injury.” Show Cause Resp. at 3. She said she intended to retain an expert to review her medical records and give an opinion on causation. In the alternative, she asked for the opportunity to have a fact hearing.

During a status conference on November 2, 2016, the undersigned ordered petitioner to file an expert report by January 3, 2017. On January 3, 2017, petitioner filed a status report explaining she had been unable to retain an expert and said she would file a motion to dismiss her

case.

Petitioner filed a motion to dismiss on February 15, 2017. On the same date, the undersigned granted her motion and filed a decision dismissing the case.

On June 23, 2017, petitioner filed a motion for attorneys’ fee s and costs. Petitioner requests $20,673.50 in attorneys’ fees and $1,188.64 in attorneys’ costs, for a total request of $21,862.14. In accordance with General Order #9, petitioner said she did not advance any funds in the prosecution of her claim.

O n July 7, 2017, responden t filed a response objecting to an award of attorneys’ fees and costs because p etitioner did not have a reasonable basis to file her claim

. Respondent argues that petitioner’s petition was not supported by reasonable basis because t here is no record of any shoulder injury in the weeks that followed petitioner’s receipt of Twinrix vaccine. Resp. at 7. Moreover, when petitioner did complain of pain, it was pain in her elbow, not her shoulder, and petitioner’s doctor’s attributed her pain to low

- grade tendinopathy from antibiotics, not her

Twinrix vaccination. Id. Finally, respondent notes that petitioner complained of the same left shoulder pain before her vaccination as she did after her vaccination. Id.

On July 17, 2017, petitioner filed a reply to respondent’s response to her motion for attorneys’ fees and costs. Petitioner argues that she did have a reasonable basis to bring her claim because she was “ultimately diagnosed with tendonitis, bursitis, and adhesive capsulitis, common diagnoses seen in SIRVA cases.” Reply at 3. Petitioner concedes that petitioner did

2 Osteoarthritis is “a noninflammatory degenerative joi nt disease seen mainly in older persons, characterized by degeneration of the articular cartilage, hypertrophy of bone at the margins, and changes in the synovial membrane. It is accompanied by pain, usually after prolonged activity, and stiffness, partic ularly in the morning or with inactivity.” Dorland’s Illustrated Medical Dictionary 1344 (32 nd ed. 2012) (hereinafter, “Dorland’s).3 not seek treatment for over two months after receiving Twinrix vaccine. However, petitioner’s counsel argues that he thought he could over come this hurdle because petitioner “was an extremely successful, well

- spoken businesswoman that was able to explain the gap in treatment and other issues with convincing clarity.” Id. Petitioner’s counsel says he believed the “factual

issues could be cl arified through litigation.” Id. at 4. Petitioner cites a case in which attorneys’ fees and costs were awarded despite the fact t hat petitioner ultimately asked for her case to be dismissed because she was unable to find expert support. Roche v. Sec’y o f HHS , No. 15

- 38V, 2016 WL 4578917, at *3 (Fed. Cl. Spec. Mstr. July 27, 2016). In Roche , the special master found there was reasonable basis to file the claim because “petitioner’s counsel reviewed cases with similar injuries, discussed petitioner’s case with her . . . and requested and prepared for filing multiple medical records from several practitioners.” Reply at 4. Petitioner’s counsel argues that he followed the process set out in Roche because he and his firm “utilize a thorough and stringent sc reening process prior to filing any claim.” Id. Petitioner argues that her case had reasonable basis up until she found she could not get expert support for her case, at which time petitioner filed a motion to dismiss. Id. at 5

- 6. Finally, petitioner a rgues that policy considerations support an award of attorneys’ fees and costs, as not awarding fees would discourage attorneys from taking vaccine cases. Id. at 6

- 7.

This matter is now ripe for adjudication.

FACTUAL HISTORY

On April 30, 2012, petit ioner went to Boulder Creek Family Medicine where she saw PA Sue A. Griffith. Med. recs. Ex. 8, at 22. Among her concerns was arthritis in her hands, particularly in the distal interphalangeal joint of the fifth finger of her left hand. Id. at 22, 23.

On May 22, 2012, petitioner had a bone mineral density study. Id. at 27. Petitioner weighed 106 pounds with a height of five foot, nine and one

- half inches, which was a risk factor for osteoporosis. Id. She had lost one and one

- half inches in height. Id.

On June 11, 2012, petitioner went to North Boulder Physical Therapy for an initial evaluation. Med. recs. Ex. 2, at 20. Three weeks earlier, she fell and struck her left kneecap. She reported that she had had numerous falls over the prior two ye ars and was checked for multiple sclerosis, which she did not have. Id. She was concerned regarding her strength and

lack of balance. Id.

On June 30, 2014, petitioner received her first Twinrix vaccine in her left deltoid. Med.

recs. Ex. 1. She rec eived the second dose of Twinrix, also in her left deltoid, on July 28, 2014.

Id.

Two and one

- half months after receiving her first Twinrix dose , petitioner told her personal c are physician Dr. Leto Quarles that she was experiencing “ occasional brief twinges of intense and very localized but migratory pain near joints with certain movements, most frequently

above the left elbow.” Med. recs. Ex. 8, at 59. Dr. Quarles attributed this pain to tendinopathy 3

3 Tendinopathy is “any pathological condition of a tendon . . . .” Dorland’s at 1881. A tendon is “a

fibrous cord of conn ective tissue by which a muscle is attached . . . .” Id.4 caused by antibiotics she was taking for to treat mycobacterium avium

- intracellulare. 4 On physical examination of petitioner’s left upper extremity, she had no tenderness to palpation. Id. at 63. Petitioner had normal shoulder, elbow, and wrist joint stability. Id. She had normal range of motion. Id. There was no joint crepitus present and no pain with motion. Id.

Three days later on September 19, 2014, petitioner saw Dr. William J. Williams, an orthopedist. Med. recs. Ex. 2, at 8. Her chief complaint was left upper arm/sho ulder pain for about four months with decreased motion, but no specific injury. Id. Petitioner told Dr. Williams that she had episodes of acute pain in her left biceps muscle. Pain in petitioner’s left biceps often occurred when she extended the arm and externally rotated it and when she moved

her arm behind her back. Id. She said she had had the pain for four months. Id. Petitioner also had some pain in her left cervical (neck) region. Id. She had a history of some chronic neck pain she thought wa s related to her doing a lot of travel for her job as an engineer. Id. Petitioner said she lifted luggage regularly and picked up her 40

- pound five

- year

- old grandson.

Id.

On physical examination, petitioner did not have any apparent asymmetry betwee n her left versus right biceps or deltoid muscle. Id. Petitioner did not have any tenderness over her biceps or proximal humerus. Id. Her left shoulder was tender at the posterior and anterior glenohumeral joint. Her acromioclavicular (“AC”) joint was non

- tender. She had slight anterior subacromial tenderness. Petitioner could actively elevate her left arm to 150 degrees and go to 170 degrees with a stretch. Full external rotation was uncomfortable at 60 degrees. Internal rotation was more painful and mildly limited. Getting her wrist to her lower lumbar region caused a fair amount of pain and a negative posterior liftoff test. Petitioner had satisfactory rotator cuff strength on resisted internal and external rotation with the arm at 90 degrees o f abduction. Petitioner’s impingement tests were mildly positive. Her grip strength in her left upper arm was

intact. An x

- ray of petitioner’s shoulder showed moderate glenohumeral osteoarthritis with subchondral sclerosis and irregularity of the glenoi d with a 1 mm. rimming osteophyte. 5 Id. She had an early osteophyte at the inferior head

- neck junction. Id. Petitioner had only one or two millimeters of joint space narrowing on the axillary view. Id. Dr. Williams diagnosed petitioner

with moderate glenohumeral osteoarthritis with referred left upper arm and shoulder pain. Id. He also diagnosed her with rotator cuff syndrome and neck pain. Id. at 9. Dr. Williams suggested to petitioner that he administer a glenohumeral cortisone injection to reli eve petitioner’s symptoms, but petitioner did not think her pain was bad enough to have the injection.

Id. Instead, she accepted a prescription for physical therapy and the recommendation of taking Aleve and icing when needed. Dr. Williams suggested pe titioner avoid overhead lifting and strengthening as that would likely aggravate her glenohumeral osteoarthritis. Id.

On October 21, 2014, petitioner had a bone mineral densitometry or DEXA performed.

Id. at 17. She had lost two inches in height. He r results showed she had osteoporosis. Id.

On November 5, 2014, Dr. Christophe A. Nusser did an MRI of petitioner’s left shoulder

4 Mycobacterium avian

- intracellulare complex is “a complex of Mycobacterium avium and M.

intracellulare that causes tuberculosis in birds and swine and is associated with human pulmonary disease .

. . .” Dorland’s at 397.

5 An osteophyte is “a bony excrescence or osseous outgrowth.” Dorland’s at 1348.5 without contrast to evaluate her for labral or rotator cuff tear. Id. at 15. Dr. Nusser found minimal degenerative change in petitioner’s acromioclavicular joint. There was a mild

subacromial

- deltoid fluid collection. Petitioner had mild abnormal signal intensity in her distal supraspinatus tendon with mild bursal surface fraying and attenuation in the distal of 1 cm. She had mild edema at the musculotendinous junction of the infraspinatus. Petitioner had mild abnormal signal intensity in the intraarticular portion of her long head biceps tendon and attenuation at the biceps anchor. She had degenerative signal and f raying in her superior labrum at the biceps anchor and fraying or partial tear at the posterior superior labrum with a diminutive appearance. There was mild cartilage signal abnormality and thinning in the posterior superior glenoid. The inferior capsule was th ickened with pericapsular edema. Id.

On November 12, 2014, petitioner saw Dr. Khemarin R. Seng, an orthopedist, complaining of a left frozen shoulder. Med. recs. Ex. 4, at 21. She said she had an insidious onset three months earlier, putting onset in m id

- August 2014 six weeks after her first Twinrix vaccination. In 2013, petitioner had flown 10 million miles. Id. She said she slept in odd positions. Id. She carried luggage awkwardly. Id. In addition, petitioner could not remember a specific incid ent that could have injured her left shoulder. Id. She saw Dr. Williams and received a posterior shoulder injection, which did not help. She underwent an MRI which showed multiple tears. She went to Dr. Seng for a second opinion. Id. Dr. Seng gave

pe titioner an anterior shoulder glenohumeral joint injection. Id. He prescribed physical therapy

three times a week for four weeks. Id.

On November 17, 2014, petitioner went to ALTA Physical Therapy with a diagnosis of adhesive capsulitis which had an in sidious onset a couple of months ago (or September 2014). Med. recs. Ex. 5, at 1.

On December 15, 2014, petitioner saw Dr. Seng to discuss left shoulder surgery scheduled for January 5, 2015. Med. recs. Ex. 4, at 18. Her pain was better, but her limi ted motion was the same. Physical therapy improved her motion, but then it reverted to its limited state. Id. On physical examination, petitioner did not have any significant pain. Id. Her MRI of the left shoulder showed mild tendinopathy and mild art hritis. Id. Petitioner said she wanted to proceed with scope, cleanup, and capsular release with manipulation. Id.

On January 20, 2015, petitioner saw Dr. Seng. Id. at 16. Petitioner said her left shoulder felt okay, the pain was minimal, but her s houlder motion had not improved. Id. She wanted to postpone surgery until summer to see if her motion improved. Id.

On February 17, 2015, petitioner saw Dr. Seng. Id. at 13. She said her left shoulder pain

wa s better but her shoulder movement had n ot improved. Id.

On March 9, 2015, petitioner had surgery on her left shoulder for adhesive capsulitis, impingement, rotator cuff tear, and synovitis. Id. at 28. As part of the surgery, Dr. Seng removed a large distal clavicle osteophyte inferiorly h anging. Id. at 29.

On March 16, 2015, petitioner saw Dr. Seng for a post

- op visit. Id. at 11. Dr. Seng said petitioner’s shoulder looked great. Id. She had minimal pain but more pain with internal

rotation. Id.6 On April 14, 2015, petitioner saw Dr. Seng for a re

- check of her left shoulder. Id. at 9. Her left shoulder was better than before, but petitioner had not kept up with stretching. Id. Dr. Seng requested she refocus on motion and showed her some physical exercise. Id.

DISCUSSION

I. Entitlement to Fees Under the Vaccine Act

a. Legal Standard

Under the Vaccine Act, a special master or the U.S. Court of Federal Claims may award

fees and costs for an unsuccessful petition if “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) ; Sebelius v. Cloer , 133 S. Ct. 1886, 1893 (2013).

“Good faith” is a subjective standard. Hamrick v. Sec’y of HHS , No. 99

- 683V, 2007 WL 4793152, at *3 (Fed. Cl. Spec. Mstr. Nov. 19, 2007). A petitioner acts in “good faith” if he or she holds an honest belief that a vaccine injury occurred. Turner v. Sec’y of HHS , No . 99

- 544V, 2007 WL 4410030, at *5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007). P etitioners are “entitled to a presumption of good faith.” Grice v. Sec’y of HHS , 36 Fed. Cl. 114, 121 (Fed. Cl. 1996).

“Reasonable basis” is not defined in the Vaccine Act or R ules

. It has been determined to be an “objective consideration determined by the totality of the circumstances.” McKellar v. Sec’y of HHS , 101 Fed. Cl. 297, 303 (Fed. Cl. 2011). In determining reasonable basis, the court

looks “not at the likelihood of succe ss [of a claim] but more t o the feasibility of the claim. ”

Turner , 2007 WL 4410030, at *6 (citing Di Roma v. Sec’y of HHS , No. 90

- 3277V, 1993 WL 496981, at *1 (Fed. Cl. Spec. Mstr. Nov. 18, 1993)). Factors to be considered include factual basis, medical support, jurisdictional issues, and the circumstances under which a petition is filed.

Turner , 2007 WL 4410030, at *6

– *9.

Traditionally, special masters have been “quite generous” in finding reasonable basis. Turpin v. Sec’y of HHS , No. 99

- 564V, 2005 WL 1026714, at *2 (Fed. Cl. Spec. Mstr. Feb. 10, 2005); s ee also Austin v. Sec’y of HHS , No. 10

- 362V, 2013 WL 659574, at *8 (Fed. Cl. Spec. Mstr. Jan. 31, 2013) (“The policy behind the Vaccine Act’s extraordinarily generous provisions authorizing attorney fees and costs in unsuccessful cases

— ensuring that litigants have ready access to competent representation

— militates in favor of a lenient approach to reasonable basis.”). However, as former

- Chief Judge Campbell

- Smith noted in her affirmance of Special

Ma ster Moran’s decision not to award attorneys’ fees in Chuisano , “Fee denials are expected to occur. A different construction of the statute would swallow the special master’s discretion.” Chuisano v. United States, 116 Fed. Cl. 276, 286 (Fed. Cl. 2014). See also Dews v. Sec'y of

HHS , No. 13

- 569V, 2015 WL 1779148 (Fed. Cl. Spec. Mstr. Mar. 30, 2015) (in which the undersigned found petitioner was not entitled to attorneys’ fees and costs because she did not have a reasonable basis to bring the petition).

b. Good faith and reasonable basis7 Petitioner is entitled to a presumption of good faith, and respondent does not contest that the petition was filed in good faith. Grice , 36 Fed. Cl. at 121 . There is no evidence that this petition was brought in bad fait h. Therefore, the undersigned finds that the good faith requirement is satisfied. However, for the reasons outlined below, the undersigned agrees with responden t that petitioner did not have a reasonable basis to bring her claim.

Petitioner’s medical records show she did not have SIRVA and that her pain was likely caused by osteoarthritis
, which a vaccine could not cause. P etitioner did not complain of pain

until two and one

- half months after receiving her first Twinrix dose, when she told her personal care physician Dr. Leto Quarles on that she was experiencing pain in joints. However, petitioner specifically complained of pain in her elbow, not in her shoulder. Med. recs. Ex. 8, at 59. Dr. Quarles attributed this pain to tendinopa thy caused by antibiotics. Id. Dr. Quarles’ examination of pe titioner’s left upper extremity showed she h ad no tenderness to palpation and that she had normal shoulder, elbow, and wrist joint stability and normal range of motion, which contradicts

her cl aim that Twinrix vaccine caused her to develop SIRVA

.

Moreover, when petitioner s a w Dr. Williams three days later on September 19, 2014, she told Dr. Williams that she had experienced upper left arm and shoulder pain for about four

months with decrease d motion , which would put onset before her receipt of Twinrix. Med. recs. Ex. 2, at 8. Petitioner attributed that pain to chronic neck pain related to her travelling for her job as an engineer. Id. Petitioner said she lifted luggage regularly and picke d up her 40

- pound five

year

- old grandson. Id. Dr. Williams’ examination of petitioner showed that petitioner did not have any apparent asymmetry between her left versus right biceps or deltoid muscle. As the undersigned explained in her Order to Show Ca use, when an arm or shoulder is painful, a person will not use it as much, causing the biceps or deltoid muscle to atrophy. Since petitioner’s left and right biceps and left and right deltoid muscles were symmetrical on September 19, 2014 when

Dr. William s examined her, it follows that she had been using her left arm normally since June 30, 2014, the date of her first Twinrix vaccination.

Counsel has a duty to investigate a claim before filing it. In Rehn v. Secretary of Health

and Human Services , Jud ge Lettow explained : “if an attorney does not actively investigate a case before filing, the claim may not have a reasonable basis and so may not be worthy of attorneys' fees and costs.” 126 Fed. Cl. 86, 93 (Fed. Cl. 2016). Review of petitioner’s medical records would have shown petitioner’s attorney that petitioner did not have a reasonable basis to bring her

claim.

Petitioner did not contact her counsel on the eve of the running of the statute of

limitations. She received flu vaccine on June 30, 2014

. Even if petitioner’s alleged vaccine injury began the day she received the vaccine , she had until June 30, 2017 before the statute of limitations would run on her claim. Petitioner’s attorney’s billing records show petitioner had contacted counsel by February 3, 2015 , over two years and four months before the running of the statute of limitations. Fee App., Ex. A, at 1 . This should have been plenty of time for petitioner’s counsel to receive and review petitioner’s medical records and discover the sa me issues that led to the dismissal of petitioner’s case. Petitioner’s counsel had ample time to perform this due diligence. See Chuisano v. Sec'y of HHS , 116 Fed. Cl. 276, 291 ( May 15, 2014) (finding that a special master acted within his discretion in not finding reasonable basis because, in part, the attorneys did not establish diligence and noting “an earlier telephone call to8 one of the firm's regularly retained experts might have provided some evidence of timely due diligence”) ; Solomon v. Sec'y of H HS , No. 14

– 0748V, 2016 WL 8257673, at *4 (Fed. Cl. Spec. Mstr. Oct. 27, 2016) (“Petitioner's counsel still is required to perform due diligence, given the available evidence and amount of time prior to the running of the statute of limitations

. ”)

.

CONCLUS ION

The undersigned finds that an award of attorneys’ fees and costs to petitioner is unreasonable. Therefore, the undersigned DENIES petitioner’s motion for attorneys’ fees and

costs.

In the absence of a motion for review filed pursuant to RCFC Appen dix B, the clerk of the court is directed to enter judgment herewith. 6

IT IS SO ORDERED.

Dated: September 22, 2017 s/ Laura D. Millman

Laura D. Millman

Special Master

6 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party , either separately or jointly, filing a notice renouncing the right to seek review.