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OFFICE OF SPECIAL MASTERS 

No. 17-77V 

Filed: November 21 , 2017 

Not for Publication 

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

ALFREDA ALBERTO and WILBERT * 

LOPEZ, Legal Representatives of a * 

Minor Child, J.L.A., * 

* 

FILED 

NOV 2 1 2017 

U.S. COURT OF 

FEDERAL CLAIMS 

Petitioners, 

v. 

* 

* 

* 

* 

Interim attorneys' fees and costs 

decision; respondent objects to fee 

award; lack of information to 

determine reasonable basis 

SECRET ARY OF HEALTH * 

AND HUMAN SERVICES, * 

* 

Respondent. * 

* 

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

Alfreda Alberto and Wilbe11 Lopez, Sacramento, CA, for petitioners (pro se). 

Colleen C. Hai1ley, Washington, DC, for respondent. 

MILLMAN, Special Master 

DECISION DENYING INTERIM ATTORNEYS' FEES AND COSTS1 

On January 17, 2017, petitioners Alfreda Albe110 and Wilbert Lopez filed a petition on 

behalf of their daughter, J.L.A., under the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 

300aa-10- 34 (2012) ("Vaccine Act"). Petitioners alleged that their daughter suffered 

respiratory distress, hypoxia, hypotonia, pseudoaneuryism, acute flaccid paralysis, polio-like 

symptoms, acute and severe myopathy, anemia thrombocytopenia, and fever as a result of her 

August 8, 2014 receipt of Dtap, Hep B, HIB, Pneumococcal, and polio vaccinations. Pet. at iii! 

2, 3. The case was assigned to the undersigned on January 18, 2017. 

1 Because this unpublished decision contains a reasoned explanation for the special master's action in this 

case, the special master intends to post this unpublished decision on the United States Comt of Federal 

Claims' website, in accordance with the E-Government Act of2002, 44 U.S.C. § 3501 note (2012) 

(Federal Management and Promotion of Electronic Government Services). Vaccine Rule 18(b) states that 

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. 

REISSUED FOR PUBLICATION

DEC 19 2017

OSM

U.S. COURT OF FEDERAL CLAIMS
On October 3, 2017, petitioners filed a motion for interim attorneys' fees and costs on 

behalf of their attorney, Mr. Martin J. Mmtinez. On October 27, 2017, the undersigned issued a 

decision denying interim attorneys' fees and costs based on lack of information to determine 

reasonable basis. 

On November 11, 2017, petitioners filed a motion to withdraw as attorney on behalf of 

Mr. Martinez. On November 13, 2017, the undersigned granted petitioners' motion and they are 

now pro se. On the same day, the undersigned issued an order to show cause. Petitioners have 

until November 28, 2017 to explain why this case should not be dismissed. 

On November 11, 2017, petitioners filed a motion for attorneys' fees and costs on behalf 

of Mr. Martinez. Although Mr. Martinez was terminated as petitioners' attorney, the case is still 

pending. Thus, this is the second motion for interim attorneys' fees and costs. Petitioners 

request $41,912.00 in attorneys' fees and $604.84 in attorneys' costs, for a total request of 

$42,516.84. 

On November 15, 2017, respondent filed a response to petitioners' second motion for 

interim attorneys' fees. Respondent incorporates his prior response and objection to an award of 

interim attorneys' fees and costs, where he does not believe petitioners have a reasonable basis 

given the current records, stating there has been no substantive change in this case since that 

time. Resp. at 1. 

The Vaccine Act provides that a special master may award reasonable attorneys' fees and 

costs if the special master determines that the petition was "brought in good faith and there was a 

reasonable basis for the claim .... " 42 U.S.C. § 300aa-15(e)(l). 

The undersigned finds that an award of interim attorneys' fees and costs to petitioners is 

unreasonable because they did not have a reasonable basis to bring their claim. In a status 

report filed September 5, 2017, petitioners state their former attorney Mr. Martinez realized and 

advised petitioners on the difficulty of their proving causation in this case: 

Due to confidential communications between petitioner's [sic] counsel and his 

expe1t witness, petitioner's [sic] counsel has made a decision to no longer 

pursue the case due to the difficulty of proving causation of the D-68 virus as 

being the proximate cause of the injury. The petitioners have been informed of 

this decision. 

Pet' rs' Status Rep. at 1. 

Mr. Mmtinez filed a request to extend time on September 17, 2017, stating he had receive 

10,000 pages ofreports from the University of California at Davis which "changed the merits of 

the case .... " Req. at 1-2. Mr. Mmtinez states the records (none of which he filed) show that 

J.L.A. suffers from a congenital disease, DiGeorge syndrome, resulting in poor development of 

several body symptoms. Id. He quotes an unnamed doctor stating, "This test showed that 

2 
[J.L.A.] has 22q 11.2 deletion syndrome. We reviewed that this condition likely explains many 

of [J.L.A. 's] medical problems such as her polio-like illness in infancy, due to increased 

susceptibility to infections, and thrombocytopenia." Id. at 2. Since J.L.A. was born with 

Di George syndrome, petitioners could not possibly prove that vaccinations she received at four 

and-one half months of age caused it. Order to Show Cause, at 3. 

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

and Human Services, Judge Letlow 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). Petitioners did not contact Mr. Martinez 

on the eve of the running of the statute of limitations. J.L.A. received Dtap, hepatitis B, HiB, 

Prevnar, and IPV vaccinations on August 8, 2014. On August 9, 2014, J.L.A. had bronchiolitis. 

Petitioners had until August 9, 2017 before the statute of limitations would run on their claim. 

Thus, Mr. Martinez had ample time to perform due diligence. 

Mr. Martinez's billing records show he began to review records from petitioners on 

March 28, 2016, over a year before the running of the statute of limitations. Fee App., at 10. 

He should have realized there were other medical records he needed to obtain before filing the 

petition. Therefore, the undersigned finds that Mr. Martinez did not do due diligence by not 

requesting and reviewing J.L.A. 's complete medical records in time. 

Therefore, the undersigned DENIES petitioners' motion for interim attorneys' fees and 

costs for lack of a reasonable basis to file this petition. 

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

court is directed to enter judgment.2 

IT IS SO ORDERED. 

Dated: November 21, 2017 ~£1.~ Laura D. Millman 

Special Master 

2 Pursuant to Vaccine Rule I !(a), entry of judgment can be expedited by each party, either separately or 

jointly, filing a notice renouncing the right to seek review. 

3