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OFFICE OFSPECIAL MASTERS No. 17-77V Filed: November 21 , 2017 Notfor Publication



### ************************************* ALFREDAALBERTO and WILBERT 

### * LOPEZ, Legal Representatives ofa 

### * Minor Child, J.L.A., 

### * * 

# FILED NOV 212017
U

.S

. COURT OF FEDERAL CLAIMS

Petitioners,

v. 

### * * * * Interim attorneys' fees and costs decision; respondent objects to fee award; lack ofinformation to determinereasonable 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' FEESAND COSTS 1
OnJanuary 17, 2017, petitioners Alfreda Albe110 and Wilbert Lopez filed a petition on behalfoftheir daughter, J.L.A., under the National ChildhoodVaccine 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 ofher August 8, 2014 receipt ofDtap, Hep B, HIB, Pneumococcal, and polio vaccinations. Pet. at

## iii! 2, 3. The case was assigned to the undersigned onJanuary 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1 Because this unpublished decision contains a reasoned explanation for the special master's action in this case, the special master intends to postthis unpublished decision on the United States Comt ofFederal Claims' website, in accordance with the E-Government Act of2002, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion ofElectronic Government Services). Vaccine Rule 18(b) states that all decisions ofthe 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 ofprivacy. When such a decision is filed, petitioner has 14 days to identify and move to redact such information prior to the document's disclosure

. Ifthe special master, upon review, agrees thatthe 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 CLAIMSOn October 3, 2017, petitioners filed a motion for interim attorneys' fees and costs on behalfoftheir attorney, Mr. Martin J. Mmtinez. On October 27, 2017, the undersigned issued a decision denying interim attorneys' fees and costs based on lack ofinformation to determine reasonable basis.
OnNovember 11, 2017, petitioners filed a motionto withdraw as attorney on behalfof Mr. Martinez. OnNovember 13, 2017, the undersigned granted petitioners' motion and they are nowpro 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 ofMr. 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 inthis case since that time. Resp. at 1.
The Vaccine Act provides that a special master may awardreasonable attorneys' fees and costs ifthe special master determines thatthe 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 ofinterim 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. Martinezrealized and advised petitioners on the difficulty oftheir proving causation in this case:
Due to confidential communications betweenpetitioner'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 ofproving causation ofthe D-68 virus as being the proximate cause ofthe 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 hadreceive 10,000 pages ofreports from the University ofCalifornia at Davis which "changed the merits of the case
...." Req. at 1-2. Mr. Mmtinez states the records (none ofwhich he filed) showthat 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 thatthis condition likely explains many of [J.L.A.'s] medical problems such as herpolio-like illness in infancy, due to increased susceptibility to infections, and thrombocytopenia." Id. at 2. Since J.L.A. was born with DiGeorge syndrome, petitioners could notpossibly prove that vaccinations she received at four and-one halfmonths ofage caused it. Order to Show Cause, at 3.
Counsel has a duty to investigate a claim before filing it. In Rehn v. Secretary ofHealth and Human Services, Judge Letlow explained: "ifan attorney does not actively investigate a case before filing, the claim may not have a reasonable basis and so may not be worthy ofattorneys' fees and costs." 126 Fed. Cl. 86, 93 (Fed. CL 2016). Petitioners did not contact Mr. Martinez on the eve ofthe running ofthe statute oflimitations. 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 oflimitations 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 ofthe statute oflimitations. 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 ofa reasonable basis to file this petition.
In the absence ofa motion for review filed pursuantto RCFC Appendix B, the clerk ofthe court is directed to enterjudgment.2



### IT IS SO ORDERED.
Dated: November 21, 2017

# ~£1.~ Laura D. Millman

Special Master

2 Pursuant to Vaccine Rule I !(a), entry of judgmentcan be expedited by each party, either separately or jointly, filing a notice renouncing the rightto seek review. 3