1



# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 1 9

- 0 4 21 V

NOT TO BE PUBLISHED

KENNETH GUMM, SR.

,

Petitioner

,
v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent

. Chief Special Master Corcoran

Filed: January 21 , 20 20

Attorney’s Fees and Costs; Reasonable Basis; Special Processing Unit (“SPU”)

Steven Edwards Winslow, Jubelirer Pass & Intrieri, P.C., Pittsburgh, PA , for Petitioner

.

Linda Sara Renzi

, U.S. Department of Justice, Washington, DC, for Respondent

.

DECISION DENYING ATTORNEY’S FEES AND COSTS 1

On March 2 0 , 201 9

, Kenneth Gumm, Sr. filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa

– 10, et seq

. 2 (the “Vaccine Act” or “Program”) , alleging that he suffered from Guillain Barré s yndrome (“GBS”) as a result of an influenza (“flu”) vaccine a dministered “on or about Fall 2015

. ” Petition at 1. The case was assigned to the Special Processing Unit (“SPU”) of the Office of Special Masters

. Within six months of filing, o n August 1, 2019 , Petitioner voluntarily dismissed his claim pursuant to Vaccine Rule 21(a). (ECF No. 9). The prior Chief Special Master presiding over the matter subsequently issued an order concluding proceedings and dismissing the P etition on August 2, 2019

. ( ECF No. 10 )

.

1 Because this unpublished decision contains a reasoned explanation for the action in this case , it will be posted on the United States Court of Federal Claims' website in accordance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. 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, upon review, I

agree that the identified material fits within this definition, I will redact such material from public access.

2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99

- 660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).2

On August 20, 2019, Petitioner filed a motion requesting $4,497.50 in attorney’s fees and $528.50 in costs

, for a total amount of $5,026.00. Motion for Payment of

Pet itioner’s Attorney’s Fees and Reimbursement of Case Costs (“Pet. Motion”) at 4

. (ECF No. 11). Petitioner filed additional documentation in support of his motion on September 6, 2019. (ECF No. 13). Arguing that there was no reasonable basis to file or pursue this claim, Respondent opposed Petitioner’s request. Respondent’s Opposition to Pet itioner’s Application for Attorney Fees and Costs (“ Opp. ”), filed September 17, 2019 at 1

. (ECF No. 14). Petitioner filed a reply on September 24, 2019. Reply in Support of Motion for Payment (“Pet. Reply”) (ECF No. 15). This issue is now ripe for ad judication.

For the reasons discussed below, I DENY Petitioner’s motion for fees and costs.

I. Procedural History

As the filed billing records reveal, Petitioner’s initial consultation with his counsel took place on March 18, 2019

– a few days before the P etition was filed on March 20 th

. Pet. Mot. at 1; ECF No. 1. In it, Petitioner asserts that he received a flu vaccination “on or about Fall 2015” and “[ a]pproximately two [2] weeks after . . . his health quickly declined and he began to experience symptoms including, but not limited to, muscle weakness, dizziness, loss of balance, tingling, numbness, and paresthesia in his extremities.” Petition (“Pet.”) at ¶¶ 2, 4. Because the claim was filed more than three years from onset, it was literally untimely under the Act’s three

- year limitations period

– but could be saved by the Act’s “lookback” provision, since it asserted a flu

- GBS Table claim, and did so i n accordance with the lookback’s requirements. 3

While Petitioner filed an affidavit in support of these allegations, the P etition was not accompanied by medical records or a record of vaccine administration. Petitioner
stated that “[u]nder the circumstances

, the undersigned counsel did not have sufficient time to obtain Petitioner’s medical records and other supporting docume ntation prior to filing this Petition.” Pet. at ¶ 16. On March 22, 2019, Petitioner was ordered to file supportive medical records and a statement of completion by April 1, 2019

. ( ECF No. 5 )

. However, on March 27, 2019, Petitioner filed a motion for an extension of time in which
to file these documents

. (ECF No. 6). In his motion, Petitioner claimed that both he and his counsel were “exercising every reasonable effort to obtain the medical records and supporting documentation as soon as possible.” Id

. a t ¶ 5 . Pursuant to Petitioner’s

3 Under the Vaccine Act, a person who has sustained a vaccine

- related injury must file a claim within 36 months of the onset of the symptoms of the injury. Section 16(a)(2). This would mean that Mr. Gumm’s claim ordinarily should have been filed by no later than sometime in the fa ll of 2018

– not March 2019.

However, pursuant to Section 16(b), “[i]f at any time the Vaccine Injury Table is revised and the effect of such revision is to permit an individual who was not, before such revision, eligible to seek compensation

under the Pro gram, or to significantly increase the likelihood of obtaining compensation, such person may . . . file a petition for such compensation not later than 2 years after the effective date of the revision.” GBS was added to the Table on March 21, 2017, and th e lookback allows otherwise

- untimely Table claims to be filed if (a) the claim is asserted within two years of the Table’s amendment, and (b) the vacci ne

- related injury is alleged to have occurred not more than eight years before the amendment

. Id

. Both re quirements were satisfied here (although I do not find that the claim stated a cognizable Table claim).3

request, Petitioner’s deadline was extended to June 1, 2019. See O rder, issued March

28

, 2019.

Petitioner’s counsel’s attempts to obtain medical records from Dr. Alastair C. Kennedy, Petitioner’s rheumatologist, are docume nted in the billing records. 4 See Pet. Motion, Exhibit 1 at 4

- 5 (entries dated April 9, April 17, April 24, May 1, May 3 and May 6, 2019). However, records from this practitioner were not ever filed and there is no indication that they were ever received

.

Petitioner’s counsel later received records from Dr. Richard T. Penly

, 5 Petitioner’s primary care physician, on April 11 and April 16, 2019. See Pet. Motion, Exhibit 1 at 2 , 4

. However, Petitioner has acknowledged that these records did not reference a GBS diagnosi s ; rather, “ Petitioner’s medical records indicated that he developed Polymyalgia Rheumatica (“PMR”) shortly after the influenza vaccine was administered. ” Pet. Mo. a t ¶

5.

On May 30 and May 31, 2019, Petitioner’s counsel followed up with Petitioner regarding the existence of other physic ians w ho may have diagnosed him with GBS

. Pet.
Motion

, Exhibit 1 at 2

- 3. On May 31, 2019, Petitioner also filed a second motion for an extension of time in which to file his outstanding medical records and statement of completion. ( ECF No. 8 ) . This request was granted, and Petitioner’s deadline was extended to August 1, 2019. See Order, issued June 4, 2019.

On June 10, June 18, June 21, and June 28, 2019, Petitioner’s counsel again followed up with Petitioner to obtain records documenting Petitioner’s alleged GBS diagnosis

. Pet. Motion, Exhibit 1 at 3. H owever, “Petitioner and his family were u nable to identify any additional physicians for [counsel] to request medical records from .” Pet. Motion at ¶ 8. There is no record indicating that Petitioner or his counsel ever attempted to obtain a record of the vaccination alleged to be causal.

After emails to and conference calls with Petitioner and his family on July 30

, July 31, and August 1, 2019, Petitioner filed a notice of voluntary dismissal and the prior Chief Special Master issued an order concluding proceedings and dismissing the P etit ion. Pet. Motion, Exhibit 1 at 3; ( E C F Nos. 9

- 10).

Petitioner filed his motion for attorney’s fees and costs on August 20, 2019. (ECF No. 11). Respondent filed a response, and Petitioner filed a reply. (ECF Nos. 14

- 15). Respondent disputes Petitioner’s assertion that reasonable basis existed for his claim

.

II. The Parties’ Arguments

In his m otion, Petitioner first argues that he “ had a reasonable basis for pursuing

his claim initially based upo n his belief that he was diagnosed with GBS shortly after receiving an influenza vaccine

. ” Pet. Motion at ¶ 10. Petitioner then argues that he “had

4 Although the billing records only refer to “Dr. Kennedy,” based on the allegations in the P etition, this appears to be a reference to Dr. Alastair C. Kennedy. See Pet. at ¶ 6.

5 Although the billing records only indicate that records were received from “Dr. Penley,” based on the allegations in the P etition, this appears to be a reference to Richard T. Penly, M.D. , Petitioner’s primary care physician. See Pet

. at ¶ 5.4

a reasonable basis to file a [p] etition before receiving Petitioner’s medical records in order to preserve the timelines s of such a claim

, ” and that “[w]hen it was determined there was no longer a basis to proceed in light of the medical records and applicable statute of limitations, Petitioner voluntarily dismissed his P etition for compensation on August 1,

2019.” Pet. Mo tion at ¶ ¶ 11

- 12.

Respondent asserts in reaction that Petitioner never had a reasonable basis for
the claim

, and that Petitioner’s counsel “filed the [P] etition without knowing [P]etitioner’s
actual condition.” Opp . at 4

- 5. 6

In his reply to Respondent’s Opposition , Petitioner argues that denying attorney’s fees and costs in this matter and in similar instances “would discourage attorneys from representing vaccine injured clients unless they are approached months in advance of the expirati on of the statute of limitations.” Pet. Reply at 5.

III. Analysis

a. Reasonable Basis Standard

Under t he Vaccine Act , an unsuccessful petitioner may be awarded attorney’s fees

and costs if “the petition was brought in good faith and there was a reasonable basis for the claim for which the petition was brought

. ” § 15(e)(1). While petitioners are entitled to a presumption of good faith, this presumption does not extend to reasonable basis whi ch must be affirmatively demonstrated by the petitioner.

6 Responde nt also argues that Petitioner has failed to establish that the P etition was timely filed. Opp. at 5. In a footnote, Respondent explains that “even if [Petitioner] had been diagnosed with GBS, it is unclear whether the lookback provision for Table revision s would apply because [P]etitioner was eligible to seek compensation prior to the March 21, 2017, [sic] Table change and that change would not have significantly increased his likelihood of receiving compensation.” Id . at note 4. It is evident from the allegations in this

case that a Table claim would not be viable, and I have recently ruled that non

- Table flu

- GBS claims may not obtain the benefit of the lookback (and hence be excused from the three

- year limitations requirement).

Ran dolph v. Sec’y of Health & Human Servs ., No. 18

- 1231V, s lip. o p

. (Fed. Cl. Spec. Mstr. Jan. 2, 2020). Of course, such issues were not reached in this case when Petitioner withdrew the claim voluntarily under

Vaccine Rule 21.

Regardless, it also appears th at counsel may request fees even if the claim were dismissed for

untimeliness. I n Sebelius v. Cloer , 133 S.Ct. 1886 (2013 )

, the Court noted that, “[i ]f Congress had intended to limit fee awards to timely petitions, it could easily have done so. But [the Vaccine Act] instead authorizes courts to award attorney’s fees for those unsuccessful petitions ‘brought in good faith and [for which] there

was a re asonable basis.’ ” (quoting 42 U.S.C. §300aa

– 15(e)(1)). See also Bilodeau v. Sec’y of Health &

Human Servs.

, No. 14

- 072

, 2017 WL 2417926, at *4 (Fed. Cl. Spec. Mstr. May 9, 2017) (stating “[n]either the fact that no medical records or supportive expert r eport was filed nor the fact that the claim was filed beyond the statute of limitations automatically negates a finding of reasonable basis.”).5

I have in prior decisions set forth at length the criteria to be applied when determining if a claim possessed “reasonable basis” sufficient for a fees award. See, e.g., Allicock v. Sec’y of Health & Human Servs., No. 15

- 485V, 2016 WL 3571906, at *4

– 5 (Fed. Cl. Spec. Mstr. May 26, 2016), aff’d on other grounds, 128 Fed. Cl. 724 (2016); Gonzalez v. Sec’y of Health & Human Servs., No. 14

- 1072V, 2015 WL 10435023, at *5

– 6 (Fed. Cl. Spec. Mstr. Nov. 10, 2015). In short, a petitioner must demonstrate the claim’s reasonable basis through some objective evidentiary showing. See Chuisano v. Sec’y of Health & Human Servs., 116 Fed. Cl. 27 6, 286 (2014) (citing McKellar v. Sec’y of Health & Human Servs., 101 Fed. Cl. 303, 303 (2011)). The standard for reasonable basis is

lesser (and inherently easier to satisfy) than the preponderant standard applied when assessing entitlement, as cases with reasonable basis (because they have objective proof supporting the claim) can nevertheless still fail to establish causation

- in

- fact. Braun v. Sec’y of Health & Human Servs., Fed. Cl. 72, 77 (Fed. Cl. 2019)

.

The Court of Federal Claims recently provided f urther illumination as to the standards to be used in evaluating whether the totality of the circumstances warrants a finding of reasonable basis. Cottingham v. Sec’y of Health & Human Servs., 134 Fed. Cl. 567, 578 (2017), appeal docketed , No. 19

- 1596 (Fed . Cir. Feb. 26, 2019). A special

master should consider “the novelty of the vaccine, scientific understanding of the vaccine and its potential consequences, the availability of experts and medical literature, and the time frame counsel has to investigate a nd prepare the claim.” Id . at 574. The existence of an impending statute of limitations deadline, however, has been removed from consideration under the “totality of the circumstances” analysis, as it does not constitute an objective factor relevant to the claim’s underlying validity. Simmons v. Sec’y of Health & Human Servs., 875 F.3d 632, 636 (Fed. Cir. 2017); see also Amankwaa v. Sec’y of Health & Human Servs., 138 Fed. Cl. 282, 289

– 90 (2018) (“special masters must not consider subjective factors in dete rmining whether a claim has reasonable basis[,]” and should “limit [their] review to the claim alleged in the petition. . . based on the materials submitted”) (quoting Santacroce v. Sec’y of Health & Human Servs., No. 15

- 555V, 2018 WL 405121, at *7 (Fed. C l. Spec. Mstr. Jan. 5, 2018)).

b. Petitioner’s Claim Lacked Reasonable Basis from the Date of Filing

There is no dispute that this claim did not have sufficient evidentiary basis to proceed after August 1, 2019

– that very proposition was the grounds for Petitioner’s voluntary dismissal. Indeed, at the time this case was dismissed, the only evidence that had been filed was Petitioner’s affidavit. Therefore, the i ssue posed by the present fee motion is whether there was enough objective evidence before August 1, 2019 to find that

Petitioner’s claim had reasonable basis.

Petitioner asserts that he “had a reasonable basis for pursuing his claim initially based upon his belief that he was diagnosed with GBS shortly after receiving an influenza

vaccine .” Pet. Motion at ¶ 10. However, there is no objective evidence in the record establishing that Petitioner was ever diagnosed with GBS

, or that this condition was even considered by his treating physicians. The only evidence corroborating Petitioner’s belief

that he suffered from GBS was his own affidavit. (ECF No. 1). It is established in the6

Program , however, that a petitioner’s own st atements are not “objective” for purposes of evaluating reasonable basis. See

, e.g.

, Chusiano , 116 Fed. Cl. At 291 (petitioner’s affidavit detailing “subjective belief” of vaccine injury did not constitute objective evidence); Foster v. Sec’y of Health & H uman Servs ., No. 16

- 1714V, 2018 WL 774090, at *3 (Fed. Cl. Spec. Mstr. Jan. 2, 2018) (reasonable basis existed where counsel relied

not on statements made by the petitioner but on “actual objective record proof”) (emphasis added). Here, in the absence of a ny medical records supporting the claim in

the P etition, Petitioner’s belief is not sufficient to satisfy this part of the reasonable basis

test

.

Petitioner also argues that he was compelled to file the P etition before receiving medical records to preserve the timeliness of the claim (presumably measuring from the

two

- year period set by the lookback to file a flu

- GBS claim after the March 2017 Table amendment) . However, as the Federal Circuit explained in Simmons , “a loomin g statute of limitations deadline. . . has no bearing on whether there is a reasonable factual basis ‘for the claim’ raised in the petition.” 875 F.3d at 636. Because Petitioner la cked sufficient evidence to support his claim at the time of filing , invoking the statue of limitations is not a valid argument.

The totality of the circumstances establish that Petitioner’s claim lacked reasonable basis from its inception. Petitioner f ailed to provide any objective evidence to establish the feasibility of his claim

, and the invocation of a looming statute of limitations

deadline does not comport with the Program’s established case law

.

IV. Conclusion

For th e reasons stated above, I conclude that Petitioner has failed to establish that

there was a reasonable basis for the claim for which the P etition was brought. Accordingly, I find that an award of attorney’s fees and costs to Petitioner is un reasonable,

an d his motion is DENIED.

The clerk of the court is directed to enter judgment in accordance with this

decision. 7

IT IS SO ORDERED.

s/ Brian H. Corcoran

Brian H. Corcoran Chief Special Master

7 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review.