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OFFICE OF SPECIAL MASTERS 

## FILED JUN 242016 * * * * * * *

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## * JULIE REILING, Petitioner, V.
SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. 

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## * No. 15-032V U.S

. COURT OF FEDERAL CLAIMS Special Master ChristianJ. Moran
Filed: June 24, 2016 Attorneys' fees on interim basis; reasonable basis

AndrewD. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, former counsel for petitioner; AnnD. Martin, United States Dep'tofJustice, Washington, DC, for respondent.

PUBLISHED DECISION DENYING ATTORNEYS' FEES AND COSTS ONAN INTERIMBASIS 1
Julie Reiling alleges that a tetanus-diphtheria-acellularpertussis ("Tdap") vaccination shereceived onJune 14, 2013, harmed her. While hercase remains pending, Ms

.Reilinghas filed a motion for an awardofattorneys' fees and costs on an interim basis. Pet'r's Fee Appl'n, filed April 25, 2015. This application prompted an opposition from the Secretary andwas, in tum, supported by a brief Ms. Reiling's former attorney filed. Forthe reasons explained below, Ms

.Reiling

1TheE-Govemment Act, 44 U.S.C. § 3501 note (2012) (FederalManagement and Promotion ofElectronic Government Services), requires that the Courtpostthis decision on its website. Pursuant to Vaccine Rule l8(b), the parties have 14 days to file a motion proposing redaction ofmedical information orother information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special master will appear in the documentposted on the website.has not demonstrated that an award ofattorneys' fees and costs is warranted at this time. Therefore, herrequest is DENIED. I. BriefFactual and Procedural History Many years before the Tdap vaccination at issue in this case, Ms. Reiling complained about wheezing,jointpain, and eye itching while at work. Apparently, someone at her place ofemployment (a major home renovation store) informed her that she was allergic to latex. The doctor to whom she made these complaints in 2005 (Dr. Barry) referred her to another doctor. Exhibit 12 at 13. The second doctor, who appears to have a specialty in occupational medicine, stated that "many ofher symptoms are not consistentwith allergic exposure and should be workedup with her primary care doctor for possible other causes." Exhibit 19 at 7. Upon returning to Dr. Barry, Ms. Reiling told her that the previous doctor had not listenedto herproperly. Ms. Reiling requested that Dr. Barryprovide her with "anote for work to change her work environment to decrease exposures." Exhibit 12 at 16. After an examination, Dr. Barry stated that Ms. Reilinghad an upper respiratory infection and asthma symptoms "possibl[y] secondary to work exposure to allergens." Id. at 1 7. A few months later, Ms. Reiling told Dr. Barry that after a "livercleanse" and "oxygen therapy" withher chiropractor (whose records are not contained in the record), herjointpain and respiratory issues had nearly resolved. Ms. Reiling, however, complained ofotherproblems with other chemicals, such as feeling sick when exposedto fumes when driving behind abus. Dr. Barry's examination did notreveal any abnormalities. Exhibit 12 at 55. Approximatelythree years later in October 2008, Ms. Reiling saw another primary care physician, Robin Fischer. Ms. Reiling complained about "burning in herhead." Accordingto Dr. Fischer, Ms. Reiling "relates a lot ofthis to the metal filling that she has inhermouth." Ms. Reiling told Dr. Fischerthat a nonconventional dentisthad removed cadmium from herteeth. Afterthis removal, Ms. Reiling felt strange sensations when near a cell tower less frequently. Dr. Fischer assessed Ms. Reiling with "headache pain, possibly tensionheadache." Exhibit 11 at 27. Dr. Fischer suggested that a psychiatrist mightbe useful. Id.
More proximate to the Tdap vaccination at issue here, on June 14, 2013, Ms. Reiling soughttreatment at Fairview Lakes Regional Medical Center. Ms. Reiling reported that about one month earlier, she hit her head on a stove. She told the

2doctorthat "herhead hurts." She also had noticed metal shavings in herhead. Upon examination, the doctor found a small red patch on her scalp. The doctor orderedthe Tdap vaccination and prescribed an antibiotic. Exhibit 12 at 152.
In an affidavit, Ms. Reiling averred that after the vaccination, she had headache, nausea, and itchy eyes, among otherproblems. She stated that these problems startedthe evening ofJune 14, 2013, and continued intothe next day at least. Exhibit 1, 

### ii 5-6. On July 2, 2013, Ms. Reiling returned to FairviewLakes, reporting that she had beenplaced on antibiotics on June 14, 2013 and requested more antibiotics. Ms. Reiling informed a nurse that "herjawhas been hurting and that she has been getting sharp pains in herhead." Exhibit 12 at 156. Ms. Reiling had noticed "yellow stuffoozing from the cut" in her head. Id. Althoughthe nurse urged Ms. Reilingto stay, Ms. Reiling wanted only to schedule an appointment for the next day. The next day, Ms. Reiling came to her appointment. Ms. Reiling stated she had a "dull ache constant[ly]" and "sharp pains intermittently." She also reported thattwo days aftertakingthe antibiotic, she had a "stiff jaw." Ms. Reiling's history also included a statement that "she has some pain [but] no headaches." She also indicatedthat she has "nothad any other symptoms." Exhibit 12 at 158-59. The doctor's examination showedthat Ms. Reiling's scalp had a "wellhealed scar no scab." Neurologically, the doctor assessed Ms. Reiling as having "Normal strength and tone," intactmentation and normal speech. Id. The doctor assessed Ms. Reiling as having a "head injury" that "maytake a while to completely resolve." The doctor also recommended following up with a dentist for a tooth infection. Id. Followingthe July 3, 2013 consultation, Ms. Reiling visited multiple doctors, reporting multiple medical problems. See Resp't'sRep., filed Oct. 9, 2015, at 7-18; Reply in Support ofMot. for Attorneys' Fees, submitted May 31, 2016, at 2-4. These records are generally notrelevantto determine whetherMs. Reiling should be awarded attorneys' fees and costs at this time.
In July 2014, Ms. Reiling contacted attorney DrewDowning. Timesheets at 1. Mr. Downing gathered some medical records and then submitted Ms. Reiling's petition on January 12, 2015. He filed the medical records about six weeks later. The petition alleges thatMs. Reiling's pre-existing latex allergy prompted an adverse reaction to latex found in "tip caps ofprefilled syringes" used to
3administerthe vaccine. Pet. at 1. However, as discussed in the Secretary's Report, allergy testing did not showMs. Reiling had any allergy to latex. This testing was conducted in August 2014. Exhibit 2 at 22-23. The inconsistency between the petition and the petitioner's affidavit, which alleged an allergy to latex, and the medical record, which showed no allergy to latex, was discussed in the initial status conference. Mr. Downingplanned to obtain an expertreport. Order, issued Oct. 19, 2015. On March 29, 2015, the petitioner filed areport from PatrickNemechek. Exhibit 27. He is a doctor ofosteopathic medicine who graduated from medical school in 1987. Exhibit 28 (curriculum vitae) at 3. Through approximately 2010, Dr. Nemechek focused on treating patients with HIV. Exhibit 27 at 1, exhibit 28. His curriculum vitae lists many publications in the context ofHIV and/or AIDS. Exhibit 28. Dr. Nemechek's curriculum vitae indicates that after 2010, he worked as a medical director ofa weight loss center. He also is the medical director of Nemechek Consultative Medicine. Exhibit 28 at 1. Although his curriculum vitae does not describe the nature ofthis practice, Dr. Nemechek provided additional information about his background in his expert report. There, Dr. Nemechek stated thathis practice "has centered on the diagnosis and treatment ofautonomic-related disorders such as traumatic brain injury and concussion, POTS, chronic fatigue, migraine headaches, orthostasis, poormemory and concentration, and irritable bowel syndrome." Exhibit 27 at 1.
Dr. Nemechek's report is approximatelythree pages. The first page is his background. The second page is a summary ofMs. Reiling's medical history. This history begins about six months before vaccination. The third page contains Dr. Nemechek's opinion, which carries over onto a fourth page. Exhibit 27. Althoughthe petition alleges the Tdap vaccination exposedMs. Reiling to latex, Dr. Nemechek does not include the latex allergy in his report. Instead, his theory is that striking the stove caused Ms. Reiling a traumatic brain injury. For evidence ofatraumatic brain injury, Dr. Nemechekrelies on a report of"four weeks ofpersistent headache after a head injury." Exhibit 27 at 2-3. This traumatic brain injury made Ms. Reiling vulnerable to other stressors. According to Dr. Nemechek, the Tdap vaccination worsenedthe traumatic brain injury by prompting systemic inflammation. Exhibit 27 at 3.

4Followingthe submission ofDr. Nemechek's report and associated literature, Mr. Downing filed a motion to withdraw as counsel. In the ensuing status conference, Mr. Downing confirmed his client's receipt ofthe motion. Mr. Downing also announced his intention to file a motion for an award ofattorneys' fees and costs on an interim basis. Dr. Nemechek's report was not discussed in the April 25, 2016 status conference. OnMay 11, 2016, the Secretary responded to the fee application. The Secretary objected, arguing thatMs. Reiling's petition was not supported by reasonable basis. The Secretary also contendedthat Ms. Reiling's case did not satisfy any factors that couldjustify an award on an interim basis under Avera v. Sec'y ofHealth & Human Servs., 515 F.3d 1343 (Fed. Cir. 2008). Pursuantto Vaccine Rule 19 and 20, areply was due on May 23, 2016.
Ms. Reiling, still represented by Mr. Downing, did not file a reply within this time. Afterthe deadlinepassed, the motion for Mr. Downing to withdraw was granted. Ms. Reiling nowrepresents herself. 2 Although Mr. Downing is not counsel ofrecord, he submitted a motion for leave to file areply briefout-of-time. This motion was granted. OnJune 8, 2016, Mr. Downing submitted a supplemental application for attorneys' fees and costs. With the submission ofthe reply, the motion is ready for adjudication.
II. Analysis Broadly speaking, resolving a motion for an award ofattorneys' fees and costs on an interim basis requires consideration ofthree issues. The first is whetherthe petitioner is eligible for attorneys' fees and costs. Ifthe petitioner is eligible, then the second issue is whetherthe petitioner should receive any attorneys' fees and costs at this time. The third question is, assumingthat some award is appropriate, what constitutes areasonable amount in this case. See Rehn
v. Sec'y ofHealth & Human Servs., 126 Fed. Cl. 86, 91 (2016). ForMs. Reiling, because the resolution ofthe first question is dispositive, the second and third questions are notreached.

2 Ms. Reiling is responsible for filing a status report about her plan to proceed by July 24, 2016. Order, issued May 25, 2016.
5Whether the Petitioner's Case Satisfies the Requirements for an Award ofAttorneys' Fees and Costs
Petitioners who have not yet been awarded compensation may be entitledto an award ofattorneys' fees and costs when "the petition was brought in good faith and there was a reasonable basis for the claim." 42 U.S.C. § 300aa-15(e)(l). Petitioners establish reasonable basis by submitting evidence. This evidence need notpreponderate butthe evidence must support the claim set forth in the petition. Chuisano v. Sec'y ofHealth & Human Servs., 116 Fed. Cl. 276, 289 (2014). Here, Ms. Reiling has two theories: latex allergy and traumatic brain injury. The latex allergy theory is not reasonable. Testing for allergy to latex was negative on August 26, 2014. Exhibit 2 at 23. This test was conducted about one month afterMs. Reiling retained Mr. Downing and about five months before Mr. Downing filed a petition. Although some records reflectthatMs. Reiling said she had an allergy to latex, her counsel was on notice that doctors considered herto be a "very difficult historian." Exhibit 13 at 25. The second theory is evidenced by Dr. Nemechek's opinion that the Tdap vaccine exacerbated an underlying traumatic brain injury. There are numerous questions about this theory. First, Dr. Nemechek's diagnosis oftraumatic brain injury is not in accord with the assessment ofmedical personnel who saw Ms. Reiling during the relevant time. Within two months ofwhen Dr. Nemechek assertedthatMs. Reiling started suffering a traumatic brain injury, medical personnel saw Ms. Reilingthree times: on June 14, 2013, when a doctor treated her for hitting her head on the stove; on July 2, 2013, when Ms. Reiling saw a nurse to schedule an appointment the next day; and on July 3, 2013, when a doctor saw Ms. Reiling. None diagnosed traumatic brain injury. The lack ofdiagnosis suggests

---- but does notprove
--- that she was not suffering atraumatic brain injury. 3 Second, even ifthe lack ofdiagnosis from the treating doctors were ignored, there are additional questions aboutthe basis for Dr. Nemechek's opinion that Ms. Reiling suffered atraumatic brain injury. Dr. Nemechek grounds his opinionthat

3 Conceivably, the symptoms oftraumatic brain injury could be subtle and easily missed. However, the case contains no evidence that doctors and nurses would fail to recognize traumatic brain injury.
6Ms. Reiling had a traumatic brain injury on an assertion that she had headaches for four weeks after striking her head against a stove. Exhibit 27 at 2-3. However, Ms. Reiling averred, contradictorily, that before the June 14, 2013 vaccination, "I had not experienced any ofmy current symptomology." Exhibit 1at

### ii 2. Rather, in Ms. Reiling's account, the headaches started on the evening ofJune 14, 2013. She also lists other symptoms, such as "a sore arm, itchy eyes, nausea
... [and) rapid heartbeat." Id. at

### ii 5. Dr. Nemechek's report includes these symptoms, except for headaches, and does not explain why he included some (but not all) of Ms. Reiling's symptoms. Dr. Nemechekmay have a persuasive methodology but he has not articulated a principle that guides how he evaluates affidavits.
Dr. Nemechek's theory is also premised onthe continued existence ofa traumatic brain injury that the Tdap vaccine worsened. However, when Ms. Reiling saw a doctor on July 3, 2013, she reported "no headaches." Exhibit 12 at 158-59. The affirmative statement "no headaches," seems inconsistent with a continuation ofatraumatic brain injury, which Dr. Nemechek diagnosed on the basis ofheadaches. Dr. Nemechek might be able to explain why an apparent inconsistency is not an actual inconsistency, buthe has not done so. Actually, Dr. Nemechek has not discussed the July 3, 2013 record at all, leaving a gap in his opinion. 4
All these points lead to questions about Dr. Nemechek's assertion that Ms. Reiling suffered atraumatic brain injury. There may be reasonable answers to these questions, but the record does not contain them. Special masters should not base decisions regarding reasonable basis on hopes about whatthe evidence may eventually show. Chuisano v. Sec'y ofHealth & Human Servs., No. 07-452V, 2013 WL 6234660 (Fed. Cl. Spec. Mstr. Oct. 25, 2013), mot. for rev. denied, 116 Fed. Cl. 276, 291 (2014).
Even ifthere were a reasonable basis for the opinionthat Ms. Reiling suffered a traumatic brain injury, Dr. Nemechek's reportremains incomplete. His theory is that the Tdap vaccination "worsen[ed] her underlying traumatic brain injury." Exhibit 27 at 3. A significant aggravation case should include some discussion aboutthe expected course ofthe underlying disease but for the vaccination. Locane v. Sec'y ofHealth & Human Servs., 685 F.3d 1375, 1381

4 Similarly, Mr. Downing's reply briefomits any discussion ofthe July 3, 2013 medical record.
7(Fed. Cir. 2013); Loving v. Sec'y ofHealth & Human Servs., 86 Fed. Cl. 134, 144 (2009) (placing burden on respondent after petitioners "successfully put forward such a prima facie case"); Gruber v. Sec'y ofHealth & Human Servs., 61 Fed. Cl. 674, 684 (2004) (discussing significant aggravation in the context ofan on-Table claim). Dr. Nemechekhas not explained how the stove-induced traumatic brain injury wouldhave progressed. This is another gap in Dr. Nemechek's report. Finally, the theories that vaccines contribute to traumatic brain injuries appears novel. Ms. Reiling has cited no comparable cases and independent research has not uncovered any. The unprecedented nature ofthe theory is another reason for pausing before finding reasonable basis. The theory may have a reasonable basis

--- and could even be persuasive

--- but Dr. Nemechek needs to expand his presentation.
In the only Federal Circuit case to discuss reasonable basis in the Vaccine Program, the Federal Circuit stated: "Congress must nothave intended that every claimant, whether being compensated or not under the Vaccine Act, collect attorney fees and costs by merely having an expert state an unsupported opinion that the vaccine was the cause in-fact ofthe injury." Perreirav. Sec'y ofHealth & Human Servs., 33 F.3d 1375, 1377 (Fed. Cir. 1994). Onthe present record, Ms. Reiling fits within the restriction on reasonable basis as described by the Federal Circuit.
Ms. Reiling may use this decision as an outline for seeking additional information. See Vaccine Rule 5 (permittingthe special masterto evaluate the parties' positions). Additional information may contribute to a finding of reasonable basis and could support aruling in Ms. Reiling's favor. After Ms. Reiling submits more information, it may be appropriate to reconsiderthe request for attorneys' fees and costs on an interim basis. 5

5 Because ofthe finding that reasonable basis does not support Ms. Reiling's petition, questions concerning the appropriateness ofan interim award and the reasonableness ofthe amount requested are not resolved.
8Conclusion
Ms. Reiling has not yet established the reasonable basis for herpetition. Therefore, her April 25, 2015 motion for an award ofattorneys' fees and costs on interim basis is DENIED.
IT IS SO ORDERED.

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