# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 16-565V (Not to be Published)

* * * * * * * * * * * * * * * * * * * * * * * * * Special Master Corcoran HUNTER HORSEY, on behalf of , * G.H., a minor child , * * Filed: July 12, 2017 Petitioner, * v. * Attorney’s Fees and Costs; * Reasonable Basis; Insufficient SECRETARY OF HEALTH * Supporting Documentation to AND HUMAN SERVICES, * Ascertain Reasonable Basis * Respondent. * * * * * * * * * * * * * * * * * * * * * * * * * * *

Isaiah R. Kalinowski , Maglio, Christopher and Toale, PA , Washington, DC, for Petitioner.

Camille M. Collett, U.S. Dep’t of Justice, Washington, DC for Respondent.

DECISION DENYING MOTION FO R ATTORNEY’S FEES AND COSTS 1

On May 11, 2016, Hunter Horsey (“Petitioner” ) filed a petition on behalf of his minor child, G.H., seeking compensation under the Na tional Vaccine Injury Compensation Program, (“the Vaccine Program”) 2 . Petitioner alleged that G.H. was injured by receipt of the DiphtheriaTetanus-acellular Pertussis, measles-mumps-rubella , varicella, pneumococcal conjugate, Hepatitis

1 Although this decision has been formally designated “not to be published,” it will nevertheless be posted on the United States Court of Federal Claims’s website, in accorda nce with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). This means the ruling will be available to anyone with access to the internet. As provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the decision’s inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each pa rty has fourteen days within which to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy .” Vaccine Rule 18(b). Otherwise, th e whole decision will be available to the public in its present form. Id

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2 The National Vaccine Injury Compensation Program comprise s Part 2 of the National Ch ildhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (codified as amended at 42 U.S.C. § 300aa-10 through 34 (2012)).
References herein to sections of the V accine Act shall omit the statute’s prefix.2 B, and polio vaccines on May 6, 2013, and July 8, 2013. Petitioner never filed any medical records in this case, and then on October 6, 2016, moved for dismissal of his claim pursuant to Rule 21(a) (ECF No. 8). I subsequently issued an Or der concluding proceedings on October 7, 2016. ECF

No. 9.

Petitioner has now filed a motion for final attorney’s fees and costs, requesting a combined amount of $9,385.09. Motion for Attorney’s Fees and Costs, dated April 5, 2017 (ECF No. 11) (“Fees App.”). Respondent has opposed the fees motion, arguing that there is insufficient documentation to judge the claim’s reasonable basi s, as no records or other supporting materials have ever been filed. For the reasons stated below, I hereby DENY Petitioner’s request for fees
and costs.

Background

At the very outset of the cas e’s initiation in Ma y 2016, Petitioner acknowledged that the claim was being filed on the eve of expiration of the Vaccine Act’s three-year limitations period (since it alleged a May 2013 vaccinati on as partially causal of the complained-of injuries), and was therefore based solely on Petiti oner’s own representations rather than medical records or other documentation. Pet. at 1; Section 16(a)(2). Counsel thereafter received and reviewed the relevant medical records, although they we re not filed. After cons ultation with Petitione r, it was determined that the claim was not viable, a nd therefore Petitioner requested it s dismissal within five months of the petition’s filing.

Six months later, Petitioner filed the present motion for final attorney’s fees and costs. See generally Fees App. In it, he requests an award of $9,385.09 in attorney’s fees and costs, representing $8,940.50 in fees, plus $444.59 in cost s. The fees motion was not accompanied by any of the underlying records re levant to the clai m, however. Respondent opposed the fees application on April 14, 2017. ECF No. 12 (“O pp.”). Respondent argues that the claim’s reasonable basis (a prerequisite for any fees award in an unsuccessful case) cannot be ascertained based on the existing record – which is comple tely devoid of medical records or proof of
vaccination – and therefore the fees request should be denied. Opp. at 2.

Petitioner thereafter filed a reply on April 24, 2017. EC F No. 13 (“Reply”). Petitioner maintains that denying fees in cases similar to the one at issue would result in petitioners being denied experienced Vaccine Program lawyers, as there is no incentive for attorneys to represent clients in cases filed close to the limitations deadline when there is a risk of not being paid for their work, and would therefore go against Vaccine Program policy interests. Reply at 3. Petitioner notes further that there were extenuating circumstan ces that delayed analyzing the case’s viability,
such as the need to determine w ho could act as G.H.’s representa tive (given an underlying custody suit). Id. at 4. Counsel thereafte r acted diligently to review th e relevant documents, promptly3 requesting dismissal after that review was complete. Id. at 4-5. Like the fees motion, the Reply also did not include any records relevant to the case’s basis.

Following these filings, I held a status c onference on May 8, 2017, at which I urged the parties to resolve the fees dispute on their own, but they were unsuccessful. Thus, on May 31, 2017, I issued an order stating that I could not re nder a reasonable basis assessment on the existing record (which was nonexistent). ECF No. 15. I orde red Petitioner to file documents sufficient to
substantiate the claim’s reasonable basis. Id.

Petitioner did not do so. Instead, on June 16, 2017, Petitioner filed a five-page affidavit from his attorney, Mr. Isaiah Kalinowski, Esq. Ex. 6 to Fees App. (ECF No. 16) (“Kalinowski Aff.”). Mr. Kalinowski’s affidavit reiterates, albeit in gr eater detail, points previously made about
the case – that Petitioner contacted him at the end of the statute of limitatio ns period, that Petitioner appeared to be sincere in his recollection of the vaccination and G.H.’s subsequent injury (and hence acted in good faith), and that counsel undert ook a full analysis of the claim after medical
records were obtained. Ka linowski Aff. at 1-3.

The affidavit ventures an explanation for the failure to file medical records, attributing it in part to a custody dispute involving G.H. Kalinowski Aff. at 3. Because of the “sensitive nature” of that dispute, and after Petitioner was informed that the claim was likely not viable, Petitioner asked for “expeditious dismissal” in order to ev ade a written decision that could disclose facts
relevant to G.H.’s medical condition. Id. at 4. The affidavit states that were I to review the relevant records, I would concur in counsel ’s assessment that the claim was not viable, but that these records
do not bear on the claim’s reasonabl e basis “during the interval pr ior” to their being obtained. Id. at 4 ¶ 17. The affidavit provides no direct justific ation under the Act or Vaccine Rules for refusing to file the relevant records, but indicates that based upon the “expr essed instructions” of Petitioner they shall remain unfiled unless I determine that I cannot resolve reasonable basis without them and order their filing (in which case “they will be filed”). Id. at 5.

On June 30, 2017, Respondent reacted to Petit ioner’s filing. ECF No. 17 (“Second Opp.”). Respondent argues that the affidavit is not the documentation that I ordered, nor does it provide sufficient grounds upon which to judge the claim’s reasonable basis. Second Opp. at 2. Respondent also notes that a case Petitioner relies on in which reasonable basis was at issue, Hippo v. Sec’y of
Health & Human Servs. , No. 10-642V, 2012 WL 1658252 (Fed. Cl. Spec. Mstr. Apr. 18, 2012), is distinguishable, as in that case the petitioner did file medical records allowing the special master
to determine the reasonableness of the claim at issue. Id. Thus, Respondent repeats, no award is appropriate as Petitioner has ne ver offered any objective evidence that would permit a finding of reasonable basis for filing the claim. Id. at 3-4.4 ANALYSIS

I have in prior decisions set forth at length th e relevant legal standa rds governing attorney’s fees awards in unsuccessful cases, and in particular the criteria to be applied when determining if a claim possessed “reasonable basis.” 3 See, e.g.

, Allicock v. Sec’y of Health & Human Servs., No. 15-485V, slip op. at 4-5 (Fed. Cl. Spec. Mstr. May 26, 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). A petitioner must demonstrate r easonable basis for the claim’s filing through some evidentiary showing and in light of the totality of the ci rcumstances. The nature and extent of counsel’s investigation into the claim’s underpinnings, both before and after filing, is a relevant
consideration. Cortez v. Sec’y of Health & Human Servs ., No. 09-176V, 2014 WL 1604002, at *6 (Fed. Cl. Spec. Mstr. Mar. 26, 2014); Di Roma v. Sec’y of Health & Human Servs ., No. 90–3277V, 1993 WL 496981, at *2 (Fed. Cl. Sp ec. Mstr. Nov. 18, 1993) (citing Lamb v. Sec’y of Health &

Human Servs ., 24 Cl. Ct. 255, 258–59 (1991)). Fu rther, factors such as “‘the factual basis, the medical support, jurisdiction issues ,’ and the circumstances under wh ich a petition is filed” can be
considered. Chuisano v. United States , 116 Fed. Cl. 276, 288 (2014) (citing Di Roma , 1993 WL 496981, at *1).

Here, the baseline requirements for substantiati on of any Vaccine Act claim are especially pertinent. As the Act provides, petitions are to be accompanied by “supporting documentation” establishing entitlement, such as “vaccination records associated with the vaccine allegedly causing the injury, pre- and post-in jury physician or clinic record s.” Sections 11(c)(1) and (2). Entitlement determinations may not be made “b ased on the claims of a petitioner alone, unsubstantiated by medical records or medical opinions.” Section 13(a)(1)(B). These requirements (consistent with the requirement that reasonable basis be established by evidence) mean that some supporting documentation of a claim must always be o ffered if the claim is ev er to be viable (and in turn, to possess sufficient reasonable basis to prosecute). Indeed, th e failure to submit any evidence precludes a finding of reasonable basis, as the petitioner effectively cannot meet his burden of proof in the first place. Chuisano , 116 Fed. Cl. at 286.

In this case, no documentation – no proof of vaccinat ion, no proof of injury – supporting
Petitioner’s claim has ever been filed. I am thus deprived of the grist necessary to conduct the analysis vested to me as a special master to determine if Petitioner’s claim had sufficient reasonable basis to award fees despite the claim’ s dismissal. And that evidentiary hole simply

3 Although good faith is the other cr iteria that an unsuccessful petitioner requesting a fees award must satisfy, it is easily established. Respondent does not appear to question it in this case. Grice v. Sec’y of Health & Human Servs.

, 36 Fed. Cl. 114, 121 (1996) (in the absence of evidence of bad faith, special master wa s justified in presuming the existence of good faith). And I otherwise find that counse l’s explanations for the circumstances in which the claim was initiated bulwark this conclusion (even though counsel can not otherwise establish reasonable basis overall simply through his personal sworn statements).5 cannot be filled with counsel’s a ssurances that such documentation exists – any more than such
assurances would be sufficient to establish entitlement itself. 4 The fees request must therefore be
denied.

Petitioner’s arguments about the relevance of a looming limitations cut-off to the reasonable basis analysis are misplaced. It is true that when determining if a lawyer should receive fees for work in a case dismissed not long after f iling, special masters frequently give weight to the fact that the claim may have been file d hastily in order to avoid being untimely. See, e.g

., Curran v. Sec’y of Health & Human Servs. , 130 Fed. Cl. 1, 8 (2017); Hippo , 2012 WL 1658252; McNett v. Sec’y of Health & Human Servs. , No. 99-684V, 2011 WL 760314, at *7 (Fed. Cl. Spec. Mstr. Feb. 4, 2011) (citing Hearell v. Sec’y of Health & Human Servs ., No. 94–1420V, 1993 WL 129645, at *1 (Fed. Cl. Spec. Mstr. Apr. 6, 1993) (“[b ]ecause of the time constraints, it was reasonable for the petitioner to file an incomplete petition in this case”)); Turner v. Sec’y of Health

& Human Servs ., No. 99-544V, 2007 WL 4410030, at *6 (Fed. Cl. Spec. Mstr. Nov. 30, 2007) (“a filing on the eve of the running of the statute of limitations may be supported by less information than would be expected if counsel had more time to conduct a pre-filing investigation of the factual underpinnings and the medical basis for a vaccine claim”).

But the claimants in such cases ultimately did file records to illustrate their claim’s basis. See, e.g., Hippo , 2012 WL 1658252, at *1-2 (“ther eafter, petitioner’s couns el filed a number of medical records in support of his client’s claim.”). Where this ha s not occurred, attorney’s fees and costs have been properly denied. See Simmons v. Sec’y of Health & Human Servs. , 128 Fed. Cl. 579, 583 (2016) (special ma ster erred in finding reasonable ba sis for filing clai m, where counsel produced no supporting evidence at the time of f iling or in the five months before the case was dismissed); Woods v. Sec’y of Health & Human Servs. , 105 Fed. Cl. 148, 152 (2012) (special master’s finding of reasonable basis to award fees was in error when he was unable to cite any allegations of injury or causation, medical reco rds, or legal authority to support his finding); Turpin v. Sec’y of Health & Human Servs. , No. 99-564V, 2005 WL 1026714 (Fed. Cl. Spec. Mstr. Feb. 10, 2005) (no reasonable basis where petitioner s ubmitted one affidavit and no other records). Again – without any evidence at al l other than counsel’s say so, I cannot evalua te reasonable basis,
and therefore cannot award fees.

Petitioner’s privacy concerns are also not a compelling reason to ex cuse the non-filing of the underlying records. The Vaccine Program contai ns numerous protections for keeping the facts

4 Petitioner’s assertion that the unfiled re cords are not relevant to the reasonable basis analysis, since all billing performed in this case occurred prior to counsel’s obtain ing and review of the records, is particularly galling. Kalinowski Aff. at 4 ¶ 17. As noted, the reasonable basis inquiry considers the “totality of the circumstances,” and thus the records bear on a case’s reason able basis regardless of when they ar e obtained and when an attorney ceased billing for a matter. In any event, reasonable basis is a dete rmination reserved to the special master (who is empowered to award fees) – not counsel – and attorneys who wish to be paid for work in dismissed cases should know better than to ask a special master to take their wo rd that the claim had reasonable basis.6 of a claim private, from initializing the names of minors to the confidential manner in which
records filed in a case are treate d. In addition, petitioners may (as the first page of this Decision explicitly states) request redact ion of a decision’s contents, thereby obtaining an additional layer of protection. But sooner or later, claimants must file corroborative a nd supporting documentation if they hope to obtain an entitlement award – and only upon such documentation may reasonable basis be assessed. The generalized desire to main tain privacy cannot be invoked herein to excuse that failure, and Petitioner has cited no law or controlling preced ent indicating that withholding documents is acceptable.

Counsel’s affidavit proposes a willingness to f ile the relevant record s at some unspecified time, if only if I were to so or der that it be done. Kalinowski Aff. at 5 ¶ 21. Some might interpret my May 31st Order to be the very judicial edict that counsel envisions – raising the question why yet another order is necessary. But Petitioner has already been afforded ample opportunities to substantiate a fees request initi ated months ago. ECF No. 15. In a case dismissed within six months of filing, and where fees were sought just before expiration of the 180- day period afforded by Vaccine Rule 13(a) in which to act, Petitioner is not entitled to evenmore time to file the kinds of records that claimants routinely file in Vaccine Act cases at their outset. 5

As I noted in my order dated May 31, 2017, th e failure to submit evidence to establish reasonable basis carries consequences. ECF No. 15, citing Chuisano, 116 Fed. Cl. at 286. That consequence here is a denial of the re quested attorney’s fees and costs.

CONCLUSION

In accordance with the foregoing, I hereby DENY an award of attorney’s fees and costs. In the absence of a motion for review filed pursu ant to RCFC Appendix B, the clerk of the Court

SHALL ENTER JUDGMENT in accordance with the terms of this decision. 6

IT IS SO ORDERED.

/s/ Brian H. Corcoran Brian H. Corcoran Special Master

5 Given my determination that the time to file such records has long passed, Petitioner is admonished not to attempt to do so after this Decision issues , whether accompanying a motion for recons ideration or otherwise. Such records would not constitute grounds for reconsider ation of my decision in any event. See System Fuels, Inc. v. United States, 79 Fed. Cl. 182, 184 (2007) (among the grounds under United States Court of Federal Claims Rule 59 for reconsideration is the filing of “previously unavailable evidence”).

6 Pursuant to Vaccine Rule 11(a), the parties may expedite entr y of judgment if (jointly or separately) they file notices renouncing their right to seek review.