Cottingham v. Sec'y of Health & Human Servs.

• Decision Date: 07 January 2021
• Docket Number: No. 15-1291V,15-1291V
• Parties: KASEY COTTINGHAM, Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.
• Court: U.S. Claims Court

KASEY COTTINGHAM, Petitioner,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

No. 15-1291V

United States Court of Federal Claims

January 7, 2021

OFFICE OF SPECIAL MASTERS

Special Master Christian J. Moran

attorneys' fees and costs, reasonable basis, remand, product insert

Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for petitioner;
Voris Johnson, United States Dep't of Justice, Washington, DC, for respondent.

PUBLISHED DECISION DENYING ATTORNEYS' FEES AND COSTS¹

An October 30, 2015 petition alleged that the human papillomavirus ("HPV") vaccine harmed Kasey Cottingham and sought relief pursuant to the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-10 through 34 (2012). However, the case was dismissed within a year of its filing. Cottingham v. Sec'y of Health & Human Servs., No. 15-1291V, 2016 WL 6575170 (Fed. Cl. Spec. Mstr. Oct. 13, 2016).

Although Ms. Cottingham did not receive compensation, she is requesting an award of attorneys' fees and costs as permitted by the Vaccine Act. 42 U.S.C. § 300aa-15(e). After three rounds of adjudications in both the Office of Special

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Masters and the Court of Federal Claims, the Federal Circuit remanded the case for an additional review of evidence that might support a finding of reasonable basis. Because she has failed to meet this predicate showing, Ms. Cottingham is not eligible for an award of attorneys' fees and costs. Therefore, her motion is denied.

I. Background

The foundation for this decision is Ms. Cottingham's medical history. The series of events about her health is set out in section A, below. The history of her claim through the Decision Dismissing Case is discussed in section B, below. The lengthy history of decisions and appellate opinions regarding the still pending motion for attorneys' fees and costs is presented in section C, below.

A. Medical Chronology

Ms. Cottingham was born in 1998. Her health through 2011 was relatively routine and overall good.

In March 2012, a doctor at the Middle Creek Urgent Care facility diagnosed Ms. Cottingham with mononucleosis. A week later, Ms. Cottingham's regular pediatrician saw her. Ms. Cottingham stated that her throat was hurting, she felt tired, and she had headaches. The doctor diagnosed her as having a viral illness on top of the mononucleosis. Exhibit 3 at 55-56.

Before starting high school, Ms. Cottingham returned to the pediatrician's office. The doctor did not record any significant health concerns. During this appointment, which occurred on July 5, 2012, Ms. Cottingham received three vaccinations - the hepatitis A vaccine, the meningococcal conjugate vaccine, and the HPV vaccine. More specifically, Ms. Cottingham received the "quadrivalent" HPV vaccine. Exhibit 3 at 99-100. Ms. Cottingham's claim in the Vaccine Program rested upon the HPV vaccine.

Approximately one month later, while performing as a majorette in her school's band, Ms. Cottingham twisted her right knee. The pediatrician recorded that except for the problem with her right knee, a review of symptoms was "negative." Exhibit 3 at 64. For the knee injury, Ms. Cottingham went to physical therapy. Exhibit 5.

On October 10, 2012, Ms. Cottingham went to the Children's Hospital of Alabama where she saw a pediatric gynecologist. The history of present illness from this visit states:

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She has periods that are monthly. Sometimes there are 2 weeks in between and sometimes they are a full month in between. When they do occur she does have to wear double protection on her for a few days because of the menorrhagia. Her periods last for about 2 days and they are off for about 2 days and they come back for about 4-5 days.

Exhibit 9 at 4. Except as noted in the history of present illness, the doctor's review of symptoms was "negative times 10." Id. The gynecologist prescribed oral contraception to control Ms. Cottingham's monthly cycle.

According to an affidavit Ms. Cottingham signed for this litigation, her health changed on November 1, 2012 (almost four months after her receipt of the HPV vaccination). Ms. Cottingham stated: "I began getting regular weekly headaches. Over the next few weeks, not only did the frequency of headaches increase but I also began to experience episodes of near black-outs where my vision became temporarily impaired." Exhibit 1 ¶ 5. Ms. Cottingham's attorney asserted that November 1, 2012, marked the onset of the problems the HPV vaccine allegedly caused in Ms. Cottingham. Pet'r's Mot. for Attorneys' Fees and Costs, filed Oct. 26, 2016, at 5.

On November 30, 2012, Ms. Cottingham returned to her pediatrician's office. She complained about having a fever, yellow mucous, a sore throat in the mornings, and headaches "off and [on] all week." The doctor diagnosed her as having "acute sinusitis." Exhibit 3 at 87-88. Ms. Cottingham's affidavit stated that during the November 30, 2012 appointment, she told her doctor about her "symptoms" without specifying what those symptoms were. The affidavit also recounts that the doctor prescribed an antibiotic and recommended that she drink plenty of water. Exhibit 1 ¶ 6. The doctor's November 30, 2012 note did not characterize the headaches as ongoing or chronic.

According to Ms. Cottingham's affidavit, her "headaches, low-grade fevers and near black-outs continued." In addition, during practices for majorettes, Ms. Cottingham "need[ed] to stop because [she] was feeling dizzy." Nevertheless, Ms. Cottingham "didn't want to complain because [she] was taught to tough out what [she] thought was a temporary condition." Id. ¶¶ 7-8.

Approximately two months later, Ms. Cottingham had another appointment with her pediatrician. The history of present illness states that Ms. Cottingham

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comes in today with 2 days of runny nose and congestion. Today she's had low-grade fever of 100.4, she has also had [a] sore throat along with runny nose and congestion. Has had a headache today as well. No cough, increased work of breathing or shortness of breath. No vomiting or diarrhea.

Exhibit 3 at 78 (record created Jan. 31, 2013). The doctor's assessment was "rhinitis" and "acute viral pharyngitis." Id. at 79. This record, however, does not indicate that Ms. Cottingham was experiencing near black-outs or low-grade fevers. The doctor also did not memorialize that Ms. Cottingham has having headaches frequently after November 1, 2012. Ms. Cottingham's affidavit does not question the accuracy of this medical record. See exhibit 1 ¶ 9.

On March 29, 2013, Ms. Cottingham "fainted upon getting up this morning." Exhibit 3 at 80. She also had a "fever and dizziness," and "[v]omited once." Id. The doctor's assessment was "gastroenteritis" and "dehydration." Id. at 81. The doctor believed that Ms. Cottingham was "at the early stage of an intestinal virus." Id. at 80-81. March 29, 2013 is 267 days (nearly 9 months) after July 5, 2012, the date of the first HPV vaccination.

Ms. Cottingham fainted again on May 23, 2013, while at a pool. The history of present illness from her treatment after this incident states that after waking up that morning, Ms. Cottingham did not have anything to eat or drink. When at the pool with a friend, Ms. Cottingham felt "very hot" and "hungry" "so she stood up quickly to go get something to eat. She says at that point her vision became black and she felt very light headed. Soon after she fell backwards." Exhibit 3 at 70. The doctor thought that Ms. Cottingham "was dehydrated prior to this event. [She] also [thought] laying out in the sun may have contributed." Id. at 71. The doctor recommended that Ms. Cottingham increase her intake of fluids. Id.

On July 10, 2013, Ms. Cottingham had an appointment with her pediatrician (Dr. Simpson) for two reasons. The visit was, in part, for Ms. Cottingham's 15-year-old checkup. Ms. Cottingham's mother also raised a concern about the two episodes of fainting and asked about an echocardiogram. Exhibit 3 at 96. Ms. Cottingham stated that she was having monthly menses. Id. Dr. Simpson confirmed that Ms. Cottingham should eat breakfast and should drink fluids throughout the day. Id. at 97. He also referred Ms. Cottingham to a cardiologist. Id. The only mention of vaccines in the note from July 10, 2013 is under

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"Counseling / Education," a statement that "Anticipatory guidance given and immunizations reviewed." Id.

On July 25, 2013, Ms. Cottingham visited the pediatric cardiology clinic of the University of Alabama-Birmingham. The history of present illness recounts the two incidents of fainting from March and May. In addition, it stated that Ms. Cottingham "has had other episodes of dizziness and near passing out. With all the episodes, she is standing or walking. She does not participate in any competitive athletics. She does participate as a majorette. She has not had any dizziness or syncope with physical activity." Exhibit 3 at 111. She further reported that "one time her episode improved when she sat down." Id. The doctor conducted various tests and determined that she had a "structurally and functionally normal heart. This syncope/presyncope is consistent with a vasovagal etiology." Id. at 112. The doctor "emphasized aggressive fluid hydration." Id. The cardiologist diagnosed Ms. Cottingham with vasovagal syncope. Id. The cardiologist did not refer her for autonomic testing.

Following the July 25, 2013 visit with the pediatric cardiologist, nearly eight months passed before the next medical record. On March 14, 2014, Ms. Cottingham went to the office of her pediatrician. Her chief complaint was listed as "cough, congestion, [sore throat], low-grade fever." Exhibit 3 at 106. The doctor's assessment was "cough," "acute viral pharyngitis," and "acute upper respiratory infection." Id.

Ms. Cottingham again saw a pediatrician for a checkup on August 18, 2014. The history of present illness states: "Been doing well. No concerns." Exhibit 3 at 109. The office notes also indicate that the date of Ms. Cottingham's last menstruation was July...