Swick v. Sec'y of Health & Human Servs.
| Decision Date | 22 October 2018 |
| Docket Number | No. 13-526V,13-526V |
| Parties | RYAN L. SWICK, and MARY M. SWICK, legal representatives of their deceased minor child, J.R.S., Petitioners, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. |
| Court | U.S. Claims Court |
Special Master Christian J. Moran
Attorneys' fees and costs; reasonable basis
Richard H. Moeller, Moore, Heffernan, Moeller, Johnson, & Meis, LLP, Sioux City, IA, for Petitioners;
Ryan D. Pyles, United States Dep't of Justice, Washington, DC, for Respondent.
Ryan and Mary Swick (the "Swicks") did not prevail on the claim they brought in the National Childhood Vaccine Injury Compensation Program on behalf of their child, J.R.S., who died 17 days after receiving a vaccination. They are now seeking an award for attorneys' fees and costs. The undersigned finds that the Swicks's claim had reasonable basis until the Findings of Fact were issued on January 7, 2016. For work performed before this date, and, some other discrete work that occurred after that date, the Swicks are entitled to attorneys' fees and costs in the amount of $57,376.49. * * *
J.R.S. passed away on August 11, 2011. About one year later, the Swicks retained Mr. Moeller. Exhibit 72 ¶ 3 (counsel's affidavit). Mr. Moeller gathered medical records and consulted with at least four experts about opining on the case.
The petition was filed on July 29, 2013, along with J.R.S.'s medical records. Exhibits 1-6. The Swicks then filed an affidavit from Ms. Swick and more medical records in the following months. Exhibits 7-10.
The Swicks filed the first report from their expert, Dr. Walter Kozachuk, on January 6, 2014. Exhibits 11 (report), 12 (curriculum vitae). The report contained approximately 11 pages of text, not including several pages of citations. The first five pages exclusively addressed sudden infant death syndrome ("SIDS"). On pages 6 and 7, Dr. Kozachuk stated that his recitation of J.R.S.'s clinical course is "according to the family." Dr. Kozachuk did not cite any records, such as pediatrician records or police reports, to support his recitation. Dr. Kozachuk discusses the autopsy report in detail. Ultimately, Dr. Kozachuk concluded that the autopsy report did not support SIDS as the cause of J.R.S.'s death, but suggested that additional neuropathological studies could be done to rule out a diagnosis of SIDS more definitively. The second part of the report discussed posterior reversible encephalopathy syndrome (PRES).
On February 14, 2014, the Secretary filed his Rule 4 report concluding that the Swicks were not entitled to compensation on three grounds. First, based on Ms. Swick's blog posts that the Secretary submitted with his report, the Secretary questioned the accuracy of Ms. Swick's assertions in her affidavit. Resp't's Rep. at 7-8 & exhibits A, B (blog posts). Second, the Secretary concluded that Dr. Kozachuk's report was "insufficient" "as a matter of law" because those unsubstantiated assertions were the basis of the report. Id. at 8-9. Third, the Secretary argued that Dr. Kozachuk's report was speculative due to his lack of expertise in the primary subjects of his report, immunology and pathology. Id. at 9-10.
The Secretary's enumerated issues served as the basis for a status conference on March 18, 2014. Based on the issues discussed during the status conference, in compliance with an order, the Swicks filed a status report on May 20, 2014, responding to the Secretary's points. In the status report, the Swicks argued that Ms. Swick's affidavit could supply a foundation for their expert report. The Swicks now rely on this status report as part of their argument for reasonable basis.
The Swicks then filed a second expert report from Dr. Kozachuk on August 19, 2014, to further respond to the Secretary's Rule 4 report. Exhibit 13. Dr. Kozachuk reiterated the points made in his first report and again suggested that additional autopsy studies were required to determine the cause of J.R.S.'s death.
A fact hearing was held on October 31, 2014, to resolve factual discrepancies for the time period from J.R.S.'s vaccinations until his death. Following the parties' submissions of proposed findings of fact, the undersigned issued Findings of Fact on January 7, 2016.
The Swicks then submitted another report from Dr. Kozachuk (exhibit 21), but the core of his opinion did not change despite the Findings of Fact. After some efforts to obtain an opinion from another expert, the Swicks were unable to retain another expert. The Secretary submitted an expert report from Dr. Michael Kohrman disputing much of Dr. Kozachuk's opinion. Exhibit E. After the Secretary presented Dr. Kohrman's opinion, the Swicks did not submit any more expert reports.
The Swicks stated that an entitlement hearing would not result in any new evidence, so the parties agreed to submit the case on the papers. The Swicks and the Secretary each filed a brief in support of their positions on entitlement. A decision denying entitlement was issued on February 26, 2018. Decision, 2018 WL 1514453 (Feb. 26, 2018).
On April 4, 2018, the Swicks filed an abbreviated motion for attorneys' fees and costs requesting $87,173.24. In his response, the Secretary deferred to the undersigned's discretion regarding the calculation of reasonable attorneys' fees and costs, but generally raised the issue that petitioners can lose reasonable basis, a prerequisite for an award of attorneys' fees and costs, during the course of litigation. The Swicks filed a more robust reply setting forth their position on reasonable basis.
On April 30, 2018, the undersigned ordered the Secretary to state his position on reasonable basis at certain critical moments during the case more specifically. The Secretary filed a memorandum detailing his position on reasonable basis at these moments and incorporated his Rule 4 report. The Swicks filed a reply.
This matter is now ripe for adjudication.
Even when a petitioner in the Vaccine Program does not prevail on his or her claim and does not receive compensation, a special master "may" award reasonable attorneys' fees and other costs if "the petition was brought in good faith and there was a reasonable basis for the claim for which the petition was brought." 42 U.S.C. § 300aa-15(e)(1). As the Federal Circuit has stated, "good faith" and "reasonable basis" are two separate elements that must be met for a petitioner to be eligible for attorneys' fees and costs. Simmons v. Sec'y of Health & Human Servs., 875 F.3d 632, 635 (Fed. Cir. 2017).2
"Good faith" is a subjective standard. Id.; Hamrick v. Sec'y of Health & Human Servs., No. 99-683V, 2007 WL 4793152, at *3 . A petitioner acts in "good faith" if he or she honestly believes that a vaccine injury occurred. Turner v. Sec'y of Health & Human Servs., No. 99-544V, 2007 WL 4410030, at * 5 . The Secretary has not challenged the Swicks's good faith here, and the undersigned has little doubt that the Swicks brought the claim with an honest belief that a vaccine injury occurred. For that reason, the petition's reasonable basis is the focus of this decision.
In contrast to good faith, reasonable basis is purely an objective evaluation of the evidence. Simmons, 875 at 636. Because evidence is "objective," the Federal Circuit's description is consistent with viewing the reasonable basis standard as creating a test that petitioners meet by submitting evidence. See Chuisano v. Sec'y of Health & Human Servs., No. 07-452V, 2013 WL 6234660 at *12-13 (), mot. for rev. denied, 116 Fed. Cl. 276 (2014).
The Federal Circuit and judges of the Court of Federal Claims have provided some guidance as to what reasonable basis is not. A petition based purely on "unsupported speculation," even speculation by a medical expert, is not sufficient to find a reasonable basis. Perreira v. Sec'y of Health & Human Servs., 33 F.3d 1375, 1377 (Fed. Cir. 1994) (). As another example, when "the medical and other written records contradict the claims brought forth in the petition," a special master is not arbitrary in concluding that reasonable basis for the petition did not exist. Murphy v. Sec'y of Dep't of Health & Human Servs., 30 Fed. Cl. 60, 62 (1993), aff'd without opinion, 48 F.3d 1236 (Fed. Cir. 1995) (table).
Establishing the petition's reasonable basis in a motion for attorneys' fees and costs is the burden of the petitioners. Carter v. Sec'y of Health & Human Servs., 132 Fed. Cl. 372, 379 (2017) ().
The Secretary's April 9, 2018 response argued that a "claim may moreover 'lose' a reasonable basis during the pendency of the case." Resp't's Resp. at 1-2 (citing Chuisano, 2013 WL 6234660, at *21). Consistent with an approach that divides the litigation into phases, the June 4, 2018 order directed the Secretary to state a position regarding reasonable basis for different time periods.
The first period concerns the time from when petitioners first contacted Mr. Moeller through the filing of the petition. Here, the Secretary conceded that "petitioners had a reasonable basis, albeit slim, to initially pursue their claim." Resp't's Memo. at 6. A judicial official may accept a party's concession. Greenlaw v. United States, 554 U.S. 237, 243 (2008) (...
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