Bilodeau v. Secretary of Health and Human Services
14-72
Fed. Cl.Jun 5, 2017Background
- Petitioners (Kara and Todd Bilodeau) filed a Vaccine Program petition on Jan 27, 2014, alleging their infant E.B. developed pneumonia and respiratory failure after Prevnar 13, MMR II, and Fluzone vaccinations.
- Respondent’s Rule 4 report said petitioners lacked preponderant evidence and an expert report would be required. Treating physician Dr. Susan Ackerly (a naturopathic doctor) provided contemporaneous statements linking the vaccines to E.B.’s illness.
- After reassignment and an in-depth review, the Special Master found on Oct 30, 2015 that Dr. Ackerly’s statements supplied a minimal reasonable basis and ordered an expert report. Petitioners later filed an expert report from Dr. Ackerly (Apr 25, 2016).
- Respondent challenged reasonable basis and later opposed attorneys’ fees and costs, arguing the petition lacked reasonable basis or that reasonable basis terminated earlier when petitioners relied on Dr. Ackerly (a naturopathic physician) for an expert report.
- Petitioners voluntarily dismissed the petition on July 25, 2016. They then moved for attorneys’ fees and costs (total requested $49,761.61). The Special Master awarded the full fees and costs requested: $43,341.70 in attorneys’ fees, $6,019.92 in costs, plus $400 in petitioners’ out-of-pocket expenses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the petition was filed and maintained with "reasonable basis" (fee eligibility) | Petitioners argued the claim had reasonable basis throughout, relying on treating physician statements and later Dr. Ackerly’s expert report | Respondent argued the petition lacked reasonable basis at filing and lost any reasonable basis once petitioners relied on a naturopathic expert instead of a credentialed medical expert | Special Master held the petition had reasonable basis at filing and that reasonable basis continued through dismissal; fees and costs awarded in full |
| Whether petitioners should have obtained an expert before filing | Petitioners contended pre-filing expert report not required and filing based on treating-physician statements was permissible | Respondent asserted petitioners should have obtained an expert before filing to establish reasonable basis | Special Master held pre-filing expert not required; filing on treating-physician statements can satisfy reasonable-basis threshold |
| Whether a naturopathic treating physician’s expert work is sufficiently qualified and compensable | Petitioners argued Dr. Ackerly’s training, treating-physician status, literature review, and expert report justified her role and fees | Respondent challenged Dr. Ackerly’s credentials and epidemiology expertise as insufficient | Special Master found Dr. Ackerly’s statements and report provided reasonable basis, accepted her expert fee ($5,400) as reasonable |
| Whether fees for preparing a settlement demand are recoverable | Petitioners said a reasonable settlement demand after filing an expert report was proper and conserved Program resources | Respondent called the demand an unsolicited settlement letter and sought to exclude that time | Special Master found the settlement attempt reasonable and awarded the modest fees billed for demand preparation |
Key Cases Cited
- Cloer v. Sec'y of Health & Human Servs., 654 F.3d 1322 (Fed. Cir.) (discussing difficulty of proving vaccine causation and the role of non-Table petitions)
- Sebelius v. Cloer, 133 S. Ct. 1886 (U.S.) (statutory interpretation of Vaccine Act fees scheme and rationale to avoid discouraging counsel for good-faith claims)
- Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (U.S.) (standard for admissibility/reliability of scientific expert testimony)
- Capizzano v. Sec'y of Health & Human Servs., 440 F.3d 1317 (Fed. Cir.) (treating physician records and opinions are particularly probative)
- Chuisano v. United States, 116 Fed. Cl. 276 (Fed. Cl.) (reasonable-basis standard is objective and determined by totality of circumstances)
- McKellar v. Sec'y of Health & Human Servs., 101 Fed. Cl. 297 (Fed. Cl.) (burden on petitioner to demonstrate reasonable basis)