Galvan v. Secretary of Health and Human Services
20-313
Fed. Cl.Aug 9, 2021Background
- Petitioner Rosa Soto Galvan filed a Vaccine Act petition alleging anaphylaxis and serum‑sickness‑like complications after hepatitis A, hepatitis B, influenza, and pneumococcal vaccinations on Sept. 26, 2018.
- The special master granted respondent’s motion to dismiss on July 6, 2020; petitioner’s motion for review was denied and judgment entered.
- Petitioner sought an award of attorneys’ fees and costs; respondent opposed on the ground that the petition lacked a reasonable basis but deferred to the special master on amount.
- The special master found petitioner’s good faith uncontested and concluded there was objective evidence (treating‑physician notations and records) and supporting literature sufficient to establish a reasonable basis for the claim.
- The special master noted the arthrocentesis/surgery question was close and unresolved by binding precedent but that petitioner provided some support characterizing arthrocentesis as a minor surgical procedure.
- Petitioner was awarded full attorneys’ fees and costs totaling $26,507.98 ($25,498.00 fees; $1,009.98 costs).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petitioner is eligible for fees absent a compensation award (good faith / reasonable basis) | Galvan acted in good faith and had objective support in treating records and literature showing a vaccine reaction and possible serum‑sickness presentation | HHS argued the petition lacked reasonable basis: evidence was only petitioner’s assertion, no proof arthrocentesis was a surgical intervention, and causation lacked more than a scintilla | Good faith uncontested; reasonable basis found based on treating‑physician notations, circumstantial record evidence, literature, and survivability of motion to dismiss on arthrocentesis issue |
| Whether treating records provide objective evidence of vaccine causation | Treating records documented possible vaccine reaction diagnoses (e.g., serum reaction, adverse reaction to vaccine) supporting reasonable basis | HHS argued such notations are insufficient and petitioner provided only her own assertions | Special master afforded weight to treating assessments and found they supplied more than a mere scintilla supporting reasonable basis |
| Whether arthrocentesis qualified as a surgical intervention to meet severity requirement | Galvan submitted medical record indications that arthrocentesis treated effusion and cited literature calling arthrocentesis a "minor surgical procedure" | HHS relied on prior special‑master decisions rejecting needle procedures as surgery and argued the claim was infeasible | Special master found prior special‑master decisions non‑binding and the question fact‑specific; although ultimately dismissing the case, he concluded reasonable basis existed because the issue was arguable and petitioner produced supporting material |
| Reasonableness of requested attorneys’ fees and costs (rates, hours, costs) | Requested rates and hours matched established fee schedules and were documented | HHS deferred to special master on amount if any award granted | Special master found hourly rates, hours, and costs reasonable and awarded the full requested amount ($26,507.98) |
Key Cases Cited
- Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343 (Fed. Cir. 2008) (standard for awarding fees where petition filed in good faith and with reasonable basis)
- Capizzano v. Sec'y of Health & Human Servs., 440 F.3d 1317 (Fed. Cir. 2006) (treating‑physician records and opinions are favored evidence in Vaccine Program)
- Cottingham v. Sec'y of Health & Human Servs., 971 F.3d 1337 (Fed. Cir. 2020) (reasonable‑basis can be satisfied by more than a mere scintilla; circumstantial record evidence and literature may suffice)
- Saxton v. Sec'y of Health & Human Servs., 3 F.3d 1517 (Fed. Cir. 1993) (special masters have discretion to determine reasonableness of fees)
- Sabella v. Sec'y of Health & Human Servs., 86 Fed. Cl. 201 (2009) (special master may reduce fees sua sponte for excessive billing)
- Perreira v. Sec'y of Health & Human Servs., 27 Fed. Cl. 29 (1992) (reasonableness requirement applies to attorneys' costs as well as fees)
- Hines v. Sec'y of Health & Human Servs., 22 Cl. Ct. 750 (1991) (wide latitude afforded special masters in fee determinations)
- Hanlon v. Sec'y of Health & Human Servs., 40 Fed. Cl. 625 (1998) (decisions by other special masters are not binding precedent)
- Wasson v. Sec'y of Health & Human Servs., 24 Cl. Ct. 482 (1991) (special masters may rely on program experience to evaluate reasonable hours)