Pannick v. Secretary of Health and Human Services
16-510
| Fed. Cl. | Mar 1, 2017Background
- Petitioner Judith A. Pannick filed a Vaccine Act petition alleging left-shoulder injury (SIRVA/adhesive capsulitis) from a flu vaccine received Nov. 1, 2013; petition filed Apr. 26, 2016.
- Petitioner voluntarily dismissed the petition May 24, 2016 (Vaccine Rule 21); dismissal entered May 25, 2016.
- Petitioner sought attorneys’ fees and costs of $2,766.94 after dismissal.
- Respondent opposed fees, arguing the petition lacked an objective reasonable basis because medical records at filing did not show onset date or full supporting documentation.
- Petitioner submitted two medical-record exhibits (orthopedic records noting seven months of pain and a report that patient received a flu shot ~8 months earlier) and explained counsel filed under a looming statute-of-limitations deadline while obtaining remaining records.
- Chief Special Master Dorsey found a reasonable basis existed at filing and through dismissal, and awarded the full requested fees and costs as a lump sum payable jointly to petitioner and counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the petition had a "reasonable basis" for a fee award under 42 U.S.C. §300aa-15(e)(1) | Pannick argued available medical records and client statements (orthopedic notes reporting vaccine ~8 months earlier and seven months of symptoms) plus counsel’s investigation and a pending SOL justified filing. | Secretary argued the petition lacked reasonable basis because submitted records omitted an onset date, lacked vaccination proof, pre-vaccination records, expert opinion, and thus objectively failed to support the claim. | Court held reasonable basis existed at filing (and through dismissal) given the factual record, limited but supportive medical notes, counsel’s investigation, and statute-of-limitations pressure; awarded full fees and costs. |
Key Cases Cited
- Woods v. Sec’y of Health & Human Servs., 105 Fed. Cl. 148 (discussing reasonable-basis inquiry under the Vaccine Act)
- Chuisano v. United States, 116 Fed. Cl. 276 (reasonable basis is an objective totality-of-circumstances standard; factors include factual basis, medical support, jurisdictional issues, and filing circumstances)
- Perreira v. Sec’y of Health & Human Servs., 33 F.3d 1375 (Fed. Cir. 1994) (reasonable basis can exist at filing but be lost during the case)
- McKellar v. Sec’y of Health & Human Servs., 101 Fed. Cl. 297 (petitioner bears burden to affirmatively demonstrate reasonable basis)
- Beck v. Sec’y of Health & Human Servs., 924 F.2d 1029 (attorney fee award covers all legal charges and prevents additional collection from client)