Reiling v. Secretary of Health and Human Services
15-32
| Fed. Cl. | Jul 15, 2016Background
- Petitioner Julie Reiling filed a Vaccine Program petition alleging injury after a Tdap vaccination on June 14, 2013; she sought an interim award of attorneys' fees and costs while her case remained pending.
- Two causation theories were asserted: (1) an allergic reaction to latex in syringe tip caps; and (2) the vaccine aggravated a traumatic brain injury (TBI) allegedly caused when she struck her head on a stove shortly before vaccination.
- Medical records showed negative latex allergy testing (Aug. 26, 2014) and treating clinicians did not diagnose TBI in the immediate post-injury visits (June–July 2013). Petitioner later submitted an expert report from Dr. Patrick Nemechek supporting the TBI-aggravation theory.
- Counsel (Andrew Downing) filed the petition, later moved to withdraw, and sought interim fees; the Secretary opposed the fee application, arguing lack of reasonable basis and that Avera factors did not support an interim award.
- The Special Master found significant gaps and inconsistencies in the evidence and expert report (e.g., conflict between petitioner’s affidavit and records about onset of headaches; absence of TBI diagnoses; inadequate explanation of natural course and how vaccine caused aggravation) and denied the interim fees request for lack of reasonable basis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petitioner is eligible for fees (good faith + reasonable basis) | Reiling contends her petition has reasonable basis based on her affidavit and Dr. Nemechek's report linking vaccine to aggravation of TBI | Secretary argues no reasonable basis: negative latex testing, treating records do not support TBI, and expert opinion is speculative/incomplete | Denied — petitioner failed to show reasonable basis for petition; fee eligibility not established |
| Whether an interim award of attorneys' fees is appropriate under Avera | Counsel sought interim fees to cover litigation costs while case pending | Secretary contended Avera factors are not met given weak factual and expert support | Not reached on merits because reasonable-basis threshold not satisfied; interim award denied |
| Whether expert evidence sufficiently supports causation and aggravation theory | Dr. Nemechek opined vaccine worsened underlying TBI via systemic inflammation | Secretary and Special Master found expert’s report incomplete, inconsistent with records, and lacking discussion of natural history and mechanism | Held insufficient — report has gaps and novel theory unsupported by comparative authorities |
| Whether petitioner may cure defects and re-apply for interim fees | Petitioner sought to supplement record and filed a reply; former counsel suggested more evidence could be submitted | Secretary opposed current award but did not preclude future supplementation | Special Master noted petitioner may submit additional information and renew the request later; current application denied |
Key Cases Cited
- Perreira v. Sec'y of Health & Human Servs., 33 F.3d 1375 (Fed. Cir. 1994) (reasonable-basis inquiry should not reward claims resting on an unsupported expert causation assertion)
- Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343 (Fed. Cir. 2008) (factors guiding interim fee awards in Vaccine Program)
- Chuisano v. Sec'y of Health & Human Servs., 116 Fed. Cl. 276 (Fed. Cl. 2014) (petitioner must submit evidence supporting claim to establish reasonable basis)
- Rehn v. Sec'y of Health & Human Servs., 126 Fed. Cl. 86 (Fed. Cl. 2016) (framework for considering interim fee awards and reasonableness)
- Locane v. Sec'y of Health & Human Servs., 685 F.3d 1375 (Fed. Cir. 2012) (discussing proof needed for significant aggravation causation)
- Loving v. Sec'y of Health & Human Servs., 86 Fed. Cl. 134 (Fed. Cl. 2009) (burden and proof considerations in significant-aggravation claims)
- Gruber v. Sec'y of Health & Human Servs., 61 Fed. Cl. 674 (Fed. Cl. 2004) (analysis of significant aggravation and required medical explanation)