SCARLETT v. SECRETARY OF HEALTH AND HUMAN SERVICES
1:19-vv-01555-UNJ
Fed. Cl.Dec 20, 2021Background
- Parents Andrew Scarlett and Tamara Dawes filed a Vaccine Program petition after their infant, M.J.S., received multiple vaccines on May 16, 2018 and suffered respiratory/cardiac arrest the next day and was later declared brain dead; life support withdrawn May 21, 2018.
- Autopsy returned cause and manner of death as "undetermined." Petition included NICU, pediatric, EMS, hospital, and autopsy records.
- Following the Court’s advice (and in light of Boatmon jurisprudence), counsel obtained autopsy slides and secured a neuropathologist review to evaluate a possible arcuate‑nucleus/brainstem vulnerability under the Triple Risk theory.
- After the neuropathologist review failed to identify a pathology supporting a Boatmon‑distinguishing theory, counsel advised petitioners and filed a voluntary dismissal.
- Petitioners sought attorneys’ fees and costs ($20,424 in fees; $1,454.95 costs; $435.75 costs to petitioners); respondent opposed, arguing lack of reasonable basis.
- Special Master Gowen found petitioners acted in good faith, concluded objective evidence (temporal sequence and medical records) established reasonable basis through dismissal, reduced requested hourly rates and paralegal rate, and awarded a total of $14,075.10 (fees + costs) plus $435.75 to the petitioner.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Good faith of petition | Petitioners honestly believed vaccines caused death | Not disputed by respondent | Good faith found (subjective belief satisfied) |
| Reasonable basis for fee award | Medical records, timing of death after vaccination, and neuropathologist review provided objective support | Claim is speculative; lacked objective causation evidence to justify fees | Reasonable basis existed through dismissal based on totality (records + steps taken) |
| Whether counsel should have continued after slide review | Counsel obtained slides and expert review; advised dismissal when theory could not be supported | Respondent: counsel proceeded at risk and should not recover if no reasonable basis | Counsel acted appropriately: obtained expert review and dismissed when claim could not be proven; fees allowed for work to dismissal point |
| Fee amounts / rates | Requested forum rates for attorneys and $200/hr paralegal; fees reflect work performed | Implicit challenge that rates/hours exceed forum norms and that reasonable basis lacking | Reduced attorney rates to lower McCulloch band, reduced paralegal rate, accepted billed hours; awarded $12,621.10 (fees) + $1,454.95 (costs) = $14,075.10, plus $435.75 to petitioner |
Key Cases Cited
- Cottingham v. Secretary of Health & Human Services, 971 F.3d 1337 (Fed. Cir. 2020) (objective medical evidence must be considered when assessing reasonable basis)
- James‑Cornelius v. Secretary of Health & Human Services, 984 F.3d 1374 (Fed. Cir. 2021) (medical records, affidavits, and testimony can constitute objective evidence for reasonable basis)
- Chuisano v. Secretary of Health & Human Services, 116 Fed. Cl. 276 (Fed. Cl. 2014) (reasonable basis requires more than temporal proximity and affidavit alone)
- Perreira v. Secretary of Health & Human Services, 33 F.3d 1375 (Fed. Cir. 1994) (counsel should withdraw when claim cannot be proven; fees for post‑reasonable‑basis work may be denied)
- Avera v. Secretary of Health & Human Services, 515 F.3d 1343 (Fed. Cir. 2008) (reasonable hourly rates are those prevailing in the forum community)
- Saxton ex rel. Saxton v. Secretary of Health & Human Services, 3 F.3d 1517 (Fed. Cir. 1993) (special master has discretion to reduce hours billed)