Thomas v. Secretary of Health and Human Services
20-886
| Fed. Cl. | Jun 11, 2021Background:
- Petitioner Mark Thomas filed a Vaccine Program petition alleging his minor child Z.T. suffered severe neurologic/autonomic symptoms after a July 26, 2017 Gardasil (HPV) vaccination.
- After the statutory 240‑day notice issued, petitioner withdrew the petition under 42 U.S.C. § 300aa‑21(b) (intending to pursue a tort suit against the manufacturer) and asked to conclude proceedings.
- Petitioner moved for attorneys’ fees and costs; respondent opposed, arguing lack of good faith, lack of reasonable basis (incomplete records), and policy concerns about program resources.
- Medical records filed (≈3,000–4,000 pages) showed temporal onset of symptoms after vaccination, treating physicians’ notes suggesting possible vaccine causation, and petitioner filed the vaccine package insert.
- Special Master Horner found the petition was filed in good faith and had an objective reasonable basis, but reduced requested attorneys’ fees for excessive/duplicative billing; awarded $17,228.51 (fees $15,689.70; costs $1,538.81).
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the petition filed in good faith when withdrawn at 240 days to pursue a civil suit? | Counsel and petitioner sincerely believed a vaccine injury occurred; withdrawal at 240 days is statutorily permitted. | Filing solely to enable a tort suit and doing the "bare minimum" in the Program shows lack of good faith. | Good faith found: subjective belief in injury satisfied; statutory withdrawal permissible. |
| Did the petition have an objective "reasonable basis"? | Contemporaneous medical records, treating clinicians’ suspicions, and the Gardasil package insert supplied more than a scintilla of evidence supporting feasibility. | Record was substantially incomplete; missing records and lack of evidence of causation defeat reasonable basis. | Reasonable basis found: submitted records + package insert rendered the claim feasible under the lower Cottingham standard. |
| Should program‑policy concerns about "stepping‑stone" filings and docket strain bar or reduce fees? | Denying fees would conflict with statute and might encourage longer Program litigation; withdrawal is a statutory right. | Awarding fees for such withdrawals thwarts Program goals and wastes resources. | Policy arguments did not overcome statutory standards; fee award governed by good faith/reasonable‑basis analysis. |
| What is a reasonable fee award given the truncated prosecution and billing issues? | Requested fees and supplemental fees were reasonable for work performed. | Many hours were unnecessary given minimal substantive progression; some billing was clerical/duplicative. | Reduced attorneys’ fees by 20% for excessive/duplicate billing and trimmed supplemental fees; awarded $15,689.70 (fees) + $1,538.81 (costs) = $17,228.51. |
Key Cases Cited
- Bruesewitz v. Wyeth LLC, 562 U.S. 223 (2011) (Vaccine Act channels vaccine‑injury litigation into the Program to protect vaccine supply)
- Cottingham v. Sec'y of Health & Human Servs., 971 F.3d 1337 (2020) (reasonable‑basis standard: more than a mere scintilla but less than preponderance; need some causal evidence)
- Simmons v. Sec'y of Health & Human Servs., 875 F.3d 632 (2017) (impending statute of limitations may be relevant to good faith but not to merits reasonable basis)
- Amankwaa v. Sec'y of Health & Human Servs., 138 Fed. Cl. 282 (2018) (reasonable‑basis inquiry may consider factual basis, medical/scientific support, novelty of theory)
- Hodges v. Sec'y of Health & Human Servs., 9 F.3d 958 (1993) (special masters may rely on accumulated expertise to assess vaccine claims)
- Saxton v. Sec'y of Health & Human Servs., 3 F.3d 1517 (1993) (fee‑award amount is within special master’s discretion)