Toes v. Secretary of Health and Human Services
16-7
| Fed. Cl. | May 2, 2017Background
- Petitioner Alexandra Toes filed a Vaccine Program petition alleging autoimmune lichen sclerosus after a December 17, 2012 Gardasil dose; initial petition (Jan 4, 2016) filed to preserve the statute of limitations and later amended with medical records and a signed statement.
- Treating records were mixed: an early biopsy/colposcopy by Dr. Spitzer diagnosed lichen simplex chronicus, while later treating physicians recorded lichen sclerosus; petitioner relied on the latter working diagnoses and literature suggesting autoimmune links.
- Respondent filed a Rule 4(c) report recommending denial, citing (1) onset and statute-of-limitations concerns and (2) lack of medical/expert evidence linking the vaccine to lichen sclerosus.
- The special master ordered an expert report; petitioner retained an expert who reviewed records and concluded the correct diagnosis was lichen simplex chronicus (not autoimmune lichen sclerosus) and that vaccination would not trigger that condition. Petitioner moved to dismiss.
- Petitioner sought $16,133.50 in attorneys’ fees and $4,346.24 in costs. Respondent opposed, arguing the claim lacked reasonable basis. The special master found reasonable basis existed until the expert undermined the claim and awarded reduced fees and full costs, totaling $20,218.54.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Existence of reasonable basis for fee award | Toes filed in good faith at the statute-of-limitations deadline; multiple treating physicians documented lichen sclerosus and petitioner cited supporting literature | Respondent: claim lacked reasonable basis from filing onward; medical records did not support vaccine-related injury | Special master: reasonable basis existed up to dismissal (leniency given near SOL and multiple treating diagnoses); entitlement to fees allowed |
| Effect of statute-of-limitations filing timing | Filing to preserve SOL justified leniency in assessing reasonable basis | Timing alone insufficient to create presumptive reasonable basis | Court applied more lenient standard for SOL-impending filings but required factual/medical support; found sufficient here pre-expert |
| Whether medical records supported causation theory | Petitioner relied on treating records noting lichen sclerosus and literature linking inflammatory dermatoses to vaccination; intended to secure an expert report | Respondent emphasized lack of expert proof and preexisting symptoms predating vaccine | Special master: factual record and treating notes made the claim feasible until expert review undermined the diagnosis |
| Reasonableness of requested fees (rates/hours/costs) | Requested hourly rates for lead counsel and junior attorney; billed hours for attorney/paralegal and litigation tasks; sought full costs including expert fees | Respondent objected to any fees due to lack of reasonable basis | Special master awarded lodestar-based fees with adjustments: reduced 2017 lead-counsel rate per McCulloch growth rate, deducted duplicative paralegal entries, awarded full costs; total $20,218.54 |
Key Cases Cited
- Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343 (Fed. Cir. 2008) (approves lodestar approach for Vaccine Act fee awards)
- Blum v. Stenson, 465 U.S. 886 (1984) (standard for calculating reasonable attorneys’ fees: hours reasonably expended × reasonable hourly rate)
- McKellar v. Sec’y of Health & Human Servs., 101 Fed. Cl. 297 (2011) (reasonable-basis is objective, totality-of-circumstances inquiry; leniency near SOL filings)
- Chuisano v. United States, 116 Fed. Cl. 276 (2014) (reasonable basis may change as evidence develops; totality of circumstances test)
- Silva v. Sec’y of Health & Human Servs., 108 Fed. Cl. 401 (2012) (special masters have broad discretion applying reasonable-basis standard)
- Perreira v. Sec’y of Health & Human Servs., 33 F.3d 1375 (Fed. Cir. 1994) (reasonable basis may exist until evidentiary hearing; counsel must reassess as case develops)
- Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517 (Fed. Cir. 1993) (hours that are excessive, redundant, or unnecessary should be excluded in fee awards)
- Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl. 719 (2011) (special master need not perform line-by-line fee analysis; may apply experience to reduce fees)
- Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201 (2009) (special master may reduce fees sua sponte without further notice)