Toes v. Secretary of Health and Human Services
16-819
| Fed. Cl. | Aug 25, 2017Background
- Petitioner (Connor Toes) filed a Vaccine Act petition alleging autonomic dysfunction (stomach pain, chronic fatigue, headaches, weight loss) after varicella, Gardasil, and Menactra vaccines in July 2013.
- Medical records show onset of recurring headaches and gastrointestinal complaints beginning ~8 weeks post-vaccination and continuing intermittently for years; specialist testing (Dr. Kellman) suggested autonomic neuropathy but provided limited causal theory.
- Petitioner filed an amended petition but repeatedly missed deadlines and never produced an expert report establishing vaccine causation; counsel sought multiple extensions and ultimately moved to withdraw.
- Respondent conceded good faith but argued the petition lacked a reasonable basis and opposed interim fees; also challenged the absence of a definitive diagnosis and expert causation opinion.
- Special Master found there was a reasonable basis at the time of filing but that the reasonable-basis support weakened as the case developed; nevertheless granted interim attorneys’ fees and costs to petitioner’s counsel.
- Award: $15,820.50 in fees and $1,905.24 in costs (total $17,725.74), payable jointly to petitioner and counsel; judgment to be entered absent review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petition had a "reasonable basis" at filing for awarding fees | Temporal association of symptoms to vaccines, Dr. Kellman’s notes, autonomic testing and supportive literature established objective reasonable basis | Medical records did not substantiate vaccine causation; no expert causation opinion; delays and lack of investigation undermined reasonable basis | Petitioner had reasonable basis at filing; basis weakened during litigation as no expert/causation developed |
| Whether petitioner acted in good faith (prerequisite for fees) | Petitioner filed in good faith and provided under-oath affidavit; counsel relied on client statements and available records | Respondent did not contest good faith | Good faith presumed and satisfied (no evidence of bad faith) |
| Whether interim attorneys’ fees are appropriate | Interim fees appropriate due to undue hardship on counsel (withdrawal, expenses advanced) and special masters’ broad discretion; Avera factors not exhaustive | Avera limits interim fees to protracted cases with costly experts or undue hardship; none apply here, so deny interim fees | Interim fees awarded despite case not matching classic Avera facts; counsel’s incurred expenses and withdrawal supported award |
| Reasonableness of requested hourly rates and hours | Requested rates and hours consistent with Forum rates and prior decisions; records show time expended | Requested rates/hours asserted too high (but Respondent offered no specific reductions) | Requested hourly rates and hours found reasonable and awarded in full |
Key Cases Cited
- Avera v. Secretary of Health & Human Services, 515 F.3d 1343 (Fed. Cir. 2008) (interim fee awards appropriate in protracted proceedings or where costly experts are required)
- Shaw v. Secretary of Health & Human Services, 609 F.3d 1372 (Fed. Cir. 2010) (interim fees may be awarded where litigation cost imposes undue hardship and claim has good-faith basis)
- McKellar v. Secretary of Health & Human Services, 101 Fed. Cl. 297 (Fed. Cl. 2011) (no presumption of reasonable basis; petitioner bears burden to show it)
- Chuisano v. United States, 116 Fed. Cl. 276 (Fed. Cl. 2014) (reasonable-basis inquiry considers factual basis, medical support, jurisdictional issues, and circumstances of filing)
- Perreira v. Secretary of Health & Human Services, 33 F.3d 1375 (Fed. Cir. 1994) (a case may have reasonable basis at filing but lose it as the record develops)
- Blum v. Stenson, 465 U.S. 886 (U.S. 1984) (lodestar method: hours reasonably expended multiplied by reasonable hourly rate)
- Grant v. Secretary of Health & Human Services, 956 F.2d 1144 (Fed. Cir. 1992) (temporal association alone is insufficient to establish causation-in-fact)