Weggen v. Secretary of Health and Human Services
15-1338
| Fed. Cl. | Nov 7, 2016Background
- Petitioners Jeff Weggen and Beth Qualls filed a Vaccine Act petition on behalf of their daughter S.W. alleging Gardasil vaccinations triggered a severe adverse reaction; petition filed Nov 6, 2015 and later dismissed for insufficient proof.
- Petition was filed the same day counsel first consulted with the family to preserve the statute of limitations; initial petition was skeletal and included no medical records.
- Counsel subsequently obtained extensive medical records (from multiple hospitals) and consulted an infectious disease expert (Dr. Nemecheck), who provided limited support and literature suggesting a possible, but weak, theory of immunosuppression unmasking histoplasmosis.
- After review, counsel concluded the records did not support a viable claim and moved to dismiss; the special master dismissed the petition for insufficient proof.
- Petitioners sought attorneys’ fees and costs ($15,441.43 total). Respondent opposed, arguing the petition lacked a reasonable basis and thus fees should be denied.
- The Special Master found the filing was made in good faith, that the impending statute-of-limitations and post-filing investigation (records and expert contact) supported a finding of reasonable basis, and awarded the full requested fees and costs jointly payable to petitioners and counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petition had reasonable basis (fee entitlement) | Filing was justified by imminent statute-of-limitations; counsel conducted post-filing investigation and consulted an expert, so reasonable basis exists | Skeletal petition and timing (6-month gap) show lack of reasonable basis; inadequate pre-filing proof means no fees | Petition had reasonable basis: imminent limitations, prompt records collection, and expert consultation justified fees |
| Relevance of statute-of-limitations pressure to reasonable-basis analysis | Imminent deadline is a relevant factor that can justify filing with limited pre-filing documentation | Statutory text does not link limitations to fee provision; Cloer suggests reliance on extensive documentation for fee decisions | Statute-of-limitations pressure is a relevant factor; filing under time pressure can support reasonable basis when followed by investigation |
| Weight of pre-filing expert contact and medical records | Post-filing expert consultation and later production/review of records suffice to show feasibility | Limited expert communications and later records showing earlier symptoms undermine feasibility | Expert exchange and subsequent record review provided sufficient basis to consider the claim feasible at filing |
| Reasonableness of requested fees and costs | Requested hourly rates and hours are consistent with precedent and reasonable; costs were routine (records, postage) | Respondent did not contest rates/hours if reasonable basis found | Lodestar approach applied; requested rates and hours found reasonable and full fees and costs awarded |
Key Cases Cited
- Chuisano v. United States, 116 Fed. Cl. 276 (Fed. Cl. 2014) (reasonable-basis inquiry is objective and considers totality of circumstances)
- McKellar v. Sec'y of Health & Human Servs., 101 Fed. Cl. 297 (Fed. Cl. 2011) (statute of limitations can be a factor in reasonable-basis analysis)
- Silva v. Sec'y of Health & Human Servs., 108 Fed. Cl. 401 (Fed. Cl. 2012) (special masters have broad discretion applying reasonable-basis standard)
- Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343 (Fed. Cir. 2008) (approves lodestar method for Vaccine Act fee awards)
- Blum v. Stenson, 465 U.S. 886 (U.S. 1984) (hours reasonably expended times reasonable hourly rate as lodestar foundation)
- Saxton v. Sec'y of Health & Human Servs., 3 F.3d 1517 (Fed. Cir. 1993) (special master may reduce unreasonable or redundant hours)
- Sebelius v. Cloer, 133 S. Ct. 1886 (U.S. 2013) (fees may be awarded for untimely petitions if filed in good faith with reasonable basis; discussion of evidentiary basis for fee decisions)