VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_15-vv-01128 Package ID: USCOURTS-cofc-1_15-vv-01128 Petitioner: Kathleen Heyer Filed: 2015-10-06 Decided: 2016-12-08 Vaccine: influenza Vaccination date: 2012-10-08 Condition: ongoing diffuse inflammation adversely affecting her autoimmune system and quality of life Outcome: dismissed Award amount USD: 484 AI-assisted case summary: Kathleen Heyer, an adult, filed a petition for compensation under the National Childhood Vaccine Injury Act on October 6, 2015. She alleged that an influenza vaccine administered on October 8, 2012, caused her to suffer ongoing diffuse inflammation affecting her autoimmune system and quality of life. Ms. Heyer initially sought compensation but later filed a motion to dismiss her petition, stating that an investigation of the facts and science demonstrated she would be unable to prove entitlement. The court noted that to receive compensation, she would need to prove either a Table injury or that the vaccine actually caused her injury, neither of which was supported by the record. The decision of February 4, 2016, dismissed the petition for insufficient proof. Subsequently, Ms. Heyer filed a motion for reimbursement of filing fees and mailing costs totaling $484.13. The respondent argued that since no evidence was submitted to support the claim, there was no reasonable basis for bringing the petition. However, Ms. Heyer provided medical records indicating her doctor advised her not to receive flu vaccines due to a prior reaction. The court found these records established a reasonable basis for bringing the claim, despite not being sufficient to prove entitlement. Therefore, in a decision dated December 8, 2016, the court awarded Ms. Heyer $484.13 for her costs. Theory of causation field: unclear Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_15-vv-01128-0 Date issued/filed: 2016-02-26 Pages: 2 Docket text: PUBLIC DECISION (Originally filed: 2/4/2016) regarding 11 DECISION of Special Master. Signed by Special Master Lisa Hamilton-Fieldman. (mb) Copy to parties. -------------------------------------------------------------------------------- CCaassee 11::1155--vvvv--0011112288--UUNNJJ DDooccuummeenntt 1112 FFiilleedd 0022//0246//1166 PPaaggee 11 ooff 22 ORIGINAL 3n tlje WLnittb States; Court of jfeberal Claims? OFFICE OF SPECIAL MASTERS FILED No. 15-1128V Filed: February 4, 2016 FEB - 4 2016 UNPUBLISHED 0SM KATHLEEN HEYER, * U.S.COURTOF FEDERALCLAIMS * Special Master Hamilton-Fieldman Petitioner, * * * Petitioner's Motion for Dismissal * Decision; Influenza ("Flu") SECRETARY OF HEALTH * Vaccine; Diffuse Inflammation. AND HUMAN SERVICES, * Respondent. * Kathleen Heyer, Pro Se, Cedar Rapids, IA. GlennMacLeod, UnitedStatesDepartmentofJustice,Washington, DC,forRespondent. DECISION' On October 6, 2015, Kathleen Heyer ("Petitioner") filed apetition for compensation under theNational Childhood Vaccine Injury Act of1986,42 U.S.C. §§ 300aa-l et sea, (2006) ("Vaccine Act"). Petitioner alleged that the administration ofan influenza ("flu") vaccine on October 8,2012 caused her to suffer from "ongoing diffuse inflammation adversely affecting her autoimmune system and quality oflife." The undersigned now finds that the information in the record does not showentitlement to an award underthe Program. On February 1,2016, Petitioner filed a Motion for a Decision Dismissing her Petition. According to the motion, "[a]n investigation ofthe facts and science supporting [her] case has demonstrated to petitionerthat [she] will be unable to prove that [she] is entitled to compensation in the Vaccine Program." Petitioner further states that she understands that a dismissal decision will result in ajudgmentagainst her, and that such ajudgment will end all ofher rights in the Vaccine Program. ' Because this unpublished decision contains a reasoned explanation for the action in this case, the undersigned intends to postthis decision on the United States Court ofFederal Claims' website, in accordance with the E-Government Act of2002, Pub. L. No. 107-347, §205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. §3501 and note (2006)). In accordance with Vaccine Rule 18(b), a party has 14 days to identify and move to delete medical or other information, that satisfies the criteria in § 300aa-12(d)(4)(B). Further, consistent with the rule requirement, a motion for redaction must include a proposed redacted decision. If, upon review, the undersigned agrees that the identified material fits within the requirements ofthat provision, such material will be deleted from public access. CCaassee 11::1155--vvvv--0011112288--UUNNJJ DDooccuummeenntt 1112 FFiilleedd 0022//0246//1166 PPaaggee 22 ooff 22 To receive compensation under the Vaccine Act, Petitionermust prove either 1)that she suffered a "Table Injury" - i.e., an injury falling within the Vaccine Injury Table - corresponding to her vaccination, or 2) that she suffered an injury that was actually caused by a vaccine. See §§ 3OOaa-13(a)(1)(A)and 300aa-l1(c)(1). An examination ofthe record did not uncover any evidence that Petitioner suffered a "Table Injury." Further, the record does not contain amedical expert's opinion or any otherpersuasive evidence indicating that her injuries were caused by a vaccination. Underthe Vaccine Act, a petitionermay not be awarded compensationbased solely on the petitioner's claims alone. Rather, the petitionmust be supported by eithermedical records or by the opinion ofa competentphysician. § 300aa-13(a)(l). In this case, because the medical records are insufficientto establish entitlementto compensation, a medical opinion must be offered in support. Petitioners, however, have offered no such opinion. Therefore, the only alternative remains to DENY this petition. Thus, this case is dismissed for insufficient proof. In the absence ofa motion for review, the Clerk shall enter judgment accordingly. _ s. IT IS SO ORDERED. LisaD. Hamilton-Fieldman Special Master ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_15-vv-01128-1 Date issued/filed: 2016-12-08 Pages: 4 Docket text: PUBLIC DECISION (Originally filed: 11/10/2016) regarding 19 DECISION of Special Master. Signed by Special Master Lisa Hamilton-Fieldman. (ca1) Copy to parties. -------------------------------------------------------------------------------- Case 1:15-vv-01128-UNJ Document 20 Filed 12/08/16 Page 1 of 4 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 15-1128V Filed: November 10, 2016 * * * * * * * * * * * * * * * * * * * * * * * * * KATHLEEN HEYER, * UNPUBLISHED * * Special Master Hamilton-Fieldman Petitioner, * * v. * Pro Se Costs; Reasonable Basis. * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * * * * * * * * * * * Kathleen Heyer, pro se. Glenn A. MacLeod, United States Department of Justice, Washington, DC, for Respondent. DECISION1 On October 6, 2015, Kathleen Heyer (“Petitioner”) petitioned pro se for compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (2012). Petitioner alleged that the administration of an influenza (“flu”) vaccine on October 8, 2012 caused her to suffer ongoing diffuse inflammation. Petition at Preamble, filed Oct. 6, 2016. An initial status conference was held on December 1, 2015 in which Petitioner was ordered to file medical records in support of her claim by February 2, 2016. See Order, ECF No. 7, filed Dec. 4, 2015. However, through informal communication on December 14, 2015, Petitioner notified 1 Because this decision contains a reasoned explanation for the undersigned’s action in this case, the undersigned intends to post this ruling on the website of the United States Court of Federal Claims, in accordance with the purposes espoused in the E-Government Act of 2002. See 44 U.S.C. § 3501 (2012). Each party has 14 days within which to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Case 1:15-vv-01128-UNJ Document 20 Filed 12/08/16 Page 2 of 4 the court that she wished withdraw her claim. A status conference was held on January 13, 2016 to discuss Petitioner’s request and options for exiting the Program. See Order, ECF No. 9, filed Jan. 15, 2016. On February 1, 2016, Petitioner filed a pro forma motion for a decision dismissing her petition, stating “[a]n investigation of the facts and science supporting [her] case has demonstrated to petitioner that [she] will be unable to prove that [she] is entitled to compensation in the Vaccine Program.” Motion at ¶ 1, filed Feb. 1, 2016. A decision dismissing this case for insufficient proof was issued on February 4, 2016. Thereafter, Petitioner filed a motion for reimbursement of the filing fee and mailing costs in the amount of $484.13. Respondent filed a response in opposition to Petitioner’s motion on August 1, 2016. Respondent argued that “in the absence of any evidence supporting the claim for which the petition was brought, the special master has no basis from which to determine that the instant claim had a reasonable basis and was filed in good faith,” pursuant to 42 U.S.C. ' 300aa-15(e)(1). Response to Motion at 1, filed Aug. 1, 2016. Respondent averred that she had no opposition to the amount claimed, rather the issue was “purely a legal one” of “whether the law empowers the court to pay this request as reasonable as it may be.” Id. at 3. According to Respondent, as the reasonable basis standard is met by submitting evidence, and Petitioner did not submit any evidence in this case, “there is simply no foundation for respondent, or the court, to sensibly conclude that a reasonable basis existed for the claim for which the petition was brought.” Id. at 5. A status conference was held on September 7, 2016 to discuss this issue. During the status conference, Petitioner stated that she had medical records indicating she was advised by her doctor to no longer receive flu vaccines because she experienced an adverse reaction to the flu vaccination at issue in this case. Petitioner was ordered to file these medical records to support the reasonable basis requirement for an award of litigation costs. See Order, ECF No. 17, filed Sept. 8, 2016. On September 15, 2016, Petitioner filed a supplemental motion for reimbursement of costs in the amount of $484.13, along with two records from The Gosh Center for Oncology and Hematology, filed as exhibit one. Respondent did not file a response to Petitioner’s supplemental motion. This case is now ripe for a decision on Petitioner’s motion for reimbursement of costs. I. Discussion Section 15(e) of the Vaccine Act provides that reasonable attorneys’ fees and other costs Case 1:15-vv-01128-UNJ Document 20 Filed 12/08/16 Page 3 of 4 shall be awarded as part of compensation to a successful petitioner. However, on a petition that is unsuccessful on entitlement, reasonable attorneys’ fees and costs may be awarded “if the special master or court determines that the petition was brought in good faith and there was a reasonable basis for the claim for which the petition was brought.” 42 U.S.C. § 300aa-15(e)(1). Congress vested the special master with discretion in awarding attorneys’ fees and costs to unsuccessful claimants and “plainly contemplat[ed] that not all petitioners would recover fees and costs.” Chuisano v. United States, 116 Fed. Cl. 276, 286 (2014). At the same time, the special master’s discretion is tempered by the remedial nature of the Vaccine Act. See Cloer v. Sec’y of HHS, 675 F.3d 1358, 1362 (Fed. Cir. 2012) (declaring on the question of whether Petitioner was eligible to receive an award of attorneys’ fees and costs that “[r]emedial legislation like the Vaccine Act should be construed in a manner that effectuates its underlying spirit and purpose”). With regard to the good faith requirement, the Court of Federal Claims has observed that petitioners “are entitled to a presumption of good faith.” Grice v. Sec’y of HHS, 36 Fed. Cl. 114, 121 (1996). As to the existence of a reasonable basis for filing the claim, the Vaccine Act “grants to the special master maximum discretion in applying the standard.” Silva v. Sec’y of HHS, 108 Fed. Cl. 401, 402 (2012). “Reasonable basis is an objective standard determined by the totality of the circumstances,” and “is something less than the preponderant evidence ultimately required to prevail on one’s vaccine-injury claim.” Chuisano, 116 Fed. Cl. at 286-87. Here, the undersigned finds no bad faith on the part of Petitioner to rebut the presumption of good faith. The undersigned also finds there was a reasonable basis to bring this claim, based on the records petitioner provided to support her request for reimbursement of costs. Petitioner’s exhibit one is comprised of signed and dated prescriptions from Dr. Chirantan Ghosh. The oldest record states: “recommend not to receive flu vaccine,” and is dated July 24, 2013—nine months after the alleged administration of the vaccine at issue. Petitioner’s Exhibit 1, ECF No. 18. The second record from Dr. Ghosh states: “Please do not administer influenza vaccine due to prior reaction to vaccine that patient is currently still being treated for.” Id. This record was made on September 24, 2015, twelve days before the petition was filed in this case. Both of these records indicate that a medical provider recognized that the Petitioner suffered an adverse event related to a flu vaccination, and that Petitioner was advised to no longer receive flu vaccines. While these records are certainly not sufficient to preponderantly establish entitlement to compensation from the Program, when considering “something less than” that standard and the de minimis amount in question, these records do establish that Petitioner had a reasonable basis to bring a claim. In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e), the undersigned finds that Petitioner’s request for costs is reasonable. Accordingly, Petitioner is hereby awarded the Case 1:15-vv-01128-UNJ Document 20 Filed 12/08/16 Page 4 of 4 amount of $484.13, in the form of a check made payable to Petitioner, Kathleen Heyer. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court shall enter judgment in accordance herewith.2 IT IS SO ORDERED. /s/ Lisa D. Hamilton-Fieldman Lisa D. Hamilton-Fieldman Special Master 2 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review. Vaccine Rule 11(a).