Carly C. Perreira v. HHS - DTP, seizure condition (1992)

Carly C. Perreira's parents filed a petition under the National Vaccine Injury Compensation Program seeking compensation for a seizure condition they alleged was significantly aggravated by the diphtheria-tetanus-pertussis (DTP) vaccine.

Carly received her second DTP inoculation on May 5, 1982, and experienced her first seizure on May 25, 1982. She had subsequent seizures on June 23 and June 24, 1982.

Following a third DTP inoculation on July 21, 1982, Carly had seizures approximately two weeks later, on August 3, 1982. The petitioners' claim focused on the theory that the third DTP shot significantly aggravated Carly's seizure condition.

In a bench ruling on May 2, 1991, later formalized in a written decision on June 13, 1991, the special master denied the claim for compensation, finding that the petitioners failed to prove an off-Table significant aggravation case by a preponderance of the evidence. Judgment on the merits was entered on July 17, 1991.

The subsequent proceedings addressed the petitioners' application for attorneys' fees and costs, totaling $15,995.44, which included $6,981.28 for expert witness charges. The petitioners' expert had been paid $2,000 for a review and written opinion, and an additional $4,440 for appearance at the May 2, 1991 hearing.

The special master partially denied the fee request, awarding $6,200.43. The special master reasoned that counsel should have recognized the expert's unsupported medical theory was legally insufficient to establish causation-in-fact after reviewing the expert's report before the hearing, and thus, fees and costs were only allowed up to the point when the petition still had a reasonable basis.

Senior Judge Harkins reviewed the special master's decision on attorneys' fees and costs. He affirmed the partial fee award on October 30, 1992, holding that the special master had discretion to award fees in a denied case only if the petition was brought in good faith and with a reasonable basis.

Judge Harkins found that the special master provided a sufficient rationale for awarding $6,200.43 while denying the balance. Carly C.

Perreira received no vaccine-injury compensation. The $6,200.43 awarded was solely for attorneys' fees and costs.