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Federal Circuit Revives Fee Request in Vaccine Act Case

August 19, 2020 | Posted in : Fee Entitlement / Recoverability, Fee Issues on Appeal, Fee Request, Prevailing Party Issues

A recent Law 360 story by Ryan Davis, “Fed. Circ. Revives Fee Bid in Gardasil Vaccine Act Case,” reports that the Federal Circuit revived a mother's bid for attorney fees in an unsuccessful case claiming her daughter was injured by Merck & Co.'s Gardasil HPV vaccine, ruling a special master wrongly held there was "no evidence" the vaccine caused the injuries.

The plaintiff, Susan Cottingham, dismissed her petition in 2016 after she was unable to find an expert willing to opine that the vaccine caused her daughter's injuries.  However, the National Vaccine Injury Compensation Program established under the Vaccine Act provides for fee awards for "non-prevailing, good-faith claims," and she sought $11,468.

A special master denied the request, finding "no reasonable basis" for the claim.  The U.S. Court of Federal Claims upheld the decision, but the Federal Circuit ruled in a precedential opinion Wednesday that their "finding that Cottingham presented 'no evidence' of a reasonable basis supporting her claim is clearly erroneous."  "The record does contain objective evidence of causation supporting a reasonable basis," the appeals court said.  That includes the daughter's medical records and a Gardasil package insert listing potential adverse reactions she allegedly suffered, including headaches, dizziness and fainting.

The Federal Circuit noted that it was not ruling that Cottingham is entitled to fees based on that evidence, saying that is a factual finding for the special master to make on remand.  The appeals court also held that determining whether a Vaccine Act claim had a reasonable basis and is eligible for fees involves a "totality of the circumstances" inquiry that includes objective evidence, and that the special master abused his discretion by not using that test.

The Federal Circuit rejected an argument by the U.S. Department of Health and Human Services, the defendant in the case, that a totality of the circumstances inquiry "breeds confusion" and invites consideration of extraneous factors, and that a 2017 Federal Circuit ruling implicitly rejected such an analysis.

That ruling did not reject the totality of the circumstances inquiry, the Federal Circuit said, and "we clarify that the failure to consider objective evidence presented in support of a reasonable basis for a claim would constitute an abuse of discretion."

Cottingham's minor daughter, identified in the opinion as K.C., received the Gardasil vaccine to prevent HPV in 2012, according to the ruling.  The petition alleged that about four months later, she began to experience symptoms including headaches, dizziness, fainting and missed menstrual cycles.  Cottingham filed the petition in 2015 and obtained an affidavit from K.C. and her medical records.  The following year, after contacting two different experts who would not provide opinions supporting the claim, Cottingham dismissed the petition.

She then filed the request for fees, and the case bounced back and forth between the special master and the Court of Federal Claims for years.  The special master first denied fees, but that decision was vacated by the court. On remand, the special master awarded fees, but that decision was again vacated by the court.  The third time, the special master denied fees, and the court upheld that decision, leading to the appeal.