Stotelmyer v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 23-1001V

LEYSA STOTELMYER,

Chief Special Master Corcoran Petitioner, Filed: August 13, 2026 v. SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

Robin J. Marzella, R.J. Marzella & Associates, P.C., Harrisburg, PA, for Petitioner. Irene Angelica Firippis, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEY’S FEES AND COSTS 1

On June 30, 2023, Leysa Stotelmyer filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the “Vaccine Act”). Petitioner alleged that she suffered a left shoulder injury related to vaccine administration (“SIRVA”), a defined Table Injury, which was causally related to a tetanus- diphtheria-acellular pertussis (“Tdap”) vaccine she received on July 9, 2020. Petition (ECF No. 1). On August 25, 2025, I issued a decision dismissing Petitioner’s claim. ECF No. 32.

1Because this Decision contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government Services). This means the Decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access.

Petitioner has now filed a motion for attorney’s fees and costs, requesting an award of $26,583.56 (representing $25,307.50 in fees plus $1,276.06 in costs). Motion for Attorneys’ Fees and Costs (“Motion”) filed April 3, 2026, ECF No. 35. Counsel for Petitioner filed a signed statement indicating Petitioner incurred no personal out-of-pocket expenses. Id. at 25.

Respondent reacted to the motion on April 16, 2026, stating that he is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case, but deferring resolution of the amount to be awarded to my discretion. Response at 2-4, ECF No. 38. Petitioner filed no reply thereafter.

I have reviewed the billing records submitted with Petitioner’s request and find a reduction in the amount of fees to be awarded appropriate, for the reasons explained below.

I. Reasonable Basis

A. Legal Standard Motivated by a desire to ensure that petitioners have adequate assistance from counsel when pursuing their claims, Congress determined that attorney’s fees and costs may be awarded even in unsuccessful claims. H.R. REP. NO. 99-908, at 22 reprinted in 1986 U.S.C.C.A.N. 6344, 6363; see also Sebelius v. Cloer, 569 U.S. 369, 380 (2013) (discussing this goal when determining that attorneys’ fees and costs may be awarded even when the petition was untimely filed). As Judge Lettow noted in Davis, “the Vaccine Program employs a liberal fee-shifting scheme.” Davis v. Sec’y of Health & Human Servs., 105 Fed. Cl. 627, 634 (2012). It may be the only federal fee-shifting statute that permits unsuccessful litigants to recover fees and costs.

However, Congress did not intend that every losing petition be automatically entitled to attorney’s fees. Perreira v. Sec’y of Health & Human Servs., 33 F.3d 1375, 1377 (Fed. Cir. 1994). And there is also a prerequisite to even obtaining fees in an unsuccessful case. The special master or court may award attorney’s fees and costs in a case in which compensation was not awarded only if “that the petition was brought in good faith and there was a reasonable basis for the claim for which the petition was brought.” Section 15(e)(1). Reasonable basis is a prerequisite to a fee award for unsuccessful cases – but establishing it does not automatically require an award, as special masters are still empowered by the Act to deny or limit fees. James-Cornelius on behalf of E. J. v. Sec'y of Health & Human Servs., 984 F.3d 1374, 1379 (Fed. Cir. 2021) (“even when these two requirements are satisfied, a special master retains discretion to grant or deny attorneys’ fees”).

As the Federal Circuit explained, whether a discretionary fees award is appropriate involves two distinct inquiries – a subjective one when assessing whether the petition was brought in good faith and an objective one when ascertaining whether reasonable basis existed. Simmons v. Sec’y of Health & Human Servs., 875 F.3d 632, 635 (Fed. Cir. 2017) (quoting Chuisano v. Sec’y of Health & Human Servs., 116 Fed. Cl. 276, 289 (2014)). “Good faith is a subjective test, satisfied through subjective evidence.” Cottingham v. Sec’y of Health & Human Servs., 971 F.3d 1337, 1344 (Fed. Cir. 2020) (“Cottingham I”). “[T]he ‘good faith’ requirement . . . focuses upon whether petitioner honestly believed he had a legitimate claim for compensation.” Turner v. Sec’y of Health & Human Servs., No. 99-0544V, 2007 WL 4410030, at *5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007).

Cases in which good faith has been found to be lacking often involve petitioners who failed to produce or actively concealed evidence undermining their claims. Purnell- Reid v. Sec’y of Health & Human Servs., No. 18-1101V, 2020 WL 2203712 (Fed. Cl. Spec. Mstr. Apr. 6, 2020); Crowding v. Sec’y of Health & Human Servs., No. 16-0876V, 2019 WL 1332797 (Fed. Cl. Spec. Mstr. Feb. 26, 2019); Heath v. Sec'y of Health & Human Servs., No. 08-0086V, 2011 WL 4433646 (Fed. Cl. Spec. Mstr. Aug. 25, 2011); Carter v. Sec'y of Health & Human Servs., No. 90-3659V, 1996 WL 402033 (Fed. Cl. Spec. Mstr. July 3, 1996).

“Additionally, a petitioner’s attorney’s conduct may also be relevant when evaluating good faith.” Purnell-Reid, 2020 WL 2203712, at *6. “Counsel still have a duty to investigate a Program claim even if they reasonably find their client to be a credible individual.” Cortez v. Sec'y of Health & Human Servs., No. 09-0176V, 2014 WL 1604002, at *8 (Fed. Cl. Spec. Mstr. Mar. 26, 2014). Factors, such as a looming statute of limitations and the conduct of counsel, are properly considered when determining whether good faith exists – but do not bear on the claim’s objective basis. Simmons, 875 F.3d at 636; Amankwaa v. Sec'y of Health & Human Servs., 138 Fed. Cl. 282, 289 (2018) (“the effort that an attorney makes to investigate a claim or to ensure that a claim is asserted before the expiration of the statutory limitations period . . . are properly evaluated in determining whether a petition was brought in good faith”).

“Reasonable basis, on the other hand, is an objective test, satisfied through objective evidence.” Cottingham I, 971 F.3d at 1344. The reasonable basis requirement examines “not at the likelihood of success [of a claim] but more to the feasibility of the claim.” Turner, 2007 WL 4410030, at *6 (quoting Di Roma v. Sec’y of Health & Human Servs., No. 90-3277V, 1993 WL 496981, at *1 (Fed. Cl. Spec. Mstr. Nov. 18, 1993)). The Federal Circuit recently explained “that a reasonable basis analysis is limited to objective evidence, and that subjective considerations, such as counsel’s subjective views on the adequacy of a complaint, do not factor into a reasonable basis determination.” James- Cornelius, 984 F.3d at 1379.

Although clearly easier to meet than the preponderant standard required for compensation, “courts have struggled with the nature and quantum of evidence necessary to establish a reasonable basis.” Wirtshafter v. Sec’y of Health & Human Servs., 155 Fed. Cl. 665 at 671 (Fed. Cl. 2021). “[I]t is generally accepted that ‘a petitioner must furnish some evidence in support of the claim.’” Id. (quoting Chuisano, 116 Fed. Cl. at 288, emphasis added in Wirtshafter). Citing the prima facie elements of a successful claim described in Section 11(c)(1), the Federal Circuit recently instructed that the level of the objective evidence sufficient for a special master to find reasonable basis should be “more than a mere scintilla but less than a preponderance of proof.” Cottingham I, 971 F.3d at 1345-46. “This formulation does not appear to define reasonable basis so much as set its outer bounds.” Cottingham v. Sec’y of Health & Human Servs., 159 Fed. Cl. 328, 333, (Fed. Cl. 2022), aff’d without op., No. 2022-1737, 2023 WL 7545047 (Fed. Cir. Nov. 14, 2023) (“Cottingham II”). “[T]he Federal Circuit’s statement that a special master ‘could’ find reasonable basis based upon more than a mere scintilla does not mandate such a finding.” Cottingham II, 159 Fed. Cl. at 333 (citing Cottingham I, 971 F.3d at 1346).

Furthermore, the issue of reasonable basis is not a static inquiry. The reasonable basis which existed when a claim was filed may cease to exist as further evidence is presented. Perreira, 33 F.3d at 1377. In Perreira, the Federal Circuit affirmed a special master’s determination that reasonable basis was lost after Petitioner’s “expert opinion, which formed the basis of the claim, was found to be unsupported by either medical literature or studies.” Id. at 1376.

B. Existence of Reasonable Basis in this Case The claim was dismissed because Petitioner could not preponderantly establish six months of residual symptomatic effects after the July 2020 vaccination – a threshold requirement for Program eligibility. Decision, ECF No. 32 at 1. The evidence reflected a positionally dependent, mild, and not significantly-limiting injury documented just once (approximately three months post-vaccination), followed by a 24-month gap in documentation or treatment (spanning from October 2020 – October 2022) which was not justified, especially in light of at least 10 medical appointments for other concerns – presenting reasonable opportunities to have any ongoing shoulder injury documented. The overall lack of documentation had cumulative evidentiary weight, despite Petitioner’s later attempts to explain it away. I also noted that the injury alleged (SIRVA) is not obviously chronic, and the case-specific evidence suggested a later “flare-up” in pain potentially attributable to Petitioner’s findings of cervical spine pathology and frequently lifting her young grandchild (despite also mentioning the remote vaccination). The overall evidence did not at all weigh in Petitioner’s favor on this severity issue.

Nonetheless, there was sufficient evidence to satisfy the low reasonable basis standard. There was no dispute of Petitioner’s receipt of a covered vaccine in her left arm, followed by a documented medical history of a (likely mild) left shoulder injury three months later. Some of the (very attenuated) later medical records reflect Petitioner’s concern about the past vaccination. Additionally, she and several family members made witness statements claiming that the vaccine injury lasted for at least six months. This amounts to at least a scintilla of evidence sufficient to meet the low reasonable basis standard (despite being well less than the preponderance required to prevail on the severity issue). And there is no other basis for a denial of fees. Therefore, the only remaining question is the appropriate amount of the attorney’s fees and costs to be awarded.

ATTORNEY FEES

I have reviewed the billing records submitted with Petitioner’s request. The rates requested for work performed through the end of 2024 are reasonable and consistent with our prior determinations and will therefore be adopted. The requested 2025 rate for attorney Robin Marzella, and the 2026 rate for attorney Bob Cunningham, need to be adjusted.

Petitioner has requested the hourly rate of $600.00 for 2025 work performed by Ms. Marzella, representing a rate increase of $75.00 from the previous year. ECF No. 35 at 12. Ms. Marzella is the principal attorney of R. J. Marzella & Assocaites, located in Harrisburg, PA, a city not deemed “in forum.” Dougherty v. Sec'y of Health & Hum. Servs., No. 05-700V, 2011 WL 5357816, at *6 (Fed. Cl. Spec. Mstr. Oct. 14, 2011). While the Program strives to award counsel fair rates for their work, as consistent as possible with what similarly-situated attorneys receive (and in light of the nationwide jurisdiction exercised in the Program over Vaccine Act claims), the distinction between forum and non-forum rates remains a directive of applicable Federal Circuit caselaw. An attorney's reasonable hourly rate is determined by the “forum rule,” which bases the proper hourly rate to be awarded on the forum in which the relevant court sits (Washington, D.C., for Vaccine Act cases), except where an attorney's work was not performed in the forum and there is a substantial difference in rates (the so-called “Davis” exception). Avera, 515 F.3d at 1348 (citing Davis Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot. Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). It thus controls the present circumstances.

In cases where the bulk of work on a Vaccine Act case is completed outside the District of Columbia, and there is a very significant difference between the forum and local hourly rate, local hourly rates are used to determine what an attorney should receive. I thus apply the hourly rate of $535.00 for work performed in 2025 (an increase of $10.00 from what Ms. Marzella received for 2024 work). This results in a reduction of attorney fees of $487.50. 3

Attorney Cunningham requests a $50.00 per hour rate increase from his 2025 rate to $375.00 per hour for 2026. ECF No. 35 at 12. Although this sum is within the experience rate of the OSM Fee Schedule for attorneys with experience comparable to Mr. Cunningham’s, I find the increase to be excessive. Based on the applying factors to determining proper hourly rates for Program attorneys, a rate of $350.00 for time billed in 2026 is more appropriate. Application of the foregoing reduces the fees to be awarded by $150.00. 4

ATTORNEY COSTS

Petitioner requests $1,276.06 in overall costs. ECF No. 35 at 15-23. Such costs reflect the expenses of obtaining medical records and the Court’s filing fee. I have reviewed the requested costs, and find all substantiated but one. Before reimbursement of costs will be made, sufficient supporting documentation, such as invoices, receipts, and billing statements, must be provided. See Guidelines for Practice Under the National Vaccine Injury Compensation Program at 72-74 (emphasis added). 5

When Petitioners fail to provide appropriate documentation to substantiate a requested cost, special masters have refrained from awarding the relevant sum. See, e.g., Gardner-Cook v. Sec’y of Health & Hum. Servs., No. 99-480V, 2005 WL 6122520, at *4 (Fed. Cl. Spec. Mstr. June 30, 2005). Accordingly, I will disallow reimbursement for 3 This amount consists of $600 - $535 = $65 x 7.50 hrs = $487.50.

4 This amount is calculated as follows: $375 - $350 = $50 x 3.0 hrs = $150.00. all unsubstantiated costs herein. Application of the foregoing reduces the amount of fees to be awarded by $29.00.

CONCLUSION

The Vaccine Act permits an award of reasonable attorney’s fees and costs for successful claimants. Section 15(e). Accordingly, I hereby GRANT, in part, Petitioner’s Motion for attorney’s fees and costs. Petitioner is awarded attorneys’ fees and costs in the total amount $25,917.06 (representing $24,670.00 in fees $1,247.06 in costs) to be paid through an ACH deposit to petitioner’s counsel’s IOLTA account for prompt disbursement. In the absence of a timely-filed motion for review (see Appendix B to the Rules of the Court), the Clerk of Court shall enter judgment in accordance with this Decision.6 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master

6 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their right to seek review.