Simmons v. Secretary of Health and Human Services, No. 17-1405 (Fed. Cir. 2017)Annotate this Case
Simmons contacted counsel in 2011, claiming that he developed Guillain-Barre Syndrome as a result of his 2010 flu vaccination. He provided his vaccination record. Counsel agreed to represent him. Counsel was subsequently unable to contact Simmons and sent a letter in 2013, stating that their attorney-client relationship had terminated. That letter was returned as undeliverable. Nearly two years later, shortly before the limitations period on his Vaccine Act claim would expire, Simmons contacted counsel’ and expressed that he would like to proceed. Counsel spoke with Simmons one additional time. The next day, on October 22, 2013, counsel filed Simmons’s petition, without any medical records or other supporting evidence. In January 2014, the special master ordered counsel to produce medical records. Counsel stated that counsel had again lost contact with Simmons and was unable to acquire those records. The master dismissed the case for failure to prosecute. Counsel then filed petitions seeking $8,267.89 in fees and costs. The master noted that because there was no direct evidence of bad faith and counsel had a vaccination receipt, counsel had satisfied the good faith and reasonable basis requirements and awarded fees. The Claims Court and Federal Circuit disagreed. The master erred in finding that counsel had a reasonable basis for Simmons’s claim. The fact that the statute of limitations was about to expire did not excuse counsel’s obligation to show some basis for the claim that Simmons suffered Guillain-Barre beyond their conversations.