Hashi v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 08-307V
(To be published)

*************************
*
HUSSEIN HASHI and *
SAFIA WEGED, parents *
of S.H., a minor, *
*
Petitioners, *
* Filed: August 25, 2016
v. *
* Autism; Decision on Attorneys’
SECRETARY OF HEALTH AND * Fees and Costs; Reasonable Basis;
HUMAN SERVICES, * Hourly Rates
*
Respondent. *
*
*************************

Elaine W. Sharp, Esq., Whitfield, Sharp & Sharp, Marblehead, MA, for Petitioners.
Heather L. Pearlman, Esq., U.S. Dept. of Justice, Washington, DC, for Respondent.

DECISION AWARDING ATTORNEYS’ FEES AND COSTS
HASTINGS, Special Master.
In this case under the National Vaccine Injury Compensation Program (hereinafter “the
Program”1), Petitioners seek, pursuant to 42 U.S.C. § 300aa-15(e)(1), an award for attorneys’
fees and other costs incurred in attempting to obtain Program compensation. They seek a total
amount of $30,771.25. After careful consideration, I have determined to grant the request in
part, but to deny the greater part, because it was not reasonable for Petitioners to proceed further
with this case after April of 2012.

1
The applicable statutory provisions defining the Program are found at 42 U.S.C. § 300aa-
10 et seq. (2012 ed.). Hereinafter, for ease of citation, all "§" references will be to 42 U.S.C.
(2012 ed.). The statutory provisions defining the Program are also sometimes referred to as the
“Vaccine Act.”
1
 I
BACKGROUND LAW CONCERNING ATTORNEYS’ FEES AND COSTS AWARDS
A. General
Special masters have the authority to award “reasonable” attorneys' fees and litigation
costs in Vaccine Act cases. §300aa–15(e)(1). This is true even when a petitioner is unsuccessful
on the merits of the case -- in such cases, a special master “may” award fees, if the petition was
filed in good faith and with a reasonable basis. Id. (Of course, the statutory use of the term
“may” also means that a special master may also, in his or her discretion, decline to award any
attorneys’ fees or costs to a petitioner whose case is unsuccessful on the merits. Chuisano v.
HHS, 116 Fed. Cl. 276, 284-85 (2014). “The determination of the amount of reasonable
attorneys' fees is within the special master's discretion.” Saxton v. HHS, 3 F.3d 1517, 1520 (Fed.
Cir. 1993); see also Shaw v. HHS, 609 F.3d 1372, 1377 (Fed. Cir. 2010).

Further, as to all aspects of a claim for attorneys' fees and costs, the burden is on the
petitioner to demonstrate that the attorneys' fees claimed are “reasonable.” Sabella v. HHS, 86
Fed. Cl. 201, 215 (2009); Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); Rupert v. HHS, 52
Fed. Cl. 684, 686 (2002); Wilcox v. HHS, No. 90–991V, 1997 WL 101572, at *4 (Fed. Cl. Spec.
Mstr. Feb. 14, 1997). The petitioner's burden of proof to demonstrate “reasonableness” applies
equally to costs as well as attorneys' fees. Perreira v. HHS, 27 Fed. Cl. 29, 34 (1992), aff'd, 33
F.3d 1375 (Fed. Cir. 1994).

One test of the “reasonableness” of a fee or cost item is whether a hypothetical petitioner,
who had to use his own resources to pay his attorney for Vaccine Act representation, would be
willing to pay for such expenditure. Riggins v. HHS, No. 99–382V, 2009 WL 3319818, at *3
(Fed. Cl. Spec. Mstr. June 15, 2009), aff'd by unpublished order (Fed. Cl. Dec. 10, 2009), aff’d,
406 Fed. App’x 479 (Fed. Cir. 2011); Sabella v. HHS, No. 02–1627V, 2008 WL 4426040, at *28
(Fed. Cl. Spec. Mstr. Aug. 29, 2008), aff'd in part and rev'd in part, 86 Fed. Cl. 201 (2009). In
this regard, the United States Court of Appeals for the Federal Circuit has noted that:

[i]n the private sector, ‘billing judgment’ is an important component in fee setting. It is
no less important here. Hours that are not properly billed to one's client also are not
properly billed to one's adversary pursuant to statutory authority.

Saxton, 3 F.3d at 1521 (emphasis in original) (quoting Hensley, 461 U.S. at 433–34). Therefore,
in assessing the number of hours reasonably expended by an attorney, the court must exclude
those “hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private
practice ethically is obligated to exclude such hours from his fee submission.” Hensley, 461 U.S.
at 434; see also Riggins, 2009 WL 3319818, at *4.

The U.S. Court of Appeals for the Federal Circuit has also made clear that special
masters may rely on their prior experience in making reasonable fee determinations, without
conducting a line-by-line analysis of the fee bill, and are not required to rely on specific
objections raised by respondent. See Saxton, 3 F.3d at 1521; Sabella, 86 Fed. Cl. 201, 209
(2009); see also Wasson v. HHS, 24 Cl. Ct. 482, 484, 486 (1991), aff’d, 988 F.2d 131 (Fed. Cir.

2
1993) (holding that, in determining a reasonable number of hours expended in any given case, a
special master may rely on her experience with the Vaccine Act and its attorneys, without basing
her decision on a line-by-line examination of the fee application). A unanimous Supreme Court
has articulated a similar holding:

We emphasize, as we have before, that the determination of fees “should not result in a
second major litigation.” The fee applicant (whether a plaintiff or a defendant) must, of
course, submit appropriate documentation to meet “the burden of establishing entitlement
to an award.” But trial courts need not, and indeed should not, become green-eyeshade
accountants. The essential goal in shifting fees (to either party) is to do rough justice, not
to achieve auditing perfection. So trial courts may take into account their overall sense of
a suit, and may use estimates in calculating and allocating an attorney’s time. And
appellate courts must give substantial deference to these determinations, in light of “the
district court’s superior understanding of the litigation.” We can hardly think of a sphere
of judicial decisionmaking in which appellate micromanagement has less to recommend
it.

Fox v. Vice, 563 U.S. 826, 838 (2011) (internal citations omitted).

B. Reasonable basis
As noted above, even if a petitioner is unsuccessful in obtaining Vaccine Act
compensation for an injury, a special master “may” award fees and costs. (§300aa–15(e)(1).) Of
course, as recently noted by Chief Judge Campbell-Smith, the statutory use of the term “may”
means that a special master can also, in his or her discretion, decline to award any attorneys’ fees
or costs to a petitioner whose case is unsuccessful on the merits, if the special master does not
find that an award is deserved under all the circumstances. Chuisano v. HHS, 116 Fed. Cl. 276,
285-286 (2014). In practice, special masters have generally awarded fees, or declined to do so,
based upon whether there was a “reasonable basis” for the claim advanced by the petitioners.
The statute and legislative history afford no guidance as to the precise meaning of
“reasonable basis,” and the case law is relatively scant. The Chief Judge of this Court has
explained that not all claims should be found to have a reasonable basis, and that whether a
reasonable basis exists is determined by the “totality of the circumstances.” Chuisano v. HHS,
116 Fed. Cl. at 285-286. A special master has “discretion” in determining whether a reasonable
basis existed. Murphy v. HHS, 30 Fed. Cl. 60, 61 (1993), aff’d without opinion, 48 F.3d 1236
(1995) (judge affirmed a denial of reasonable basis, noting that the determination concerning
reasonable basis is reviewed under an “abuse of discretion” standard). In other cases in which,
as in Murphy, a judge affirmed a denial of reasonable basis, the court remarked that the special
master’s discretion is “wide” (Perreira v. HHS, 27 Fed. Cl. 29, 34 (1992)), and “very broad”
(Silva v. HHS, 108 Fed. Cl. 401, 405 (2012)). In fact, in Silva, the court remarked that it is
“difficult to imagine a broader grant of authority and discretion.” 108 Fed. Cl. at 405.
In a significant number of Vaccine Act cases, special masters have found that no
reasonable basis existed either to file the case, or to prosecute it beyond a certain point. In
almost all of those instances, the petitioner either did not seek review, or the special master’s
finding concerning reasonable basis was upheld on review. See, e.g., Somosot v. HHS, No. 13-
710V, 2014 WL 6536059 (Fed. Cl. Spec. Mstr. Oct. 31, 2014), aff’d, 120 Fed. Cl. 716 (2015);

3
Chuisano v. HHS, No. 07-452V, 2013 WL 6234660 (Fed. Cl. Spec. Mstr. Oct. 25, 2013), aff’d,
116 Fed. Cl. 276 (2014); Cortez v. HHS, No. 09-176V, 2014 WL 1604002 (Fed. Cl. Spec. Mstr.
Mar. 26, 2014); Silva v. HHS, No. 10-101V, 2012 WL 2890452 (Fed. Cl. Spec. Mstr. June 22,
2012), aff’d, 108 Fed. Cl. 401 (2012); Browning v. HHS, No. 07-453V, 2010 WL 4359237 (Fed.
Cl. Spec. Mstr. Sept. 27, 2010); Brown v. HHS, No. 99-539V, 2005 WL 1026713 (Fed. Cl. Spec.
Mstr. Mar. 11, 2005); Smith v. HHS, No. 91-057V, 1992 WL 210999 (Cl. Ct. Spec. Mstr. Aug.
13, 1992); Livingston v HHS, No. 12-268V, 2015 WL 4397705 (Fed. Cl. Spec. Mstr. June 26,
2015); Rydzewski v. HHS, No. 99-571V, 2008 WL 382930 (Fed. Cl. Spec. Mstr. Jan. 29, 2008);
McCabe v. HHS, No. 91-1540V, 1993 WL 135860 (Fed. Cl. Spec. Mstr. Apr. 15, 1993); Stevens
v. HHS, No. 90-221V, 1992 WL 159520 (Cl. Ct. Spec. Mstr. June 9, 1992), aff’d, 996 F.2d 1236
(Fed. Cir. 1993)(unpublished); Dews v. HHS, No. 13-569V, 2015 WL 1779148 (Fed. Cl. Spec.
Mstr. Mar. 30, 2015) (finding no reasonable basis in a case in which Ms. Sharp was counsel).
One key opinion of the United States Court of Appeals for the Federal Circuit, discussing
the “reasonable basis” requirement in a Vaccine Act case, is Perreira v. HHS, 33 F. 3d 1375
(Fed. Cir. 1994). In Perreira, the special master concluded that the petitioners had a reasonable
basis for initially filing the petition and for the first part of their prosecution of the case, but
concluded that there was no reasonable basis for pursuing the case beyond the point when the
Perreiras submitted an expert report, at which time the Perreiras’ attorneys should have realized
that their expert’s theory was plainly deficient to demonstrate causation. 33 F.3d at 1376. The
special master denied fees and costs for work performed after that point, in taking the case to an
evidentiary hearing. Id. Both the Court of Federal Claims (27 Fed. Cl. 29 (1992)), and the
Federal Circuit (33 F.3d at 1376-77) affirmed.
The Court of Federal Claims judge rejected the Perreiras’ argument that they
automatically passed the “reasonable basis” test because they were relying on an expert’s report,
finding that argument to be “unreasonable.” 27 Fed. Cl. at 33-34. The judge found that under all
the circumstances of the case, for the petitioners to take the case to an evidentiary hearing “with
no support in the contemporaneous medical records,” and with no “reputable medical opinion or
scientific studies” (emphasis added) was also “unreasonable.” Id. at 34.
The Federal Circuit agreed with the court below, observing that “counsel’s duty to
zealously represent their client does not relieve them of their duty to the court to avoid frivolous
litigation.” 33 F.3d. at 1377. The appellate court added that Congress did not intend that every
claimant qualify for an attorneys’ fee award “by merely having an expert state an unsupported
opinion that the vaccine was the cause in-fact of the injury.” Id. The court concluded that the
special master did not err in determining that the Perreiras “no longer had a reasonable basis for
claiming causation in-fact” after their expert report was filed. Id.

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 II
BACKGROUND: THE OMNIBUS AUTISM PROCEEDING (“OAP”)
This case is one of more than 5,400 cases filed under the Program in which petitioners
alleged that conditions known as “autism” or “autism spectrum disorders” (“ASD”)2 were caused
by one or more vaccinations. A special proceeding known as the Omnibus Autism Proceeding
(“OAP”) was developed to manage these cases within the Office of Special Masters (“OSM”).3
A detailed history of the controversy regarding vaccines and autism, along with a history of the
development of the OAP, was set forth in the six entitlement decisions issued as “test cases” for
two theories of causation litigated in the OAP (see cases cited below), and will only be
summarized here.
A group called the Petitioners’ Steering Committee (“PSC”) was formed in 2002 by the
many attorneys who represented Vaccine Act petitioners who raised autism-related claims.
About 180 attorneys participated in the PSC. Their responsibility was to develop any available
evidence indicating that vaccines could contribute to causing autism, and eventually present that
evidence in a series of “test cases,” exploring the issue of whether vaccines could cause autism,
and, if so, in what circumstances. Ultimately, the PSC selected groups of attorneys to present
evidence in two different sets of “test cases” during many weeks of trial in 2007 and 2008. In
the six test cases, the PSC presented two separate theories concerning the causation of ASDs.
The first theory alleged that the measles portion of the measles, mumps, rubella (“MMR”)
vaccine could cause ASDs. That theory was presented in three separate Program test cases
during several weeks of trial in 2007. The second theory alleged that the mercury contained in
thimerosal-containing vaccines could directly affect an infant’s brain, thereby substantially
contributing to the causation of ASD. That theory was presented in three additional test cases
during several weeks of trial in 2008.
Decisions in each of the three test cases pertaining to the PSC’s first theory rejected the
petitioners’ causation theories. Cedillo v. HHS, No. 98-916V, 2009 WL 331968 (Fed. Cl. Spec.
Mstr. Feb. 12, 2009) aff’d, 89 Fed. Cl. 158 (2009), aff’d, 617 F.3d 1328 (Fed. Cir. 2010);
Hazlehurst v. HHS, No. 03-654V, 2009 WL 332306 (Fed. Cl. Spec. Mstr. Feb. 12, 2009), aff’d

2
“Autism Spectrum Disorder” is a general classification which as of 2010 included five
different specific disorders: Autistic Disorder, Childhood Disintegrative Disorder, Asperger’s
Syndrome, Rett Syndrome, and Pervasive Developmental Disorder Not Otherwise Specified
(PDD-NOS). King v. HHS, No. 03-584V, 2009 WL 892296 at *5 (Fed. Cl. Spec. Mstr. Feb. 12,
2010). The term “autism” is often utilized to encompass all of the types of disorders falling
within the autism spectrum. (Id.) I recognize that since the OAP test cases, the consensus
description of ASDs, contained now in the “DSM-V” as opposed to the prior “DSM-IV,” revises
the prior subcategories of ASD set forth in the first sentence of this footnote. However, the
DSM-V retains the same general description of ASDs. An ASD is a serious form of
neurodevelopmental disorder defined by a collection of symptoms and behaviors, including
significant impairment of social interaction and language skills, and the presence of repetitive,
stereotyped interests. E.g., Snyder v. HHS, No. 01-162V, 2009 WL 332044, at *31 (Fed. Cl.
Spec. Mstr. Feb. 12, 2009).
3
See Autism General Order No. 1, 2002 WL 31696785 (Fed. Cl. Spec. Mstr. July 3, 2002).
5
88 Fed. Cl. 473 (2009), aff’d, 604 F.3d 1343 (Fed. Cir. 2010); Snyder v. HHS, No. 01-162V,
2009 WL 332044 (Fed. Cl. Spec. Mstr. Feb. 12, 2009), aff’d, 88 Fed. Cl. 706 (2009).4 Decisions
in each of the three “test cases” pertaining to the PSC’s second theory also rejected the
petitioners’ causation theories, and the petitioners in each of those three cases chose not to
appeal. Dwyer v. HHS, No. 03-1202V, 2010 WL 892250 (Fed. Cl. Spec. Mstr. Mar. 12, 2010);
King v. HHS, No. 03-584V, 2010 WL 892296 (Fed. Cl. Spec. Mstr. Mar 12, 2010); Mead v.
HHS, No. 03-215V, 2010 WL 892248 (Fed. Cl. Spec. Mstr. Mar. 12, 2010).
The “test case” decisions were comprehensive, analyzing in detail all of the evidence
presented on both sides. The three test case decisions concerning the PSC’s first theory
(concerning the MMR vaccine) totaled more than 600 pages of detailed analysis, and were
solidly affirmed in many more pages of analysis in three different rulings by three different
judges of the United States Court of Federal Claims, and in two rulings by two separate panels of
the United States Court of Appeals for the Federal Circuit. The three decisions by special
masters concerning the PSC’s second theory (concerning vaccinations containing the mercury-
based preservative “thimerosal”) were similarly comprehensive.
All told, the 11 lengthy written rulings by the special masters, the judges of the U.S.
Court of Federal Claims, and the panels of the U.S. Court of Appeals for the Federal Circuit
unanimously rejected the petitioners’ claims, finding no persuasive evidence that either the
MMR vaccine or thimerosal-containing vaccines could contribute in any way to the causation of
autism.
Thus, the proceedings in the six “test cases” concluded in 2010. Thereafter, the
Petitioners in this case, and the petitioners in other cases within the OAP, were instructed to
decide how to proceed with their own claims. The vast majority of those autism petitioners
elected either to withdraw their claims, or to request that the special master file a decision
denying their claim on the written record, resulting in a decision rejecting the petitioner’s claim
for lack of support. However, a small minority of the autism petitioners have elected to continue
to pursue their cases, seeking other causation theories and/or other expert witnesses. A number
of such cases have gone to trial before a special master, and in the cases of this type decided thus
far, all have resulted in rejection of petitioners’ claims that vaccines played a role in causing
their child’s autism. See, e.g., Henderson v. HHS, No. 09-616V, 2012 WL 5194060 (Fed. Cl.
Spec. Mstr. Vowell Sept. 28, 2012) (autism not caused by pneumococcal vaccination); Franklin
v. HHS, No. 99-855V, 2013 WL 3755954 (Fed. Cl. Spec. Mstr. Hastings May 16, 2013) (MMR
and other vaccines found not to contribute to autism); Coombs v. HHS, No. 08-818V, 2014 WL
1677584 (Fed. Cl. Spec. Mstr. Hastings Apr. 8, 2014) (autism not caused by MMR or Varivax
vaccines); Long v. HHS, No. 08-792V, 2015 WL 1011740 (Fed. Cl. Spec. Mstr. Hastings Feb.
19, 2015) (autism not caused by influenza vaccine); Brook v. HHS, No. 04-405V, 2015 WL
3799646 (Fed. Cl. Spec. Mstr. Hastings May 14, 2015) (autism not caused by MMR or Varivax
vaccines); Holt v. HHS, No. 05-136V, 2015 WL 4381588 (Fed. Cl. Spec. Mstr. Vowell June 24,
2015) (autism not caused by hepatitis B vaccine); Lehner v. HHS, No. 08-554V, 2015 WL
5443461 (Fed. Cl. Spec. Mstr. Vowell July 22, 2015) (autism not caused by influenza vaccine);
Miller v. HHS, No. 02-235V, 2015 WL 5456093 (Fed. Cl. Spec. Mstr. Vowell August 18, 2015)
(ASD not caused by combination of vaccines); Allen v HHS, No. 02-1237V, 2015 WL 6160215

4
The petitioners in Snyder did not appeal the decision of the U.S. Court of Federal Claims.
6
(Fed. Cl. Spec. Mstr. Vowell Sept. 26, 2015) (autism not caused by MMR vaccination); R.K. v.
HHS, No. 03-632V, 2015 WL 10936124 (Fed. Cl. Spec. Mstr. Vowell Sept. 28, 2015), aff’d, 125
Fed. Cl. 57 (2016) (autism not caused by influenza vaccine); Hardy v. HHS, No. 08-108V, 2015
WL 7732603 (Fed. Cl. Spec. Mstr. Hastings Nov. 3, 2015) (autism not caused by several
vaccines); Sturdivant v. HHS, No. 07-788V, 2016 WL 552529 (Fed. Cl. Spec. Mstr. Hastings
Jan. 21, 2016) (autism not caused by Hib and Prevnar vaccines); R.V. v. HHS, No. 08-504V,
2016 WL 3882519 (Fed. Cl. Spec. Mstr. Corcoran Feb. 19, 2016) (autism not caused by
influenza vaccine), aff’d, 2016 WL 3647786 (Fed. Cl. June 2, 2016); Murphy v. HHS, No. 05-
1063V, 2016 WL 3034047 (Fed. Cl. Spec. Mstr. Corcoran April 25, 2016) (autism not caused by
DTaP or MMR vaccines), aff’d, (Aug. 15, 2016) (not yet published); Cunningham v. HHS, No.
13-483V (Fed. Cl. Spec. Mstr. Hastings Aug. 1, 2016) (not yet published).
In addition, some autism causation claims have been rejected without trial, at times over
the petitioner’s objection, in light of the failure of the petitioner to file plausible proof of
vaccine-causation. See, e.g., Waddell v. HHS, No. 10-316V, 2012 WL 4829291 (Fed. Cl. Spec.
Mstr. Campbell-Smith Sept. 19, 2012) (autism not caused by MMR vaccination); Fester v. HHS,
No. 10-243V, 2016 WL 1745436 (Fed. Cl. Spec. Mstr. Dorsey April 7, 2016) (autism not caused
by measles, mumps, rubella, and varicella (MMRV) vaccine); Fresco v. HHS, No. 06-469V,
2013 WL 364723 (Fed. Cl. Spec. Mstr. Vowell Jan. 7, 2013) (autism not caused by multiple
vaccines); Fesanco v. HHS, No. 02-1770, 2010 WL 4955721 (Fed. Cl. Spec. Mstr. Hastings
Nov. 9, 2010) (autism not caused by multiple vaccines); Miller v. HHS, No. 06-753V, 2012 WL
12507077 (Fed. Cl. Spec. Mstr. Hastings Sept. 25, 2012) (autism not caused by DTaP or MMR
vaccines); Blake v. HHS, No. 03-31V, 2014 WL 2769979 (Fed. Cl. Spec. Mstr. Vowell May 21,
2014) (autism not caused by MMR vaccination); Pietrucha v. HHS, No. 00-269V, 2014 WL
4538058 (Fed. Cl. Spec. Mstr. Hastings Aug. 22, 2014) (autism not caused by multiple
vaccines); Bushnell v. HHS, No. 02-1648, 2015 WL 4099824 (Fed. Cl. Spec. Mstr. Hastings June
12, 2015) (autism not caused by multiple vaccines); Bokmuller v. HHS, No. 08-573, 2015 WL
4467162 (Fed. Cl. Spec. Mstr. Hastings June 26, 2015) (autism not caused by multiple vaccines);
Canuto v. HHS, No. 04-1128, 2015 WL 9854939 (Fed. Cl. Spec. Mstr. Hastings Dec. 18, 2015)
(autism not caused by DTP and DTaP vaccines); Valle v. HHS, No. 02-220V, 2016 WL 2604782
(Fed. Cl. Spec. Mstr. Hastings April 13, 2016) (autism not caused by DTaP vaccine); Hooker v.
HHS, 02-472V, 2016 WL 3456435 (Fed. Cl. Spec. Mstr. Hastings May 19, 2016) (autism not
caused by multiple vaccines). Judges of this court have affirmed the practice of dismissal
without trial in such cases. E.g., Fesanco v. HHS, 99 Fed. Cl. 28 (2011) (Judge Braden
affirming); Canuto v. HHS, No. 04-1128V, 2016 WL 2586510 (Fed. Cl. Apr. 18, 2016) (Judge
Yock affirming).
In none of the rulings since the test cases has a special master or judge found any merit in
an allegation that any vaccine can contribute to causing autism.5

5
I am well aware, of course, that during the years since the “test cases” were decided, in
two cases involving vaccinees suffering from ASDs, Vaccine Act compensation was granted.
But in neither of those cases did the Respondent concede, nor did a special master find, that there
was any “causation-in-fact” connection between a vaccination and the vaccinee’s ASD. Instead,
in both cases it was conceded or found that the vaccinee displayed the symptoms of a Table
Injury within the Table time frame after vaccination. (See §300aa-11(c)(1)(C)(i); §300aa-14.)
7
 III

PROCEDURAL BACKGROUND
Petitioners Safia Weged and Hussein Hashi (“Petitioners”), on April 22, 2008, filed the
“short-form petition” authorized by the Autism General Order No. 1, 2002 WL 31696785 (Fed.
Cl. Spec. Mstr. July 3, 2002), for compensation under the National Vaccine Injury Compensation
Program, on behalf of their minor daughter, S.H.6 By filing the short-form petition, Petitioners
joined the Omnibus Autism Proceeding (“OAP”), thereby asserting that S.H. has an autism
spectrum disorder (“ASD”) and that one or more vaccines had caused her condition. Petitioners
did not file any medical records or details regarding S.H.’s injuries with the short-form petition.
The case was assigned to Special Master Gary Golkiewicz.
On April 28, 2008, the special master ordered Petitioners to complete their petition by
filing the statutorily-required medical records concerning S.H., and a “Statement Regarding
Onset,” clearly detailing S.H.’s first symptom or manifestation of onset or significant
aggravation of her injury. (ECF No. 5.) Respondent filed Respondent’s “Rule 4(c) report” on

In Poling v. HHS, the presiding special master clarified that the family was compensated
because the Respondent conceded that the Poling child had suffered a Table Injury--not because
the Respondent or the special master had concluded that any vaccination had contributed to
causing or aggravating the child’s ASD. See Poling v. HHS, No. 02-1466V, 2011 WL 678559, at
*1 (Fed. Cir Spec. Mstr. Jan. 28, 2011) (a fees decision, but noting specifically that the case was
compensated as a Table Injury).

Second, in Wright v. HHS, No. 12-423, 2015 WL 6665600 (Fed. Cl. Spec. Mstr. Sept. 21,
2015), Special Master Vowell concluded that a child, later diagnosed with ASD, suffered a
“Table Injury” after a vaccination. However, she stressed that she was not finding that the
vaccinee’s ASD in that case was “caused-in-fact” by the vaccination--to the contrary, she
specifically found that the evidence in that case did not support a “causation-in-fact” claim,
going so far as to remark that the petitioners’ “causation-in-fact” theory in that case was
“absurd.” Wright v. HHS, No. 12-423, 2015 WL 6665600, at *2 (Fed. Cl. Spec. Mstr. Sept. 21,
2015).

The compensation of these two cases, thus, does not afford any support to the notion that
vaccinations can contribute to the causation of autism. In setting up the Vaccine Act
compensation system, Congress forthrightly acknowledged that the Table Injury presumptions
would result in compensation for some injuries that were not, in fact, truly vaccine-caused. H.R.
Rept. No. 99-908, 18, 1986 U.S.C.C.A.N. 6344, 6359. (“The Committee recognizes that there is
public debate over the incidence of illnesses that coincidentally occur within a short time of
vaccination. The Committee further recognizes that the deeming of a vaccine-relatedness
adopted here may provide compensation to some children whose illness is not, in fact, vaccine-
related.”)
6
On April 22, 2008, Petitioners also filed a petition on behalf of their older daughter, O.H.
(No. 08-308).
8
May 20, 2008, noting that Petitioners had yet to file any evidence, so that Respondent could not
assess the merits of the claim without the medical records. (ECF No. 9, p. 4.) On September 24,
2010, the special master issued an Order reprimanding Petitioners for failing to file the required
evidence in support of their claims. After 2½ years of inactivity, on October 25, 2010,
Petitioners filed 17 exhibits of medical records, but did not submit a “Statement Regarding
Onset.”
By that time, the OAP “test cases,” and the appeals thereof, as described in Section II of
this Decision above, had concluded. On January 25, 2011, in view of the test case findings of
insufficient evidence linking vaccines and autism, Petitioners were ordered to inform the court
whether or not they wished to proceed with their claim, or if they wished to exit the Vaccine
Program. (ECF No. 20.) Petitioners indicated their intent to proceed, and filed an Amended
Petition (“Am. Pet.”) on June 29, 2011, alleging that one or more of a series of vaccinations that
S.H. had received from 2002 to 2007 “caused or exacerbated progressive encephalopathy with
autistic features.” (Am. Pet., ECF No. 29, pp. 1-2.)
This case was reassigned to Special Master Denise Vowell on July 1, 2011. During a
status conference held on July 20, 2011, she advised Petitioners’ counsel that this claim appeared
to have been filed outside the Vaccine Act’s 36-month statute of limitations. (Order, ECF No.
33, p. 2.)
Between October 2011 and April 2012, Petitioners filed additional exhibits detailing
S.H.’s health from birth through early childhood.
On April 11, 2012, Respondent moved to dismiss Petitioners’ claim, asserting that the
Petition was filed after the expiration of the Vaccine Act’s statute of limitations period.
(Respondent’s Motion to Dismiss, pp. 1, 4–5.) Respondent argued that the first symptoms of
S.H.’s autism spectrum disorder (ASD) occurred before the time of her second birthday on
November 2, 2004, meaning that the petition was filed more than 36 months after the first
symptoms of S.H.’s ASD appeared. (Id., pp. 2–3, 5.)
On July 16, 2012, Petitioners filed an opposition to Respondent’s motion to dismiss
(“Pet. Opposition”). Petitioners now asserted a new, additional theory of causation, that
unspecified vaccinations received by S.H. in 2006 and 2007 “significantly aggravated” S.H.’s
pre-existing mitochondrial disorder, and therefore the petition filed on April 22, 2008, was filed
within the statute of limitations period as to their new “significant aggravation” claim. (Pet.
Opposition, pp. 2, 5.) Subsequently, on September 25, 2013, Petitioners filed a Second
Amended Petition, specifying that vaccinations received on January 8, 2007, prompted the
alleged aggravation. (ECF No. 61-1, p. 2.)
On August 26, 2013, Special Master Vowell dismissed Petitioners’ claim that the initial
onset of S.H.’s autism was vaccine-caused, as untimely filed. Hashi v. HHS, No. 08-307V, 2013
WL 10543716 (Fed. Cl. Spec. Mstr. Aug. 26, 2013). However, Petitioners’ “significant
aggravation” claim remained unresolved. On September 18, 2014, Special Master Vowell
convened a hearing to consider testimony in support of Petitioners’ significant aggravation
claim. On June 1, 2015, she filed a “Ruling on Facts Regarding Significant Aggravation Claim.”
Hashi v. HHS, No. 08-307V, 2015 WL 4626089 (Fed. Cl. Spec. Mstr. June 1, 2015). In that
ruling, the special master rejected the Petitioners’ contention that the symptoms of S.H.’s

9
neurodevelopmental disorder worsened significantly in the months following her January 2007
vaccination. Id. at *14.
On August 6, 2015, Special Master Vowell issued a dismissal of this case, due to
Petitioners’ failure to comply with court orders. Hashi v. HHS, No. 08-307V, 2015 WL
10458832 (Fed. Cl. Spec. Mstr. Aug. 6, 2015).
This case was reassigned to my docket on August 10, 2015, due to the imminent
retirement of Special Master Vowell. (ECF No. 96.) Petitioners filed a Motion to Vacate Special
Master Vowell’s dismissal decision, on August 18, 2015. (ECF No. 98.) On August 20, 2015, I
filed an Order denying Petitioners’ Motion to Vacate. (ECF No. 99.) Judgment entered on
September 9, 2015, dismissing the petition. (ECF No. 100.)
Petitioners filed a “Petition for Fees and Costs” on February 21, 2016. (ECF. No. 102.)
Respondent filed a Response on March 7, 2016. (ECF. No. 103.) Petitioners did not initially file
a reply to Respondent’s Response, but on June 29, 2016, they filed a motion seeking to file a late
reply. I granted the request. After obtaining another extension, they filed a reply on August 5,
2016. (ECF No. 110.)

IV
DISCUSSION OF “REASONABLE BASIS” ISSUE
A. Introduction
As noted above, Petitioners filed an application for attorneys’ fees and costs
(“Application”) in this case on February 21, 2016, and Respondent filed an opposition
(“Opposition”) to that motion on March 7, 2016. In that Opposition, Respondent argued in detail
that I should deny any award for attorneys’ fees and costs in this case, on the ground that there
was no “reasonable basis” for filing this case. (Opposition, pp. 4-11.) Respondent further argued
that even if I find a reasonable basis for filing the case, I should nevertheless conclude that there
was no reasonable basis for continuing to pursue the case past June of 2011. (Opposition, p. 11.)
In the following pages I conclude, considering the overall record of this case and the
course of the OAP, that there was a reasonable basis for filing the petition and pursuing it
somewhat past the point where the OAP “test cases” (see Section II of this Decision above)
became final, but that at a certain point there was no longer a reasonable basis to continue
pursuing this claim. Accordingly, I will award no fees and costs incurred beyond that point.
B. There was a reasonable basis to file this case, and to pursue the case until it became clear
that Petitioners’ “initial onset” claim was time-barred.
As set forth above in Section II of this Decision, in the early 2000s major controversies
arose as to whether autism spectrum disorders might be caused or otherwise affected by either
MMR vaccines or thimerosal-containing vaccines. Therefore, thousands of parents filed Vaccine
Act claims during the early 2000s alleging that their children’s ASDs were vaccine-caused. I
and other special masters have generally found that those claims were brought in good faith and

10
with a reasonable basis. Further, given the scientific uncertainty at the time, I find that the filing
of this particular petition in 2008, along with thousands like it in the earlier 2000s, was
reasonable. It was further reasonable to keep such claims, including this one, pending until the
OAP “test cases” became final in 2010, and for some reasonable period of time thereafter, in
order for counsel to digest the complicated science, and to consult with qualified experts to see if
a reasonable basis to go forward with the claims could be found.

Accordingly, in this case, I conclude that it was reasonable to file the petition in 2008,
given the fact that the autism “test case” rulings had not yet been issued, and to keep the claim
pending until after the test case rulings became final in late 2010. At that point, however,
Petitioners’ counsel should have carefully studied the test case decisions, along with the medical
records of S.H.’s case, to determine whether there was any feasible chance of demonstrating that
S.H.’s disorder was caused or aggravated by his vaccinations. I consider it a close question
whether there remained any reasonable basis for Petitioners to continue their case for more than
a brief time after the test cases became final, a point at which most petitioners in the autism cases
voluntarily ended their pursuit of their Vaccine Act claims.

However, there was another uncertainty in the law at that time, as to the issue of timely
filing of Vaccine Act petitions. The pertinent part of the Vaccine Act’s statute of limitations
states that, in the case of vaccines administered after October 1, 1988, --

[N]o petition may be filed for compensation under the Program for such injury after the
expiration of 36 months after the date of the occurrence of the first symptom or
manifestation of onset or of the significant aggravation of such injury***.

§ 300aa-16(a)(2). In 2010 a panel decision of the Federal Circuit, Cloer v. HHS, 603 F.3d 1341
(Fed. Cir. 2010) (“Cloer I”), raised a question as to when the 36-month limitations period began
to run. That panel decision was reversed in an en banc ruling of that court, Cloer v. HHS, 654 F.
3d 1322, 1324-25 (Fed. Cir. 2011) (“Cloer II”). The Cloer II interpretation became the final,
binding ruling on that legal issue, when the Supreme Court denied certiorari in the case on April
16, 2012, in Cloer v. Sebelius, 132 S. Ct. 1908 (2012).

Therefore, after Cloer I was issued in 2010 until Cloer II became binding law on April
16, 2012, there existed an open question as to whether Petitioners’ “initial onset” claim in this
case was time-barred under §300aa-16(a)(2). I therefore find that it was reasonable for
Petitioners to continue to keep their claim alive through April of 2012.

C. There was no reasonable basis for Petitioners to further pursue their claim after April of
2012.

1. Petitioners’ “initial onset” claim

As explained above, on April 16, 2012, the Supreme Court denied a writ of certiorari in
Cloer v. Sebelius, 132 S. Ct. 1908 (2012). At that point, it became clear that Petitioners’ claim
that vaccinations caused the initial onset of S.H.’s ASD was time-barred. Special Master Vowell
so ruled, in her Ruling filed on August 26, 2013. (2013 WL 10543716.) The special master
examined the medical records and found clear evidence of S.H.’s ASD predating 2005. (Id. at
*7.) Because the petition was not filed until April 22, 2008, that meant that any initial onset
11
allegation of Petitioners (which Special Master Vowell called their “causation in fact claim”),
was time-barred.

Therefore, as I assess the record of this case, there was no reasonable basis for
Petitioners to continue to pursue their case after certiorari was denied in Cloer II after April 16,
2012. As to Petitioners’ “initial onset” claim, it should have been clear to Petitioners’ counsel
after April 16, 2012, from studying S.H.’s medical records, that Petitioners’ “initial onset” claim
was time-barred. As Special Master Vowell later found, S.H.’s medical records show concern
that S.H. was experiencing developmental delay as early as May 15, 2003. (2013 WL 10543716,
at *7.) By September 7, 2004, developmental delay was listed as a “diagnosis,” and S.H.’s
vocabulary was abnormally small. (Id., at *7 and fn. 22.) Further, a number of medical records
indicate that S.H.’s parents became concerned about S.H.’s speech around November 2004. (Id.
at *7.) Thus, it was clear that the initial onset of S.H.’s ASD pre-dated the filing of the petition
in this case on April 22, 2008, by more than 36 months, so that it was not reasonable to further
pursue that claim after April of 2012, requiring Special Master Vowell to file a written ruling on
a point not reasonably in dispute.

2. Petitioners’ alternative “significant aggravation” claim

It was also not reasonable for Petitioners to pursue to an evidentiary hearing their
alternative claim that vaccines administered on January 8, 2007, “significantly aggravated” a
pre-existing mitochondrial disorder, thereby worsening S.H.’s developmental disorder.
Petitioners added that alternative claim in their “Opposition to Respondent’s Motion to Dismiss,”
filed on July 16, 2012, and later clarified that vaccinations administered on January 8, 2007,
caused the aggravation. Once again, however, if Petitioners’ counsel had carefully studied the
medical records, counsel would have noted that the affidavit of S.H.’s father, upon which the
aggravation claim was based, was strongly contradicted by those medical records. Again,
because Petitioners kept pursuing this “aggravation” claim, Special Master Vowell was required
to address it in a written ruling, after hearing oral testimony from S.H.’s father (Mr. Hashi) and
his niece (Ms. Hashi) at an evidentiary hearing. Hashi v. HHS, No 08-307V, 2015 WL 4626089
(Fed. Cl. Spec. Mstr. June 1, 2015).

When Special Master Vowell addressed the issue in her ruling, she firmly concluded that
the affidavits and testimony of S.H.’s father and his niece, on which the Petitioners relied, were
decidedly outweighed by the medical records. (Id. at *7-11, *13-15.) The special master
described in detail how numerous medical records contradicted the allegations of Mr. Hashi and
his niece. (Id.) Special Master Vowell summarized that she “found the contemporaneous
medical records to be more reliable than the testimony of Mr. and Ms. Hashi.” (Id. at *14.) She
noted that Mr. Hashi “merely insisted that all of the medical records that conflicted with his
testimony were inaccurate,” and that Mr. Hashi’s “assertions are not supported anywhere in the
medical records.” (Id.)

Thus, in electing to go forward with Petitioners’ “significant aggravation” theory,
Petitioners’ counsel again ignored the medical records, requiring Special Master Vowell to hold

12
a hearing and write another decision that she should not have had to write. Clearly, there was no
“reasonable basis” to pursue this aggravation claim to a ruling.7

On this point, I stress that I am not concluding that it is always unreasonable in a Vaccine
Act case to pursue a theory in which the petitioners’ factual claims vary from the medical
records. This actually happens frequently in Vaccine Act cases, and in the large majority of such
cases in the past, special masters have found a reasonable basis for contesting such issues at an
evidentiary hearing. In this case, however, the divergence between the Petitioners’ factual
assertions and the facts shown by the medical records was especially great, as Special Master
Vowell explained, and I concur. As Special Master Vowell found, “[t]he conflicts between the
hearing testimony and the medical records are profound.” (2015 WL 4626089 at *13, emphasis
added.) Special Master Vowell concluded that Petitioners’ factual assertions were “not
supported anywhere in the medical records.” (2015 WL 4626089 at *14.) For example, Mr.

7
Other special masters have reached similar conclusions in other Vaccine Act cases. The
adequacy of an attorney’s investigation into the factual basis of a petitioner’s claim has been
found to be key to determining whether reasonable basis existed for a claim. Di Roma v. HHS,
No. 90-3277, 1993 WL 496981, at *2 (Fed. Cl. Spec. Mstr. Nov. 18, 1993) (“Case law teaches us
that basic inquiries are required prior to the filing of any paper under the Act,” citing Lamb v.
HHS, 24 Cl. Ct. 255, 258–59 (1991)). Although in the history of the Vaccine Program special
masters have tended to be generous in finding a reasonable basis to grant fee awards in
unsuccessful cases, that generosity does not extend to situations in which counsel fails to
sufficiently investigate the facts underlying the claim, or persists in litigating a case when the
evidence is clearly insufficient. Riley v. HHS, No. 09–276V, 2011 WL 2036976, at *3 (Fed. Cl.
Spec. Mstr. Apr. 29, 2011); see also Murphy v. HHS, 30 Fed. Cl. 60, 62 (1993) (affirming denial
of attorney’s fees where contemporaneous records provided no basis for alleged injury), aff’d, 48
F.3d 1236 (Fed. Cir. 1995); Di Roma, 1993 WL 496981 at *3 (denying attorney’s fees and costs
where “[m]inimal research and good sense should have indicated that this case had no basis
under the law.”)
Further, special masters have held that the reasonableness of a claim must be re-examined
at various stages of the proceeding. Riley v. HHS, 2011 WL 2036976, at *8 (admonishing
counsel to “ensure that a reasonable basis is present at every stage of the case”) (emphasis in
original). If a petitioner’s efforts to address questions and concerns about a vaccine claim reveal
critical deficiencies, dismissal of the petition may be appropriate, and reasonably incurred
attorneys’ fees and costs, to that point, may be awarded. Stevens v. HHS, No. 90-221V, 1992
WL 159520, at *3 (Cl. Ct. June 9, 1992), aff’d 996 F. 2d 1236 (Fed. Cir. 1993). In addition,
prompt and responsive action by counsel is encouraged in Program proceedings once a claim’s
serious shortcomings have been identified and the reasonableness of maintaining the claim is
called into question. Compare Riley, 2011 WL 2036976, at *7-8 (awarding fees when counsel
acted quickly in winding down a case after recognizing that it was no longer reasonable to
continue), and Turner v. HHS, No. 99-544V, 2007 WL 4410030, at *10 (Fed. Cl. Spec. Mstr.
Nov. 30, 2007) (awarding partial fees when counsel promptly moved for judgment on the record
upon recognizing the deficiencies in the claim), with Stevens, 1992 WL 159520, at *3-4 (denying
fees when petitioners’ counsel “failed to react” to the ample notice provided of the factual
shortcomings of the case).

13
Hashi filed an affidavit stating that following S.H.’s vaccinations on January 8, 2007, S.H. “cried
inconsolably,” had a “high fever,” “could not look at [him],” “could not communicate,” “was
going in circles,” and “became like a robot in her speech.” (ECF No. 59-1.) The medical
records, in contrast, show that S.H. did not return to her pediatrician until March 23, 2007 (for
sinusitis), and that her parents at that visit “did not express any concerns about a vaccine
reaction, regression, or behavioral changes.” (2015 WL 4626089 at *7; Ex. 11, pp. 7-9.) The
special master noted that Mr. Hashi, quite unbelievably, “merely insisted that all of the medical
records that conflicted with his testimony were inaccurate.” (Id. at *14.)

Further, the circumstances in which Petitioners’ “significant aggravation” contention
arose in this case are telling. As explained above, until 2012 Petitioners’ sole contention in this
case had been that vaccinations caused the “initial onset” of S.H.’s disorder. However, in April
of 2012 Respondent pointed out that that claim was untimely filed. Soon thereafter Petitioners
advanced, for the first time, their “significant aggravation” claim, pointing to an alleged
aggravation after January 2007 vaccinations, which new claim would not be time-barred. In my
view, it was unreasonable for Petitioners to advance a new claim, which was plainly contradicted
by the medical records, merely to avoid immediate dismissal of this case as untimely filed.

Accordingly, I find that this is the relatively unusual case in which the Petitioners have
advanced a factual claim, in questionable procedural circumstances (i.e., the pending “untimely
filing” motion), in which their claim differed so “profoundly” from the medical records that it
was simply unreasonable for Petitioners to try to keep their case alive by filing a plainly
nonmeritorious “significant aggravation” claim.

3. Lack of evidence that vaccinations can cause or aggravate ASDs

In Sections IV(C)(1) and (2) of this Decision immediately above, I have explained that
Petitioners’ counsel in this case continued to pursue two virtually hopeless factual scenarios that
were plainly contradicted by the medical records. Further, there is another potential (though
unnecessary for purposes of deciding this case) reason to find that the continued pursuit of this
case past April 2012 was not reasonable. That is, after this case was filed, there occurred the
filing of the autism “test case” decisions described in Section II of this Decision. The six
extremely lengthy special master decisions in those test cases, followed by three rulings of
Judges of this Court plus two unanimous rulings of three-judge panels of the Federal Circuit,
made clear in great detail the complete lack of any persuasive evidence that vaccines can cause
or aggravate ASDs. As noted above, this case was filed prior to the issuance of those decisions,
and thus I am willing to compensate counsel for her initial efforts in this case. But I find it very
questionable whether it was reasonable for counsel to have continued to pursue this case in light
of those rulings. Petitioners’ reply filed on August 5, 2016, fails to point to any significant
evidence in the record of this case to indicate that, even if their claims had been timely filed,
Petitioners had any reasonable argument that any of S.H.’s vaccinations actually caused any
injury to her.

14
D. Summary concerning “reasonable basis”

At the time that this case was filed, there was considerable uncertainty concerning how
claims alleging that vaccines could contribute to the causation of autism would fare in this Court,
so I have concluded that it was reasonable to file this case and to pursue it for a reasonable
amount of time thereafter. However, as I have set forth in the sections of this Decision
immediately above, both of the Petitioners’ causation theories were clearly contradicted by
S.H.’s medical records. In addition, Petitioners’ counsel persisted in pursuing a claim that
vaccines could contribute to the causation or aggravation of autism in the face of the “test case”
decisions concluding to the contrary. Therefore, I conclude that Petitioners’ case ceased to have
a reasonable basis after April 16, 2012, and I will award no fees and costs incurred after that
date.

V
PETITIONERS’ ARGUMENTS
In their reply memorandum filed on August 5, 2016 (“Reply”), Petitioners’ counsel
countered Respondent’s arguments concerning “reasonable basis.” I have carefully considered
Petitioners’ arguments in that regard, and find merit in some of them. I have taken those
arguments into account in reaching my findings concerning “reasonable basis” in Section IV of
this Decision.
For example, Petitioners argue that it was reasonable to originally file the case, and I
agree. Petitioners argue that there was legal uncertainty until 2012 about the timeliness of their
“initial onset” claim, and I agree. As explained above, I find it reasonable for Petitioners to have
pursued that “initial onset” claim until April 16, 2012, when the Supreme Court’s denial of
certiorari confirmed the Federal Circuit’s en banc decision in the Cloer case, thus making it
clear that Petitioners’ petition in this case was filed out-of-time as to their “initial onset” claim.
Accordingly, there certainly was no “reasonable basis” for Petitioners to continue to pursue their
“initial onset” claim after April 16, 2012.
Petitioners also argue that they had a reasonable basis for pursuing their alternative,
“significant aggravation” claim to a decision. However, I cannot agree. As explained above,
when Special Master Vowell closely examined that claim, she found no merit to it, finding that it
was plainly contradicted by S.H.’s medical records. See her “Ruling on Facts Regarding
Significant Aggravation Claim.” Hashi v. HHS, No. 08-307V, 2015 WL 4626089 (Fed. Cl. Spec.
Mstr. June 1, 2015). In that ruling, the special master strongly rejected the Petitioners’
contention that the symptoms of S.H.’s neurodevelopmental disorder worsened significantly in
the months following her January 2007 vaccination. (Id. at *14.)
Specifically, when Special Master Vowell addressed the issue in her ruling, she firmly
concluded that the affidavits and testimony of S.H.’s father and his niece, on which the
Petitioners relied, were decidedly outweighed by the medical records. (Id. at *8 -*15.) The
special master described in detail how numerous medical records contradicted the allegations of
Mr. Hashi and his niece. (Id.) Special Master Vowell summarized that she “found the
contemporaneous medical records to be more reliable than the testimony of Mr. and Ms. Hashi.”
15
(Id. at *14.) She stated that “[t]he conflicts between the hearing testimony and the medical
records are profound.” (Id. at *13, emphasis added.) She noted that Mr. Hashi “merely insisted
that all of the medical records that conflicted with his testimony were inaccurate,” and that Mr.
Hashi’s “assertions are not supported anywhere in the medical records.” (Id.)

Thus, in electing to go forward to an evidentiary hearing concerning Petitioners’
“significant aggravation” theory, Petitioners’ counsel unreasonably ignored the medical records.
Clearly, there was no “reasonable basis” to pursue this aggravation claim to a ruling.
Concerning this point, Petitioners’ counsel points to the fact that Special Master Vowell
“herself agreed to and ordered the hearing.” (Reply, p. 17.) But the fact that Special Master
Vowell agreed to conduct a hearing, requested by Petitioners, concerning Petitioners’
“significant aggravation” claim, does not mean that there was a reasonable basis for Petitioners
to request and pursue that hearing. When a petitioner’s counsel requests a hearing concerning an
issue, representing to the special master that there is a reasonable basis for the petitioner’s
position concerning the issue, the special master usually cannot know ahead of the time of the
hearing whether there is, in fact, a reasonable basis for the claim to be presented at the hearing.
In this case, it was only after studying the medical records at around the time of the hearing, and
comparing those records to the testimony of the Petitioners’ fact witnesses at the hearing, that
Special Master Vowell could make a determination concerning the issue. It was not the special
master, but Petitioners’ counsel, as an officer of the court, who had the duty in this case to
carefully study the medical records, to see to what extent they either corroborated or contradicted
her witnesses’ factual claims, before requesting to take this claim to an evidentiary hearing.
Counsel should have known how thoroughly the records contradicted her clients’ claims.
Counsel should have known that S.H.’s father’s only response to the contradictory records would
be to assert, quite unbelievably, that every one of the records was simply “inaccurate.” In light
of Special Master Vowell’s factual conclusions, and my own examination of the record, which
confirms those conclusions, it is plain to me that Petitioners did not have an objectively
“reasonable basis” to seek the evidentiary hearing on the “significant aggravation” claim.
In other words, I have reached the conclusions concerning “reasonable basis” set forth in
Section IV above, after carefully considering the arguments of Petitioners’ counsel in her reply
memorandum.

VI
NOTATION CONCERNING “REASONABLE BASIS” IN AUTISM CASES IN
GENERAL

As discussed above in Section II of this Decision, in the early 2000s controversies arose
concerning whether autism spectrum disorders might be caused or affected by vaccines. Thus,
thousands of Vaccine Act claims were filed during those years alleging that ASDs were vaccine-
caused. These claims were certainly brought in good faith. Further, in light of the scientific
uncertainty at the time, I find that the filing of those petitions was reasonable. It was also
reasonable to keep such claims pending until the OAP “test cases” became final in 2010, and for

16
some period of time thereafter, in order for counsel for each petitioner to digest the complicated
science, and to consult with experts to see if a reasonable basis to go forward could be found.

However, by the end of 2010, the two major theories concerning vaccine-causation of
autism had been thoroughly considered and rejected in the OAP test cases, with opinions that,
among other things, found that all of the many reputable epidemiological studies had found no
association between any vaccines and autism. At that point, the vast majority of the
approximately 5,000 autism petitioners elected either to withdraw their claims, or to request that
the special master enter a decision denying their claim on the written record. Only a small
minority of the autism petitioners elected to continue to pursue their cases, seeking other
causation theories and/or other expert witnesses. Since 2010, a number of such cases have gone
to trial or decisions on the record before special masters, and in the cases of this type decided
thus far, all have resulted in rejection of petitioners’ claims that vaccines played a role in causing
or aggravating their child’s ASD. See the cases cited above in Section II.

There is now, therefore, a serious question concerning whether it is reasonable for
additional Vaccine Act petitioners to continue to pursue highly speculative theories concerning
vaccinees with autism spectrum disorders. In each such case, of course, a case-specific decision
must be made concerning if and when it became unreasonable, under all the circumstances of the
case, to continue to go forward. In many of the cases that have been pursued to a decision since
2010, as in this case, petitioners have tried to avoid the conclusions of the test cases by alleging
that a child suffered a vaccine-caused “encephalopathy” that resulted in “autistic-like features,”
or that a child had an underlying “mitochondrial disorder” that somehow made the child more
vulnerable to injuries by vaccines. But such cases, in essence, have amounted to attempts to
prove that vaccines can cause or aggravate symptoms of ASDs. And, except for the two highly
unusual Table Injury cases described at footnote 5 above, all such theories have been rejected.

Further, a review of the post-test case decisions enumerated in Section II above
demonstrates that those cases typically involved expert witnesses who were quite underqualified
to opine on the vaccine-causation issues at hand, and/or presented theories with no substantial
scientific merit, and/or disregarded the facts contained in the medical records of the case.

Accordingly, I hereby put counsel on notice, once again, especially in autism-related
cases, that if counsel continue to go forward with such extremely weak cases, I am not likely to
find that there was a reasonable basis for their continued prosecution of the case.

VII
CALCULATION OF FEES AND COSTS AWARDED
A. Hourly rates
Attorney Sharp has practiced law since 1989. (Ex. 23, ECF No. 102-2.) In this case, she
generally seeks compensation at hourly rates of $350 for 2008 and 2009, $360 for 2010 and

17
2011, and $370 for 2012.8 I find those rates reasonable. (Ex. 22, ECF 102-1, pp. 1-23.) See
McCulloch v. HHS, No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sep. 1, 2015), at *19.
Ms. Sharp also seeks hourly rates of $120 for paralegal work performed in 2011, and
$125 for paralegal work performed in 2012. (Ex. 22, pp. 16-17, 19.) I find those rates reasonable
as well.

B. Hours compensated
As explained above, I have determined to compensate Ms. Sharp for the hours that she
billed for herself and her paralegal for 2008 through 2011, and for 2012 through April 16. My
analysis of her Ex. 22 indicates that she billed 5.05 hours for 2008 and 2009 (Ex. 22, pp. 1-4),
18.15 hours for 2010 and 2011 (id., pp. 4-19), and 9.2 hours in 2012 prior to April 16 (id., pp.
19-23).

C. Costs
I will compensate Petitioners for the miscellaneous attorney costs, all of which were
incurred before April 2012, a total of $1,809.72. (Ex. 26, ECF No. 102-5.) I will also
compensate Petitioners in the amount of $845 for the services of Dr. Marcel Kinsbourne,
consulted as an expert witness. (ECF Nos. 102, 107.) Further, I will compensate the $359.45 in
costs incurred by Petitioners themselves. (Ex. 27, ECF No. 102-6.)

D. Summary of fees and costs awarded
• Attorney hours 2008-09, 5.05 hours times $350 = $ 1,767.50
• Attorney hours 2010-11, 18.15 hours times $360 = 6,534.00
• Attorney hours 2012, 9.2 hours times $370 = 3,404.00
• Paralegal hours 2011, 0.75 hours times $120 = 90.00
• Paralegal hours 2012, 0.25 hours times $125 = 31.25
• Dr. Kinsbourne = 845.00
• Other attorney’s costs = 1,809.72
Attorney’s fees and costs subtotal $ 14,481.47
_______________________________________________________
• Petitioners’ costs = 359.45
_______________________________________________________
Total award $ 14,840.92

8
For a few isolated time entries, Ms. Sharp listed an hourly rate of $400, without
explanation. For all hours worked in 2008 through 2012, however, I will utilize the hourly rates
set forth above.

18
 VIII
CONCLUSION
For the foregoing reasons, I award Petitioners a total of $14,840.92 in attorneys’ fees and
costs. A check for $359.45 shall be made payable to Petitioners. The other $14,481.47 shall be
paid in the form of a check payable jointly to Petitioners and Petitioners’ counsel. The Clerk of
this Court shall enter judgment accordingly.

/s/ George L. Hastings, Jr.
George L. Hastings, Jr.
Special Master

19