In the United States Court of Federal Claims
No. 17-36V
(Filed: June 4, 2018)
(Reissued for Publication: June 19, 2018) 1
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DAWN E. AMANKWAA and BENJAMIN *
S. EDWARDS, parents and natural guardians *
of BMA, a minor, *
*
Petitioners, * Vaccine Act; Attorneys’ Fees; Reasonable
* Basis for Petitioners’ Claim; Impending
v. * Statutory Limitations Deadline; Simmons
*
SECRETARY OF HEALTH AND HUMAN *
SERVICES, *
*
Respondent. *
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Robert J. Krakow, New York, NY, for petitioners.
Voris E. Johnson, Jr., United States Department of Justice, Washington, DC, for respondent.
OPINION AND ORDER
SWEENEY, Judge
Petitioners Dawn E. Amankwaa and Benjamin S. Edwards seek compensation under the
National Childhood Vaccine Injury Act of 1986 (“Vaccine Act”), 42 U.S.C. §§ 300aa-1 to -34
(2012), alleging that their son, BMA, sustained vaccine-related injuries. After the special master
advised petitioners of his position that there was no reasonable basis for them to proceed with
their claim, their attorney, Robert J. Krakow, filed a motion to withdraw as petitioners’ counsel
of record and a motion for an award of interim attorneys’ fees. Over respondent’s objection, the
special master awarded petitioners interim attorneys’ fees for some of the work performed by
Mr. Krakow. Before the court is respondent’s motion for review of the special master’s decision.
For the reasons set forth below, the court grants respondent’s motion and reverses the special
master’s award of interim attorneys’ fees.
1
Vaccine Rule 18(b), contained in Appendix B of the Rules of the United States Court
of Federal Claims, affords each party fourteen days in which to object to the disclosure of
(1) trade secrets or commercial or financial information that is privileged or confidential or
(2) medical information that would constitute “a clearly unwarranted invasion of privacy.”
Neither party objected to the public disclosure of any information contained in this opinion.
I. BACKGROUND
A. BMA’s Medical History
BMA’s medical history, which is undisputed by the parties, can be briefly summarized. 2
BMA was born on December 31, 2012, and did not display any developmental problems at his
one-year well-child visit on January 10, 2014. During that visit, BMA received measles-mumps-
rubella, varicella, hepatitis A, and influenza vaccines. BMA received a second dose of the
influenza vaccine in February 2014, and four more vaccines in April 2014–diphtheria-tetanus-
acellular pertussis, haemophilus influenzae type b, inactivated polio virus, and pneumococcal
conjugate.
By July 2014, petitioners had begun to express concern regarding BMA’s development to
his pediatric treaters. BMA was referred for an autism evaluation, and in September 2014, he
was recommended to undergo physical and speech therapy.
In February 2015, petitioners brought BMA to his pediatrician to report behavioral issues
that they first observed after BMA fell down a flight of stairs in November 2013. Also in
February 2015, petitioners brought BMA to the emergency room to be evaluated following a
suspected seizure. A brain MRI revealed possible white matter damage that is typical of
demyelination, 3 but a neurodevelopment specialist expressed doubt that BMA suffered from a
demyelinating disease due to his medical history.
Although BMA was treated for his developmental issues and a possible demyelinating
disease through 2015, specialists remained doubtful that BMA suffered from a white matter
demyelinating disease or that BMA’s developmental issues were attributable to a
neurodegenerative disease. Eventually, by the end of 2015, one specialist suggested that in light
2
The court derives most of BMA’s medical history and the case’s procedural history
from the special master’s decision awarding interim attorneys’ fees. See generally Amankwaa v.
Sec’y of HHS, No. 17-36V, 2018 WL 1125853 (Fed. Cl. Spec. Mstr. Jan. 5, 2018). It derives the
remainder of the medical and procedural history from the case’s docket.
3
Demyelination is the “destruction, removal, or loss of the myelin sheath of a nerve or
nerves.” Demyelination, Dorland’s Illustrated Medical Dictionary (32d ed. 2012).
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of petitioners’ report of BMA experiencing facial pain, 4 BMA might have been suffering from
trigeminal neuralgia. 5 BMA was prescribed medication to treat that condition.
In May 2016, BMA had another brain MRI, which revealed no evidence of a
neurovascular conflict and a stable white matter signal. BMA subsequently underwent a surgical
procedure to treat the nerve compression that was likely causing his trigeminal neuralgia.
BMA’s medical records contain no evidence that any of his treaters linked his
vaccinations to his developmental issues or his trigeminal neuralgia. Those records further
reveal that BMA was never diagnosed with a white matter demyelinating disease.
B. Procedural History
Under the Vaccine Act, a petition for compensation for a vaccine-related injury must be
filed within “36 months after the date of the occurrence of the first symptom or manifestation of
onset or of the significant aggravation of such injury.” 42 U.S.C. § 300aa-16(a)(2). According
to his billing records, petitioners’ counsel, Mr. Krakow, began working on this case on
December 30, 2016, nearly three years after BMA received the first of the vaccines at issue. 6 Of
particular note, Mr. Krakow reviewed medical records related to demyelination and asked
petitioners questions concerning dysmyelination on December 31, 2016, 7 and reviewed medical
records related to BMA’s vaccinations, pediatric history, and neurological history on January 1,
2017. Mr. Krakow ultimately filed a petition for compensation on petitioners’ behalf on January
9, 2017, in which petitioners allege that BMA “suffered from a demyelinating brain injury, nerve
damage, trigeminal neuralgia, and other neurological and developmental injuries” as a result of
his January, February, and April 2014 vaccinations. Amankwaa, 2018 WL 1125853, at *1. The
4
Petitioners allege that in the spring and summer of 2014, BMA “began to show
symptoms of discomfort including head pain, which became apparent because [BMA] would
hold his head, rub his eyes and cry.” Pet. ¶ 6. The first report of this facial pain in BMA’s
medical records appears to be in the notes from a March 25, 2015 office visit with a pediatric
neurologist. See Pet’rs’ Ex. 8 at 1 (“There have been episodes where he cries, rubs his eyes and
intermittently holds his head which parents have been interpreting as headaches.”).
5
Trigeminal neuralgia is “severe, episodic pain in the area supplied by the trigeminal
nerve”–i.e., the fifth cranial nerve–“often precipitated by stimulation of well-defined trigger
points.” Trigeminal Neuralgia, Dorland’s Illustrated Medical Dictionary, supra note 3.
6
Although the statute of limitations does not begin to run on the date of vaccination, the
special master explained that “[c]areful [Vaccine] Program counsel often make sure to file a
claim no later than three years from the date of administration of the vaccine at issue, even
though the statute runs from the onset of symptoms (whether or not they are recognized at the
time as such.)[.]” Amankwaa, 2018 WL 1125853, at *3 n.5.
7
In contrast with demyelination, dysmyelination is the “breakdown or defective
formation of a myelin sheath, usually involving biochemical abnormalities.” Dysmyelination,
Dorland’s Illustrated Medical Dictionary, supra note 3.
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following day, Mr. Krakow filed exhibits 1 through 10 in support of the petition. He then filed
additional exhibits–exhibits 11 through 18–in March and April 2017.
After all of the relevant medical records had been filed, respondent filed the report
required by Vaccine Rule 4(c) on August 14, 2017. In that report, respondent remarked that
BMA’s medical records only supported diagnoses of autism spectrum disorder and trigeminal
neuralgia, averred that petitioners had not provided any evidence that those conditions were
caused by BMA’s vaccinations, and disputed that petitioners’ claim had a reasonable basis. One
week later, on August 21, 2017, the special master conducted a telephonic status conference with
the parties during which he “raised questions regarding the overall viability of Petitioners’
claim.” Id. at *3. In particular, he noted that although petitioners “alleged that B.M.A. had
experienced some kind of neurologic injury in connection with the vaccination he had received,
the medical record did not reflect any complaints of such injury before or congruent with the
discovery of B.M.A.’s developmental problems.” Id. He therefore “informed Petitioners and
their counsel that in [his] view the claim lacked reasonable basis going forward.” Id. at *4.
Eventually, in late October 2017, Mr. Krakow filed a motion for interim attorneys’ fees
(“fee application”) and a motion to withdraw as counsel of record. Under the Vaccine Act,
petitioners who fail to establish entitlement to compensation for a vaccine-related injury or death
may still recover attorneys’ fees if the special master “determines that the petition was brought in
good faith and there was a reasonable basis for the claim for which the petition was brought.” 42
U.S.C. § 300aa-15(e). Thus, in his fee application, Mr. Krakow asserted that petitioners had a
reasonable basis to pursue their claim until at least August 21, 2017, when the special master first
questioned the claim’s viability. 8
Although respondent initially did not object to the fee application, he later filed an
amended response in which he argued–based on the decision by the United States Court of
Appeals for the Federal Circuit (“Federal Circuit”) in Simmons v. Secretary of HHS, 875 F.3d
632 (Fed. Cir. 2017)–that petitioners lacked a reasonable basis for their claim, precluding an
award of attorneys’ fees. In Simmons, the Federal Circuit held that “[w]hether there is a looming
statute of limitations deadline . . . has no bearing on whether there is a reasonable factual basis
‘for the claim’ raised in the petition.” Id. at 636. Consequently, respondent argued, the fact that
petitioners were facing the possible expiration of the Vaccine Act’s three-year limitations period
did not provide them with a reasonable basis for their claim.
In his January 5, 2018 decision, the special master concluded that an award of interim
attorneys’ fees was appropriate. In so ruling, the special master distinguished the facts of this
case from those in Simmons and found, upon examining the totality of the circumstances, that
there was a reasonable basis for petitioners’ claim when they filed their petition. The special
master further held that petitioners should have realized that their claim lacked a reasonable basis
soon after they filed their petition, and therefore concluded that their claim lacked a reasonable
basis after January 31, 2017.
8
There is no dispute that petitioners brought their petition in good faith.
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Respondent timely filed a motion for review of the special master’s decision on January
31, 2018, to which petitioners responded on March 2, 2018. The court deems oral argument
unnecessary.
II. DISCUSSION
The United States Court of Federal Claims (“Court of Federal Claims”) has jurisdiction
to review the record of the proceedings before a special master, and upon such review, may:
(A) uphold the findings of fact and conclusions of law of the special master and
sustain the special master’s decision,
(B) set aside any findings of fact or conclusion of law of the special master found
to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law and issue its own findings of fact and conclusions of law, or
(C) remand the petition to the special master for further action in accordance with
the court’s direction.
42 U.S.C. § 300aa-12(e)(2). The standards set forth in § 300aa-12(e)(2)(B) “vary in application
as well as degree of deference. . . . Fact findings are reviewed . . . under the arbitrary and
capricious standard; legal questions under the ‘not in accordance with law’ standard; and
discretionary rulings under the abuse of discretion standard.” Munn v. Sec’y of HHS, 970 F.2d
863, 870 n.10 (Fed. Cir. 1992).
In his motion for review, respondent enumerates a single objection to the special master’s
decision:
The special master erred as a matter of law when he found, in effect, that
petitioners’ claim was supported by a “reasonable basis” solely due to the fact that
it was filed to evade the expiration of the statutory limitations period, in direct
contravention of the Federal Circuit’s recent Opinion in Simmons . . . .
Mot. 1.
A. Legal Standard
As noted above, under the Vaccine Act, petitioners who fail to establish entitlement to
compensation for a vaccine-related injury or death may still recover attorneys’ fees if the special
master “determines that the petition was brought in good faith and there was a reasonable basis
for the claim for which the petition was brought.” 42 U.S.C. § 300aa-15(e). The “good faith”
and “reasonable basis” factors are distinct; the former is subjective while the latter is objective.
Simmons, 875 F.3d at 635.
The determinations of whether a petition is brought in good faith and whether there is a
reasonable basis for the claim set forth in the petition are within the special master’s discretion.
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See Saxton v. Sec’y of HHS, 3 F.3d 1517, 1520 (Fed. Cir. 1993) (“The determination of the
amount of reasonable attorneys’ fees is within the special master’s discretion. If the petition for
compensation is denied, the special master ‘may’ award reasonable fees and costs if the petition
was brought in good faith and upon a reasonable basis; the statute clearly gives him discretion
over whether to make such an award.” (citation omitted)); accord Simmons, 875 F.3d at 636
(concluding that the special master abused her discretion in finding that an “impending statute of
limitations deadline” can be used to establish a reasonable basis for a claim). Thus, the Court of
Federal Claims normally reviews such decisions under the abuse-of-discretion standard. See
Hendler v. United States, 952 F.2d 1364, 1380 (Fed. Cir. 1991) (“An abuse of discretion may be
found when (1) the court’s decision is clearly unreasonable, arbitrary, or fanciful; (2) the
decision is based on an erroneous conclusion of the law; (3) the court’s findings are clearly
erroneous; or (4) the record contains no evidence upon which the court rationally could have
based its decision.”). However, if a party alleges that the special master’s decision conflicts with
binding precedent, then the Court of Federal Claims performs a de novo review under the not-in-
accordance-with-law standard. See Rodriguez v. Sec’y of HHS, 632 F.3d 1381, 1384 (Fed. Cir.
2011) (“‘Not in accordance with the law’ refers to the application of the wrong legal standard,
and the application of the law is reviewed de novo.”).
B. The Special Master Erred in Determining That Petitioners’ Claim Had a Reasonable
Basis
In his memorandum in support of his motion for review, respondent argues that the
special master erred, as a matter of law, in disregarding the ruling in Simmons that “[w]hether
there is a looming statute of limitations deadline . . . has no bearing on whether there is a
reasonable factual basis ‘for the claim’ raised in the petition.” Respondent contends that the
special master used the impending statutory limitations deadline to find that petitioners’ claim
had a reasonable basis, and should have instead “evaluate[d] the record to determine whether it
contained objective evidence supporting the essential elements of petitioners’ claim.” Mem. 9.
Had the special master done so, respondent asserts, he would have found that there was no
reasonable basis for petitioners’ claim because the record lacked any objective evidence that
BMA’s conditions were caused by his vaccinations. Petitioners, for their part, contend that
respondent misinterprets both the Simmons decision and the decision of the special master, but
even if respondent’s interpretation of the Simmons decision is correct, there was a reasonable
basis for their claim “because there is sufficient evidence to support the feasibility of the claim
made in the Petition . . . .” Resp. 10.
1. Simmons
To resolve respondent’s motion for review, the court must first examine the effect that
the Federal Circuit’s decision in Simmons had on how special masters determine whether there is
a reasonable basis for a claim under the Vaccine Act.
Prior to the Simmons decision, the Court of Federal Claims generally endorsed the use of
a totality-of-the-circumstances analysis to determine whether there was a reasonable basis for a
claim. See Cottingham v. Sec’y of HHS, 134 Fed. Cl. 567, 574 (2017). Specifically, special
masters were expected to “consider the circumstances under which the petition is filed, any
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jurisdictional questions, the factual basis and medical support for the petition, and any other legal
issues that may arise.” Id. at 574-75; see also id. at 574 (observing that special masters have the
“discretion to consider multiple potentially relevant circumstances–such as the novelty of the
vaccine, scientific understanding of the vaccine and its potential consequences, the availability of
experts and medical literature, and the time frame counsel has to investigate and prepare the
claim–in assessing whether a Vaccine Act claim has a reasonable basis”). Further, “[t]his totality
of the circumstances assessment [was to] take into account evidence available at the time a claim
is filed and evidence that becomes available as the case progresses.” Id. at 575.
In Simmons, the Federal Circuit concluded that the special master erred in finding that
there was a reasonable basis for the petitioner’s claim. 875 F.3d at 634-36. The petitioner “first
contacted counsel in August 2011, claiming that he developed Guillain-Barre Syndrome (‘GBS’)
as a result of his October 26, 2010 flu vaccination.” Id. at 634. Thereafter, counsel was unable
to reach the petitioner and, consequently, sent the petitioner a letter in March 2013 terminating
the attorney-client relationship. Id. Seven months later, on October 17, 2013, the petitioner
contacted counsel and expressed his interest in pursuing his claim. Id. After speaking with the
petitioner again on October 21, 2013, counsel filed a petition for compensation. Id. The
petition, however, was not filed with “any medical records or other supporting evidence showing
that [the petitioner] had been diagnosed with GBS.” Id. In January 2014, counsel advised the
special master that he had again lost contact with the petitioner and was unable to produce any
medical records, leading to the dismissal of the case for failure to prosecute. Id. Counsel then
sought an award of attorneys’ fees. Id. The special master granted the request upon finding that
the petition had been filed in good faith and that there was a reasonable basis for the petitioner’s
claim. Id. The reasonable-basis finding was based on the following:
[The Petitioner] “provided Counsel with a vaccination receipt”; “after consulting
with Petitioner, Counsel judged the claim potentially meritorious”; and “[w]hile
that alone may not have provided a reasonable basis for filing a claim, Petitioner
then disappeared for almost two years and reemerged less than ten days before the
statute of limitations expired” at which point “[t]o not file a petition . . . would be
tantamount to an ethical violation.”
Id. (quoting Simmons v. Sec’y of HHS, No. 13-825V, 2016 WL 2621070, at *3 (Fed. Cl. Spec.
Mstr. Apr. 14, 2016)).
On review, the Court of Federal Claims reversed the special master’s determination that
there was a reasonable basis for the petitioner’s claim. Id. The petitioner appealed that decision
to the Federal Circuit, arguing that the special master’s decision should be upheld. Id. at 635.
The respondent, on the other hand, argued that the special master’s analysis was
improper because “by considering [the] attorney’s conduct as part of the
reasonable basis assessment, [the special master] folded the subjective good faith
provision into the reasonable basis requirement, and effectively either rendered
the ‘good faith’ language [in § 300aa–15(e)(1)] superfluous, or the ‘reasonable
basis’ language meaningless.” According to the government, “a looming statute
of limitations may excuse an attorney’s ethical duty to investigate a claim prior to
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filing a Vaccine Act petition, but that does not create a reasonable basis for the
claim in the petition.”
Id. (citations omitted). The Federal Circuit “agree[d] with the government’s argument,” holding:
Whether there is a looming statute of limitations deadline . . . has no bearing on
whether there is a reasonable factual basis “for the claim” raised in the petition.
That is an objective inquiry unrelated to counsel’s conduct. Although an
impending statute of limitations deadline may relate to whether “the petition was
brought in good faith” by counsel, the deadline does not provide a reasonable
basis for the merits of the petitioner’s claim.
Id.; accord id. at 636 (“[C]ounsel may not use this impending statute of limitations deadline to
establish a reasonable basis for [the petitioner’s] claim.”). It therefore concluded: “Because the
special master only found that there was a reasonable basis for [the petitioner’s] claim because of
the impending statute of limitations deadline, . . . she abused her discretion by misapplying the
law.” Id. at 636.
The special master in this case explained his understanding of the effect that the Simmons
decision had on reasonable-basis determinations:
Simmons is . . . best understood to hold that the pending expiration of the
[Vaccine] Act’s limitations period is by itself not grounds for a reasonable basis
finding, as it does not constitute objective evidence in support of the claim. But
Simmons does not expressly (or even impliedly) abrogate the “totality of the
circumstances” test–and therefore does not mean that the circumstances informing
an attorney’s investigation of a claim’s basis (including the fact that an attorney
may have insufficient time to complete that investigation due to the need to file a
claim expeditiously) are irrelevant. Rather, it emphasizes the need for petitioners
to locate objective proof supporting a claim–an inquiry that can take time, as
recognized in other decisions observing that claims can possess reasonable basis
but then “lose” it later after additional facts are adduced. The fact that an attorney
may have not completed analysis of a claim’s viability before filing, thus, matters
less than how long the attorney has to do so–and, critically, when it is just and fair
to say that attorney should have known the case lacked objective basis.
....
[C]onsideration of the limitations cutoff in performing my “totality of the
circumstances” analysis is not inconsistent with the Simmons ruling. Simmons
references the “totality of the circumstances” test, and it has long been understood
in the Vaccine Program that this test considers a variety of factors in assessing
reasonable basis–including the context in which an attorney evaluates a claim’s
viability, before and after filing. The fact that a pending limitations cutoff impels
an attorney to file a claim later revealed to be weak has often been considered one
relevant consideration. While Simmons clearly states that this cannot be the
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“sole” factor (since it does not stand as objective evidence supporting the claim–
the sine qua non of a reasonable basis determination), the Federal Circuit in
Simmons did not abrogate that test.
Amankwaa, 2018 WL 1125853, at *5-6 (citations omitted).
The court finds that the special master’s understanding of the Simmons decision is
flawed. First, the Federal Circuit explicitly stated that determining whether there is a reasonable
basis for a claim “is an objective inquiry unrelated to counsel’s conduct.” Simmons, 875 F.3d at
636. In other words, the efforts that an attorney makes to investigate a claim or to ensure that a
claim is asserted before the expiration of the statutory limitations period has no bearing on
whether there is a reasonable basis for the claim itself; rather, such efforts are properly evaluated
in determining whether a petition was brought in good faith. Second, the Federal Circuit did not
suggest that an impending statutory limitations deadline could be considered in determining
whether there is a reasonable basis for a claim so long as it was one of many factors considered
by the special master. Although Simmons concerned a situation in which the special master’s
sole ground for finding a reasonable basis for the claim was the impending statutory limitations
deadline, there is nothing in the Federal Circuit’s decision that indicates that had the special
master also grounded her reasonable-basis determination on other, objective factors, her
consideration of the impending statutory limitations deadline would have been proper. Rather,
the Federal Circuit forbade, altogether, the consideration of statutory limitations deadlines–and
all conduct of counsel–in determining whether there was a reasonable basis for a claim.
Of course, the elimination of statutory limitations deadlines and the conduct of counsel as
factors that can be considered to determine whether there is a reasonable basis for a claim does
not preclude special masters from considering a variety of other factors in their reasonable-basis
determinations. Indeed, their analyses may include an examination of a number of objective
factors, such as the factual basis of the claim, the medical and scientific support for the claim, the
novelty of the vaccine, and the novelty of the theory of causation. 9 See also Santacroce v. Sec’y
of HHS, No. 15-555V, 2018 WL 405121, at *7 (Fed. Cl. Jan. 5, 2018) (unpublished decision)
(“[I]n deciding reasonable basis the Special Master needs to focus on the requirements for a
9
The relevance of the latter two possible factors to a reasonable-basis inquiry is
explained by the court in Cottingham:
Because Vaccine Act claims may involve state-of-the-art scientific developments,
untested theories, and unknown interactions and results, these difficult cases may
entail close calls, and the standard for assessing the reasonable basis for a claim
should reflect this reality. As the Federal Circuit has noted, “[t]he first time an
injury is causally linked with a vaccine often occurs as a result of a successful
non-Table petition.” So too, “[a] vaccine-related injury . . . is not always clear at
the outset.”
134 Fed. Cl. at 574 (citations omitted) (quoting, first, Cloer v. Sec’y of HHS, 654 F.3d 1322,
1332 n.4 (Fed. Cir. 2011) (en banc), and, second, Chuisano v. United States, 116 Fed. Cl. 276,
285 (2014)).
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petition under the Vaccine Act to determine if the elements have been asserted with sufficient
evidence to make a feasible claim for recovery. . . . Under the objective standard articulated by
the Federal Circuit in Simmons, the Special Master should have limited her review to the claim
alleged in the petition to determine if it was feasible based on the materials submitted.”).
In short, the Simmons decision stands for the proposition that special masters must not
consider subjective factors in determining whether a claim has a reasonable basis. The special
master’s conclusions to the contrary are therefore legally erroneous.
2. The Special Master’s Reasonable-Basis Determination
In light of this legal error, the court must ascertain the extent to which the special master
relied on the impending statutory limitations deadline in determining that petitioners’ claim had a
reasonable basis. 10 The special master provided the following analysis in determining that
petitioners’ claim had a reasonable basis at the time the petition was filed:
I am not persuaded by Respondent’s argument that the case’s lack of
reasonable basis should have been determined in the short time counsel had
before its filing due to the limitations cutoff. Respondent’s reading of Simmons–
completely ruling out as irrelevant the fact that counsel must act expeditiously to
evade the impact of a pending limitations cutoff–is admittedly consistent with
certain language contained in the decision, but ignores the facts of the Simmons
case that produced that outcome, i.e. where no objective proof supporting the
claim was ever offered. The circumstances here are far different. The fact of
B.M.A.’s injury was established by those records in [Petitioners’ counsel’s]
immediate possession, as was proof of vaccination. And Petitioner[s’] counsel
did begin to evaluate the records and consider the claim’s strengths before its
filing, but lacked sufficient time (or record evidence) to complete that process.
Thus, unlike Simmons, this case was not one where the claim’s feasibility could
have been fully vetted prior to filing.
....
Thus, although the inquiry into the validity of Petitioners’ claim herein
was not completed before the time to file arrived, the claim possessed far more
objective support before it was filed than in Simmons, and therefore the Federal
Circuit’s holding therein does not support a determination that Petitioners’ claim
lacked reasonable basis at the outset.
Amankwaa, 2018 WL 1125853, at *6 (footnotes and citations omitted). Although the special
master mentioned two objective factors (proof of vaccination and proof of injury), his conclusion
10
Respondent suggests that there was no looming statutory limitations deadline because
the three-year limitations period commences upon the first onset of the injury, rather than upon
the date of vaccination. Because the existence of a looming deadline is irrelevant to a
reasonable-basis determination, the court need not address this issue.
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that petitioners’ claim had a reasonable basis hinged on Mr. Krakow lacking sufficient time to
fully vet the claim before the statutory limitations deadline. 11 Because the special master was
not permitted to consider the press of time in conducting his reasonable-basis analysis, his
conclusion that petitioners’ claim had a reasonable basis upon the filing of the petition was an
abuse of discretion.
The court’s conclusion that the special master’s reasonable-basis determination depended
on the impending statutory limitations deadline is buttressed by the analysis performed by the
special master to determine when a reasonable basis for petitioners’ claim ceased to exist. In
concluding that petitioners lacked a reasonable basis for their claim after January 31, 2017 (in
other words, twenty-two days after the petition was filed), the special master commented:
• “The billing invoices . . . demonstrate that counsel filed this claim without the
benefit of a full review of the record. The record counsel did possess,
however, reveals numerous facial deficiencies with Petitioners’ claims–all of
which should have been warning signals as to the claim’s viability.” Id.
• “Thus, even if records that counsel lacked at the outset of the case might have
helped him better understand the claim’s possible issues, counsel had more
than enough to know that the claim was going to be very difficult to prosecute
successfully.” Id. at *7.
• “The timeline revealed by the invoices submitted with this fees application
bulwarks the conclusion that the claim’s reasonable basis could have been
determined long before August 2017. Mr. Krakow possessed Exhibits 1-10
(367 pages) prior to the filing of the case, gaining additional records in March-
April 2017. But Mr. Krakow could have assessed the claim’s significant
deficiencies without those additional records . . . . [T]he documents
Petitioners now cite as supporting their allegations of causation facially do not
support their claim.” Id. (citation omitted).
• “[T]he deficiencies revealed by the medical records in counsel’s possession at
the time of filing could be determined in a day’s review . . . .” Id. at *8.
All of these statements support a conclusion that Mr. Krakow should have known that
petitioners’ claim lacked a reasonable basis before the petition was filed.
Moreover, Mr. Krakow’s billing records reflect that aside from a twelve-minute period on
January 10, 2017 (the day after the petition was filed), Mr. Krakow did not take any action (for
example, reviewing newly obtained medical records or consulting experts) through January 31,
11
It also bears noting that the special master did not indicate in his reasonable-basis
analysis that petitioners offered evidence (for example, records from BMA’s treaters, medical
literature, or expert opinion) supporting an essential element of their claim–that the vaccinations
received by BMA caused the conditions documented in BMA’s medical records.
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2017, indicating that he was reviewing the viability of petitioners’ claim. See Pet’rs’ Ex. 19, Tab
2, at 3-4. Because nothing regarding petitioners’ claim changed between January 9, 2017, and
January 31, 2017, if the claim had no reasonable basis after January 31, 2017, as the special
master held, then it could not have had a reasonable basis at the time the petition was filed. 12
III. CONCLUSION
As explained above, the special master erred, as a matter of law, in concluding that the
Federal Circuit’s decision in Simmons allowed him to consider an impending statutory
limitations deadline as part of a totality-of-the-circumstances analysis in determining whether
petitioners’ claim had a reasonable basis. Further, because the special master’s reasonable-basis
determination was dependent upon Mr. Krakow’s inability to fully assess the viability of
petitioners’ claim in advance of the impending statutory limitations deadline, his determination
that petitioners’ claim had a reasonable basis, and that therefore an award of interim attorneys’
fees was appropriate, was an abuse of discretion. Accordingly, the court GRANTS respondent’s
motion for review and REVERSES the decision of the special master awarding petitioners
interim attorneys’ fees. Pursuant to Vaccine Rule 30(a), the clerk is directed to enter judgment
accordingly.
IT IS SO ORDERED.
s/ Margaret M. Sweeney
MARGARET M. SWEENEY
Judge
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Although petitioners argue that BMA’s medical records reflect that their claim had a
reasonable basis when the petition was filed, they do not challenge the special master’s
conclusion–based, in large part, on the special master’s review of all of BMA’s medical records–
that the reasonable basis ceased to exist after January 31, 2017. Because nothing changed
between January 9, 2017 (the date the petition was filed) and January 31, 2017 (the date the
special master determined that a reasonable basis for petitioners’ claim ceased to exist), the court
need not entertain petitioners’ contention that their claim initially had a reasonable basis for
reasons not stated by the special master. Indeed, petitioners cannot both (1) accept that the
evidence indicates that there was no reasonable basis for their claim after January 31, 2017, and
(2) argue, relying on the exact same evidence, that there was a reasonable basis for their claim on
January 9, 2017.
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