Cottingham v. Hhs

Case: 19-1596 Document: 36 Page: 1 Filed: 08/19/2020

United States Court of Appeals
for the Federal Circuit
______________________

SUSAN COTTINGHAM, ON BEHALF OF HER
MINOR CHILD, K.C.,
Petitioner-Appellant

v.

SECRETARY OF HEALTH AND HUMAN
SERVICES,
Respondent-Appellee
______________________

2019-1596
______________________

Appeal from the United States Court of Federal Claims
in No. 1:15-vv-01291-MCW, Senior Judge Mary Ellen Cos-
ter Williams.
______________________

Decided: August 19, 2020
______________________

ANDREW DOWNING, Van Cott & Talamante, PLLC,
Phoenix, AZ, argued for petitioner-appellant.

VORIS EDWARD JOHNSON, JR., Vaccine/Torts Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent-appellee. Also repre-
sented by ETHAN P. DAVIS, C. SALVATORE D'ALESSIO,
CATHARINE E. REEVES.
______________________
Case: 19-1596 Document: 36 Page: 2 Filed: 08/19/2020

2 COTTINGHAM v. HHS

Before REYNA, WALLACH, and HUGHES, Circuit Judges.
REYNA, Circuit Judge.
Petitioner-Appellant Susan Cottingham filed an appli-
cation for attorneys’ fees and certain litigation costs in-
curred in connection with Cottingham’s claim for
compensation under the National Vaccine Injury Compen-
sation Program. The Special Master denied the applica-
tion, and the United States Court of Federal Claims
affirmed the denial. Because the Special Master abused
his discretion in denying attorneys’ fees and costs, we va-
cate and remand.
BACKGROUND
A. Vaccine Act Petition
On October 30, 2015, Susan Cottingham, on behalf of
her then minor daughter, K.C., filed a petition for compen-
sation under the National Vaccine Injury Compensation
Program, 42 U.S.C. § 300aa-10, (“Vaccine Act”). The peti-
tion alleged that K.C. suffered various physical injuries
that were caused by a Gardasil® vaccination she received
on July 5, 2012, for the prevention of human papilloma vi-
rus (“HPV”).
Gardasil® is an FDA-approved vaccine indicated for
prevention of numerous “diseases” including HPV. See J.A.
37–59 at 37 (Gardasil® package insert). Gardasil’s® pack-
age insert identifies several potential adverse reactions as-
sociated with its administration, including headache,
dizziness, and syncope. J.A. 40–45.
HPV Vaccines are included on the Vaccine Act’s vac-
cine injury table as of February 1, 2007. 42 C.F.R.
§ 100.3(e)(7). At the time of petition in October 2015, the
Vaccine Injury Table specified no conditions or onset times
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COTTINGHAM v. HHS 3

for the HPV vaccine. See HHS Vaccine Injury Table, 42
C.F.R. § 100.3(a). 1
The record indicates that Cottingham first contacted
counsel about K.C.’s injuries on May 15, 2015. For the next
five months, counsel gathered K.C.’s medical records.
Counsel also secured an affidavit from K.C. on October 28,
2015. J.A. 32–34. In the affidavit, K.C. declared that she
began experiencing the initial symptoms of her alleged vac-
cine injuries approximately four months after she received
the Gardasil® vaccine. J.A. 32. Based on the date that K.C.
reported first experiencing symptoms, counsel concluded
that the three-year statute of limitations to file a Vaccine
Act claim would potentially run on November 1, 2015, and
filed Cottingham’s petition on October 30, 2015, before the
U.S. Court of Federal Claims (“Claims Court”). The Claims
Court appointed a special master to consider the claim. See
J.A. 69.
The petition alleged that K.C.’s July 5, 2012, vaccina-
tion caused her to experience: (1) chronic headaches that
began on November 1, 2012; (2) two episodes of fainting,
one on March 29, 2013, and one on May 23, 2013; and (3)
menstrual difficulties starting in “the latter part of 2013.”
J.A. 6–7, J.A. 96–99.
By March 15, 2016, Cottingham’s counsel obtained and
filed relevant medical records. K.C.’s medical records

1 In 2017, three conditions for the vaccine were
added to the Vaccine Injury Table: anaphylaxis with onset
in less than four hours; shoulder injury with onset in less
than 48 hours, and vasovagal syncope with onset in less
than 1 hour. HHS Vaccine Injury Table, 42 C.F.R. § 100.3
(2017). These conditions do not apply to Cottingham’s pe-
tition, however, because they apply to petitions filed on or
after February 21, 2017. HHS Vaccine Injury Table, 42
C.F.R. § 100.3(e) (2017).
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4 COTTINGHAM v. HHS

consist of numerous medical-examination reports detailing
K.C.’s medical history. J.A. 35, 36, 60, 61, 62, 63–67. For
example, on November 30, 2012, K.C. complained of head-
aches “off and [on] all week.” J.A. 35. On January 31, 2013,
K.C. again reported a headache. J.A. 61. On March 29,
2013, K.C. reported dizziness, syncope, and headache. J.A.
62. On May 23, 2013, K.C. complained of syncope and
headache. J.A. 63–65. On July 25, 2013, K.C. reported ex-
periencing “several episodes of dizziness and passing out.”
J.A. 36. And in May 2015, K.C.’s medical reports document
a chief complaint of amenorrhea, that K.C. “ha[d] not had
a period in [four months]” and another report of K.C. “not
[having] a menstrual cycle in [six] months.” J.A. 60, 66–
67. K.C.’s May 14, 2015, medical report documents K.C.’s
mother’s “concern[] that the Gardasil series may have had
something to do with the recent changes noted in [K.C.’s]
menstrual cycle.” J.A. 60.
During a March 2016 status conference with the Spe-
cial Master, counsel for the Appellee Secretary of Human
Health and Services (“Secretary”) “noted that reasonable
basis for bringing the case may not be present for [Cotting-
ham].” In response, Cottingham’s counsel requested addi-
tional time to seek and obtain expert opinion to support the
claim. The Special Master granted Cottingham’s request.
Between April and October 2016, Cottingham’s counsel
contacted two different experts. See J.A. 2. Neither expert
provided a favorable opinion, and Cottingham was unable
to submit an expert opinion supporting her claim. See id.,
J.A. 107. On October 7, 2016, Cottingham’s counsel filed a
motion to dismiss the petition, and on October 13, 2016, the
Special Master issued a decision denying entitlement to
compensation.
B. Attorneys’ Fees and Costs
On October 26, 2016, Cottingham’s counsel filed an ap-
plication for attorneys’ fees and litigation costs in the
amount of $11,468.77 that were incurred in connection
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COTTINGHAM v. HHS 5

with bringing the petition for Vaccine Act compensation.
See 42 U.S.C. § 300aa-15(e)(1). The question of attorneys’
fees and costs garnered three distinct decisions by the Spe-
cial Master, each reviewed by the Claims Court, which
twice remanded back to the Special Master. We review
each of the Special Master’s decisions in turn.
First, on March 30, 2017, the Special Master issued a
decision denying fees and costs on grounds that the vaccine
claim lacked a reasonable basis. The Special Master found
that “the medical records included ‘no evidence to support
the petition’s vaguely asserted claims that the HPV vac-
cination caused K.C.’s headaches, fainting, or menstrual
problems’ and that [Cottingham] did not present an opin-
ion from a retained expert supporting the contention that
a vaccination harmed K.C.” J.A. 2–3. Cottingham filed
with the Claims Court a motion for review of the Special
Master’s decision. The Claims Court considered the motion
and vacated the Special Master’s decision. See J.A. 3. The
Claims Court held that the Special Master erred by not
considering “the impending statute of limitations as a fac-
tor weighing in favor of a reasonable basis finding.” Id.
The Claims Court remanded the case to the Special Master
with instruction to “apply a totality of the circumstances
standard and reassess whether [Cottingham’s] claim had a
reasonable basis at the time the petition was filed and at
intervals when additional evidence became available to
[Cottingham’s] counsel thereafter.” Id.
Second, while remand was pending before the special
master, this court issued its opinion in Simmons v. Secre-
tary of Health & Human Services, 875 F.3d 632 (Fed. Cir.
2017). In Simmons, we held that although a looming stat-
ute of limitations deadline may impact the question of
whether good faith existed to bring a claim, a statute of
limitations deadline does not provide a reasonable basis for
the claim asserted in the petition. Id. at 636. We noted
that:
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6 COTTINGHAM v. HHS

The Vaccine Act provides that there must be a “rea-
sonable basis for the claim for which the petition
was brought” before the special master may exer-
cise her discretion in awarding attorneys’ fees.
42 U.S.C. § 300aa-15(e)(1) (emphasis added).
Whether there is a looming statute of limitations
deadline, however, 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 im-
pending statute of limitations deadline may relate
to whether “the petition was brought in good faith”
by counsel, the deadline does not provide a reason-
able basis for the merits of the petitioner’s claim.
Id. (emphasis in original); see also J.A. 3.
The Special Master decided that Simmons did not im-
pact his analysis and that he was bound by the Claims
Court’s remand instructions to apply a “totality of the cir-
cumstances” standard. See J.A. 3–4. Applying the “totality
of the circumstances” test, the Special Master awarded at-
torneys’ fees, reasoning that “K.C.’s affidavit, alone, justi-
fies this result.” Cottingham on behalf of K.C. v. Sec’y of
Health & Human Servs., No. 15-1291V, 2017 WL 6816709,
at *6 (Fed. Cl. Dec. 12, 2017).
The Secretary filed a motion for review, arguing that in
light of Simmons, the Claims Court should vacate both its
original remand decision and the Special Master’s decision
on remand and reinstate the Special Master’s original de-
cision denying attorneys’ fees and costs. The Claims Court
vacated the Special Master’s decision on grounds that Sim-
mons did apply and that its original remand decision did
not comport with Simmons. The Claims Court remanded
the case to the Special Master to reassess whether Cotting-
ham had a reasonable basis to bring her claim without con-
sidering the statute of limitations.
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COTTINGHAM v. HHS 7

On June 20, 2018, the Special Master issued his third
and final decision and found no reasonable basis for Cot-
tingham’s claim. See J.A. 102–110. The Special Master’s
finding again turned on what he deemed to be a complete
absence of evidence, either in the medical records or from
a retained expert, that would support a reasonable basis
for a causal link between the Gardasil® vaccination and
K.C.’s alleged injuries. J.A. 109–10.
Cottingham again filed a motion for review, arguing
that the Special Master misinterpreted Simmons and that
the Special Master improperly elevated the burden of proof
for establishing a reasonable basis. J.A. 4. Cottingham
argued that the Special Master required Cottingham to
show a basis that would win on the merits of the case, as
opposed to a reasonable basis to bring a claim. The Claims
Court rejected Cottingham’s arguments. J.A. 4–5. The
Claims Court held that, under Simmons, the Special Mas-
ter “may consider the evidence a petitioner provided, such
as medical records and affidavits, in determining whether
a reasonable basis for the claim exists.” J.A. 5. The Claims
Court further held that the Special Master did not improp-
erly require Cottingham to satisfy a heightened standard
for reasonable basis but rather correctly “focused on the
lack of evidence in [K.C.’s] medical records and the treating
physicians’ diagnoses, along with the absence of any expert
opinion or supporting medical literature.” Id. This appeal
ensued.
DISCUSSION
The purpose of the Vaccine Act and the National Child-
hood Vaccine Injury Compensation Program is to award
compensation to vaccine-injured persons quickly, easily,
and with certainty and generosity. Cloer v. Sec’y of Health
& Human Servs., 675 F.3d 1358, 1362 (Fed. Cir. 2017) (in-
ternal quotation omitted) (citing H.R. Rep. No. 99-908, at 3
(1986), reprinted in 1986 U.S.C.C.A.N. at 6344). It is also
meant to assist a petitioner’s “ability to obtain qualified
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8 COTTINGHAM v. HHS

assistance by making fees awards available for non-pre-
vailing, good-faith claims.” Sebelius v. Cloer, 569 U.S. 369,
370 (2013) (internal quotation omitted) (citing H.R. Rep.
No. 99-908, pt. 1, p. 22. Pp. 1889–1895). Thus, when a pe-
titioner is denied compensation for a claim, he or she may
still request compensation to cover “reasonable attorneys’
fees and other costs incurred . . . if the special master or
court 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)(1). Absent bad faith or a lack of reasonable basis, a
non-prevailing petitioner is eligible to receive an award of
attorneys’ fees. See Cloer, 675 F.3d at 1360–61.
The parties do not dispute whether Cottingham filed
her claim in good faith. As a result, we do not address the
good faith requirement. There are two disputes in this ap-
peal. First, the parties dispute whether, post-Simmons,
the totality of the circumstances test should apply in a rea-
sonable basis inquiry. Second, the parties dispute whether
the Special Master abused his discretion in denying attor-
neys’ fees and costs.
A. Totality of Circumstances under Simmons
Cottingham argues that the reasonable basis analysis
is a totality of circumstances test. According to Cotting-
ham, this court in Simmons only removed two factors from
the totality of circumstances test: a looming statute of lim-
itations and conduct of counsel. Otherwise, Simmons left
the totality of circumstances test intact. Cottingham as-
serts that the Claims Court’s description of the totality of
circumstances test in Amankwaa prevails and that reason-
able basis is a totality of circumstances test that includes
consideration of “objective evidence, the novelty of the vac-
cine, and more.” Appellant Br. at 10–11. Cottingham ar-
gues that the Special Master abused his discretion by
failing to apply a totality of circumstances review and by
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COTTINGHAM v. HHS 9

requiring Cottingham “to prove causation with a prepon-
derance of evidence to satisfy reasonable basis.” Id. at 11.
The Secretary argues that Simmons “implicitly re-
jected the ‘totality of the circumstances’ test in favor of an
objective, evidence-based reasonable basis standard.” Ap-
pellee Br. 9, 12–17. The Secretary reasons that we implic-
itly denounced the totality of the circumstances test
because “[n]owhere in Simmons does the Court endorse a
‘totality of the circumstances’ test for evaluating reasona-
ble basis.” Id. at 13. The Secretary asserts that continued
application of a totality of the circumstances test “breeds
confusion . . . is incompatible with the objective, evidence-
based standard . . . [and] inevitably invites consideration of
extraneous, subjective factors, such as whether the claim
is ‘novel,’ or whether counsel acted reasonably in dismiss-
ing . . . a meritless case.” Appellee Br. at 15.
We see no reasoned basis for abandoning the Claims
Court’s objective, totality of the circumstances inquiry. For
the reasons explained below, we do not read Simmons as
rejecting this test.
We review de novo the Special Master’s application of
the law. Simmons, 875 F.3d at 635. When determining
whether a petitioner has a “reasonable basis” for filing a
claim, the Claims Court often relies on “an objective stand-
ard determined by the totality of the circumstances.” Chui-
sano v United States, 116 Fed. Cl. 276, 286 (Fed. Cl. 2014).
The Claims Court has identified nonexclusive factors that
it considers in a totality of the circumstances review, in-
cluding the factual basis of the claim for compensation and
any medical evidence supporting that claim. Id. at 288.
The Claims Court’s objective, totality of the circumstances
test comports with Simmons.
In Simmons, we clarified that a reasonable basis can
only be established with objective evidence. To be clear, a
petitioner seeking attorney fees and costs must show good
faith in bringing the claim and that a reasonable basis for
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10 COTTINGHAM v. HHS

the claim raised in the petition existed at the time the pe-
tition was filed. Good faith is a subjective test, satisfied
through subjective evidence. Reasonable basis, on the
other hand, is an objective test, satisfied through objective
evidence. Simmons, 875 F.3d at 635 (“‘[O]nly “good faith”
is subjective; “reasonable basis” is objective.’”) (quoting
Chuisano, 116 Fed. Cl. at 289.
The Secretary is correct that the court in Simmons did
not mention totality of circumstances. This silence, how-
ever, should not be taken either as an endorsement or as a
rejection of a “totality of circumstances” test. What was
material in Simmons, as in this case, is the question about
the type of evidence that is required respectively to satisfy
the good faith and reasonable basis requirements of the
Vaccine Act. While the court did not portend to identify
what constitutes subjective or objective evidence, it did
specify two forms of evidence that are subjective, evidence
of attorney conduct and a looming statute of limitations.
Consideration of these two types of subjective evidence in
a reasonable basis analysis would constitute an abuse of
discretion. Similarly, we clarify that the failure to consider
objective evidence presented in support of a reasonable ba-
sis for a claim would constitute an abuse of discretion.
B. Objective Evidence of Reasonable Basis
Cottingham also challenges the Special Master’s deter-
mination that Cottingham failed to establish a reasonable
basis for her claim. In his third decision, which denied Cot-
tingham’s request for attorneys’ fees and costs (J.A. 100–
110), the Special Master found that Cottingham presented
“no evidence” that supported the petition’s assertion that
the Gardasil® vaccination caused K.C.’s injuries. J.A. 109. 2

2 While the Special Master issued three decisions in
this case, we review only the June 20, 2019, decision. See
Vaccine Rule 28.1(b) (“Unless otherwise specified in the
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COTTINGHAM v. HHS 11

The Special Master concluded that, “because Ms. Cotting-
ham has not produced any medical records or medical opin-
ions supporting the claim that the vaccination caused any
harm,” she fails to meet the reasonable basis standard for
receiving attorneys’ fees. Id. at 109 n.3. We conclude that
the Special Master’s determination constitutes an abuse of
discretion because it rests on a clearly erroneous fact find-
ing.
This Court reviews a special master’s denial of attor-
neys’ fees and costs under the same standard as the Claims
Court and determines if the special master’s decision is “ar-
bitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” See Rodriguez v. Sec’y of Health
& Human Servs., 632 F.3d 1381, 1384 (Fed. Cir. 2011); see
also 42 U.S.C. § 300aa-12(e)(2)(B). We review de novo the
Special Master’s application of the law. Simmons, 875 F.3d
at 635. An abuse of discretion occurs if the decision is
clearly unreasonable, arbitrary, or fanciful; is based on an
erroneous conclusion of law; rests on clearly erroneous fact
findings; or involves a record that contains no evidence on
which the Board could base its decision. In re Durance, 891
F.3d 991, 1000 (Fed. Cir. 2018).
Section 15(e) of the Vaccine Act explains that a non-
prevailing petitioner must have “a reasonable basis for the
claim for which the petition was brought” to be eligible for
attorneys’ fees and costs. 42 U.S.C. § 300aa-15(e)(1). The
petition must include “an affidavit, and supporting docu-
mentation, demonstrating that the person who suffered
such injury”:
(1) received a vaccine listed on the Vaccine Injury Ta-
ble;

remand order, the decision on remand constitutes a sepa-
rate decision for purposes of Vaccine Rules 11, 18, and
23.”).
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12 COTTINGHAM v. HHS

(2) received the vaccination in the United States, or
under certain stated circumstances outside of the
United States;
(3) sustained (or had significantly aggravated) an in-
jury as set forth in the Vaccine Injury Table (42
C.F.R. § 100.3(e)) or that was caused by the vaccine;
(4) experienced the residual effects of the injury for
more than six months, died, or required an in-pa-
tient hospitalization with surgical intervention;
and
(5) has not previously collected an award or settlement
of a civil action for damages for the same injury.
§ 300aa-11(c)(1). Here, the parties’ dispute centers on ele-
ment three. Because causation is a necessary element of a
petition, Cottingham must point to evidence of a causal re-
lationship between the administration of the vaccine and
her injuries in order to establish that a reasonable basis for
the claim existed when the petition was filed. See § 300aa-
11(c)(1)(C)(ii). The burden of proof to establish reasonable
basis for attorney fees, however, is lower than the prepon-
derant evidence standard required to prove entitlement to
compensation. See § 300aa-15(e)(1); see also Chuisano, 116
Fed. Cl. at 287. Indeed, more than a mere scintilla but less
than a preponderance of proof could provide sufficient
grounds for a special master to find reasonable basis.
In this case, the Special Master found that Cottingham
provided “no evidence” of causation. J.A. 109. Cottingham
argues on appeal that K.C.’s under-oath affidavit and the
objective medical evidence of K.C.’s injury provide objective
evidence of a reasonable basis of causation. Appellant Br.
at 20–25. We conclude that the Special Master’s finding is
clearly erroneous because the record does contain objective
evidence of causation supporting a reasonable basis.
K.C.’s medical records paired with the Gardasil® pack-
age insert constitutes objective evidence supporting
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COTTINGHAM v. HHS 13

causation. Appellant Br. 22–23. Objective medical evi-
dence, including medical records, can constitute evidence
of causation supporting a reasonable basis. See Harding v.
Sec’y of Dep’t of Health & Human Servs., 146 Fed. Cl. 381,
403 (Fed. Cl. 2019). Medical records can support causation
even where the records provide only circumstantial evi-
dence of causation. Id. Here, the record contains seven
medical-examination reports detailing K.C.’s medical his-
tory that address injuries she suffered. J.A. 35, 36, 60, 61,
62, 63–65. The Gardasil® package insert (J.A. 37–59) 3
links K.C.’s injuries to adverse reactions associated with
Gardasil’s® administration. The package insert contains a
section titled “Adverse Reactions,” which identifies dizzi-
ness, headaches, vomiting, and syncope as adverse reac-
tions to the Gardasil® vaccination. J.A. 40–46. K.C.’s
medical records report that she suffered each of those inju-
ries after receiving the Gardasil® vaccine. J.A. 32–34; J.A.
35, 36, 60, 61, 62, 63–65. K.C.’s medical records paired
with the Gardasil® package insert thus constitute at mini-
mum circumstantial, objective evidence supporting causa-
tion.
Cottingham argues on appeal that medical literature
connecting K.C.’s symptomology to her vaccination consti-
tutes objective evidence supporting causation. Appellant
Br. 17–18. Cottingham did not, however, submit these ar-
ticles in her petition or at any time during the proceeding.
Nor did Cottingham argue at any time during that long
proceeding that medical literature supported the petition
or a reasonable basis. We note that the articles are not in
the appellate record despite their availability prior to Cot-
tingham’s October 7, 2016, dismissal of the petition. See

3 Although the Special Master did not address Gar-
dasil’s®package insert in its decision, it was included in the
appellate record, and no party has contended that it was
not part of the record below. See Fed. R. App. P. 10(a)(1).
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14 COTTINGHAM v. HHS

J.A. 2. We therefore decline to consider these articles for
the first time on appeal. See Hylete LLC v. Hybrid Athlet-
ics, LLC, 931 F.3d 1170, 1174–75 (Fed. Cir. 2019).
Cottingham also argues that the Special Master failed
to consider Gardasil’s® novelty as evidence of reasonable
basis. Appellant Br. 17–20. The Secretary argues that post
Simmons, “this aspect of the [Claims Court’s] holding is no
longer good law.” Appellee Br. 15 n.3.
The Claims Court has identified novelty as a factor in
determining reasonable basis. See Amankwaa v. Sec’y of
Health & Human Servs., 138 Fed. Cl. 282, 289 (2018) (cit-
ing Cloer v. Sec’y of Health & Human Servs., 654 F.3d 1322,
1332 n.4 (Fed. Cir. 2011) (en banc); see also Cottingham v.
Sec’y of Health & Human Servs., 134 Fed. Cl. 567, 574
(2017) (mentioning novelty as a factor in determining rea-
sonable basis but providing no such analysis). Cottingham
cites Amankwaa as supporting its argument that the
Claims Court must analyze novelty. Appellant Br. 15, 17.
But Amankwaa imposes no such requirement. The court
in Amankwaa acknowledged that novelty could be consid-
ered in the reasonable basis analysis. Amankwaa, 138 Fed.
Cl. at 289. The court did not, however, explain how novelty
impacted its reasonable basis analysis. Id.
Amankwaa’s reference to novelty cites to our decision
in Cloer. See id. In Cloer, we neither adopted nor rejected
novelty as a factor in determining reasonable basis. We
recognized the difficulty of proving causation where the in-
juries are alleged to have been caused by the administra-
tion of novel vaccines. We concluded that petitioners can
still “muster enough evidence to receive compensation” not-
withstanding those difficulties. Cloer, 654 F.3d at 1332.
Cottingham misinterprets Amankwaa, and we see no basis
to the argument that Amankwaa imposes a requirement
that special masters must consider a vaccine’s novelty in a
reasonable basis analysis. We decline to impose such a re-
quirement here.
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COTTINGHAM v. HHS 15

We also reject the Secretary’s argument that Simmons
precludes the Claim Court from relying on novelty as a fac-
tor in the reasonable basis analysis. As discussed above,
Simmons held that evidence of attorney conduct and a
looming statute of limitations “has no bearing on” the rea-
sonable basis analysis. Simmons, 875 F.3d at 636. Sim-
mons did not address the Claims Court’s reliance on
novelty as a factor in the reasonable basis analysis and,
thus, did not abrogate a special master’s discretion to ana-
lyze novelty.
Based on our review of the record, we conclude that the
Special Master’s finding that Cottingham presented “no ev-
idence” of a reasonable basis supporting her claim is clearly
erroneous. To be clear, we make no determination on the
weight of the objective evidence in the record or whether
that evidence establishes reasonable basis, for these are
factual findings for the Special Master and not this court.
See Milik v. Sec’y of Health & Human Servs., 822 F.3d
1367, 1376 (Fed. Cir. 2016) (“[W]e do not reweigh the fac-
tual evidence, assess whether the special master correctly
evaluated the evidence, or examine the probative value of
the evidence or the credibility of the witnesses—these are
all matters within the purview of the fact finder.”) (citation
and internal quotation omitted).
CONCLUSION
We have considered the parties’ remaining arguments
and find them unpersuasive. Because the Special Master
abused his discretion, we vacate and remand for further
proceedings consistent with this opinion.
VACATED AND REMANDED
COSTS
Costs to Appellant.