In the United States Court of Federal Claims
No. 17-203V
(Filed under seal October 8, 2020)
(Reissued October 23, 2020) †
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*
L.P., by and through his parent * Vaccine Act; voluntary dismissal;
and natural guardian, MARY * attorneys’ fees and costs, 42 U.S.C.
PETTY, * § 300aa-15(e)(1); reasonable basis
* standard; preexisting condition;
Petitioner, * failure to plead significant
* aggravation; looming statute of
v. * limitations deadline; Simmons v.
* Secretary decision.
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
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Amy A. Senerth, Muller Brazil, LLP, Dresher, Pa., for the petitioner.
Voris E. Johnson, Jr., Senior Trial Attorney, Torts Branch, Civil Division,
Department of Justice, with whom were Chad A. Readler, Acting Assistant Attorney
General, C. Salvatore D’Alessio, Acting Director, and Catharine E. Reeves, Deputy
Director, all of Washington, D.C., for the respondent.
MEMORANDUM OPINION AND ORDER
WOLSKI, Senior Judge.
Petitioner Mary Petty has moved for review, pursuant to 42 U.S.C. § 300aa-
12(e), of a special master’s decision denying an award of attorneys’ fees and costs.
The request for fees and costs was filed after petitioner had acknowledged an
inability to prove an entitlement to compensation and moved for the dismissal of
† Pursuant to Vaccine Rule 18(b) of the Rules of the United States Court of Federal
Claims, the parties were given fourteen calendar days in which to object to the
public disclosure of information contained in this opinion prior to its publication.
No objection has been filed. Accordingly, the opinion is reissued for publication with
some minor typographical and grammatical corrections.
her petition. After a review of the record, the Special Master concluded that no
reasonable basis existed for filing the claim against the Secretary of Health and
Human Services (Secretary). L.P. v. Sec’y of Health & Human Servs., No. 17-203V,
2018 WL 1044952, at *3 (Fed. Cl. Spec. Mstr. Jan. 30, 2018) [hereinafter Fees
Decision]. Thus, the Special Master declined to award petitioner’s counsel fees and
costs per 42 U.S.C. § 300aa-15(e)(1). For the reasons that follow, petitioner’s motion
for review is DENIED and the Special Master’s decision is SUSTAINED.
I. BACKGROUND
Petitioner filed the petition on behalf of her infant son, L.P., on February 10,
2017. See Pet., ECF No. 1. The petition sought compensation “for gastrointestinal
injuries, and subsequent complications” which L.P. suffered, allegedly as a result of
receiving two vaccinations on February 11, 2014, when he was two months old---the
diphtheria, tetanus, and acellular pertussis (DTaP) and rotavirus vaccinations. Id.
at 1 & ¶¶ 2, 8. The petition described L.P.’s health problems and medical visits
through June 21, 2016, see id. ¶¶ 4–19, and was accompanied by 229 pages of
medical records from the Cleveland Clinic and Akron Children’s Hospital, Pet. Exs.
1–3, ECF Nos. 1-4 through 1-6. On the same day that the petition was filed, Ms.
Petty also filed a statement indicating that she believed “all relevant medical
records had been filed.” Statement of Completion, ECF No. 4.
On May 5, 2017, three days before the scheduled initial status conference, the
special master assigned to the case filed an order informing the parties of her
assessment of the medical records submitted by petitioner. Order (May 5, 2017),
ECF No. 8 [hereinafter Records Order]. The Special Master stated she “fails to see
that if L.P. had any vaccine injury, it lasted more than six months” and added that
“since L.P. had gastroesophageal reflux disease, green stools, fussiness, and gas
before he received his vaccination, petitioner would need to amend her petition to
allege significant aggravation.” Id. at 1. Referencing the definition of significant
aggravation from the Vaccine Act, 42 U.S.C. § 300aa-33(4), she noted that she “does
not see a substantial deterioration of health in these records.” Id.
The Special Master then accurately discussed the state of L.P.’s health as
reflected in the filed records, the significant portions of which are summarized
below. The medical records indicated that L.P. had suffered from gastrointestinal
problems since shortly after his birth. On December 26, 2013, when he was a few
weeks old, L.P. visited his pediatrician and petitioner reported his fussiness,
gassiness following feedings, and green stools. Id. at 1–2; see Pet. Ex. 2 at 7. On
January 10, 2014, L.P.’s doctor diagnosed him with “gastroesophageal reflux
[disease] (‘GERD’).” Records Order at 2; Pet. Ex. 2 at 17–18. A few weeks later, on
January 29, 2014, petitioner brought L.P. to see another pediatrician because of
continuing stomach issues that had previously necessitated visits to an urgent care
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facility and an emergency room. Records Order at 2; see Pet. Ex. 2 at 21. Petitioner
reported that L.P. remained gassy and spits up after feedings, and that she noticed
blood in his diaper the two previous days, and the doctor confirmed the diagnosis of
GERD. Id.; Pet. Ex. 2 at 21–22.
On February 11, 2014, L.P. returned to the second pediatrician’s office for his
two-month check-up, and Ms. Petty reported that he had recently ceased spitting up
and being fussy. Pet. Ex. 2 at 26; Records Order at 2. The doctor tested L.P.’s stool
for blood and found none, Pet. Ex. 2 at 26, 28, and administered L.P.’s DTaP and
rotavirus vaccinations, id. at 27; Records Order at 2. The next day, L.P. was
brought to the Emergency Department of the Cleveland Clinic because he was
vomiting and choking, and he had a liquid green stool. Records Order at 2–3; Pet.
Ex. 2 at 66. After an examination and an ultrasound of his pyloric channel which
showed it to be normal, he was diagnosed with “nausea and/or vomiting.” Records
Order at 3; Pet. Ex. 2 at 67–68. On February 21, 2014, L.P. returned to his
pediatrician, and petitioner reported that he suffered from fussiness and loose
stools, but that his post-vaccination vomiting lasted just one day. Records Order at
3; Pet. Ex. 2 at 34. Id. He continued to be diagnosed as having GERD. Pet. Ex. 2
at 36; Records Order at 3. Petitioner subsequently reported to physicians treating
L.P. that his diarrhea persisted for two weeks after he was vaccinated. Pet. Ex. 2 at
108; Pet. Ex. 3 at 9; Records Order at 3, 5.
Petitioner’s son continued to have gastrointestinal problems. At an April 16,
2014 appointment with a pediatrician, although his elimination was normal at that
time, blood was detected in his stools. Records Order at 3; Pet. Ex. 2 at 40–41. The
following week he had a consultation with a gastroenterologist, to whom petitioner
recounted L.P.’s history of reflux and soft stools. Records Order at 3–4; Pet. Ex. 2 at
52–53. The gastroenterologist recognized that L.P. exhibited reflux symptoms and
told petitioner that infant gastrointestinal reflux can get worse between four and
six months of age. Records Order at 4; Pet. Ex. 2 at 53.
In November of 2015, L.P. was brought to see an allergist for a second
allergist’s opinion and was diagnosed as having mild eczema and food intolerance.
Records Order at 5; Pet. Ex. 3 at 1–3. In recounting L.P.’s medical history,
petitioner reported that he had suffered from diarrhea lasting six months following
his vaccinations. Records Order at 5; Pet. Ex. 3 at 1. Three months later, L.P. was
examined by a pediatrician because of an upper respiratory infection, and petitioner
reported that her son had exhibited a change in appetite. Records Order at 5; Pet.
Ex. 2 at 72. The doctor noted that L.P. did not have diarrhea or emesis. Records
Order at 5; Pet. Ex. 2 at 72.
On March 31, 2016, at a follow-up doctor’s visit concerning L.P.’s pneumonia,
petitioner reported that L.P. “always had an issue with emesis while eating,” and
noted the possibility of “an exaggerated gag reflex.” Pet. Ex. 2 at 100; Records
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Order at 5. He had no diarrhea at that time. Pet. Ex. 2 at 100. At an April 26,
2016 doctor’s visit, petitioner reported that L.P. “had a reaction to vaccines with
severe diarrhea at 2 months old with no continued diarrhea, [failure to thrive], or
severe infections since then.” Pet. Ex. 2 at 108; Records Order at 6. The following
week L.P. was brought by petitioner to see a pediatrician. Petitioner reported that
L.P. had diarrhea for the previous week and a half. Pet. Ex. 2 at 118. He was
diagnosed as having diarrhea, a food allergy, and other “allergic rhinitis.” Records
Order at 6; Pet. Ex. 2 at 118. One month later, on June 4, 2016, following a visit to
the Emergency Department of the Cleveland Clinic, L.P. was brought back to the
pediatrician’s office and was diagnosed with cyclical vomiting associated with
migraine. Pet. Ex. 2 at 131–32; Records Order at 6.
Two and a half weeks later, petitioner brought L.P. to see a pediatric
gastroenterologist, and reported that L.P. “was overall doing fairly well until”
January of that year, when he began having nighttime episodes of emesis---three
times in January, twice in February, and once in three subsequent months. Pet.
Ex. 2 at 146; Records Order at 7. Petitioner also reported that L.P. often had loose
stools multiple times daily. Records Order at 7; Pet. Ex. 2 at 147. The doctor
agreed with the earlier diagnosis of cyclical vomiting and explained that L.P. might
have toddler’s diarrhea. Records Order at 7; Pet. Ex. 2 at 153.
The Special Master discussed her assessment of the medical records at the
initial status conference held on May 8, 2017. See Order (May 8, 2017), ECF No. 9.
Petitioner was to file a status report the following month, indicating if she wanted
to proceed with the case, and was to check to see if the medical records needed to be
updated or supplemented. Id. For three successive months, petitioner requested an
extra month in which to obtain and review medical records, see Status Reports, ECF
Nos. 10, 11, 13, and then concluded that the additional medical records would not
support L.P.’s claim, Mot. for Enlargement, ECF No. 14.
Petitioner then moved for a decision dismissing the case. Pet’r’s Mot. for
Decision, ECF No. 17. She stated that “[a]n investigation of the facts and science
supporting have demonstrated to Petitioner she will be unable to prove that she is
entitled to compensation in the Vaccine Program,” and acknowledged that “[i]n
these circumstances, to proceed further would be unreasonable.” Id. at 1. The
following day, the Special Master issued a decision dismissing the case, containing a
factual discussion that was repeated nearly verbatim from the Records Order. See
L.P. v. Sec’y of Health & Human Servs., No. 17-203V, 2017 WL 6419982, at *1–6
(Fed. Cl. Spec. Mstr. Nov. 21, 2017) [hereinafter Dismissal Decision]. 1
1 The only apparent differences were the addition of footnote 7 and some
grammatical changes.
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Petitioner then moved for attorneys’ fees and costs, initially requesting
$9,110 in attorney and paralegal fees and the $400 filing fee. Pet’r’s Appl. for Att’ys’
Fees, ECF No. 19, at 2. The Secretary opposed the request, arguing that “petitioner
has failed to establish a reasonable basis for her claim,” and that the “claim never
possessed a reasonable basis.” Resp’t’s Opp’n to Pet’r’s Mot. for Att’ys’ Fees and
Costs, ECF No. 21, at 2, 4. Petitioner filed a reply, maintaining that medical
records showing a post-vaccination injury and the consideration of a looming statute
of limitations amounted to a reasonable basis for the claim, and adding to the
requested amount the $1,552.50 in attorneys’ fees incurred in preparing the reply
paper. Pet’r’s Reply to Resp’t’s Resp., ECF No. 23, at 4–8. The Secretary then filed
a short sur-reply, primarily focusing on the applicability of the Federal Circuit’s
decision in Simmons v. Sec’y of Health & Human Servs., 875 F.3d 632 (Fed. Cir.
2017). See Resp’t’s Sur-reply, ECF No. 25, at 1–2.
The Special Master agreed with the Secretary and denied fees and costs.
Fees Decision at *3. She noted that the Simmons decision “holds that a looming
statute of limitations deadline has no bearing on whether there is an objective
reasonable basis for the claim” filed in a petition. Id. (citing Simmons, 875 F.3d at
636). Instead, the “analysis must focus on whether there is evidentiary support for
the claim set forth in the petition.” Id. Finding in the medical records that “L.P.
had gastroesophageal reflux disease, green stools, fussiness, and gas before he
received his vaccinations,” and that there was no support for a significant
aggravation claim, the Special Master concluded that the claim in the petition
lacked a reasonable basis. Id.
Petitioner then filed a motion for review of that decision, objecting to the
Special Master’s assessment of the medical records, her application of the
reasonable basis standard, and her failure to take account of the looming statute of
limitations deadline at the time the petition was filed. Pet’r’s Mot. for Review, ECF
No. 28, at 4–6, 11–14 (Pet’r’s Mot.). 2 The Secretary responded, defending the
Special Master’s decision. Resp’t’s Mem. in Resp. to Pet’r’s Mot. for Review
(Response Br.), ECF No. 30, at 8–17. The Court has given careful consideration to
the arguments in those papers, and closely reviewed the Special Master’s decision
and the medical records.
2 Because petitioner combined her motion for review and her memorandum in
support of the motion in one filing, with no internal pagination, see ECF No. 28 at 1,
6, the Court has adopted the convention of citing pages from either as being from
the motion, and using the ECF pagination for filing ECF No. 28.
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II. DISCUSSION
A. Legal Standards
Under the National Vaccine Injury Compensation Program, a petitioner
whose claim fails on the merits may nevertheless seek “reasonable attorneys’ fees
and other costs.” 42 U.S.C. § 300aa-15(e)(1) (2018). But the statute contains an
important qualification. Fees and costs to an uncompensated petitioner may be
awarded only “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.” Id. Whether this petition was filed in good faith is not at
issue. See Fees Decision at *3 (“There is no evidence that this petition was brought
in bad faith.”). Instead, the central question in this appeal is whether a “reasonable
basis” for filing this Vaccine Act claim existed. See Pet’r’s Mot. at 10.
The Federal Circuit has held that decisions regarding awards of attorneys’
fees are to be reviewed under the abuse-of-discretion standard. Hall v. Sec’y of
Health & Human Servs., 640 F.3d 1351, 1356 (Fed. Cir. 2011) (citing Pierce v.
Underwood, 487 U.S. 552, 558 (1988); Saxton ex rel. Saxton v. Sec’y of Health &
Human Servs., 3 F.3d 1517, 1520 (Fed. Cir. 1993)). In cases where compensation is
denied, the Vaccine Act “clearly gives” special masters “discretion over whether to
make such an award.” Saxton, 3 F.3d at 1520 (citing Perreira v. Sec’y of Dep’t of
Health & Human Servs., 27 Fed. Cl. 29, 31 (1992), aff’d, 33 F.3d 1375 (Fed. Cir.
1994)).
A special master’s “application of the law is reviewed de novo.” Rodriguez v.
Sec’y of Health & Human Servs., 632 F.3d 1381, 1384 (Fed. Cir. 2011). Absent a
misapplication of law, “only if [a tribunal] erred in interpreting the law or exercised
its judgment on clearly erroneous findings of material fact, or its decision represents
an irrational judgment in weighing the relevant factors can its decision be
overturned.” Chiu v. United States, 948 F.2d 711, 713 (Fed. Cir. 1991); see also
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.”). Generally,
“reversible error is ‘extremely difficult to demonstrate’ if the special master ‘has
considered the relevant evidence of record, drawn plausible inferences and
articulated a rational basis for the decision.’” Lampe v. Sec’y of Health & Human
Servs., 219 F.3d 1357, 1360 (Fed. Cir. 2000) (quoting Hines ex rel. Sevier v. Sec’y of
Health & Human Servs., 940 F.2d 1518, 1528 (Fed. Cir. 1991)).
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B. Analysis
In this case, in which petitioner alleged that her infant son suffered
gastrointestinal injuries due to two vaccinations, Pet. at 1, the Special Master
correctly noted that the medical records showed gastrointestinal problems prior to
the vaccinations---gassiness, green stools, spitting up after feedings, blood in his
diaper, and a diagnosis of gastroesophageal reflux disease. Dismissal Decision at
*1; see Pet. Ex. 2 at 7, 17–18, 21–22. After petitioner was informed by the Special
Master that the records showed neither a vaccine injury lasting six months nor a
significant aggravation of L.P.’s preexisting gastrointestinal problems, Records
Order at 1, Ms. Petty asked that her case be dismissed, because “she will be unable
to prove that she is entitled to compensation” and thus “to proceed further would be
unreasonable.” Pet’r’s Mot. for Decision at 1. She nevertheless maintains that she
had a reasonable basis for filing the claim.
Petitioner contends that the Special Master’s decision must be overruled
because L.P.’s medical records contained information showing gastrointestinal
injuries to L.P. manifesting the day following the DTaP and rotavirus vaccinations
and lasting more than six months. Pet’r’s Mot. at 11–13. She argues that the
Special Master improperly employed the more stringent entitlement standard to
determine the reasonableness of the claim. Id. at 13. Finally, petitioner notes that
she contacted counsel about one month before the statute of limitations was due to
expire, and counsel thus had a limited opportunity to review the records and
determine if a claim could be proven. Id. at 14. Petitioner maintains that the
timing of counsel’s review supports the reasonableness of the filing of her claim.
For the reasons discussed below, the Court concludes that the Special Master
did not abuse her discretion in determining that an award of fees and costs was
inappropriate. First, the record contains evidence consistent with the Special
Master’s determination that no reasonable basis existed for bringing the claim---a
determination which rests on plausible inferences and is explained in a rational
manner. See Lampe, 219 F.3d at 1360. Moreover, the Special Master did not
employ the wrong standard in making this determination. And finally, the Special
Master was correct in concluding that a looming statute-of-limitations deadline has
no impact on the question of whether a reasonable basis existed for bringing the
claim.
1. The Special Master Did Not Err in Concluding That No Reasonable Basis
Existed for Bringing the Claim.
In objecting to the Special Master’s denial of attorneys’ fees and costs,
petitioner stresses L.P.’s condition the day after the vaccination. See Pet’r’s Mot. at
4, 11. She notes that “L.P. had been vomiting and choking, appeared lethargic and
had a decreased appetite,” and that his “father reported that [L.P.] had two to three
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large projectile white vomits and medium liquid green stool.” Id. at 12; see also Pet.
Ex. 2 at 66. The diagnosis for L.P. was nausea and vomiting. Pet. Ex. 2 at 68. But
even if this illness was caused by the vaccinations, a petition must demonstrate the
suffering of “residual effects or complications of such illness, disability, injury, or
condition for more than 6 months.” 42 U.S.C. § 300aa-11(c)(1)(D)(i) (2018). The
medical records show, however, that the vomiting lasted one day, Pet. Ex. 2 at 34,
and the “severe diarrhea” lasted for two weeks, id. at 108; see also Pet. Ex. 3 at 9.
In an attempt to show an injury lasting more than six months, Petitioner highlights
a November 2, 2015 medical record, which contains her report to the doctor that
L.P. “received his 2 month immunizations and developed diarrhea that lasted for 6
months.” Pet. Ex. 3 at 1; see Pet’r’s Mot. at 7, 12. This medical history report is not
only contradicted by the other two reports stating L.P.’s diarrhea lasted two weeks,
see Pet. Ex. 2 at 108; Ex. 3 at 9, but also by a medical record of a visit just two
months after the vaccinations showing L.P.’s elimination was “normal,” with “no
concerns” by that time. Pet. Ex. 2 at 40. The Special Master reasonably concluded
from these records that the injuries alleged to have been the immediate adverse
reaction from the vaccinations did not last six months.
Petitioner suggests, however, that the medical records showing L.P.’s
“intermittent emesis” and “loose stools” over the two-plus years following the
vaccinations also support her vaccine injury claim. Pet’r’s Mot. at 2. And she notes
that L.P. was suffering from no gastrointestinal issues on the day he was
vaccinated. Id. at 12–13; see Pet. Ex. 2 at 26–28. But by the time L.P. received his
vaccinations, he already had a well-established medical history of gastrointestinal
problems. At L.P.’s check-up when he was two weeks old, petitioner was concerned
about green stools, gassiness, and excessive fussiness. Pet. Ex. 2 at 7. At four
weeks old, L.P. remained fussy and would spit up after feeding. Id. at 17. And at
seven weeks old, L.P. would spit up frequently after feedings, suffered from gas and
had blood in his stool. Id. at 21. Thus, L.P. was diagnosed with gastroesophageal
reflux disease prior to his vaccinations. Id. at 22.
With the medical records showing that L.P. suffered from gastrointestinal
issues prior to the day he was vaccinated, and petitioner alleging that L.P.’s
subsequent, intermittent gastrointestinal issues were caused by the vaccinations,
see Pet. ¶¶ 11–20, the Special Master reasonably informed petitioner both that
significant aggravation would need to be alleged in light of L.P.’s preexisting
condition, and that the medical records accompanying the petition did not show a
substantial deterioration of L.P.’s health, Records Order at 1. As petitioner herself
concedes, “[b]ecause no further records were found to support a substantial
deterioration of health, [she] moved for a dismissal.” Pet’r’s Mot. at 3. In denying
the fees request, the Special Master rationally explained that “counsel should have
realized through their review . . . that L.P.’s medical records do not support a
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vaccine-related injury as alleged and [that] petitioner did not have a reasonable
basis to bring her claim.” Fees Decision at *3.
Whether a “reasonable basis” for a Vaccine Act claim exists “is an objective
consideration determined by the totality of the circumstances.” McKellar v. Sec’y of
Health & Human Servs., 101 Fed. Cl. 297, 303 (2011). Special masters will consider
the factual basis and medical support underlying the claim to decide if it is
reasonable. Chuisano v. United States, 116 Fed. Cl. 276, 288 (2014). It is
incumbent on the petitioner to “affirmatively establish a reasonable basis to recover
attorneys’ fees and costs.” Id. at 287. While the “burden is something less than the
preponderant evidence ultimately required to prevail on one’s vaccine-injury claim,”
petitioners must furnish some support for their contentions. Simmons v. Sec’y of
Health & Human Servs., 128 Fed. Cl. 579, 583 (2016) (citations omitted), aff’d, 875
F.3d 632 (Fed. Cir. 2017).
As was described above, the Special Master rationally concluded that L.P.’s
alleged reaction to the vaccinations, in the form of vomiting and severe diarrhea,
did not last six months. And given L.P.’s preexisting gastrointestinal issues, the
Special Master rationally found that petitioner would have to plead that L.P.’s
condition was significantly aggravated by the vaccinations for the subsequent
gastrointestinal injuries to be the basis for a claim. Under these circumstances, the
Special Master acted well within her discretion in concluding that no reasonable
basis existed for alleging a vaccine injury claim and thus denying the requested
award of attorneys’ fees. Petitioner has identified no medical record connecting the
vaccinations to L.P.’s illnesses or condition more than six months after receiving the
vaccinations, let alone any medical record suggesting that a substantial
deterioration of his health resulted from the vaccinations. Cf. Chuisano, 116 Fed.
Cl. at 290 (finding that no reasonable basis existed in a case where, inter alia, the
decedent had preexisting medical conditions prior to the vaccination, the medical
records attributed her death to those preexisting conditions, and treating providers
were unwilling to attribute her injuries to her vaccination).
Instead, based on these records, petitioner acknowledged that “to proceed
further would be unreasonable and would waste the resources of this Court, the
Respondent, and the Vaccine Program.” Pet’r’s Mot. for Decision at 1. This is not a
case in which the information initially available to a petitioner supported a vaccine
claim, but subsequent information showed the claim not to be viable. Cf. Perreira v.
Sec’y of Dep’t of Health & Human Servs., 33 F.3d 1375, 1377 (Fed. Cir. 1994)
(finding that reasonable basis for claim ended upon review of expert opinion). If it
was unreasonable to proceed further upon the basis of the medical records
submitted with the petition, it was unreasonable to bring the claim in the first
place.
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Moreover, petitioner is incorrect in her contention that the Special Master’s
decision was based on the standard for proving entitlement rather than the
reasonable basis standard. See Pet’r’s Mot. at 13. The Special Master explained
that she must look “more to the feasibility of the claim” and “not at the likelihood of
success,” and that factors such as “factual basis” and “medical support” needed to be
considered. Fees Decision at *2 (citations omitted); see also Chuisano, 116 Fed. Cl.
at 288) (citations omitted) (identifying factual basis and medical support as among
the factors to be considered). After describing L.P.’s pre-vaccination condition, the
Special Master noted that “[n]o post-vaccination record substantiates L.P. having a
substantial deterioration of health.” Fees Decision at *3. Under the circumstances,
this would have been a sufficient basis for her exercise of the discretion which “the
statute clearly gives” special masters when a petition is not successful, Saxton, F.3d
at 1520. She further noted the absence of a causation theory or a medical expert
report, see Fees Decision at *3, not to require that reasonableness be based on the
entitlement standard, but to acknowledge additional means by which the
reasonableness of a claim may be established, see Carter v. Sec’y of Health &
Human Servs., 132 Fed. Cl. 372, 380 (2017) (recognizing that expert opinions may
be used to demonstrate reasonable basis of a claim). The Special Master properly
considered whether there was a reasonable basis for a vaccine injury claim based on
such elements as allegations of an injury or significant aggravation lasting more
than six months and linked to a vaccination. See 42 U.S.C. § 300aa-11(c)(1);
Santacroce ex rel. J.R. v. Sec’y of Health & Human Servs., No. 15-555V, 2018 WL
405121, at *7 (Fed. Cl. Jan. 5, 2018).
Based on this record, it was far from irrational or implausible for the Special
Master to find that petitioner did not have a reasonable basis for bring her claim.
The Special Master clearly considered all of the relevant medical records, drew
plausible inferences and articulated a rational basis for denying the attorneys’ fees
request. See Lampe, 219 F.3d at 1360.
2. A Looming Statute of Limitations Deadline Has No Bearing on the
Reasonableness of Filing a Vaccine Claim.
Petitioner also contends that the Special Master erroneously failed to account
for the fact that the statute of limitations was about to expire when petitioner’s
counsel reviewed the medical records and filed the petition. Pet’r’s Mot. at 14.
This argument, however, is squarely foreclosed by Federal Circuit precedent.
In Simmons v. Secretary of Health and Human Services, 875 F.3d 632, 634
(Fed. Cir. 2017), the Federal Circuit faced the question of whether counsel’s
inability to review a record due to a looming statute of limitations deadline should
be considered in the reasonable basis analysis. Writing for the court, Chief Judge
Prost began by noting that whether the reasonable basis requirement is met “is an
objective inquiry unrelated to counsel’s conduct.” Id. at 636. The focus, therefore, is
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on the claim itself---and whether a reasonable basis existed for bringing it. Id.
Thus, the court held that “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. (quoting 42 U.S.C. § 300aa-15(e)(1)). As such, “counsel may not use
[an] impending statute of limitations deadline to establish a reasonable basis” for
filing a claim lacking in factual support. Id. The amount of time left before a
statute of limitations will run out is simply irrelevant to the reasonable basis
determinations. See Amankwaa v. Sec’y of Health & Human Servs., 138 Fed. Cl.
282, 289 (2018) (holding that “the Federal Circuit forbade, altogether, the
consideration of statutory limitations deadlines . . . in determining whether there
was a reasonable basis for a claim”).
Petitioner thus cannot use the looming statute of limitations deadline to
support her argument that there was a reasonable basis for the filing of her claim.
The Special Master was therefore correct in rejecting the statute of limitations
argument, see Fees Decision at *3, and instead looking only to the medical records
and allegations in deciding if the claim had an objectively reasonable basis.
III. CONCLUSION
For the foregoing reasons, the Special Master’s denial of attorneys’ fees and
costs was not arbitrary, irrational, an abuse of discretion or otherwise unlawful.
Petitioner’s motion for review is hereby DENIED and the Special Master’s decision
is SUSTAINED. The Clerk shall enter judgment accordingly. No fees or costs are
awarded.
IT IS SO ORDERED.
s/ Victor J. Wolski
VICTOR J. WOLSKI
Senior Judge
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