VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_14-vv-01012
Package ID: USCOURTS-cofc-1_14-vv-01012
Petitioner: Garry Rehn
Filed: 2014-10-20
Decided: 2017-03-15
Vaccine: influenza
Vaccination date: 2011-10-26
Condition: reactive airway disease, acute respiratory distress, tachypnea, pneumonia, pleurisy, and pancreatitis
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Garry Rehn filed a petition alleging injury from an influenza vaccine received on October 26, 2011. His initial counsel, Randall Knutson, filed the petition on October 20, 2014, alleging that the vaccine caused reactive airway disease, pneumonia, pleurisy, and pancreatitis. Mr. Rehn had a complex medical history predating the vaccination, including elevated triglycerides, anxiety, hypertension, sleep apnea, lipid disorder, muscle cramps, and chronic pain syndrome. Following the vaccination, Mr. Rehn experienced symptoms including nasal congestion, cough, fever, shortness of breath, chest tightness, and body aches, leading to hospitalizations for reactive airway disease, pneumonia, and pancreatitis. Mr. Knutson gathered extensive medical records but struggled to find a medical expert to link the injuries to the vaccine, with one physician's assistant stating she could not directly relate the conditions to the flu shot. Mr. Rehn then substituted Phyllis Widman as his counsel in June 2015. Ms. Widman filed an amended petition alleging an aggravation of an unidentified autoimmune disorder. Despite further efforts, no definitive diagnosis or causal link was established. The special master eventually dismissed Mr. Rehn's case on August 30, 2016, for failure to prove a prima facie case, noting that Mr. Rehn had been unable to find a doctor to support his claim. Subsequently, Ms. Widman sought attorney's fees for her work, but the special master denied the request, finding that there was no longer a reasonable basis for the claim when Ms. Widman took over the case, given Mr. Knutson's prior unsuccessful seven-month search for expert support. The court affirmed the special master's decision, denying Ms. Widman's motion for review and upholding the denial of her fees.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_14-vv-01012-1
Date issued/filed: 2016-04-14
Pages: 9
Docket text: PUBLIC DECISION reflecting no redactions from the opinion and order previously entered under seal on March 30, 2016. Signed by Judge Charles F. Lettow. (es)
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Case 1:14-vv-01012-CFL Document 51 Filed 04/14/16 Page 1 of 9
In the United States Court of Federal Claims
No. 14-1012V
(Filed: March 30, 2016)
(Reissued: April 14, 2016)
************************************* ) Vaccine case; review of an award
) of interim attorneys’ fees; 42 U.S.C.
GARRY REHN, ) § 300aa-15(e)(1); good faith; reasonable
) basis for petition; discretionary basis for
Petitioner, ) award
)
v. )
)
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
)
*************************************
Phyllis Widman, Neptune, New Jersey, for petitioner.
Randall Knutson, Knutson and Casey Law Firm, Mankato, Minnesota, on behalf of
himself as former attorney for petitioner.
Adriana Teitel, Trial Attorney, Torts Branch, Civil Division, United States Department of
Justice, Washington, D.C. for respondent. With her on the brief were Benjamin C. Mizer,
Principal Deputy Assistant Attorney General, Civil Division, Rupa Bhattacharyya, Director,
Vincent J. Matanoski, Deputy Director, and Voris E. Johnson, Jr., Assistant Director, Torts
Branch, Civil Division, United States Department of Justice, Washington, D.C.
OPINION AND ORDER1
LETTOW, Judge.
The Secretary of Health and Human Services (“government” or “respondent”) requests
that this court review a special master’s decision awarding interim attorneys’ fees and costs to
Mr. Randall Knutson. See Resp’t’s Mem. in Support of Her Mot. for Review (“Resp’t’s Mot.”),
ECF No. 40 (seeking reversal of Rehn v. Sec’y of Health & Human Servs., No. 14-1012V, 2015
WL 9412813 (Fed. Cl. Spec. Mstr. Dec. 1, 2015)). The case was initiated on October 20, 2014,
when Mr. Knutson filed a petition on behalf of Mr. Rehn alleging that he had been injured by an
1In accord with the Rules of the Court of Federal Claims (“RCFC”), App. B (“Vaccine
Rules”), Rule 18(b), this opinion and order is being initially filed under seal. By rule, the parties
have fourteen days in which to propose redactions.

Case 1:14-vv-01012-CFL Document 51 Filed 04/14/16 Page 2 of 9
influenza vaccine administered on October 26, 2011 and seeking compensation for the injury.
Within a few days after filing the petition, Mr. Knutson submitted voluminous medical records.
He also represented Mr. Rehn at several hearings and status conferences and sought opinions on
causation from treating physicians and experts. In June 2015, at Mr. Rehn’s request,
Mr. Knutson withdrew as counsel for Mr. Rehn and was replaced by Ms. Widman, who has since
pursued the case on behalf of Mr. Rehn. During the course of the continued proceedings relating
to Mr. Rehn’s claim, Mr. Knutson requested an award of interim fees and costs from the special
master, who granted the request. Because the special master correctly applied the law and
properly exercised her discretion in making the award under the circumstances of this case, the
court denies the government’s motion for review.
BACKGROUND
A. Mr. Rehn’s Medical History
Mr. Rehn has a complex medical history. Prior to receiving the vaccination at issue in
this case, Mr. Rehn had elevated triglycerides, anxiety, hypertension, sleep apnea, lipid disorder,
muscle cramps, and a herniated disc. Rehn, 2015 WL 9412813, at *2 (citing medical records,
ECF No. 7 (Nov. 4, 2014) and ECF No. 18 (July 31, 2015)). On May 25, 2011, he was
diagnosed with chronic pain syndrome. Id. Roughly five months later, on October 26, 2011, he
received an influenza (“flu”) vaccine. Id. Five days thereafter, on November 1, 2011, he
complained to his personal care physician about symptoms of illness since receiving the
inoculation, citing nasal congestion, runny nose, and an upper respiratory tract infection. Id.
Contemporaneously he told a registered nurse that he had “nasal drainage, sinus headache, body
aches, coughing, and a fever of 100 degrees.” Id. He had taken Tamiflu, but it did not help his
symptoms, which instead worsened. Id.
On November 2, 2011, petitioner visited the Allina-Cambridge Medical Center
Emergency Department in Cambridge, Minnesota, complaining of shortness of breath, non-
productive cough for the last nine days, tightness in his chest, and pain in his chest and back.
Rehn, 2015 WL 9412813, at *2. Mr. Rehn also denied having any chills or fever, which denial
was contrary to his statements to the registered nurse the previous day. Id. Petitioner was
examined by Dr. Jennifer A. Lessard, telling her that he had symptoms of rhinorrhea, sore throat,
headache, and fatigue. Id. He again said his symptoms began nine days earlier. Id.
Petitioner was transferred that same day to Abbot Northwestern Hospital in Minneapolis,
where he was examined by Dr. Paul J. Odenbach. Rehn, 2015 WL 9412813, at *2. Petitioner’s
sister stated that his symptoms began after he started using a continuous positive airway pressure
machine for the first time. Id. Petitioner was hospitalized from November 2-7, 2011, having
been diagnosed with reactive airway disease and pneumonia. Id. On November 14, 2011, he
was examined by physician’s assistant Jenny Enstrom, who noted tightness in his chest,
shortness of breath with occasional wheezing, and swelling in his lower legs. Id. He was
diagnosed with pleurisy on December 1, 2011, after reporting a clear runny nose. Id.
Petitioner was hospitalized again from December 2-11, 2011 for acute pancreatitis.
Rehn, 2015 WL 9412813, at *2. On May 30, 2012, petitioner received a CT scan of his
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pancreas, which scan his doctor determined did not show any evidence of pancreatitis. Id. at *3.
The doctor further noted that his pancreatic enzymes were normal and that he had a history of
chronic abdominal pain. Id. A subsequent exam on September 10, 2012 found cysts on his
pancreas, but an endoscopic ultrasound did not show evidence of chronic pancreatitis. Id. An
examiner saw petitioner again on June 3, 2013, noting that petitioner had started taking Norvasc
in place of Lisinopril in October 2012 due to concerns that Lisinopril was causing his
pancreatitis. Id. From March 25-28, 2014, petitioner again was hospitalized, this time for chest
pain, and received a pacemaker and defibrillator. Id.
B. Procedural History
Mr. Knutson is an attorney practicing in Mankato, Minnesota. See Knutson’s Aff. and
Mem. in Opp’n to Resp’t’s Mot. for Review (“Knutson Aff.”), ECF No. 43. He was contacted
by Mr. Rehn around May 19, 2014, investigated Mr. Rehn’s complicated medical history, see
Rehn, 2015 WL 9412813, at *2-3, and filed a vaccine petition for Mr. Rehn on October 20, 2014,
see Pet., ECF No. 1. The petition alleged that Mr. Rehn had received a flu vaccine on October
26, 2011 and afterward became symptomatic. Pet. ¶¶ 4-14. The petition specifically alleged that
the vaccine caused “reactive airway disease, acute respiratory distress, tachypnea, pneumonia,
pleurisy, and pancreatitis.” Pet. ¶ 12. Shortly thereafter, on November 5, 2014, Mr. Knutson
submitted a large volume of medical records related to Mr. Rehn’s case. See Notice of Intent to
File on Compact Disc, ECF No. 7. Upon reviewing the medical records, the special master noted
that they were “profuse and complex.” Order of December 8, 2014, ECF No. 8. The special
master further commented that Mr. Rehn’s case had two problems. First, he would need to
demonstrate that the time at which his symptoms began post-dated the administration of the
vaccine, which was problematic given that petitioner told several doctors on November 2, 2011
that his symptoms began “nine days” earlier, thus placing the onset of symptoms two days prior
to his October 26, 2011 vaccination. Id. at 5. Second, he would need to show that the “vaccine
was a substantial factor in causing” his ailments. Id. at 6.
To prove cause, Mr. Knutson informed the special master on December 15, 2014 that “he
would attempt to get an opinion from one of petitioner’s treating physicians.” Rehn, 2015 WL
9412813, at *1. As of that time, Mr. Rehn had told Mr. Knutson that “his treating doctors were
willing and able to relate his injuries to the vaccination, and would be willing to put that in
writing.” Knutson Aff. ¶ 6. The special master held further status conferences on February 5,
2015 and February 20, 2015, during which conferences Mr. Knutson said he was “still waiting to
hear back from two of petitioner’s treating physicians.” Rehn, 2015 WL 9412813, at *1. At
some time near February 20, 2015, Mr. Knutson received a letter from Jenny Enstrom, the
physician’s assistant who attended to petitioner on November 14, 2011, saying she could not
“directly relate Mr. Rehn’s recent medical conditions with receiving the flu shot.” Id. On March
6, 2015, Mr. Knutson “informed the [special master] that petitioner’s treating doctors do not
support petitioner’s allegations that his symptoms were caused by the flu vaccine. [Mr. Knutson
also] said he would speak with Mr. Rehn to see how he wanted to proceed.” Id. Concurrently
with seeking medical care from specialists, Mr. Rehn decided to move ahead with the case, and
during “a status conference on May 13, 2015, Mr. Knutson reported that he was still trying to
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obtain an expert report, and that he had an appointment to see a primary care physician in Illinois
to discuss the case.” Id.
Shortly after that status conference, Mr. Rehn decided to obtain new counsel and retained
Ms. Widman to replace Mr. Knutson. On June 1, 2015, petitioner filed a motion to substitute
counsel, ECF No. 15, which was granted the next day. New counsel, Ms. Widman, gathered
additional medical records relating to Mr. Rehn’s continued medical treatment and evaluations,
and filed them on July 31, 2015 and August 5, 2015, ECF Nos. 18, 21, and 22, along with
an amended petition on August 11, 2015, ECF No. 25. Then, on September 16, 2015,
Mr. Knutson filed a motion for interim attorney’s fees and costs. Request for Interim Fees, ECF
No. 29. He sought attorneys’ fees of $295 per hour for 26.6 hours of work, paralegal fees of $75
per hour for 50.6 hours of work, and costs of $2,510.65, for a total award of $14,152.65. Id. The
government’s opposition to an award of interim fees was filed on October 1, 2015, ECF No. 31.
On December 1, 2015, the special master granted Mr. Knutson’s motion.
Since retaining Ms. Widman, Mr. Rehn has continued to seek medical expert opinion.
On October 30, 2015, he visited Drs. Paula Rackoff and Lauren Khanna at a New York
University medical facility, asking them “if there are any antibodies to explain his illnesses.”
Medical Records at 4, ECF No. 36-1. Dr. Rackoff’s records note a “possible autoimmune
disorder,” but do not appear to comment on vaccination. Id. at 7. Next, on December 14, 2015,
Dr. Arthur Brawer of Long Branch, New Jersey evaluated petitioner and referred him to
Massachusetts General Hospital, noting that “following an influenza vaccination . . . he
developed a multisystem illness that is as yet undiagnosed” and that “I am highly suspicious that
Mr. Rehn has IgG4-related disease.” Medical Records at 1, ECF No. 38-1. In January 2016,
Mr. Rehn was examined by Dr. John H. Stone at Massachusetts General Hospital. Medical
Records at 13, ECF No. 44-1. Nonetheless, a definitive diagnosis as yet remains elusive. In due
course, Ms. Widman filed records of these exams with the special master, who held status
conferences on January 8, 2016 and March 22, 2016, and scheduled the next status conference
for May 23, 2016. Order of March 22, 2016, ECF No. 48.
JURISDICTION AND STANDARD OF REVIEW
The “Court of Federal Claims has jurisdiction to review an interim fee decision prior to
the decision on the merits of the underlying claim.” Shaw v. Sec’y of Health & Human Servs.,
609 F.3d 1372, 1376 (Fed. Cir. 2010). When reviewing a special master’s decision, the court
may take any one of the following actions:
(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
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(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). Determinations of law by the special master are reviewed de novo,
Andreu ex rel. Andreu v. Sec’y of Health & Human Servs., 569 F.3d 1367, 1373 (Fed. Cir. 2009),
findings of fact are reviewed for clear error, id., and discretionary rulings are reviewed for abuse
of discretion, Masias v. Sec’y of Health & Human Servs., 634 F.3d 1283, 1287-88 (Fed. Cir.
2011).
ANALYSIS
A. Compensation of Attorneys Under the Vaccine Act: 42 U.S.C. § 300aa-15(e)
“To stabilize the vaccine market and facilitate compensation,” Congress enacted the
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, Title III, § 311(a), 100 Stat.
3756 (codified as amended at 42 U.S.C. §§ 300aa-1 to 300aa-34) (“Vaccine Act” or “Act”).
Bruesewitz v. Wyeth LLC, 562 U.S. 223, 228 (2011). The Act establishes a federal trust fund that
is available to compensate a person who proves injury by a vaccine under “a no-fault
compensation program ‘designed to work faster and with greater ease than the civil tort
system.’” Id. (quoting Shalala v. Whitecotton, 514 U.S. 268, 269 (1995)). Persons alleging
injury by a vaccine may file a petition in this court for monetary relief, the Department of Health
and Human Services acts as the respondent, and a special master of this court decides the
petitioner’s case. Id. (citing 42 U.S.C. § 300aa-11(a)(1), -12(d)(3)). Motions for review of
special masters’ decisions are heard by judges of this court. See 42 U.S.C. § 300aa-12(e).
The Act also includes an “unusual scheme” for compensating attorneys who work on
these cases in this court; it prohibits them from charging their clients any fee for services in
connection with a vaccine injury petition. Sebelius v. Cloer, __ U.S. __, __, 133 S. Ct. 1886,
1891 (2013) (citing 42 U.S.C. § 300aa-15(e)(3)). Instead, attorneys’ fees and costs are awarded
by the special master or court and are payable from the federal trust fund. 42 U.S.C. § 300aa-
15(e)(1). If the petitioner prevails, reasonable attorneys’ fees and costs are automatically
granted. If the petitioner loses, then the special master or court “may” award “an amount of
compensation to cover petitioner’s reasonable attorneys’ fees and other costs incurred in any
proceeding on such petition if the special master or court determines that [1] the petition was
brought in good faith and [2] there was a reasonable basis for the claim for which the petition
was brought.” 42 U.S.C. § 300aa-15(e)(1); see Cloer v. Sec’y of Health & Human Servs., 675
F.3d 1358, 1362 (Fed. Cir. 2012) (holding that special master or court “may, in its discretion,
make such an award for attorneys’ fees and costs if it determines that the action was brought in
good faith and that there was a reasonable basis for the claim for which the action was brought”)
(quoting H.R. Rep. No. 99-908, at 21 (1986), 1986 U.S.C.C.A.N. 6344, 6362 (emphasis by the
court)), aff’d, Sebelius v. Cloer, __ U.S. __, 133 S. Ct. 1886; see also PGBA, LLC v. United
States, 389 F.3d 1219, 1226 (Fed. Cir. 2004) (“[U]se of the permissive ‘may’ provides the Court
of Federal Claims with discretion in fashioning relief.”).
This statutory process in Paragraph 300aa-15(e)(1) can be conceptually framed in three
steps. See, e.g., Cloer, 675 F.3d at 1362. First, the special master asks whether the petition was
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brought in good faith. Good faith is a subjective belief that a vaccine claim exists, and there is a
presumption that petitions are filed in good faith. Chuisano v. United States, 116 Fed. Cl. 276,
289 (2014). Second, the special master asks whether there was a reasonable basis for the claim.
“The presence of a reasonable basis 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),
including “‘the factual basis, the medical support, and jurisdictional issues,’ and the
circumstances under which a petition is filed.” Chuisano, 116 Fed. Cl. at 288 (quoting Di Roma
v. Sec’y of Health & Human Servs., No. 90-3277, 1993 WL 496981, at *1 (Fed. Cl. Spec. Mstr.
Nov. 18, 1993)). If the answer to either of these two questions is “no,” then the inquiry ends, and
the special master denies the motion for attorneys’ fees and costs. Third, and only if the answer
to both questions is “yes,” the special master decides whether to exercise his or her discretion to
award attorneys’ fees and costs. Cloer, 675 F.3d at 1362 (if the court finds good faith and
reasonable basis, then the court may make the discretionary decision to award fees). This
discretionary third step is based on the circumstances of the case. McKellar, 101 Fed. Cl. at 302
(“[T]he question is whether interim fees are warranted in the circumstances of this case.”).
Under Paragraph 300aa-15(e)(1), an attorney may seek fees and costs in the interim,
before a final judgment of the special master or court. See Avera v. Sec’y of Health & Human
Servs., 515 F.3d 1343, 1351-52 (Fed. Cir. 2008); see also Shaw, 609 F.3d at 1374 (“In Avera, we
held that the Vaccine Act permits the award of interim fees and costs, rejecting the government’s
argument that a fee award is only permissible after judgment under § 300aa-15.”). A motion for
interim attorneys’ fees and costs is analyzed under the same three-step framework discussed
supra. When deciding whether to award interim fees, the special master’s application of step
three – whether to exercise discretion – will as a matter of practicality but not as a matter of law
be different from motions filed after a judgment. That is because interim fee motions present
facts and circumstances different from post-judgment motions. In Avera, the Federal Circuit
provided a non-exclusive list of factors that may influence the special master’s decision whether
to exercise discretion to award interim fees and costs. See Woods v. Sec’y of Health & Human
Servs., 105 Fed. Cl. 148, 154 (2012) (holding “the Federal Circuit in Avera and Shaw did not
enunciate the universe of litigation circumstances which would warrant an award of interim
attorney’s fees”). The factors may include whether the vaccine proceedings “are protracted,”
require “costly experts,” or have caused “undue hardship” or “delay.” Avera, 515 F.3d at 1352.
But the special master may also consider any other pertinent circumstance. For example, special
masters might ask whether the attorney is still working on the case, has withdrawn from the case
voluntarily, McKellar, 101 Fed. Cl. at 302 (considering withdrawal to be a factor in the analysis),
or has been discharged by the client, see Terrell v. Sec’y of Health & Human Servs., No. 13-
334V, 2013 WL 8610026, at *1 (Fed. Cl. Spec. Mstr. Aug. 20, 2013) (awarding interim fees
after petitioner ended representation and chose to continue litigation without counsel). If there is
an indefinite delay in “receiving fees . . . until the matter is ultimately resolved,” it may be
particularly appropriate to award interim fees to an attorney who has withdrawn or been
discharged from representation. See Woods, 105 Fed. Cl. at 154 (affirming interim fee award
and finding circumstances warranted exercise of special master’s discretion, noting that the
special master found it was “unknowable” when the case would end).
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B. Application of 42 U.S.C. § 300aa-15(e) to This Case
1. Good faith.
The special master determined that the petition was brought in good faith. Rehn, 2015
WL 9412813, at *4. There was no evidence rebutting the presumption of good faith, and the
government does not contest this conclusion of the special master. See Hr’g Tr. 9:21-23 (Mar. 4,
2016), ECF No. 47 (“Respondent does not contest that [p]etitioner has the subjective good faith
belief in his petition.”); see also Resp’t’s Mot. at 5-6 (challenging only whether the claim had a
reasonable basis).
2. Reasonable basis.
The special master also determined that there was a reasonable basis for the claim,
considering the totality of the circumstances. Rehn, 2015 WL 9412813, at *4. Mr. Rehn’s claim
stems from a vaccine “covered in the Vaccine Injury Table.” Id. at *5. To support this claim,
Mr. Knutson submitted “voluminous” medical records. Id. at *4. These records show that
Mr. Rehn’s medical situation following the flu vaccination was and is “extremely complex” and
“complicated.” Id. And, these records suggest that petitioner became especially ill shortly after
his vaccination. Id.
In arguing that Mr. Knutson did not have a reasonable basis for the claim, the
government emphasizes that when the petition was filed, Mr. Knutson had not yet secured a
medical opinion that the flu vaccine caused petitioner’s injuries. Resp’t’s Mot. at 6-14. At the
time he filed the petition, Mr. Knutson relied upon his client’s statements that his doctors
supported his case. Hr’g Tr. 27:19-24, 30:13-18; Knutson Aff. ¶ 6. The government further
contends that even assuming Mr. Knutson had a reasonable basis at the time of filing, he lost any
reasonable basis for his claim when on February 20, 2015, he received a letter from Jennifer
Enstrom, the physician’s assistant, saying she would not state that plaintiff’s ailments were
caused by the flu vaccine. See Rehn, 2015 WL 9412813, at *4-5.
In analyzing reasonable basis, the special master seemingly applied a standard that was
very lenient. Among other things, she commented that “because the Vaccine Act allows counsel
to bill only for time spent on the case after the petition is filed, petitioner’s counsel cannot be
expected to investigate his client’s claims in great detail before the petition is filed.” Rehn, 2015
WL 9412813, at *5. That comment goes too far. If an attorney does not actively investigate a
case before filing, the claim may not have a reasonable basis and so may not be worthy of
attorneys’ fees and costs. See Kegler v. Sec’y of Health & Human Servs., No. 13-544V, 2014
WL 1568837, at *4 (Fed. Cl. Spec. Mstr. Mar. 28, 2014) (“Petitioner’s counsel clearly failed to
perform fundamental due diligence. Consequently, there was no reasonable basis for the filing
of [p]etitioner’s claim, and [p]etitioner is not entitled to fees and costs.”). In this instance,
however, the special master’s award did not depend on her commentary about the generality of
pre-filing investigations. Here, Mr. Knutson had gathered extensive medical records attendant to
Mr. Rehn’s claim, had formed a view of how Mr. Rehn’s circumstances fit within the framework
of the Vaccine Program, and had filed the petition and submitted the bulky medical records
shortly after the petition was filed. On the basis of those records, the special master found as a
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matter of fact that Mr. Rehn’s medical history regarding his table injury claim was “extremely
complex and voluminous.” Rehn, 2015 WL 9412813, at *5. Mr. Knutson also kept the special
master informed about the progress of the case and about his efforts to obtain a more definitive
diagnosis and a medical opinion. When these factual findings are considered in combination, the
court cannot say the special master erred in concluding there was a reasonable basis to file the
petition. Id. And, it was reasonable for Mr. Knutson to look for an expert who could address
Mr. Rehn’s complicated etiology after learning on February 20, 2015 that one of Mr. Rehn’s
physicians could not testify to a direct causal link between the vaccination and Mr. Rehn’s
worsening condition. Id.2 Overall, the court discerns no clear error in the special master’s
findings of fact underpinning her conclusion that Mr. Knutson had a reasonable basis both to file
the petition for a table injury claim and then to pursue it while endeavoring to address complex
issues of causation. Notably, the record shows that Mr. Knutson has done meaningful work on
this case.
3. Circumstances supporting the special master’s exercise of discretion.
The special master did not abuse her discretion in finding that an award of fees and costs
was appropriate under the circumstances. The special master concluded it would be an “undue
hardship” on Mr. Knutson, who withdrew at his client’s request, to wait until the conclusion of
this case for payment because “it may be months to years before an entitlement ruling is issued.”
Id. at *6. As of December 1, 2015, when the special master ruled on this issue, Mr. Rehn had
recently consulted with specialists at a New York University medical facility and was about to
undertake further consultations with specialists in New Jersey and then at Massachusetts General
Hospital. See supra, at 4. Notwithstanding Mr. Rehn’s claim to a table injury, the complex
etiology has precluded an early resolution. The court agrees that the resulting indefinite delay in
resolving Mr. Rehn’s claim constitutes a hardship to Mr. Knutson.
The government argues that the “undue hardship” analysis must focus on hardship to the
client Mr. Rehn, not the attorney Mr. Knutson. Resp’t’s Mot. at 17. But that argument is
contradicted by precedents, which establish that the special master may consider any of the
unique facts of a case when deciding whether to exercise her discretion to award fees. See
Avera, 515 F.3d at 1352 (providing examples of factors to consider). Hardship to the attorney
may be one such factor, or even the most salient factor, in this analysis. Id. (observing that the
Vaccine Act is designed “to ensure that vaccine injury claimants have readily available a
competent bar to prosecute their claims”); Woods, 105 Fed. Cl at 154 (considering effect of delay
on the attorneys); Morris v. Sec’y of Health & Human Servs., No. 12-415V, 2014 WL 8661863,
2The special master also noted that Mr. Rehn had first contacted Mr. Knutson
approximately five months before the statute of limitations ran on his claim, and that
Mr. Knutson consequently was under some pressure to complete his investigation of the claim in
a timely way. Rehn, 2015 WL 9412813, at *5. This timing, however, appears to have had little,
if any, adverse effect on Mr. Knutson’s investigatory activities because he was able to complete
them without undue difficulty. That a causation opinion by treating and consulting physicians
has proved to be problematic appears to have been largely attributable to Mr. Rehn’s numerous
adverse health symptoms and the resulting lack of clarity in deriving a singular diagnosis.
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at *4 (Fed. Cl. Spec. Mstr. June 4, 2014) (considering harm to counsel caused by “delay
receiving fees”).
The government next argues that there is no harm in making Mr. Knutson wait for fees,
postulating that his situation is comparable to that of a typical personal injury attorney.
“[P]ersonal injury attorneys commonly advance litigation costs and only receive payment at the
conclusion of a case, if their clients are victorious. Personal injury law firms are able to sustain
themselves despite the built-in delay and uncertainty regarding payments.” Resp’t’s Mot. at 17.
This is a poor analogy. Although personal injury attorneys may need to wait for months or years
while prosecuting a case to resolution, they still retain some control over the pace of the case,
unlike Mr. Knutson here.
The circumstances at hand support an award of interim fees and costs. Mr. Knutson
investigated the pertinent facts and circumstances before filing the petition, supported the
petition with medical records, sought medical opinions on causation, and kept the special master
informed of the fact that Mr. Rehn’s medical complications were posing difficulties not only
personally for Mr. Rehn but also for the progression of his claim. Since the time when Mr. Rehn
chose to replace Mr. Knutson, the case has proceeded actively but slowly, and the special master
found it could be “years” before a resolution. Under these circumstances, the special master did
not abuse her discretion by awarding interim fees and costs.3
CONCLUSION
The government’s motion for review of the special master’s decision awarding interim
attorneys’ fees and costs is DENIED, and the special master’s decision to award interim fees and
costs is AFFIRMED.
It is so ORDERED.
s/ Charles F. Lettow
Charles F. Lettow
Judge
3The government has not asked this court to review the special master’s conclusion that
$14,152.65 was a reasonable amount of fees and costs.
9

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DOCUMENT 2: USCOURTS-cofc-1_14-vv-01012-3
Date issued/filed: 2016-09-27
Pages: 7
Docket text: PUBLIC DECISION (Originally filed: 8/30/2016) regarding 65 DECISION of Special Master. Signed by Special Master Laura D Millman. (kh) Copy to parties.
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REISSUED FOR PUBLICATION
SEP 27 2016
OSM
U.S. COURT OF FEDERAL CLAIMS

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DOCUMENT 3: USCOURTS-cofc-1_14-vv-01012-5
Date issued/filed: 2017-03-15
Pages: 9
Docket text: JUDGE VACCINE UNREPORTED OPINION and ORDER (Reissuance of 78 Opinion and Order). Signed by Judge Charles F. Lettow. (dls) Copy to parties.
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Case 1:14-vv-01012-CFL Document 80 Filed 03/15/17 Page 1 of 9
(}RE$EhIAt
lJn tW @nite! btsttr [,ourt of felers[ @kims
No. 14-l0l2V
(Filed: March 2,2017)
FILED
(Reissued: March 15, 2007)
I
MAR 5 20t7
(NOT TO BE PUBLISHED)
U.S. COURT OF
* * :1. * * * *,t * * * * * 't ,t * * * * * {(:t ,r:r * * * * * * *,t * * * * * ) FEDERAL CLAIMS
GARRYREHN.
Petitioner,
SECRETARYOFHEALTHAND
)
SERVICES,
HUMAN
]
Respondent,
t
)
* * * + * * * * ,* * * * * *,t *:*:t jt )**++**,t *:k,t**:t ****:i
Garry Rehn, pro se, North Branch, Miruresota.
Phyllis Widman, Widman Law Firm, LLC, Ocean City, New Jersey, on behalf of herself
as former attorney for petitioner.
Adriana Teitel, Trial Attomey, Torts Branch, Civil Division, United States Department of
Justice, Washington, D.C. for respondent. With her on the briefs were Benjamin C. Mizer,
former Principal Deputy Assistant Attomey General, civil Division, and c. Salvatore D'Alessio,
Acting Director, Catharine E. Reeves, Acting Deputy Director, and Heather L. pearlman,
Assistant Director, Torts Branch, Civil Division, United States Department of Justice.
Washington, D.C.
OPINION AND ORDERI
LETTOW, Judge.
Phyllis Widman, as former attomey for petitioner Gany Rehn, requests that this court
review Special Master Millman's decision denying attomeys' fees and costs with regard to Ms.
rln
accord with the Rules of the Court of Federal Claims (,,RCFC,'), App. B (,,Vaccine
Rules"), Rule 18(b), this opinion and order is being filed initially under seal. By rule, the parties
have fourteen days in which to propose redactions.

Case 1:14-vv-01012-CFL Document 80 Filed 03/15/17 Page 2 of 9
Widman's work on this case. ,See Pet'r's Mem. in Support of her Mot. for Review ("Widman
Mem."), ECF No. 72-1. The case was initiated on October 20, 2014, when petitioner filed a
petition pursuant to the National Vaccine Injury Compensation Program,2 alleging that he
"suffered reactive airway disease, acute respiratory distress, tachlpnea, fever, cough, shortness
ofbreath, chest tightness, headache, body aches, dizziness and weakness, pneumonia, pleurisy,
and pancreatitis caused by the influenza ('flu') vaccination he received on October 26, 201 1."
Rehn v. Sec'y of Health & Human Servs.,No. 14-1012V, 2016 WL 6948458, at * 1 (Fed. Cl.
Spec. Mstr. Oct. 31, 2016) ("Rehn V'). Petitioner was initially represented by Randall G.
Knutson, until he filed a motion on June l, 2015 to substitute Ms. Widman as counsel in place of
Mr. Knutson. Id. at*2. Ms. Widman thereafter served as petitioner's counsel until she filed a
motion to withdraw on April 20, 2016, which the special master granted on May 23,2016. Id.
Petitioner proceeded pro se until August 30,2016, when he asked the special master during a
status conference to dismiss his case. Id. at *3 . That same day, the special master dismissed
petitioner's case for failure to prove prima facie grounds for relief. Id.
Concunently with Ms. Widman's motion to withdraw as counsel, petitioner filed a
motion lor interim aftomeys' fees for the work performed by Ms. Widman. Mot. for Intenm
Fees & costs, ECF No. 52. The special master did not act on that motion at the sarne time she
decided Ms. Widman's motion to withdraw as counsel. Rather, the special master addressed Ms.
widman's motion on octobet 31,2016, over five months after granting the withdrawal, denying
the motion for fees and costs because the special master concluded that there was no reasonable
basis for petitioner's claim when Ms. widman took over as counsel. see generally Rehn v,2016
wL 6948458. Acting after a grant of leave by the special master, Ms. widman filed a motion for
review of the special master's decision on November 30, 2016, and respondent filed a motion to
dismiss Ms. widman's motion for review for lack ofjurisdiction on December 19, 2016. Both
motions are now pending before the court. For the reasons stated, the court denies respondent's
motion to dismiss, denies Ms. Widman's motion for review, and affirms Special Master
Millman's decision to deny petitioner's motion for attomeys' fees and costs with regard to the
work performed bv Ms. Widman.
BACKGROUND
A. Mr. Rehn's Medical History
"Mr. Rehn has a complex medical history.', Rehn v. Sec'yof Health & Human Servs.,
126Fed.cI.86,88(2016)("Rehnlr'). Priortooctober26,20ll,thedateonwhichhereceived
the flu vaccination at issue in this case, "Mr. Rehn had elevated triglycerides, anxiety,
hypertension, sleep apnea, lipid disorder, muscle cramps, and a herniated disc." Id. at gg-g9
(citations omitted). He was also diagnosed with chronic pain syndrome on May 25, 2011. Id. at
j,20ll,
89. He was hospitalized from November 2 to after being diagnosed with reactive
airway disease and pneumonia. 1d From December 2 to 11, 2011, Mr. Rehn was hospitalized
again for acute pancreatitis. 1d Multiple examinations in20l2, however, did not show evidence
2The
program was instituted by and under the National Childhood Vaccine Iniurv Act of
1986, Pub. L. No. 99-660, 100 Stat. 3755 (codified as amended at 42 U.S.C. gg 300aa-l to
300aa-34) ("Vaccine Act" or "Act").

Case 1:14-vv-01012-CFL Document 80 Filed 03/15/17 Page 3 of 9
of chronic pancreatitis. 1d Mr. Rehn was hospitalized for a third time from March 25 to 28,
2014 due to chest pain, and he received a pacemaker and a defibrillator. .Id
On October 30, 2015, petitioner visited a doctor to seek a second opinion regarding
whether there were "any antibodies to explain" his joint pain. Rehn V,201,6 WL 6948458, at *4
(citing medical records, ECF No. 36). The doctor found no evidence that Mr. Rehn had
inflammatory arthritis, but did recommend testing for Behcet's disease, an autoimmune disordcr,
due to a positive HLA-B2'7 result. 1d. On December 14,2015, Dr. Arthur E. Brawer evaluated
petitioner "via referral by his vaccination filing attomey" and refened him to the Ig-G4-Related
Disease Program at Massachusetts General Hospital. Id. (citingmedical records, ECF No. 3g).
Mr. Rehn underwent testing at Massachusetts General Hospital in early 2016. 1d (citing medical
records, ECF No.44). He was found not to have any evidence oflg-G4-related disease, and the
testing also showed no evidence of active chronic pancreatitis or inflammation. 1d. In sum, the
medical records provided to the special master show that Mr. Rehn did not receive a definitive
diagnosis with regard to the claims in his petition before or during the pendency of his vaccine
claim.
B. Procedural History
At the time Ms. Widman took over for Mr. Knutson as petitioner's attomey in June 2015,
petitioner had represented to the special master that he was trying to obtain an expert report from
a treating physician to support his case. Rehn v,2016wL 694g459, at *1-2. onJuly it,zols,
petitioner filed a letter written by Jerury Enstrom, pA-c, a physician's assistant who stated that
she could not "directly relate Mr. Rehn's recent medical conditions with receiving the flu shot."
*2
Id. at (citing medical records, ECF No. I 8) (intemal quotation marks omitted;. shortly
thereafter, on August 11,2015, Ms. widman filed an amended petition on behalf of Mr. Rehn,
alleging that the flu vaccine caused "significant aggravation ofan unidentified autoimmune
disorder." Id. (citing Am. Pet. for Vaccine Compensation, ECF No. 25). Ms. Widman
subsequently submitted a number of medical records on petitioner's behalf, but these records
failed to show that petitioner had a medical condition connected to his receipt of the flu vaccine
in 2011. see id. Dving a status conference held on March22,20l6, the special master
explained to Ms. Widman that "petitioner would need to be diagnosed with a condition before he
attempted to prove causation." 1d
On April 20,2016, Ms. Widman filed a motion to withdraw as counsel from petitioner's
case. Mot. to withdraw as counsel, ECF No. 53. on the same day, she filed on behalf of
petitioner a motion for interim attomeys' fees,3 seeking $22,g30 in attomeys' fees for worx
performed by Ms. Widman, $3,687.50 in attomeys' fees for work performed by Mr. Knutson
during this court's review ofthe special master's first interim fee decision, and$3.245.01 in
jPetitioner
- had previously filed a motion for interim attomeys' fees for the work
performed by Mr. Knutson prior to his withdrawal from the R"q. for Interim Fees, ECF
No. 29. The special master granted petitioner's motion and a "u w r a " r . d ed i4,tsz.es for the work
performed by Mr. Knutson. Rehnv. sec'y of Health & Human servs., No. l4-1012v,2015 wL
9412813, at *6 (Fed. cl. spec. Mstr. Dec. 1,2015) (" Rehn l). Respondent filed a motion for
review ofthe fee award, whereupon this court denied respondent's motion and affirmed the
special master's decision. Rehn II,126 Fed. Cl. 86.

Case 1:14-vv-01012-CFL Document 80 Filed 03/15/17 Page 4 of 9
attomeys' costs. Mot. for Interim Fees & Costs at2. The special master granted Ms. Widman's
motion to withdraw on May 23,2016, and petitioner subsequently pro ceeded pro se. Rehn V,
*2.
2016 WL 6948458, at On June 9,2016,the special master partially granted the motion for
interim attomeys' fees, awarding $3,687.50 to petitioner for the work performed by Mr. Knutson
and reserving judgment on the issues of attomeys' fees and costs for the work performed by Ms.
Widman. Rehnv. Sec'y of Health & Human Servs., No. 14-1012V, 2016 WL 3606064. at *1
(Fed. Cl. Spec. Mstr. June 9, 2016) ("Rehn III').
Following Ms. Widman's withdrawal from the case, the special master explained to
petitioner during a status conference held on June 6,2016 that "he had not proven causation
because he had not filed medical records or an expert medical opinion supporting his claim that
the flu vaccine caused him to develop the injuries outlined in his amended p etition.,, Rehn V,
*3.
2016 WL 6948458, at On July 7,2016, petitioner filed an additional letter from Ms. Enstrom
that stated petitioner "ha[d] been seen by two different specialists who do feel that [his] medical
issues are directly related to the flu shot and that these are [the] side effects." 1d. (quoting Letter
from Jenny E. Enstrom, PA-c, June 21,2016, ECF No. 61-1) (intemal quotation marks omitted).
The special master explained to petitioner that the letter did not prove his case because Ms.
Enstrom is not a doctor and therefore not a medical expeft, Id. on August 30,2016, petitioner
represented to the special master that "he had been unable to find a doctor to support his case,'
and requested that the case be dismissed. 1d The special master dismissed the pitition the same
day "for failure to prove aprima facie case." Id.;Rehnv. sec'y of Health& Human servs.,No.
*l
l4-1012V,2016 WL 5390170, at (Fed. Cl. Spec. Mstr. Aug. 30,20t6) (,,Rehn It).
On October 31, 2016,tJ;Le special master denied petitioner's motion of April 20th with
regard to attomeys' fees and costs for Ms. Widman. Because the petition had been dismissed by
the time of that decision, the motion was treated as a motion for final, rather than interim.
attomeys' fees and costs. Rehn v,2016 wL 6948458, at * I . The special masrer held that while
petitioner had a reasonable basis for his claim when it was originally filed, a reasonable basis no
longer existed when Mr. Knutson withdrew and Ms. Widman took over as petitioner's counsel.
Id. at*6-8. Ms. widman "should have been on notice that reasonable basis would likely be at
issue in this case" after Mr. Knutson spent seven months searching for support for petitioner,s
case with no success. Id. at*7. The evidence failed to show that before deciding tb represent
Mr. Rehn, Ms. widman had taken reasonable steps, such as reviewing medical records, speaking
to petitioner's former counsel, or asking a medical expert to review the case, to determini
whether petitioner had a reasonable basis for his claim. .See id. at*7-g. Because there was no
reasonable basis for petitioner's claim during Ms. widman's representation, the special master
found that an award of attomeys' fees and costs to petitioner for Ms. widman's work was
*t.
inappropriate under the Vaccine Act. Id. at
on November 30,2016, Ms. widman filed a motion for leave to file a motion for review
ofthe special master's decision denying final attomeys' fees and costs. Leave to File Mot. for
Review, ECF No. 70. over respondent's objection, the special master granted Ms. widman,s
motion for leave. order ofNov. 30,2016, ECF No. 71. In her motion for review, Ms. widman
claims that the special master's denial of attorneys' fees and costs was an abuse ofdisctetion.
See generally Widman Mem. She argues that there was a reasonable basis for petitioner's claim

Case 1:14-vv-01012-CFL Document 80 Filed 03/15/17 Page 5 of 9
during the time she represented petitioner, and that she performed appropriate research and
screening before deciding to take on the case. Id. at7-10.
Respondent subsequently filed a motion to dismiss Ms. Widman's motion for review,
claiming that the court lacks jurisdiction to decide Ms. Widman's motion because she is not a
party and no longer represents petitioner in this case. See generally Resp't's Mot. to Dismiss the
Mot. for Review ("Resp't's Mot."), ECF No. 75. Both Ms. Widman's and respondent's motions
have been fully briefed and are ready for disposition.
JURISDICTION
This court has jurisdiction to review a special master's decision under the Vaccine Act
and may take one ofthe following actions upon review ofthe decision:
(A) uphold the frndings of fact and conclusions oflaw ofthe special master
and sustain the special master's decision,
(B) set aside any findings offact or conclusion of law of the special master
found to be arbitrary, capricious, an abuse ofdiscretion, or otherwise not in
accordance with law and issue its own findines 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); see Raymo v. Sec'y of Health & Human Servs.,129 Fed. Cl. 691,
700 (2016). Generally, to obtain review of a special master's decision, a party must file a motion
for review with the clerk of this court. S€e 42 U.S.C. 300aa-12(eXl); Vaccine Rule 23.
Respondent argues that Ms. Widman did not have standing to file her motion for review
because she is not a party to the action and did not file her motion as the representative ofa
party, but rather filed on her orm behalf. See Resp't's Mot. at l, 5. Respondent contends that
Ms. Widman effectively is attempting to intervene as a third party in petitioner's case and that
such intervention is expressly disallowed by Vaccine Rule 15, see rd at 5, which only provides
"interested individuals an opportunity to submit relevant written information" regarding the
petition, Vaccine Rule 15; see also Brannigan v. Sec'y of Health & Human Servs., No. l4-675V,
2016 wL 7338616, at + 1-2 (Fed. cl. Nov. 23,2016) (holding that petitioner's former atromey
did not have standing to seek review ofa decision by a special master regarding attomeys' fees
and costs because the attomey was not a party and the special master had granted the attorney
leave to file the initial motion under vaccine Rule l5 after the attomey had already withdrawn).
Unlike in Brannigan, where the attomey filed her motion for fees and costs after her
motion to withdraw had been granted, petitioner filed the initial motion for attomeys' fees and
costs for tlle work performed by Ms. Widman while Ms. Widman still represented petitioner in
the ongoing vaccine injury compensation case. See RehnV,2016WL6948458,at*2. This
initial motion was proper and timely filed. see Vaccine Rule 13. The govemment's motion,
however, draws on the fact that the special master did not make any decision regarding fees for

Case 1:14-vv-01012-CFL Document 80 Filed 03/15/17 Page 6 of 9
Ms. Widman until October 31,2016, more than five months after the special master granted Ms.
Widman's motion to withdraw as counsel. See Resp't's Mot. at l, 5. The Vaccine Rules do not
mandate any specific time for issuing a decision on attomeys' fees and costs, and the delay in
acting on the request for fees and costs in this case occurred independent ofany action or
inaction by Ms. Widman. In short, Ms. Widman had standing when the motion for attomeys'
fees and costs was initially filed because she was a representative ofa party at that time, and the
salient question is whether that standing was destroyed by the special master's issuance ofthe
fee decision after granting Ms. Widman's motion to withdraw. The question might altematively
be framed as whether, after the dismissal of the petition had been entered, the special master
retained jurisdiction to address ancillary issues that had not been resolved by entry of the
judgment of dismissal, i.e., whether the special master kept jurisdiction to consider and decide
the motion for fees and costs that was pending when the judgment of dismissal was entered. By
her actions, the special master certainly considered that she kept that decisionmaking power.
Here also, Ms. Widman appropriately sought leave of the special master to file her
motion for review, which the special master granted. InReilingv. Sec'yof Heatth & Human
n
Servs.,128 Fed. Cl. 54 (2016), attomey who had withdrawn as counsel was found not to have
standing to seek review of a denial of attomeys' fees and costs because he did not seek leave of
the special master to file the motion for review, but rather filed his motion directly in this court.
Id. at 59-60. The court held that the special master's prior grant of leave to file a reply brief after
the attomey missed a deadline did not constitute "indefinite leave to participate in [petitioner's]
vaccine claim as a third-party, despite having withdrawn as counsel to the petitioner ." Id. ar 59.
In this case, however, the special master specifically granted Ms. widman's motion for leave to
file a motion for review in this court, noting that the motion was timely filed under Vaccine Rule
23 and that granting the motion was in the "interest of allowing the case to be decided on the
merits." orderofNov.30,2016,ECFNo.7l. This decision was properly within the special
master's discretion. combined with the fact that Ms. widman had standing to seek review when
her motion for attomeys' fees was initially filed, the special master's subsequent grant of Ms.
widman's motion for leave to seek review is sufficient to support standing in this court.
Therefore, the court has jurisdiction to consider Ms. Widman's motion for review of the special
master's denial of attomeys' fees and costs, and respondent's motion to dismiss is denied.
STANDARD OF REVIEW
A special master's determinations oflaw are reviewed de novo, findings offact are
reviewed for clear error, and discretionary rulings are reviewed for abuse ofdiscretion. I1ail v.
sec'y of Health & Human servs., 640 F.3d 1351, 1354-55 (Fed. cir. 2011) (citations omitted).
The vaccine Act provides that a court may award attomeys' fees and costs incurred by a
petitioner in pursuing an ultimately unsuccessful vaccine-injury petition ifthat petition,,,was
brought in good faith and there was a reasonable basis for the claim for which the petition was
brought."' Sebelius v. Cloer, U.S. _, _, 133 S. Ct. 1886, 1890 (2013) (quoting 42 U.S.C.
$ 300aa-15(e)(l)). The decision of whether a particular petition was brought in good faith and
had a reasonable basis at the time of filing, and therefore that counsel would be entitled to
attomeys' fees, is within the discretion ofthe special master and is generally reviewed for abuse
ofdiscretion. Davis v. Sec'y of Health & Human Servs.,105 Fed. CL.627,633 (2012) (citing
McKellar v. sec'y of Health & Human servs., 101 Fed. cl. 297,305 (201 1) (in rum c iting saxton

Case 1:14-vv-01012-CFL Document 80 Filed 03/15/17 Page 7 of 9
ex rel. Saxton v. Sec'y of the Dep't of Health & Human Serys., 3 F.3d 1517, 1520 (Fed. Cir.
r ee3))).
This court will only find an abuse ofdiscretion when, as set out by the Federal Circuit in
other contexts, the special master's decision "(1) is clearly unreasonable, arbitrary, or fanciful;
(2) is based on an erroneous conclusion of law; (3) rests on clearly enoneous fact findings; or (4)
follows from a record that contains no evidence on which the [special master] could rationally
base [his] decision." Davis,105 Fed. Cl. at 633 (2012) (quoting Mnestar Tech. Co. v.
International Trade Comm'n,667 F.3d1373,1379 (Fed. Cir. 2012)) (alterations in original).
This deferential standard "is not a rubber stamp." 1d (citations omitted). The special master
must provide sufficient findings and analysis to ensure that a reviewing court can adequately
determine whether an abuse of discretion has occurred. Caves v. Sec'y of Health & Hunan
Servs., 111 Fed.Cl.774,779 (2013) (citations omitted). If, however, "the special master has
considered the relevant evidence ofrecord, drawn plausible inferences and articulated a rational
basis for the decision, reversible error will be extremely difficult to demonstrate." Hall,640
F.3d at 1355 (q:;oting Hines v. Sec'y of Health & Human Servs.,940 F.2d 1518, 1528 (Fed. Cir.
1991)).
ANALYSIS
The govemment concedes and the special master acknowledged that the petition was
filed in good faith. RehnV,2016WL6948458, at *6. The denial of fees was based upon the
special master's finding that the petition lacked a reasonable basis when Ms. widman toor over
as petitioner's attomey. Id. at*6-8. "The presence ofa reasonable basis is an objective
consideration determined by the totality of the circumstances." McKellar,101 Fed. cl. at 303.
That totality encompasses any jurisdictional questions, the factual basis and medical support for
the petition, any legal issues that arise, and the circumstances under which the petition was filed.
Chuisano v. United States,116 Fed. Cl.276,288 (2014) (citation omitted). This laner
consideration includes a temporal assessment - a petition that had a reasonable basis at the time
of filing may not continue to have a reasonable basis throughout its pendency. see perreira v.
Sec'y of the Dep'tof Health & Human Servs.,33 F.3d 1375,13j7 (Fed. Cir. 1994) (confirmrng
that a special master may not award fees to a petitioner's attomey after the point in time when it
was evident there was no longer a reasonable basis for the petition); see also Chuisano, 1 16 Fed.
Cl. at 289 ("[T]he [Vaccine Act] . . . permit[s] the reexamination of a claim's reasonable basis if
a notable change in circumstance should arise (such as here, when the original counsel was
unable to find an expert to support causation, but substitute counsel continued with the litisation
anyway).").
This court previously held that there was a reasonable basis for petitioner's claim while
petitioner was represented by Mr. Knutson. Rehn II, 126 Fed. Cl. at 92-93 . Nonetheless,
thereafter the special master dismissed the petition for failing to prove a prima facie case,
determining that petitioner's claim did not have a reasonable basis. see Rehn v,2016wL
*6-8.
6948458, at Ms. Widman asserts, however, that the reasonable basis for the claim
continued throughout her representation ofpetitioner, specifically arguing that she diligently
pursued new theories ofthe case by seeking out medical opinions to support petitioner's claims.
See Widman Mem. at 8-10. The special master found, however, that there was no lonqer a

Case 1:14-vv-01012-CFL Document 80 Filed 03/15/17 Page 8 of 9
reasonable basis for petitioner's claim after Mr. Knutson withdrew, and Ms. Widman should
have recognized that the case did not have a reasonable basis before she took it on. Rehn V,
*6-8.
2016 WL 6948458, at
The special master did not abuse her discretion in finding that petitioner's claim did not
have a reasonable basis during the pendency of Ms. Widman's representation. The special
*Mr.
master observed that Knutson spent approximately seven montls attempting to find expert
support for petitioner's case," and in that time he was unable to find such support. Rehn V,2016
WL 6948458, at*6; see also Aff. of Randall Knutson,lffl 3-6, ECF No. '77-1. Mr. Knutson's
withdrawal from the case without finding a credible expert witness thus acted as a "signal" to
Ms. Widman about the weakness of the case, and Ms. Widman should have been on notice that
there may not have been a reasonable basis for petitioner's claim, Rehn V,2016 WL 6948458, at
*7-
Ms. Widman argues that the special master imposed a duty on her to ,,know the progress,
extent and details of the prosecution of [petitioner's] claim [as] controlled by the previous
attomey, before taking over [the] case as subsequent counsel." Widman Mem. at 2. Howcver,
the special master did not hold Ms. Widman to such an exacting standard. Counsel has a duty to
peteira,33
evaluate whether a claim continues to have a reasonable basis, see F .3d, at 1377, and
that duty is magnified when counsel should be aware of the potential weakness ofa claim, see
Rehn V,2016 WL 6948458, at *7. To fulfill that duty, counsel may, for example, ,,choose to
speak with the potential client's former counsel, ask a medical expert to take a look at the case,
or see the results of certain medical tests before he or she agrees to take the case." Id.
The special master noted, and the court agrees, that Ms. Widman did not reasonabry
fulfill her duty to evaluate whether petitioner's claim had a reasonable basis before taking him on
as a client. She had access to a summary ofpetitioner's medical records because the special
master had previously issued such a summary and explained the necessary prerequisites to prove
petitioner's claim. See id. at *7-8; see also Order of Dec. 8, 2014, ECF No. g. Additionally,
petitioner reportedly told Ms. Widman before the representation that he had been unable to find
an expert to support his claim while Mr. Knutson had been his attomey, see widman Mem. at 4,
indicating that Ms. Widman was on notice that petitioner's claim may not have had a reasonable
basis. Despite these warning signals, Ms. widman relied on "the temporal closeness between
petitioner's receipt ofthe flu vaccine and alleged onset of his symptoms," a basis for causatron
not substantiated by any ofthe summarized medical records or later-sought expert opinions.
*7.
Rehn V,2016 WL 6948458 at Further, Ms. Widman relied on the amended petition she frled
to argue that petitioner had an autoimmune disorder stemming from the vaccination. Id. at *g.
The court agrees with the special master that the amended petition does not support a continued
reasonable basis for petitioner's claim during Ms. widman's representation, because ,,these
indications of a possible autoimmune disorder were present when Mr. Knutson had the case, and
he was unable to frnd expert support." a
1d.
4Ms.
Widman also argues that the special master should have alerted her that a reasonable
basis for the claim had been lost at some time during her representation of petitioner. Widman
Mem. at 5, 6, 10. The special master has no such obligation; rather, counsil bears the risk of
taking on a claim that may not have a reasonable basis to move forward. see Rehn v,2016wL

Case 1:14-vv-01012-CFL Document 80 Filed 03/15/17 Page 9 of 9
Mr. Rehn's complex medical history and conditions prevent drawing a bright line
regarding when petitioner's claim lacked a reasonable basis. Even so, the totality ofthe
circumstances indicate that petitioner had lost the reasonable basis for his claim by the time that
Ms. Widman became his attorney. Therefore, the special master did not abuse her discretion in
determining that Ms. Widman is not entitled to attomeys' fees and costs for the work she
performed on petitioner's case.
CONCLUSION
For the reasons stated, respondent's motion to dismiss Ms. Widman's motion for review
is DENIED, Ms. Widman's motion for review of the special master's decision denying
attomeys' fees and costs is DENIED, and the special master's decision to deny attomeys' fees
and costs with regard to work performed by Ms. Widman is AFFIRMED. Acting pursuant to
Vaccine Rule 34(b), the court DENIES as moot Ms. Widman's motion for an award of additional
attomev's fees. filed November 30. 2016. ECF No. 73.
It is so ORDERED.
CharleS
*7.
6948458, at Additionally, the special master raised concerns regarding the lack ofsupport
for petitioner's allegations throughout the proceedings. See, e.g., Order ofDec. 8, 2014; Order
olAug. 13. 2015. ECF No. 26.