VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_14-vv-01219
Package ID: USCOURTS-cofc-1_14-vv-01219
Petitioner: M.M.
Filed: 2014-12-22
Decided: 2016-12-13
Vaccine: Varicella
Vaccination date: 2012-05-23
Condition: chronic urticarial and chronic hives, as well as episodes of shakiness, chest pain, hyperventilating, depression, leg pain, headaches and related symptoms
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
On December 22, 2014, Julie Mounts filed a petition on behalf of her minor child, M.M., alleging that Varicella, DTaP, and Meningococcal vaccines administered on May 23, 2012, caused M.M. to suffer from chronic urticarial and chronic hives, as well as episodes of shakiness, chest pain, hyperventilating, depression, leg pain, and headaches. The petition was filed under the National Childhood Vaccine Injury Act of 1986. The Special Master, Lisa Hamilton-Fieldman, issued a decision on March 25, 2016, dismissing the petition. This decision followed Petitioner's motion to dismiss, in which she stated that an investigation demonstrated an inability to prove entitlement to compensation and that proceeding further would be unreasonable and a waste of resources. The Special Master found no evidence that M.M. suffered a "Table Injury" and no persuasive evidence, such as a medical expert's opinion, to establish that M.M.'s injuries were caused by the vaccination. The public decision does not describe the onset of symptoms, specific medical tests, or treatments. Petitioner did not offer a medical opinion to support her claim, and the medical records were deemed insufficient to establish entitlement. The case was dismissed for insufficient proof, and no compensation was awarded. Subsequently, Petitioner sought attorneys' fees and costs. On December 13, 2016, Judge Thomas C. Wheeler reviewed the Special Master's decision denying these fees. The Petitioner had requested approximately $8,700 in fees. The Respondent opposed the motion, arguing that the Petitioner lacked a reasonable basis for filing the claim. The Special Master had denied the fees, finding that Petitioner lacked a reasonable basis for pursuing the claim. The Special Master noted that counsel for the Petitioner had not sought more complete medical records before filing, that counsel's claim of consulting records before filing was questionable as records were submitted late, and that the statute of limitations had not been imminent. The Special Master also found that an allergist's opinion that M.M.'s urticaria was "idiopathic" (of unknown origin) did not establish a reasonable basis for the claim. The Special Master concluded the petition was supported by Petitioner's representations, which ran contrary to her medical records. Petitioner argued that counsel had reviewed some records, her affidavit supported her claims, and that timing of onset is not solely determined by medical records. Respondent countered that medical records indicated urticaria developed at least fourteen months after vaccination, suggesting further investigation was needed before filing. Judge Wheeler affirmed the Special Master's denial of fees, finding that the Special Master acted within her discretion and that the decision was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. The Court noted that the Special Master clearly explained her view that Petitioner's counsel did not sufficiently investigate the records before filing, resulting in a vaccine claim without a reasonable basis. The decision was reissued on December 13, 2016, after being initially filed under seal.

Theory of causation field:
Petitioner Julie Mounts, on behalf of minor M.M., alleged that Varicella, DTaP, and Meningococcal vaccines administered on May 23, 2012, caused chronic urticaria, chronic hives, and related symptoms. The petition was filed on December 22, 2014. The Special Master Lisa Hamilton-Fieldman dismissed the petition on March 25, 2016, for insufficient proof, finding no "Table Injury" and no persuasive evidence, including a medical expert's opinion, to establish causation. Petitioner voluntarily moved for dismissal, stating an inability to prove entitlement. Medical records, filed later, indicated urticaria onset at least fourteen months post-vaccination. The Special Master denied Petitioner's subsequent request for attorneys' fees and costs, finding the petition lacked a reasonable basis for filing, as counsel had not sufficiently investigated medical records prior to filing and the alleged injuries were not supported by the medical evidence. Judge Thomas C. Wheeler affirmed the denial of fees on December 13, 2016, agreeing that the Special Master acted within her discretion. Petitioner's counsel was Verne E. Paradie, Jr., and Respondent's counsel was Christine Becer.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_14-vv-01219-0
Date issued/filed: 2016-04-15
Pages: 2
Docket text: PUBLIC DECISION (Originally filed: 3/25/2016) regarding 45 DECISION of Special Master. Signed by Special Master Lisa Hamilton-Fieldman. (mb) Copy to parties.
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Case 1:14-vv-01219-TCW Document 46 Filed 04/15/16 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 14-1219V
Filed: March 25, 2016
* * * * * * * * * * * * * * * * * * * * * * * * * UNPUBLISHED
JULIE MOUNTS on behalf of *
and as next friend for M.M., *
* Special Master Hamilton-Fieldman
Petitioner, *
*
v. * Petitioner’s Motion for Dismissal
* Decision; Varicella Vaccine;
SECRETARY OF HEALTH * Diptheria-Tetanus-acellular-Pertussis
AND HUMAN SERVICES, * (“DTaP”) Vaccine; Meningococcal
* Vaccine; Chronic Urticaria; Chronic
Respondent. * Hives.
* * * * * * * * * * * * * * * * * * * * * * * * *
Verne E. Paradie, Jr., Paradie, Sherman, Walker & Worden, Lewiston, ME, for Petitioner.
Christine Becer, United States Department of Justice, Washington, DC, for Respondent.
DECISION1
On December 22, 2014, Julie Mounts (“Petitioner”) filed a petition for compensation on
behalf of a minor child, M.M., under the National Childhood Vaccine Injury Act of 1986, 42
U.S.C. §§ 300aa-1 et seq. (2006) (“Vaccine Act”). Petitioner alleged that the administration of
Varicella, Diptheria-Tetanus-acellular-Pertussis (“DTaP”), Meningococcal Vaccines on May 23,
2012 caused M.M. to suffer from chronic urticarial and chronic hives, as well as episodes of
shakiness, chest pain, hyperventilating, depression, leg pain, headaches and related symptoms.
The undersigned now finds that the information in the record does not show entitlement to an
award under the Program.
On March 25, 2016, Petitioner filed a Motion for a Decision Dismissing her Petition.
According to the motion, “[a]n investigation of the facts and science supporting her case has
demonstrated to petitioner that she will unable to prove that she is entitled to compensation in the
1 Because this unpublished decision contains a reasoned explanation for the action in this case,
the undersigned intends to post this decision on the United States Court of Federal Claims’
website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116
Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 and note (2006)). In accordance with
Vaccine Rule 18(b), a party has 14 days to identify and move to delete medical or other
information, that satisfies the criteria in § 300aa-12(d)(4)(B). Further, consistent with the rule
requirement, a motion for redaction must include a proposed redacted decision. If, upon review,
the undersigned agrees that the identified material fits within the requirements of that provision,
such material will be deleted from public access.

Case 1:14-vv-01219-TCW Document 46 Filed 04/15/16 Page 2 of 2
Vaccine Program.” Accordingly, Petitioner has determined that “to proceed further would be
unreasonable and would waste the resources of the Court, the Respondent, and the Vaccine
Program.” Petitioner further states that she understands that a dismissal decision will result in a
judgment against her, and that such a judgment will end all of her rights in the Vaccine Program.
To receive compensation under the Vaccine Act, Petitioner must prove either 1) that
M.M. suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table –
corresponding to her vaccination, or 2) that M.M. suffered an injury that was actually caused by
a vaccine. See §§ 300aa-13(a)(1)(A) and 300aa-11(c)(1). An examination of the record did not
uncover any evidence that M.M. suffered a “Table Injury.” Further, the record does not contain
a medical expert’s opinion or any other persuasive evidence indicating that M.M.’s injuries were
caused by a vaccination.
Under the Vaccine Act, a petitioner may not be awarded compensation based solely on
the petitioner’s claims alone. Rather, the petition must be supported by either medical records or
by the opinion of a competent physician. § 300aa-13(a)(1). In this case, because the medical
records are insufficient to establish entitlement to compensation, a medical opinion must be
offered in support. Petitioner, however, has offered no such opinion.
Therefore, the only alternative remains to DENY this petition. Thus, this case is
dismissed for insufficient proof. In the absence of a motion for review, the Clerk shall
enter judgment accordingly.
IT IS SO ORDERED.
/s/Lisa D. Hamilton-Fieldman
Lisa D. Hamilton-Fieldman
Special Master
2

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DOCUMENT 2: USCOURTS-cofc-1_14-vv-01219-2
Date issued/filed: 2016-12-13
Pages: 4
Docket text: JUDGE VACCINE REPORTED OPINION. Signed by Judge Thomas C. Wheeler. [Re-docketed for Administrative Purposes Only](ar) Copy to parties.
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Case 1:14-vv-01219-TCW Document 60 Filed 12/13/16 Page 1 of 4
In the United States Court of Federal Claims
No. 14-1219V
(Filed Under Seal: November 28, 2016)
(Reissued: December 13, 2016)1
******************************************** *
*
JULIE MOUNTS, o/b/o and as next friend for M.M., *
*
*
Petitioner,
* Vaccine Act Case; Review of Claim
v. * for Attorneys’ Fees and Costs;
* Reasonable Basis for Filing;
Recovery of Fees by Unsuccessful
*
Petitioner, Standard of Review.
SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
*
Respondent. *
*
*
******************************************** *
Verne E. Paradie, Jr., Paradie, Sherman, Walker & Worden, Lewiston, Maine, for Petitioner.
Christine M. Becer, with whom were Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, C. Salvatore D’Alessio, Acting Director, and Catharine E. Reeves, Acting Deputy
Director, Torts Branch, Civil Division, U.S. Department of Justice, Washington D.C., for
Respondent.
OPINION AND ORDER
WHEELER, Judge.
This vaccine case involves a challenge by the Petitioner Julie Mounts, on behalf of her
daughter, M.M., to the Special Master’s decision to deny an award of attorneys’ fees and costs.
Petitioner requested the award after voluntarily dismissing the underlying entitlement claim for
1 Pursuant to Rule 18(b) of the Court’s Vaccine Rules, this opinion and order was initially filed
under seal. As required under the Rules, each party was afforded 14 days from the date of issue,
until December 12, 2016, to object to the public disclosure of any information furnished by that
party. Neither party submitted any proposed redactions.

Case 1:14-vv-01219-TCW Document 60 Filed 12/13/16 Page 2 of 4
lack of sufficient evidentiary support. For the reasons explained below, the Court affirms the
decision of the Special Master.
Background
In December 2014, Petitioner filed an action seeking compensation on behalf of her minor
child, M.M., for injuries allegedly received from varicella, diphtheria-tetanus-acellular pertussis
(“DTaP”), and meningococcal vaccines administered in May 2012. No medical records
accompanied the petition. Petitioner requested and received multiple time extensions after missed
deadlines, before submitting a complete set of M.M.’s medical records in September 2015
(although additional records were submitted through January 2016). In November 2015,
Respondent filed its “Rule 4(c) Report” pursuant to the Vaccine Rules, and argued that Petitioner’s
submitted proof did not support her claims of vaccine injury. Dkt. No. 34. During the parties’
February 2016 status conference, Respondent challenged the viability of Petitioner’s claim, and
the Special Master presented to Petitioner options for exiting the vaccine injury program. Dkt.
No. 40. In March 2016, Petitioner moved to dismiss her petition citing an inability to prove that
she was entitled to compensation, and the Special Master dismissed the case on the basis of
insufficient proof. Mounts v. Sec’y Health & Human Servs., No. 14-1219V, 2016 WL 1558692
(Fed. Cl. Spec. Mstr. Mar. 25, 2016) (“Dismissal Decision”).
Petitioner subsequently filed a motion for attorneys’ fees and costs, seeking to recover
approximately $8,700. Dkt. No. 48. Respondent opposed the Petitioner’s motion, arguing that
she lacked a reasonable basis for filing the petition, as required by the Vaccine Act. Dkt. No. 50.
In May 2016, the Special Master issued the Decision under review here denying Petitioner’s
request for fees in its entirety. Mounts v. Sec’y Health & Human Servs., No. 14-1219V, 2016 WL
4540344 (Fed. Cl. Spec. Mstr. July 27, 2016) (“Fee Decision”).
Standard of Review
This Court has jurisdiction to review decisions of the Special Masters in accordance with
42 U.S.C. § 300aa-12(e)(1)-(2). The Court may set aside a Special Master’s decision only if it is
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” § 300aa-
12(e)(2)(B). A Special Master’s decision on the award of attorneys’ fees to unsuccessful
petitioners is discretionary, and thus is reviewed under an abuse of discretion standard. Saxton v.
Sec’y Health & Human Servs., 3 F.3d 1517, 1520 (Fed. Cir. 1993). If the Special Master
“considered the relevant evidence, drew plausible inferences, and articulated a rational basis” for
its decision on the award of attorneys’ fees and costs, the Court will not find an abuse of discretion.
Graham v. Sec’y Health & Human Servs., 124 Fed. Cl. 574, 578 (2015) (quoting Masias v. Sec’y
Health & Human Servs., 634 F.3d 1283, 1290 (Fed. Cir.2011)).
Law Governing Recovery of Fees
The Vaccine Act permits the award of attorneys’ fees and costs even for unsuccessful
petitioners, if the Special Master or Court determines that the petition was brought in good faith
and also that there was a “reasonable basis” for the claim. § 300aa-15(e)(1). The question of
having a reasonable basis to file is the focus of this review, since Petitioner’s good faith in filing
2

Case 1:14-vv-01219-TCW Document 60 Filed 12/13/16 Page 3 of 4
has not been challenged. The statute sheds no further light on the meaning of “reasonable basis”
in this context, and to date, the U.S. Court of Appeals for the Federal Circuit has not interpreted
the meaning of that term for purposes of fee awards to unsuccessful vaccine petitioners. See
Graham, 124 Fed. Cl. at 578-79; Chuisano v. United States, 116 Fed. Cl. 276, 285 (2014). Some
guidance is provided by the fact that “[n]umerous special masters, as well as this court, have held
that reasonable basis is an objective standard determined by the ‘totality of the circumstances.’”
Id. at 286 (citations omitted). An unsuccessful petitioner seeking fees has the burden to
affirmatively demonstrate that the petition has a reasonable basis. McKellar v. Sec’y Health &
Human Servs., 101 Fed. Cl. 297, 304 (2011), citing Perreira v. Sec’y of Health & Human Servs.,
33 F.3d 1375, 1377 (Fed. Cir. 1994).
Special Master’s Decision
The Special Master denied the requested fees and costs, finding that “Petitioner lacked a
reasonable basis for pursuing her claim under the Vaccine Act.” Fee Opinion, at 6. Had counsel
for the Petitioner sought more complete medical records before filing the petition, the Special
Master noted, this outcome would have been clear. The Special Master also found counsel’s claim
that he consulted M.M.’s medical records before filing questionable in light of the fact that medical
records were not filed until four months after the petition. Id. Counsel’s claim that the statute of
limitations was soon to expire was also unavailing: because the statute of limitations would not
expire for at least five months after the filing date, the Special Master concluded that counsel had
sufficient time to further investigate M.M.’s medical history before filing. As to Petitioner’s
reliance on an allergist’s opinion that M.M.’s symptoms of urticaria (also known as hives) were
“idiopathic,” the Special Master noted that “idiopathic” merely means that the injury is of unknown
origin. She discredited the notion that a petitioner has a reasonable basis to pursue a claim for
every medical condition of unknown origin so long as it follows a vaccination. The Special Master
concluded that the petition “was supported by not more than Petitioner’s representations, which
ran directly contrary to her medical records.” Id. at 7.
Arguments
In the Motion for Review, Petitioner argues that there was a reasonable basis for filing the
vaccine injury claim, and that contrary to the Special Master’s observations, counsel had reviewed
some of the records at the time of filing as shown by the billing invoices. Petitioner further argues
that her sworn affidavit supported her claims of injury following the vaccinations, although no
medical records were filed with the petition. Petitioner asserts that the timing of onset is not
determined solely by medical records and requires a consideration of circumstantial and direct
evidence of causation.
Respondent counters that there was no reasonable basis for filing the petition. The medical
records do not show that the timing of the claimed injuries was reasonably related to the date of
vaccination; for example, medical records indicated that M.M. developed urticaria at least fourteen
months after vaccination. Thus Petitioner’s counsel should have been on notice that further
investigation was needed to validate the vaccine injury claims before filing. Respondent also cites
the Vaccine Act’s pleading requirements under section 300aa-11, which requires specific
supporting documentation at the outset of a case, and urges that this points to counsel’s need to
3

Case 1:14-vv-01219-TCW Document 60 Filed 12/13/16 Page 4 of 4
“produce supporting evidence upon which to ground his own knowledge . . . as a condition
precedent to an award of attorneys’ fees.” Resp’t. Mem., Dkt. No. 56, at 12.
Discussion
In order to find an abuse of discretion in the Special Master’s denial of fees in this case,
a court would have to rule that a special master’s decision was “clearly unreasonable,” that it was
based on an erroneous conclusion of law, “clearly erroneous,” or that it contained no evidence on
which the Special Master could have based her decision. Chuisano, 116 Fed. Cl. at 284, citing
Murphy v. Sec’y Health & Human Servs., 30 Fed. Cl. 60, 61 (1993). In this case, the Special
Master clearly explained her view that Petitioner’s counsel did not sufficiently investigate the
records before filing, resulting in a vaccine claim without a reasonable basis.
For these reasons, the Court finds that the Special Master acted within her discretion in
denying fees and costs, and her decision is hereby AFFIRMED. Pursuant to Vaccine Rule 18(b),
each party is afforded 14 days from the date of this decision to object to the public disclosure of
any information submitted by that party. After that period, this opinion will be released to the
public.
IT IS SO ORDERED.
s/ Thomas C. Wheeler
THOMAS C. WHEELER
Judge
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