VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_15-vv-00485
Package ID: USCOURTS-cofc-1_15-vv-00485
Petitioner: M.A.
Filed: 2015-05-12
Decided: 2015-11-23
Vaccine: 
Vaccination date: 
Condition: global developmental delays
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
On May 12, 2015, Rosa Allicock filed a petition on behalf of her minor child, M.A., seeking compensation under the National Vaccine Injury Compensation Program. The petition alleged that vaccinations M.A. received on May 14, 2012, and July 17, 2012, caused or significantly aggravated his global developmental delays. The Respondent filed a report on October 6, 2015, stating that the child's developmental delays preceded the vaccinations and that the medical records did not support the petitioner's causation theory. During a status conference on October 16, 2015, Special Master Brian H. Corcoran expressed doubt about the case's reasonable basis, noting that the medical records did not appear to support the claim of aggravation. On October 18, 2015, the Petitioner filed an unopposed motion to dismiss the case, stating that an investigation of the facts and science demonstrated an inability to prove entitlement to compensation. Special Master Corcoran agreed, finding insufficient evidence in the record to meet the burden of proof for either a Table Injury or vaccine causation, and dismissed the case for insufficient proof on November 23, 2015. Subsequently, the Petitioner sought attorneys' fees and costs. The Special Master awarded approximately $20,000 in fees and costs, finding that while the case had a minimal reasonable basis, the need to file before the statute of limitations expired, coupled with delayed medical records, justified the initial filing. The Respondent appealed the fee award to the U.S. Court of Federal Claims. Judge Thomas C. Wheeler reviewed the decision and affirmed the Special Master's award of attorneys' fees and costs on November 9, 2016, finding no abuse of discretion. The court noted that the Special Master found the case had "barely enough reasonable basis to be viable" and that the decision to award fees was based on the totality of the circumstances, including the need to file before the statute of limitations expired, the petitioner's report of worsening symptoms after vaccination, a physician's notation of possible vaccine-caused encephalopathy, and the delayed receipt of medical records. Petitioner's counsel was Andrew D. Downing. Respondent's counsel included Traci R. Patton, Benjamin C. Mizer, Rupa Bhattacharyya, Catharine E. Reeves, and Voris E. Johnson, Jr. The Special Master was Brian H. Corcoran, and the reviewing judge was Thomas C. Wheeler.

Theory of causation field:
Petitioner Rosa Allicock filed a petition on behalf of her minor child, M.A., alleging that vaccinations received on May 14, 2012, and July 17, 2012, caused or significantly aggravated global developmental delays. The Respondent argued that the delays preceded the vaccinations and the medical records did not support the causation theory. The Special Master dismissed the case for insufficient proof, finding no evidence of a Table Injury and no persuasive evidence or medical expert opinion to support the claim that the vaccinations caused or aggravated the alleged injury. The public decision does not describe the specific mechanism of causation, the onset of symptoms, diagnostic tests, or treatments. Petitioner later sought attorneys' fees and costs, which the Special Master awarded, finding a "minimal reasonable basis" for filing due to the statute of limitations deadline, the petitioner's report of worsening symptoms post-vaccination, a physician's record noting possible vaccine-caused encephalopathy, and delayed medical records. The Respondent appealed the fee award, arguing the petition lacked a reasonable basis. The Court of Federal Claims affirmed the Special Master's decision, finding no abuse of discretion in awarding approximately $20,000 in fees and costs. Petitioner's counsel was Andrew D. Downing, and Respondent's counsel included Traci R. Patton. Special Master Brian H. Corcoran issued the dismissal and fee decisions, and Judge Thomas C. Wheeler reviewed the fee award appeal.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_15-vv-00485-0
Date issued/filed: 2016-03-07
Pages: 3
Docket text: PUBLIC DECISION (Originally filed: 11/23/2015) Regarding 19 DECISION of Special Master Signed by Special Master Brian H. Corcoran. (ay) Copy to parties.
--------------------------------------------------------------------------------
Case 1:15-vv-00485-TCW Document 23 Filed 03/07/16 Page 1 of 3
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 15-485V
(Not to be Published)
* * * * * * * * * * * * * * * * * * * * * * * * *
*
ROSA ALLICOCK, * Filed: November 23, 2015
on behalf of her minor child, *
M.A., *
* Petitioner’s Motion for a Decision
Petitioner, * Dismissing the Petition; Vaccine Act
* Entitlement; Denial Without Hearing
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * * *
Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for Petitioner.
Traci R. Patton, U.S. Dep’t of Justice, Washington, D.C., for Respondent.
DECISION DISMISSING CASE FOR INSUFFICENT PROOF1
On May 12, 2015, Rosa Allicock filed a petition seeking compensation on behalf of her
minor child, M.A., under the National Vaccine Injury Compensation Program (the “Vaccine
1 Because this decision contains a reasoned explanation for my actions in this case, I will post it 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 (Dec. 17, 2002) (current version at 44 U.S.C. § 3501 (2014)). As provided by 42 U.S.C. § 300aa-
12(d)(4)(B), however, the parties may object to the published decisions inclusion of certain kinds of confidential
information. Specifically, under Vaccine Rule 18(b), each party has 14 days within which to request redaction “of any
information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged
or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly
unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole decision will be available to the public.
Id.

Case 1:15-vv-00485-TCW Document 23 Filed 03/07/16 Page 2 of 3
Program”),2 alleging that vaccinations that M.A. received on May 14, 2012, and July 17, 2012,
caused (or significantly aggravated) his global developmental delays.
On October 6, 2015, Respondent filed her Rule 4(c) report indicating that she did not
believe that compensation was appropriate in this case because M.A.’s global developmental
delays preceded his vaccinations, and because the medical record (and treater comments it
contains) did not otherwise support Petitioner’s causation theory. During a status conference in
this case that was subsequently held on October 16, 2015, I stated that the case’s reasonable basis
seemed in doubt. I specifically noted that the medical records that had been filed to date did not
appear to suggest that M.A.’s condition was significantly aggravated by the vaccinations that he
received.
On October 18, 2015, Petitioner filed an unopposed motion requesting a decision
dismissing the case. ECF No. 18. In her motion to dismiss, Petitioner indicated that “[a]lthough
[she] feels very strongly about what she witnessed with M.A., an investigation of the facts and
science supporting the case as medical records have been receive has demonstrated to Petitioner
that she will likely be unable to prove that she is entitled to compensation in the Vaccine Program.”
Id. at 1.
To receive compensation under the Vaccine Program, a petitioner must prove either (1)
that she suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table –
corresponding to one of his vaccinations, or (2) that she suffered an injury that was actually caused
by a vaccine. See Sections 13(a)(1)(A) and 11(c)(1). An examination of the record, however, does
not uncover any evidence that M.A. suffered a “Table Injury.” Further, the record does not contain
a medical expert’s opinion or any other persuasive evidence indicating that the alleged injury that
M.A. experienced could have been caused or significantly aggravated by the vaccinations that he
received on May 14, 2012, and July 17, 2012. And the filed medical records do not support
Petitioner’s claim.
Under the Vaccine Act, a petitioner may not be given a Vaccine Program award based
solely on her claims alone. Rather, the petition must be supported by either medical records or by
the opinion of a competent physician. Section 13(a)(1). In this case, there is insufficient evidence
in the record for Petitioner to meet her burden of proof. Petitioner’s claim therefore cannot succeed
and must be dismissed. Section 11(c)(1)(A).
2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended, 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”).
Individual section references hereafter will be to § 300aa of the Act.
2

Case 1:15-vv-00485-TCW Document 23 Filed 03/07/16 Page 3 of 3
Thus, this case is dismissed for insufficient proof. The Clerk shall enter judgment
accordingly.
IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran
Special Master
3

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DOCUMENT 2: USCOURTS-cofc-1_15-vv-00485-2
Date issued/filed: 2016-11-09
Pages: 5
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 1:15-vv-00485-TCW Document 38 Filed 11/09/16 Page 1 of 5
In the United States Court of Federal Claims
No. 15-485V
(Filed Under Seal: October 25, 2016)
(Reissued: November 9, 2016)1
**************************************** *
*
ROSA ALLICOCK, *
on behalf of her minor child, *
M.A., *
* Vaccine Act Case; Review of
Petitioner,
* Claim for Attorneys’ Fees and
v. * Costs; Withdrawn Petition;
* Reasonable Basis for Filing;
SECRETARY OF HEALTH AND
* Standard of Review.
HUMAN SERVICES, *
*
Respondent. *
*
*
**************************************** *
Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, Arizona, for Petitioner.
Traci R. Patton, with whom were Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, Rupa Bhattacharyya, Director, Catharine E. Reeves, Acting Deputy Director, and
Voris E. Johnson, Jr., Assistant Director, Torts Branch, Civil Division, U.S. Department
of Justice, Washington D.C., for Respondent.
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 November 8, 2016, to object to the public disclosure of any information furnished by that
party. Neither party submitted any proposed redactions.

Case 1:15-vv-00485-TCW Document 38 Filed 11/09/16 Page 2 of 5
OPINION AND ORDER
WHEELER, Judge.
This vaccine case involves a challenge by the Secretary of Health and Human
Services (“Respondent”) to the award of attorneys’ fees and costs to Petitioner by the
Special Master after Petitioner voluntarily dismissed the case for lack of sufficient
evidentiary support. Respondent is not disputing the amount awarded to Petitioner, but
rather objects to payment of any fees and costs at all. For the reasons explained below, the
Court affirms the decision of the Special Master.
Background
In January 2015, Petitioner Rosa Allicock contacted counsel in this case regarding
a possible claim based on the compensation program established by the National Childhood
Vaccine Injury Act, 42 U.S.C. § 300aa-1 et seq. (“Vaccine Act”), which carries a three-
year statute of limitations. In May 2015, one day before expiration of the statute of
limitations, Petitioner filed an action seeking compensation on behalf of her minor child,
M.A., for injuries allegedly received from vaccinations administered in May and July of
2012. Petitioner alleged that the 2012 vaccinations had significantly aggravated her son’s
preexisting developmental delay, and filed partial medical records to support her claim one
week after commencing the case. Petitioner submitted additional records in June and
August of 2015. In October 2015, Respondent filed its “Rule 4(c) Report” required by the
Vaccine Rules, and argued that Petitioner’s submitted proof did not support her claims of
vaccine injury. Dkt. No. 15. In a subsequent status conference with the parties, the Special
Master indicated that Petitioner’s “reasonable basis seems presumably in doubt” and
ordered Petitioner to file a status report indicating whether she intended to proceed with
this matter. Dkt. No. 16. Shortly afterward Petitioner filed a motion to dismiss her petition,
and the Special Master issued a “Decision Dismissing Case for Insufficient Proof.”
Allicock v. Sec’y Health & Human Servs., No. 15-485V, 2015 WL 10434883 (Fed. Cl.
Spec. Mstr. Nov. 23, 2015) (the “Dismissal Decision”).
Petitioner subsequently filed with the Court a motion for attorneys’ fees and costs,
seeking payment of approximately $18,000 in attorneys’ fees and $1,700 in costs. Dkt.
No. 24. Respondent countered with an Opposition objecting to any payment, arguing that
the petition lacked a reasonable basis for filing as required by the Vaccine Act. Dkt. No.
25. Both parties submitted briefs on the issue, and Petitioner then asked for about $4,000
in additional fees and costs incurred in responding to Respondent’s objections. Dkt. No.
27. In May 2016, the Special Master issued the decision under review here, granting a
substantial portion of Petitioner’s request for fees and costs, resulting in an award totaling
approximately $20,000. Allicock v. Sec’y Health & Human Servs., No. 15-485V, 2016
WL 3571906 (Fed. Cl. Spec. Mstr. May 26, 2016) (the “Fee Decision”).
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Case 1:15-vv-00485-TCW Document 38 Filed 11/09/16 Page 3 of 5
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).
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 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 v. Sec’y Health & Human Servs.,
124 Fed. Cl 574, 578-79 (2015); 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 granted a substantial portion of the requested fees and costs,
even though he observed that, “this matter had barely enough reasonable basis to be
viable.” Fee Opinion, at 7. He noted that the sufficiency of counsel’s investigation into
the basis for a petitioner’s claim as well as statute of limitations considerations are “highly
relevant” to determining reasonable basis to file. Id. at 6-7. He reasoned that here,
Petitioner reported to her counsel that she observed a worsening of M.A.’s condition after
the vaccinations at issue. Petitioner also claimed that a physician treating her son a few
weeks post-vaccination told her that the child had an encephalopathy possibly caused by
vaccination, and in fact a diagnosis of “encephalopathy” appears in the treating physician’s
record. This medical record constituted “some grounds for proceeding.” Thus Petitioner’s
counsel could reasonably conclude that the claim had some basis, and deserved further
gathering and review of the medical records, which were slow in coming. The Special
Master also credited Petitioner’s counsel’s “willingness to confront the realities of the case
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Case 1:15-vv-00485-TCW Document 38 Filed 11/09/16 Page 4 of 5
with his client, and to end the matter” instead of continuing the case in hope that further
proof would appear. Id. at 7-8.
Arguments
In its Motion for Review, Respondent argues that Petitioner failed to meet her
burden to prove reasonable basis to file the suit, citing the lack of any evidence in the
medical records showing a connection between M.A.’s condition and the vaccinations.
Although Petitioner stated in her Petition that her son had “concerning symptoms” shortly
after vaccination and also alleged aggravation of his developmental delay, there was no
evidence in the record supporting these claims. In all vaccine cases, Respondent maintains,
Petitioners and their counsel should be held to a stricter standard requiring due diligence
to determine reasonable basis before filing the petition, thus helping to keep frivolous
petitions from adding to the growing vaccine caseload in our Court. In Respondent’s view,
Petitioner did not meet that standard here. For that reason, according to Respondent, the
Special Master’s decision was unreasonable and an abuse of his discretion.
Counsel for Petitioner counters that Petitioner originally described her son’s
aggravated developmental delays after the vaccinations and claimed that the treating
physician told her that vaccination could have caused them. Since both facts if proven
would support a claim for vaccine compensation, counsel argues, filing to avoid operation
of the statute of limitations was justified. Although medical records were promptly
requested soon after initial consultation, important records were not made available prior
to the claim, forcing a filing to preserve the cause of action. Counsel also noted that once
all the records were received and evaluated, Petitioner acted responsibly to dismiss her
claim.
Discussion
In order to find an abuse of discretion in the Special Master’s award 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 his 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 noted that the facts made it a close
decision, but on balance the need to file to avoid the statute of limitations bar, together with
the key claims made by Petitioner and the delayed receipt of medical evidence to prove
them, justified filing. While the Court certainly supports the development of meaningful
standards to determine whether a petitioner had a reasonable basis for filing, that goal must
be balanced against the public policy of encouraging access by vaccine petitioners to
competent counsel. See Chuisano, 116 Fed. Cl. at 285 (“Congress recognized that having
to shoulder attorneys’ fees could deter victims of vaccine-related injuries from seeking
redress,” quoting Cloer v. Sec’y Health & Human Servs., 675 F. 3d 1358, 1362 (Fed. Cir.
4

Case 1:15-vv-00485-TCW Document 38 Filed 11/09/16 Page 5 of 5
2012)). In this case, the Court cannot find that the Special Master’s decision was clearly
erroneous.
For these reasons, the Court finds that the Special Master acted within his discretion
in awarding attorneys’ fees and costs, and his decision is hereby AFFIRMED.
IT IS SO ORDERED.
s/ Thomas C. Wheeler
THOMAS C. WHEELER
Judge
5