Susan Cottingham v. HHS - HPV, headaches, fainting, menstrual problems (2018)

On October 30, 2015, Susan Cottingham filed a petition on behalf of her minor daughter, K.C., alleging that K.C. suffered adverse reactions, including headaches, fainting, and menstrual problems, as a result of receiving the Gardasil vaccine on July 5, 2012. K.C. was 14 years old at the time.

The petition alleged symptom onset began on November 1, 2012, approximately four months after vaccination. Petitioner's counsel, Andrew D.

Downing of Van Cott & Talamante, PLLC, was unable to secure an expert opinion to support the claim after consulting with Dr. Nemechek and Dr.

Lee. After multiple extensions and orders to show cause, Petitioner voluntarily moved to dismiss her petition.

Special Master Christian J. Moran issued a decision on October 13, 2016, denying compensation due to insufficient proof, finding that K.C. did not suffer a "Table Injury" and that the petition did not establish causation-in-fact, as it was not supported by medical records or a competent physician's opinion.

Petitioner subsequently sought attorneys' fees and costs, which were denied by the Special Master on March 30, 2017, because Petitioner failed to establish a reasonable basis for her claim. The Special Master applied both an evidence-based standard and a totality of the circumstances standard, finding no reasonable basis under either.

Petitioner sought reconsideration, which was denied by the Special Master on April 20, 2017. Petitioner then filed a motion for review with the Court of Federal Claims.

In a September 18, 2017 decision, the Court found the Special Master erred in failing to consider the impending statute of limitations and counsel's actions in preserving the client's rights, and remanded the case for reassessment under a totality of the circumstances standard. However, the Federal Circuit's decision in Simmons v.

Sec'y of Health & Human Servs. on November 7, 2017, held that an imminent statute of limitations deadline is not a proper factor in assessing reasonable basis. Following Simmons, the Special Master again denied fees on December 12, 2017.

The Court of Federal Claims, in a September 20, 2018 opinion, vacated its prior decision and the Special Master's remand decision, remanding again for a determination consistent with Simmons, focusing on the evidence alone. On June 20, 2018, the Special Master issued a third decision denying fees, finding no reasonable basis due to a lack of evidence linking the vaccine to the alleged injuries and no expert opinion.

The Court of Federal Claims, in a December 27, 2018 opinion, affirmed the Special Master's denial of fees, agreeing that Simmons governed and that the Special Master correctly focused on the lack of evidence. The Court noted that the Special Master did not require Petitioner to prove causation in fact but rather focused on the absence of evidence supporting a reasonable basis.

The case returned to the Special Master, who again denied attorneys' fees on September 27, 2021, finding the latency period of approximately four months was too long and that there was a lack of a unifying syndrome and presence of alternative causes. In a final opinion on April 20, 2022, the Court of Federal Claims sustained the Special Master's decision, finding that while the evidence was more than a mere scintilla, it did not mandate a finding of reasonable basis, and that the Special Master appropriately considered the evidence and reached a rational conclusion.

The Court affirmed the Special Master's denial of attorneys' fees and costs.