VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_15-vv-01291 Package ID: USCOURTS-cofc-1_15-vv-01291 Petitioner: K.C. Filed: 2015-10-30 Decided: 2018-12-27 Vaccine: HPV Vaccination date: 2012-07-05 Condition: headaches, fainting, menstrual problems Outcome: dismissed Award amount USD: AI-assisted case summary: 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. Theory of causation field: Petitioner Susan Cottingham, on behalf of minor K.C., alleged that K.C. suffered headaches, fainting, and menstrual problems following a July 5, 2012 Gardasil vaccination. Symptom onset was alleged to be November 1, 2012. The case was dismissed for insufficient proof of entitlement. Petitioner sought attorneys' fees and costs, arguing a reasonable basis for the claim. The Special Master, Christian J. Moran, initially denied fees, finding no evidence supported the claims and no expert opinion was provided. This decision was reviewed multiple times by the Court of Federal Claims and the Federal Circuit. Key issues involved the 'reasonable basis' standard for attorneys' fees, the role of the statute of limitations, and the interpretation of medical evidence. The Federal Circuit ultimately held that the Special Master's finding of 'no evidence' was clearly erroneous, as medical records and the vaccine package insert provided circumstantial evidence. However, subsequent decisions by the Special Master and the Court of Federal Claims consistently denied attorneys' fees, finding that while some objective evidence existed, it did not establish a reasonable basis for the claim, particularly due to the latency period of approximately four months between vaccination and symptom onset, lack of a unifying medical diagnosis, and potential alternative causes. The final decision sustained the Special Master's denial of fees, concluding that the evidence, while exceeding a 'mere scintilla,' did not meet the threshold for a reasonable basis. Attorneys for Petitioner were Andrew D. Downing, Van Cott & Talamante, PLLC. Attorneys for Respondent were from the U.S. Department of Justice. Special Master Christian J. Moran and Judges Mary Ellen Coster Williams and Thompson M. Dietz presided over various stages of the review. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_15-vv-01291-0 Date issued/filed: 2016-11-07 Pages: 3 Docket text: PUBLIC DECISION (Originally filed: 10/13/16) regarding 34 DECISION of Special Master. Signed by Special Master Christian J. Moran. (dh) Copy to parties. -------------------------------------------------------------------------------- Case 1:15-vv-01291-TMD Document 39 Filed 11/07/16 Page 1 of 3 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS * * * * * * * * * * * * * * * * * * * * * * * * * SUSAN COTTINGHAM, on behalf of her * minor child, K.C., * No. 15-1291 * Petitioner, * Special Master Christian J. * Moran v. * * Filed: October 13, 2016 SECRETARY OF HEALTH * AND HUMAN SERVICES, * Gardasil vaccine; headaches; * compensation. Respondent. * * * * * * * * * * * * * * * * * * * * * * * * * * Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for petitioner; Ann D. Martin, United States Dep’t of Justice, Washington, D.C., for respondent. UNPUBLISHED DECISION DENYING COMPENSATION1 Susan Cottingham filed a petition under the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-10 through 34 (2012), on October 30, 2015, on behalf of her minor child, K.C. Her petition alleged that K.C. had an adverse reaction, including headaches and near black-outs, resulting from receiving the Gardasil vaccination on July 5, 2012. The information in the record, however, does not show entitlement to an award under the Program. 1 The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services), requires that the Court post this ruling on its website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special master will appear in the document posted on the website. Case 1:15-vv-01291-TMD Document 39 Filed 11/07/16 Page 2 of 3 I. Procedural History An initial status conference was held on March 28, 2016. During this conference, respondent raised the issue of reasonable basis. Petitioner acknowledged this issue and requested the Rule 4 report deadline remain suspended while she attempted to review the case with an expert. Petitioner subsequently filed two motions for extension of time for her status report, which were granted. Upon missing the third deadline by almost two weeks, the undersigned filed an order on June 28, 2016, requesting petitioner show cause why her case should not be dismissed. On August 26, 2016, petitioner responded, stating she was still attempting to locate a suitable expert. On October 7, 2016, petitioner filed a motion for a decision dismissing her petition. II. Analysis To receive compensation under the National Vaccine Injury Compensation Program (hereinafter “the Program”), petitioner must prove either 1) that K.C. suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table – corresponding to her vaccination, or 2) that she 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 K.C. suffered a “Table Injury.” Thus, Ms. Cottingham is necessarily pursuing a causation-in-fact claim. Under the Act, a petitioner may not be given a Program award 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 do not support Ms. Cottingham’s claim, a medical opinion must be offered in support. Ms. Cottingham, however, has offered no such opinion. Accordingly, it is clear from the record in this case that Ms. Cottingham has failed to demonstrate either that she suffered a “Table Injury” or that her injuries were “actually caused” by a vaccination. Thus, this case is dismissed for insufficient proof. The Clerk shall enter judgment accordingly. The status conference scheduled for October 21, 2016, is cancelled. 2 Case 1:15-vv-01291-TMD Document 39 Filed 11/07/16 Page 3 of 3 Any questions may be directed to my law clerk, Dan Hoffman, at (202) 357- 6353. IT IS SO ORDERED. S/Christian J. Moran Christian J. Moran Special Master 3 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_15-vv-01291-2 Date issued/filed: 2017-05-19 Pages: 12 Docket text: PUBLIC DECISION (Originally filed: 4/20/17) regarding 46 DECISION of Special Master. Signed by Special Master Christian J. Moran. (dh) Copy to parties. -------------------------------------------------------------------------------- Case 1:15-vv-01291-TMD Document 51 Filed 05/19/17 Page 1 of 12 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS * * * * * * * * * * * * * * * * * * * * * SUSAN COTTINGHAM, on behalf * of her minor child, K.C., * No. 15-1291 * Petitioner, * Special Master Christian J. Moran * v. * * Filed: April 20, 2017 SECRETARY OF HEALTH * AND HUMAN SERVICES, * Attorneys’ fees and costs; reasonable * basis; reconsideration Respondent. * * * * * * * * * * * * * * * * * * * * * * Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for petitioner; Ann D. Martin, United States Dep’t of Justice, Washington, DC, for respondent. PUBLISHED DECISION DENYING MOTION FOR RECONSIDERATION OF DECISION DENYING ATTORNEYS’ FEES AND COSTS1 Susan Cottingham maintained a claim in the Vaccine Program for approximately one year until her case was dismissed. Decision, 2016 WL 6575170 (Oct. 13, 2016). She then sought her attorneys’ fees and costs, but was denied because she did not establish eligibility. Fees Decision, issued Mar. 30, 2017. She is now requesting reconsideration of that Fees Decision. For the reasons explained below, Ms. Cottingham has not satisfied the standards for reconsideration. Her motion, therefore, is DENIED. 1 The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services), requires that the Court post this ruling on its website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special master will appear in the document posted on the website. Case 1:15-vv-01291-TMD Document 51 Filed 05/19/17 Page 2 of 12 Background Ms. Cottingham alleged that a human papillomavirus (HPV) vaccine, which was administered on July 5, 2012, harmed her daughter, K.C. The petition set forth three discrete injuries: headaches, allegedly starting in November 2012; two instances of fainting in March and May 2013; and menstrual problems, allegedly starting in the latter part of 2013. Pet., filed Oct. 30, 2015. Ms. Cottingham first communicated with her current attorney, Andrew Downing, in May 2015, nearly five months before the case was filed in court. Mr. Downing’s staff collected most (but not all) of the medical records within a few months. For example, the law firm received medical records from Vestavia Pediatrics by June 23, 2015. Mr. Downing submitted the petition on October 30, 2015. Ms. Cottingham maintained in it that K.C. first experienced symptoms of a condition the HPV vaccine caused on November 1, 2012. Therefore, in Mr. Downing’s view, the 36- month statute of limitations expired on November 1, 2015. Pet’r’s Mot. for Attorneys’ Fees and Costs, filed Oct. 26, 2016, at 5. At least five months after he filed the petition, Mr. Downing consulted two experts, Dr. Nemechek and Dr. Lee. Neither provided a helpful opinion. See Pet’r’s Mot. for Attorneys’ Fees and Costs at 6-7. On October 6, 2016, Ms. Cottingham filed a motion for a decision. The ensuing October 13, 2016 decision dismissed Ms. Cottingham’s case due to a lack of evidence. On October 26, 2016, Ms. Cottingham filed the motion for attorneys’ fees and costs that the March 31, 2017 Fees Decision resolved. The Fees Decision noted that the parties disputed whether Ms. Cottingham satisfied the reasonable basis standard. Ms. Cottingham had argued that the press of the statute of limitations entitled her to a more lenient standard. In contrast, the Secretary had argued that a looming expiration of the statute of limitations should not affect the reasonable basis analysis. The March 31, 2017 Fees Decision denied Ms. Cottingham’s motion for an award of attorneys’ fees and costs under different standards for reasonable basis. Pursuant to an evidence-based standard, the relevant question is whether any evidence supported the three claims asserted in the petition. The Fees Decision 2 Case 1:15-vv-01291-TMD Document 51 Filed 05/19/17 Page 3 of 12 found that no evidence, except a temporal sequence of events, supported the allegations in the petition. The Fees Decision additionally analyzed the reasonable basis using the broader totality of the circumstances test also applied in disputes over reasonable basis. The Fees Decision found that if Mr. Downing had acted more diligently in reviewing the material that he possessed before filing the petition, he would have realized that the petition lacked a reasonable basis before he filed the case. Each of the petition’s three claims faced significant challenges because the allegations in the petition were not consistent with the medical records, particularly the records from Vestavia Pediatrics, and the temporal relationship between the vaccination and the onset of the illnesses seemed attenuated. Thus, under either the evidence-based standard or the totality of the circumstances standard, Ms. Cottingham did not establish the reasonable basis for any of the three claims in her petition. Without this predicate showing, Ms. Cottingham could not be awarded attorneys’ fees and costs. On April 7, 2017, Ms. Cottingham filed the pending motion for reconsideration pursuant to Vaccine Rule 10(e). She presents essentially two arguments: (1) the only proper test for evaluating reasonable basis is the totality of the circumstances, and (2) under the totality of the circumstances test, Ms. Cottingham’s petition was supported by a reasonable basis.2 Standards for Adjudication Vaccine Rule 10(e) affords parties in the Vaccine Program the opportunity to seek reconsideration. The movant must establish that reconsideration is warranted “in the interest of justice.” Vaccine Rule 10(e)(3); see also Krakow v. Sec’y of Health & Human Servs., No. 03-632V, 2010 WL 5572074, at *3 (Fed. Cl. Spec. Mstr. Nov. 12, 2010). Motions for reconsideration are not intended to serve as vehicles for the submission of evidence that could have been presented earlier. See Biery v. United States, 818 F.3d 704, 711 (Fed. Cir. 2016) (interpreting Rule 59(a)(1) of the Court of Federal Claims); Golden Bridge Technology, Inc. v. Apple, Inc., 758 F.3d 1362, 1369 (Fed. Cir. 2014) (following Third Circuit law); Cedillo v. Sec'y of Health & Human Servs., 617 F.3d 1328, 1348 (Fed. Cir. 2010). 2 The motion for reconsideration actually is divided into five headings. However, the headings relate to one of the two arguments summarized in the text above. 3 Case 1:15-vv-01291-TMD Document 51 Filed 05/19/17 Page 4 of 12 Analysis The analysis below first addresses petitioner’s argument that the proper standard for analyzing reasonable basis is the totality of the circumstances. It goes on to address the argument that Ms. Cottingham’s petition was supported by reasonable basis under a totality of the circumstances standard. I. The Proper Standard for Analyzing Reasonable Basis Ms. Cottingham’s first point is more an observation, than a true argument. Ms. Cottingham states “Special Masters overwhelmingly apply a reasonable basis analysis that considers both the conduct of a petitioner’s attorney and a looming statute of limitations.” Pet’r’s Mot. for Recons. at 2. Ms. Cottingham then cites a series of cases illustrating her observation. She concludes that the undersigned special master “has ignored a substantial amount of persuasive authority.” Id. at 5. Ms. Cottingham is wrong to say that the Fees Decision “ignored” the cases on which Ms. Cottingham relied. The Fees Decision cited them. The Fees Decision also explained that as decisions from special masters, they do not establish binding precedent. Hanlon v. Sec’y of Health & Human Servs., 40 Fed. Cl. 625, 630 (1998).3 Moreover, the Fees Decision explained why, in the undersigned’s view, an evidence-based approach to the reasonable basis is correct. “The first and most important step when interpreting a statute is, of course, analyzing its text.” Terran v. Sec’y of Health & Human Servs., 195 F.3d 1302, 1310 (Fed. Cir. 1999). The 3 In addition to not being bound by decisions of other special masters, special masters do not have to follow their own decisions. Hanlon, 40 Fed. Cl. at 630. This principle means that the undersigned does not have to evaluate reasonable basis according to the totality of the circumstances test, despite using that test in Hamrick v. Sec’y of Health & Human Servs., No. 99-683V, 2007 WL 4793152 (Fed. Cl. Spec. Mstr. Jan. 9, 2008). Hamrick, which may have originated the totality of the circumstances test for reasonable basis, drew upon cases that interpreted the Equal Access to Justice Act (EAJA). Id. at *4, citing Smith v. Principi, 343 F.3d 1358, 1363 (Fed. Cir. 2003). However, the Court of Federal Claims later determined that the principles that govern the award of attorneys’ fees in the Vaccine Act differ from those under EAJA. Morse v. Sec’y of Health & Human Servs., 98 Fed. Cl. 780, 785 (2010). This determination undermines the pedigree of the totality of the circumstances test. 4 Case 1:15-vv-01291-TMD Document 51 Filed 05/19/17 Page 5 of 12 portion of the Vaccine Act that authorizes special masters to award attorneys’ fees and costs to unsuccessful petitioners requires that the special master find “there was a reasonable basis for the claim for which the petition was brought.” 42 U.S.C. § 300aa–15(e). According to section 11(c), which is captioned “Petition content,” a Vaccine Program petition “shall contain . . . supporting documentation, demonstrating” five elements, listed as subparagraphs (A) through (E). 42 U.S.C. § 300aa–11(c). Thus, the Vaccine Act links “reasonable basis” to “supporting documentation.” The Fees Decision stated: “Ms. Cottingham has offered no argument based on the text of the Vaccine Act that supports an interpretation of the reasonable basis standard that depends upon the statute of limitations.” Fees Decision, issued Mar. 30, 2017. Ms. Cottingham quoted this sentence in her pending motion. Pet’r’s Mot. for Recons. at 2. Yet, Ms. Cottingham still has not presented any argument based on the text of the Vaccine Act. In her motion for reconsideration, Ms. Cottingham would have been better served to present some argument derived from the words and structure of the Vaccine Act that supports her argument that the reasonable basis depends upon the totality of circumstances. The omission of this argument is telling. Rather than focus on the text of the Vaccine Act, Ms. Cottingham emphasizes a “public policy” rationale. She devotes one section in her motion to this topic. See Pet’r’s Mot. for Recons. at 15. However, the Fees Decision addressed “public policy” by discussing Saunders v. Sec’y of Health & Human Servs., 25 F.3d 1031 (Fed. Cir. 1994), and Perreira v. Sec’y of Health & Human Servs., 33 F.3d 1375 (Fed. Cir. 1994). Ms. Cottingham makes no attempt to explain how her view of reasonable basis is compatible with the Federal Circuit’s statement that “Congress must not have intended that every claimant, whether being compensated or not under the Vaccine Act, collect attorneys’ fees and costs by merely having an expert state an unsupported opinion.” Perreira, 33 F.3d at 1377. In short, in advancing a motion for reconsideration, Ms. Cottingham has simply recast arguments that she presented in her October 26, 2016 motion and her November 28, 2016 reply. Ms. Cottingham has not addressed the primary points in the Fees Decision — (1) the lack of textual support for the totality of the circumstances test for reasonable basis and (2) Perreira. Thus, Ms. Cottingham has not established that “it is in the interest of justice” to reconsider the Fees Decision’s use of an evidence-based approach to reasonable basis. 5 Case 1:15-vv-01291-TMD Document 51 Filed 05/19/17 Page 6 of 12 II. Whether the Totality of the Circumstances Supports the Claims Ms. Cottingham Set Forth in Her Petition The heart of Ms. Cottingham’s motion for reconsideration is an argument that the totality of the circumstances supports the claims set forth in the petition she filed on K.C.’s behalf. In this regard, she appears to make arguments along three lines. First, the special master failed to consider the entire record. Second, the special master wrongly imposed a duty on the petitioner’s attorney to investigate his client’s claims. Third, the special master wrongly imposed a duty on the petitioner’s attorney to consider the temporal relationship between the vaccination and the onset of the injury the vaccination allegedly caused. A. Consideration of the Entire Record In determining whether to award compensation, the Vaccine Act requires special masters to consider the “record as a whole.” 42 U.S.C. § 300aa–13(a)(1). In deciding the Fees Motion, the undersigned considered the entire record. Ms. Cottingham seems to suggest that the Fees Decision was erroneous, stating “the Special Master cherry pick[ed] the evidence” in finding that the evidence did not support the petition’s allegations. Pet’r’s Mot. for Recons. at 5. Ms. Cottingham, however, does not immediately identify any records that were not discussed in the Fees Decision. Likewise, another review of Ms. Cottingham’s October 26, 2016 fees application does not suggest that she cited any medical records omitted from the Fees Decision. In any event, the omission of a discussion of a particular medical record does not mean that the records were not considered. See Hazlehurst v. Sec’y of Health & Human Servs., 604 F.3d 1343, 1352 (Fed. Cir. 2010). In other parts of the motion for reconsideration, Ms. Cottingham seems to suggest that the Fees Decision did not give enough weight to K.C.’s affidavit or the records from University of Alabama-Birmingham, Gynecology Clinic. See Pet’r’s Mot. for Recons. at 12-13. An argument about how the special master valued evidence is not the same as an argument that the special master failed to consider the evidence. See Paterek v. Sec'y of Health & Human Servs., 527 Fed. Appx. 875, 884 (Fed. Cir. 2013)(“Finding certain information not relevant does not lead to – and likely undermines – the conclusion that it was not considered.”). 6 Case 1:15-vv-01291-TMD Document 51 Filed 05/19/17 Page 7 of 12 B. Counsel’s Duty to Investigate Petitioner’s Allegations K.C.’s affidavit underlies much of Ms. Cottingham’s argument about the reasonable basis for Ms. Cottingham’s claim that the HPV vaccination harmed K.C., especially the claim for headaches. The following paragraphs of K.C.’s affidavit discuss headaches: 5. However, things changed on November 1, 2012. At that time, I began getting regular weekly headaches. Over the next few weeks, not only did the frequency of the headaches increase but I also began to experience episodes of near black-outs where my vision became temporarily impaired. I also found myself having the occasional low-grade fever. 6. On November 30, 2012, I returned to my doctor and told him of my symptoms. He examined me but only prescribed me an antibiotic. He advised me to drink plenty of water. 7. The headaches, low-grade fevers and near black- outs continued. I didn't want to complain because I was taught to tough out what I thought was a temporary condition. 8. I also began to notice that occasionally during majorette practice I would find the need to stop because I was feeling dizzy. That feeling had never occurred prior to this school year. 9. I went to the doctor again on January 31, 2013 with a low-grade fever, headaches and what appeared to me to be a cold or sinus infection. The doctor treated me for a viral infection. Exhibit 1. Significant portions of the affidavit quoted above are not consistent with the medical records created contemporaneously with the events that they describe. Specifically, the Fees Decision noted that the medical record from November 30, 2012, was not consistent with the allegation that the headaches 7 Case 1:15-vv-01291-TMD Document 51 Filed 05/19/17 Page 8 of 12 started on “November 1, 2012.” K.C.’s affidavit did not note that on November 30, 2012, the doctor diagnosed her with “acute sinusitis.” See exhibit 3 at 88. Further, the medical record from January 31, 2013, is not consistent with the allegation that K.C. was having “regular weekly headaches.” Instead, the medical record says K.C. “[h]as had a headache today.” Exhibit 3 at 78. Given the affidavit’s assertion that K.C. was having “regular weekly headaches,” it would seem reasonable for K.C. to seek medical attention for these “regular weekly headaches.” However, in three briefs, Ms. Cottingham has not identified any record in which K.C. or her mother informed a doctor that K.C. was having recurring headaches. The lack of a report should raise a question about the accuracy of K.C.’s assertion. For example, K.C. saw her pediatrician on August 14, 2014, and reported that she has “Been doing well. No concerns.” Exhibit 3 at 109-10. To the lack of record support for the assertion about “regular weekly headaches,” Ms. Cottingham offers two answers. First, Ms. Cottingham presents a story of what K.C. might have said in an entitlement hearing. Pet’r’s Mot. for Recons. at 7-8. The problem with this answer is that K.C. already presented an affidavit and she did not attempt to reconcile her assertion of “regular weekly headaches” in the way Ms. Cottingham is now proposing. Furthermore, in light of the lack of any medical records discussing “regular weekly headaches” from any time, the affidavit strains credibility. As to a credibility assessment, Ms. Cottingham argues that “Petitioner’s Counsel does not have the luxury of interpreting the record against the Petitioner.” Pet’r’s Mot. for Recons. at 8. The motion cites no authority for this proposition. The lack of legal support is especially noticeable because the Fee Decision contained a lengthy quotation from Wisconsin Chiropractic Ass’n v. State, 676 N.W.2d 580, 589-90 (Wis. Ct. App. 2004) that indicates that an attorney’s reliance on a client’s statement is not always reasonable. Although the discussion was not as detailed as the Wisconsin Court of Appeals, the Supreme Court of Arizona, the state where Mr. Downing practices, took a consistent position in In re Alexander, 300 P.3d 536, 540 (Ariz. 2013) (en banc). Though the Fee Decision cited to both cases, Ms. Cottingham’s motion for reconsideration did not address either case. Closer to home, even cases from the Vaccine Program that have considered the totality of the circumstances in assessing reasonable basis have required the 8 Case 1:15-vv-01291-TMD Document 51 Filed 05/19/17 Page 9 of 12 attorney to investigate a claim before filing it. See Chuisano v. Sec'y of Health & Human Servs., 116 Fed. Cl. 276, 291 (2014) (finding that a special master acted within his discretion in not finding reasonable basis because, in part, the attorneys did not establish diligence and noting “an earlier telephone call to one of the firm’s regularly retained experts might have provided some evidence of timely due diligence”); Rehn v. Sec’y of Health & Human Servs., 126 Fed. Cl. 86, 93 (2016) (“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”); Solomon v. Sec’y of Health & Human Servs., No. 14-0748V, 2016 WL 8257673, at *4 (Fed. Cl. Spec. Mstr. Oct. 27, 2016) (“Petitioner's counsel still is required to perform due diligence, given the available evidence and amount of time prior to the running of the statute of limitations”); cf. Silva v. Sec'y of Health & Human Servs., 108 Fed. Cl. 401, 405 (2012) (noting the Vaccine Act “contemplates the sort of review prior to filing a claim that defendant highlighted: a simple review of available medical records to satisfy the attorneys that the claim is feasible”). “Vaccine Program attorneys still have the duty to investigate a Vaccine Act claim even if they find their client to be credible in describing the claim’s purported factual basis.” Livingston v. Sec’y of Health & Human Servs., No. 12-268V, 2015 WL 4397705, at *10 (Fed. Cl. Spec. Mstr. June 26, 2015) (finding no reasonable basis because counsel should have explored whether the petitioner actually received a vaccination as claimed). In this case Mr. Downing received the Vestavia Pediatric records by June 23, 2015, and had ample time to review them. A simple review would have revealed that K.C. did not report to her pediatrician any “regular weekly headaches.” Mr. Downing knew or should have known that this client’s story about her daughter did not have support in these medical records. The amount of information available to Mr. Downing before he filed the petition, including medical records from several doctors, makes arguments about the press of the statute of limitations suspect. Ms. Cottingham came to Mr. Downing approximately five months before Mr. Downing believed that the statute of limitations for one claim (the headache claim) would expire. Mr. Downing received medical records relatively quickly. Mr. Downing could have diligently evaluated those medical records and determined whether those records are consistent with his client’s recollection of events. 9 Case 1:15-vv-01291-TMD Document 51 Filed 05/19/17 Page 10 of 12 C. Counsel’s Duty to Investigate the Temporal Relationship In addition to the discrepancies between the medical records created contemporaneously with the events they are describing and K.C.’s affidavit, the Fees Decision also found that the three claims the petition asserted (headaches, fainting, and menstrual difficulties) were relatively remote in time from the vaccination. Ms. Cottingham challenges this finding, asking “How could Mr. Downing give Ms. Cottingham a medical opinion as to onset of autonomic dysfunction on the eve of the statute of limitations, when he is not appropriately credentialed to do so?” Pet’r’s Mot. for Recons. at 13. Ms. Cottingham adds “The Special Master attempts to use a six week time frame for disease onset, as if anything that manifests outside of six weeks could never be considered vaccine- related.” Id. These arguments are flawed in multiple respects. First, the petition did not claim that the HPV vaccination caused “autonomic dysfunction.” The petition claimed that the HPV vaccination caused headaches, fainting, and menstrual difficulties. Pet., filed Oct. 30, 2015. Second, “the eve of the statute of limitations” depends upon assuming the accuracy of the affidavit’s allegation that K.C. started having “regular weekly headaches” on November 1, 2012. As just discussed, this assumption is highly questionable. Third, the Fees Decision did not limit the appropriate time to “six weeks.” Of the three asserted claims, the earliest onset of injury is November 1, 2012, for headaches. The Fees Decision observed that the interval between the HPV vaccination and November 1, 2012 is “119 days, nearly four months.” Fees Decision, issued Mar. 30, 2017. The Fees Decision also observed that Ms. Cottingham did not cite any cases in which special masters have accepted a four- month interval. Id. This observation remains accurate, as the motion for reconsideration also does not cite any cases with an interval as long as four months. Fourth, Mr. Downing possesses the ability to research cases to find out if any special master found that a four-month interval was acceptable. Under the totality of the circumstances, Mr. Downing’s pre-filing diligence should have included some preliminary research about the amount of time that could be considered reasonable. Mr. Downing possessed sufficient records, including the records from Vestavia Pediatrics that document when K.C. started having 10 Case 1:15-vv-01291-TMD Document 51 Filed 05/19/17 Page 11 of 12 menstrual difficulties, to explore this fundamental inquiry. See exhibit 3 at 174-75 (“has not had a period in 4 mo . . . Mom is concerned that the Gardasil series may have had something to do with the recent changes noted in her menstrual cycle”) (dated May 14, 2015). In connection with Mr. Downing’s ability to research whether special masters have accepted a nearly four-month onset, it bears repeating that Mr. Downing met Ms. Cottingham nearly five months before Mr. Downing filed her petition. Mr. Downing possessed the medical records from Vestavia Pediatrics, which document two headaches, for approximately four months before the petition was filed. Mr. Downing has not explained why he could not perform any basic research before he filed the petition. Fifth, to the extent that Ms. Cottingham is arguing that Mr. Downing required the assistance of an expert witness to assess the temporal interval, this point simply returns to the undersigned’s preference for looking at evidence in assessing reasonable basis. If Mr. Downing needed to consult a doctor to find out whether four months (headache), nearly nine months (first episode of fainting), or 28 months (menstrual difficulties) could constitute an appropriate temporal interval, then he should have obtained a report from a doctor. The timesheets do not indicate any efforts to obtain an expert’s report until months after the petition was filed. D. Additional Arguments Ms. Cottingham makes several additional arguments that question the soundness of the Fees Decision’s finding that the totality of the circumstances does not support the claims set forth in the petition. These arguments repeat arguments presented in the October 26, 2016 motion for attorneys’ fees and costs and/or in the November 28, 2016 reply. A party’s simple disagreement with an outcome does not justify the granting of a motion for reconsideration. Conclusion The March 31, 2017 Fees Decision found that under either the evidence- based approach or the totality of the circumstances approach to reasonable basis Ms. Cottingham failed to establish the reasonable basis for any of the three claims set forth in the petition. A finding of reasonable basis is a predicate to an award of attorneys’ fees and costs to an unsuccessful petitioner. 42 U.S.C. § 300aa–15(e). Thus, Ms. Cottingham was denied attorneys’ fees and costs. 11 Case 1:15-vv-01291-TMD Document 51 Filed 05/19/17 Page 12 of 12 The pending April 7, 2017 motion for reconsideration fails to demonstrate that a different outcome is “in the interests of justice.” Vaccine Rule 10(e). Thus, the motion for reconsideration is DENIED and the March 31, 2017 Fees Decision remains valid. IT IS SO ORDERED. S/Christian J. Moran Christian J. Moran Special Master 12 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_15-vv-01291-cl-extra-4211410 Date issued/filed: 2017-10-12 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 4434157 -------------------------------------------------------------------------------- In the United States Court of Federal Claims No. 15-1291V (Filed: October 12, 2017)1 ************************* National Childhood Vaccine * Injury Act; 42 U.S.C. § 300aa- SUSAN COTTINGHAM, * 15(e); Voluntary Dismissal; Petitioner, * * Attorney’s Fees and Costs; v. * Totality of the Circumstances; * Impending Statute of SECRETARY OF HEALTH AND * Limitations; Reasonable Basis for HUMAN SERVICES, * Claim. * Respondent. * * ************************* Andrew Donald Downing, Van Cott & Talamante, PLLC, 3030 N. Third Street, Suite 790, Phoenix, AZ 85012, for Petitioner. Chad A. Readler, C. Salvatore D’Alessio, Catharine E. Reeves, Heather L. Pearlman, Ann D. Martin, United States Department of Justice, Civil Division, Torts Branch, P.O. Box 146, Benjamin Franklin Station, Washington, D.C. 20044, for Respondent. ___________________________________________________________ OPINION ___________________________________________________________ WILLIAMS, Judge. This vaccine injury case comes before the Court on Petitioner’s Motion for Review of the Special Master’s decision denying Petitioner’s requested attorney’s fees and costs, Cottingham v. Secretary of Health & Human Services, No. 15-1291 V, 2017 WL 1476242 (Fed. Cl. Spec. Mstr. Mar. 30, 2017) (“Fee Dec.”), and the Special Master’s decision denying reconsideration. Cottingham v. Secretary of Health & Human Services, No. 15-1291 V, 2017 WL 2209904 (Fed. Cl. Spec. Mstr. Apr. 20, 2017) (“Recons. Dec.”). The Special Master found that Petitioner had 1 Pursuant to Vaccine Rule 18 of the Rules of the United States Court of Federal Claims, the Court issued its Opinion under seal to provide the parties an opportunity to submit redactions. The parties did not propose any redactions. Accordingly, the Court publishes this Opinion. failed to establish a reasonable basis for her claim, filed on behalf of her minor child, K.C., and therefore denied Petitioner’s motion for attorneys’ fees and costs in its entirety. Because the Special Master imposed an overly onerous burden on Petitioner to establish a reasonable basis for her claim and failed to adequately consider the impending statute of limitations, the Court vacates the Special Master’s decisions and remands this matter. Factual Background K.C. was born on June 22, 1998. Pet’r’s Ex. 3, at 5. Other than a diagnosis of mononucleosis in March 2012, K.C. had no significant recorded health concerns prior to the administration of the HPV vaccine on July 5, 2012. See generally Pet’r’s Ex. 3 (K.C.’s medical records from Vestavia Pediatrics). K.C. was 14 years old when she received the first dose of the HPV vaccine, among other vaccinations, at her pediatrician’s office. Pet’r’s Ex. 2, at 1-2. In the months following vaccine administration, K.C. was seen by her doctors for complaints regarding a knee injury and “heavy menstrual cycles and irregular bleeding.” See Pet’r’s Ex. 3, at 64-65; Pet’r’s Ex. 5, at 3-27; Pet’r’s Ex. 9, at 4-6. On October 10, 2012, K.C. was prescribed oral contraceptives to control her menstrual cycles. Pet’r’s Ex. 9, at 4-6. According to K.C.’s sworn statement, on November 1, 2012, approximately four months post-vaccine, K.C. began experiencing “regular weekly headaches” followed by episodes of near- blackouts and occasional low-grade fever. Pet’r’s Ex. 1, at ¶ 5.2 On November 30, 2012, K.C. reported to her pediatrician symptoms that included coughing, nasal congestion, headaches, and low grade fever “during the past week.” Id. at 87-88. K.C.’s pediatrician attributed her symptoms to acute sinusitis. Id. at 88. Between January of 2013 and May of 2014, K.C. reported additional symptoms to her treatment providers, and her pediatrician attributed all these symptoms to causes unrelated to the HPV vaccine. On January 31, 2013, K.C. reported symptoms that included runny nose, congestion, low-grade fever, sore throat, and headache; her pediatrician attributed her symptoms to rhinitis and acute viral pharyngitis. Pet’r’s Ex. 3, at 78-79. On March 29, 2013, K.C. saw her physician for treatment of “acute onset [that] morning of fever and dizziness,” reporting that she “had actually fainted upon getting up this morning.” Id. at 80. Her pediatrician diagnosed her with gastroenteritis and dehydration, noting that she was likely “at the early stage of an intestinal virus.” Id. at 81. On May 23, 2013, K.C. reported that she had “[p]assed out today while at the pool,” hit the back of her head on the pool deck, and thereafter suffered from “slight [headache] and queasiness.” Id. at 70. In light of K.C.’s statements that that she had not had anything to eat or drink that morning, that it was very hot, and that she stood up quickly immediately prior to passing out, the pediatrician opined that the May 23rd episode was an isolated event related to dehydration. Id. at 70-71. 2 Petitioner identified November 1, 2012, as the date of onset of K.C.’s vaccine-caused injury. Pet. ¶ 4; Mot. for Fees 2. 2 On July 25, 2013, a pediatric cardiologist attributed K.C.’s recent episodes of dizziness and fainting to a vasovagal etiology unrelated to any vaccine. Id. at 111-12. K.C. was given a second HPV vaccine, among other vaccinations, at her pediatrician’s office on August 18, 2014. Id. at 109-10. Although according to K.C.’s sworn statement, her mother directed K.C.’s pediatrician not to administer the second HPV vaccine, “his assistant administered the vaccine before we knew what it was.” Pet’r’s Ex. 1, at ¶ 17. The record contains no documentation that K.C. was ever administered the third HPV vaccine. In early 2015, K.C. experienced menstrual irregularities. See Pet’r’s Ex. 9, at 4-6. At an April 28, 2015 appointment, K.C.’s gynecologist noted that K.C. had stopped taking prescribed contraceptives in October or November 2014, and that she had not had a menstrual cycle since December 2014. Pet’r’s Ex. 7, at 7. The gynecologist’s impression was “secondary amenorrhea,” possibly attributable to polycystic ovarian syndrome. Id. at 9. At the April 28, 2015 appointment, the gynecologist re-prescribed K.C.’s oral contraceptives. Id. As of July 8, 2015, K.C.’s abnormal uterine bleeding had been resolved with the resumed use of contraceptives. Id. at 11-13. On May 15, 2015, Petitioner retained counsel to pursue her vaccine claim. Mot. for Review 7. Over the next five months, between May 15, 2015, and October 30, 2015, counsel requested and obtained medical records from K.C.’s pediatrician, orthopedist, physical therapist, urgent care provider, and gynecologist before filing the petition on October 30, 2015. Id.; see Pet’r’s Exs. 3– 7. According to Petitioner’s sworn statement dated March 7, 2016, K.C. continued to suffer from headaches at that time. Pet’r’s Ex. 8, at 2. In her own sworn statement, K.C. stated that she was still suffering from headaches in July of 2013, but did not mention these headaches to her doctor at that time. K.C. testified that these headaches subsequently lessened at the beginning of her sophomore year of high school and returned “shortly after” the second vaccination on August 18, 2014. Pet’r’s Ex. 1, at ¶¶ 14, 16-18. Procedural History On October 30, 2015, Petitioner filed a petition under the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-10 to 34 (2012) (“Vaccine Act”), alleging that a Gardasil vaccination administered on July 5, 2012, caused K.C. to develop “a severe adverse reaction” including “headaches unlike anything she experienced before . . . on a regular basis,” “episodes of lightheadedness, which she described as near black-out,” two episodes of fainting - - once where she “walked to the bathroom and passed out and hit her head” and another where she was “unconscious for about a minute,” and “menstrual problems, missing her period for 5 or 6 months.” Pet. ¶¶ 4-7, 9. Petitioner first contacted counsel on May 15, 2015, and signed a retention agreement that same day. Mot. for Fees 4-5. According to timesheets, counsel first requested K.C.’s medical records on June 17, 2015, from Vestavia Pediatrics and UAB Department of Obstetrics and Gynecology. Id. Ex. A, at 10. Counsel’s legal assistant reviewed these records on June 23, 2015, and August 4, 2015, and counsel reviewed them on October 16, 2015. Id. at 1, 4-5. At the time the petition was filed, counsel had not yet obtained all of K.C.’s medical records and had not yet consulted an expert. See Pet’r’s Ex. 7; Pet’r’s Ex. 10. Counsel obtained a sworn statement from K.C. on October 28, 2015, in which K.C. describes when she began experiencing “regular weekly 3 headaches,” low-grade fevers, dizziness, near black-outs, and menstrual problems. Pet’r’s Ex. 1, at ¶¶ 5-19. Based on his review of the medical records then collected from Vestavia Pediatrics, OK Orthopedics, Millennium PT, Middle Creek Medical, and UAB Department of Obstetrics and Gynecology, and K.C.’s sworn statement, counsel was of the opinion that the onset of K.C.’s vaccine-caused injury occurred on November 1, 2012, when K.C. developed “regular weekly headaches,” and that the applicable statute of limitations therefore expired on November 1, 2015. Mot. for Fees 2, 4-5. Counsel filed the petition on October 30, 2015, two days prior to the expiration of the statute of limitations. At the time of filing, counsel did not yet have Petitioner’s records from Children’s of Alabama, or additional records from UAB Department of Obstetrics and Gynecology. By March 15, 2016, counsel had collected and filed all relevant medical records. On March 28, 2016, the Special Master conducted a status conference. During the discussion, Respondent’s counsel “noted that reasonable basis for bringing the case may not be present for petitioner.” Order (Mar. 28, 2016). “Acknowledg[ing] the reasonable basis issue,” Petitioner’s counsel requested and was granted an opportunity to review the case with a medical expert and file a supporting expert report. Id. Petitioner was ordered to file a status report within 30 days “on progress toward locating an expert or alternative directions for the case.” Id. On April 8, 2016, Petitioner’s counsel contacted the first potential expert, Dr. Nemechek. On April 26, 2016, Petitioner requested an extension of time to retain an expert and to file an expert report, stating that “she sent her file out for review by an expert, but the expert requires additional time to complete the review.” See Order (Apr. 27, 2016). On May 16, 2016, and May 24, 2016, Petitioner’s counsel had follow-up calls with Dr. Nemechek. On May 27, 2016, Petitioner requested a second extension citing counsel’s need to conduct a follow-up call with his client after his calls with Dr. Nemechek. See Order (June 3, 2016). The Special Master granted these extensions. On June 15, 2016, after Petitioner had missed her June 10, 2015 deadline to file a status report or an expert report, the Special Master ordered Petitioner to “immediately file a motion requesting an extension of time, or, in the alternative, file the expert report or status report.” When, as of June 28, 2016, Petitioner had not filed either a status report or an expert report, the Special Master issued an order to show cause why Petitioner’s case “should not be dismissed for failure to prosecute and/or failure to comply with the court’s order.” Order 1 (June 28, 2016). On August 3, 2016, Petitioner’s counsel contacted a second potential expert, Dr. Lee. On August 26, 2016, Petitioner filed her response to the Order to Show Cause, stating that she had been “attempting to secure an expert to opine in this matter,” and that she had secured an expert who reviewed the claim but had ultimately been unable to offer an opinion. Pet’r’s Resp. to Show Cause Order 1. Petitioner stated that she “wish[ed] to continue to pursue her vaccine claim” and that she was attempting to locate another expert. Id. Petitioner was granted until September 23, 2016, to secure another expert. Order (Aug. 30, 2016). On August 30, 2016, Petitioner’s counsel corresponded via email with Dr. Lee. On September 20, 2016, and September 22, 2016, Petitioner’s counsel had follow-up calls with Dr. Lee. Petitioner’s deadline to secure another expert was extended until October 7, 2016, as counsel had met with Dr. Lee and was waiting to speak with his client to “discuss how she would like to proceed.” Order (Sept. 26, 2016). On October 7, 2016, Petitioner moved to dismiss her petition, acknowledging that “an investigation of the facts and science supporting [her] case, as medical records were received and 4 investigation was ongoing, has demonstrated to Petitioner that she will likely be unable to meet her burden of proof.” Mot. for Dec. 1. The Special Master issued a dismissal decision on October 13, 2016. On October 26, 2016, Petitioner filed an Application for Final Attorneys’ Fees and Costs seeking $10,363 in attorneys’ fees and $1,105.77 in costs. Mot. for Fees 21. This amount includes $5,223 for attorney time and $5,140 in legal assistant time. On November 14, 2016, Defendant filed a Response to Petitioner’s Application arguing that the Special Master should deny any attorneys’ fees and costs because Petitioner’s claim lacked a reasonable basis. Fee Resp. 13-14. The Special Master’s Decisions Denying Fees and Denying Reconsideration On March 30, 2017, the Special Master issued a decision denying Petitioner any attorneys’ fees or costs. Fee Dec. *16. The Special Master noted that, in the absence of guidance from the Federal Circuit on the reasonable basis standard, the parties had endorsed two competing standards for assessing reasonable basis: a “totality of the circumstances” standard, advocated by Petitioner, and an evidentiary standard, advocated by Respondent. Id. at *5-6. The Special Master ultimately held that, under either standard, Petitioner had failed to prove that her claim had a reasonable basis, finding the medical records collected at the time the petition was filed did not support causation, and the extended period between vaccination and the onset of K.C.’s injuries placed her injuries “outside the typical temporal window.” Id. at *10, 13- 14. The Special Master denied Petitioner’s motion for reconsideration. The Petition for Review On April 27, 2017, Petitioner petitioned for review of the Special Master’s decisions denying fees and reconsideration. On review, Petitioner contends that the Special Master erred in applying an evidence-based standard on reasonable basis and in failing to take into account the impending statute of limitations. Mot. for Review 2-14. Petitioner further argues that medical records support her claimed injuries and that the Special Master erred in concluding that the length of time between vaccination and onset was implausible. Id. at 15-18. Respondent argues that Petitioner’s claim lacked a reasonable basis because it was not supported by medical records or expert opinion and because the time frame between vaccination and onset of K.C.’s injury was “facially suspect.” Resp. 17-20. Respondent further argues that, because Petitioner had retained counsel five months prior to the expiration of the statute of limitations, Petitioner should not now be permitted to rely on the statute of limitations as an excuse for counsel’s failure to exercise due diligence. Id. at 14-15. On June 2, 2017, Petitioner filed a Reply to Respondent’s Response. Discussion Jurisdiction This Court exercises jurisdiction pursuant to § 300aa-12(e)(1) of the Vaccine Act. In reviewing a decision rendered by a Special Master, this Court may: (1) uphold the findings of fact and conclusions of law by sustaining the special master’s decision; (2) set aside any findings of fact or conclusions of law “found to be arbitrary, capricious, an abuse of discretion, or otherwise 5 not in accordance with law” and issue its own findings of fact or conclusions of law; or (3) “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)(A)-(C) (2016). To reverse for an abuse of discretion, this Court must find that the Special Master’s decision was “clearly unreasonable, arbitrary, or fanciful,” “based on an erroneous conclusion of the law,’” “based on clearly erroneous fact findings,” or, alternatively, that the “‘record . . . contains no evidence on which the [Special Master] could rationally base [his] decision.’” Scanlon v. Sec’y of Health & Human Servs., 116 Fed. Cl. 629, 633 (2014) (quoting Ninestar Tech. Co. v. Int’l Trade Comm’n, 667 F.3d 1373, 1379 (Fed. Cir. 2012)); see Chuisano v. United States, 116 Fed. Cl. 276, 284 (2014). Where “the Special Master has ‘considered the relevant evidence of record, drawn plausible inferences, [and stated] a rational basis for the decision,’ reversible error is extremely difficult to establish.” Silva v. Sec’y of Health & Human Servs., 108 Fed. Cl. 401, 405 (2012) (quoting Hines v. Sec’y of Health & Human Servs., 940 F.2d 1518, 1528 (Fed. Cir. 1991)) (alteration in original). “If, however, the exercise of discretion turns on a potentially erroneous statutory interpretation of the Vaccine Act (a question of law), then the court will review the interpretation without deference.” Chuisano, 116 Fed. Cl. at 284 (citing Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1347 (Fed. Cir. 2008)). Standard for Awarding Attorneys’ Fees and Costs Special Masters are statutorily authorized to determine and award “reasonable attorneys’ fees” and costs under the Vaccine Act. 42 U.S.C. § 300aa-15(e)(1) (2016). To award attorneys’ fees and costs to a petitioner who has been denied compensation, the Special Master must “determine that the petition was brought in good faith and there was a reasonable basis for the claim for which the petition was brought.” 42 U.S.C. § 300aa-15(e)(1). “Good faith” and “reasonable basis” are assessed separately. Unlike good faith, reasonable basis is not presumed, and it is assessed using an objective standard. McKellar v. Sec’y of Health & Human Servs., 101 Fed. Cl. 297, 303-04 (2011) (citing Perreira v. Sec’y of Health & Human Servs., 33 F.3d 1375, 1377 (Fed. Cir. 1994)).3 A Special Master’s “decision whether a particular petition . . . had a reasonable basis at the time of filing, and therefore that counsel would be entitled to attorneys’ fees, is within the discretion of the Special Master and is generally reviewed for abuse of discretion.” Scanlon, 116 Fed. Cl. at 633 (citing Davis v. Sec’y of Health & Human Servs., 105 Fed. Cl. 627, 633 (2012)). The Special Master Should Consider the Totality of the Circumstances in Assessing the Reasonable Basis of Petitioner’s Vaccine Act Claim The Federal Circuit has not addressed what legal standard tribunals should apply in assessing whether a petitioner’s Vaccine Act claim has a “reasonable basis” for purposes of fee awards. Here, Respondent urges the Court to apply an evidence-based standard, while Petitioner espouses the totality-of-the-circumstances standard. The Special Master applied both standards but expressed a preference for the evidence-based standard. 3 Respondent has not contested the existence of a good faith basis for Petitioner’s claim. 6 In this Court’s view, the Special Master’s preferred evidence-based standard is too narrow. As the Court of Federal Claims has repeatedly noted, the Vaccine Act grants Special Masters “maximum discretion” in applying the reasonable basis standard. See, e.g., Silva, 108 Fed. Cl. at 401-02; Chuisano, 116 Fed. Cl. at 285. Limiting the standard to an evidence-based test would deprive Special Masters of the discretion to consider multiple potentially relevant circumstances - - such as the novelty of the vaccine, scientific understanding of the vaccine and its potential consequences, the availability of experts and medical literature, and the time frame counsel has to investigate and prepare the claim - - in assessing whether a Vaccine Act claim has a reasonable basis. Because Vaccine Act claims may involve state-of-the-art scientific developments, untested theories, and unknown interactions and results, these difficult cases may entail close calls, and the standard for assessing the reasonable basis for a claim should reflect this reality. See Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274, 1280 (Fed. Cir. 2005) (“The government’s suggestion that prong two of Stevens [confirmation of medical plausibility from the medical community and literature] does not impermissibly raise Althen’s burden, ignores the legal and practical effect of that test: by requiring medical literature, it contravenes section 300aa-13(a)(1)’s allowance of medical opinion as proof. This prevents the use of circumstantial evidence envisioned by the preponderance standard and negates the system created by Congress, in which close calls regarding causation are resolved in favor of injured claimants.”). As the Federal Circuit has noted, “[t]he first time an injury is causally linked with a vaccine often occurs as a result of a successful non-Table petition.” Cloer v. Sec’y of Health and Human Servs., 654 F.3d 1322, 1332 n.4 (Fed. Cir. 2011). So too, “[a] vaccine-related injury . . . is not always clear at the outset.” Chuisano, 116 Fed. Cl. at 285. This Court agrees with the majority of the Court of Federal Claims’ opinions, finding that the reasonable basis of a Vaccine Act claim should be assessed based on the totality of the circumstances. See, e.g., Simmons v. Sec’y of Health & Human Servs., 128 Fed. Cl. 579, 583 (2016); Rehn v. Sec’y of Health & Human Servs., 126 Fed. Cl. 86, 92 (2016); Graham, 124 Fed. Cl. at 574; Scanlon, 116 Fed. Cl. at 629; Chuisano, 116 Fed. Cl. at 285; McKellar, 101 Fed. Cl. at 297; but see Silva, 108 Fed. Cl. at 405 (stating that “this court should not choose the correct interpretation” of reasonable basis given the broad grant of discretion to the special masters by the Vaccine Act to award attorney’s fees when no compensation is awarded). The reasonable basis requirement is “objective, looking not at the likelihood of success of a claim but more to the feasibility of the claim.” Di Roma v. Sec’y of the Dep’t of Health & Human Servs., No. 90-3277, 1993 WL 496981, at * 1 (Fed. Cl. Spec. Mstr. Nov. 18, 1993). In conducting the reasonable basis analysis, special masters should consider the circumstances under which the petition is filed, any jurisdictional questions, the factual basis and medical support for the petition, and any other legal issues that may arise. Scanlon, 116 Fed. Cl. at 633-34. The Federal Circuit has held that Special Masters have discretion to find a lack of reasonable basis where a petitioner’s claim is based solely on “unsupported speculation.” See Perreira, 33 F.3d at 1377 (upholding a Special Master’s determination that a petitioner lacked a reasonable basis to rely on an “expert opinion . . . grounded in neither medical literature nor studies”). This totality of the circumstances assessment should take into account evidence available at the time a claim is filed and evidence that becomes available as the case progresses. Assessment of reasonable basis should not be a static, one-time inquiry at the time of filing a petition. Rather, petitioners’ counsel have an obligation to voluntarily dismiss a Vaccine Act claim once counsel 7 knows or should know a claim cannot be proven. See Perreira, 33 F.3d at 1377 (upholding the finding that a reasonable basis for petitioners’ claims ceased to exist once they reviewed their expert’s opinion which consisted entirely of unsupported speculation); Curran v. Sec’y of Health & Human Servs., 130 Fed. Cl. 1, 6-8 (2017); Allicock v. Sec’y of Health & Human Servs., 128 Fed. Cl. 724, 727 (2016). Special Masters may be required to “revisit[] the reasonable basis inquiry if such reconsideration is warranted by changed circumstances during the proceedings.” Chuisano, 116 Fed. Cl. at 288. The Special Master Misapplied the Reasonable Basis Standard The Medical Records Petitioner challenges the Special Master’s finding that Petitioner lacked a reasonable basis for her claim, arguing that the Special Master analyzed her claim “under an elevated entitlement standard, not a reasonable basis standard.” Mot. for Review 6. Petitioner argues that the Special Master erred in concluding that there was no evidence to support Petitioner’s claim that the HPV vaccination caused K.C.’s headaches, fainting, or menstrual problems, as her medical records supported Petitioner’s claims. Id. at 6-11. In finding that K.C.’s medical records did not support “recurring headaches,” the Special Master discounted K.C.’s sworn statement, finding that it lacked credibility. See Recons. Dec. *4 (“In light of the lack of any medical records discussing ‘regular weekly headaches’ from any time, the affidavit strains credibility.”). In his reconsideration decision, the Special Master stated: the Fees Decision noted that the medical record from November 30, 2012, was not consistent with the allegation that the headaches started on “November 1, 2012.” K.C.’s affidavit did not note that on November 30, 2012, the doctor diagnosed her with “acute sinusitis.” Further, the medical record from January 31, 2013, is not consistent with the allegation that K.C. was having “regular weekly headaches.” Instead, the medical records says K.C. “[h]as had a headache today.” Given the affidavit’s assertion that K.C. was having “regular weekly headaches,” it would seem reasonable for K.C. to seek medical attention for these “regular weekly headaches.” However, in three briefs, Ms. Cottingham has not identified any record in which K.C. or her mother informed a doctor that K.C. was having recurring headaches. The lack of a report should raise a question about the accuracy of K.C.’s assertion. Id. (internal citations omitted) (alteration in original). However, the allegation that K.C. suffered from recurring headaches was based on counsel’s reasonable reliance on contemporaneous medical records documenting K.C.’s headaches in late November 2012 and on January 31, 2013. See Pet’r’s Ex. 3, at 87-88 (noting, on November 30, 2012, “[headaches] on and off all week”), 78-79 (noting headaches of unknown duration). In her sworn statement, K.C. stated that her “regular weekly headaches” began on November 1, 2012, and that “[she] didn’t want to complain because [she] was taught to tough out what [she] thought was a temporary condition.” Pet’r’s Ex. 1, at ¶¶ 5, 7. 8 Regarding Petitioner’s claim for fainting, the Special Master found that the “Vestavia Pediatrics records further undermine the reasonableness of the claim” because they attributed both fainting episodes to underlying causes unrelated to K.C.’s receiving the Gardasil vaccine. Fee Dec. *14. Regarding Petitioner’s claim of menstrual problems, the Special Master stated that the Vestavia Pediatrics records “again call into question the assertions in the petition,” as there is no evidence that K.C. was having menstrual difficulties at either her 2013 or 2014 check-up, as the first evidence that K.C. had begun missing her period was a nurse’s note dated May 14, 2015. Id. However, the absence of a reference to a condition in a medical record is much less significant than a reference which negates the existence of the condition. See Murphy v. Sec’y of Health & Human Servs., 23 Cl. Ct. 726, 733, aff’d, 968 F.2d 1266 (Fed. Cir. 1992). Here, the medical records do not negate the existence of K.C.’s headaches, fainting, or menstrual problems. To the contrary, the medical records mention these conditions. Nor do the medical records contradict K.C.’s testimony. Cf. Cucuras v. Sec’y of Dep’t of Health & Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993). To interpret these medical records to vitiate any reasonable basis for the claim places too onerous a burden on counsel at the pleading stage, and is inconsistent with the Vaccine Act’s policy that “close calls regarding causation are resolved in favor of injured claimants.” Althen, 418 F.3d at 1280. In her sworn statement, K.C. explained why she had failed to report her headaches and dizziness on other occasions- - she was a high school student afraid that reporting these conditions might prevent her from going to band camp, a reasonable fear for a girl that age. Contrary to the Special Master’s finding, for purposes of assessing the reasonable basis of Petitioner’s claim, the medical records referenced K.C.’s injuries consistently with her and her mother’s sworn statements, and her counsel reasonably credited their sworn statements that K.C. suffered from recurrent headaches, fainting, and menstrual problems. Insisting that an injured claimant’s testimony precisely mesh with medical records is too exacting a standard to apply in assessing whether a claim has a reasonable basis. Proximity of the Date of Onset The Special Master found a lack of temporal proximity between vaccination and onset for each of Petitioner’s claimed injuries - - headaches, dizziness, and menstrual difficulties. The intervals between the date of first vaccination and the onset of injury were: 119 days for headaches, 267 days for the first fainting episode and 322 days for the second fainting episode, and over two years for menstrual difficulties. Petitioner challenged the Special Master’s findings on temporal proximity, arguing that the Special Master essentially required counsel to perform an Althen prong 3 entitlement analysis without all the medical records. The Special Master found Petitioner’s evidence about her headaches to be unreliable because the interval of nearly four months between the vaccine and onset had not been previously accepted as “an appropriate time from which to infer causation.” Fee Dec. *13.4 The Special Master faulted counsel for failing to cite a case in which a Special Master had “accepted four months as an appropriate time from which to infer 4 Petitioner claims that the Special Master applied a six-week time frame for injury onset and claims that this period of time is not “universal” and does not take into account individual differences in patients. Mot. for Recons. 13. (“The Special Master attempts to use a six week time frame for any and all disease onset, as if anything that manifests outside of forty-two days could never be considered vaccine-related.” (emphasis in original)). 9 causation,” and found, without further explanation, that “four months is outside the typical temporal window.” Id. The Special Master’s conclusion that Petitioner’s counsel was required to marshal evidence and precedent on the timing of onset of Guardasil vaccine injuries to establish a reasonable basis for filing a claim asks too much. There is only one Federal Circuit decision addressing the proximate temporal relationship between Gardasil and an injury, and that case involved a different injury. In Koehn v. Secretary of Health & Human Services, the Federal Circuit affirmed the denial of compensation for lack of a proximate temporal relationship, finding that a seven-month interval between vaccination and the development of systemic juvenile idiopathic arthritis was too long of a time frame and not supported by the record. 773 F.3d 1239, 1244-45 (Fed. Cir. 2014). The HPV vaccine at issue here, the Gardasil vaccine, was approved by the Food and Drug Administration on June 8, 2006, and neither Petitioner nor Respondent cited evidence regarding an appropriate temporal window for the onset of the claimed injuries caused by this vaccine. This case does not involve a vaccine or injury whose onset window has been established by case law, expert opinion, or medical literature. Presumably, this is an issue that would have been addressed by Petitioner’s causation expert, had one been retained. Retention of a causation expert is not, however, a prerequisite for filing a vaccine petition. Chuisano, 166 Fed. Cl. at 290-91 (finding that “the court does not require, as a rule, that the firm engage in causation research or expert communications” prior to filing a petition); Morris v. Sec’y of Health & Human Servs., No. 12- 415 V, 2016 WL 3022141, at *5 (Fed. Cl. Spec. Mstr. Apr. 1, 2016) (expert retained over three years after filing of petition). Although Petitioner’s inability to present evidence regarding the timeliness of injury onset may, ultimately, have constituted a “changed circumstance” warranting reexamination of reasonable basis, Petitioner’s failure to marshal more legal precedent and evidentiary support for this aspect of her claim at the time her petition was filed does not mean the claim lacked a reasonable basis, warranting a denial of any fees. As the Court of Federal Claims explained in Chuisano: The Federal Circuit has instructed that remedial legislation like the Vaccine Act should be construed in a manner that effectuates its underlying spirit and purpose. The overarching purpose of the Vaccine Act, and the National Childhood Vaccine Injury Compensation Program it created, is to award compensation to vaccine- injured persons quickly, easily, and with certainty and generosity. A vaccine- related injury, however, is not always clear at the outset. As the Federal Circuit has noted, the first time an injury is causally linked with a vaccine often occurs as a result of a successful non-Table petition. Congress would not have intended to discourage counsel from representing petitioners who, because of the difficulty of distinguishing between the initial symptoms of a vaccine-related injury and untreated malady . . . may nevertheless have good-faith claims with a reasonable basis. Thus, a stated purpose of the Act’s fees scheme was to avoid limiting petitioners’ ability to obtain qualified assistance by making fees awards available for non-prevailing, good faith claims. Congress recognized that having to shoulder attorneys’ fees could deter victims of vaccine-related injuries from seeking redress. 116 Fed. Cl. at 285. 10 The Impending Statute of Limitations and Counsel’s Conduct Petitioner argues that the Special Master failed to take into account the impending statute of limitations and counsel’s conduct in making his determination on reasonable basis, two factors that have been analyzed by other Special Masters. Mot. for Review 4. The Special Master addressed the statute of limitations for the first time in his reconsideration decision, stating: [t]he amount of information available to Mr. Downing before he filed the petition, including medical records from several doctors, makes arguments about the press of the statute of limitations suspect. Ms. Cottingham came to Mr. Downing approximately five months before Mr. Downing believed that the statute of limitations for one claim (the headache claim) would expire. Mr. Downing received medical records relatively quickly. Mr. Downing could have diligently evaluated those medical records and determined whether those records are consistent with his client’s recollection of events. Recons. Dec. *5. The Special Master’s suggestion that Petitioner’s counsel failed to act with due diligence is unwarranted.5 According to counsel’s timesheets, Petitioner retained counsel on May 15, 2015. Counsel made his first request for medical records roughly one month later on June 17, 2015. This initial set of records (received prior to the filing of the petition) was received on August 24, 2015. Counsel completed his review of this set of records within two months on October 16, 2015. It was reasonable for Petitioner’s counsel to file a protective petition and wait to contact an expert until he obtained all of K.C.’s medical records. As Petitioner’s counsel explains, the outstanding medical records “would have arguably been addressing the concerns that Gardasil was the cause of Petitioner’s complaints,” and “would have filled in the gaps of the Vestavia Pediatrics [r]ecords.” Mot. for Review 13. Counsel did not know what these records contained, and they could well have impacted the reasonable basis of the claim. 5 The Special Master reiterated his insinuation that counsel failed to act with due diligence: Ms. Cottingham’s briefs do not cite any case in which special masters have accepted four months as an appropriate time from which to infer causation. The omission tends to show a lack of diligence because with minimal investigation Mr. Downing should have realized that four months is outside the typical temporal window. * * * At the end of October 2015, when Mr. Downing was preparing the petition, he knew or should have known that there were considerable problems with the allegations that he was making on Ms. Cottingham’s behalf, including the relative distant latency between the vaccination and the alleged onset of disorders. An appropriate exercise of diligence from Mr. Downing could have prevented this situation entirely. Fee Dec. *13, 15 (internal citations and footnote omitted). 11 Once Petitioner’s counsel obtained all the records, he attempted to secure a supporting expert opinion. Less than one month after receiving the final installment of medical records, counsel contacted the first potential expert, Dr. Nemechek, on April 8, 2016, with follow up calls on May 16, 2016, and May 24, 2016, and contacted a second expert, Dr. Lee, on August 3, 2016, with an email on August 30, 2016, and follow-up calls September 20, 2016, and September 22, 2016. Once the experts were unable to support Petitioner’s claim, Petitioner’s counsel promptly sought dismissal of the petition on October 7, 2016. In short, counsel acted with due diligence. Petitioner is correct that an impending statute of limitations should play a role in a reasonable basis determination. Chuisano, 116 Fed. Cl. at 287 (“[T]he statute of limitations is a factor that may affect the reasonable basis analysis in appropriate circumstances.”). The Special Master erred in failing to consider the impending statute of limitations as a factor weighing in favor of a reasonable basis finding. See Recons. Dec. *6. In addressing Petitioner’s objections on his finding of a lack of temporal proximity, the Special Master, in his reconsideration decision, found that Petitioner’s argument regarding filing on “‘the eve of the statute of limitations’ depend[ed] upon assuming the accuracy of [K.C.’s] affidavit’s allegation that K.C. started having ‘regular weekly headaches’ on November 1, 2012.” Id. However, the Special Master found this assumption “highly questionable” in light of “discrepancies” he saw between K.C.’s sworn statement and contemporaneous medical records. Id. As noted above, the Special Master erred in finding inconsistencies and in concluding that counsel should have discredited K.C.’s complaints of her injuries. In the absence of medical records directly contradicting K.C.’s statements, Petitioner’s counsel reasonably credited his client’s complaints and, facing an imminent expiration of the statute of limitations, included them in the petition for vaccine compensation. Where an impending statute of limitations forced counsel to choose between preventing a Vaccine Act claimant from pursuing a potentially viable claim, or filing a complaint without a complete set of medical records and expert analysis, counsel acted prudently in preserving his client’s rights. Conclusion Petitioner’s motion for review is GRANTED. The Special Master’s decision denying attorneys’ fees and costs is VACATED, and the case is remanded to the Special Master for further proceedings consistent with this decision. On remand, the Special Master shall apply a totality of the circumstances standard and reassess whether Petitioner’s claim had a reasonable basis at the time the petition was filed and at intervals when additional evidence became available to Petitioner’s counsel thereafter. Pursuant to 42 U.S.C. § 300aa-12(e)(2), the Court allows 90 days for completion of proceedings on remand. The Clerk shall not disclose this decision publicly for 14 days. s/Mary Ellen Coster Williams MARY ELLEN COSTER WILLIAMS Judge 12 ================================================================================ DOCUMENT 4: USCOURTS-cofc-1_15-vv-01291-6 Date issued/filed: 2018-09-20 Pages: 8 Docket text: JUDGE VACCINE REPORTED OPINION re: 68 Order on Motion for Review, Signed by Senior Judge Mary Ellen Coster Williams. (tjk) Service on parties made.Docketed for Administrative Purposes.(tjk). -------------------------------------------------------------------------------- Case 1:15-vv-01291-TMD Document 77 Filed 09/20/18 Page 1 of 8 In the United States Court of Federal Claims No. 15-1291V (Filed: September 20, 2018)1 * * * * * * * * * * * * * * * * * * * * * * * * * National Childhood Vaccine * Injury Act; 42 U.S.C. § 300aa- SUSAN COTTINGHAM, * 15(e); Attorneys’ Fees and Costs; Petitioner, * Reasonable Basis for Claim; * Voluntary Dismissal; Impending v. * Statute of Limitations. * SECRETARY OF HEALTH AND * HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * * * * * * * * * * * * Andrew Donald Downing, Van Cott & Talamante, PLLC, 3030 N. Third Street, Suite 790, Phoenix, AZ 85012, for Petitioner. Chad A. Readler, C. Salvatore D’Alessio, Catharine E. Reeves, and Ann D. Martin, United States Department of Justice, Civil Division, Torts Branch, P.O. Box 146, Benjamin Franklin Station, Washington, D.C. 20044, for Respondent. ___________________________________________________________ OPINION ___________________________________________________________ WILLIAMS, Judge. This matter comes before the Court on Respondent’s motion for review requesting that this Court vacate its Opinion and the Special Master’s Decision on remand and reinstate the Special Master’s decision denying attorneys’ fees and costs based upon Simmons v. Sec’y of Health & Human Servs., 875 F.3d 632 (Fed. Cir. 2017). For the reasons stated below, Respondent’s motion is granted in part. Background On October 30, 2015, Susan Cottingham filed a petition for compensation under the Vaccine Act on behalf of her minor daughter, K.C. The petition sought compensation for three 1 Pursuant to Vaccine Rule 18 of the Rules of the United States Court of Federal Claims, the Court issued its Opinion under seal to provide the parties an opportunity to submit redactions. The parties did not propose any redactions. Accordingly, the Court publishes this Opinion. Case 1:15-vv-01291-TMD Document 77 Filed 09/20/18 Page 2 of 8 injuries allegedly resulting from K.C.’s receipt of a human-papillomavirus (“HPV”) vaccine on July 5, 2012, when she was 14 years old: (1) chronic headaches that allegedly began on November 1, 2012 (nearly four months after vaccination); (2) two instances of fainting, including one episode on March 29, 2013 (nearly nine months after vaccination) and another on May 23, 2013 (over 10 months after vaccination); and (3) menstrual problems that allegedly started in “the latter part of 2013” (about 18 months after vaccination). Petitioner had first contacted counsel on May 15, 2015, and according to time sheets, counsel first requested K.C.’s medical records on June 17, 2015, from her pediatrician and gynecologist. Over the next five months, counsel for Petitioner requested and obtained medical records from K.C.’s pediatrician, orthopedist, physical therapist, urgent care provider, and gynecologist. Pet’r’s Exs. 3-7. On October 28, 2015, counsel obtained a sworn statement from K.C. in which she describes when she began experiencing “regular weekly headaches,” low grade fevers, dizziness, near black-outs, and menstrual problems. Based on his review of the medical records collected at that point, counsel was of the opinion that the onset of K.C.’s vaccine-caused injury occurred on November 1, 2012, when K.C. developed “regular weekly headaches,” and that the applicable statute of limitations therefore expired on November 1, 2015. Counsel filed the petition on October 30, 2015, two days prior to the expiration of the statute of limitations. At the time of filing, counsel did not yet have Petitioner’s records from Children’s of Alabama, or additional records from University of Alabama Department of Obstetrics and Gynecology. By March 15, 2016, counsel had collected and filed all relevant medical records. On March 28, 2016, the Special Master conducted a status conference. During the discussion, Respondent’s counsel “noted that reasonable basis for bringing the case may not be present for petitioner.” Order (Mar. 28, 2016). “Acknowledg[ing] the reasonable basis issue,” Petitioner’s counsel requested and was granted an opportunity to review the case with a medical expert and file a supporting expert report. Id. Petitioner was ordered to file a status report within 30 days “on progress toward locating an expert or alternative directions for the case.” Id. On April 8, 2016, Petitioner’s counsel contacted a potential expert, Dr. Nemechek. On April 26, 2016, Petitioner requested an extension of time to retain an expert and to file an expert report, stating that “she sent her file out for review by an expert, but the expert requires additional time to complete the review.” See Order (Apr. 27, 2016). On May 16, 2016, and May 24, 2016, Petitioner’s counsel had follow-up calls with Dr. Nemechek. On May 27, 2016, Petitioner requested a second extension of time, citing counsel’s need to conduct a follow-up call with his client after his calls with Dr. Nemechek. See Order (June 3, 2016). The Special Master granted these extensions. On June 15, 2016, after the June 10, 2016 deadline for Petitioner to file a status report regarding her attempt to obtain an expert passed with no action by Petitioner, the Special Master filed a Scheduling Order directing Petitioner to immediately file a motion for extension, or an expert or status report. That deadline passed with no action by Petitioner. On June 28, 2016, the Special Master ordered Petitioner to show cause as to why her case should not be dismissed for failure to prosecute and/or for failure to comply with the Special Master’s orders. On August 3, 2016, Petitioner’s counsel contacted a second potential expert, Dr. Lee. On August 26, 2016, Petitioner filed her response to the Order to Show Cause, stating that she had been “attempting to secure an expert to opine in this matter,” and that she had secured an expert 2 Case 1:15-vv-01291-TMD Document 77 Filed 09/20/18 Page 3 of 8 who reviewed the claim but had ultimately been unable to offer an opinion. Pet’r’s Resp. to Show Cause Order 1. Petitioner stated that she “wish[ed] to continue to pursue her vaccine claim” and that she was attempting to locate another expert. Id. Petitioner was granted until September 23, 2016, to secure another expert. Order (Aug. 30, 2016). On August 30, 2016, Petitioner’s counsel corresponded via email with Dr. Lee. On September 20, 2016, and September 22, 2016, Petitioner’s counsel had follow-up calls with Dr. Lee. Petitioner’s deadline to secure another expert was extended until October 7, 2016, as counsel had met with Dr. Lee and was waiting to speak with his client to “discuss how she would like to proceed.” Order (Sept. 26, 2016). Ultimately, Petitioner was unable to submit any expert opinion supporting her claim. On October 7, 2016, Petitioner filed a motion for a decision dismissing her petition, and the Special Master issued an unpublished decision denying compensation on October 13, 2016. On October 26, 2016, Petitioner filed a motion seeking attorneys’ fees and costs in the amount of $11,468.77. Respondent objected, contending that the record did not support a finding that “there was a reasonable basis for the claim for which the petition was brought,” as required for an award of fees in unsuccessful cases. See 42 U.S.C. § 300aa-15(e)(1) (2012). Petitioner replied, and cited the special master’s decision in Simmons v. Sec’y of Health & Human Servs., No. 13-825V, 2016 WL 2621070, at *3 (Fed. Cl. Spec. Mstr. Apr. 14, 2016), for the proposition that “leaving Petitioner to obtain new counsel or to file pro se with a looming statute of limitations deadline would be tantamount to an ethical violation.” See Pet.’r’s Reply 4. Respondent filed a Notice of Additional Authority on November 28, 2016, advising the Special Master that the United States Court of Federal Claims reversed the Simmons decision on October 12, 2016. See Simmons v. Sec’y of Health & Human Servs., 128 Fed. Cl. 579 (2016). On March 30, 2017, the Special Master issued his initial decision denying Petitioner’s request for attorneys’ fees and costs on the ground that Petitioner failed to establish a reasonable basis for her claim. In reaching this conclusion, the Special Master considered the “reasonable basis” issue under two alternative standards. First, he applied an evidence-based standard, stating that he preferred this objective test because the “Vaccine Act suggests that the reasonable basis standard is fulfilled (or not fulfilled) by measuring the evidence submitted in support of ‘the claim for which the petition was brought.’” Cottingham on behalf of K.C. v. Sec’y of Health & Human Servs., No. 15-1291, 2017 WL 1476242, at *10 (Fed. Cl. Spec. Mstr. Mar. 30, 2017) (“Cottingham I”). The Special Master reasoned: “[a]ctions of an attorney are not evidence. Even an attorney’s decision to file a petition shortly before the (perceived) expiration of the statute of limitation is not evidence that affects the merit of the ‘claim for which the petition was brought.’” Id. at *9. The Special Master found that the medical records included “no evidence to support the Petition’s vaguely asserted claims that the HPV vaccination caused K.C.’s headaches, fainting, or menstrual problems” and that Petitioner did not present an opinion from a retained expert supporting the contention that a vaccination harmed K.C. Id. at *11. The Special Master ultimately concluded that “[t]his lack of evidence means there is no reasonable basis for the petition.” Id. In addition, recognizing that “[s]ome non-binding precedent indicates that the actions of an attorney should be considered in examining whether there is a reasonable basis for the claim for which the petition was brought,” the Special Master separately considered the issue under a totality of the circumstances standard and found that petitioner also failed to establish reasonable basis under this legal construct. Id. at *11-15. The Special Master ultimately concluded that the 3 Case 1:15-vv-01291-TMD Document 77 Filed 09/20/18 Page 4 of 8 choice of standards did not matter in this case because Petitioner failed to establish a reasonable basis for filing the petition under either analysis. Id. at *10. On April 7, 2017, Petitioner filed a motion for reconsideration, which the Special Master denied on April 20, 2017. Cottingham on behalf of K.C. v. Sec’y of Health & Human Servs., No. 15-1291, 2017 WL 2209904 (Fed. Cl. Spec. Mstr. Apr. 20, 2017). On April 27, 2017, Petitioner filed a motion for review of the Special Master’s initial decision and his decision denying reconsideration. This Court found that the Special Master erred when he determined that some key allegations in K.C.’s affidavit were inconsistent with the medical records and relied upon these inconsistencies in concluding that Petitioner’s claim lacked a reasonable basis. Cottingham v. Sec’y of Health & Human Servs., 134 Fed. Cl. 567 (2017) (“Cottingham II”). The Court also directed the Special Master to reconsider whether the law supported his conclusion that the large temporal gaps between K.C.’s vaccination and the onset of her alleged vaccine-related injuries (four months for headaches, nine and 10 months for fainting, and 18 months for menstrual problems) weighed against a finding of reasonable basis on this record. In addition, this Court stated that the “Special Master erred in failing to consider the impending statute of limitations as a factor weighing in favor of a reasonable basis finding.” Id. at 578. The Court concluded: “Where an impending statute of limitations forced counsel to choose between preventing a Vaccine Act claimant from pursuing a potentially viable claim, or filing a complaint without a complete set of medical records and expert analysis, counsel acted prudently in preserving his client’s rights.” Id. The Court ultimately vacated the Special Master’s decision denying attorneys’ fees and costs, and remanded the case to the Special Master to “apply a totality of the circumstances standard and reassess whether Petitioner’s claim had a reasonable basis at the time the petition was filed and at intervals when additional evidence became available to Petitioner’s counsel thereafter.” Id. On November 7, 2017, while the case was pending before the Special Master on remand, the United States Court of Appeals for the Federal Circuit issued Simmons v. Sec’y of Health & Human Servs., 875 F.3d 632 (Fed. Cir. 2017) and held that an imminent running of the statute of limitations was not a proper factor to be considered in assessing whether a Vaccine Act claim has a reasonable basis. The Federal Circuit reasoned: The Vaccine Act provides that there must be a “reasonable basis for the claim for which the petition was brought” before the special master may exercise her discretion in awarding attorneys’ fees. 42 U.S.C. § 300aa-15(e)(1) (emphasis added). Whether there is a looming statute of limitations deadline, however, has no bearing on whether there is a reasonable factual basis “for the claim” raised in the petition. That is an objective inquiry unrelated to counsel’s conduct. Although an impending statute of limitations deadline may relate to whether “the petition was brought in good faith” by counsel, the deadline does not provide a reasonable basis for the merits of the petitioner’s claim. Id. at 636. The Court of Appeals concluded that “counsel may not use this impending statute of limitations deadline to establish a reasonable basis for [petitioner’s] claim.” Id. Because in Simmons the only factor supporting a conclusion that there was a reasonable basis for the 4 Case 1:15-vv-01291-TMD Document 77 Filed 09/20/18 Page 5 of 8 petitioner’s claim was the impending statute of limitations deadline, the Federal Circuit determined that the Special Master “abused her discretion by misapplying the law.” Id. Following the Federal Circuit’s decision in Simmons, the Special Master awarded fees and noted that “Simmons does not affect the undersigned’s analysis because the Court’s October 12, 2017 Opinion remains binding.” Cottingham on behalf of K.C. v. Sec’y of Health & Human Servs., No. 15-1291V, 2017 WL 6816709, at *6 n.3 (Fed. Cl. Spec. Mstr. Dec. 12, 2017) (“Cottingham III”) (citing Strickland v. United States, 423 F.3d 1335, 1338, n.3 (Fed. Cir. 2005)). Discussion On January 10, 2018, Respondent filed a motion for review arguing that this Court should vacate its Opinion in light of the Court of Appeals’ decision in Simmons, vacate the Special Master’s remand decision, and reinstate the Special Master’s original decision denying attorneys’ fees and costs. Respondent argues that this Court erred in its September 17, 2017 Opinion by rejecting the evidence-based standard to assess whether petitioner met the reasonable-basis requirement for an award of attorneys’ fees and costs. Petitioner argues that both this Court’s September 18, 2017 Opinion and the Special Master’s decision on remand are in full compliance with applicable law, including the Federal Circuit’s decision in Simmons. This Court’s decision remanding this matter to the Special Master contains language that does not comport with the Federal Circuit’s subsequent decision in Simmons. This Court addressed the impending statute of limitations in this case as follows: Petitioner is correct that an impending statute of limitations should play a role in a reasonable basis determination. Chuisano, 116 Fed. Cl. at 287 (“[T]he statute of limitations is a factor that may affect the reasonable basis analysis in appropriate circumstances.”). The Special Master erred in failing to consider the impending statute of limitations as a factor weighing in favor of a reasonable basis finding. See Recons. Dec. *6. In addressing Petitioner’s objections on his finding of a lack of temporal proximity, the Special Master, in his reconsideration decision, found that Petitioner’s argument regarding filing on “‘the eve of the statute of limitations’ depend[ed] upon assuming the accuracy of [K.C.’s] affidavit’s allegation that K.C. started having ‘regular weekly headaches’ on November 1, 2012.” Id. However, the Special Master found this assumption “highly questionable” in light of “discrepancies” he saw between K.C.’s sworn statement and contemporaneous medical records. Id. As noted above, the Special Master erred in finding inconsistencies and in concluding that counsel should have discredited K.C.’s complaints of her injuries. In the absence of medical records directly contradicting K.C.’s statements, Petitioner’s counsel reasonably credited his client’s complaints and, facing an imminent expiration of the statute of limitations, included them in the petition for vaccine compensation. Where an impending statute of limitations forced counsel to choose between preventing a Vaccine Act claimant from pursuing a potentially viable claim, or filing a complaint without a complete set of medical records and expert analysis, counsel acted prudently in preserving his client’s rights. 5 Case 1:15-vv-01291-TMD Document 77 Filed 09/20/18 Page 6 of 8 Cottingham II, 134 Fed. Cl. at 578 (alterations in original). In Simmons, the Court of Appeals held: The Vaccine Act provides that there must be a “reasonable basis for the claim for which the petition was brought” before the special master may exercise her discretion in awarding attorneys’ fees. 42 U.S.C. § 300aa–15(e)(1) (emphasis added). Whether there is a looming statute of limitations deadline, however, has no bearing on whether there is a reasonable factual basis “for the claim” raised in the petition. That is an objective inquiry unrelated to counsel’s conduct. Simmons, 875 F.3d at 636. In its decision remanding the case, this Court did consider the looming statute of limitations deadline and counsel’s conduct in acting to protect his client’s rights in the absence of a full set of medical records. However, unlike in Simmons, this Court did not solely rely upon the impending statute of limitations and conduct of counsel in analyzing the Special Master’s determination regarding whether there was a reasonable basis for Petitioner’s claim. This Court looked to the evidence of record and held that, “in finding K.C.’s medical records did not support ‘recurring headaches,’ the Special Master discounted K.C.’s sworn statement, finding that it lacked credibility.” This Court found that “[t]he allegation that K.C. suffered from recurring headaches was based on counsel’s reasonable reliance on contemporaneous medical records documenting K.C.’s headaches in late November 2012 and on January 31, 2013.” Aside from the impending statute of limitations and counsel’s conduct, this Court found that there was evidence, including medical records and testimony, which the Special Master failed to consider in his reasonable basis analysis. Specifically, this Court held: Regarding Petitioner’s claim for fainting, the Special Master found that the “Vestavia Pediatrics records further undermine the reasonableness of the claim” because they attributed both fainting episodes to underlying causes unrelated to K.C.’s receiving the Gardasil vaccine. Fee Dec. *14. Regarding Petitioner’s claim of menstrual problems, the Special Master stated that the Vestavia Pediatrics records “again call into question the assertions in the petition,” as there is no evidence that K.C. was having menstrual difficulties at either her 2013 or 2014 check-up, as the first evidence that K.C. had begun missing her period was a nurse’s note dated May 14, 2015. Id. However, the absence of a reference to a condition in a medical record is much less significant than a reference which negates the existence of the condition. See Murphy v. Sec’y of Health & Human Servs., 23 Cl. Ct. 726, 733, aff’d, 968 F.2d 1266 (Fed. Cir. 1992). Here, the medical records do not negate the existence of K.C.’s headaches, fainting, or menstrual problems. To the contrary, the medical records mention these conditions. Nor do the medical records contradict K.C.’s testimony. Cf. Cucuras v. Sec’y of Dep’t of Health & Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993). To interpret these medical records to vitiate any reasonable basis for the claim places too onerous a burden on counsel at the pleading stage, and is inconsistent with the Vaccine Act’s policy that 6 Case 1:15-vv-01291-TMD Document 77 Filed 09/20/18 Page 7 of 8 “close calls regarding causation are resolved in favor of injured claimants.” Althen, 418 F.3d at 1280. In her sworn statement, K.C. explained why she had failed to report her headaches and dizziness on other occasions --- she was a high school student afraid that reporting these conditions might prevent her from going to band camp, a reasonable fear for a girl that age. Contrary to the Special Master’s finding, for purposes of assessing the reasonable basis of Petitioner’s claim, the medical records referenced K.C.’s injuries consistently with her and her mother’s sworn statements, and her counsel reasonably credited their sworn statements that K.C. suffered from recurrent headaches, fainting, and menstrual problems. Insisting that an injured claimant’s testimony precisely mesh with medical records is too exacting a standard to apply in assessing whether a claim has a reasonable basis. Cottingham II, 134 Fed. Cl. at 575-76. In his decision on remand, the Special Master interpreted this Court’s above-quoted language to mean: In further defining the “totality of the circumstance,” the Court indicated that an affidavit from a petitioner does not need to “precisely mesh with medical records” to support a finding of reasonable basis. The Court also indicated that special masters may not expect petitioners to support the temporal sequence with either evidence or precedent. Under this standard, Ms. Cottingham satisfies the reasonable basis standard. K.C.’s affidavit, alone, justifies this result. In reaching this conclusion, the undersigned does not consider the discrepancies between the affidavit and K.C.’s medical records. The undersigned also does not consider that the latency between the vaccination and the onset of K.C.’s headaches or fainting or menstrual difficulties. K.C.’s affidavit, by itself, carries Ms. Cottingham’s burden to establish a reasonable basis. Ms. Cottingham is eligible for an award of attorneys’ fees and costs. Cottingham III, 2017 WL 6816709, at *6. Contrary to the Special Master’s determination however, this Court did not find that K.C.’s affidavit alone would suffice to establish a finding of a reasonable basis. Rather, this Court held that the medical records could be reconciled with the relevant testimony, and the two were not necessarily inconsistent. The reasonable basis requirement is “objective, looking not at the likelihood of success but more to the feasibility of the claim.” Di Roma v. Sec’y of the Dep’t of Health & Human Servs., No. 90-3277, 1993 WL 496981, at *1 (Fed. Cl. Spec. Mstr. Nov. 18, 1993). Because the Special Master did not have the opportunity to consider the import of Simmons and misinterpreted this Court’s decision regarding the probative value of a petitioner’s affidavit standing alone, the Court remands the matter to the Special Master for a reassessment of whether the claim had a reasonable basis. On remand, the Special Master shall, consistent with Simmons, 7 Case 1:15-vv-01291-TMD Document 77 Filed 09/20/18 Page 8 of 8 analyze whether the evidence alone was sufficient for finding a reasonable basis for Petitioner’s claim, without considering the conduct of counsel or the impending statute of limitations. Conclusion Respondent’s motion for review is GRANTED IN PART. In light of Simmons v. Sec’y of Health & Human Servs., 875 F.3d 632 (Fed. Cir. 2017), this Court vacates its decision of September 18, 2017, and the Special Master’s decision of December 12, 2017, and remands this matter to the Special Master for a reasonable basis determination. The Court denies Respondent’s request to reinstate the Special Master’s decision of March 30, 2017. s/Mary Ellen Coster Williams MARY ELLEN COSTER WILLIAMS Judge 8 ================================================================================ DOCUMENT 5: USCOURTS-cofc-1_15-vv-01291-7 Date issued/filed: 2018-12-27 Pages: 5 Docket text: PUBLIC DECISION (Originally filed: November 28, 2018) regarding 79 Order on Motion for Review,, Judge Vaccine Reported Opinion. Signed by Senior Judge Mary Ellen Coster Williams. (TF3) Service on parties made. -------------------------------------------------------------------------------- Case 1:15-vv-01291-TMD Document 80 Filed 12/27/18 Page 1 of 5 In the United States Court of Federal Claims No. 15-1291V (Filed: December 27, 2018)1 * * * * * * * * * * * * * * * * * * * * * * * * * National Childhood Vaccine * Injury Act; 42 U.S.C. § 300aa- SUSAN COTTINGHAM, on behalf of * 15(e); Attorneys’ Fees and Costs; her minor child, K.C., * Reasonable Basis for Claim; Petitioner, * Voluntary Dismissal; Impending * Statute of Limitations. v. * * SECRETARY OF HEALTH AND * HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * * * * * * * * * * * * Andrew Donald Downing, Van Cott & Talamante, PLLC, 3030 N. Third Street, Suite 790, Phoenix, AZ 85012, for Petitioner. Chad A. Readler, C. Salvatore D’Alessio, Catharine E. Reeves, Ann D. Martin, and Voris E. Johnson, United States Department of Justice, Civil Division, Torts Branch, P.O. Box 146, Benjamin Franklin Station, Washington, D.C. 20044, for Respondent. ___________________________________________________________ OPINION ___________________________________________________________ WILLIAMS, Senior Judge. This is the third opinion by this Court on the issue of whether Petitioner, who voluntarily dismissed her Vaccine Act petition, had a reasonable basis for her claim and is entitled to her attorneys’ fees and costs. For the reasons stated below, the Court sustains the Special Master’s decision denying fees and costs. Background On October 30, 2015, Susan Cottingham filed a petition for compensation under the Vaccine Act on behalf of her minor daughter, K.C. The petition sought compensation for three 1 Pursuant to Vaccine Rule 18 of the Rules of the United States Court of Federal Claims, the Court issued its Opinion under seal to provide the parties an opportunity to submit redactions. The parties did not propose any redactions. Accordingly, the Court publishes this Opinion. Case 1:15-vv-01291-TMD Document 80 Filed 12/27/18 Page 2 of 5 injuries allegedly resulting from K.C.’s receipt of a human-papillomavirus (“HPV”) vaccine on July 5, 2012, when she was 14 years old - - chronic headaches, two instances of fainting, and menstrual problems. Petitioner first contacted counsel on May 15, 2015. Over the next five months, counsel for Petitioner obtained medical records from K.C.’s pediatrician, orthopedist, physical therapist, urgent care provider, and gynecologist. Pet’r’s Exs. 3-7. On October 28, 2015, counsel obtained a sworn statement from K.C. describing that approximately four months after she received the vaccine, she began experiencing “regular weekly headaches,” low grade fevers, dizziness, near black-outs, and menstrual problems. Based on his review of the medical records collected as of mid-October 2015, Petitioner’s counsel was of the opinion that the onset of K.C.’s vaccine-caused injury occurred on November 1, 2012, and that the applicable statute of limitations would expire on November 1, 2015. Counsel filed the petition on October 30, 2015, two days prior to the expiration of the statute of limitations. At the time of filing, counsel did not yet have Petitioner’s records from Children’s of Alabama, or additional records from the University of Alabama Department of Obstetrics and Gynecology. By March 15, 2016, Petitioner’s counsel had filed all relevant medical records. On March 28, 2016, the Special Master conducted a status conference, and Respondent’s counsel “noted that reasonable basis for bringing the case may not be present for petitioner.” Order (Mar. 28, 2016). “Acknowledg[ing] the reasonable basis issue,” Petitioner’s counsel requested an opportunity to review the case with a medical expert and file a supporting expert report. Id. Petitioner was ordered to file a status report within 30 days. Id. Between April and October 2016, Petitioner’s counsel contacted two potential experts, and the Special Master granted Petitioner several extensions of time to submit an expert report. Ultimately, Petitioner was unable to submit any expert opinion supporting her claim. On October 7, 2016, Petitioner filed a motion to dismiss her petition, and the Special Master issued a decision denying compensation on October 13, 2016. On October 26, 2016, Petitioner filed a motion seeking attorneys’ fees and costs in the amount of $11,468.77 and on March 30, 2017, the Special Master denied this fee request, finding that Petitioner failed to establish a reasonable basis for her claim. In reaching this conclusion, the Special Master considered the “reasonable basis” issue under two alternative standards - - an evidence-based standard and a “totality of the circumstances” standard. Cottingham on behalf of K.C. v. Sec’y of Health & Human Servs., No. 15-1291, 2017 WL 1476242, at *10-11 (Fed. Cl. Spec. Mstr. Mar. 30, 2017). The Special Master reasoned: “[a]ctions of an attorney are not evidence. Even an attorney’s decision to file a petition shortly before the (perceived) expiration of the statute of limitation is not evidence that affects the merit of the ‘claim for which the petition was brought.’” Id. at *9. The Special Master found that the medical records included “no evidence to support the petition’s vaguely asserted claims that the HPV vaccination caused K.C.’s headaches, fainting, or menstrual problems” and that Petitioner did not present an opinion from a retained expert supporting the contention that a vaccination harmed K.C. Id. at *11. Recognizing that “[s]ome non-binding precedent indicates that the actions of an attorney should be considered in examining whether there is a reasonable basis for the claim,” the Special Master separately addressed the totality of the circumstances standard and found that Petitioner also failed to establish a reasonable basis under this legal construct. Id. at *11-15. Petitioner 2 Case 1:15-vv-01291-TMD Document 80 Filed 12/27/18 Page 3 of 5 sought reconsideration, and the Special Master denied that motion. Cottingham on behalf of K.C. v. Sec’y of Health & Human Servs., No. 15-1291, 2017 WL 2209904 (Fed. Cl. Spec. Mstr. Apr. 20, 2017). On April 27, 2017, Petitioner filed a motion for review. In a September 18, 2017 decision,2 this Court stated that the Special Master erred in failing to consider the impending statute of limitations as a factor weighing in favor of a reasonable basis finding. Cottingham v. Sec’y of Health & Human Servs., 134 Fed. Cl. 567, 578 (2017). This Court stated: [w]here an impending statute of limitations forced counsel to choose between preventing a Vaccine Act claimant from pursuing a potentially viable claim, or filing a complaint without a complete set of medical records and expert analysis, counsel acted prudently in preserving his client’s rights. Id. This Court vacated the Special Master’s decision denying attorneys’ fees and costs, and remanded the case to the Special Master to “apply a totality of the circumstances standard and reassess whether Petitioner’s claim had a reasonable basis at the time the petition was filed and at intervals when additional evidence became available to Petitioner’s counsel thereafter.” Id. On November 7, 2017, while the case was pending before the Special Master on remand, the United States Court of Appeals for the Federal Circuit issued Simmons v. Sec’y of Health & Human Servs., 875 F.3d 632 (Fed. Cir. 2017) and held that an imminent running of the statute of limitations was not a proper factor to be considered in assessing whether a Vaccine Act claim has a reasonable basis. The Federal Circuit reasoned: The Vaccine Act provides that there must be a “reasonable basis for the claim for which the petition was brought” before the special master may exercise her discretion in awarding attorneys’ fees. 42 U.S.C. § 300aa-15(e)(1) (emphasis added). Whether there is a looming statute of limitations deadline, however, has no bearing on whether there is a reasonable factual basis “for the claim” raised in the petition. That is an objective inquiry unrelated to counsel’s conduct. Although an impending statute of limitations deadline may relate to whether “the petition was brought in good faith” by counsel, the deadline does not provide a reasonable basis for the merits of the petitioner’s claim. Id. at 636. Despite the Federal Circuit’s decision in Simmons, the Special Master awarded fees in this case, stating that Simmons did not affect his analysis because this Court’s October 12, 2017 Opinion “remain[ed] binding.” Cottingham on behalf of K.C. v. Sec’y of Health & Human Servs., No. 15-1291V, 2017 WL 6816709, at *6 n.3 (Fed. Cl. Spec. Mstr. Dec. 12, 2017) (citing Strickland v. United States, 423 F.3d 1335, 1338, n.3 (Fed. Cir. 2005)). On January 10, 2018, Respondent filed a motion for review arguing that in light of Simmons, this Court should vacate both its October 12, 2017 Opinion and the Special Master’s remand decision, and reinstate the Special Master’s original decision denying attorneys’ fees and 2 The public version of this decision was filed on October 12, 2017. 3 Case 1:15-vv-01291-TMD Document 80 Filed 12/27/18 Page 4 of 5 costs. In a May 31, 2018 decision,3 this Court found the Federal Circuit’s rationale in Simmons governs this case and that this Court’s earlier remand decision contained language that did not comport with the Federal Circuit’s subsequent holding in Simmons. Cottingham v. Sec’y of Health & Human Servs., 139 Fed. Cl. 88, 92 (2018). This Court also found that the Special Master on remand had misinterpreted this Court’s findings on the probative value of Petitioner’s affidavit and Petitioner’s medical records. This Court remanded this matter to the Special Master to reassess whether there was a reasonable basis for Petitioner’s claim in accordance with Simmons, based on the evidence alone, without considering the impending statute of limitations. Id. at 94. On June 20, 2018, the Special Master issued a third decision on the fee petition, finding that there was no reasonable basis for Petitioner’s claim. Cottingham on behalf of K.C. v. Sec’y of Health & Human Servs., No. 15-1291V, 2018 WL 3432638, at *1 (Fed. Cl. Spec. Mstr. June 20, 2018). The Special Master found that Petitioner did not provide any evidence that K.C.’s injuries - - headaches, fainting, and menstrual problems - - were caused by her vaccination. The Special Master noted that Petitioner provided no medical record containing a treating doctor’s opinion that K.C.’s injuries were associated with the vaccine and no expert opinion supporting this theory, despite consulting two experts. Id. at *5. The Special Master concluded that this lack of evidence meant that there was no reasonable basis for the petition and found that Petitioner was not eligible for a fee award. Id. Discussion Petitioner argues that the Special Master committed two errors in his decision denying attorneys’ fees and costs: 1) that the Special Master misinterpreted Simmons by imposing an evidence-based test in place of a totality-of-the-circumstances analysis, and 2) that the Special Master improperly elevated Petitioner’s burden of proof for establishing reasonable basis. Petitioner has not demonstrated that the Special Master misinterpreted Simmons. The Court in Simmons was presented with a narrow issue - - whether an imminent statute of limitations deadline could be considered in assessing whether the petitioner’s claim had a reasonable basis. The Court clearly and firmly stated that such deadline could not be considered: Whether there is a looming statute of limitations deadline, however, has no bearing on whether there is a reasonable factual basis “for the claim” raised in the petition. That is an objective inquiry unrelated to counsel’s conduct. Simmons, 875 F.3d at 636. In assessing reasonable basis, the Court of Appeals did not prohibit consideration of the evidence supporting the claim. On the contrary, the Simmons Court affirmed the Court of Federal Claims’ rationale for finding that there was no reasonable basis for the petitioner’s claim, and quoted the trial court’s reference to the lack of evidence: [i]n particular, the Claims Court noted that “[c]ounsel failed to produce any evidence, at the time the petition was filed or in the five months before the special master dismissed the case for failure to prosecute, to support the claim that petitioner suffered from GBS caused by his flu vaccine.” Further, the Claims Court 3 The public version of this decision was filed on September 20, 2018. 4 Case 1:15-vv-01291-TMD Document 80 Filed 12/27/18 Page 5 of 5 held that “[t]he fact that the statute of limitations was about to expire did not excuse counsel’s obligation to show he had some basis for the claim beyond his conversation with the petitioner.” Id. at 634 (quoting Simmons v. Sec’y of Health & Human Servs., 128 Fed. Cl. 579, 583-84 (2016)) (internal citations omitted) (alterations in original). Thus, under Simmons, a special master may consider the evidence a petitioner provided, such as medical records and affidavits, in determining whether a reasonable basis for the claim exists. As the Court of Federal Claims has recognized, this type of inquiry is consistent with the Vaccine Act’s requirement that a petition must be filed with evidence of an injury. See Carter v. Sec’y of Health & Human Servs., 132 Fed. Cl. 372, 380 (2017) (stating that Section 11 of the Vaccine Act “expressly requires a petition to be filed with evidence of injury”). Petitioner also argues that the Special Master contradicted this Court’s finding in its original remand decision in concluding that Petitioner failed to provide sufficient evidence to support a reasonable basis for her claim. Contrary to Petitioner’s argument, this Court did not reassess the sufficiency of Petitioner’s proffered evidence or find that Petitioner had in fact provided sufficient evidence to demonstrate that her claim had a reasonable basis. Finally, Petitioner argues that the Special Master imposed too high a burden of proof to establish reasonable basis “by expanding it into a causation analysis.” Pet’r’s Mot. 7. The Special Master, however, did not require Petitioner to satisfy the Althen factors or otherwise demonstrate causation in fact. Rather, in concluding that Petitioner’s claim lacked a reasonable basis, the Special Master focused on the lack of evidence in Petitioner’s medical records and the treating physicians’ diagnoses, along with the absence of any expert opinion or supporting medical literature. See generally, Bekiaris v. Sec’y of Health & Human Servs., No. 14-750V, 2018 WL 4908000, at *5 (Fed. Cl. Sept. 25, 2018) (“[T]he quantum of evidence of causation to show reasonable basis is markedly less than that needed to prove entitlement.”). Conclusion Petitioner’s motion for review is DENIED. The Clerk shall not disclose this decision publicly for 14 days. s/Mary Ellen Coster Williams MARY ELLEN COSTER WILLIAMS Senior Judge 5 ================================================================================ DOCUMENT 6: USCOURTS-cofc-1_15-vv-01291-11 Date issued/filed: 2022-04-20 Pages: 9 Docket text: JUDGE VACCINE REPORTED OPINION reissuing 129 Judge Vaccine Order/Opinion denying 119 Motion for Review. Signed by Judge Thompson M. Dietz. (tgd) Service on parties made. Modified on 4/20/2022 - corrected typographical error (jt1). -------------------------------------------------------------------------------- Case 1:15-vv-01291-TMD Document 131 Filed 04/20/22 Page 1 of 9 In the United States Court of Federal Claims No. 15-1291 (Filed Under Seal: March 28, 2022) (Reissued: April 20, 2022)1 ************************************** KASEY COTTINGHAM, * * Petitioner, * * v. * Vaccine Act; Attorneys’ Fees; * Reasonable Basis. SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * ************************************** Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for Petitioner. Voris Johnson, U.S. Department of Justice, Civil Division, Washington, DC, for Respondent. OPINION AND ORDER DIETZ, Judge. In 2015, Petitioner filed and subsequently voluntarily dismissed her petition for compensation under the National Vaccine Injury Compensation Program (“Vaccine Act”), 42 U.S.C. § 300aa-10, et seq. This is the fifth opinion by this Court on the issue of whether Petitioner had a reasonable basis for filing her claim and is thus entitled to attorneys’ fees and costs. Under review is the Special Master’s denial of attorneys’ fees. Petitioner argues that the Special Master held Petitioner to a heightened reasonable basis standard. For the reasons below, the Special Master’s decision is sustained. Petitioner’s motion for review is DENIED. I. BACKGROUND The facts and extensive procedural history of this case are set forth exhaustively in the Special Master’s most recent opinion. See Cottingham v. Sec’y of Health & Hum. Servs., 2021 1 Pursuant to Vaccine Rule 18(b) of the Rules of the United States Court of Federal Claims, the Court issued this Opinion and Order under seal on March 28, 2022, and provided the parties fourteen days to propose redactions. See ECF No. 129. The parties did not propose any redactions. Accordingly, the Court reissues this Opinion and Order without redactions. Case 1:15-vv-01291-TMD Document 131 Filed 04/20/22 Page 2 of 9 WL 6881248, at *1-16 (Fed. Cl. Sp. Mstr. Sept. 27, 2021). The Court will recite them briefly here. On October 30, 2015, Susan Cottingham filed a petition for compensation under the Vaccine Act on behalf of her daughter, Kasey Cottingham (“Petitioner”). See ECF No. 1. Petitioner alleged that she experienced adverse reactions after receiving the Gardasil® human- papillomavirus (“HPV”) vaccine on July 5, 2012. Id. at 1. Specifically, Petitioner claimed that the HPV vaccine caused: (1) weekly headaches beginning November 1, 2012; (2) two episodes of fainting on March 29, 2013, and May 23, 2013; and (3) menstrual problems in the latter part of 2013. Id. ¶¶ 4-9. After filing the petition, Petitioner submitted medical records that roughly aligned with Petitioner’s account of her symptoms. See, e.g., ECF No. 8-3 at 87 (headaches “off and [on] all week” on November 30, 2012); id. at 80 (dizziness and fainting on March 29, 2013); id. at 175 (no menstrual cycle for six months in May 2015). Petitioner’s counsel was unable to secure a favorable expert medical opinion after contacting two experts. See ECF No. 38 at 6-7. On October 7, 2016, Petitioner filed a motion for a decision dismissing the petition, which the Special Master granted. ECF Nos. 33-34. On October 26, 2016, Petitioner filed a motion for attorneys’ fees and costs that has now resulted in eleven total decisions between the Special Master, this Court, and the Federal Circuit. In what may now be considered the “early” stages of the litigation over this motion, Petitioner’s request for fees was volleyed between the Special Master and this Court until the Special Master’s third decision—a denial of Petitioner’s request for fees—was affirmed by this Court. In that decision, the Special Master held that Petitioner had no reasonable basis for filing the petition because she produced “no evidence to support the petition’s vaguely asserted claims that the HPV vaccine caused” Petitioner’s symptoms. Cottingham on Behalf of K.C. v. Sec’y of Health & Hum. Servs., 2018 WL 3432638, at *5 (Fed. Cl. Sp. Mstr. June 20, 2018). On appeal, the Federal Circuit vacated and remanded the Special Master’s decision. Cottingham on Behalf of K.C. v. Sec’y of Health & Hum. Servs., 971 F.3d 1337, 1348 (Fed. Cir. 2020). The Federal Circuit found that Petitioner’s medical records in combination with the vaccine package insert—which identifies headache, dizziness, and fainting as potential adverse reactions—“constitute at minimum circumstantial, objective evidence supporting causation.” Id. at 1346. Thus, the Federal Circuit held that the Special Master abused his discretion because his decision rested on the clearly erroneous finding of fact that Petitioner had produced “no evidence” to support her claim. Id. at 1347. The Federal Circuit limited its holding to this narrow conclusion, noting that it “make[s] no determination on the weight of the objective evidence in the record or whether that evidence establishes reasonable basis, for these are factual findings for the Special Master and not this court.” Id. On remand from the Federal Circuit, the Special Master again denied attorneys’ fees. See Cottingham v. Sec’y of Health & Hum. Servs., 2021 WL 347020 (Fed. Cl. Spec. Mstr. Jan. 7, 2021). In analyzing the Federal Circuit’s guidance that “Petitioner must point to evidence of causation,” Cottingham, 971 F.3d at 1346, the Special Master utilized the three-prong test for causation set forth in Althen v. Sec’y of Health & Hum. Servs., 418 F.3d 1274 (Fed. Cir. 2005). 2 Case 1:15-vv-01291-TMD Document 131 Filed 04/20/22 Page 3 of 9 See Cottingham, 2021 WL 347020, at *16. His denial of fees was largely based on his finding that Petitioner failed to present evidence to meet Althen prong two because she did not “file a statement from a treating doctor or qualified expert indicating that the vaccination harmed the vaccinee[.]” Id. at *18. This conclusion was rendered erroneous the next day by the Federal Circuit’s decision in James-Cornelius on Behalf of E.J. v. Sec’y of Health & Hum. Servs., 984 F.3d 1374, 1379 (Fed. Cir. 2021), which held that “absence of an express medical opinion on causation is not necessarily dispositive of whether a claim has a reasonable basis[.]” Accordingly, this Court again remanded to the Special Master. See Cottingham v. Sec’y of Health & Hum. Servs., 154 Fed. Cl. 790, 798 (2021). We thus arrive at the decision presently on review before the Court: an 83-page opinion from the Special Master in which he again denies attorneys’ fees. See Cottingham, 2021 WL 6881248, at *1. The Special Master explains that “[t]he main reason Ms. Cottingham’s case lacks a reasonable basis is that the latency between the vaccination and the onset of any health conditions was approximately four months at the shortest.” Id. at *53. He further identifies, as contributing factors, the lack of a diagnosis of a unifying syndrome and the presence of alternative causes of Petitioner’s symptoms. Id. at *54. In reaching his conclusion, the Special Master utilized the Althen prongs “for structure” and considered Petitioner’s objective evidence, including affidavits, medical records, medical articles, and the vaccine package insert. See id. at *52. Petitioner filed a motion for review, arguing that the Special Master erred “by holding Petitioner to an elevated reasonable basis standard.” Pet’r’s Mem. in Support of Mot. for Review at 5, ECF No. 120 [hereinafter Pet’r Mem.]. The Court held argument on March 7, 2022. II. STANDARD OF REVIEW The Court of Federal Claims has jurisdiction under the Vaccine Act to review a special master’s decision. 42 U.S.C. § 300aa-12(e)(2). On review, this Court may: (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 (C) remand the petition to the special master for further action in accordance with the court’s discretion. Id. § 300aa-12(e)(2). This Court reviews a special master’s findings of fact under the arbitrary and capricious standard and discretionary rulings under the abuse of discretion standard. Turner v. Sec’y of 3 Case 1:15-vv-01291-TMD Document 131 Filed 04/20/22 Page 4 of 9 Health & Hum. Servs., 268 F.3d 1334, 1337 (Fed. Cir. 2001). A special master’s factual findings are entitled to deference. Hines on behalf of Sevier v. Sec’y of Health & Hum. Servs., 940 F.2d 1518, 1528 (Fed. Cir. 1991). “If the special master has considered the relevant evidence of record, drawn plausible inferences and articulated a rational basis for the decision, reversible error will be extremely difficult to demonstrate.” Id. Legal questions, on the other hand, are reviewed de novo. Munn v. Sec’y of Health & Hum. Servs., 970 F.2d 863, 873 (Fed. Cir. 1992). III. DISCUSSION Under the Vaccine Act, “when a petitioner is denied compensation for a claim, she may still obtain compensation to cover reasonable attorneys’ fees and other costs ‘if the special master or court determines that the petition was brought in good faith and there was a reasonable basis for the claim for which the petition was brought.’” James-Cornelius, 984 F.3d at 1379 (quoting 42 U.S.C. § 300aa-15(e)(1)). A petitioner who establishes both good faith and a reasonable basis is eligible for, but not entitled to, an award of attorneys’ fees, as “a special master retains discretion to grant or deny attorneys’ fees.” Id.; see 42 U.S.C. § 300aa-15(e)(1)(B) (“[T]he special master may award . . . reasonable attorneys’ fees and other costs[.]” (emphasis added)). Petitioner’s good faith has not been challenged in this case, and thus only Petitioner’s reasonable basis for bringing the claim is at issue. See Cottingham, 2021 WL 6881248, at *17. Reasonable basis “is an objective test, satisfied through objective evidence.” Cottingham, 971 F.3d at 1344. When evaluating whether a petitioner had a reasonable basis for bringing a claim, this Court looks to “the totality of the circumstances going to the merits of the claim, including the factual basis of the claim, medical support, and jurisdictional issues.” Bekiaris v. Sec’y of Health & Hum. Servs., 140 Fed. Cl. 108, 112 (2018); see also Cottingham, 971 F.3d at 1344. To establish reasonable basis, a petitioner’s objective evidence must support each “necessary element of a petition,” including, as relevant here, “a causal relationship between the administration of the vaccine and [the petitioner’s] injuries.” Cottingham, 971 F.3d at 1346 (citing 42 U.S.C. § 300aa-11(c)(1)(C)(ii)). Subjective considerations, such as an impending statute of limitations or an attorney’s conduct, do not factor into a reasonable basis analysis. Simmons v. Sec’y of Health & Hum. Servs., 875 F.3d 632, 635 (Fed. Cir. 2017). Accordingly, a special master’s consideration of subjective factors or failure to consider objective evidence constitutes an abuse of discretion. Cottingham, 971 F.3d at 1345. Though the Federal Circuit has clarified the type of evidence to be considered in a reasonable basis analysis, “the specific amount and quality of evidence necessary to constitute a reasonable basis remains undefined.” Wirtshafter v. United States, 155 Fed. Cl. 665, 672 (2021). The Federal Circuit has provided the less-than-precise guidance that “more than a mere scintilla but less than a preponderance of proof could provide sufficient grounds for a special master to find reasonable basis. Cottingham, 971 F.3d at 1346; see also James-Cornelius, 984 F.3d at 1379 (explaining that “the quantum of evidence needed to establish reasonable basis for a claim, including causation, is lower than the preponderant evidence standard required to prove entitlement to compensation, but more than a mere scintilla” (quotations omitted)). 4 Case 1:15-vv-01291-TMD Document 131 Filed 04/20/22 Page 5 of 9 This formulation does not appear to define reasonable basis so much as set its outer bounds. That is to say, a petitioner does not automatically satisfy the reasonable basis standard by producing “more than a mere scintilla” of evidence in support of a claim; the Federal Circuit’s statement that a special master “could” find reasonable basis based upon more than a mere scintilla does not mandate such a finding. See Cottingham, 971 F.3d at 1346. On the other end of the spectrum, a special master cannot apply a reasonable basis standard that too closely approaches that of preponderant evidence. See James-Cornelius, 984 F.3d at 1379. Accordingly, a determination of reasonable basis may rest upon objective evidence ranging from a mere scintilla to a preponderance. In practice, the quantum of evidence required is likely closer to a mere scintilla than it is to a preponderance, as the reasonable basis standard “looks not at the likelihood of success of a claim but more to the feasibility of the claim.” Chuisano v. United States, 116 Fed. Cl. 276, 286 (2014); see also Bekiaris, 140 Fed. Cl. at 115 (“[I]t can be said with confidence that the quantum of evidence of causation to show reasonable basis is markedly less than that needed to prove entitlement.”). Still, such a test leaves a special master with a range within which the special master, as the fact finder, determines whether the quantum and quality of evidence in a case establishes a petitioner’s reasonable basis for bringing the claim. But see Wirtshafter, 155 Fed. Cl. at 672 (stating that the reasonable basis standard “require[s] no more than some evidence” (emphasis added) (quotations omitted)). A. The Special Master Applied the Correct Legal Standard Turning to the present case, the Special Master did not err in his legal conclusion that Petitioner’s evidence, though more than a mere scintilla, does not mandate a finding of reasonable basis. See Cottingham, 2021 WL 6881248, at *24. The question is not whether Petitioner’s evidence has crossed the “mere scintilla” threshold, as Petitioner would have it. See Pet’r Mem. at 22. Otherwise, the Federal Circuit’s holding in this case that Petitioner’s medical records in combination with the package insert “constitute at minimum circumstantial, objective evidence” would end the inquiry. See Cottingham, 971 F.3d at 1346. The Federal Circuit explicitly stated that its ruling was not dispositive on the issue of reasonable basis, as determinations on “the weight of the objective evidence [and] whether that evidence establishes reasonable basis . . . are factual findings for the Special Master[.]” Id. at 1347. In accordance with the Federal Circuit’s decision, the Special Master acknowledged that various pieces of objective evidence submitted by Petitioner constitute at least “some evidence that is consistent with a finding of causation.” Cottingham, 2021 WL 6881248, at *36. The Special Master then assessed the evidence and evaluated whether it was sufficient to form a reasonable basis for bringing the claim. This was an appropriate exercise for the Special Master, as factfinder, under the reasonable basis test. Additionally, the Special Master did not commit legal error by using the Althen prongs as the framework within which to evaluate Petitioner’s objective evidence for the causation element of her claim. Petitioner argues that the Special Master’s use of the Althen prongs—a three-part test for causation governing entitlement to compensation in a vaccine case involving an “off- 5 Case 1:15-vv-01291-TMD Document 131 Filed 04/20/22 Page 6 of 9 Table injury”2—impermissibly elevated the reasonable basis standard and conflicts with the “totality of the circumstances” test. See Pet’r Mem. at 23. But, as may be inferred from the Federal Circuit’s opinion in this case, reasonable basis and entitlement to compensation differ only in the level of proof required, not in their elements. In Cottingham, the Federal Circuit listed the five “necessary element[s] of a petition” under the Vaccine Act and suggested that evidence of each is required to establish reasonable basis. Cottingham, 971 F.3d at 1346 (citing 42 U.S.C. § 300aa-11(c)(1)). Further, the Vaccine Act requires a petitioner to demonstrate each of these same elements by a preponderance of the evidence to establish entitlement to compensation. 42 U.S.C. § 300aa-13(a)(1). Thus, though the burdens of proof differ, the elements of reasonable basis and entitlement are intrinsically linked. This is logical, as a petitioner has no reasonable basis to bring a claim that is facially devoid—or insurmountably deficient, as the case may be— with respect to an element necessary to establish entitlement. See Goodgame v. Sec’y of Health & Hum. Servs., 157 Fed. Cl. 62, 68 (2021) (“[A] claim that on its face . . . is not supported by the materials required by the Vaccine Act for a special master to be able legally to award compensation does not have a reasonable basis.”). This framework demonstrates that the test for reasonable basis incorporates the elements of entitlement, including, as relevant here, causation. See Cottingham, 971 F.3d at 1346 (“Cottingham must point to evidence of a causal relationship . . . to establish that a reasonable basis for the claim existed when the petition was filed.”). In the vaccine injury context, causation is defined by the Althen prongs. Moberly ex rel. Moberly v. Sec’y of Health & Hum. Servs., 592 F.3d 1315, 1321-22 (Fed. Cir. 2010). By extension, the Althen prongs may provide at least some definitional context to causation in a reasonable basis analysis. The Special Master made such use of Althen in this case, stating that he “borrow[ed] from the [Althen] structure,” while simultaneously acknowledging the diminished standard required to establish reasonable basis. Cottingham, 2021 WL 6881248, at *44. He then made only a single specific reference to an Althen prong during his evaluation of Petitioner’s evidence on causation, stating that a lack of evidence under Althen prong two, though not dispositive, “cut against a finding of reasonable basis.” Id. at *48. This comports with the totality of the circumstances test, as such a test does not eschew all consideration of individual factors in favor of a formless approach but rather requires a weighing of factors “within the context of all other factors that are relevant to the inquiry.” Crawford v. Dep’t of the Army, 718 F.3d 1361, 1366-67 (Fed. Cir. 2013) (“As with any test that considers the totality of the circumstances, certain factors cannot be singled out as dispositive without first weighing all of the other potentially competing factors. 2 The Vaccine Act provides two ways for a petitioner to establish causation. Munn, 970 F.2d at 865. A petitioner may demonstrate causation through a statutorily prescribed presumption upon a showing that the alleged injury is one listed in the Vaccine Injury Table (the “Table”). 42 U.S.C. § 300aa-14. When the alleged injury is not listed—an “off-Table injury”—the petitioner must prove “causation-in-fact” by a preponderance of the evidence. See 42 U.S.C. §§ 300aa-11(c)(1)(C)(ii); Lampe v. v. Sec’y of Health & Hum. Servs., 219 F.3d 1357,1360 (Fed. Cir. 2000). To prove causation for an off-Table injury under Althen, a Petitioner must demonstrate: “(1) a medical theory causally connecting the vaccination and the injury; (2) a logical sequence of cause and effect showing that the vaccination was the reason for the injury; and (3) a showing of a proximate temporal relationship between vaccination and injury.” Althen, 418 F.3d at 1278. 6 Case 1:15-vv-01291-TMD Document 131 Filed 04/20/22 Page 7 of 9 This is not to say that in some cases an individual factor cannot prove dispositive.”). Thus, though a discussion of Althen is not required in every reasonable basis analysis, the Special Master’s use here was appropriate and did not elevate his reasonable basis analysis into an entitlement analysis. B. The Special Master’s Decision was not Arbitrary, Capricious, or an Abuse of Discretion In its opinion in this case, the Federal Circuit held that Petitioner is required to “point to evidence of a causal relationship between the administration of the vaccine and her injuries in order to establish that a reasonable basis for the claim existed when the petition was filed.” Cottingham, 971 F.3d at 1346. Simply pointing to evidence, however, is not sufficient, as an evaluation of “the weight of the objective evidence [and] whether that evidence establishes reasonable basis . . . are factual findings for the Special Master.” Id. at 1347. Based on his evaluation of the evidence, the Special Master ruled that Petitioner did not have a reasonable basis for her claim. Affording deference to the Special Master’s factual findings, the Court finds that the Special Master appropriately considered the evidence and reached a rational conclusion. See Hines, 940 F.2d at 1528 (“If the special master has considered the relevant evidence of record, drawn plausible inferences and articulated a rational basis for the decision, reversible error will be extremely difficult to demonstrate.”). The Court, therefore, sustains the Special Master’s denial of attorneys’ fees. It is not this Court’s role to “reweigh the factual evidence, assess whether the special master correctly evaluated the evidence, or examine the probative value of the evidence or credibility of the witnesses—these are all matters within the purview of the fact finder.” Porter v. Sec’y of Health & Hum. Servs., 663 F.3d 1242, 1249 (Fed. Cir. 2011). In accordance with the instruction from the Federal Circuit, the Special Master conducted a thorough evaluation of the vaccine package insert in combination with Petitioner’s medical records, affidavits, and medical literature. See Cottingham, 2021 WL 6881248, at *34-43. The Special Master reached some notable conclusions with respect to the reliability and weight of this evidence. First, the Special Master noted that although Petitioner’s medical records and the vaccine package insert match with respect to some of the types of symptoms Petitioner experienced, the timing of the onset of Petitioner’s symptoms differs substantially from that listed on the package insert. See id. at *31- 33. Second, the Special Master took as true Petitioner’s affidavit, except with respect to her account of near blackouts, which he found “highly impossible” based on its inconsistency with the medical records. See id. at *37-38. Third, the Special Master found that the medical articles submitted by Petitioner were of little evidentiary value due to their “methodological limitations” and limited applicability to Petitioner’s claim. See id. at *43. The Special Master’s evaluation of the evidence, though perhaps more probing than Petitioner might have expected under the reasonable basis standard, did not impermissibly elevate the standard. The reasonable basis standard does not require a special master to accept evidence at face value; otherwise, this becomes a box-checking exercise in which fees are awarded so long as a petitioner submits an affidavit and medical records demonstrating that, at 7 Case 1:15-vv-01291-TMD Document 131 Filed 04/20/22 Page 8 of 9 some point after receiving a vaccine, the petitioner suffered from an adverse medical condition. This would render meaningless the Federal Circuit’s instruction that the Special Master was to weigh the evidence and determine whether it met the reasonable basis standard. See Cottingham, 971 F.3d at 1346. Here, the Special Master identified several facial deficiencies in Petitioner’s evidence, including inconsistencies between Petitioner’s affidavit and medical records, and the delayed onset of symptoms. Given the facial weaknesses of the other objective evidence in the case, a more extensive analysis of, in particular, the medical literature was not an abuse of discretion. As the Special Master noted, other petitioners that have put forth the medical literature at issue in this case have prevailed on fees. See Cottingham, 2021 WL 6881248, at *43 n.29 (citing Balasco v. Sec’y of Health & Hum. Servs., 2020 WL 2461911 (Fed. Cl. Spec. Mstr. Apr. 16, 2020); Combs v. Sec’y of Health & Hum. Servs., 2018 WL 2772218 (Fed. Cl. Spec. Mstr. Apr. 23, 2018)). Petitioners in those cases, however, “made a stronger evidentiary showing,” including expert reports based on the articles. Cottingham, 2021 WL 6881248, at *43 n.29. In this case, to determine whether the literature might mitigate or exacerbate the deficiencies in the other objective evidence, the Special Master extensively analyzed the reliability of the medical literature and its applicability to Petitioner’s reasonable basis. Under the totality of the circumstances test, such an exercise was rational and not an abuse of discretion. In his analysis, the Special Master cited to several entitlement cases which were decided after the instant case was filed and in which the medical literature at issue here was found to be unpersuasive. See Cottingham, 2021 WL 6881248, at *42-43. The Court agrees with Petitioner that this portion of the Special Master’s decision is problematic, see Pet’r Mem. at 5-6; however, the Court finds that this does not rise to the level of an abuse of discretion. Entitlement cases decided after a petition is filed should have no bearing on whether a petitioner had “a reasonable basis for the claim existed when the petition was filed.” Cottingham, 971 F.3d at 1346 (emphasis added). The Special Master did not use these cases, however, to find that Petitioner lacked a reasonable basis because other cases have found the medical literature unreliable. Rather, he used the case reports to support his underlying rationale for assigning little weight to the articles: that the “articles present a series of case reports,” which “provide little, if any, value to an analysis of causation.” Cottingham, 2021 WL 6881248, at *43. In support of this proposition, the Special Master cited to multiple cased decided before Petitioner’s case. See id. (collecting cases). In other words, the Special Master could have (and should have) reached the same conclusion on the “methodological limitations” and weight of the literature without referencing cases decided multiple years after Petitioner filed her petition. Based upon his evaluation of all the evidence, the Special Master reached a rational conclusion that Petitioner provided insufficient evidence to establish a reasonable basis for filing her petition. See Cottingham, 2021 WL 6881248, at *52. In doing so, the Special Master focused primarily on the “latency between the vaccination and the onset of any health conditions,” which was “approximately four months at the shortest.” Id. at *53. The Special Master found that this latency was well beyond a reasonable time compared to the warnings on the package insert, which indicate, for example, that headaches may occur within two weeks of vaccination or that 8 Case 1:15-vv-01291-TMD Document 131 Filed 04/20/22 Page 9 of 9 there is a risk of fainting within fifteen minutes of vaccination. Id. at 49-50. Notably, despite the Special Master’s thorough analysis of Petitioner’s affidavit and medical records, he reached this conclusion taking Petitioner’s timeline of events as true. See id. In other words, Petitioner’s objective evidence, on its face, did not establish reasonable basis. The medical literature, found by the Special Master to be of little evidentiary value, could not overcome this deficiency. In sum, the Special Master applied the appropriate standard, considered the relevant evidence, and reached rational factual determinations. The Court understands the impulse to believe that an 83-page opinion must have overstepped the low threshold of reasonable basis and delved too far into the evidence presented. However, given the extensive procedural history of this case, one can hardly fault the Special Master for giving a comprehensive explanation of his reasoning. The Court sustains the Special Master’s decision. IV. CONCLUSION For the reasons stated above, the Court finds that the Special Master’s decision was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Petitioner’s motion for review of the Special Master’s decision is DENIED. The Special Master’s decision of September 27, 2021, is SUSTAINED. The Clerk shall enter judgment accordingly. IT IS SO ORDERED. s/ Thompson M. Dietz THOMPSON M. DIETZ, Judge 9