VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-01222
Package ID: USCOURTS-cofc-1_19-vv-01222
Petitioner: Thomas Hohenstein
Filed: 2019-08-16
Decided: 2023-07-28
Vaccine: influenza
Vaccination date: 2016-11-03
Condition: vaccine-induced chronic inflammatory demyelinating polyneuropathy (CIDP)
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Thomas Hohenstein filed a petition on August 16, 2019, alleging that an influenza vaccine he received on November 3, 2016, caused or aggravated chronic inflammatory demyelinating polyneuropathy (CIDP). The respondent, the Secretary of Health and Human Services, contested entitlement. During a status conference, it was noted that Mr. Hohenstein had not presented a medical theory to support his case, his treating doctors did not support vaccine causation, and there were conflicting reports regarding the onset of his symptoms. The parties agreed to first address the onset dispute by developing the evidentiary record. Mr. Hohenstein submitted additional evidence, including affidavits, medical records, and employment records. A hearing was held on October 11, 2022, where Mr. Hohenstein and other witnesses testified. Based on this evidence, Special Master Christian J. Moran issued a Finding of Fact on October 21, 2022, determining that Mr. Hohenstein's neurological problems began on May 15, 2017, which was 193 days after the vaccination. This lengthy interval made a finding of vaccine causation extremely unlikely. Following this determination, Mr. Hohenstein moved on December 15, 2022, to dismiss his petition, stating he understood this would result in judgment against him and that he intended to reject the Vaccine Program judgment to file a civil action. The Secretary did not respond to the motion. Special Master Moran granted the motion, dismissing the case with prejudice for insufficient proof, and judgment was entered on February 6, 2023. Mr. Hohenstein subsequently sought attorneys' fees and costs, arguing he brought the claim in good faith with a reasonable basis. The Special Master denied this request on July 28, 2023, finding that the objective evidence did not rise to a level warranting a finding of reasonable basis. Mr. Hohenstein sought reconsideration, which was denied. He then sought review of the Special Master's decision denying attorneys' fees and costs from the Court of Federal Claims. Petitioner argued that the Special Master applied a heightened standard for attorneys' fees and costs and erred in finding no evidence of causation. The Court of Federal Claims, in an opinion issued under seal on December 21, 2023, and reissued publicly on January 9, 2024, reviewed the Special Master's decision under the arbitrary, capricious, abuse of discretion, or otherwise not in accordance with law standard. The Court found that the Special Master did not err in using the Althen prongs to structure his analysis for reasonable basis, nor did he impermissibly require an express medical opinion. The Court also found that the Special Master's evaluation of the objective evidence, which noted the lack of causation evidence from treating doctors, lack of an expert report, and lack of medical articles examining a potential link between the flu vaccine and CIDP, was rational and supported by the record. The Court concluded that public policy considerations did not override the evidentiary burden. Therefore, the Court denied Mr. Hohenstein's motion for review and sustained the Special Master's decision denying attorneys' fees and costs. The attorneys for the petitioner were Mark Theodore Sadaka, Law Offices of Sadaka Associates, LLC. The attorneys for the respondent were Tyler King, Darryl R. Wishard, Heather L. Pearlman, C. Salvatore D’Alessio, and Brian M. Boynton, United States Department of Justice. Special Master Christian J. Moran issued the initial decision, and Judge Philip S. Hadji issued the review decision.

Theory of causation field:
Petitioner Thomas Hohenstein alleged that an influenza vaccine administered on November 3, 2016, caused or aggravated chronic inflammatory demyelinating polyneuropathy (CIDP). The Special Master determined the onset of neurological problems was May 15, 2017, 193 days post-vaccination, making causation unlikely. Petitioner moved to dismiss his entitlement claim, which was granted with prejudice for insufficient proof. Petitioner then sought attorneys' fees and costs, arguing good faith and a reasonable basis for the claim. The Special Master denied fees, finding the objective evidence did not support a reasonable basis. The Court of Federal Claims reviewed this denial, finding the Special Master's analysis using the Althen prongs was appropriate and that the evidence, including the lack of treating physician or expert reports supporting causation, was insufficient to establish a reasonable basis. The court upheld the Special Master's decision, denying attorneys' fees and costs. Petitioner's counsel was Mark Theodore Sadaka. Respondent's counsel included Tyler King. Special Master Christian J. Moran issued the entitlement decision, and Judge Philip S. Hadji issued the review decision on attorneys' fees. The theory was off-Table, and the case was dismissed for insufficient proof and subsequently denied attorneys' fees and costs.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_19-vv-01222-0
Date issued/filed: 2022-11-07
Pages: 7
Docket text: PUBLIC DECISION (Originally filed: 10/21/2022) regarding 124 Findings of Fact & Conclusions of Law, Signed by Special Master Christian J. Moran. (cjaj) Service on parties made.
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Case 1:19-vv-01222-PSH Document 125 Filed 11/07/22 Page 1 of 7
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
* * * * * * * * * * * * * * * * * * * * * *
THOMAS HOHENSTEIN, *
* No. 19-1222V
Petitioner, *
* Special Master Christian J. Moran
v. *
* Filed: October 21, 2022
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * Finding of Fact, Onset
*
Respondent. *
* * * * * * * * * * * * * * * * * * * * * *
Mark Sadaka, Law Offices of Mark Sadaka Associates, LLC, Englewood, NJ, for
petitioner;
Tyler King, United States Dep’t of Justice, Washington, DC, for respondent.
UNPUBLISHED FINDING OF FACT1
Mr. Hohenstein alleges that an influenza (“flu”) vaccine caused him to suffer
chronic inflammatory demyelinating polyneuropathy (“CIDP”). Am. Pet., filed
Mar. 10, 2022. CIDP is a peripheral neurologic disease, sometimes marked by
numbness and tingling. Merritt’s Neurology, ch. 87, § XII (13th ed., 2015). The
parties dispute when Mr. Hohenstein began having numbness and tingling. After
the parties developed evidence, a hearing was held on October 11, 2022. The
evidence preponderates in favor of an onset of May 15, 2017.
1 The E-Government Act, 44 § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services), requires that the Court post this ruling on its website
(https://www.uscfc.uscourts.gov/aggregator/sources/7). Once posted, anyone can access this
ruling via the internet. 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 be reflected in the document posted
on the website.

Case 1:19-vv-01222-PSH Document 125 Filed 11/07/22 Page 2 of 7
Summary of Documentary and Testimonial Evidence
In 2016, Mr. Hohenstein lived with his wife and children in a two-story log
cabin in Strasburg, Pennsylvania. He drove more than one hour each way to work
as a commercial plumber for Schaible’s Plumbing, Heating and Air Conditioning.
In fall 2016, Mr. Hohenstein’s assignment was as a secondary foreman at the Blue
Angel site. The primary foreman was Eric Colon, and the senior project manager
was Tim Olson.
Mr. Hohenstein had an annual physical with his usual primary care doctor,
Dr. Tsay, on November 3, 2016. Exhibit 4 at 12-19. As part of the physical, Dr.
Tsay reviewed and examined Mr. Hohenstein’s musculoskeletal and neurologic
systems. The results were normal. Id. at 12-13, 16. Mr. Hohenstein received the
flu vaccine on this date. Id. at 17.
Via an affidavit, Mr. Hohenstein asserted he experienced flu-like symptoms
about one week after the vaccination. Exhibit 22 ¶ 6. No medical records reflect
this illness and in his oral testimony, Mr. Hohenstein could not recall many, if any,
details.
One of Mr. Hohenstein’s hobbies was hunting for deer. Exhibit 7 (damages
affidavit) ¶ 2. In Pennsylvania, the deer season begins the Monday after
Thanksgiving. However, according to Mr. Hohenstein’s and his wife’s testimony,
he did not hunt in 2016 because he was not comfortable climbing. In this respect,
Mr. Hohenstein is indicating that the numbness in his feet began early enough that
the numbness interfered with a favorite activity four days after Thanksgiving.
In another way, Mr. Hohenstein placed the onset of numbness and tingling
slightly later, in early December 2016. See Am. Pet. ¶ 3; Exhibit 22 (affidavit,
signed Apr. 8, 2022) ¶ 8. Throughout December, Mr. Hohenstein continued to
work at his job as a plumber for at least 40 hours per week and sometimes for more
than 40 hours per week. Exhibit 14 at 4. Mr. Hohenstein, Mr. Colon, and Mr.
Olson testified that Mr. Hohenstein worked very hard and was committed to
getting his job done.
Mr. Colon and Mr. Olson averred that they noticed Mr. Hohenstein having
trouble performing his job in December. Exhibit 11 ¶ 5; Exhibit 13 ¶ 5. When Mr.
Colon was asked to explain how he recalled the onset being around Christmas, Mr.
Colon said that he associated Mr. Hohenstein’s problems with cold weather. Mr.
Colon and Mr. Hohenstein testified that Mr. Hohenstein believed his work boots
were contributing to his feeling numb in the cold. On the other hand, when Mr.
2

Case 1:19-vv-01222-PSH Document 125 Filed 11/07/22 Page 3 of 7
Olson was asked why he placed the onset at the end of December or beginning of
January, Mr. Olson testified he did not know why he said that date. Thus, Mr.
Olson’s account of the onset of Mr. Hohenstein’s difficulties on the job merits little
weight.
Other information about the onset of numbness and tingling first appears in a
medical record Dr. Tsay created on June 29, 2017. Exhibit 4 at 6-12. Under
CC/HPI, Dr. Tsay wrote: “presents with tingling and numbness of fingers and toes
for 2 months. no weakness.” Id. at 6. Dr. Tsay testified that he (and not his nurse)
created this entry.
During cross-examination, Mr. Hohenstein’s attorney demonstrated that Dr.
Tsay’s treatment was incomplete. Dr. Tsay’s medical record does not show he
reviewed Mr. Hohenstein’s neurologic or musculoskeletal system. The record also
does not show that Dr. Tsay examined Mr. Hohenstein’s neurologic or
musculoskeletal system. See id. at 7-8. Dr. Tsay admitted that the lack of
documentation meant that he did not perform these steps because if he had done
them, he would have documented them.
In response to Mr. Hohenstein’s complaints of numbness and tingling, Dr.
Tsay ordered various blood tests, including a test to look for a deficiency in
vitamin B12. Exhibit 4 at 9. The results were more or less normal. See, e.g., id. at
64.
After the lab results came in, Mr. Hohenstein saw Dr. Tsay’s associate, Dr.
Molnar. Exhibit 4 at 1. Dr. Molnar’s August 11, 2017 record states: “Patient
reports several month history of paresthesia of finger tips and feet.” Id. Dr.
Molnar referred Mr. Hohenstein to a neurologist, Marcia Dover.
Mr. Hohenstein saw Dr. Dover on August 28, 2017. Exhibit 1 at 6-8. Her
history begins by noting that Mr. Hohenstein “says 3 months ago he developed
some numbness in his feet.” Id. at 6. Dr. Dover ordered an EMG and prescribed
gabapentin. Id. at 7.
Around the time Mr. Hohenstein started to see Dr. Dover, his job location
changed from Blue Angel to L.A. Fitness. Mr. Colon no longer saw Mr.
Hohenstein on a daily basis. However, Mr. Olson saw Mr. Hohenstein four or five
times per week, usually for at least thirty minutes.
The EMG Dr. Dover ordered took place on September 26, 2017. Exhibit 4
at 121. It showed demyelination. Id.; Exhibit 1 at 4. Mr. Hohenstein also told Dr.
3

Case 1:19-vv-01222-PSH Document 125 Filed 11/07/22 Page 4 of 7
Dover that he was having episodes of losing his balance. Exhibit 1 at 6.
Nonetheless, Mr. Hohenstein was still working. See Exhibit 10 at 23.
On October 30, 2017, Dr. Dover wrote Mr. Hohenstein was having
“significant” trouble with his balance and was dropping things more frequently.
Exhibit 1 at 2. Dr. Dover diagnosed Mr. Hohenstein as having CIDP and the
Secretary has not contested this diagnosis. Dr. Dover started IVIG.
After learning from Dr. Dover that Mr. Hohenstein suffered from CIDP, his
wife began looking for information about the disease on the Internet. When asked
whether she found articles associating the flu vaccine with CIDP, Ms. Hohenstein
stated that she did not recall.
Mr. Hohenstein’s trouble with balance and holding objects caused Mr. Olson
to release Mr. Hohenstein from his job. Mr. Olson was concerned that Mr.
Hohenstein’s lack of coordination and lack of strength placed Mr. Hohenstein, his
coworkers, and machinery at risk. Mr. Olson averred that this conversation about
Mr. Hohenstein no longer working as a plumber was “hard” to have with him.
Exhibit 11 ¶ 7. Mr. Hohenstein’s last day of work was December 9, 2017. Exhibit
10 at 23.
Mr. Hohenstein saw a new neurologist, Justin Kwan, on January 26, 2018.
Exhibit 21 at 70. The reasons for the new doctor were Dr. Dover’s referral and/or
Mr. Hohenstein’s wife’s push for care at a higher-level facility. When Mr.
Hohenstein saw Dr. Kwan, Mr. Hohenstein said he was in good health until “until
December 2016/January 2017.” Id. at 73. Dr. Kwan confirmed the diagnosis of
CIDP and admitted him to Temple University Hospital. Id.
The details of this hospitalization and more recent medical treatments do not
inform the question of when Mr. Hohenstein’s numbness and tingling began.
Thus, although these records were reviewed, they are not summarized.
Standards for Adjudication
A petitioner is required to establish his case by a preponderance of the
evidence. 42 U.S.C. § 300aa–13(1)(a). The preponderance of the evidence
standard requires a “trier of fact to believe that the existence of a fact is more
probable than its nonexistence before [he] may find in favor of the party who has
the burden to persuade the judge of the fact's existence.” Moberly v. Sec’y of
Health & Hum. Servs., 592 F.3d 1315, 1322 n.2 (Fed. Cir. 2010) (citations
omitted). Proof of medical certainty is not required. Bunting v. Sec’y of Health &
Hum. Servs., 931 F.2d 867, 873 (Fed. Cir. 1991).
4

Case 1:19-vv-01222-PSH Document 125 Filed 11/07/22 Page 5 of 7
In reaching decisions, special masters are expected to examine the “record as
a whole.” 42 U.S.C. § 300aa–13(a)(1). Special masters are directed to consider
the medical records, but medical records are not “binding on the special master.”
42 U.S.C. § 300aa–13(b)(2); accord Snyder v. Sec’y of Health & Hum. Servs., 88
Fed. Cl. 706, 745 n.67 (2009). Congress authorized special masters to find the
“onset of . . . an injury . . . occurred within the time period described in the
Vaccine Injury Table even though the occurrence of such symptom . . . was not
recorded or was incorrectly recorded as having occurred outside such period.” 42
U.S.C. § 300aa–13(b)(2).
Medical records that describe the person’s condition around the time that the
medical records were created are presumptively accurate. See Cucuras v. Sec’y of
Health & Hum. Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993). However, this
presumption can be rebutted. Medical records do not always memorialize all the
symptoms a patient is experiencing at the time. Petitioners have persuasively
explained why they did not complain to a particular medical doctor. See Kirby v.
Sec’y of Health & Hum. Servs., 997 F.3d 1378, 1382-83 (Fed. Cir. 2021);
Tenneson v. Sec’y of Health & Hum. Servs., 142 Fed. Cl. 329, 339 (2019) (special
master was not arbitrary in crediting petitioner’s testimony “regarding the onset
date of her shoulder injury, notwithstanding her delay in seeking treatment”);
La Londe v. Sec’y of Health & Hum. Servs., 110 Fed. Cl. 184, 203 n.33 (2013),
aff’d, 746 F.3d 1334 (Fed. Cir. 2014).
In setting forth the findings below, the undersigned also cites to the primary
evidence that is the basis for the finding. The undersigned recognizes that not all
evidence is entirely consistent with these findings. See Doe 11 v. Sec’y of Health
& Hum. Servs., 601 F.3d 1349, 1355 (Fed. Cir. 2010) (ruling that the special
master’s fact-finding was not arbitrary despite some contrary evidence). Indeed, it
is the presence of inconsistent evidence that dictated a proceeding to resolve the
factual dispute.
Analysis
The basic question is how the value of evidence created closer in time to an
event compares to the value of evidence created later in time. For the reasons
explained below, the undersigned credits the earlier-created evidence.
5

Case 1:19-vv-01222-PSH Document 125 Filed 11/07/22 Page 6 of 7
Dr. Tsay’s June 29, 2017 record and Dr. Dover’s August 28, 2017 record are
relatively consistent.2 One points to an onset at the end of April 2017, Exhibit 4 at
6, and the other to an onset at the end of May 2017, Exhibit 1 at 6. While Mr.
Hohenstein disputed the accuracy of these records, he did not persuasively
establish why the records were wrong. On cross-examination, Mr. Hohenstein
conceded all the other information was accurate. Mr. Hohenstein has not shown
how two doctors, who independently were accurate about many details, could
make a similar mistake about onset. Because these records were created close in
time to when Mr. Hohenstein was experiencing numbness and tingling and because
they corroborate each other, they are persuasive. Based upon these records, it
appears that Mr. Hohenstein’s numbness and tingling began on approximately May
15, 2017.
In crediting Dr. Tsay’s and Dr. Dover’s records, the undersigned is declining
to give much weight to Dr. Kwan’s January 26, 2018 record. Dr. Kwan’s record
was created about five months after Dr. Dover’s record and about seven months
after Dr. Tsay’s record. Mr. Hohenstein has not shown how his memory improved
during this passage of time. Moreover, during this time, Mr. Hohenstein may have
learned through his wife’s Internet searching that flu vaccines are associated with
CIDP.3
After Mr. Hohenstein began having balance and coordination problems, he
continued working because of his dedication to his job. As Mr. Hohenstein
explained, his coworkers helped him and sometimes covered for him. This
perspective seems accurate. However, the question is whether Mr. Hohenstein
delayed seeking medical treatment for approximately two months or approximately
seven months. As explained above, the more likely than not answer is
approximately two months.
An onset of numbness and tingling on May 15, 2017 is 193 days after the
vaccination. If the parties retained expert witnesses, they are ordered to provide
this finding of fact to any experts whom they retain. An opinion not consistent
2 Dr. Molnar’s August 11, 2017 record sheds little light regarding the onset of problems
because it states Mr. Hohenstein was having problems for “several” months. The term “several”
is vague enough that it could be consistent with an onset in the middle of May or the previous
December. See Exhibit 4 at 1.
3 Ms. Thompson’s testimony of not recalling whether she saw this material was not
credible. See Hines v. Sec’y of Health & Hum. Servs., 21 Cl. Ct. 634, 640 (1990) (recognizing
that special masters may evaluate the credibility of a witness appearing by telephone).
6

Case 1:19-vv-01222-PSH Document 125 Filed 11/07/22 Page 7 of 7
with this finding is unlikely to be credited. Burns v. Sec’y of Health & Hum.
Servs., 3 F.3d 415 (Fed. Cir. 1993).
Conclusion
The evidence preponderates in support of a finding that Mr. Hohenstein’s
numbness and tingling began on May 15, 2017.
A status conference is set, sua sponte, for November 8, 2022 at 10:00 A.M.
Eastern Time. The parties should be prepared to discuss any next steps.
Any questions may be directed to my law clerk, Caitlin-Jean Juricic, at
(202) 357-6360.
IT IS SO ORDERED.
s/ Christian J. Moran
Christian J. Moran
Special Master
7

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DOCUMENT 2: USCOURTS-cofc-1_19-vv-01222-1
Date issued/filed: 2023-01-23
Pages: 3
Docket text: PUBLIC DECISION (Originally filed: 12/30/2022) regarding 130 DECISION of Special Master Signed by Special Master Christian J. Moran. (dksc) Service on parties made.
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Case 1:19-vv-01222-PSH Document 131 Filed 01/23/23 Page 1 of 3
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
* * * * * * * * * * * * * * * * * * * * * * * * *
THOMAS HOHENSTEIN, *
* No. 19-1222V
Petitioner, *
* Special Master Christian J. Moran
v. *
* Filed: December 30, 2022
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * Entitlement; dismissal.
*
Respondent. *
* * * * * * * * * * * * * * * * * * * * * * * * *
Mark Theodore Sadaka, Law Offices of Sadaka Associates, LLC, for petitioner;
Tyler King, United States Dep’t of Justice, Washington, D.C., for respondent.
UNPUBLISHED DECISION DENYING COMPENSATION1
Mr. Thomas Hohenstein alleged that the influenza vaccine he received on November 3,
2016, caused him to suffer shortly thereafter vaccine-induced chronic inflammatory
demyelinating polyneuropathy (CIDP) that was either "caused-in-fact" by the above-stated
vaccination or, in the alternative, significantly aggravated by the above-stated vaccination. Am.
Pet., filed March 10, 2022, at 1. On December 15, 2022, Mr. Hohenstein moved for a decision
dismissing his petition.
I. Procedural History
Mr. Hohenstein (“petitioner”) filed a petition on August 16, 2019. After petitioner filed
his initial medical records, the Secretary contested entitlement. Resp’t’s Rep., filed August 20,
2020. A status conference was held on September 9, 2020, during which it was discussed that
petitioner did not present a medical theory to advance his case, petitioner’s treating doctors did
not support vaccine causation, and the medical records contained conflicting reports of the onset
of petitioner’s symptoms. The parties agreed to address the onset dispute first by further
developing the evidentiary record.
Petitioner submitted additional evidence, including more affidavits, medical records, and
employment records. A hearing was held on October 11, 2022, during which petitioner and
1 The E-Government, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion
of Electronic Government Services) requires the Court of Federal Claims to make this decision
available to the public. The Court does so by posting the decision to the Court’s website. This
posting will make the decision available to anyone with the internet. 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 1:19-vv-01222-PSH Document 131 Filed 01/23/23 Page 2 of 3
other percipient witnesses testified. Based upon this evidence, the undersigned found that
petitioner’s neurologic problems began on May 15, 2017. Finding of Fact, filed on October 21,
2022, 2022 WL 17819291. The latency between the date of vaccination and the onset of
neurologic problem is 193 days.
At a status conference held on November 16, 2022, petitioner’s counsel stated that he
needed to consult with his client on how to proceed with the case, in light of the recently issued
Finding of Fact. Petitioner was then ordered, pursuant to the November 22, 2022 Scheduling
Order, to file a status report regarding how he intends to proceed with the case by December 16,
2022.
On December 15, 2022, petitioner moved for a decision dismissing his petition.
Petitioner stated that he “understands that a decision by the Special Master dismissing his
petition will result in judgment against him [and] has been advised that such a judgment will end
all his rights in the Vaccine Program.” Pet’r’s Mot., filed Dec. 15, 2022. Petitioner “intends to
elect to reject the Vaccine Program judgment against [him] and elect to file a civil action.” Id.
The Secretary did not file a response to this motion. This matter is now ready for adjudication.
II. Analysis
To receive compensation under the National Vaccine Injury Compensation Program
(hereinafter “the Program”), a petitioner must prove either 1) that the vaccinee suffered a “Table
Injury” – i.e., an injury falling within the Vaccine Injury Table – corresponding to one of the
vaccinations, or 2) that the vaccinee suffered an injury that was actually caused by a vaccine.
See §§ 300aa-13(a)(1)(A) and 300aa-11(c)(1). 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, petitioner filed medical records but never advanced to the phase of obtaining
expert reports in support of his claim. A fact hearing was conducted on October 11, 2022 to
determine the date of the onset of petitioner’s condition. Thereafter, a Finding of Fact found that
petitioner’s numbness and tingling began on May 15, 2017. Petitioner now wishes to have his
claim dismissed and judgment entered against him. Though petitioner did not cite to a specific
rule when filing this motion, the undersigned will construe this as a motion filed pursuant to
Vaccine Rule 21(b) (regarding involuntary dismissal), given petitioner’s clear intent that a
judgment be issued in this case, protecting his right to file a civil action in the future. See Pet’r’s
Mot., filed Dec. 15, 2022.
To conform to 42 U.S.C. § 300aa–12(d)(3), a decision must “include findings of fact and
conclusions of law.” Here, the lengthy interval between the vaccination and the onset of
neurologic symptoms makes a finding that the vaccination caused the problem extremely
unlikely. See Bazan v. Sec’y of Health & Hum. Servs., 539 F.3d 1347, 1352 (Fed. Cir. 2008)
(“[u]sually, a petitioner's failure to satisfy the proximate temporal relationship prong is due to the
fact that onset was too late after the administration of a vaccine for the vaccine to be the cause”);
Kamppi v. Sec’y of Health & Hum. Servs., No. 15-1013V, 2019 WL 5483161, at *11 (Fed. Cl.
Spec. Mstr. July 24, 2019) (indicating that an onset of longer than two months is not medically
2

Case 1:19-vv-01222-PSH Document 131 Filed 01/23/23 Page 3 of 3
plausible and citing cases). Without a showing of a proximate temporal relationship between the
vaccination and petitioner’s injury, the remainder of the case becomes moot.
Thus, the Motion for Decision is GRANTED and this case is DISMISSED WITH
PREJUDICE for insufficient proof. The Clerk shall enter judgment accordingly. See
Vaccine Rule 21(b).
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
3

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DOCUMENT 3: USCOURTS-cofc-1_19-vv-01222-4
Date issued/filed: 2024-01-09
Pages: 10
Docket text: JUDGE VACCINE UNREPORTED OPINION (PUBLIC VERSION) reissuing 154 Opinion and Order on Motion for Review, Signed by Judge Philip S. Hadji. (lrf) Service on parties made.
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Case 1:19-vv-01222-PSH Document 156 Filed 01/09/24 Page 1 of 10
In the United States Court of Federal Claims
THOMAS HOHENSTEIN,
Petitioner,
No. 19-1222
v. (Filed Under Seal: December 21, 2023)
(Reissued Publicly: January 9, 2024)
SECRETARY OF HEALTH AND
HUMAN SERVICES, Not for Publication
Respondent.
Mark Theodore Sadaka, Law Offices of Sadaka Associates, LLC, Englewood, N.J., for
Plaintiff.
Tyler King, Trial Attorney, Darryl R. Wishard, Assistant Director, Heather L. Pearlman,
Deputy Director, C. Salvatore D’Alessio, Director, Torts Branch, Brian M. Boynton,
Principal Deputy Assistant Attorney General, Civil Division, United States Department of
Justice, Washington, D.C., for Respondent.
OPINION AND ORDER1
HADJI, Judge.
Petitioner, Thomas Hohenstein, seeks review of a decision by Special Master
Christian J. Moran denying Petitioner’s Motion for Attorneys’ Fees and Costs. See
Hohenstein v. Sec’y of Health & Hum. Servs., No. 19-1222V, 2023 WL 5430741 (Fed. Cl.
Spec. Mstr. July 28, 2023) (ECF 143) (the Fee Decision). Petitioner alleges that the Special
Master impermissibly elevated Petitioner’s burden for establishing an award for attorneys’
fees and costs and erred in finding there was no evidence of causation. Mot. for Review at
1 (ECF 148). He further argues that public policy supports the award of attorneys’ fees and
costs in this case. Id. For the reasons stated below, Petitioner’s Motion for Review is
DENIED, and the Special Master’s Fee Decision is SUSTAINED.
1 This Opinion was issued under seal on December 21, 2023. The parties were directed to propose
redactions by January 4, 2024. No proposed redactions were received. The Court hereby publicly
releases the Opinion and Order in full.

Case 1:19-vv-01222-PSH Document 156 Filed 01/09/24 Page 2 of 10
BACKGROUND2
On November 3, 2016, Petitioner received an influenza vaccination during a
routine physical exam with his primary care provider, Dr. Donald Tsay. Exhibit (Ex.) 4 at
12-19 (ECF 9). He was fifty-four years old at the time. Id. at 12.
Petitioner alleged that approximately three to four weeks after vaccination, he began
to experience symptoms of numbness, weakness, and tingling. Amended Petition (Am.
Pet.) ¶ 3-4 (ECF 94). Via affidavits and testimony, Petitioner alleged facts that placed the
onset of his symptoms in late 2016. For example, according to testimony from Petitioner
and his wife, Petitioner was unable to participate in a favorite hobby, deer hunting, in
November 2016 because he was not comfortable climbing. Finding of Fact at 2 (ECF 124).
Former colleagues averred that Petitioner also began having trouble performing his job in
December 2016. Ex. 11 ¶ 5 (ECF 50); Ex. 13 ¶ 5 (ECF 53).
Seven months after receiving the flu vaccine, in late June 2017, Petitioner again saw
Dr. Tsay. Ex. 4 at 6 (ECF 9). The record created from that appointment memorialized Dr.
Tsay’s observation that Petitioner “presents with tingling and numbness of fingers and toes
for 2 months. [N]o weakness.” Id. Dr. Tsay diagnosed Petitioner with paresthesia of skin
and ordered blood work. Id. at 8-9.
In late August 2017, Petitioner saw a neurologist, Dr. Dover. Ex. 1 at 6 (ECF 9). Dr.
Dover’s notes reflect that Petitioner “says 3 months ago he developed some numbness in
his feet” and that he reported that his symptoms were worse in cold weather. Id. Dr. Dover
ordered testing and additional lab work. Id. at 7.
On October 30, 2017, Dr. Dover diagnosed Petitioner with chronic inflammatory
demyelinating poluneuropathy (CIDP) during a follow-up visit. Id. at 2. The Secretary has
not contested this diagnosis.
In late January 2018, Petitioner sought a second opinion from another neurologist,
Dr. Kwan. Ex. 21 at 70 (ECF 90). Dr. Kwan noted that Petitioner was in good health “until
December 2016/January 2017.” Id. In a second visit in late February 2018, Dr. Kwan
confirmed the diagnosis of CIDP. Id. at 68.
In his Amended Petition, Petitioner averred that he did not suffer from CIDP or any
other serious disabilities prior to receiving the influenza vaccination. Am. Pet. ¶ 12 (ECF
94).
PROCEDURAL POSTURE
On August 16, 2019, Petitioner filed a claim for compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 et seq. (2012) (the
2 As the basic facts have not changed significantly, the Court’s recitation of background facts draws
largely from the Special Master’s October 21, 2022, Finding of Fact (ECF 124) and the Fee Decision
(ECF 143).
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“Vaccine Act”), for an injury he attributed to the influenza vaccine. Pet. at Preamble (ECF
1). Specifically, he alleged that he received two influenza vaccinations in the Fall of 2016
and, shortly thereafter, suffered vaccine-induced CIDP that was either “caused-in-fact” or,
in the alternative, significantly aggravated by the vaccinations. Id. In support of his petition,
Petitioner later filed five exhibits, including medical records and his Social Security
Administration Disability File. Ex. 1-5 (ECF 9, 10). On March 10, 2022, Petitioner
amended his petition to clarify that he only received one influenza vaccination on
November 3, 2016. Am. Pet. at Preamble (ECF 94).
After Petitioner filed his initial medical records, the Secretary contested his
entitlement to compensation. Rule 4(c) Report (ECF 32). A status conference was held in
which the parties and Special Master discussed Petitioner’s failure to present a medical
theory to advance his case, the lack of support by Petitioner’s treating doctors regarding
vaccine causation, and the conflicting medical reports concerning the onset of Petitioner’s
symptoms. The parties then agreed to address the onset dispute first by further developing
the evidentiary record. Sept. 20, 2020 Scheduling Order (ECF 33).
Shortly thereafter, Petitioner submitted additional evidence to include fact witness
affidavits, medical records, and employment records. See Ex. 8-23 (ECF 48, 49, 50, 53, 56,
61, 70, 71, 79, 83, 84, 90, 97). The Special Master held a hearing, during which Petitioner
and other witnesses testified. See Hohenstein v. Sec’y of Health & Hum. Servs., No. 19-
1222V, 2023 WL 356713, at *1-2 (Fed. Cl. Spec. Mstr. Jan. 23, 2023) (ECF 130) (the
Compensation Decision).
Ten days later, on October 21, 2022, the Special Master issued his Finding of Fact.
(ECF 124). Based on the evidence presented, he determined that Petitioner’s neurological
problems began on May 15, 2017, 193 days after the date of vaccination. Id. at 6-7.
Although the Special Master offered Petitioner the opportunity to obtain a report from an
expert, id., Petitioner instead chose to seek the dismissal of his case. On December 15,
2022, Petitioner moved for a decision dismissing his petition. Mot. to Dismiss (ECF 129).
The Special Master dismissed the case with prejudice for insufficient proof. Compensation
Decision (ECF 130). Judgment was entered on February 6, 2023. (ECF 132).
Although unsuccessful in his claim for entitlement, Petitioner sought an award for
attorneys’ fees and costs. Mot. for Att’ys’ Fees and Costs (ECF 133). The Secretary
objected, arguing that Petitioner lacked a reasonable basis for his claim. Resp. to Mot. for
Att’ys’ Fees and Costs at 1 (ECF 134). After considering Petitioner’s evidence and
concluding that Petitioner failed to meet the reasonable basis standard, the Special Master
denied Petitioner’s request for attorneys’ fees and costs on July 28, 2023. Fee Decision
(ECF 143). In an attempt to cure a perceived evidentiary deficiency, Petitioner submitted
two medical articles on causation and sought reconsideration of the Fee Decision. Mot. for
Recons. (ECF 145). The Special Master found that Petitioner had not demonstrated
grounds for reaching an alternative result and denied the Motion for Reconsideration. Order
Den. Mot. for Recons. (ECF 147).
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On August 25, 2023, Petitioner then sought review of the Fee Decision. Mot. for
Review (ECF 148).
STANDARD OF REVIEW
Under the Vaccine Act, this Court may set aside a special master’s findings of fact
or conclusions of law only if they are found to be “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 42 U.S.C. § 300aa-12(e)(2)(B). The
standards set forth in 42 U.S.C. § 300aa-12(e)(2)(B) “vary in application as well as degree
of deference” as each “standard applies to a different aspect of the judgment.” Munn v.
Sec'y of Health & Hum. Servs., 970 F.2d 863, 870 n.10 (Fed. Cir. 1992). Findings of fact
receive deferential review under the “arbitrary and capricious” standard; legal conclusions
are reviewed under the “not in accordance with law” standard; and discretionary rulings
are reviewed for “abuse of discretion.” Id.
DISCUSSION
Petitioner raises three primary objections to the Special Master’s Fee Decision.
First, he argues that the Special Master impermissibly applied a heightened legal standard
for the award of attorneys’ fees and costs. Mot. for Review at 1 (ECF 148). Second, he
argues that the Special Master erred in finding no evidence of causation under Althen prong
2. Id. Finally, Petitioner maintains that public policy supports the award of attorneys’ fees
and costs in this case. Id.
In a vaccine case, an award of attorney fees and costs is not dependent on the success
of the underlying entitlement claim. Instead, “[w]hen 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 v. Sec’y of Health & Hum. Servs., 984 F.3d 1374, 1379 (Fed. Cir. 2021) (quoting
42 U.S.C. § 300aa-15(e)(1); Cloer v. Sec’y of Health & Human Servs., 675 F.3d 1358,
1360-61 (Fed. Cir. 2012)). But even when these two requirements are met, the decision to
grant or deny a request for attorneys’ fees and costs is a matter of discretion. Id. (stating
that “a special master retains discretion to grant or deny attorneys’ fees”). In this case, the
parties do not dispute Petitioner’s good faith in filing the petition. As such, Petitioner’s
entitlement to attorneys’ fees and costs hinges on whether he met his burden in establishing
a reasonable basis for the claim.
“Reasonable basis” is not defined in the Vaccine Act or Program rules but is
understood to be an objective standard determined by the totality of the circumstances.
Chuisano v United States, 116 Fed. Cl. 276, 286 (Fed. Cl. 2014); see also Cottingham ex
rel. K.C. v. Sec’y of Health & Hum. Servs., 971 F.3d 1337, 1344 (Fed. Cir. 2020) (finding
“no reasoned basis for abandoning the Claims Court’s objective, totality of the
circumstances inquiry”).
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As an objective test, it is satisfied through objective evidence. Cottingham, 971 F.3d
at 1344 (citing Simmons v. Sec’y of Health & Hum. Servs., 875 F.3d 632, 635 (Fed. Cir.
2017)). The quantum of objective evidence needed to establish reasonable basis for a claim
is “lower than the preponderant evidence standard required to prove entitlement to
compensation,” but “more than a mere scintilla.” Id. at 1346.
Non-exhaustive factors that the Court may consider include the factual basis of the
claim, the medical and scientific support for the claim, the novelty of the vaccine, and the
novelty of the theory of causation. Amankwaa v. Sec’y of Health & Hum. Servs., 138 Fed.
Cl. 282, 289 (2018). Accordingly, medical records, affidavits, and sworn testimony all
constitute objective evidence that could support reasonable basis. See James-Cornelius,
984 F.3d at 1379-81. Failure to consider objective evidence presented in support of a
reasonable basis for a claim would constitute an abuse of discretion. Cottingham, 971 F.3d
at 1345.
I. The Special Master Did Not Commit Legal Error by Using the Althen
Prongs to Structure His Analysis
Petitioner argues that the Special Master conducted an improper analysis when
evaluating his claim for reasonable basis, resulting in a heightened legal standard for the
award of attorneys’ fees and costs. Not only does he maintain that the Special Master’s use
of the Althen prongs—a three-part test for causation governing entitlement to compensation
for off-table injuries—was in error,3 but he also maintains that, in direct contradiction with
the Federal Circuit’s ruling in James-Cornelius, the Special Master impermissibly requires
petitioners to submit a statement from a treating provider or an expert report to overcome
Althen Prong 2. Mot. for Review at 10-11 (ECF 148).
The Court disagrees. In Cottingham, this Court previously explained that, in the
context of vaccine injury, “causation is defined by the Althen prongs” and “[b]y extension,
the Althen prongs may provide at least some definitional context to causation in a
reasonable basis analysis.” Cottingham v. Sec’y of Health & Hum. Servs., 159 Fed. Cl. 328,
334-35 (2022), aff’d per curiam, No. 22-1737 (Fed. Cir. Nov. 14, 2023). In other words,
although the Althen test may not be used in place of the totality of the circumstances test,
it may be used as a framework to aid the Special Master’s analysis of the totality of the
circumstances.
That is not to say that lack of evidence for one of the Althen prongs automatically
ends a reasonable basis inquiry. Because the totality of the circumstances test requires the
3 Petitioner does not explicitly raise an objection to the Special Master’s use of the Althen structure in his
Motion for Review (ECF 148) as he did in his Motion for Reconsideration (ECF 145). However, the
Court interprets his complaints regarding the “heightened legal standard” and the perceived creation of a
“separate litigation” as an objection to the Special Master’s Althen analysis. See Mot. for Review at 2
(ECF 148) (“The Special Master’s stated reason for denying fees and costs appear focused on a lack of
evidence in the record for Althen prong 2. However, as discussed below, even if this was the correct
analysis, and it was not, there was more than a mere scintilla of evidence to support Althen prong 2.”)
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fact finder to weigh all the objective evidence, a lack of evidence in one prong can cut
against recovery but is not necessarily dispositive. See 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.”); see James-Cornelius, 984 F.3d at 1379,
1381 (holding that “absence of an express medical opinion on causation is not necessarily
dispositive of whether a claim has a reasonable basis” and remanding for the Special
Master to weigh all the evidence on record).
In this case, as in Cottingham, the Special Master made use of the Althen prongs to
structure his analysis, while simultaneously recognizing that the burdens of proof differ for
entitlement and reasonable basis purposes. Fee Decision at 8-9 (ECF 143). He then
weighed the evidence and ultimately concluded that “the objective factors, considered as
a whole, do not rise to a level warranting a finding of reasonable basis.” Id. at 11 (emphasis
added). Such a finding comports with the totality of the circumstances test, as such a test
requires a weighing of all competing factors. See Crawford, 718 F.3d at 1366-67 (noting
that, for the totality of the circumstances test, the impact of one factor must be considered
within the context of all other factors).
It is true that the Special Master did not explicitly reference the totality of the
circumstances test. “This silence, however, should not be taken either as an endorsement
or rejection of a ‘totality of the circumstances’ test.” Cottingham, 971 F.3d at 1346
(cautioning that the lack of reference to the “totality of the circumstances” test in [one case]
should not be construed as an endorsement or rejection). Although the Court acknowledges
that it would have been better for the Special Master to explicitly cite the test, the omission
does not rise to the level of reversible error. Indeed, the Court finds the omission did not
impact his analysis given that the Special Master nonetheless “considered as a whole” the
objective factors. Fee Decision at 11 (ECF 143) (emphasis added).
Accordingly, using the Althen prongs in this context—within a wider analysis of the
totality of the circumstances—was not inappropriate, and the Special Master did not err by
using the Althen prongs as the structure within which to evaluate the objective evidence
presented by Petitioner for the causation element of his claim. See Cottingham, 159 Fed.
Cl. 328, aff’d per curiam, No. 22-1737 (Fed. Cir. Nov. 14, 2023).
With respect to the question of whether the Special Master impermissibly required
Petitioner to submit an express medical opinion in order to satisfy Althen Prong 2 and thus
succeed on his claim for attorneys’ fees and costs, the Court finds that he did not.
In James-Cornelius, the Federal Circuit held that “absence of an express medical
opinion on causation is not necessarily dispositive of whether a claim has a reasonable
basis.” 984 F.3d at 1379. While the Special Master in this case did emphasize the lack of a
statement from a treating doctor or a report from an expert, he specifically cited the Federal
Circuit’s holding in James-Cornelius, demonstrating his awareness of applicable
precedent. Fee Decision at 9 (ECF 143).
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Moreover, although he noted that “the Federal Circuit did not explain how a
petitioner could satisfy reasonable basis for Althen Prong 2 with evidence other than a
report from a treating doctor or a report from a retained expert,” id., at no point did he state
that the use of such evidence was required. Instead, he specifically left open the possibility
that evidence from other sources could satisfy Althen Prong 2. Indeed, in addressing
Petitioner’s lack of an expert report, he noted, “[w]hether this option [an expert report] or
another option would have ultimately advanced [Petitioner]’s claim for compensation
more effectively is difficult to assess.” Id. at 11 (emphasis added). By referencing the
possibility of other options, the Special Master made clear that Petitioner’s failure to submit
an expert report was not fatal to his claim. Instead, the Special Master simply found that
the lack of certain types of evidence, including an expert report, merely served as “points
support[ing] the Secretary’s assertion that [Petitioner] ‘did not file more than a scintilla of
objective evidence in support of causation.’” Id. at 6.
II. The Special Master’s Decision was not Arbitrary, Capricious, or an Abuse
of Discretion
Next, Petitioner argues that the Special Master erred in finding no evidence of
causation under Althen prong 2. Mot. for Review at 1 (ECF 148). Based on his evaluation
of the objective evidence presented in this case, the Special Master concluded that
Petitioner lacked a reasonable basis for his claim. Fee Decision at 12 (ECF 143). It is well
settled that an evaluation of “the weight of the objective evidence in the record [and]
whether that evidence establishes reasonable basis … are factual findings for the Special
Master.” Cottingham, 971 F.3d at 1347. “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.” Hines ex rel. Sevier
v. Sec’y of Health & Hum. Servs., 940 F.2d 1518, 1528 (Fed. Cir. 1991).
In the instant case, Petitioner effectively asks the Court to reweigh the evidence and
find that a reasonable basis existed to bring the claim. He maintains that a fair examination
of the objective factors in his case reveals more than a scintilla of evidence necessary to
support a finding that there was reasonable basis to bring Petitioner’s claim. Mot. for
Review at 11-13 (ECF 148). Specifically, he cites six objective factors in support of
reasonable basis, to include: (1) a timely petition; (2) a covered vaccine; (3) his CIDP
diagnosis; (4) history of compensation to others for CIDP caused by the flu vaccine; (5)
evidence of onset within thirty days; and (6) no evidence of pre-existing CIDP. Id. at 12-
13. As support, he points to medical records, his Social Security Disability application and
business records, witness affidavits, and the actions of the Special Master in conducting a
fact hearing. Id. at 13.
But it is not for this Court to “reweigh the factual evidence, assess whether the
special master correctly evaluated the evidence, or examine the probative value of the
evidence or the credibility of the witnesses—these are all matters within the purview of the
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fact finder.” Porter v. Sec'y of Health & Human Servs., 663 F.3d 1242, 1249 (Fed. Cir.
2011).
Here, the Special Master evaluated the objective evidence before him, noting what
was—and what was not—before him. His recitation of facts confirms his awareness of
several of the undisputed objective factors referenced by Petitioner, including his timely
petition, his receipt of a covered vaccine, and his CIDP diagnosis. Fee Decision at 2 (ECF
143). He noted the existence of medical records that placed Petitioner’s onset firmly in
2017, and then went on to describe evidence from Dr. Kwan and affiants who attested to
the onset of Petitioner’s symptoms within two months of Petitioner’s flu vaccine. Id. at 2,
5-6. He recognized that the Secretary has previously compensated individuals for CIDP
following their influenza vaccines. Id. at 7. The Special Master also noted the lack of
causation evidence from treating doctors, lack of an expert report, and lack of medical
articles examining a potential link between the flu vaccine and CIDP. Id. at 6.
This review demonstrates that the Special Master considered the factual basis, the
medical and scientific support (or lack thereof), and the novelty of the theory of causation.
Although he may not have specifically addressed each of the objective factors referenced
in Petitioner’s Motion for Review in the course of his causation analysis, his decision did
consider the totality of the circumstances. Ultimately, after reviewing the evidence before
him, he decided that the evidence of causation was not enough and concluded that
Petitioner failed to present “a sufficient quantum or quality of evidence to qualify for
reasonable basis.” Id. at 8.
Given the Special Master’s finding of insufficient evidence, the Court recognizes
that this case differs from cases in which special masters clearly erred by finding “no
evidence” of causation despite some evidence on record. See Cottingham, 971 F.3d at 1347
(“no evidence” of causation found despite medical records and a Gardisil package insert
providing support for causation). This case also differs from those in which special masters
outright refused to consider relevant evidence when conducting their reasonable basis
analysis. See James-Cornelius, 984 F.3d at 1379 (special master improperly rejected
affidavits on ground they could never constitute objective evidence).
In this case, at no point did the Special Master refuse to consider any objective
evidence, nor did he reach an ultimate finding of “no evidence” of causation. While a
special master is required to consider all relevant evidence, there is no requirement that he
afford it the weight demanded by a petitioner. See Cottingham, 971 F.3d at 1347 (“[T]he
weight of the objective evidence … [is a] factual finding[] for the Special Master.”). In
fact, in the Motion for Review, Petitioner seemingly concedes he did not submit key
evidence of causation. At one point, he maintains:
The Respondent wants to play gotcha in that evidence of
causation for CIDP flu vaccine is plentiful and case law,
especially my cases as argued at oral argument, is evidence
toward this missing causation. However, at no point during the
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[procedure] was evidence of causation required and to submit
such evidence without reason would be to do so just for fees
running afoul of Goodgame.
Mot. for Review at 10, n.1 (ECF 148) (emphasis added). Similarly, in Petitioner’s Motion
for Reconsideration, he noted:
Importantly, in this case, influenza caused CIDP, providing the
evidence requested would have been readily available. See,
e.g., Ex. 24 and 25. However, there was no time during the
pendency of the Hohenstein onset issue that required medical
literature on causation.
Mot. for Recons. at 2 (ECF 145) (emphasis added). In short, Petitioner’s statements
indicate even Petitioner recognized that his evidence on causation was lacking when his
request for attorneys’ fees and costs was before the Special Master. Based on the above,
affording deference to the Special Master’s findings, the Court finds that the Special Master
appropriately considered the evidence and reached a rational conclusion.
III. Public Policy Considerations Do Not Override the Evidentiary Burden
Petitioner next advances a public policy argument. He argues that the Vaccine Act
is designed to incentivize attorneys to represent clients in the Vaccine Injury Compensation
Program, and allowing the Fee Decision to stand will have a chilling effect on counsel
taking potentially meritorious cases. He further maintains that the natural consequence will
be counsel filing medical literature and expert reports solely to aid the collection of fees.
Mot. for Review at 15 (ECF 148).
The Court recognizes that the policy of the Vaccine Act is to encourage petitioners
to file petitions and obtain qualified counsel to assist them. See Sebelius v. Cloer, 569 U.S.
369, 380 (2013) (noting that the stated purpose of the Vaccine Act’s fee provision is to
assist a petitioner’s ability to obtain qualified assistance by making fees awards available
for non-prevailing, good-faith claims) (citation omitted).
However, this policy consideration does not supersede the evidentiary standard nor
override the requirement that petitioners establish a reasonable basis for their claims. As
discussed supra, reasonable basis is established with objective evidence, as weighed by the
fact finder. If an unsuccessful petitioner fails to meet his burden in establishing reasonable
basis, he is not eligible for an award of attorneys’ fees and costs, notwithstanding the policy
of the statute.
CONCLUSION
In this case, the Special Master applied the appropriate standard, carefully weighed
“the objective factors, considered as a whole,” and rationally concluded that Petitioner
failed to demonstrate a reasonable basis for his claim. This decision was not arbitrary,
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capricious, an abuse of discretion, or otherwise not in accordance with law. Therefore, the
Court DENIES Petitioner’s Motion for Review (ECF 148) and SUSTAINS the Decision
of the Special Master. The Clerk of the Court is directed to enter judgment accordingly.
IT IS SO ORDERED.
PHILIP S. HADJI
Judge
10