VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01791
Package ID: USCOURTS-cofc-1_20-vv-01791
Petitioner: J.L.
Filed: 2020-12-07
Decided: 2023-09-20
Vaccine: Gardasil
Vaccination date: 
Condition: 
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
On December 7, 2020, Juliette Levy, on behalf of her minor child J.L., filed a petition alleging harm from the Gardasil vaccine. The petition stated that the claim was being initiated prior to pursuing a cause of action against the vaccine manufacturer, Merck. The petitioner's counsel, Andrew D. Downing, filed the petition along with a sworn statement alleging J.L.'s vaccinations and subsequent medical issues. The Chief Special Master issued a pre-assignment review order, emphasizing the Vaccine Act's requirement for petitioners to submit all relevant medical records, including vaccination records, or an affidavit explaining their unavailability. Petitioner filed some medical records on December 8, 2020, and additional records on April 20, 2021. A subsequent Medical History Questionnaire again requested vaccination records. On April 21, 2021, the petitioner's counsel certified that all known medical records had been filed, but later argued that vaccination records were not necessary. On August 4, 2021, the Chief Special Master issued a 240-day formal notice. Petitioner elected to withdraw from the National Vaccine Injury Compensation Program to pursue litigation against the manufacturer in district court, leading the Chief Special Master to conclude the proceedings. Subsequently, on September 9, 2021, the petitioner filed a motion for final attorney's fees and costs. The Chief Special Master denied this motion on February 9, 2023, finding the claim lacked a reasonable basis, despite good faith. Petitioner then filed a motion for review of this denial and a motion to disqualify the Chief Special Master from all Gardasil cases, alleging bias. The court, applying the standard for disqualification, found no evidence of bias. The court noted that the petitioner's counsel failed to provide specific support for the allegations of bias and that the Chief Special Master's handling of Gardasil cases, including denials of claims for autonomic dysfunction, was consistent with prior rulings and affirmed by the court. The court also rejected the argument that the Chief Special Master lacked expertise, citing his extensive experience with Gardasil cases and the affirmation of his decisions. The court found that the Chief Special Master's actions, such as reassigning Gardasil cases to himself and managing a backlog, were not indicative of bias. The court also addressed the Chief Special Master's comments on attorney's fees in other cases, stating that considering the strength of a claim when awarding fees is within his discretion. Regarding the motion for review of the attorney's fees denial, the court affirmed the Chief Special Master's decision. The court found that the petitioner failed to comply with the Vaccine Act's clear requirement to provide vaccination records or explain their unavailability. The petitioner's argument that vaccination records were not necessary and her contradictory statements about having filed all records were noted. The court concluded that the petitioner's refusal to comply with the statutory documentation requirements undermined her claim's reasonable basis, and thus, the denial of fees was not an abuse of discretion. The court denied both the motion for disqualification and the motion for review, affirming the Chief Special Master's denial of attorney's fees. The case was dismissed.

Theory of causation field:
Petitioner Juliette Levy, on behalf of minor J.L., filed a petition alleging harm from the Gardasil vaccine. The petition was filed on December 7, 2020. The petitioner later withdrew from the program to pursue litigation against the manufacturer. The case primarily involved motions to disqualify the Chief Special Master and review the denial of attorney's fees. The court denied both motions. The denial of attorney's fees was based on the petitioner's failure to provide vaccination records for J.L. or explain their unavailability, as required by the Vaccine Act (42 U.S.C. § 300aa-11(c)). The petitioner's counsel, Andrew D. Downing, argued that vaccination records were not necessary and made contradictory statements regarding the filing of medical records. The court found that the petitioner's refusal to comply with these documentation requirements meant the claim lacked a reasonable basis, and therefore, the denial of fees was not an abuse of discretion. The public decision does not describe the specific alleged injury, onset, symptoms, medical tests, treatments, or the mechanism of causation. No experts were named in the public decision. The case was dismissed.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_20-vv-01791-0
Date issued/filed: 2021-10-04
Pages: 2
Docket text: PUBLIC ORDER/RULING (Originally filed: 9/8/2021) regarding 16 Order Concluding Proceedings. Signed by Chief Special Master Brian H. Corcoran. (abs) Service on parties made.
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Case 1:20-vv-01791-EHM Document 21 Filed 10/04/21 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1791V
UNPUBLISHED
JULIETTE LEVY, on behalf of her Chief Special Master Corcoran
minor child, J.L.,
Filed: September 8, 2021
Petitioner,
v. Withdrawal of petition; Order
concluding proceedings
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
ORDER CONCLUDING PROCEEDINGS1
On December 7, 2020, Juliette Levy filed a petition for compensation on behalf of
her minor child, J.L., under the National Vaccine Injury Compensation Program, 42
U.S.C. § 300aa—10 through 34.2 Petitioner alleged that J.L. suffered injuries after
receiving a human papillomavirus vaccination on April 12, 2018. ECF no. 1.
Because a decision had not been issued within the time specified in Vaccine
Rule 10(b), a notice issued advising that “that the petitioner may withdraw the petition
under section 300aa—21(b) of this title or the petitioner may choose under section
300aa—21(b) of this title to have the petition remain before the special master.” 42
U.S.C. § 300aa—12(g). On September 3, 2021, Petitioner timely filed a notice to
withdraw her petition pursuant to 42 U.S.C. § 300aa—21(b).
In light of Petitioner’s election to withdraw the petition pursuant to 42 U.S.C. §
300aa—21(b) (promulgated as Vaccine Rule 10(d)), Petitioner’s request to withdraw the
petition is GRANTED. Accordingly, this Order hereby notifies the Clerk of Court that
proceedings “on the merits” of this petition are now concluded, but no judgment
“on the merits” should be entered by the Clerk’s Office.
IT IS SO ORDERED.
1 Although I have not formally designated this Order for publication, I am required to post it on the United
States Court of Federal Claims' website because it contains a reasoned explanation for the action in this
case, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal
Management and Promotion of Electronic Government Services). This means the Order will be available
to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to
identify and move to redact medical or other information, the disclosure of which would constitute an
unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition,
I will redact such material from public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755.

Case 1:20-vv-01791-EHM Document 21 Filed 10/04/21 Page 2 of 2
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
2

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DOCUMENT 2: USCOURTS-cofc-1_20-vv-01791-2
Date issued/filed: 2023-09-20
Pages: 15
Docket text: JUDGE VACCINE UNREPORTED OPINION (PUBLIC VERSION) of 37 Opinion and Order Signed by Judge Edward H. Meyers. (cah) Service on parties made.
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Case 1:20-vv-01791-EHM Document 39 Filed 09/20/23 Page 1 of 15
In the United States Court of Federal Claims
No. 20-1791V
Filed: June 26, 2023
Re-Issued: September 20, 20231
________________________________________
)
JULIETTE LEVY, on behalf of her )
minor child, J.L., )
)
Petitioner, )
)
v. )
)
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
________________________________________ )
Andrew D. Downing, Downing, Allison & Jorgenson, Phoenix, AZ, for Petitioner.
Voris E. Johnson, Jr., Senior Trial Attorney, United States Department of Justice, Civil Division,
Torts Branch, Washington, D.C., with whom were Brian M. Boynton, Principal Deputy Assistant
Attorney General, C. Salvatore D’Alessio, Director, Heather L. Pearlman, Deputy Director, and
Darryl R. Wishard, Assistant Director, for the Respondent.
OPINION AND ORDER
MEYERS, Judge.
This case is one of many that Petitioner’s counsel has brought on behalf of people
claiming that the Gardasil vaccine caused them harm. Petitioner has two motions pending before
the Court—one seeking the disqualification of the Chief Special Master in every pending case
Petitioner’s counsel has on behalf of a person claiming injury from the Gardasil vaccine, and one
seeking review of the Chief Special Master’s denial of attorney’s fees in this case. In the
disqualification motion, Petitioner asserts repeatedly that the Chief Special Master is biased
against all Gardasil claims, but provides little, if any, support for her numerous assertions. This
1 Pursuant to Vaccine Rule 18(b), the Court initially filed this opinion under seal and afforded
the parties an opportunity to notify the court of any information that should be redacted from the
opinion for reasons of privilege or confidentiality. Because the parties did not propose any
redactions, the Court reissues this opinion in its original form for public availability.

Case 1:20-vv-01791-EHM Document 39 Filed 09/20/23 Page 2 of 15
falls well short of meeting the heavy burden of demonstrating bias sufficient to justify
disqualification.
In her motion for review, Petitioner contends that the Chief Special Master erred by
refusing to consider affidavit evidence of her child’s vaccination and improperly denied fees due
to her failure to provide the vaccination records for her child’s vaccination that allegedly caused
the injury in this case. In the end, the Vaccine Act makes short work of Petitioner’s motion for
review. The Vaccine Act clearly required Petitioner to provide the vaccination records for her
child’s vaccination that Petitioner alleges caused his injury. If those records were unavailable (it
does not appear they were), the Vaccine Act required Petitioner to explain their unavailability
and this Court’s Rules required her to explain what she has done to try and get those records.
Petitioner refused to do either. It was, therefore, not an abuse of discretion to deny fees to
counsel that refused to comply with the Vaccine Act’s clear documentation requirements and
then argued the statutory requirements did not exist. Therefore, the Court denies both of
Petitioner’s motions.
I. Background2
On December 7, 2020, Petitioner filed a Gardasil vaccine injury petition on behalf of her
minor child, J.L. ECF No. 1. The petition states that “Petitioners are statutorily compelled to
initiate this claim prior to pursuing a cause of action against Merck directly.” ECF No. 1 at 1.
Petitioner did not provide any supporting evidence with her petition other than a sworn statement
in which she alleged J.L.’s vaccinations and medical issues she claimed resulted from those
vaccinations. Pet. Ex. 1 (ECF No. 1-2).
On December 8, 2020, the Chief Special Master issued a pre-assignment review or
“PAR” order. ECF No. 5. “[T]he objective of PAR is to process petitions more efficiently by
ensuring that cases are not assigned to a special master or the Special Processing Unit (‘SPU’)
until the record is deemed substantially complete and ready for medical review by HHS
personnel.” Id. at 1. Therefore, the PAR order explains that “[t]he Vaccine Act includes the
statutory requirement that each Petitioner’s initial submissions, including the petition and the
supporting documents, will contain the Petitioner’s case-in-chief. Section 11(c) of the Vaccine
Act requires that each petition be filed with supporting documentation.” Id. at 1 (internal citation
omitted). The PAR order also explains that:
The Vaccine Act and the Vaccine Rules require, at a minimum,
that the petition must be supported by all medical and related
records potentially relevant to the issue of whether Petitioner is
entitled to an award. The necessary records and affidavits are
further described in Vaccine Rule 2(c) and the Guidelines for
Practice Under the National Vaccine Injury Compensation
Program (“Guidelines”). Detailed guidance regarding the filing of
these documents can also be found in the Guidelines.
2 The Court does not recite J.L.’s medical history because the resolution of these motions does
not turn on that history.
2

Case 1:20-vv-01791-EHM Document 39 Filed 09/20/23 Page 3 of 15
Id. at 2 (internal footnote omitted). The PAR order also explains that Petitioner must include
“Vaccination record(s).” Id. at 3. Finally, the PAR order provides that “any required records
which are unavailable must be identified and the reason for their unavailability must be
explained in an affidavit.” Id. (citing 42 U.S.C. § 11(c)(3) & Vaccine Rule 2(c)(2)(B)(i)).
Petitioner filed some medical records on December 8, 2020. ECF No. 6. After several
unopposed extensions of time to provide additional medical records, see ECF Nos. 7-10,
Petitioner filed additional medical records on April 20, 2021. ECF No. 11. The next day she
filed a PAR Medical History Questionnaire, which again informed Petitioner that she must file
“[y]our vaccination record.” ECF No. 12 at 1. Petitioner did not respond to the request for
“[t]he pharmacy, medical facility, or other location (i.e. workplace, health fair, church, etc.)
where you received the vaccination in question.” Id. at 1-2. Rather, Petitioner identified the
medical facilities where J.L. received treatment after Petitioner asserts he received the Gardasil
vaccinations. Id. at 2.
Also on April 21, 2021, Petitioner filed a Statement of Completion. ECF No. 13. This
Statement makes two representations. First, “Petitioner’s counsel has received medical records
from all outstanding medical providers and has filed all known records. The undersigned hereby
certifies that all relevant medical records have been received and filed of record in this case.” Id.
at 1 (footnote omitted). Second, the Statement provides that “[a]ll historical medical records
have been filed. However, treatment of J.L. is ongoing. Counsel will file supplemental medical
records as they become available.” Id. at 1 n.1.
The Chief Special Master issued a 240-day Formal Notice on August 4, 2021. ECF No.
14. Under the Vaccine Act, the Petitioner may withdraw from the Vaccine Injury Compensation
Program if the special master has not issued a decision within 240 days. 42 U.S.C. § 300aa-
21(b). Petitioner elected to withdraw her petition and pursue litigation against Gardasil’s
manufacturer in district court.3 ECF No. 15. Pursuant to the Petitioner’s election to withdraw
her petition, the Chief Special Master issued an order concluding proceedings. ECF No. 16.
On September 9, 2021, Petitioner filed a Motion for Final Attorneys’ Fees and Costs.
ECF No. 18. The Chief Special Master denied the motion on February 9, 2023, stating “while I
find there was good faith for Petitioner’s claim, I also find that Petitioner’s claim lacked
reasonable basis and, therefore, is not entitled to an award of attorney’s fees and costs.” ECF
No. 28 at 2. Petitioner filed a Motion for Review, ECF Nos. 29 & 30, and a Motion to
Disqualify the Chief Special Master “from all Gardasil cases now pending and filed in the
future” due to the Chief Special Master’s alleged bias against petitioners who allege injury due to
a Gardasil vaccination. ECF No. 33 at 10.
3 Petitioner’s counsel has filed over 100 cases against Merck regarding Gardasil in district court
that are now part of a multidistrict litigation. ECF No. 33 at 4-5; see also Fetters v. Sec’y of
Health & Hum. Servs., No. 21-928V, 2023 WL 3597513, at *2 (Fed. Cl. May 23, 2023); Atjian
v. Sec’y of Health & Hum. Servs., No. 21-1413, 2022 WL 17587757 (Fed. Cl. Spec. Mstr. Oct.
18, 2022).
3

Case 1:20-vv-01791-EHM Document 39 Filed 09/20/23 Page 4 of 15
II. Petitioner fails to carry her burden to overcome the presumption of the Chief
Special Master’s impartiality.
A. Standard of Review.
A special master “shall disqualify himself in any proceeding in which his impartiality
might reasonably be questioned.” 28 U.S.C. § 455(a) (emphasis added); ECF No. 33 at 9. At
the outset, the Court recognizes that by its terms § 455 does not apply to the Chief Special
Master because it only applies to “[a]ny justice, judge, or magistrate judge of the United States.”
28 U.S.C. § 455(a). The Court will apply Section 455 here, however, because the Office of
Special Masters and the Chief Special Master himself have applied Section 455 to evaluate
recusal motions in the past. E.g., Schultz v. Sec’y of Health & Hum. Servs., No. 16-539V, 2019
WL 6359139, at *3 & n.7 (Fed. Cl. Oct. 9, 2019)4; Earles ex rel. Earles v. Sec’y of Health &
Hum. Servs., No. 10-34V, 2011 WL 2006823, at *1 (Fed. Cl. Apr. 20, 2011); see also Fetters,
2023 WL 3597513 at *4. They have done so because no statute or rule specifically governs
special master recusal, meaning that Vaccine Rule 1(b) allows the Court to rely on Section 455
standards to evaluate a disqualification motion. Vaccine Rule 1(b) provides: “In any matter not
specifically addressed by the Vaccine Rules, the special master or the court may regulate the
applicable practice, consistent with these rules and with the purpose of the Vaccine Act, to
decide the case promptly and efficiently.” Consistent with Vaccine Rule 1(b) and the Chief
Special Master’s and the Office of Special Master’s prior reliance on § 455 to address
disqualification issues, the Court applies § 455’s standards here as well.
Under § 455, courts apply “an objective standard of reasonableness in determining
whether recusal is required.” Fletcher v. Conoco Pipe Line Co., 323 F.3d 661, 664 (8th Cir.
2003). Therefore, a special master must disqualify himself if “a reasonable person who knew the
circumstances would question the judge’s impartiality, even though no actual bias or prejudice
has been shown.” Id. (citing U.S. v. Tucker, 78 F.3d 1313, 1324 (8th Cir. 1996)). “A party
introducing a motion to recuse carries a heavy burden of proof; a judge is presumed to be
impartial and the party seeking disqualification bears the substantial burden of proving
otherwise.” Pope v. Fed. Express Corp., 974 F.2d 982, 985 (8th Cir. 1992).
B. Discussion
Petitioner moves this Court to disqualify the Chief Special Master “from all Gardasil
cases now pending and filed in the future.” ECF No. 33 at 10. Although Petitioner raises
multiple arguments for disqualification, she fails to carry her burden to demonstrate any
appearance of bias or conduct coming close to that required to disqualify the Chief Special
Master.
First, Petitioner alleges that the Chief Special Master “has no expertise, training, or any
experience at all that would allow him to disregard peer-reviewed, published medical literature in
4 The Court notes that Petitioner’s counsel here was also the petitioner’s counsel in Schultz and
appeared to file that motion for recusal based on his displeasure with the Chief Special Master’s
ruling on a motion. Schultz v. Sec’y of Health & Hum. Servs., No. 16-539V, 2019 WL 6359139,
at *3-6 (Fed. Cl. Oct. 9, 2019).
4

Case 1:20-vv-01791-EHM Document 39 Filed 09/20/23 Page 5 of 15
favor of his own biased opinions pertaining to vaccine causation.” ECF No. 33 at 2. Similarly,
Petitioner asserts that “[t]he Chief Special Master has already and repeatedly shown that he has
no intention of deciding ANY Gardasil case on the facts of th[e] particular case, but instead
intends to use misunderstood, outdated, and erroneous facts and information the Chief Special
Master may have picked up from other cases to decide the merit and reliability of the instant case
and others.” Id. at 10 (emphasis in original). When a party makes accusations like that, the
Court expects that party to provide some support for it. But Petitioner does not provide even a
scintilla of support for her accusation—there is not a single citation to an allegedly offending
decision or anything else to back up the accusations. Presumably, Petitioner expects this Court
to accept her word for it and order disqualification based solely on that basis. Such argument,
however, falls well short of the heavy burden required to establish an objective appearance of
bias sufficient to justify disqualification. Pope, 974 F.2d at 985 (“A party introducing a motion
to recuse carries a heavy burden of proof.”).
Nor does the behavior Petitioner alleges comport with this Court’s experience with the
Chief Special Master’s handling of Gardasil cases. As the Government counters, this Court has
affirmed each of the OSM’s decisions denying Gardasil petitioners’ claims that the vaccine
caused an autonomic disfunction, typically postural orthostatic tachycardia syndrome or
“POTS.” ECF No. 34 at 2-5. Indeed, the undersigned’s last Vaccine Act decision dealt with a
claim that Gardasil caused POTS, which the Chief Special Master denied. See J.S. v. Sec’y of
Health & Hum. Servs., 164 Fed. Cl. 314 (2023), redacted opinion issued, No. 16-1083V, 2023
WL 1956306 (Fed. Cl. Feb. 13, 2023), appeal docketed, No. 23-1644 (Fed. Cir. Mar. 22, 2023).
In J.S., “the Chief Special Master described in detail repeated instances where physicians
evaluated Petitioner, expressed the opinion that her symptoms were likely psychological in
nature and related to anxiety, and failed to identify an underlying physiological condition.” Id. at
337. In other words, the Chief Special Master did not “discard” anything in J.S. To the contrary,
he considered the entirety of the medical record in detail and relied on the record before him to
reach his decision. See id. at 336-40 (discussing the Chief Special Master’s analyses of the
record). While the Chief Special Master went further to note that the Petitioner’s theory that
Gardasil can cause POTS was unpersuasive, he did not do so by “disregarding” anything. He
considered the competing expert reports and found the Government’s experts more persuasive.
Id. at 340-43. That is what special masters do and their decisions are entitled to deference.
And the Chief Special Master is not alone. Multiple special masters have denied Gardasil
claims alleging autonomic injury (typically POTS) that have either not been appealed or affirmed
by this Court:
• C.F. v. Sec’y of Health & Hum. Servs., No. 15-731V, 2023 WL 2198809 (Fed. Cl.
Spec. Mstr. Jan. 20, 2023) (Horner, S.M.).
• America v. Sec’y of Health & Hum. Servs., No. 17-542V, 2022 WL 278151 (Fed.
Cl. Spec. Mstr. Jan. 4, 2022) (Corcoran, C.S.M.).
• Hughes v. Sec’y of Health & Hum. Servs., No. 16-930V, 2021 WL 839092 (Fed.
Cl. Spec. Mstr. Jan. 4, 2021) (Corcoran, C.S.M.), aff’d, 154 Fed. Cl. 640 (2021)
(Bruggink, S.J.).
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• E.S. v. Sec’y of Health & Hum. Servs., No. 17-480V, 2020 WL 9076620 (Fed. Cl.
Spec. Mstr. Nov. 13, 2020) (Corcoran, C.S.M.), aff’d, 154 Fed. Cl. 149 (2021)
(Griggsby, J.).
• Balasco v. Sec’y of Health & Hum. Servs., No. 17-215V, 2020 WL 1240917 (Fed.
Cl. Spec. Mstr. Feb. 14, 2020) (Corcoran, C.S.M.).
• Johnson v. Sec’y of Health & Hum. Servs., No. 14-254V, 2018 WL 2051760 (Fed.
Cl. Spec. Mstr. Mar. 23, 2018) (Corcoran, C.S.M.).
• Combs v. Sec’y of Health & Hum. Servs., No. 14-878V, 2018 WL 1581672 (Fed.
Cl. Spec. Mstr. Feb. 15, 2018) (Corcoran, C.S.M.).
• K.L. v. Sec’y of Health & Hum. Servs., No. 12-312V, 2017 WL 1713110 (Fed. Cl.
Spec. Mstr. Mar. 17, 2017) (Corcoran, C.S.M.), aff’d, 134 Fed. Cl. 579 (2017)
(Horn, J.).
• L.A.M. v. Sec’y of Health & Hum. Servs., No. 11-852V, 2017 WL 527576 (Fed.
Cl. Spec. Mstr. Jan. 31, 2017) (Millman, S.M.).
• Turkupolis v. Sec’y of Health & Hum. Servs., No. 10-351V, 2014 WL 2872215
(Fed. Cl. Spec. Mstr. May 30, 2014) (Millman, S.M.).
ECF No. 34 at 2-5 (discussing cases). In reply, Petitioner merely disregards these cases because
they “are the heart of the problem.” ECF No. 36 at 1. That reply is somewhat lacking. It is hard
to see how the decisions of other special masters denying Gardasil claims and this Court’s
affirmance of those decisions reflect the purported bias of the Chief Special Master. Rather, this
record of special masters and judges reaching the same conclusions and/or affirming the Chief
Special Master’s conclusions about Gardasil claims undermines Petitioner’s argument that the
Chief Special Master is deciding cases based on personal bias rather than the record before him.
Second, Petitioner contends that the Chief Special Master lacks any expertise in Gardasil
cases because he “has never practiced in the area of products liability” and “prior to becom[ing]
a Special Master, he was a tax lawyer for the Department of Justice.” ECF No. 33 at 2. The
Government disagrees and observes that “through handling many past cases alleging autonomic
dysfunction caused by Gardasil, the Chief Special Master has heard from numerous experts for
both parties and is very familiar with the medical literature the petitioners rely upon in these
cases.” ECF No. 34 at 5. The Government points out that the Chief Special Master’s “body of
reasoned decisions belies that argument,” given that “the Court has affirmed his decisions in four
prior Gardasil/autonomic dysfunction cases.” ECF No. 34 at 5-6. Indeed, the Chief Special
Master has participated in Vaccine Act cases for years, and, as Petitioner acknowledges, is
handling or has handled “over one hundred” Gardasil cases as a special master. ECF No. 33 at
9-10.
Third, Petitioner alleges that the Chief Special Master is engaging in a sort of retribution
against Gardasil petitioners because they have filed claims against Gardasil’s manufacturer,
Merck, Sharpe & Dohme, in district court. ECF No. 33 at 2. According to Petitioner, “[t]hat
6

Case 1:20-vv-01791-EHM Document 39 Filed 09/20/23 Page 7 of 15
litigation is ongoing, and the Chief Special Master has made it abundantly clear that he does not
like it.” Id. Petitioner contends that the Chief Special Master’s bias, or apparent bias, is
demonstrated by his “orchestrated move” of reassigning all pending Gardasil cases to himself
and then refusing to act on the pending motions. Id. Petitioner made these same arguments to
Judge Lettow, who rejected them because “[g]enerally, ‘judicial rulings, routine trial
administration efforts, and ordinary admonishments’ to counsel are not grounds for recusal.”
Fetters, 2023 WL 3597513 at *4 (quoting Liteky v. United States, 510 U.S. 540, 556 (1994)).
The same holds true here. And, as Judge Lettow recognized, Petitioner’s allegations that the
Chief Special Master is refusing to resolve motions for attorney’s fees or Gardasil claims fails to
establish the appearance of bias because of “the general backlog of vaccine petitions and, more
specifically, the number of fee requests pending before the Chief Special Master. Id. at *9; see
also id. at *9 n.4 (discussing the number of vaccine injury claims filed and resolved in recent
fiscal years). Again, the same is true here.
Fourth, Petitioner complains that the Chief Special Master stated in another case that:
Although I have found that a fees award is appropriate herein, I
also find, in the reasonable exercise of my discretion under the
circumstances, that the overall magnitude of the award should be
more modest than what has been requested. For even if petitioners
may legitimately pass through the Program en route to the
“promised land” of another forum in which they hope to receive a
favorable determination, I am not compelled by the Act to turn a
blind eye to this stratagem – especially since it is highly likely (if
not a certainty) that this claim, as well as the other comparable
claims being dismissed, would have resulted in an unfavorable
determination had it been litigated fully in the Vaccine Program.
Claims alleging injuries of this nature after receipt of the HPV
vaccine have not resulted in damages awards.
Because of the above, a request for more than $15,000.00 for
attorney’s fees and costs is excessive in the context of a case that
lasted less than nine months and was never intended to be litigated
herein. As a result, I will rely on my authority to make reasonable
percentage reductions in fees in appropriate cases.
Atjian v. Sec’y of Health & Hum. Servs., No. 21-1413V, 2022 WL 17587757, at *13 (Fed. Cl.
Oct. 18, 2022) (emphasis in original). Again, as Judge Lettow found, this merely reflects the
Chief Special Master’s decision to take the strength of a petitioner’s claim into consideration
when deciding motions for fees, which he has the discretion to do. Fetters, 2023 WL 3597513 at
*8. And “[a]s the Federal Circuit has recognized, special masters are ‘entitled to use their prior
experience in reviewing fee applications’ and their determinations ‘are entitled to deference.’”
Id. (quoting Saxton ex rel. Saxton v. Sec’y of Dep’t of Health & Hum. Servs., 3 F.3d 1517, 1521
(Fed. Cir. 1993)). There is no reason to depart from Judge Lettow’s well-reasoned conclusion
here.
7

Case 1:20-vv-01791-EHM Document 39 Filed 09/20/23 Page 8 of 15
Fifth, Petitioner also seems to believe that the Chief Special Master must be biased
because Gardasil’s manufacturer, Merck, Sharpe & Dohme, has never asserted in any of the
district court proceedings “that allegations of injury after Gardasil were frivolously brought by
these Plaintiffs.” ECF No. 33 at 5. The relevance of this is difficult to discern. Certainly, a
claim can fail without being frivolous. And, as explained in the next section, the denial of fees in
this case was based on the Petitioner’s refusal to comply with the Vaccine Act’s documentation
requirements; it was not based on the claim being frivolous. Whatever the relevance, Merck’s
litigation position falls well short of establishing bias sufficient to justify the Chief Special
Master’s disqualification.
Finally, Petitioner alleges that the Chief Special Master is biased because he refused to
waive the statutory documentation requirement for the Gardasil petitioners. Petitioner’s counsel
contends that he proposed to “streamline” the Gardasil cases, in part, by having the OSM waive
the requirement that petitioners file “medical records or affidavits.” ECF No. 34-1 at 4.5
Petitioner complains that the Chief Special Master refused to accept her proposal without
offering another streamlined approach. Instead, the Chief Special Master required Gardasil
petitioners to file the medical records the Vaccine Act required. ECF No. 33 at 7. This
apparently shows bias, according to Petitioner, because the Chief Special Master required
Gardasil petitioners to file medical records and affidavits, which she claims to have done, and
perform full due diligence only to have the Chief Special Master refuse to decide Gardasil cases
on the facts of each case. Id. at 8-9.
As explained above, the argument that the Chief Special Master does not decide cases
based on the facts of the case is belied by his decisions and those of this Court affirming those
decisions. More importantly, the Court fails to see how it is objective evidence of bias for the
Chief Special Master to require Gardasil petitioners to comply with Vaccine Act’s
documentation requirements. The Vaccine Act requires that petitioners, including Gardasil
petitioners, file various documentation—e.g., various medical records and the “vaccination
records associated with the vaccine allegedly causing the injury,” 42 U.S.C. § 300aa-11(c)(2)—
in every case unless they are unavailable, in which case the petitioner must explain their
unavailability and what has been done to get them. And it is not clear that the Chief Special
Master or this Court could waive these congressional requirements because the Vaccine Act
states that each petitioner “shall contain” these records. Id. § 300aa-11(c) (emphasis added).6
Thus, the fact that the Chief Special Master did not agree to allow Gardasil petitioners to
circumvent the Vaccine Act does not demonstrate bias. To the contrary, it demonstrates that he
properly applied the law.
Taken individually or together, Petitioner’s arguments do not meet her heavy burden of
demonstrating bias on the part of the Chief Special Master that would justify his disqualification
5 Because this exhibit is not consecutively paginated, the Court cites to the ECF Header’s
pagination.
6 The Court discusses these requirements at length in the discussion of Petitioner’s motion for
review, which, in effect, seeks to have this Court impose Petitioner’s “streamlining” approach on
the Office of Special Masters.
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from this case or any other. See Fetters, 2023 WL 3597513 at *10 (denying similar motion to
disqualify the Chief Special Master from all pending and future Gardasil cases).
III. The Chief Special Master did not abuse his discretion by denying attorney’s fees in
this case.
A. Legal Standard
This Court may “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.” 42 U.S.C. § 300aa-12(e)(2)(B).
Special masters award “reasonable attorneys’ fees” and “other costs” if they “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) (emphasis added). But “even when these
two requirements are satisfied, a special master retains discretion to grant or deny attorneys’
fees.” James-Cornelius on Behalf of E.J. v. Sec’y of Health & Hum. Servs., 984 F.3d 1374, 1379
(Fed. Cir. 2021) (citing Cloer v. Sec’y of Health & Hum. Servs., 675 F.3d 1358, 1362 (Fed. Cir.
2012)). The Court therefore reviews a special master’s award or denial of reasonable attorney’s
fees and costs for abuse of discretion. Masias v. Sec’y of Health & Hum. Servs., 634 F.3d 1283,
1288 (Fed. Cir. 2011) (citing Munn v. Sec’y of Dep’t of Health & Hum. Servs., 970 F.2d 863, 870
n.10).
“[T]his court owes ‘great deference’ to the fact-findings and fact-based conclusions of the
special master.” Chuisano v. United States, 116 Fed. Cl. 276, 284 (2014) (citing Munn, 970 F.2d
at 870; see also id. (“[I]t is ‘extremely difficult’ to establish the ‘reversible error’ necessary to
disturb a special master’s decision on fees.”) (citing Silva v. Sec’y of Health & Hum. Servs., 108
Fed. Cl. 401, 405 (2012)). “In the context of Vaccine Act cases, an abuse of discretion generally
does not occur when a Special Master ‘considered the relevant evidence, drew plausible
inferences, and articulated a rational basis for his finding . . . .’” Graham v. Sec’y of Dep’t of
Health & Human Servs., 124 Fed. Cl. 574 (citing Saxton v. Sec’y of Dep’t of Health & Human
Servs., 3 F.3d 1517, 1520 (Fed. Cir. 1993)). However, the Court of Federal Claims will find that
a Special Master abused discretion if the Special Master’s decision to award or deny attorney’s
fees was “(1) . . . clearly unreasonable, arbitrary, or fanciful; (2) . . . based on an erroneous
conclusion of the law; (3) . . . clearly erroneous; or (4) the record contains no evidence on which
the . . . [special master] rationally could have based his decision.” Chuisano, 116 Fed. Cl. at 284
(citing Murphy v. Sec’y of Health & Hum. Servs., 30 Fed. Cl. 60, 61 (1993)).
The special master’s reasonable basis analysis is “limited to objective evidence,”
meaning the special master is not to consider “subjective considerations, such as counsel’s
subjective views on the adequacy of a complaint.” James-Cornelius, 984 F.3d at 1379 (citing
Cottingham on Behalf of K.C. v. Sec’y of Health & Hum. Servs., 971 F.3d 1337, 1344 (2020)).
“[T]he quantum of objective 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.’” Id. (citing Cottingham, 971 F.3d at 1346).
B. Discussion
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Petitioner challenges the Chief Special Master’s denial of attorney’s fees because she
contends that her affidavit and certain medical records are sufficient to provide objective
evidence of J.L.’s vaccination. While Petitioner argues at some length about Court rules and a
few cases, she wholly ignores the Vaccine Act, under which her claim arises (as well as
requirements of the Court’s Rules). That statute lays bare the flaws in her argument—and the
reasonableness of the Chief Special Master’s decision.
The Chief Special Master concluded that Petitioner had a good faith basis to bring her
claim but lacked a reasonable basis to do so. ECF No. 28 at 2. A major consideration for the
Chief Special Master’s finding that Petitioner lacked a reasonable basis was her failure to
provide the vaccination records for J.L.’s Gardasil vaccinations that allegedly caused his claimed
injury. Id. at 3. According to Petitioner, “the Chief Special Master failed to consider sworn
affidavit testimony and submitted medical records in his analysis.” ECF No. 30 at 2.
Specifically, Petitioner complains that “[t]he Chief Special Master’s sole basis for finding a lack
of reasonable basis is that Petitioner failed to submit a vaccination record,” and that “[t]he Chief
Special Master ignored the affidavit testimony of Ms. Juliette Levy as well as medical records as
corroborating evidence in support of Petitioner’s reasonable basis claim.” Id. at 4. Finally,
according to Petitioner, “[t]his is a fictitious requirement established by the Chief Special Master
for an excuse to deny fees in the instant case.” ECF No. 30 at 8.
It is telling that Petitioner then goes on to argue only under this Court’s Rules and ignores
the Vaccine Act entirely other than to assert that “the relevant statutory authorities [do not]
require a petitioner to submit a ‘vaccination record,’ whatever that means.” ECF No. 30 at 8.
But Petitioner’s confusion is hard to accept given that the Vaccine Act clearly requires each
petitioner to provide the “vaccination records”—Congress used that exact term—for the
vaccination alleged to have caused the injury, or an affidavit explaining why those records are
not attached to the petition. 42 U.S.C. § 300aa-11(c). Given how clear the Vaccine Act’s and
Vaccine Rule 2’s documentation requirements are, and the fact that Petitioner’s counsel has filed
more than 600 vaccine injury cases in this Court, this feigned ignorance of what a “vaccination
record” is calls into question the good faith basis for bringing this motion.7
In fact, the Vaccine Act could not be any clearer. Under it, a petition “shall contain . . .
an affidavit, and supporting documentation, demonstrating that the person who suffered such
injury or who died--(A) received a vaccine set forth in the Vaccine Injury Table . . . .” 42 U.S.C.
§ 300aa-11(c)(1) (emphasis added). And the Vaccine Act goes even further. It requires the
petition to include the “vaccination records associated with the vaccine allegedly causing the
injury.” Id. § 300aa-11(c)(2) (emphasis added). Of course, “[t]he use of the word ‘shall’ means
what follows is mandatory, not discretionary.” Norman v. United States, 942 F.3d 1111, 1117
(Fed. Cir. 2019) (citation omitted). Thus, Congress clearly required Petitioner to include the
vaccination records for J.L.’s Gardasil vaccination alleged to have caused his injuries.
7 Petitioner’s two motions are also somewhat contradictory. In the disqualification motion,
Petitioner insists that she provided the medical records the Vaccine Act requires her to include
with her petition. But here she ignores the Vaccine Act altogether and insists that the Chief
Special Master simply made up a requirement to provide vaccination records out of thin air
(apparently a result of his purported bias).
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Recognizing that medical records may become unavailable, however, Congress included
an exception to the documentation requirement. If any of the required records, including
vaccination records, are unavailable to Petitioner, she must identify all unavailable records and
explain “the reasons for their unavailability.” 42 U.S.C. § 300aa-11(c)(3); Gomez v. Sec’y of
Health & Hum. Servs., No. 17-1800V, 2019 WL 7480769, at *5 (Fed. Cl. Dec. 6, 2019).
Vaccine Rule 2 goes even further, requiring that if any records are unavailable, the Petitioner
“must include an affidavit detailing the efforts made to obtain such records and the reasons for
their unavailability.” Vaccine Rule 2(c)(2)(B)(i) (emphasis added). Petitioner ignores this
requirement entirely. She never addresses the absence of J.L.’s vaccination records nor provides
any explanation for their unavailability other than to insist they are not necessary. But
Congress’s use of “shall” and Vaccine Rule 2’s use of “must” make clear that these are not mere
suggestions; rather, they are requirements. Petitioner’s steadfast refusal to comply with these
basic documentation requirements undermines her reasonable basis to bring her claim. In the
end, Petitioner’s argument that neither the Vaccine Act nor this Court’s Rules required her to
include J.L.’s Gardasil vaccination records fails to comport with the plain text of the Vaccine Act
and Vaccine Rule 2.
And Congress’s documentation requirement makes a lot of sense. Congress requires that
any health care provider that administers a covered vaccine shall ensure that the administration
of the vaccine is recorded in the recipient’s “permanent medical record (or in a permanent office
log or file to which a legal representative shall have access upon request) . . . .” 42 U.S.C.
§ 300aa-25(a). Again, this is not a discretionary provision. Under Congress’s statutory scheme,
therefore, the proof of a vaccination should be readily available in Petitioner’s medical records
and provide reliable evidence of the vaccination. Congress thus made clear that the vaccination
record is the best evidence of the administration of a vaccination alleged to have caused injury
and required Petitioner to include that evidence or a cogent explanation for its unavailability.
Providing neither is not an option Congress allows.
These proceedings also bely Petitioner’s argument that the Chief Special Master made up
the requirement to provide vaccination records. Not only is it clear that Congress, not the Chief
Special Master, imposed the requirement for the Petitioner to provide vaccination records or
explain their unavailability, but the Government specifically briefed the issue to the Chief
Special Master in response to the Petitioner’s motion for attorney’s fees. ECF No. 20 at 10.
Indeed, several early orders made clear the requirement to provide J.L.’s vaccination records.
E.g., ECF Nos. 5 & 12. Indeed, this Court’s website contains “Guidelines for Practice Under the
National Vaccine Injury Compensation Program” (Apr. 24, 2020), which include five pages
explaining the documents a petitioner must file. See
http://www.uscfc.uscourts.gov/sites/default/files/Guidelines-4.24.2020.pdf at 14-18. This
includes the vaccination records that Petitioner must file. Id. at 15. They also explain what to do
when those records are unavailable. Id. at 18.
Put simply, the statutory requirement for vaccination records has been clear to all
involved since well before the Chief Special Master denied fees in this case. Petitioner,
however, chose not to reply to the Government’s argument to the Chief Special Master at all,
much less take the opportunity to provide the missing vaccination records or explain their
absence from this case. ECF No. 28 at 3. Similarly, Petitioner has chosen to ignore the Vaccine
Act and Vaccine Rule 2(c)(2)(B)(i) before this Court. But Petitioner’s choice to ignore a
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statutory requirement that is reiterated in the Court’s Rules does not impose a duty on the Chief
Special Master or this Court to do so as well.
Petitioner’s reliance on her affidavit also fails to remedy the deficiency in her petition.
According to Petitioner, her affidavit testimony that J.L. received two doses of the Gardasil
vaccine satisfies the Court’s Rules (again without considering the statutory requirements)
because Vaccine Rule 2(c)(2)(B)(ii) allows her to “support[] all elements of the allegations made
in the petition” with an affidavit. ECF No. 30 at 8. As an initial matter, this Court’s Rules
cannot displace a contrary statutory requirement like those found in 42 U.S.C. § 300aa-11(c).
Therefore, Petitioner would still have to comply with the statutory direction. But, of course, this
Court’s Rules do not contradict the Vaccine Act because Vaccine Rule 2(c)(2)(B)(i) requires the
Petitioner to explain why J.L.’s vaccination records are unavailable and what she has done to try
to get them. Petitioner’s steadfast refusal to explain the absence of the required medical records
supports the Chief Special Master’s conclusion that Petitioner has failed to establish the
vaccination alleged to have caused J.L.’s injuries.
While her affidavit is silent about why J.L.’s vaccination records are unavailable,
Petitioner’s reply argues that she withdrew from the program before receiving J.L.s’ medical
records from his treating pediatrician, which, presumably, would have included the missing
vaccination records. ECF No. 30 at 9. First, this is not the affidavit testimony that Congress and
Vaccine Rule 2 require. See, e.g., Icon Health & Fitness, Inc. v. Strava, Inc., 849 F.3d 1034,
1043 (Fed. Cir. 2017) (“Attorney argument is not evidence.”) (citations omitted). Second,
withdrawing from the program before J.L.’s doctor provides the records does not equate to
unavailability. Finally, and most importantly, this argument contradicts the prior certification
that “Petitioner’s counsel has received medical records from all outstanding medical providers
and has filed all known records. The undersigned hereby certifies that all relevant medical
records have been received and filed of record in this case.” ECF No. 13 at 1 (internal citation
omitted). And Petitioner further represented that “[a]ll historical medical records have been
filed” and the only remaining records would be for ongoing treatment that counsel would file as
they arose. Id. at 1 n.1. Petitioner made these representations on April 21, 2021. ECF No. 13.
Petitioner did not file her notice of intent to withdraw from the Vaccine Injury Compensation
Program until September 3, 2021. ECF No. 15. Of course, the prior statement that Petitioner
had filed all known medical records and the current argument that Petitioner did not file the
vaccination records because she withdrew from the program before receiving them cannot both
be true. Whatever the reason, Petitioner’s reply fails to establish a reasonable basis.
Nor does Petitioner’s reliance on precedent save her motion for attorney’s fees because
none of the cases she relies upon support her position that she need not provide vaccination
records or an explanation for their absence. Objective affidavit testimony may be filed in
support of reasonable basis. This is not in dispute. But none of the cases Petitioner relies upon
holds, or even implies, that a petitioner can ignore 42 U.S.C. § 300aa-11(c)(3)’s and Vaccine
Rule 2(c)(2)(B)(i)’s requirements to include in an affidavit an explanation of why vaccination
records are unavailable and what Petitioner has done to try to get them.
For example, while the Federal Circuit held in James-Cornelius on Behalf of E. J. v.
Sec’y of Health & Hum. Servs., 984 F.3d 1374 (Fed. Cir. 2021), that affidavit testimony may
provide objective evidence of vaccination, James-Cornelius does not hold that a petitioner does
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not have to explain missing vaccination records. Petitioner also relies upon the Chief Special
Master’s decision in another case that “[a] petitioner can overcome the lack of direct proof of a
vaccine having been administered by marshaling a variety of circumstantial evidence tending to
establish that he did in fact receive the alleged vaccine.” ECF No. 30 at 6 (quoting Livingston v.
Sec’y of Health & Human Servs., No. 12-268V, 2015 WL 4397705, at *8 (Fed. Cl. Spec. Mstr.
June 26, 2015) (emphasis omitted)). Livingston does not help Petitioner here, however, because
the very next paragraph makes clear that Mr. Livingston provided his child’s vaccination ledger,
which did not record the vaccination he claimed his child had gotten. The Chief Special Master
went on to discuss the “variety of circumstantial evidence” that could have allowed Mr.
Livingston to overcome the absence of documentation. Livingston, 2015 WL 4397705 at *8.
Because the petitioner in Livingston was unable to provide such evidence, the Chief Special
Master found he lacked a reasonable basis because he could not prove the receipt of the alleged
vaccination. Id. Thus, Livingston supports the Chief Special Master’s decision here because
Petitioner has not satisfied Congress’s documentation requirements.
The same is true of Petitioner’s reliance on Gambo v. Sec’y of Health & Hum. Servs., No.
13-691V, 2014 WL 7739572 (Fed. Cl. Spec. Mstr. Dec. 18, 2014). In Gambo, the petitioner,
who was the spouse of the deceased vaccinee, was unable to locate the vaccination records the
Vaccine Act required. Id. at *1. Because he was unable to locate the vaccination records, he
resorted to circumstantial evidence, which included his own affidavit and statements from two
doctors, one of whom stated that she had seen the vaccination record in the past but was unable
to locate it any longer. Id. at *2. Gambo is easily distinguishable because there the petitioner
and medical professionals explained the absence of the contemporaneous vaccination record and
provided evidence to establish the administration of the vaccine at issue in that case. Here,
Petitioner fails to provide any explanation for the missing records.
And the same is also true of Smith v. Sec’y of Health & Hum. Servs., No. 14-982V, 2017
WL 2927419 (Fed. Cl. Spec. Mstr. June 2, 2017). There, the petitioner claimed to have gotten an
influenza vaccine from her employer but was unable to obtain the vaccination record. Id. at *1
(“To date, however, Petitioner has been unable to locate documentary proof of vaccination
. . . .”); see also id. at *2 (“Despite repeatedly contacting Pilgrim’s Pride directly, Petitioner has
been unable to obtain direct proof of the date that Pilgrim’s Pride provided the vaccine, or if Ms.
Smith received the vaccine, as the nurse who administered the vaccine retired and could not be
located for a statement.”). Therefore, she sought to bolster her claim with circumstantial
evidence of vaccination. This included affidavits from the petitioner in that case and a coworker,
statements from family members, and a statement from the petitioner’s employer identifying the
lot number of the vaccine it administered to employees. Id. at *2. But Smith does not stand for
the proposition that a petitioner does not need to explain the absence of vaccine records. In fact,
Smith does quite the opposite—it only gets to the circumstantial evidence because the petitioner
explained the absence of the vaccination record as required by 42 U.S.C. § 300aa-11(c)(3) and
Vaccine Rule 2(c)(2)(B)(i). Thus, Smith also supports what the Chief Special Master required
here.
Finally, Petitioner insists that it was an abuse of discretion for the Chief Special Master to
ignore the objective evidence of vaccination in Petitioner’s affidavit and medical records. ECF
No. 30 at 9-10. Again, as explained above, neither Petitioner’s affidavit nor medical records
explain why J.L.’s vaccination records are unavailable. On that basis, it was not an abuse of
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discretion to deny fees for failing to comply with Congress’s documentation requirements. Even
if compliance with the Vaccine Act was not mandatory (it was), Petitioner’s affidavit only states
that J.L. received two doses of Gardasil, one “on October 10, 2017 and the second dose in April
2018.” ECF No. 1-2 ¶ 3. Of course, “The special master or court may not make such a finding
based on the claims of a petitioner alone, unsubstantiated by medical records or by medical
opinion.” 42 U.S.C. § 300aa-13(a)(1). And the medical records Petitioner did provide state only
that Petitioner told the medical providers that J.L. received the two doses of Gardasil. For
example, one record states that J.L.’s second Gardasil vaccination (“HPV #2”) was “verified by
mom.” ECF No. 6-3 at 33. Similarly, another doctor noted that Petitioner “recall[ed] that [J.L.]
received the second HPV vaccine on 4/12/18.” ECF No. 6-3 at 40. One other note indicated that
the doctor would consider whether J.L.’s symptoms were due to the Gardasil vaccination
because they began nine days after administration. ECF No. 6-3 at 37. If this was based on
anything other than Petitioner’s reporting to the doctor, e.g., a vaccination or other medical
record, it is not apparent and no other record is attached. In the end, this evidence is akin to the
evidence Petitioner’s counsel provided in Fetters, which Judge Lettow found insufficient
because “[w]hile these statements were made in medical records, all statements regarding
whether [J.L.] received the vaccine were made by [Mrs. Levy].” Fetters, 2023 WL 3597513 at
*6.
Congress determined what evidence is required to prove the receipt of a covered
vaccination so one can bring a claim under the Vaccine Act. Petitioner’s refusal to comply with
that requirement was her choice. But that choice had consequences. The Chief Special Master’s
conclusion that Petitioner lacked a reasonable basis to bring her claim when she refused to
comply with Congress’s minimal documentation requirements was not an abuse of discretion.8
See James-Cornelius, 984 f.3d at 1379 (“[E]ven when these two requirements [to bring the
action in good faith and with a reasonable basis] are satisfied, a special master retains discretion
to grant or deny attorneys’ fees.”) (citations omitted).
IV. Conclusion
For reasons stated above, the Court DENIES Petitioner’s Motion for Disqualification,
ECF No. 33, and her Motion for Review, ECF No. 29. The Chief Special Master’s decision
denying Petitioner’s motion for attorney’s fees is AFFIRMED. The Clerk’s Office shall enter
judgment accordingly.
IT IS SO ORDERED.
8 The Government also argues that Petitioner’s failure to provide anything supporting causation
justified the Chief Special Master’s finding that she lacked a reasonable basis to bring her claim.
ECF No. 35 at 17-19. It is true that Petitioner did not submit anything regarding causation until
after the Chief Special Master entered his order concluding the proceedings. See ECF Nos. 16
(Order concluding proceedings), 17 (Petitioner’s notice of filing medical literature), & 25
(Petitioner’s notice of filing medical literature). Because the Chief Special Master did not reach
this issue, the Court does not either.
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s/ Edward H. Meyers
Edward H. Meyers
Judge
15