discussing this goal when determining that attorney’s fees and costs may be awarded even when the petition was untimely filed
How later courts described this case
- discussing this goal when determining that attorney’s fees and costs may be awarded even when the petition was untimely filed
Written by the judges who cited it.
The opinion
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1515V
UNPUBLISHED
ABIGAIL STRATTON,
Chief Special Master Corcoran
Petitioner,
v. Filed: August 22, 2025
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Bijan Esfandiari, Wisner Baum, LLP, Los Angeles, CA, for Petitioner.
Voris E. Johnson, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON REMAND DENYING AWARD OF ATTORNEY’S FEES AND COSTS1
On November 2, 2020, Abigail Stratton filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa—10 through 342 (the
“Vaccine Act”). Petitioner alleged that the human papillomavirus (“HPV”) vaccine she
received on November 6, 2017, caused her to develop postural orthostatic tachycardia
syndrome (“POTS”)3 and autonomic dysfunction. ECF No. 1 ¶ 9. After withdrawing the
case (consistent with the Vaccine Act’s provisions for doing so after the case had been
pending for 240 days) to litigate her claim in federal district court,4 Petitioner sought an
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website 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 Decision 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. Hereinafter, for ease
of citation, all “Section” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
3
POTS is a group of symptoms that sometimes occur when a person assumes an upright position. These
symptoms include tachycardia (excessive heart rate), tremulousness, lightheadedness, sweating, and
hyperventilation. Dorlands Medical Dictionary Online (last accessed August 12, 2025).
4 After her vaccine case was dismissed, Petitioner filed a civil action in federal district court on July 21,
2021. Pl.’s Compl., Stratton v. Merck & Co., Inc., No. 2:21-cv-2211 (D.S.C. filed on July 21, 2021). On April
award of fees and costs for work performed on the matter up to the time of withdrawal.
Over Respondent’s objections, I found that Petitioner had demonstrated a reasonable
basis for her claim, and granted a fees award. Stratton v. Sec’y of Health & Hum. Servs.,
2023 WL 2337224 (Fed. Cl. Spec. Mstr. Feb. 9, 2023) (the “Fees Decision”).
The Court of Federal Claims initially upheld the Fees Decision and its finding of
reasonable basis, denying Respondent’s motion for review. Op. and Order, Stratton v.
Sec’y of Health & Hum. Servs., No. 1:20-vv-01515 (Fed. Cl. May 31, 2023); ECF No. 52.
But the Federal Circuit has since vacated the Fees Decision, remanding the case so that
I may more fully explain my reasonable basis finding. Stratton v. Sec'y of Health & Hum.
Servs., 138 F.4th 1368 (Fed. Cir. June 6, 2025).
On remand, I have re-evaluated the facts in order to meet the Circuit panel’s
mandate, and to issue a more detailed decision explaining my reasoning. I now find that
Petitioner has not established a reasonable basis for her claim, and therefore is not
entitled to a fees award.
I. Relevant Medical Facts
Petitioner received the HPV vaccine on November 6, 2017 (when she was 19
years old), and alleged that thereafter she developed headaches, dizziness, nausea, and
abdominal pain, later on being diagnosed with POTS. ECF No. 22 at 3-4; Ex. 3 at 8.
Petitioner maintained that prior to vaccination, she had not experienced POTS “or any
other symptoms of autonomic dysfunction.” ECF No. 1 ¶ 2. But her pre-vaccination
medical history, of which Petitioner provided no detail, in fact evidences a number of
symptoms and complaints that are comparable to what she claims to have experienced
thereafter.
For example, in September 2015, Petitioner’s mother told her doctor that Petitioner
had recently nearly passed out when running cross country on two separate occasions,
and that Petitioner developed heart palpitations and shortness of breath before each
12, 2022, Petitioner, along with 33 other cases, filed a motion to transfer with the Judicial Panel on
Multidistrict Litigation to consolidate their cases in a single district court. Mot. to Transfer, In Re: Gardasil
Products Liability Litigation, No. 3036 (J.P.M.L. filed Apr. 12, 2022). Although Petitioner case was listed in
the initial motion to transfer before the Judicial Panel, the Judicial Panel’s order granting transfer to a single
district court no longer listed Petitioner’s case as among those being transferred, and noted that two cases
(not identified) had been dismissed after the motion to transfer was filed. Transfer Order, In Re: Gardasil,
No. 3036 (J.P.M.L. issued Aug. 4, 2022). Back in the original district court, Petitioner had filed a joint
stipulation of dismissal with prejudice on June 17, 2022, before the Judicial Panel transferred the cases.
Stip. of Dismiss., Stratton, No. 2:21-cv-2211 (D.S.C. filed June 17, 2022). In the district court to which the
multidistrict litigation was transferred, Petitioner’s case information does not appear on the Court’s docket
among the hundreds of other cases. In Re: Gardasil Products Liability Litigation, No. 3:22-md-3036
(W.D.N.C.).
2
occasion. Ex. 1 at 18. At an emergency room visit on January 15, 2016, Petitioner
described a syncope episode from earlier that day where she passed out after
experiencing “heart racing” palpitations and lightheadedness. Ex. 8 at 55. Petitioner said
that she was “feeling lightheaded every morning for the past 4 months” and almost passes
out when she tries to stand up. Id. at 54. On January 15, 2016, Petitioner’s mother called
the doctor’s office to tell them she had passed out earlier that day, and the office advised
that Petitioner should go to the emergency room. Id. at 66. Thereafter, due to dizziness,
Petitioner underwent a CT scan on February 3, 2016. Id. at 163.
In addition, on July 30, 2017, Petitioner went to the emergency room for abdominal
pain over the past three days that was determined to be a kidney infection. Ex. 8 at 174,
201. On September 28, 2017, she sought medical attention for intermittent dizziness, light
headedness, nausea, vomiting, and cough. Ex. 7 at 176, 185. And Petitioner stated at
this time that she began taking medication to treat ADHD three weeks earlier. Id.
Records from treatment events after the November 6, 2017 vaccination do not
establish dysautonomia5 concerns of the kind that would be associated with POTS. For
example, at a November 27, 2027 appointment for a urinary tract infection, Petitioner
noted that she had a rash on her chest that was not itchy.6 Ex. 5 at 28-31. At a follow-up
appointment on November 30, 2017, Petitioner noted that the rash on her chest had not
changed but was now on her abdomen and arms. Id. at 33. The treater determined that
the rash was likely pityriasis rosea, and Petitioner could stop using the prescribed
medication to treat it. Id. This rash subsequently resolved in less than two months, and
Petitioner sought no additional care for it. Ex. 11 ¶ 2.
Next, on January 8, 2018, Petitioner was diagnosed with rectal bleeding and
menstrual cramps. Ex. 3 at 5. And on February 19, 2018, Petitioner experienced a bad
headache with nausea for several hours and was later diagnosed with a migraine. Ex. 9
at 174, 177.
In her declaration, Petitioner described an incident (or possibly reoccurring
incidents) during the summer of 2018 where she would nearly pass out after exercising.
Ex. 11 ¶¶ 7, 8. At a June 10, 2018 appointment, Petitioner had a week-long sore throat,
tested positive for mononucleosis, and was advised to avoid close contact with others.
5 Dysautonomia is a malfunction of the autonomic nervous system, which regulates the activity of cardiac
muscle, smooth muscle, glandular epithelium, and other involuntary biologic processes. Dorlands Medical
Dictionary Online (last accessed August 12, 2025). POTS could be considered evidence of a dysautonomic
reaction.
6 Petitioner did not allege in her petition that the HPV vaccination caused this rash or any other skin
condition.
3
Ex. 5 at 45-46. Petitioner has also contended that on June 18, 2018, she had been having
on and off urinary tract infection symptoms since December 2017. Ex. 3 at 15. Petitioner
has not submitted any medical records documenting reports of her passing out during the
summer of 2018.
The first record proof of any possible HPV vaccine-related reaction is from a
January 15, 2019 appointment, when Petitioner made such representations to a treater,
and that she therefore did not want to complete the vaccination series, but this record
lacks any additional detail recorded about the claimed reaction. Ex. 3 at 2. Two months
later, on March 14, 2019, Petitioner was seen for a panic attack with breathlessness and
a sensation that she would pass out. Ex. 4 at 6. Petitioner told the provider that she
believed she was dehydrated. Id. At this visit, Petitioner’s medical history was noted as
“significant for anxiety, migraines, and constipation” with abdominal pain possibly related
to the constipation since the summer of 2018. Id. at 5-6. Petitioner had an abnormal EKG
and was referred to cardiology. Id. at 11.
When seeing a cardiologist on May 13, 2019, Petitioner stated she had an
abnormal EKG “several years ago” that had been repeated in March. Ex. 4 at 59.
Petitioner described her most frequent symptom as “occasional orthostatic dizziness”
over the “last several years.” Id. The records state that Petitioner has an ectopic atrial
rhythm that was first demonstrated “several years ago” and began prior to therapy for
ADHD (i.e., September 2017). Id.
Petitioner also alleges that sometime in July 2019 she saw an electrophysiologist
who now diagnosed her with POTS. Ex. 11 ¶ 13; Ex. 4 at 93. Petitioner has not filed any
medical records from this electrophysiologist visit, however. Later in July, Petitioner was
diagnosed with “mild POTS” by a different provider. Id. at 333. When establishing care
with a new provider in September 2019, Petitioner noted that she had contracted mono
after receiving the vaccination “and then started having [cardiovascular] and
[gastrointestinal] symptoms.” Id. at 389; ex. 1 at 18 (heart palpitations and shortness of
breath in September 2015); ex. 8 at 54-55 (four months of palpitations and
lightheadedness before January 2016); (dizziness, lightheadedness, nausea, vomiting,
and cough in September 2017).
II. Procedural History
As noted, this matter was filed in November 2020, and it alleged a causation-in-
fact injury from receipt of an HPV vaccine (there is no Table claim for HPV vaccine-caused
POTS). Specifically, Petitioner contended as follows:
4
Ms. Stratton suffered an adverse reaction to a Gardasil vaccination
administered on November 6, 2017. Had Petitioner known the truth about
Merck’s conduct with Gardasil and the potential adverse effects, she would
not have received this vaccine. Merck misrepresented the nature of
Gardasil, conducted rigged clinical trials by using an aluminum-based
placebo, received fast-tracked assistance from the FDA, and then guilted
victims into receiving the Gardasil vaccination with a false marketing
campaign that Gardasil was a cure for cancer.
Ex. 1 at 1-2. Thus, the face of the Petition itself demonstrated that Petitioner did not
merely contend she experienced an adverse reaction due to a vaccination (the sole
question to be resolved in a Vaccine Act claim), but instead that she believed that the
vaccine itself was inherently unsafe, and that its manufacturer had committed fraudulent
acts in hiding this fact (with governmental complicity contributing to a massive scam on
the unsuspecting public). She otherwise identified as her injury “POTS and autonomic
dysfunction.” Id. at 3 ¶ 9.
In the Petition, Ms. Stratton also disclosed her actual purpose in filing this action.
Rather than seeking to have her injury claim adjudicated by the Office of Special Masters
(“OSM”), Petitioner acknowledged outright that she was “statutorily compelled to initiate
this claim prior to pursuing a cause of action against Merck directly. 42 U.S.C. § 300aa–
11(a)(2).” ECF No. 1 at 1. She also noted that the claim had been filed on the eve of
expiration of the Act’s three-year limitations period – and thus counsel had not had the
chance to review the medical records for objective support for the claim prior to the
Petition’s filing. Id. at 1 n.1.
A “240-Day Order” was issued in this case on June 30, 2021 (ECF No. 18). OSM
utilizes this order to notify claimants that the Act permits them to voluntarily withdraw their
claim from consideration at this point if the matter is unresolved by the approximate eight-
month post-filing date, but it invites them to agree to pursue the claim thereafter.7 In
response, Petitioner filed a notice on July 6, 2021, stating her intent to withdraw from the
Vaccine Program. ECF No. 19. In it, she explicitly represented again that she had filed
this matter at OSM only because she was “statutorily compelled” to do so before suing
the vaccine manufacturer directly. Id. I accordingly issued an Order Concluding
Proceedings pursuant to Vaccine Rule 10(d) on July 8, 2021. ECF No. 20.
7 Section 21(b) (procedure regarding withdrawal of petitions). OSM has utilized the 240-Day Order practice
for many years – and is indeed compelled to so act, since the crush of filings, along with limits on the
number of special masters permitted by the Act, has rendered OSM’s ability to resolve claims within eight
months of filing an impossibility.
5
A few days later, on July 12, 2021, Petitioner filed a motion for attorney’s fees and
costs. ECF No. 22. The amount requested was modest as far as most Program claims
go - $10,789.96 – although not de minimis when Petitioner’s underlying and
acknowledged, up-front desire to “pull” the case from OSM at the first possible moment
is taken into account.
On July 23, 2021, Respondent filed an opposition brief arguing that Petitioner had
failed to establish reasonable basis and good faith for her claim. ECF No. 23. On July 27,
2021, Petitioner replied to Respondent’s arguments. ECF No. 24. Petitioner filed a
supplemental motion for attorney’s fees for the work done to file her reply, an additional
$1,386.00 for a total of $12,175.96. ECF No. 27.
On February 9, 2023, I issued a decision finding that Petitioner had reasonable
basis for her claim and granting an award of fees and costs, but reducing the requested
amount for specific issues with the hours billed and applying a general reduction to the
award. Stratton, 2023 WL 2337224. In my decision, I acknowledged that “Respondent’s
skepticism of the claim’s likelihood of success is reasonable,” but I determined that
Petitioner had filed “sufficient medical records to satisfy the exceedingly low evidentiary
standard” of reasonable basis. Id. at *6. I cautioned that the lack of validity I had
repeatedly found in HPV claims could lead me to deny future motions for attorney’s fees
and costs in cases alleging similar injuries. Id.
III. Appeal and Circuit Remand Order
On March 8, 2023, Respondent filed a Motion for Review challenging the Fees
Decision’s conclusion that the evidence in the case supported reasonable basis and
asserting that it did not set forth analysis of the evidence. ECF No. 37. Petitioner cross-
moved for review, objecting to the reductions made to the award. ECF No. 39. The parties
subsequently filed responses and replies to these motions for review.
On May 31, 2023, the Court of Federal Claims issued an opinion denying
Respondent’s motion for review, holding that my finding of reasonable basis was not
arbitrary or capricious. Stratton, No. 1:20-vv-01515, slip. op. at 4; ECF No. 52. The Court
also upheld the reduction of fees for the specific issues with the hours billed detailed in
the Fees Decision but reversed the general reduction of fees. Id. at 4-6. Lastly, the Court
denied Petitioner’s motion for disqualification finding that Petitioner’s claims had not
overcome the presumption of impartiality. Id. at 7-9.8
8 On March 20, 2023, Petitioner moved to disqualify me from this case (and numerous other similarly
situated cases) alleging that my fees determinations in HPV cases could not be impartial, since I had not
accepted causation in any of the cases alleging dysautonomic reactions to the HPV vaccine. ECF No. 47.
All such motions to disqualify have been denied. Stratton, No. 1:20-vv-01515, slip. op. at 4; ECF No. 52.;
Levy v. Sec'y of Health & Hum. Servs., No. 20-1791V, 2023 WL 6143219 (Fed. Cl. June 26, 2023); Fetters
6
On August 2, 2023, Respondent initiated appeal at the Federal Circuit. ECF No.
54. In his appeal, Respondent again argued that the evidence in the case did not support
reasonable basis, and that the Fees Decision did not contain any analysis of the record
evidence. Appellant’s Br. at 15, Stratton v. Sec'y of Health & Hum. Servs., 138 F.4th 1368
(Fed. Cir. 2023) (No. 2023-2230). Oral argument was held on September 4, 2024. ECF
No. 25, Stratton, 138 F.4th 1368 (No. 2023-2230).
On June 6, 2025, the Federal Circuit issued an opinion finding that I had “failed to
sufficiently explain [my] conclusion that Ms. Stratton had a reasonable basis for her
petition.” Stratton, 138 F.4th at 1371. The Federal Circuit vacated and remanded for me
to “readdress the reasonable basis issue.” Id. at 1372. The opinion also noted that “we
express no opinion on whether the Chief Special Master’s decision [regarding reasonable
basis] was correct or incorrect.” Id. at 1372, n.3.9
On June 16, 2025, new counsel filed a consented motion to substitute as
Petitioner’s counsel for the original counsel, Andrew Downing. ECF No. 56. A few days
later, Petitioner filed a notice of additional authority identifying a 2025 medical article and
expert reports filed in a non-Program case in 2024 litigating injuries based on the same
HPV vaccine. ECF Nos. 57, 58.
On July 10, 2025, Respondent filed a response to Petitioner’s notice opposing
consideration of the additional material. ECF No. 59. On July 28, 2025, the Federal Circuit
issued the mandate returning jurisdiction of this case. ECF No. 60.
IV. Fees and Costs for Unsuccessful Claims
The Vaccine Act permits fees in some unsuccessful cases – a classification that
includes cases that are terminated without final resolution, as here. This is in keeping with
the Program’s goal of ensuring that petitioners have adequate assistance from counsel
when pursuing their claims. H.R. REP. NO. 99-908, at 22 reprinted in 1986 U.S.C.C.A.N.
6344, 6363; see also Sebelius v. Cloer, 133 S. Ct. 1886, 1895 (2013) (discussing this
goal when determining that attorney’s fees and costs may be awarded even when the
petition was untimely filed). There is a threshold requirement for fees under such
circumstances, however – petitioners must demonstrate “that the petition was brought in
v. Sec'y of Health & Hum. Servs., 166 Fed. Cl. 189 (May 5, 2023). Petitioner did not appeal the denial of
the motion to disqualify, nor were any other such determinations challenged.
9 Respondent did not challenge my initial determination that Petitioner filed her claim in good faith on review
or on appeal. Stratton, No. 1:20-vv-01515, slip. op. at 3; Stratton, 138 F.4th at 1371 n.2. Thus, the issue of
good faith was not before the Federal Circuit, and my initial determination that this element for allowing fees
in an “unsuccessful” case has been satisfied remains in place.
7
good faith and there was a reasonable basis for the claim for which the petition was
brought.” Section 15(e)(1). Fees can still be adjusted, or denied entirely, however, even
where reasonable basis is established.
As the Federal Circuit has explained, the relevant analysis involves two distinct
inquiries: (1) a subjective one assessing whether the petition was brought in good faith
and (2) an objective one ascertaining whether reasonable basis for the petition existed.
Cottingham v. Sec'y of Health & Hum. Servs., 971 F.3d 1337, 1344 (Fed. Cir. 2020)
(“Good faith is a subjective test, satisfied through subjective evidence”); Turner v. Sec’y
of Health & Hum. Servs., No. 99-0544V, 2007 WL 4410030, at *5 (Fed. Cl. Spec. Mstr.
Nov. 30, 2007) (“[T]he ‘good faith’ requirement . . . focuses upon whether petitioner
honestly believed he had a legitimate claim for compensation.”); Simmons v. Sec’y of
Health & Hum. Servs., 875 F.3d 632, 635 (Fed. Cir. 2017) (quoting Chuisano v. Sec’y of
Health & Hum. Servs., 116 Fed. Cl. 276, 289 (May 15, 2014)) (addressing the objective
requirements of reasonable basis).
My prior determination that the matter was initiated in good faith has not been
challenged, leaving only reasonable basis to be determined. “Reasonable basis … is an
objective test, satisfied through objective evidence.” Cottingham, 971 F.3d at 1344. The
reasonable basis requirement examines “not at the likelihood of success [of a claim] but
more to the feasibility of the claim.” Turner, 2007 WL 4410030, at *6 (quoting Di Roma v.
Sec’y of Health & Hum. Servs., No. 90-3277V, 1993 WL 496981, at *1 (Fed. Cl. Spec.
Mstr. Nov. 18, 1993)).
Reasonable basis is an extremely lenient standard. Hughes v. Sec’y of Health &
Hum. Servs., No. 16-930V, 2021 WL 6621169, at *3 (Fed. Cl. Spec. Mstr. Dec. 29, 2021)
mot. for review denied, 154 Fed. Cl. 640 (June 4, 2021). Citing the prima facie elements
of a successful claim described in Section 11(c)(1), the Federal Circuit recently instructed
that the level of the objective evidence sufficient for a special master to find reasonable
basis should be “more than a mere scintilla but less than a preponderance of proof.”
Cottingham, 971 F.3d at 1345-46. Nevertheless, this standard can be failed – and
determinations that a claim’s allegations lack objective support that should have steered
counsel against initiation of a claim can result in complete denial of fees. Goodgame v.
Sec'y of Health & Hum. Servs., No. 17-339V, 2021 WL 1940817, at *1 (Fed. Cl. Spec.
Mstr. Apr. 16, 2021), mot. for review denied, 157 Fed. Cl. 62 (Oct. 29, 2021); L.P. v. Sec'y
of Health & Hum. Servs., No. 17-203V, 2018 WL 1044952, at *1 (Fed. Cl. Spec. Mstr.
Jan. 30, 2018), mot. for review denied, 150 Fed. Cl. 396 (Oct. 8, 2020). The good faith
acts of counsel, moreover – including the need to file a claim before a looming limitations
period cut-off – are relevant only to good faith, and thus do not shed light on a claim’s
objective support. Simmons, 875 F.3d at 636.
8
In evaluating whether reasonable basis exists, a special master should take into
account whether some of the fundamental substantiating elements that any filed petition
must possess have been demonstrated on the basis of evidence filed. For example, the
Federal Circuit has noted that a “petition must include ‘an affidavit, and supporting
documentation, demonstrating that the person who suffered such injury:
(1) received a vaccine listed on the Vaccine Injury Table;
(2) received the vaccination in the United States, or under certain stated
circumstances outside of the United States;
(3) sustained (or had significantly aggravated) an injury as set forth in the Vaccine
Injury Table (42 C.F.R. § 100.3(e)) or that was caused by the vaccine;
(4) experienced the residual effects of the injury for more than six months, died, or
required an in-patient hospitalization with surgical intervention; and
(5) has not previously collected an award or settlement of a civil action for damages
for the same injury.”
Cottingham, 971 F.3d at 1345-46 (emphasis added).
ANALYSIS
I. Effort to Establish Rubric for Addressing Host of
Withdrawn HPV Vaccine-POTS Claims
The circumstances for this reasonable basis challenge did not arise in a vacuum
– and they do not simply involve claims that the HPV vaccine can cause POTS, more
general dysautonomia, or any other kind of injury. Rather, this matter is one of many
initiated by the same the attorney, who has initiated, then withdrawn, approximately 320
cases10 from the Program – in each instance so the claimant could either join a larger-
10 Petitioner’s initial counsel stopped filing HPV cases in the Vaccine Program toward the end of 2024, but
a number of other attorneys have continued filing and withdrawing HPV cases – over additional 90 cases
from 2023 to the present. Most, but not all, of these cases have motions for attorney’s fees and costs filed
in them, and most remain pending.
9
scale action against the HPV vaccine’s manufacturer, Merck, or pursue an individual
action.11
The need to initiate claims within the Vaccine Program, only to withdraw them, was
to no small extent a function of the Act’s shielding of manufacturers from liability.
Bruesewitz v. Wyeth LLC, 562 U.S. 223, 229 (2011). A Vaccine Act claimant could only
“reach” the Act’s provisions governing how manufacturers can be sued by first exhausting
his remedies in the Program. Section 21 et seq. (defining scope of civil action against
manufacturers); Bruesewitz, 562 U.S. at 229. Counsel desired to obtain summary
resolutions of these claims in order to accomplish this goal. He may also have had some
sense (based on both cases he personally litigated, as well as others) that claims that the
HPV vaccine causes POTS were highly unlikely to succeed within the Program – since
they had repeatedly been determined to lack reliable scientific or medical support. Atjian
v. Sec’y of Health & Hum. Servs., No. 21-1413V, 2022 WL 17587757, at *10 (Fed. Cl.
Spec. Mstr. Oct. 18, 2022) (setting forth large number of cases issued since 2019 denying
entitlement in comparable circumstances).12
Because of the foregoing, the number of these only preliminarily-substantiated
cases shot up substantially over a two-year period. I accordingly (and in retrospect,
perhaps naively) attempted to establish a rubric for how these withdrawn claims would be
treated – with the goal of resolving fees for them in a predictable matter, without the need
for lengthy “secondary litigation” processes. See Atijan, 2022 WL 17587757, at *10. In
effect, I noted that claims that the HPV vaccine can cause POTS would be treated
differently depending on when they had been filed, with cases initiated after OSM’s
consistent rejection of the theory being treated less favorably than those begun before.
Id. at *10. If counsel chose to file an HPV vaccine-POTS claim (for whatever ultimate
reason) despite his knowledge that the claim was very likely to be rejected, he could not
expect a fees award. Conversely, claims filed before the OSM prevailing view was as
evident would need to be evaluated as if they had a chance of success – albeit subject to
the need to demonstrate objective evidentiary support for the claim.
11 A large number of the petitioners in withdrawn HPV cases joined a federal multidistrict litigation against
Merck. See generally In Re: Gardasil Products Liability Litigation, No. 3:22-md-3036 (W.D.N.C. transferred
on Aug. 4, 2022). Earlier this year, summary judgment was granted to the defendant against the bellwether
POTS cases in that matter, although the determination has been challenged. Id., appeals docketed, Nos.
24-1828, 24-1831, 24-1832, 25-1383, 25-1796 (4th Cir) (some cases are appealing dismissal for a statute
of limitations issue, many POTS cases are appealing the district court’s grant of summary judgment, and
cases with other injuries remain pending before the district court). In addition, at least two former Vaccine
Program petitioners are pursuing individual state court cases against Merck. Robi v. Merck & Co., Inc. et
al., No. BC628589 (Cal. Super. Ct. filed July 27, 2016) (jury trial scheduled for Sept. 15, 2025); Shain v.
Merck & Co., Inc. et al., No. 21STCV35340 (Cal. Super. Ct. filed Sept. 24, 2021) (jury trial scheduled for
July 22, 2026).
12
Not one of these special master determinations has ever been successfully challenged on appeal.
10
I also noted that given counsel’s clearly-stated intent to pull Program matters for
addition to pending cases against the manufacturer elsewhere – and concomitant intent
not to litigate the matter at OSM, as the Act envisions – I would expect fees and costs
associated with the matter to be as modest as possible. Thus, I would exercise my
discretion to reduce fees across the board if it did not appear that counsel had acted with
care to minimize legal expenses devoted to a claim he had no actual intent of litigating in
the Vaccine Program. Atijan, 2022 WL 17587757, at *13.13
Atijan was not appealed by either party – leading me to believe (incorrectly) that I
had arrived upon a fair way to globally resolve fees in these pulled cases. I issued the
initial decision for this matter in its wake, based on the expectation that the parties would
be able to live with “rough justice” determinations it reflected.
Instead, it appears reasonable basis will need to be addressed piecemeal, in each
of the over 260 pending motions for attorney’s fees and costs in HPV vaccine cases pulled
from the Program – starting with this remand determination. I regardless note that I will
continue to look to Atijan as guidance – both with respect to (a) whether the claim in
question was initiated by counsel with knowledge of its causation failings, and (b) whether
the magnitude of fees generated is reasonable for a claim that counsel never expected
would be resolved by OSM.
II. This Claim Lacked Reasonable Basis
Despite all of the foregoing, a complete and renewed review of the filed medical
records in this case leads me to conclude that the claim lacked reasonable basis. I reach
this determination independent of my view (garnered through direct experience
adjudicating comparable matters) that claims alleging POTS as a vaccine injury generally
are no longer well-founded (and thus without regard to whether this matter was filed
before or after the OSM consensus on entitlement in such cases had been reached).
The essential dispute between the parties in this case is whether Petitioner
“sustained (or had significantly aggravated) an injury as set forth in the Vaccine Injury
Table (42 C.F.R. § 100.3(e)) or that was caused by the vaccine.” Cottingham, 971 F.3d
at 1345-46. Since Petitioner’s alleged injuries of POTS and autonomic dysfunction are
not set forth in the Vaccine Injury Table, Petitioner is not afforded the Table’s presumption
13 Respondent interpreted my guidance as simply assuming that reasonable basis had been met in any
matters filed prior to the OSM consensus on HPV vaccine-POTS claims. Appellant’s Br. at 21 n.13, Stratton,
138 F.4th 1368 (No. 23-2230). Respondent was concerned with the cumulative amount of attorney’s fees
and costs that would be granted under this standard.
11
of causation, and must establish that the HPV vaccine caused her injuries at the
evidentiary level of reasonable basis.
Here, the medical record does not establish that Petitioner likely was injured by
her receipt of the HPV vaccine in any medically-acceptable timeframe.14 Petitioner had at
least two years of symptoms of lightheadedness and other cardiovascular symptoms
before the vaccination at issue. There is no contemporaneous evidence that she
experienced a close-in-time reaction or worsening of her pre-vaccination symptoms. Her
first documented, post-vaccination issues arose two to three months later (rectal bleeding,
menstrual cramps, and then migraine headaches) – all nonspecific for dysautonomia, and
too long after vaccination to attribute to the vaccine. She never complained of any vaccine
reaction until January 2019, well over a year after vaccination. And she was not diagnosed
with POTS until the summer of 2019 – and the cardiac testing that helped confirm the
diagnosis noted that Petitioner possessed the same cardiac issue before vaccination. Ex.
4 at 59.
This record is wholly unsupportive, in any objective sense, of the alleged fact of
injury. The required “scintilla” is missing, and thus the otherwise easily-met reasonable
basis standard is not satisfied in this case. And it is not enough for Petitioner to allege in
witness statements, sworn or otherwise, that she was injured, since it is well-understood
that Program claims cannot prevail solely on the basis of a petitioner’s personal
assertions or lay beliefs. Section 13(a)(1) (requiring that a special master’s findings must
be substantiated by medical records or by medical opinion). Otherwise, Petitioner’s
declaration is unhelpful to support her injuries because many of the details of her medical
history and treatment are absent. Nor has she explained how her pre-vaccination history
relates.
I also note that reasonable basis would properly be denied even if the POTS injury
could be shown to have a closer temporal/factual association with vaccination. And that
is for the simple reason that the Program has wholly rejected contentions that the HPV
vaccine is capable of causing POTS. See generally A.F. v. Sec'y of Health & Hum. Servs.,
No. 19-446V, 2023 WL 251948, at *23 (Fed. Cl. Spec. Mstr. Jan. 18, 2023) (“[t]here are
no persuasive reasoned Program decisions finding that the HPV vaccine can interfere
with any aspect of the nervous system sufficiently to cause any form of orthostatic
intolerance—whether manifesting as vasovagal syncope, POTS, or some other
comparable autonomic dysfunction”).
14 Cottingham v. Sec'y of Health & Hum. Servs., 159 Fed. Cl. 328, 334 (Mar. 28, 2022) (sustaining decision
that applies the Althen test to attorney’s fees and costs with the reasonable basis standard), aff'd, No. 2022-
1737, 2023 WL 7545047 (Fed. Cir. Nov. 14, 2023). Claimants must show a “proximate temporal relationship
between the vaccination and injury.” Althen v. Sec'y of Health & Hum. Servs., 418 F.3d 1274, 1278 (Fed.
Cir. 2005).
12
This position on POTS has been true for some time, as numerous decisions have
concluded. See, e.g., Stiegler v. Sec'y of Health & Hum. Servs., No. 21-1152V, 2024 WL
4678300, at *1 (Fed. Cl. Spec. Mstr. Oct. 10, 2024), mot. for review denied, 176 Fed. Cl.
786 (Apr. 18, 2025) (POTS and Tdap vaccine); E.S. v. Sec'y of Health & Hum. Servs.,
No. 17-480V, 2020 WL 9076620, at *42 (Fed. Cl. Spec. Mstr. Nov. 13, 2020), mot. for
review denied, 154 Fed. Cl. 149 (May 6, 2021); Balasco v. Sec'y of Health & Hum. Servs.,
No. 17-215V, 2020 WL 1240917, at *34 (Fed. Cl. Spec. Mstr. Feb. 14, 2020) (articulating
that the special master “[did] not find preponderant evidence of a reliable medical theory
causally connecting petitioner's HPV vaccinations to either POTS generally or her own
fibromyalgia and/or vestibular migraines in particular”); Johnson v. Sec'y of Health & Hum.
Servs., No. 14-254V, 2018 WL 2051760, at *24 (Fed. Cl. Spec. Mstr. Mar. 23, 2018)
(discussing how the petitioner failed to establish a reliable medical causation theory that
the HPV vaccine established autonomic nervous system or orthostatic intolerance
conditions); Combs v. Sec'y of Health & Hum. Servs., No. 14-878V, 2018 WL 1581672,
at * 1 (Fed. Cl. Spec. Mstr. Feb. 15, 2018) (“[p]etitioner's causation theory—that the HPV
vaccine could damage the autonomic nervous system—was scientifically unreliable and
unpersuasive”); K.L. v. Sec'y of Health & Hum. Servs., No. 12-312V, 2017 WL 1713110,
at *15 (Fed. Cl. Spec. Mstr. Mar. 17, 2017) (noting that respondent demonstrated more
persuasively that there was “no link between a number of neurological events, including
epilepsy, and receipt of the HPV vaccine”), mot. for review denied, 134 Fed. Cl. 579 (Aug.
8, 2017); L.A.M. v. Sec'y of Health & Hum. Servs., No. 11–852V, 2017 WL 527576 (Fed.
Cl. Spec. Mstr. Jan. 31, 2017) (concluding that the HPV vaccine not found to cause
POTS); Turkupolis v. Sec'y of Health & Hum. Servs., No. 10–351V, 2014 WL 2872215
(Fed. Cl. Spec. Mstr. May 30, 2014) (finding that the HPV vaccine not shown to cause
neurocardiogenic syncope). Most of these decisions were issued before this claim’s filing,
putting counsel on notice of the weakness of the causation theory. And I am aware of no
reliable medical or scientific evidence that suggests this view warrants any revision.15
CONCLUSION
It remains my reasoned view that some form of organized system for ascertaining
the appropriateness of fees in these hundreds of pulled related cases is needed. Since
Respondent long ago abandoned any interest in weighing in on fees requests, it falls to
OSM to find a way to manage these matters.
15 I give no weight to items of literature filed long after the case closed on July 8, 2021, in support of the
claim’s reasonable basis. See, e.g., Exs. 19 (ECF No. 32 – filed Nov. 29, 2022) and 20 (ECF No. 58 – filed
June 22, 2025). It is now too late to offer additional scientific support for the claim – and it is not proper to
evaluate it in ascertaining the claim’s reasonable basis, which is a function of when it was filed. Goodgame
v. Sec'y of Health & Hum. Servs., 157 Fed. Cl. 62, 73 (Oct. 29, 2021) (“the time for introducing these
[medical] articles was BEFORE the Special Master issued his ruling on the merits”). The same goes for
medical expert opinions offered in other forums and for different claimants. See exs. 21-32 (ECF No. 58 –
filed June 22, 2025).
13
Nevertheless, I recognize that cases involving the HPV vaccine that have been
pulled from Program consideration are not automatically properly entitled to, or ineligible
for, a fees award. What matters in every case is whether objective proof exists to support
the claim. I would be more willing to allow fees for a case that alleged some kind of
dysautonomic-related injury that was not as well-evaluated as POTS. But here, POTS is
the focus of the case, the injury lacks objective support from the medical record, and it
did not arise in a medically-acceptable timeframe when measured from vaccination.
Counsel could have ascertained its weakness if records had been reviewed before the
case was filed – and it is also evident counsel was well aware by November 2020 that
this kind of claim stood little to no chance of succeeding. Under the circumstances, the
risk of nonpayment for work performed properly resides with counsel.
Accordingly, I hereby DENY Petitioner’s Motion for Attorney’s Fees and Costs and
her Supplemental Motion for Attorney’s Fees and Costs. In the absence of a timely-filed
motion for review (see Appendix B to the Rules of the Court), the Clerk shall enter
judgment in accordance with this Decision.16
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
16 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
14