Debra Chuisano, as Legal Representative of the Estate of Frances D'esposito v. Secretary of Health and Human Services

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

*********************

DEBRA CHUISANO, as Legal *

Representative of the Estate of * No. 07-452V

FRANCES D’ESPOSITO, deceased, * Special Master Christian J.

* Moran

*

Petitioner, *

* Filed: October 25, 2013

v. *

* Attorneys’ fees, reasonable

SECRETARY OF HEALTH * basis, statute of limitations,

AND HUMAN SERVICES, *

*

Respondent. *

*********************

Robert T. Moxley, Robert T. Moxley, P.C., Cheyenne, WY, for petitioner;

Ronald C. Homer, Conway, Homer & Chin-Caplan, P.C., Boston, MA, former

counsel of record for petitioner;

Glenn A. MacLeod, United States Dep’t of Justice, Washington, DC, for

respondent.

PUBLISHED DECISION DENYING ATTORNEYS’ FEES AND COSTS1

Pending are two applications to pay petitioner’s two attorneys, one current

and one former. The Secretary opposes.

1

The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899,

2913 (Dec. 17, 2002), requires that the Court post this decision on its website.

Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing

redaction of medical information or other information described in 42 U.S.C.

§ 300aa—12(d)(4). Any redactions ordered by the special master will appear in

the document posted on the website.

The foundation for the fee applications is a petition alleging that a flu

vaccine caused the death of petitioner’s mother. Debra Chuisano, acting as the

legal representative of the estate of Frances D’Esposito, sought compensation

pursuant to the National Childhood Vaccine Injury Compensation Program. 42

U.S.C. § 300aa—10 et seq. (2012) (“Vaccine Act” or “Program”). Ms. Chuisano,

however, did not meet her burden of proof and her case was dismissed. Decision,

filed May 19, 2011.

The lack of recovery does not absolutely bar Ms. Chuisano from seeking

reasonable attorneys’ fees and costs incurred in pursuit of her unsuccessful claim.

The Vaccine Acts permits (but does not require) an award of attorney fees “if the

special master or court determines that the petition was brought in good faith and

there was a reasonable basis for the claim for which the petition was brought.” 42

U.S.C. § 300aa—15(e)(1).2

Thus, the applicable issue is whether Ms. Chuisano had a reasonable basis

for her claim that a flu vaccine caused Ms. D’Esposito’s death. A primary

challenge is that there is no definition of “reasonable basis.” One permutation of

this puzzle is whether a looming expiration of the statute of limitations should

affect how special masters determine whether petitioner established “a reasonable

basis for the claim for which the petition was brought.”

As explained in more detail in section I.C. below, the pendency of the statute

of limitations does not dispense with the petitioner’s obligation to furnish some

evidence supporting the claim contained in the petition. Admittedly, this holding

is a change from the results reached in other cases, but this holding is tied more

closely to the statute’s text. Simply, the portion of the statute authorizing

attorneys’ fees refers to the petition. The portion of the statute defining what the

petition shall contain refers to documentation supporting the claims in the petition.

Thus, to have a reasonable basis, the petitioner must advance some documentation

(meaning evidence) supporting the claims in the petition.

When Ms. Chuisano’s case is measured against this standard, it is

abundantly clear that she did not have a reasonable basis. She did not present any

evidence supporting the claim in her petition, which was that the flu vaccine

2

Ms. Chuisano’s good faith is not contested. Thus, this decision discusses

only “reasonable basis.”

2

contributed to her mother’s death. This gap in evidence remained despite Ms.

Chuisano’s retention of two separate law firms and the participation of at least

three doctors. Without any evidence linking Ms. D’Esposito’s death to her flu

vaccination, Ms. Chuisano’s case lacked a reasonable basis. And, without a

reasonable basis, she may not be awarded any attorneys’ fees.

BACKGROUND

Medical History3

Ms. D’Esposito was born in 1942. By 2004, she was suffering from chronic

obstructive pulmonary disease and chronic asthma. Exhibit 4 (Bay Shore Allergy

Group) at 1-2. She also had arthritis. Exhibit 1 at 16. On September 27, 2004,

Ms. D’Esposito was diagnosed as suffering from an upper respiratory infection for

which she was prescribed an antibiotic. Exhibit 3 at 4.

On October 12, 2004, Ms. D’Esposito was given a dose of the influenza

(“flu”) vaccine. Exhibit 4 at 17. Four days later, she had aches, fever, and a sore

throat. Her primary care doctor diagnosed her as having a viral syndrome and did

not prescribe more antibiotics. Exhibit 3 at 2.

On October 18, 2004, Ms. D’Esposito had difficulty breathing. Emergency

medical services brought her to Good Samaritan Hospital. Histories from her

admission mentioned that she had received the flu vaccine recently. Exhibit 5 at

13, 718. An initial diagnosis was that Ms. D’Esposito was infected with

pneumonia and suffered from sepsis. Exhibit 5 at 729, 750. Laboratory tests

detected streptococcus pneumonia. Exhibit 5 at 239.

Although Ms. D’ Esposito remained in the hospital, her condition worsened.

She died on December 24, 2004. The discharge summary indicates that the

3

This chronology of Ms. D’Esposito’s medical history, although not

disputed, takes into account all the records filed regardless of when they were filed.

As discussed below, Conway, Homer, & Chin-Caplan, P.C., (“CHC-C”) did not

necessarily know all this information about Ms. D’Esposito when they filed the

petition.

3

diagnoses were pneumonia and congestive heart failure. Exhibit 5 at 4.4 The

death certificate states that the cause of death was adult respiratory distress

syndrome due to pneumococcal pneumonia and sepsis. Exhibit 3 at 1.

CHC-C Work before Filing Petition5

In early March 2005, Ms. Chuisano contacted CHC-C. In connection with

efforts to schedule a conference with a CHC-C attorney, a paralegal requested that

Ms. Chuisano “forward records and estate docs.” At the subsequent meeting, a

senior attorney spent about one hour with Ms. Chuisano. The next entry, for May

19, 2005, indicates that a paralegal spoke to Ms. Chuisano for about ten minutes

about how Ms. Chuisano wanted to proceed with the case.

Following this conference, paralegals communicated with Ms. Chuisano

about the status of medical records. Apparently, CHC-C expected that Ms.

Chuisano would gather medical records and give the records to the law firm. For

reasons not explained in the record, Ms. Chuisano did not. More than one year

went by. By September 2006, a paralegal told an attorney that the firm had not

heard from the client in the last three to four months. The firm sent a “reject letter”

to their client.

After this letter, Ms. Chuisano told a paralegal that she did want to continue

the case and would send in medical records. On December 21, 2006, a paralegal

reviewed a discharge summary submitted by Ms. Chuisano.

The discharge summary provides the following information about Ms.

D’Esposito:

DIAGNOSES:

1. PNEUMONIA.

2. CONGESTIVE HEART FAILURE.

4

Two discharge summaries appear in the records from Good Samaritan

Hospital. Exhibit 5 at 3-4. The one at page 3 is probably a draft.

5

Information about CHC-C’s activities come from its timesheets. Exhibit

14.

4

This patient was a 62-year old female who was admitted

on October 18, 2004, with bilateral pneumonia, probable

sepsis. . . . The patient was also found to be in acute

renal failure. . . . The patient was vented in the intensive

care unit. Initial cultures came back pneumococcal. . . .

The patient’s blood pressure dropped, and the patient

became septic. The patient went into ARDS [adult

respiratory distress syndrome] and had an episode of

nonsustained ventricular tachycardia. . . . The patient

continued in the intensive care unit, continued to remain

poor over the next several weeks. . . . By November 20,

2004, the patient was awake, but lethargic, on the

ventilator. By December 22, 2004, the patient’s overall

condition was unchanged. She continued to do poorly.

There was felt to be no meaningful hope of recovery. . . .

By December 24, 2004, the patient expired at 0625

hours.

Exhibit 5 at 4. This discharge report does not mention that Ms. D’Esposito

received the flu vaccine. Rather, the discharge summary indicates that Ms.

D’Esposito was infected by pneumococcal bacteria, suffered bilateral pneumonia,

and died from congestive heart failure.

After the law firm received the discharge summary, CHC-C accepted the

case pending estate documents. Over the next month, an attorney and a paralegal

often communicated with Ms. Chuisano about estate documents. On February 26,

2007, the law firm received “admin of estate docs.” See exhibit 20.

Within two weeks, a paralegal was requesting medical records. The

paralegal’s active pursuit of medical records in March 2007, differs from what was

happening one year earlier. In March 2006, the law firm was waiting for Ms.

Chuisano to get records. By March 2007, however, the responsibility had

switched. CHC-C was attempting to gather records.

By June 2007, the law firm faced a situation in which the statute of

limitations required Ms. Chuisano to file a petition by July 1, 2007.6 See 42

6

At the time, controlling precedent indicated that compliance with the

statute of limitations was a jurisdictional issue and equitable tolling was not

(…continued)

5

U.S.C. § 300aa—16(b) (discussing statute of limitations when the Vaccine Injury

Table is revised); 70 Fed. Reg. 19092, 19093 (discussing deadline for filing

petitions based upon the influenza vaccine).7 Consequently, the law firm prepared

a skeletal petition and filed it on Ms. Chuisano’s behalf.

Before the law firm submitted the petition, which the Clerk’s Office filed on

June 28, 2007, CHC-C had obtained some medical records about Ms. D’Esposito.

As mentioned above, on December 21, 2006, Ms. Chuisano provided the law firm

with the discharge summary. On March 28, 2007, the law firm received medical

records from Bayshore Allergy Group. On April 24, 2007, the law firm received

medical records from East Islip Medical Associates. These medical records were

not submitted in conjunction with the June 28, 2007 petition. The law firm also

did not include an affidavit describing efforts to obtain missing documents.

The law firm’s timesheets do not indicate any attorney reviewed these

medical records before the petition was filed. The records from Bayshore Allergy

Group told the attorney that in February 2004 (approximately eight months before

the flu vaccination), a doctor stated that Ms. D’Esposito required a portable

nebulizer because of “chronic and acute asthma.” Exhibit 4 at 1 (capitalization

changed without notation). The doctor also described Ms. D’Esposito’s

“pulmonary disease” as “very unstable.” Id.

The discharge report, as discussed previously, informed the attorney that Ms.

D’Esposito was admitted to the hospital with pneumonia and initial cultures

indicated an infection with pneumococcal bacteria. The discharge report also

informed the attorney that Ms. D’Esposito experienced congestive heart failure and

adult respiratory distress syndrome before she died. The discharge report does not

link Ms. D’Esposito’s death to the flu vaccine. Exhibit 5 at 4.

permitted. Brice v. Sec'y of Health & Human Servs., 240 F.3d 1367 (Fed. Cir.

2001). In 2011, the en banc Federal Circuit overruled Brice. Cloer v. Sec'y of

Health & Human Servs., 654 F.3d 1322 (Fed. Cir. 2011), cert. denied, 132 S.Ct.

1908 (2012).

7

When the Secretary adds a vaccine, such as the flu vaccine, to the Vaccine

Injury Table, a person may file a petition “not later than 2 years after the effective

date of the revision, except . . . if (1) the vaccine-related death occurred more than

8 years before the date of the revisions of the table.” 42 U.S.C. § 300aa—16(b).

6

CHC-C Work after Filing Petition

Since CHC-C submitted the petition without any medical records, the law

firm continued gathering medical records. To aid that effort, the law firm filed

motions for authorization to issue subpoenas for missing medical records. The law

firm received medical records in the second half of 2007. For example, on October

1, 2007, the law firm received four volumes of records from Good Samaritan

Hospital. Starting in October 2007, the law firm’s paralegal(s) spent hours in

“stage 2” work.8 On November 26, 2007, CHC-C submitted a compact disc

containing five exhibits, including the records from Bayshore Allergy Group

(exhibit 4) and East Islip Medical Associates (exhibit 2). These exhibits exceed

2,000 pages, of which most come from Good Samaritan Hospital.

On May 30, 2008, the Secretary filed her report pursuant to Vaccine Rule 4.

The Secretary noted pertinent events in Ms. D’Esposito’s medical history,

including her multiple respiratory infections in 2002 through 2004; another

respiratory infection on September 27, 2004, which was about two weeks before

her flu vaccination on October 12, 2004; and the events recorded during Ms.

D’Esposito’s final hospitalization. In recounting Ms. D’Esposito’s history, the

Secretary argued that “[t]he death certificate constitutes a powerful piece of

evidence concerning the cause of death in this case. The death certificate lists that

Ms. D’Esposito died as a consequence of adult respiratory distress syndrome due

to pneumococcal pneumonia and sepsis.” Resp’t Rep’t at 7. In her analysis, the

Secretary maintained that “none of her treating physicians ascribe Ms.

D’Esposito’s death to her receipt of the flu vaccine, although they were clearly

8

Although not specifically explained in Ms. Chuisano’s case, her attorneys

in another case explained that a “stage 2” memo is a “comprehensive, detailed,

accurate, and complete summary of a petitioner’s past medical and/or educational,

rehabilitation, physical therapy, psychological, or similar records.” Hawkins v.

Sec'y of Health & Human Servs., No. 00-646V, 2007 WL 5159581, at *1 (Fed. Cl.

Spec. Mstr. April 30, 2007). While Ms. Chuisano’s case was pending, another

special master “reduce[d]all billing entries labeled merely ‘stage 2’ by 50 percent

both because [she] [had] no idea how much of these entries [was] indeed billable,

and to encourage counsel to document properly their billing hours in the future.”

Calise v. Sec'y of Health & Human Servs., No. 08-865V, 2011 WL 2444810, at *7

(Fed. Cl. Spec. Mstr. June 13, 2011).

7

aware that she had received a recent flu shot.” Id. at 9. The Secretary’s position

was that “the medical records document that Ms. D’Esposito’s unfortunate demise

was the result of complications of sepsis stemming from infections, with

pneumonia from streptococcus pneumoniae as the initial presenting infection.” 9

Id. at 8. Ultimately, the Secretary recommended that compensation was not

appropriate.

After the Secretary’s report, CHC-C reinitiated the expert search. The law

firm consulted Dr. Rosenstreich. During an October 28, 2008 status conference,

Ms. Chuisano’s attorney represented that the firm intended to retain an

immunologist to present an expert report. The ensuing order set a December 30,

2008 deadline for this report.

CHC-C requested and received additional time to file an expert report.

During this time, Ms. Chin-Caplan, one of Ms. Chuisano’s attorneys, was taking

the lead in researching different ideas about how a flu vaccine could have caused

Ms. D’Esposito’s death. Eventually, the law firm sent a letter, which is at least

three single-spaced pages long, to Dr. Yehuda Shoenfeld. Dr. Shoenfeld, an

internationally known immunologist, has appeared on behalf of petitioners in many

cases in the Vaccine Program.

On May 20, 2009, Ms. Chin-Caplan spent 0.6 hours reviewing “draft expert

report.” Two days later, she spent 0.2 hours in a phone call with the expert.

Additional emails among Ms. Chin-Caplan, a paralegal, and Dr. Shoenfeld were

sent in June and July 2009.

On July 13, 2009, the deadline for filing an expert report, Ms. Chuisano filed

her fourth motion for additional time to file an expert report. Ms. Chuisano

represented that her attorneys had “recently received a preliminary opinion from

Dr. Shoenfeld” and they required “additional time to discuss Dr. Shoenfeld’s

opinion with the petitioner.” Ms. Chuisano requested an additional 30 days.

There were more communications. Ms. Chin-Caplan emailed Dr. Shoenfeld.

Ms. Chin-Caplan wrote memos and a paralegal reviewed them. Ms. Chin-Caplan

9

The Secretary also argued that the flu vaccine could not have contributed to

the infections that led to sepsis because “[t]he flu vaccine does not contain live

virus [and] cannot cause flu infection.” Id.

8

and the paralegal met. Ms. Chin-Caplan telephoned Ms. Chuisano. The result was

that the firm sent Ms. Chuisano a “reject letter.” See entries for August 10 & 17,

2008.

On August 17, 2009, Mr. Homer filed a motion to withdraw as counsel of

record. This motion asserted, incorrectly, that Ms. Chuisano “has entered her

appearance as pro se petitioner.” There was no action on this motion. On August

18, 2009, a paralegal spent 1.5 hours copying “all case materials, orders, exhibits,

pleadings, etc for client.”

In October and November 2009, CHC-C provided materials to Mr. Moxley

for his review. On November 16, 2009, Mr. Homer filed a motion to substitute

Mr. Moxley as attorney of record pursuant to Vaccine Rule 14(c). The Clerk’s

Office acted on this motion. See Rule 83.1(c)(4) of Rules of the Court of Federal

Claims.

CHC-C stopped representing Ms. Chuisano on November 16, 2009. As of

this date, the law firm (attorneys, paralegals and law clerks) had spent

approximately 190 hours in representing her.10

Mr. Moxley’s Work in the Merits Phase11

On the day after CHC-C filed their motion to withdraw, Mr. Moxley had his

“initial case consult.” The consultation was with Ms. Chin-Caplan.12 (The

timesheet does not reference Ms. Chuisano.) In September and October 2009, Mr.

Moxley or his paralegal spent some time reviewing case materials provided by

10

CHC-C continued to monitor Ms. Chuisano’s case through the court’s

electronic docket and, later, spent time preparing the pending fee application.

11

The source of information about Mr. Moxley’s activities is his timesheet,

which was submitted as exhibit 10.

12

CHC-C’s timesheets do not include an entry for Ms. Chin-Caplan on

August 18, 2009. However, Ms. Chin-Caplan records that she spoke to a “new

attorney” on October 19, 2009.

9

CHC-C. Mr. Moxley’s review specifically included Ms. Chin-Caplan’s “letter re:

medical theories.” He had a telephone conference with Ms. Chin-Caplan on

October 19, 2009.

Mr. Moxley became counsel of record on November 16, 2009. See docket

entry 38. After Mr. Moxley became counsel of record, a paralegal in his office

sent records to Dr. Levin in December 2009. In April 2010, Mr. Moxley twice

emailed Dr. Levin. There are no other mentions of communications with Dr.

Levin in Mr. Moxley’s timesheet.

In September 2010, an order was issued requiring Ms. Chuisano to file a

status report by October 29, 2010. In the ensuing status report, Ms. Chuisano

stated that Mr. Moxley “has been actively seeking a medical expert to support the

causation syllogism required by the Vaccine Act.”13 Ms. Chuisano also

represented that she was pursuing a theory in which the “flu virus has been

observed to disrupt the molecular processes of the immune system, and to promote

a synergistic effect whereby other infections have a greater opportunity. Fatal

pneumonia, for instance, is made much more likely.” The status report stated that

Mr. Moxley had not found an expert to provide this opinion.

Additional status reports were filed on December 1, 2010, and January 31,

2011. Another status conference was held on February 15, 2011. Ms. Chuisano

was ordered to file an expert report by May 16, 2011, or to file a motion for a

ruling on the record. Order, filed Feb. 15, 2011.

Ms. Chuisano filed a motion for a ruling on the record on May 16, 2011. A

decision finding that Ms. Chuisano had not met her burden of proof was issued on

May 18, 2011. A judgment concluding the merits phase of Ms. Chuisano’s case

was entered on June 20, 2011.

13

Mr. Moxley’s timesheets do not include any activity in the case from

September 27, 2010 (email regarding a status report deadline) to December 1,

2010.

10

Application for Attorneys’ Fees and Costs and Related Pleadings

Still represented by Mr. Moxley, Ms. Chuisano filed the pending application

for attorneys’ fees and costs on December 16, 2011. Ms. Chuisano sought an

award for work performed by Mr. Moxley and by her former attorneys at CHC-C.

In response, the Secretary argued that the special master should deny the

application “in whole.” Resp’t Opp’n at 1. The Secretary argued that “[b]ased on

the information in the record, no reasonable basis existed for the filing or

maintaining of the petition in this case.” Id. at 3. The Secretary’s argument that no

reasonable basis existed was premised upon an assertion that “[t]o have a

‘reasonable basis,’ petitioner’s vaccine injury claim must, at a minimum, be

supported either by the medical records submitted with the petition or by a medical

opinion.” Id. at 4 (citing 42 U.S.C. § 300aa—13(a)(1)). The Secretary also

implied that Ms. Chuisano’s attorneys failed to investigate her claims before they

filed the petition on her behalf. Finally, if the special master were to find that

reasonable basis supported Ms. Chuisano’s petition, the Secretary questioned the

amount requested in attorneys’ fees and costs. Id. at 11-12.

Ms. Chuisano filed two reply briefs, one drafted by CHC-C and one drafted

by Mr. Moxley. CHC-C’s brief discusses reasonable basis extensively. According

to this brief, Ms. Chuisano’s case was supported by reasonable basis because Ms.

Chin-Caplan researched the scientific material. The brief contains a lengthy

quotation of a letter Ms. Chin-Caplan wrote to Dr. Shoenfeld in which Ms. Chin-

Caplan set forth her ideas about how the flu vaccine could have contributed to Ms.

D’Esposito’s death. Exhibit 15 at 8-12.14 For his part, Mr. Moxley stated, without

any citation to evidence, that an expert validated Ms. Chin-Caplan’s theory. Both

law firms defended the amounts requested. Both law firms also increased the

amount they were requesting in attorneys’ fees to account for the time spent in

addressing the Secretary’s objections.

The Secretary filed a response and continued to argue that the case lacked a

reasonable basis. The Secretary specifically challenged Ms. Chuisano’s reliance

on Ms. Chin-Caplan’s letter: “Petitioner’s counsel’s own unsupported medical

14

The record does not contain a complete copy of Ms. Chin-Caplan’s letter

to Dr. Shoenfeld.

11

theory does not suffice to give a reasonable basis to petitioner’s claim.” Resp’t

Reply, filed May 18, 2012, at 2.

On September 20, 2012, a decision awarding attorneys’ fees and costs was

issued. This decision held that the looming expiration of the statute of limitations

was a factor in considering whether Ms. Chuisano’s case was supported by

reasonable basis when CHC-C represented her. In this context, the September 20,

2012 decision remarked that neither party had cited earlier special masters’

decisions that had liberally construed the reasonable basis requirement and noted

that “[t]he Secretary’s view about the correctness of [those] cases . . . would have

been helpful.” Slip. op. at 12. Given this holding, “Ms. Chuisano [met] a standard

for filing petitions on the eve of a deadline set by the statute of limitations.” Slip.

op. at 20. The reasonable basis extended for gathering medical records and

seeking an expert.

Because there was reasonable basis when CHC-C represented Ms. Chuisano,

the September 20, 2012 decision awarded Ms. Chuisano reasonable compensation

for CHC-C’s work. While most of the requested fees and costs were reasonable,

the September 20, 2012 decision reduced fees by $7,140 and costs by $950.

On the other hand, the September 20, 2012 decision interpreted Perreira v.

Sec’y of Health & Human Servs., 33 F.3d 1375, 1377 (Fed. Cir. 1994), as

permitting a special master to find that reasonable basis may be lost. Given this

holding, the September 20, 2012 decision found that reasonable basis ceased to

exist after Dr. Shoenfeld refrained from giving a favorable opinion. Once

reasonable basis was lost, Ms. Chuisano was no longer eligible for an award of

attorneys’ fees. Consequently, Ms. Chuisano was not awarded any amount of

attorneys’ fees for Mr. Moxley’s work. Slip. op. at 17-21.

On October 11, 2012, Ms. Chuisano, whom Mr. Moxley still represented,

filed a motion for reconsideration. She requested that: (1) the September 20, 2012

decision be vacated; and (2) the special master issue a new decision, awarding

compensation for Mr. Moxley’s work. The primary argument was that the

reasonable basis, which the September 20, 2012 decision had found for the earlier

phase of the case, persisted. An October 15, 2012 order granted Ms. Chuisano’s

12

motion in part, by withdrawing the September 20, 2012 decision.15 The October

15, 2012 order deferred re-examination of the substantive issues until the parties

filed additional briefs.

The Secretary’s response contained two parts. First, the Secretary argued

that the special master was correct in finding no reasonable basis when Mr.

Moxley represented Ms. Chuisano. Second, the Secretary also argued that the

special master erred in finding reasonable basis when CHC-C represented Ms.

Chuisano. The Secretary argued the statute of limitations should not affect

reasonable basis. Under the Secretary’s proposed interpretation of reasonable

basis, Ms. Chuisano never had a reasonable basis and, therefore, the special master

could not award compensation for CHC-C’s work.

Briefs were accepted from both Mr. Moxley and CHC-C. On behalf of Ms.

Chuisano, Mr. Moxley argued that the language in Perreira on which the

September 20, 2012 decision relied was dicta, and not controlling.

CHC-C made essentially three arguments. First, CHC-C argued the

Secretary waived the right to contest CHC-C’s fees because the Secretary had not

filed a motion for reconsideration. Second, CHC-C said it was reasonable for the

law firm to investigate Ms. Chuisano’s claim. Third, CHC-C challenged the

reductions to its fees and costs made in the September 20, 2012 decision. The

Secretary addressed CHC-C’s argument that she had waived her arguments in a

brief filed on January 25, 2013.

At that time, the Supreme Court was considering a case involving the

availability of attorneys’ fees in the Vaccine Program, Sebellius v. Cloer.

Consequently, adjudication of the attorneys’ fees application was deferred until

after the Supreme Court issued its decision, which it did on May 20, 2013. 133

S.Ct. 1886 (2013), aff’g Cloer v. Sec’y Health & Human Servs., 675 F.3d 1358

(Fed. Cir. 2012) (en banc).

15

Because the September 20, 2012 decision was withdrawn, neither party

could file a motion for review. See Vaccine Rule 10(e) (discussing motions for

reconsideration).

13

The parties (and CHC-C) were given an opportunity to file briefs regarding

Cloer. Mr. Moxley filed a brief and the Secretary filed a brief. With those

submissions, the application for attorneys’ fees is again ready for adjudication.

ANALYSIS

Scope of Reconsideration

The preliminary question is what issues can be reconsidered? After the

October 15, 2012 order granted Mr. Moxley’s motion for reconsideration with

respect to Mr. Moxley’s fees, may the Secretary challenge the fees awarded to

CHC-C?

Under the particular rules of the Vaccine Program, the answer is yes. As

argued in the Secretary’s January 25, 2012 reply, Vaccine Rule 10(e) states: “[t]he

decision, once withdrawn, becomes void for all purposes and the special master

must subsequently enter a superseding decision.”

As a consequence of the withdrawal, it is as if the September 20, 2012

decision never issued. Because the original December 16, 2011 fee application

remains unadjudicated, all questions remain open. Consequently, this decision

must resolve whether the claim in Ms. Chuisano’s petition was supported by

reasonable basis at any time. The analysis of this question begins by reviewing the

relevant statutory provisions, followed by a discussion of the meaning of

“reasonable basis.” Thereafter, the application from CHC-C and the application

from Mr. Moxley are considered separately.

Meaning of Reasonable Basis

I. Statutory Scheme for Filing Petitions and Recovering Attorneys’ Fees

Congress created the Vaccine Program with at least two provisions that

make the Vaccine Program different from traditional litigation. At the beginning

of the case, when petitioners file their petition, they are required to submit

evidence supporting their claim for compensation. At the end of the case,

petitioners who have not received compensation remain eligible for an award of

attorneys’ fees and costs.

The Secretary’s arguments against Ms. Chuisano’s eligibility for attorneys’

fees and costs involve both the provisions regarding the filing of petitions and the

14

meaning of the term “reasonable basis.” It is the Secretary’s argument that “no

reasonable basis existed for the filing or maintaining of the petition in this case.”

Resp’t Opp’n, filed Feb. 17, 2012, at 3. For this reason, the analysis begins with a

review of what the statute says about filing petitions.

A. Filing Petitions

The process for filing a case in the Vaccine Program is unusual. The

Vaccine Act states:

A petition for compensation under the Program for a

vaccine-related injury or death shall contain

(1) except as provided in paragraph (3), an affidavit, and

supporting documentation demonstrating [five elements,

which are discussed below].

42 U.S.C. § 300aa—11(c). The next paragraph further specifies that the petition

shall contain “vaccination records associated with the vaccine allegedly causing

the injury, pre- and post-injury physician or clinic records.” Section 11(c)(2).

Paragraph (3) of section 11(c) permits the petitioner to submit a statement

identifying those records that were “described in paragraph (1) or (2) which are

unavailable to the petitioner and the reasons for their unavailability.”16

16

The Court of Federal Claims has further defined these requirements.

Vaccine Rule 2 provides, in relevant part:

(c) Contents of a Petition

(1) The Petition. The petition must set forth:

(A) a short and plain statement of the grounds for an award of

compensation, including:

***

(2) Required Attachments. As required by 42 U.S.C. § 300aa—11(c),

the petition must be accompanied by the following documents:

(A) Medical Records. The petitioner must include all available

medical records supporting the allegations in the petition,

including physician and hospital records relating to:

***

(ii) the injury, or death, . . .

(…continued)

15

By its express terms, section 11(c) requires “supporting documentation”

(paragraph 1) and “records” (paragraph 2). The statute uses the term “shall,”

which is usually interpreted as a mandatory provision. See Hellebrand v. Sec'y of

Health & Human Servs., 999 F.3d 1565, 1570 (Fed. Cir. 1993) (distinguishing

“shall” from “may”). This requirement is made more emphatic in paragraph 3 in

which Congress stated that when those records were not available, the petitioner

needed to submit a statement, explaining why those documents were not

available.17

In addition to stating that the petition shall contain documentary evidence,

the statute indicates what those documents should contain. Section 11(c) states

that the petition “shall contain . . . supporting documentation demonstrating”

various elements. To understand what the phrase “supporting documentation

demonstrating” means, consulting a dictionary is permitted. See Hervey v. Sec'y

of Health & Human Servs., 88 F.3d 1001, 1002 (Fed. Cir. 1996) (using dictionary

to define a term in the Vaccine Act). The root of the term “supporting,” “support,”

means “to provide corroborating evidence for.” The American Heritage Dictionary

p. 1222 (2d College ed. 1985). The term “demonstrating” means “to prove or

make evident by reasoning or adducing evidence.” Id. at 380. Thus, in the

statutory scheme designed by Congress, the petition shall contain documents

providing evidence for the claim made in the petition.

(iii) any post-vaccination treatment of the injured person,

including all in-patient and out-patient records, provider

notes, test results, and medication records;

(B) Affidavits.

(i) If the required medical records are not submitted, the

petitioner must include an affidavit detailing the efforts

made to obtain such records and the reason for their

unavailability.

17

By this exception, Congress acknowledged that petitions could be

supplemented with medical records. See Stewart v. Sec'y of Health & Human

Servs., No. 02-819V, 2002 WL 31965743, at *6 (Fed. Cl. Spec. Mstr. Dec. 30,

2002).

16

Section 11(c)(1), in turn, is referenced in the section that defines when a

petitioner is entitled to compensation. That provision states that the petitioner is

awarded compensation when, in relevant part, “the petitioner has demonstrated by

a preponderance of the evidence the matters required in the petition by section

300aa-11(c)(1) of this title.” 42 U.S.C. § 300aa—13(a)(1); accord Massing v.

Sec'y of Health & Human Servs., 926 F.2d 1133, 1135 (Fed. Cir. 1991) (“Section

13(a)(1)(A) requires that petitioners prove the matters set forth in § 11(c)(1) by a

preponderance of the evidence”).

As mentioned previously, there are five “matters required” in section

11(c)(1). These correspond to paragraphs (A) through (E). To be entitled to

compensation, petitioner must establish all these elements by a preponderance of

the evidence. 42 U.S.C. § 300aa—13(a)(1).

Of those five elements, the most commonly contested element is (C), which

concerns causation. The statute creates two methods of establishing causation.

The first is to show that the person suffered an injury listed on the Vaccine Injury

Table. With the Vaccine Injury Table, causation is presumed and the person is

entitled to compensation unless the Secretary shows something else caused the

injury. Shalala v. Whitecotton, 514 U.S. 268, 270-71 (1995). The second route,

which is the one taken by Ms. Chuisano, is for injuries not listed on the Vaccine

Injury Table. For those cases, the petitioner must show that a vaccine caused the

injury. Section 11(c)(1)(C)(ii)(I). These are often called “causation-in-fact” cases.

See Moberly v. Sec'y of Health & Human Servs., 592 F.3d 1315, 1321 (Fed. Cir.

2010); Capizzano v. Sec'y of Health & Human Servs., 440 F.3d 1317, 1324 (Fed.

Cir. 2006).

By the time Ms. Chuisano filed her petition in 2007, the elements of a

causation-in-fact case were established. The Federal Circuit summarized those

elements in Althen v. Sec'y of Health & Human Servs., 418 F.3d 1274, 1278 (Fed.

Cir. 2005).

Althen also discussed what type of evidence petitioners could use to

establish those elements. To be entitled to compensation, petitioners need to

substantiate their claim with “medical records or medical opinion.” (emphasis in

original). Id. at 1279 (citing section 13(a)(1)). “Medical records” and “medical

opinion” stand in contrast to opinions expressed by a petitioner. A petitioner’s

own statement is not a sufficient basis to award compensation. 42

U.S.C. § 300aa—13(a)(1) (a special master may not award compensation “based

17

on the claims of a petitioner alone, unsubstantiated by medical records or by

medical opinion”).

In sum, with respect to the initial filing, the Vaccine Act is fairly demanding.

Unlike a system in which pleadings are adequate when they provide fair notice, a

petition in the Vaccine Act “shall contain . . . supporting documentation.”

Congress’s requirement for a comprehensive petition is the foundation for much of

the Vaccine Program. For example, Congress expected that special masters would

decide a case within 240 days of its filing. See 42 U.S.C. § 300aa—12(d)(3)(A).

This expeditious case processing, to which appellate authorities refer, see

Whitecotton, 514 U.S. at 269; Widdoss v. Sec'y of Health & Human Servs., 989

F.2d 1170, 1172 (Fed. Cir. 1993) (discussing legislative history), cannot occur

when petitioners do not present a comprehensive case initially.

As discussed below, there is not any serious dispute that Ms. Chuisano failed

to present documents supporting a claim that the flu vaccine contributed to her

mother’s death. The more contentious issue is whether Ms. Chuisano can,

nevertheless, satisfy the standard for awarding a non-prevailing petitioner

attorneys’ fees. The criteria for being awarded attorneys’ fees are discussed next.

B. Statutory Basis for Awarding Attorneys’ Fees in the

Vaccine Program

Under the “American rule,” each litigant pays the fees of his (or her)

attorney. Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240 (1975).

Congress, in some contexts, has altered this rule by allocating the costs of litigation

differently. Most fee-shifting statutes authorize awards to a “prevailing party” and

do not authorize awards to those parties that do not prevail. Buckhannon Bd. &

Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 603

(2001). Effectively, for most fee-shifting statutes, there are two groups of litigants:

prevailing parties and non-prevailing parties.

Eligibility for attorneys’ fees pursuant to the Vaccine Act is different, or, in

the words of the Supreme Court, “unusual.” Cloer, 133 S.Ct. at 1891. The

relevant statutory provision, 42 U.S.C. § 300aa—15(e), creates three classes. 18

18

The statute provides:

(…continued)

18

The first class is the group of petitioners who are prevailing parties in that they are

awarded compensation. For these successful petitioners, an award of reasonable

attorneys’ fees is mandatory. The second class is the group of petitioners who are

not awarded compensation but, nonetheless, acted in good faith in bringing their

petition and had a reasonable basis for the claim for which they brought their

petition. For these unsuccessful petitioners, an award of attorneys’ fees is

discretionary. The final class of petitioners is the group of petitioners who are not

awarded compensation and who cannot demonstrate that their claims were filed in

good faith and with a reasonable basis. See Austin v. Sec'y of Health & Human

Servs., No. 10-362V, 2013 WL 659574, at *7 (Fed. Cl. Spec. Mstr. Jan. 31, 2013)

(recognizing three groups of petitioners).

Congress’s creation of a class of petitioners who are eligible for attorneys’

fees when they have not received compensation makes more petitioners eligible for

awards of attorneys’ fees. This expansion reflects a Congressional intent “to

ensure that vaccine injury claimants have readily available a competent bar to

prosecute their claims.” 19 Cloer, 675 F.3d at 1362 (quoting Avera v. Sec'y of

Health & Human Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008)).

In awarding compensation on a petition . . . the special master or court

shall also award as part of such compensation an amount to cover ---

(A) reasonable attorneys’ fees, and

(B) other costs,

incurred in any proceeding on such petition. If the judgment of the

United States Court of Federal Claims on such a petition does not

award compensation, the special master or court may award an

amount of compensation to cover petitioner’s reasonable attorneys’

fees and other costs incurred in any proceeding on such petition if the

special master or court determines that the petition was brought in

good faith and there was a reasonable basis for the claim for which the

petition was brought.

19

Special masters have implemented Congress’s goal of paying attorneys by

always awarding attorneys’ fees upon a finding of reasonable basis. Although

special masters have discretion not to award attorneys’ fees to unsuccessful

petitioners whose cases are supported by a reasonable basis, special masters have

not exercised this discretion to deny attorneys’ fees for cases supported by a

reasonable basis.

19

Despite the goal of promoting attorney participation in the Vaccine Program,

Congress did not authorize awards of attorneys’ fees to all unsuccessful petitioners.

Cf. American Exp. Co. v. Italian Colors Restaurant, 133 S.Ct. 2304, 2309 (2013)

(stating “[n]o legislation pursues its purposes at all costs”); F.T.C. v. Actavis, Inc.,

133 S.Ct. 2223, 2242 (2013) (Roberts, C.J., dissenting) (stating “it should by now

be trite --- and unnecessary --- to say that ‘no legislation pursues its purposes at all

costs’ and that ‘it frustrates rather than effectuates legislative intent simplistically

to assume that whatever furthers the statute’s primary objective must be the law’”)

(emphasis in original). For unsuccessful petitioners, Congress extended attorneys’

fees only to those whose cases were supported by reasonable basis and good faith.

This specific limitation necessarily implies that there are some unsuccessful

petitioners whose cases are not supported by reasonable basis (and therefore not

eligible for attorneys’ fees). See Slattery v. United States, 635 F.3d 1298, 1323

(Fed. Cir. 2011) (en banc) (discussing the canon of statutory construction expressio

unius est exclusion alterius). As the Federal Circuit explained, “Congress must not

have intended that every claimant, whether being compensated or not under the

Vaccine Act, collect attorneys’ fees and costs by merely having an expert state an

unsupported opinion.” Perreira, 33 F.3d at 1377.

The question becomes how to distinguish between the second group of

petitioners (those whose unsuccessful claims are supported by a reasonable basis)

and the third group of petitioners (those whose unsuccessful claims lack reasonable

basis). The distinction depends upon a finding of reasonable basis (or the lack

thereof).

C. Reasonable Basis

The Vaccine Act does not define “reasonable basis” explicitly. Furthermore,

“[n]either the Federal Circuit nor [the Court of Federal Claims] has had occasion to

define the meaning of ‘reasonable basis’ for purposes of fee awards under the

Vaccine Act.” Woods v. Sec'y of Health & Human Servs., 105 Fed. Cl. 148, 153

(2012).20

20

There is a similar absence of guidance from the Federal Circuit and from

the Court of Federal Claims in the form of a rule governing proceedings in the

Vaccine Program. The only Federal Circuit case to consider a special master’s

evaluation of whether reasonable basis supported a claim that a vaccine caused an

(…continued)

20

Without instructions from either the Federal Circuit or the Court of Federal

Claims, the remaining precedents are the decisions of special masters.

Collectively, special masters have not been entirely consistent.21 Rather than

injury is Perreira, 33 F.3d 1375. Perreira, however, did not set a minimum

qualification for reasonable basis or otherwise define the term.

21

For a lengthy history of how reasonable basis has been treated, see Silva

v. Sec'y of Health & Human Servs., No. 10-101V, 2012 WL 2890452, at *9-12

(Fed. Cl. Spec. Mstr. June 22, 2012), motion for review denied, 108 Fed. Cl. 401

(2012). Regardless of the consistency or lack thereof, special masters do not bind

other special masters. Hanlon v. Sec’y of Health & Human Servs., 40 Fed. Cl.

625, 630 (1998), aff’d, 191 F.3d 1344 (Fed. Cir. 1999).

The Secretary has also acted inconsistently. In some cases in which the

petitioner has presented relatively little evidence supporting the claim for which

the petition was brought, the Secretary did not argue against an award of attorneys’

fees. See, e.g., Browning v. Sec’y of Health & Human Servs., No. 02-929, 2010

WL 3943556, at *1, *4 (Fed. Cl. Spec. Mstr. Sept. 27, 2010) (finding that the

petitioner’s claim lacked a reasonable basis after a certain point in the proceedings

despite the fact that the Secretary did not oppose the petitioner’s application for

attorneys’ fees and costs); cf. Savin v. Sec’y of Health & Human Servs., 85 Fed.

Cl. 313, 319 (2008) (holding that “this court cannot subscribe to the notion that,

because respondent failed to object to certain items, the Special Master was

compelled . . . to find [the petitioners’] requests were reasonable, despite obvious

indications to the contrary”). However, the Secretary’s position in those cases

does not estop the Secretary from arguing that the impending expiration of the

statute of limitations should not affect the analysis of reasonable basis. New

Hampshire v. Maine, 532 U.S. 742, 755 (2001) (acknowledging that “broad

interests of public policy may make it important to allow a change of positions that

might seem inappropriate as a matter of merely private interests”) (quoting 18

Wright § 4477, p. 784); see also Heckler v. Cmty. Health Servs. of Crawford City.,

Inc., 467 U.S. 51, 60 (1984) (“[I]t is well settled that the Government may not be

estopped on the same terms as any other litigant.”).

Some of the inconsistency appears to have arisen in cases filed pursuant to

the Omnibus Autism Proceeding. For various reasons, the parties and the special

masters presiding over the cases in the OAP agreed to different procedures to

expedite the processing of more than five thousand cases. The process in the OAP

appears to differ from the process used in this case.

(…continued)

21

attempt to fit Ms. Chuisano’s case into a particular pattern, this decision starts

afresh to address the arguments, particularly the Secretary’s arguments, made in

this case.

Reasonable basis is a standard that petitioners meet by submitting evidence.

The focus on evidence is consistent with the statutory scheme in which Congress

stated a “petition . . . shall contain – (1) . . . supporting documentation” (section

11(c)), and Congress directed special masters, when determining whether to award

compensation to consider “the record as a whole” (section 13(a)(1)). Evaluation of

evidence seems inherent in the function of special masters as judicial officers. Cf.

Althen, 418 F.3d at 1281 (stating “[t]he special master’s role is to assist courts by

judging the merits of individual claims on a case-by-case basis”). If special

masters did not make decisions about reasonable basis based upon evidence, how

would special masters decide? And how would appellate courts review the special

master’s decision when they must do so?

Although the statement that reasonable basis requires evidence may not be

controversial, this statement carries consequences about the method for

determining whether there was reasonable basis for the claim for which the petition

was brought. At the most basic level, a petitioner who submits no evidence would

not be found to have reasonable basis because the petitioner could not meet the

burden of proof needed to establish reasonable basis. See Turpin v. Sec'y of

Health & Human Servs., No. 99–564V, 2005 WL 1026714, at *2 (Fed. Cl. Spec.

Mstr. Feb. 10, 2005) (finding no reasonable basis when petitioner submitted only

one affidavit and no other records); Brown v. Sec'y of Health & Human Servs., No.

99–593V, 2005 WL 1026713, at *2 (Fed. Cl. Spec. Mstr. March 11, 2005) (finding

no reasonable basis when petitioner presented only e-mails between her and her

attorney). As the Court of Federal Claims has explained, a “petitioner must

affirmatively establish a reasonable basis to recover attorneys’ fees and costs.”

McKellar v. Sec'y of Health & Human Servs., 101 Fed. Cl. 297, 304 (2011),

remanded to No. 09-841V, 2012 WL 362030 (Fed. Cl. Spec. Mstr. Jan. 13, 2012),

rev’d without prejudice, 2012 WL 1884703 (Fed. Cl. May 3, 2012).

If reasonable basis requires evidence, the next question is how much

evidence is sufficient? The Vaccine Act does not say, although the Vaccine Act

hints at the meaning. For questions as to whether the petitioner is entitled to

22

compensation, the Vaccine Act specifies that petitioners’ burden is “a

preponderance of the evidence.” 42 U.S.C. § 300aa—13(a)(1). When a petitioner

meets the preponderance of the evidence standard, the petitioner is entitled to

compensation, and when the petitioner is entitled to compensation, that

compensation “shall” include reasonable attorneys’ fees. 42 U.S.C. § 300a—

15(e)(1).

In addition to mandating an award of attorneys’ fees when the petitioner is

entitled to compensation (which is another way of saying that a preponderance of

evidence supports petitioner’s claim), section 15 states a “special master . . . may

award” attorneys’ fees under a different circumstance. This alternative

circumstance is “good faith and reasonable basis.” Because reasonable basis is an

alternative way to become eligible for attorneys’ fees, reasonable basis to support a

claim cannot be based upon the same (preponderance of the evidence) standard.

See Walton v. United States, 551 F.3d 1367, 1370 (Fed. Cir. 2009) (“When

Congress uses different parallel words in the alternative in the same statutory

provision, it is reasonable to assume that the words have different meanings.”).

Thus, “reasonable basis” as contemplated in the Vaccine Act must require an

evidentiary showing of something less than a preponderance of the evidence.

What is this evidentiary standard? It is difficult to answer because the

common law does not set the burden of persuasion lower than a preponderance.22

When Congress has not defined an evidentiary threshold, the judiciary may fill this

gap. Steadman v. Securities Exchange Comm’n, 450 U.S. 91, 95 (1981)

(interpreting Administrative Procedure Act).

In the absence of a Federal Circuit instruction, it may be easier to define

reasonable basis in terms of what it is not. 23 Reasonable basis requires presenting

22

Two other frequently used evidentiary standards, clear and convincing as

well as beyond a reasonable doubt, are more demanding than the preponderance of

the evidence standard.

23

One possible evidentiary standard is the “substantial evidence” test. The

Federal Circuit uses the substantial evidence test to determine whether a fact-

finder’s factual determinations should be upheld. See, e.g., In re Gartside, 203

F.3d 1305, 1315 (Fed. Cir. 2000)

Although a standard typically used in appellate review may seem to be an

awkward fit as the standard for a special master to use in determining reasonable

(…continued)

23

more than evidence showing only that the vaccine preceded the onset of the injury

for which the petitioner seeks compensation.

While timing is needed, timing alone is not sufficient to establish reasonable

basis for two reasons. First, as a matter of law and logic, a sequence of events does

not establish causation. An assertion that a vaccine caused an injury because the

vaccine preceded the injury is an example of the logical fallacy known as “post hoc

ergo propter hoc.” The Federal Circuit incorporated this principle into Vaccine

Program jurisprudence when it declared, more than 20 years ago, that “‘[t]he

inoculation is not the cause of every event’” that follows it. Grant v. Sec'y of

Health & Human Servs., 956 F.2d 1144 (Fed. Cir. 1992) (quoting Hasler v. United

States, 718 F.2d 202, 205 (6th Cir. 1983)).

Second, if timing alone were adequate, then the Congressional scheme

would be frustrated. Congress did not guarantee payment of reasonable attorneys’

fees in all unsuccessful cases. By making eligibility for fees conditional upon a

finding of reasonable basis, Congress must have expected that some unsuccessful

cases would not be awarded attorneys’ fees. If presenting evidence showing a

temporal sequence in which a vaccine preceded an injury were enough to move

cases from the third category (unsuccessful and no reasonable basis) to the second

category (unsuccessful but supported by reasonable basis), then the third category

practically would be rendered a nullity. It would be a very rare case in which the

sequence between vaccine and injury were backwards.24

basis in the first instance, the unusual circumstances in which Congress has

authorized an award of attorneys’ fees to a non-prevailing party may justify

resorting to the substantial evidence standard. Whether the substantial evidence

standard (or some other measure) accurately reflects Congress’s intent is for an

appellate court. See Althen, 418 F.3d at 1280 (stating “[t]he special master’s role

is to apply the law.”).

24

Occasionally, a petitioner may have a subclinical disease (like multiple

sclerosis) and develop overt manifestations after vaccination. See W.C. v. Sec’y of

Health & Human Servs., No. 07-456, 2011 WL 4537877 (Fed. Cl. Spec. Mstr. Feb.

22, 2011), mot. for rev. denied in relevant part, 100 Fed. Cl. 440 (2011), aff’d, 704

F.3d 1352 (Fed. Cir. 2013). The petitioner’s absence of symptoms before vaccine

may give the petitioner a reasonable belief that the vaccine caused the symptoms

(and, therefore, the disease) that arose after the vaccine.

24

For these reasons, evidence showing a sequence in which vaccination

precedes injury is one step toward satisfying the reasonable basis standard. But,

simple evidence of temporality, by itself, is not enough. Whether CHC-C believes

that a basic chronology of events in which the vaccination preceded the onset of a

disease qualifies as reasonable basis is not known because CHC-C has not

proposed any interpretation of reasonable basis.25

Consistent with her earlier briefing, the Secretary maintains “[t]o have a

‘reasonable basis,’ petitioner’s vaccine injury claim must, at a minimum, be

supported either by the medical records submitted with the petition or by a medical

opinion. 42 U.S.C. §300aa-13(a)(1).” Resp’t Resp., filed December 12, 2012, at 4.

According to the Secretary, “it is insufficient for the Special Master to find simply

that Ms. Chuisano’s case possessed a reasonable basis because her attorneys acted

reasonably in filing the claim to avoid the expiration of the Act’s statute of

limitations.” Id. The remainder of the Secretary’s response develops the argument

that the statute of limitations does not affect the reasonable basis analysis.

The Secretary’s arguments are persuasive for four reasons. First, there is the

language of the statute. See Cloer, 654 F.3d at 1330 (“Our analysis must begin

with the plain language of the statute.”). Congress required an unsuccessful

25

The lack of assistance from CHC-C about the meaning of reasonable basis

continues a distressing pattern. The Secretary’s response to the initial fee

application argued that Ms. Chuisano never established reasonable basis. Resp’t

Opp’n, filed Feb. 12, 2012, at 4-10. CHC-C’s reply provided no argument about

the meaning of reasonable basis. See exhibit 15. The withdrawn September 20,

2012 Fees Decision observed: “[i]n her briefs, Ms. Chuisano does not furnish an

interpretation of “reasonable basis,” although her application for attorneys’ fees

and costs is premised upon her meeting that criterion.” Slip op. at 11. This

statement should have alerted CHC-C that the law firm should set forth its views.

When the Secretary responded to Mr. Moxley’s motion for reconsideration,

the Secretary focused most of her arguments on the perceived error in finding that

Ms. Chuisano’s cases had a reasonable basis. Resp’t Resp. , filed Dec. 17, 2012, at

3-7. CHC-C was permitted to respond. However, CHC-C did not directly address

the Secretary’s argument that the statute of limitations should not affect the

determination of whether reasonable basis supported the claim for which Ms.

Chuisano filed her petition. See CHC-C Reply, filed January 11, 2013.

25

petitioner to establish “a reasonable basis for the claim for which the petition was

brought.” 42 U.S.C. 300aa-§ 15(e)(1). The mention of “the petition” encompasses

the supporting documentation described in section 11. See Cloer, 133 S.Ct. at

1894 (rejecting the Secretary’s interpretation of the statute due to a lack of cross-

reference between two sections of the Vaccine Act) (quoting Bates v. United

States, 522 U.S. 23, 29-30 (1997)) (“[W]here Congress includes particular

language in one section of a statute but omits it in another section of the same Act,

it is generally presumed that Congress acts independently and purposefully in the

disparate inclusion or exclusion.”) (internal quotations omitted). Thus, reasonable

basis is linked to “the claim” contained in the petition, not the petition itself.26

Second, for the reasons explained above, petitioners meet their burden by

presenting evidence. To be relevant to the reasonable basis analysis, the evidence

must support “the claim for which the petition was brought.” The procedural

history of a case, including information about when a case was filed, is typically

not evidence relating to whether a vaccine caused any harm. For example, the fact

that CHC-C filed Ms. Chuisano’s petition on June 28, 2007, did not affect the

outcome of whether Ms. Chuisano received compensation. The case was

dismissed because Ms. Chuisano did not meet her burden of proof. Assuming the

same evidentiary record, this outcome would have been the same if CHC-C had

filed the petition one year earlier. The case of a petitioner rises or falls on the

strength or weakness of evidence. CHC-C has not shown why the same method of

analyzing evidence should not determine whether the attorney is compensable.

Third, consideration of the statute of limitations ultimately may result in

disparate treatment. More than five years ago, a special master identified a tension

between, on the one hand, compensating attorneys who file petitions shortly before

the expiration of the statute of limitations without adequately investigating the

assertions contained in the petition, and, on the other hand, requiring attorneys to

obtain adequate support for the claims in the petition. See Lamar v. Sec'y of

Health & Human Servs., No. 99-583V, 2008 WL 3845165, at *4 n.13 (Fed. Cl.

Spec. Mstr. July 30, 2008) (stating “our cases interpreting the good faith and

reasonable basis requirements leniently encourage ‘gaming the system’ by failing

to require counsel to adequately investigate and substantiate the petition at the

26

Conceivably, Congress could have said “a reasonable basis for filing the

petition.” That formulation connects reasonable basis to filing. But, Congress did

not use that language to express its intent.

26

outset”). The Secretary’s brief explains how attorneys may fare differently,

depending on whether they abide by the statutory requirement to submit petitions

with “supporting documentation”:

A policy of promoting payment to those attorneys who

file claims without a reasonable basis because the [statute

of limitations] prevented a thorough pre-filing

investigation, ultimately treats similarly situated

claimants unequally. In other cases, if, after doing the

required pre-filing analysis, a petitioner’s counsel

concludes his client’s case lacks a reasonable basis, it is

clear that he cannot proceed to file the petition in order to

recover Program funds for his time and expense in

performing the initial investigation. This loss of time,

real as it may be, is the “cost of doing business.”

If Congress did not intend to compensate attorneys

for meritless claims, the same result should hold true for

all cases that lack a reasonable basis, including those

where the bulk of petitioner’s counsel’s investigation and

claim analysis occurs after the filing of the petition.

Resp’t Resp. at 6-7. CHC-C did not address this argument. The lack of response

from CHC-C is particularly unfortunate because the Federal Circuit has

emphasized the need to treat petitioners equally. Figueroa v. Sec'y of Health &

Human Servs., 715 F.3d 1314, 1317-18 (Fed. Cir. 2013) (citing Cloer, 654 F.3d at

1340).

Fourth, changing the reasonable basis standard simply because a petitioner

filed close to the statute of limitations is tantamount to giving that petitioner a

presumption that reasonable basis exists. See Hamrick v. Sec'y of Health &

Human Servs., No. 99-683V, 2007 WL 4793152 (Fed. Cl. Spec. Mstr. Nov. 19,

2007). However, the Court of Federal Claims has stated “there is no presumption

of a petitioner’s reasonable basis.” McKellar, 101 Fed. Cl. at 304.

All these reasons support the Secretary’s argument that the method for

determining whether petitioners have met their burden regarding reasonable basis

should not include consideration of the statute of limitations. As mentioned

previously, CHC-C did not offer any reasons why the statute of limitations should

matter.

27

Possibly, CHC-C could have raised two (overlapping) arguments based in

policy. First, CHC-C could have maintained that special masters have adopted a

policy of compensating attorneys who are compelled to file petitions shortly before

the expiration of the statute of limitations. Examples of cases following this policy

include McNett v. Sec’y of Health & Human Servs., No. 99-684V, 2011 WL

760314, at *8 (Fed. Cl. Spec. Mstr. Feb. 4, 2011), and Hamrick, 2007 WL

4793152, at *5 (giving petitioners’ attorneys “the benefit of the doubt when they

file[d] a petition just before the statute of limitations expire[d]”).

However, decisions of special masters have precedential force only to the

extent that those decisions contain persuasive reasoning. See Hanlon, 40 Fed. Cl.

at 630; cf. Graves v. Sec'y of Health & Human Servs., 109 Fed. Cl. 579, 590, 596

(2013) (setting aside the long-standing policy of special masters when the policy

was not in accord with the statute). The problem with Hamrick is that the decision

contains relatively little analysis. Although Hamrick stated that reasonable basis

was evaluated based upon the “totality of the circumstances,” the support for that

proposition came from cases interpreting the Equal Access to Justice Act. After

Hamrick, the Court of Federal Claims has rejected importing Federal Circuit

interpretations of EAJA to the Vaccine Program. Masias v. Sec'y of Health &

Human Servs., 106 Fed. Cl. 700, 704 (2012); Morse v. Sec'y of Health & Human

Servs., 93 Fed. Cl. 780, 785 (2010). A specific analysis of the text of the Vaccine

Act indicates that the evaluation of reasonable basis should depend on the presence

of evidence constituting “supporting documentation” for the claim set forth in the

petition.

The second policy-based argument that CHC-C could have made (but did

not make) is that CHC-C should be compensated for its reasonable efforts in

representing Ms. Chuisano simply to encourage attorneys to represent petitioners,

who would otherwise appear pro se. The Federal Circuit cited this policy when it

held petitioners may reject a judgment denying them compensation but still accept

judgment awarding attorneys’ fees. Saunders v. Sec'y of Health & Human Servs.,

25 F.3d 1031, 1035-36 (Fed. Cir. 1994). And the recent en banc decision that

permitted special masters to award attorneys’ fees to petitioners whose cases were

barred by the statute of limitations cited that policy. Cloer, 654 F.3d 1322.

Evaluating these hypothetical policy-based arguments is unnecessary

because neither CHC-C nor Mr. Moxley has raised them on behalf of Ms.

Chuisano. See Vaccine Rule 8(f). Moreover, these arguments must yield when the

statutory language is clear, as it here. See Cloer, 133 S.Ct. at 1895-96. Section

15(e) links “reasonable basis” to the “petition” and section 11(c) links the

28

“petition” to documentation and affidavits. Cloer, 133 S.Ct. at 1896 (“Special

masters consistently make fee determinations on the basis of the extensive

documentation required by § 300aa-11(c) and included with the petition”). Ms.

Chuisano has not offered any argument based on the text of the statute to create a

different standard for reasonable basis when the statute of limitations may bar the

action. While Congress might have enacted a statute creating special standards for

attorneys who did not obtain the “supporting documentation” (section 11(c))

before they filed the petition, Congress did not. Special masters should not add to

the statutory scheme. Beck v. Sec'y of Health & Human Servs., 924 F.2d 1029,

1034 (Fed. Cir. 1991) (“[r]egardless of their merits, these policy arguments may be

implemented only by Congress. Our duty is limited to interpreting the statute as it

was enacted, not as it arguably should have been enacted”).

This decision’s focus on evidence supporting a finding of reasonable basis is

different from the treatment in other cases, partly because the Secretary has argued

more persuasively here. In addition, the outcome is in accord with some of the

relatively few opinions from the Court of Federal Claims addressing reasonable

basis. See, e.g., Silva v. Sec'y of Health & Human Servs., 108 Fed. Cl. 401, 405

(2012) (finding the special master did not abuse his discretion in finding no

reasonable basis when petitioner could not establish that she suffered the injury she

claimed and petitioner’s investigation of the case before filing the petition was

inadequate); Woods, 105 Fed. Cl. at 152 (finding that the special master erred

when special master “cited no allegations of injury or causation, no medical

records, and no legal authority in determining that Petitioners’ claim had a

reasonable basis”); Murphy v. Sec'y of Health & Human Servs., 30 Fed. Cl. 60, 62

(1993) (finding special master’s decision that petitioners did not have a reasonable

basis was not arbitrary and stating “an attorney should use reasoned judgment in

determining whether to accept and pursue a claim”), aff’d, 48 F.3d 1236 (Fed. Cir.

1995) (table). Although none of these cases addresses whether the statute of

limitations affects reasonable basis, they, nonetheless, touch on relevant aspects.

For example, Woods emphasizes the need for evidence to support the finding of

reasonable basis. Silva and Murphy point to the need for petitioners’ attorneys to

investigate the case before filing a petition.

For all these reasons, the inquiry into whether reasonable basis supported the

claim in the petition depends upon the evidence submitted. The following section

analyzes the evidence submitted to determine whether the evidence justifies a

finding of reasonable basis.

29

II. Whether Ms. Chuisano Had Reasonable Basis “for the Claim for which

the Petition was Brought”

From this analysis about the meaning of reasonable basis, the ensuing

question is does evidence support a finding that Ms. Chuisano met her burden? It

is important to remember that the claim for which Ms. Chuisano sought

compensation was that the flu vaccine caused or contributed to the death of her

mother, Ms. D’Esposito.

It is true that Ms. D’Esposito received the flu vaccine on October 12, 2004,

and she died on December 24, 2004. Exhibit 4 at 17 (vaccination); exhibit 3 at 1

(death certificate listing her cause of death as adult respiratory distress syndrome

due to pneumococcal pneumonia and sepsis). This sequence shows the vaccination

preceded the death. But, is there any evidence causally connecting the two events?

CHC-C cites to no evidence supporting a causal connection between the flu

vaccine and Ms. D’Esposito’s death. The only portion of their brief in which

CHC-C cites to evidence in the context of discussing the flu vaccination and Ms.

D’Esposito’s death is: “the following facts are indisputable: On October 12, 2004,

Frances received a flu vaccine; shortly thereafter, she had a reaction to this

vaccine, as is clearly documented in her medical records.”7 CHC-C Reply, filed

January 11, 2013, at 8 (footnote 6 omitted without notation and footnote 7 in the

reply brief refers to three medical records discussed below).

The three medical records cited in footnote 7 do not support the statement

that Ms. D’Esposito “had a reaction.” Exhibit 1 at 6 is a nursing assessment that

includes a section on allergies. Within this part, there are handwritten entries for

“Biaxin, Z-Pack, Cefzil,” but not any vaccine. Exhibit 1 at 13 is a continuation of

the same nursing assessment. As part of the algorithm for determining whether

Ms. D’Esposito should receive the flu vaccine, a note states she “had vac. last

week.” The other record, which is from the emergency department, states in two

places that Ms. D’Esposito received “flu shot 2 days ago.” Exhibit 1 at 718-19.

CHC-C cites only these documents. If other documents linked Ms. D’Esposito’s

flu vaccination and the illnesses preceding her death, it was incumbent on CHC-C

to cite them. See Simanski v. Sec'y of Health & Human Servs., 96 Fed. Cl. 588,

611 (2010), rev’d on other grounds and remanded, 671 F.3d 1368 (Fed. Cir. 2012).

However, an independent review of Ms. D’Esposito’s medical records has not

identified any other instances in which doctors discuss Ms. D’Esposito’s flu

vaccination.

30

By now, it is well-established that statements in medical records showing a

sequence of events are not statements showing causation. Cedillo v. Sec’y of

Health & Human Servs., 617 F.3d 1328, 1347-48 (Fed. Cir. 2010); Caves v. Sec’y

of Health & Human Servs., 100 Fed. Cl. 136-37 (2011), aff’d per curiam without

opinion, 463 Fed. Appx. 932 (Fed. Cir. 2012).

Rather than citing evidence, CHC-C emphasizes the actions of its attorneys:

“Debra Chuisano was first interviewed on March

8, 2005. She was asked to have a legal representative

appointed for her mother’s estate, and to send CHCC her

mother’s medical records.” CHC-C Reply, at 5.

“CHCC believed that Frances may have had a

vaccine-compromised immune system, and, therefore,

was unable to fight off an infection that led to her death.”

Id. at 7.

“CHCC then, with the assistance of the special

master, began the laborious chore of collecting Frances’

medical records.” Id.

“CHCC sought the opinion of Dr. Yehuda

Shoenfeld, an expert immunologist, who reviewed

Frances’ medical records and relevant scientific

literature.” Id. at 8.

“[T]hough counsel ultimately did not link Frances’

death with her vaccine, it was certainly reasonable and

prudent to investigate a possible connection.” Id.

CHC-C “was required to request, obtain, file,

review and summarize thousands of pages of Frances’

medical records.” Id. at 9.

“Former counsel was also required to conduct

scientific research, and to draft and file a petition, an

affidavit, an amended petition, and various motions with

the court. Counsel was required to prepare for, and

31

participate in, status conferences with the special master

and opposing counsel.” Id.

“[C]ounsel was required to adequately explore any

and all theories relevant to her claim.” Id. at 9-10.

These points reflect a fundamental difference in orientation about the

meaning of reasonable basis. In pointing to their own activities, CHC-C implicitly

equates the conduct of attorneys with a reasonable basis. However, for the reasons

discussed at length above, the reasonable basis standard is an evidentiary standard.

Thus, the description of the attorneys’ activities is not relevant to the inquiry at

hand.27 What is relevant, and what CHC-C fails to identify, is evidence. The

attorneys’ beliefs and hopes about what evidence might be produced in the future

are not evidence.

At the end of the day, the evidence shows that Ms. D’Esposito died because

she was infected with pneumonia bacteria, probably developed sepsis, and had

congestive heart failure. Exhibit 5 at 4 (discharge report). CHC-C received this

information on December 21, 2006, approximately six months before the law firm

filed the petition. Whether CHC-C appreciated the significance of the discharge

report cannot be ascertained from the attorneys’ time records. Regardless, CHC-C

never presented any evidence rebutting the account presented in the discharge

report. Ms. Chuisano did not present any evidence providing a basis to support her

claim that the flu vaccine caused her mother’s death. Consequently, she did not

meet her burden for establishing, in the statute’s words, “a reasonable basis for the

claim for which the petition was brought.” Therefore, she cannot be awarded

attorneys’ fees in any amount.28

27

The reasonableness of the activities performed by the attorney is part of

the lodestar formula to determine the amount of the attorneys’ fees. Avera, 515

F.3d at 1347-48. Reasonable attorneys’ efforts do not confer “reasonable basis” to

a case that lacks an evidentiary basis.

28

For the sake of judicial efficiency, CHC-C’s challenges to the partial

reduction in fees made in the withdrawn September 20, 2012 Fees Decision have

been reviewed. See CHC-C Reply, filed January 11, 2013, at 10-13. CHC-C has

not demonstrated that any of the anticipated reductions was unreasonable.

32

III. Mr. Moxley’s Motion for Reconsideration

The finding that Ms. Chuisano did not satisfy the reasonable basis standard

resolves Mr. Moxley’s motion for reconsideration. Since Ms. Chuisano did not

have a reasonable basis, she may not be awarded any attorneys’ fees at all.

However, strictly for reasons of judicial efficiency, his arguments are addressed.

Mr. Moxley’s argument has two steps. First, he maintains that he was not

aware that the special master might find reasonable basis supported Ms.

Chuisano’s case for only part of the time. Second, Mr. Moxley argues that had he

known this outcome were possible, he would have argued that reasonable basis

should be determined only once. Since the withdrawn September 20, 2012 Fees

Decision had found reasonable basis for CHC-C, the reasonable basis necessarily

extended to cover Ms. Chuisano’s case when he represented her. Mr. Moxley is

wrong on both counts.

With respect to Mr. Moxley’s argument that he was not aware that

reasonable basis was disputed, a review of the Secretary’s response to the original

fee application demonstrates that the Secretary consistently opposed a finding of

reasonable basis. In the very first paragraph, the Secretary argued “[a]ny award of

fees and costs is inappropriate as the petition lacked a reasonable basis, as required

by 42 U.S.C. § 300aa—15(e)(1)(B).” Resp’t Opp’n, filed Feb. 17, 2012, at 1. The

beginning of the Secretary’s recitation of facts contains the statement “[b]ased on

the information in the record, no reasonable basis existed for the filing or

maintaining of the petition in this case.” Id. at 3. Almost all of the Secretary’s

brief is devoted to arguing that Ms. Chuisano did not have a reasonable basis. See

id. at 4-10. In this context, the Secretary made the following statement, which

defeats Mr. Moxley’s argument that he was not placed on notice: “[e]ven if this

case had a reasonable basis at the time of filing, it clearly lacked a reasonable basis

by the time Mr. Moxley took over the case.” Id. at 7.

Mr. Moxley’s motion for reconsideration, therefore, is really devoted to

raising an argument that he could have made earlier but did not. Ordinarily, a

motion for reconsideration should not be used to gain a second opportunity to

argue what was already decided. Fillmore Equipment of Holland, Inc. v. United

States, 105 Fed. Cl. 1, 9 (2012). A proper motion for reconsideration would be

based upon one of three factors: an intervening change in law, the discovery of

previously unavailable evidence, or the need to prevent a manifest injustice.

Shapiro v. Sec'y of Health & Human Servs., 105 Fed. Cl. 353, 361 (2012), aff’d

mem., 503 Fed. Appx. 952 (Fed. Cir. 2013). Here, Mr. Moxley’s situation does

33

not fit either of the first two criteria. Thus, he could legitimately seek

reconsideration only if the underlying decision was “manifestly unjust.”

Mr. Moxley has not established that the withdrawn September 20, 2012 Fees

Decision was manifestly unjust. Even if it is assumed that a looming expiration of

the statute of limitations permits a special master to find a reasonable basis for

filing an otherwise unsupported petition (as the withdrawn September 20, 2012

Fees Decision held), that holding is predicated upon a distinction between filing a

petition and maintaining a petition. See Hamrick, 2007 WL 4793152, at *7.

Within the Vaccine Program, a petitioner may lose reasonable basis while

the case is pending, as Perreira illustrates. There, the chief special master found

that the petitioner had a reasonable basis initially, although the reasons for finding

reasonable basis are not explicit. The chief special master awarded attorneys’ fees

for the beginning of the case. However, the chief special master found that the

petitioner did not have a reasonable basis to proceed to a hearing because the

petitioner’s expert’s opinion was speculative. The chief special master, therefore,

did not award attorneys’ fees for the attorney’s work at the hearing. The Federal

Circuit affirmed the special master’s decision that there was not a reasonable basis

for the hearing.29 Perreira, 33 F.3d at 1375. The Federal Circuit stated: “when the

reasonable basis that may have been sufficient to bring the claim ceases to exist, it

cannot be said that the claim is maintained in good faith.” Id. at 1377.

On its face, this statement defeats Mr. Moxley’s argument that “the legal

contention that [Ms. Chuisano’s] case began with good faith and reasonable basis

. . . and that this [good faith and reasonable basis] ended when the case was handed

off to substitute counsel is contrary to law.” Mr. Moxley’s Motion for

Reconsideration, filed Oct. 11, 2012, at 2. Mr. Moxley’s argument is that the

holding in Perreira is inconsistent with Cloer, 675 F.3d 1358, and Comm’r v. Jean,

496 U.S. 154 (1990). Id. at 3-4.

Except in the sense of raising an issue for a possible appeal, Mr. Moxley’s

argument is misdirected. Even if there were a conflict—and the conflict may be

more perceived than real—the proper course for a special master is to note the

conflict and suggest a possible en banc review. Strickland v. United States, 423

29

The chief special master’s decision finding reasonable basis for the earlier

phase was not before the Federal Circuit.

34

F.3d 1335, 1338 n.3 (Fed. Cir. 2005). Until the Federal Circuit revisits Perreira,

that case’s language and outcome remain binding on special masters.

Under the method of analysis endorsed by Perreira, a special master may

find that a petitioner lacks a reasonable basis to continue a case and that is what the

withdrawn September 20, 2012 Fees Decision found. Again, if it is assumed that

the pressing expiration of the statute of limitations conferred a reasonable basis on

the claim for which Ms. Chuisano brought her petition, there is no reason to extend

this presumption to a successor attorney. By the time Mr. Moxley was consulted

about the case, CHC-C had collected the relevant medical records and consulted

three experts without receiving a helpful opinion on causation. Furthermore,

because the case was already pending, Mr. Moxley had the relative luxury of time

to review the materials before committing to represent Ms. Chuisano.

To the extent that Mr. Moxley had medical records available for review and

time to consider their significance before entering the litigation, Mr. Moxley is

comparable to the petitioner’s attorneys in Silva, who happened to be Ms.

Chuisano’s former attorneys. Before they filed a petition, Ms. Silva’s attorneys

had information available to them that called into doubt Ms. Silva’s claim that she

suffered a demyelinating injury. Without reviewing the available medical records,

the attorneys filed a petition alleging that a vaccine caused her to suffer transverse

myelitis. After Ms. Silva was given a chance to establish, on a more-likely-than-

not basis, that she suffered from this disease, she did not present any additional

evidence. Ms. Silva’s case was dismissed for lack of proof. When Ms. Silva

requested attorneys’ fees, the (undersigned) special master found that there was not

a reasonable basis for Ms. Silva’s claim that a vaccine caused her to suffer a

demyelinating injury. Thus, Ms. Silva was not awarded any attorneys’ fees. Silva,

2012 WL 2890452. The Court of Federal Claims denied a motion for review,

affirming the denial of all attorneys’ fees. Silva, 108 Fed. Cl. 401.

Mr. Moxley stands in roughly the same position as petitioner’s counsel in

Silva. Information about Ms. D’Esposito’s final illness was available to him.

Before Ms. Chuisano consulted Mr. Moxley, the Secretary submitted her report

pursuant to Vaccine Rule 4.30 The Rule 4 Report informed Mr. Moxley something

30

If Mr. Moxley did not want to rely upon the Secretary’s recitation of

events, he could have relied upon the amended petition that CHC-C had drafted

and filed.

35

that he, as an attorney experienced in the Vaccine Program, should have already

known --- Ms. Chuisano could prevail only if an expert provided an opinion.

Resp’t Rep’t, filed May 30, 2008, at 6-9; see also 42 U.S.C. § 300aa-13.

Actually, Mr. Moxley did relatively little investigation before he became

counsel of record. He spent approximately three hours reviewing materials. His

paralegal spent another two hours summarizing records. According to his time

sheets, he did not consult an expert before becoming counsel of record. His first

communications with Dr. Levin came after he became counsel of record. Exhibit

10.31

When Mr. Moxley decided to enter the litigation without conducting a

thorough analysis of the case, he impliedly accepted a risk that he could produce

evidence that supported the claim for which Ms. Chuisano brought her petition.

CHC-C’s inability to produce any evidence supporting Ms. Chuisano’s claim that

the flu vaccine contributed to her mother’s death --- even after consulting three

experts including Dr. Shoenfeld --- should have warned Mr. Moxley that

evidentiary gap in Ms. Chuisano’s case would not be filled easily. Despite some

effort, Mr. Moxley never presented any evidence strengthening Ms. Chuisano’s

case.

Mr. Moxley complains that his activities should have been compensated

because his work was reasonable.

31

Mr. Moxley’s motion for reconsideration weakly suggests that he may

have consulted other experts, but did not present that information as a matter of

“billing judgment.” Mot., filed Oct. 11, 2012, at 7-8 n.7. This implication is not

credited for three reasons. First, fee-seeking attorneys bear the burden of

documenting their activities. See Savin, 85 Fed. Cl. 313, 316 (noting that the

Vaccine Guidelines, which advise counsel to keep accurate and contemporaneous

billing records, “reflect the accumulated wisdom of numerous decisions

emphasizing that fee records must be specific”) (citing Guidelines for Practice

under the National Vaccine Injury Compensation Program, available at

http://www.uscfc.uscourts.gov/). Second, Mr. Moxley does not explicitly state that

he consulted experts. Third, the most common way for attorneys to show that they

exercised billing judgment is to record the activity but not to charge for the

activity.

36

The proper inquiry is not into whether there was a good

faith, reasonable basis for the undersigned to continue the

pursuit of vaccine injury compensation for the death of

Debra Chuisano’s mother. The proper inquiry would be

into whether [or] not it would be reasonable to bill for the

time and effort that it took to wind down the case and

inter alia preserve the civil remedies available.

Mot. at 3. Along the same lines, Mr. Moxley argues that “this court could not find,

without being arbitrary and capricious, that it is unreasonable for counsel to

participate in status conferences, or to generate court-ordered status reports.” Id. at

7. The fact that Mr. Moxley was ordered to advance his client’s case by doing

tasks such as filing status reports about his efforts to locate an expert and is not

being compensated for that work creates an arguably “unfair” situation.

Regardless of the assistance Mr. Moxley provided to Ms. Chuisano, the

basis for awarding attorneys’ fees is complying with the statute. Contrary to Mr.

Moxley’s argument, the Vaccine Act requires that the special master determine

whether there was a “reasonable basis for the claim for which the petition was

brought.” 42 U.S.C. § 300aa-15(e)(1). This inquiry into reasonable basis occurs

first. If a petitioner has met the burden of showing a reasonable basis, then the

special master goes to the next step, which is examining the reasonableness of the

attorneys’ efforts.

It cannot be the case that a petitioner’s attorney’s (reasonable) work confers

reasonable basis to the claim for which the petition was brought. If it were true

that attorneys should be compensated for reasonable activities, like complying with

orders, then this approach would effectively eliminate the “reasonable basis”

portion from the statute. This interpretation would not be in accord with the basic

canon of statutory interpretation that a “‘statute is to be construed in a way which

gives meaning and effect to all of its parts.’” Heinzelman v. Sec'y of Health &

Human Servs., 681 F.3d 1374, 1377 (Fed. Cir. 2012) (quoting Saunders v. Sec'y of

Health & Human Servs., 25 F.3d 1031, 1035 (Fed. Cir. 1994) (further citations

omitted). Mr. Moxley’s proposed interpretation—an attorney’s compliance with

court orders necessarily confers a reasonable basis to the case—also contradicts the

outcome of Perreira. In that case, the petitioner’s attorney went so far as to bring

the case to a hearing, including incurring costs to present the testimony of an

expert. Nonetheless, the Federal Circuit still found that the chief special master

was not arbitrary in denying attorneys’ fees and costs for the hearing. Perreira, 33

37

F.3d at 1375. The denial of attorneys’ fees to Mr. Moxley is not less “unfair” than

the denial of attorneys’ fees to the attorney who represented the Perreiras.

According to the Vaccine Act as interpreted by Perreira, Ms. Chuisano is

eligible for compensation for Mr. Moxley’s fees only if there were a reasonable

basis for the claim for Ms. Chuisano’s petition while Mr. Moxley was prosecuting

her claim. Like CHC-C, Mr. Moxley did not cite any evidence providing a

reasonable basis for the claim that the flu vaccine contributed to Ms. D’Esposito’s

death. At best, Mr. Moxley refers to a discussion in which Dr. Levin told him that

he (Dr. Levin) would issue a causation opinion. But, this hearsay statement was

not supported with anything.32 It cannot be true that attorneys can establish the

reasonable basis of a case (and, therefore, their eligibility for payment) simply by

arguing in a brief that a doctor informally promised them an opinion regarding

causation. An actual expert report and testimony do not always furnish a

reasonable basis for maintaining a case to hearing. Perreira, 33 F.3d at 1377. By

logic, a much weaker case—one in which there is no expert report—may also fall

short of the reasonable basis standard.

CONCLUSION

When represented by CHC-C, Ms. Chuisano filed a petition claiming that flu

vaccine caused her mother’s death. CHC-C never submitted any evidence showing

that there was a causal relationship (as opposed to a simple temporal relationship)

between the vaccination and Ms. D’Esposito’s death. Although Mr. Moxley took

over the case, he, too, did not submit any evidence supporting Ms. Chuisano’s

claim. This lack of evidence precluded Ms. Chuisano from receiving

compensation.

Ms. Chuisano’s two law firms have requested that they be compensated for

their efforts in this unsuccessful case. Ms. Chuisano becomes eligible for an award

of attorneys’ fees and costs upon a showing that “there was a reasonable basis for

the claim for which the petition was brought.” 42 U.S.C. § 300aa—15(e). Here,

Ms. Chuisano has not presented sufficient evidence to support a finding of

reasonable basis.

32

The withdrawn September 20, 2012 Fees Decision similarly noted the lack

of support for what Dr. Levin allegedly told Mr. Moxley. Despite this notation,

Mr. Moxley did not submit any evidence with his motion for reconsideration.

38

Because Ms. Chuisano did not satisfy the statute’s prerequisite for an award

of attorneys’ fees, she cannot be compensated. Thus, her application for attorneys’

fees and costs is DENIED. The Clerk’s Office is instructed to enter judgment in

accord with this decision unless a motion for review is filed.

IT IS SO ORDERED.

s/Christian J. Moran

Christian J. Moran

Special Master

39