Chuisano v. Secretary of Health and Human Services

In the United States Court of Federal Claims

No. 07-452 V

E-Filed Under Seal: May 15, 20141

E-filed for Publication: May 30, 2014

)

DEBRA CHUISANO, as Legal )

Representative of the Estate of FRANCES )

D’ESPOSITO, deceased, )

) Vaccine Injury Claim; Attorneys’

Plaintiff, ) Fees; Costs; Denial; Reasonable Basis;

) 42 U.S.C. § 300aa-15(e)(1); Totality of

v. ) the Circumstances; Attorney Activities

) or Conduct; Statute of Limitations

THE UNITED STATES, )

)

Defendant. )

)

Robert T. Moxley, Washington, D.C., for plaintiff.

Glenn A. MacLeod, Senior Trial Counsel, with whom were Stuart F. Delery, Assistant

Attorney General, Rupa Bhattacharyya, Director, Vincent J. Matanoski, Deputy Director,

and Catherine E. Reeves, Assistant Director, Torts Branch, Civil Division, United States

Department of Justice, Washington, D.C., for defendant.

OPINION AND ORDER

CAMPBELL-SMITH, Chief Judge.

Petitioner seeks attorneys’ fees and costs for an unsuccessful claim under the

National Childhood Vaccine Injury Act of 1986 (Vaccine Act), codified as amended at 42

1

Pursuant to Vaccine Rule 18(b) of the Rules of the United States Court of Federal

Claims, this opinion initially issued under seal to provide the parties the opportunity to

object to the public disclosure of information contained within it. Neither party requested

any redactions. The opinion is reissued for publication with some minor, non-substantive

corrections.

U.S.C. § 300aa-1 to -34 (2012).2 Pet’r’s Mot. Review (Pet’r’s Mot.), Nov. 25, 2013, ECF

No. 80; Pet’r’s Mem. of Objections (Pet’r’s Mem.), Dec. 16, 2013, ECF No. 86. The

special master denied fees and costs to both petitioner’s original counsel and her

substitute counsel. Chuisano v. Sec’y Dep’t Health & Human Servs., Case No. 07-452V,

2013 WL 6234660 (Fed. Cl. Spec. Mstr. Oct. 25, 2013) (Special Master Moran) (Fee

Dec.). On review, the central question is whether the special master erred in concluding

petitioner’s claim lacked a “reasonable basis,” as required for a fee award under 42

U.S.C. § 300aa-15(e)(1), in light of petitioner’s failure to adduce any evidence of

causation-in-fact of a vaccine-related injury. The court SUSTAINS the special master’s

decision because it was not “arbitrary, capricious, an abuse of discretion, or not in

accordance with law.” See 42 U.S.C. § 300aa-12(e)(2)(A)–(C); Vaccine Rule 27(b).3

I. BACKGROUND4

A. Medical History

Petitioner Debra Chuisano’s mother, Frances D’Esposito, was born in 1942. Fee

Dec., 2013 WL 6234660 at *2. Ms. D’Esposito’s medical records from 2004 reflect that

she suffered from chronic obstructive pulmonary disease, chronic asthma, and arthritis.

Id. On September 27, 2004, her doctor diagnosed an upper respiratory infection and

prescribed an antibiotic. Id. On October 12, 2004, Ms. D’Esposito received an influenza

(flu) vaccine. Id. Four days later, she had aches, fever, and a sore throat. Id. Her

primary care physician diagnosed “a viral syndrome” and did not prescribe more

antibiotics. Id. On October 18, 2004, she was admitted to the hospital for breathing

difficulties. Id. Her admission history notes that she recently had received a flu vaccine.

Id. Her initial diagnosis was pneumonia and sepsis, and subsequent laboratory tests

detected streptococcus pneumonia. Id. She remained in the hospital as her condition

deteriorated and until she died on December 24, 2004. Id. The conditions listed on her

discharge summary are pneumonia and congestive heart failure. Id. Her death certificate

attributes cause of death to adult respiratory distress syndrome due to pneumococcal

pneumonia and sepsis. Id.

2

For ease of citation, all “§” references to the Vaccine Act will be to the pertinent

subsection of 42 U.S.C. § 300aa-1 to -34 (2012).

3

The “Vaccine Rules” govern vaccine injury compensation claims before the Office

of Special Masters and this court. They are set forth in Appendix B of the Rules of the

United States Court of Federal Claims (RCFC).

4

The medical and procedural history is taken primarily from the special master’s

decision and counsels’ timesheets. It is undisputed unless otherwise noted.

2

B. Procedural History

Ms. Chuisano approached the law firm of Conway, Homer & Chin-Caplan (CHC-

C) in early March 2005 to discuss a potential vaccine claim because she believed her

mother died as a result of receiving the flu vaccine. Id. CHC-C specializes in the

representation of claimants asserting vaccine-related injuries. See CHC-C Website,

http://www.ccandh.com/default.asp (last visited May 12, 2014). CHC-C tasked Ms.

Chuisano with “forward[ing] records and estate docs.” Fee Dec., 2013 WL 6234660 at

*2. CHC-C communicated periodically with Ms. Chuisano about the medical records

but, “for reasons not explained” in the record, more than a year went by and CHC-C was

still waiting for materials. Id. In the fall of 2006, the firm sent Ms. Chuisano a “reject

letter;” however, she responded expressing a desire to continue her case. Id. On

December 21, 2006, CHC-C reviewed a discharge summary provided by Ms. Chuisano.

Id. at *2–3. After reviewing the discharge summary, CHC-C accepted the case pending

receipt of the estate documents. Id. at *3. Legal representation appears to have been

formalized in late January or early February, 2007. See CHC-C Timesheets, ECF No.

49-6 (attached as Exhibit 14 to petitioner’s first motion for fee and costs, filed with the

special master on December 16, 2011). Over the ensuing five months, CHC-C received

estate documents and, for the first time, the firm began active pursuit of Ms. D’Esposito’s

medical records. Fee Dec., 2013 WL 6234660 at *3.

CHC-C filed Ms. Chuisano’s vaccine petition on June 28, 2007, just days before

the limitations period expired on July 1, 2007.5 Id. It was a “skeletal petition,” id., that

did not meet content requirements, see § 300aa-11(c); Vaccine Rule 2(c), but did aver

that “the necessary ‘[d]ocuments and affidavits in support of the petition [would] be filed,

once received,’” Resp’t’s Mem. in Resp. to Pet’r’s Mot. (Resp’t’s Mem.), Jan. 15, 2014,

ECF No. 87, at 3 (quoting Petition at 2).

According to CHC-C’s timesheets, CHC-C had received and reviewed Ms.

D’Esposito’s discharge summary before the petition was filed. Fee Dec., 2013 WL

6234660 at *3. Ms. D’Esposito’s discharge summary indicated that she had suffered

from pneumonia and respiratory distress syndrome and died from congestive heart

failure, but did not mention the flu vaccine. Id. The firm also had received records from

two medical providers; however, there is no evidence that an attorney reviewed these

records before the firm filed the petition. Id. Those records were not included with the

filed petition. Id. The records reflect that in February 2004 (approximately eight months

before receipt of the flu vaccine), a doctor determined Ms. D’Esposito required a portable

5

“At the time, controlling precedent indicated that compliance with the statute of

limitations was a jurisdictional issue and equitable tolling was not permitted.” Fee Dec.,

2013 WL 6234660 at *3 n.6 (citing Brice v. Sec’y Health & Human Servs., 240 F.3d

1367 (Fed. Cir. 2001), overruled, Cloer v. Sec’y Health & Human Servs., 654 F.3d 1322

(Fed. Cir. 2011), cert. denied, 132 S. Ct. 1908 (2012)).

3

nebulizer because of “chronic and acute asthma.” Id. (citation omitted). The doctor also

described Ms. D’Esposito’s “pulmonary disease” as “very unstable.” Id. (citation

omitted).

On November 26, 2007, nearly five months after filing the petition, the petitioner

filed her initial medical records, of which the vast majority came from Good Samaritan

Hospital. Id. at *4; see also Notice of Filing, ECF No. 14. Petitioner subsequently filed

an Amended Petition and her affidavit on January 14, 2008. Am. Petition, ECF No. 17;

Affidavit, ECF No. 18.

Respondent filed its report on May 30, 2008, pursuant to Vaccine Rule 4(c). The

report recommended against compensation because petitioner had not satisfied the

criteria for receiving compensation under the Vaccine Act. Fee Dec., 2013 WL 6234660

at *4. Specifically, respondent pointed to, inter alia, Ms. D’Esposito’s medical records

revealing multiple bouts of respiratory infection between 2002 and 2004; her death

certificate attributing death to non-vaccine-related causes; and the fact that none of her

treating physicians ascribed her death to the flu vaccine, despite their awareness of its

temporal proximity. Id.

In the ensuing two months, CHC-C consulted with two immunologists, seeking an

expert opinion on causation.6 Id. One of petitioner’s attorneys, Ms. Sylvia Chin-Caplan,

also drafted a letter detailing her theories on causation. Id. CHC-C shared this letter with

at least one of the potential experts. Id. The firm was unsuccessful in retaining an expert.

See id. at *5 (discussing efforts in greater detail). By this time, CHC-C had invested

approximately 190 hours in petitioner’s representation; it had also been given four

extensions of time to file an expert report. Id.

CHC-C sent petitioner a “reject letter” and, on August 17, 2009, filed a motion to

withdraw as counsel of record. Id. In October and November, before the court ruled on

withdrawal, CHC-C provided petitioner’s materials to Mr. Robert Moxley, another

seasoned vaccine program litigator. See id.

On November 16, 2009, the court substituted CHC-C for Mr. Moxley as

petitioner’s new attorney of record. See Consented Mot. Substitute, ECF No. 38. Mr.

Moxley continued CHC-C’s efforts to obtain an expert opinion to support a causation

6

CHC-C’s timesheets reflect two internal conversations about potential experts on

December 27–28, 2007; the conversations occurred after the firm had filed medical

records but before it filed the amended petition. See CHC-C Timesheets, ECF No. 49-6

(attached as Exhibit 14 to petitioner’s first motion for fees and costs filed with the special

master on December 16, 2011). Otherwise, timesheet entries regarding expert retention

and communications do not start in earnest until July 2008, after CHC-C received

respondent’s report. See id.

4

theory. Fee Dec., 2013 WL 6234660 at *5. Timesheets reveal Mr. Moxley

communicated on numerous occasions with CHC-C and reviewed Ms. Chin-Caplan’s

causation-theory letter. Id.; see also Moxley Timesheets, ECF No. 49-2 (attached as

Exhibit 10 to petitioner’s first motion for fees and costs filed with the special master on

December 16, 2011). Timesheets also reflect that Mr. Moxley’s firm attempted to reach

one potential expert in April 2010, but the record is unclear what became of his firm’s

overtures. Fee Dec., 2013 WL 6234660 at *5; see also Moxley Timesheets.

In September 2010, petitioner was ordered to file a status report concerning her

efforts to obtain an expert report. Order, Sept. 27, 2010, ECF No. 39. Petitioner

responded that she “ha[d] been actively seeking a medical expert to support the causation

syllogism required by the Vaccine Act.” Pet’r’s Status Report, Oct. 29, 2010, ECF No.

40, at ¶ 1. Petitioner also shared her causation theory that “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 [to cause harm].

Fatal pneumonia, for instance, is made much more likely.” Id. at 1 n.1; Fee Dec., 2013

WL 6234660 at *5 (quoting same).

After additional status reports, see Fee Dec., 2013 WL 6234660 at *6, petitioner

was ordered to file an expert report by May 16, 2011, or “[i]f . . . unable to find an expert

to opine as to causation, . . . [then] a motion for ruling on the record,” Order, Feb. 15,

2011, ECF No. 45.

On May 16, 2011 (roughly a year and a half after Mr. Moxley assumed

representation), petitioner moved for a decision on the record. ECF No. 46. On May 18,

2011, the special master entered his no-compensation decision finding petitioner had

failed to meet her burden of proof. See Chuisano v. Sec’y Dep’t Health & Human Servs.,

Case No. 07-452V, 2011 WL 2268969 (Fed. Cl. Spec. Mstr. May 18, 2011) (Liability

Dec.); see also Judgment, June 20, 2011, ECF No. 48. He found that petitioner “failed to

demonstrate either that Ms. D’Esposito suffered a ‘Table Injury’ or that her injuries were

‘actually caused’ by a vaccination.” Liability Dec., 2011 WL 2268969 at *1. Petitioner

offered only her own statement and evidence of temporal proximity to support her claim

of a causal relationship between the vaccine’s administration and Ms. D’Esposito’s death.

Id. However, this evidence was insufficient. Id.; see also § 300aa-13(a)(1) (a special

master may not award compensation “based on the claims of a petitioner alone,

unsubstantiated by medical records or medical opinion”). Petitioner pointed to no

medical records, nor did she offer any expert opinion, to support a finding of causation-

in-fact. Liability Dec., 2011 WL 2268969 at *1. The special master’s decision denying

program compensation has not been appealed, but petitioner has sought fees and costs.

On September 20, 2012, the special master entered an initial decision awarding

reduced fees and costs to CHC-C ($38,365.45 of the $40,946.65 requested), but denying

an award of fees and costs to Mr. Moxley, for which he had requested $3,706.90. See

Fee Dec., 2013 WL 6234660 at *6–7 (describing earlier fee decision, filed September 20,

5

2012, ECF No. 63, that was later withdrawn per Order, filed October 15, 2012, ECF No.

65); see also Resp’t’s Mem. 5–6 & 5 n.4 (dollar amounts). In this initial fee decision, the

special master found that CHC-C had a “reasonable basis” for pursuing petitioner’s claim

through the filing of her petition (on the eve of the statute of limitations deadline), the

subsequent gathering of medical records, and the efforts to retain an expert. Fee Dec.,

2013 WL 6234660 at *7 (describing initial fee decision). Mr. Moxley, however, lacked a

“reasonable basis” to proceed with petitioner’s claim after CHC-C had been unable to

obtain an expert opinion supporting a finding of vaccine-related causation. Id.

(describing initial fee decision).

On October 11, 2012, petitioner sought reconsideration of the total denial of Mr.

Moxley’s fees and costs. See Pet’r’s Mot. Recons., ECF No. 64. Petitioner argued that

the initial fee decision was premised on an erroneous view of the law. Id. at 2.

According to petitioner, “reasonable basis” for a claim was a one-time inquiry; thus, if

the case began under CHC-C with a reasonable basis, then the reasonable basis continued

to exist when Mr. Moxley later assumed representation. Id. Petitioner “pray[ed] an order

of the court, setting aside and vacating the [initial fee decision], for reconsideration of the

[initial fee decision] and an appropriate award for reasonable fees and costs to successor

counsel under the correct legal standard . . . .” Id. at 8.

In response, the special master issued an order on October 15, 2012 that granted

petitioner’s reconsideration motion in part, by withdrawing the initial fee decision and

soliciting further briefing on the fee issue. ECF No. 65. As the initial fee decision had

been withdrawn, the government’s briefing on reconsideration, as well as petitioner’s

reply, addressed not only the propriety of fees and costs for Mr. Moxley, but for CHC-C

as well. Fee Dec., 2013 WL 6234660 at *7 (discussing the scope of reconsideration

briefing).

On October 25, 2013, the special master entered his final decision denying in toto

the fees and costs sought by both CHC-C and Mr. Moxley. Fee Dec., 2013 WL 6234660

at *1, 23–24. The special master found that a fee and cost award would be inappropriate.

Id. at *1. Without supportive evidence of causation-in-fact, petitioner lacked a

reasonable basis for her claim. Id. Afforded the opportunity to reconsider his earlier

decision awarding fees and costs to CHC-C, the special master was persuaded by the

government’s argument that “the pendency of the statute of limitation does not dispense

with the petitioner’s obligation to furnish some evidence supporting the claim contained

in the petition.” Id. Therefore, the special master reconsidered the leeway he had

accorded CHC-C for filing the petition on the eve of the statute of limitations’

expiration—the circumstance that informed his initial decision to award fees to that firm.

See id. He ultimately concluded, with regard to petitioner’s claim as a whole, that there

remained a “gap in evidence [ ] despite Ms. Chuisano’s retention of two separate law

firms and the participation of at least three doctors.” Id. The special master determined

that “[w]ithout any evidence linking Ms. D’Esposito’s death to her flu vaccination, Ms.

6

Chuisano’s case lacked a reasonable basis. And, without a reasonable basis, [her

counsel] may not be awarded any attorneys’ fees.” Id.

Now before the court is petitioner’s motion for review of this final fee decision,

see Pet’r’s Mot.; Pet’r’s Mem., and the government’s response, see Resp’t’s Mem.

Neither party has challenged petitioner’s good faith in filing her petition. Fee Dec.,

2013 WL 6234660 at *1 n.2. The sole issues are (1) whether the special master erred in

concluding there was never a “reasonable basis” for her claim; and (2) whether he abused

his discretion by denying fees and costs to either CHC-C or Mr. Moxley. Oral argument

was deemed unnecessary. The matter is now ripe for decision.

II. STANDARD OF REVIEW

The Court of Federal Claims has jurisdiction to review the decision of a special

master. 42 U.S.C. § 300aa-12(e)(1); see also Vaccine Rule 23. After engaging in its

review, the court may take one of three actions: (1) uphold the special master’s findings

of fact and conclusions of law and sustain the special master’s decision; (2) set aside

some or all of the special master’s findings of fact and conclusions of law and issue

different findings of fact and conclusions or law; or (3) remand the petition for further

action in accordance with the court’s direction. § 300aa-12(e)(2)(A)–(C); see also

Vaccine Rule 27.

The court may set aside a special master’s decision only if it is “arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law.” § 300aa-

12(e)(2)(B). As the Federal Circuit has explained:

These standards vary in application as well as degree of deference. Each

standard applies to a different aspect of the judgment. Fact findings are

reviewed . . . by [the Court of Federal Claims] under the arbitrary and

capricious standard; legal questions under the ‘not in accordance with law’

[de novo review] standard; and discretionary rulings under the abuse of

discretion standard.

Munn v. Sec’y Dep’t Health & Human Servs., 970 F.2d 863, 870 n.10 (Fed. Cir. 1992)

(commenting further that an “abuse of discretion” will “rarely come into play except

where the special master excludes evidence”); accord Saunders v. Sec’y Dep’t Health &

Human Servs., 25 F.3d 1031, 1033 (Fed. Cir. 1994) (quoting same).

Notably, a special master’s decision whether to award or deny attorneys’ fees and

costs to unsuccessful petitioners is discretionary and, thus, reviewed under an abuse of

discretion standard. Saxton v. Sec’y Dep’t Health & Human Servs., 3 F.3d 1517, 1520

(Fed. Cir. 1993) (citing Perreira v. Sec’y Dep’t Health & Human Servs., 27 Fed. Cl. 29,

31 (1992)); accord Silva v. Sec’y Health & Human Servs., 108 Fed. Cl. 401, 405 (2012);

Murphy v. Sec’y Dep’t Health & Human Servs., 30 Fed. Cl. 60, 61 (1993); Hamrick v.

7

Sec’y Health & Human Servs., Case No. 99-683V, 2007 WL 4793152, *3 (Fed. Cl. Spec.

Mstr. Jan. 9, 2008) (Special Master Moran). “This [discretion] is appropriate in view of

the [special master’s] superior understanding of the litigation and the desirability of

avoiding frequent appellate review of what essentially are factual matters.” Saxton,

3 F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)).

For a finding of abuse of discretion, a court would have to rule that a special

master’s decision was:

(1) . . . clearly unreasonable, arbitrary, or fanciful; (2) . . . based on an

erroneous conclusion of the law; (3) . . . clearly erroneous; or (4) the record

contains no evidence on which the . . . [special master] rationally could

have based his decision.

Murphy, 30 Fed. Cl. at 61 (quoting Hendler v. United States, 952 F.2d 1364, 1380 (Fed.

Cir. 1991) (citation omitted)); see also Munn, 970 F.2d at 870 (explaining this court owes

“great deference” to the fact-findings and fact-based conclusions of the special master);

Silva, 108 Fed. Cl. at 405 (stating it is “extremely difficult” to establish the “reversible

error” necessary to disturb a special master’s decision on fees). An “abuse of discretion

may only be found where ‘no reasonable man would take the view adopted by the [trial]

court . . . .’” Murphy, 30 Fed. Cl. at 62 (quoting PPG Indus., Inc. v. Celanese Polymer

Specialties Co., 840 F.2d 1565, 1572 (Fed. Cir. 1988)).

The Federal Circuit has described a reasonable fee calculation as follows:

A reasonable fee is the number of hours reasonably expended on the

litigation multiplied by a reasonable hourly rate . . . [but] should exclude

. . . hours that were not “reasonably expended” . . . [such as] hours that are

excessive, redundant, or otherwise unnecessary, just as a lawyer in private

practice ethically is obligated to exclude such hours from his fee

submission. . . . Hours that are not properly billed to one’s client also are

not properly billed to one’s adversary pursuant to statutory authority.

Saxton, 3 F.3d at 1521 (quoting Hensley, 461 U.S. at 433–34).

The special master’s “‘range of choice’ . . . will not be reversed if ‘it stays within

that range and is not influenced by any mistake of law.’” Murphy, 30 Fed. Cl. at 62

(quoting Heat & Control, Inc. v. Hester Indus., Inc., 785 F.2d 1017, 1022 (Fed. Cir. 1986)

(citation omitted)). If, however, the exercise of discretion turns on a potentially

erroneous statutory interpretation of the Vaccine Act (a question of law), then the court

will review the interpretation without deference. Avera v. Sec’y Health & Human Servs.,

515 F.3d 1343, 1347 (Fed. Cir. 2008) (citing Markovich v. Sec’y Health & Human

Servs., 477 F.3d 1353, 1355–56 (Fed. Cir. 2007)); see Andreu v. Sec'y Health & Human

Servs., 569 F.3d 1367, 1379 (Fed. Cir. 2009) (explaining that, while “considerable

8

deference [is due to] the credibility determinations of special masters . . . this does not

mean that a special master can cloak the application of an erroneous legal standard in the

guise of a credibility determination, and thereby shield it from appellate review”)

(citation omitted); see also Saunders, 25 F.3d at 1033 (reviewing a fee award without

deference where the propriety of the award turned on construction of the Act’s election

provision).

III. DISCUSSION

A. The “Reasonable Basis” Standard

If a petitioner succeeds on the merits of his or her compensation claim, the

Vaccine Act requires the special master to award reasonable fees and costs. § 300aa-

15(e)(1). However, the special master also enjoys discretion to award fees and costs to

unsuccessful petitioners, provided the unsuccessful petition was filed in good faith and

there was a reasonable basis to support the claim. Id.; Sebelius v. Cloer (Cloer III), 133

S. Ct. 1886, 1891–92 (2013) (discussing standard); Avera, 515 F.3d at 1347 (same). If a

special master determines that there is good faith and a reasonable basis for a claim, “he

or she may award the fees.” Silva, 108 Fed. Cl. at 403. It is nevertheless possible that,

after making the required findings of good faith and reasonable basis, the special master

may decline to award fees or costs. Id. at 402 n.5.

The statute offers no further explanation or definition of what constitutes a

“reasonable basis.” Moreover, as the special master correctly noted, “[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.” Fee Dec., 2013

WL 6234660 at *11 (quoting Woods v. Sec’y Health & Human Servs., 105 Fed. Cl. 148,

153 (2012)).

The Circuit Court has observed, however, that “[s]tatutory construction . . . is a

holistic endeavor.” Figueroa v. Sec’y Health & Human Servs, 715 F.3d 1314, 1318 (Fed.

Cir. 2013) (citation omitted). To that end, “the language of [the Vaccine Act must be

considered] in light of the specific context in which that language is used, and the broader

context of the statute as a whole.” Id. (citation and quotation omitted). Further to the

Circuit Court’s guidance, the court finds here that recognizing a special master’s

discretion to make a fee award is paramount to developing a set of finite rules or criteria.

Other decisions of the court appear to agree. See, e.g., Silva, 108 Fed. Cl. at 402 (“[T]he

statute grants to the special master maximum discretion in applying the standard.”). The

statutory text that includes the “reasonable basis” provision shows that Congress drew a

clear distinction between an automatic fee award for successful petitioners and a

discretionary award for unsuccessful petitioners. See §300aa-15(e)(1). This distinction

would be subverted by a set of inflexible rules or criteria defining “reasonable basis.”

Moreover, such rules or criteria would strip a special master of his or her discretion and

authority to deny fees even to those claimants who show “reasonable basis” by, inter alia,

9

implying that an unsuccessful petitioner who meets the minimum threshold of defined

requirements is entitled to a fee award as of right. See Cloer v. Sec’y Health & Human

Servs. (Cloer II ), 675 F.3d 1358, 1363 (Fed. Cir. 2012) (en banc) (disagreeing with the

dissent, which advocated a strict rule that untimely petitions can never be found to have

been supported by a reasonable basis).

A “reasonable basis” standard that is not rigidly defined—as amorphous as it may

be—is consistent with the Vaccine Act as a whole. The Federal Circuit has instructed

that “[r]emedial legislation like the Vaccine Act should be construed in a manner that

effectuates its underlying spirit and purpose.” Cloer II, 675 F.3d at 1362 (citing

Atchison, Topeka, & Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 561–62 (1987)); see also,

e.g., Peyton v. Rowe, 391 U.S. 54, 65 (1968) (citing the “canon of construction that

remedial statutes should be liberally construed”).

“The overarching purpose of the Vaccine Act[,] and the National Childhood

Vaccine Injury Compensation Program it create[d,] is to award compensation ‘to vaccine-

injured persons quickly, easily, and with certainty and generosity.’” Cloer II, 675 F.3d at

1362 (quoting H.R. Rep. No. 99-908, at 3 (1986), reprinted in 1986 U.S.C.C.A.N. at

6344). A vaccine-related injury, however, is not always clear at the outset. As the

Federal Circuit has noted, “[t]he first time an injury is causally linked with a vaccine

often occurs as a result of a successful non-Table petition.” Cloer v. Sec’y Health &

Human Servs. (Cloer I), 654 F.3d 1322, 1332 n.4 (Fed. Cir. 2011). Congress would not

have “intended to discourage counsel from representing petitioners who, because of the

difficulty of distinguishing between the initial symptoms of a vaccine-related injury and

unrelated malady . . . may [nevertheless] have good-faith claims with a reasonable

basis. . . .” See Cloer III, 133 S. Ct. at 1895. Thus, “[a] stated purpose of the Act’s fees

scheme was to avoid ‘limit[ing] petitioners’ ability to obtain qualified assistance’ by

making fees awards available for ‘non-prevailing, good-faith claims.’” Id. (quoting H.R.

Rep. No. 99-908 at 22); see also Cloer II, 675 F.3d at 1362 (“Congress recognized that

having to shoulder attorneys’ fees could deter victims of vaccine-related injuries from

seeking redress.”).

Although a special master may award fees and costs to unsuccessful petitioners

under the Vaccine Act, the statute does not compel such awards. “Congress [did] not . . .

intend[] that every claimant, whether being compensated or not under the Vaccine Act,

collect attorneys’ fees and costs.” Perreira, 33 F.3d at 1377; Phillips v. Sec’y Dep’t

Health & Human Servs., 988 F.2d 111, 112–13 (Fed. Cir. 1993) (Plager, J., concurring)

(stressing the negative ramifications of baseless appeals over the denial of fees and costs).

There is no textual, historical, or logical support suggesting otherwise. Fee denials are

expected to occur. A different construction of the statute would swallow the special

master’s discretion. See § 300aa-15(e)(1). Congress vested such discretion with the

special masters, plainly contemplating that not all petitioners would recover fees and

costs. If Congress had intended all or nearly all petitioners to recover fees, it easily could

10

have expanded fee awards to all petitions filed in good faith, rather than requiring good

faith and a reasonable basis.

Also militating in favor of a discretionary authority that permits the denial of fee

awards are common law principles and policy concerns. As the dissent in Cloer II

explained, “because Congress departed from the [prevailing party requirement

applicable] in virtually every other federal fee-shifting statute, [the court] should be

cautious in interpreting the statutory mandate to extend beyond those cases in which fee-

shifting was clearly intended.” 675 F.3d at 1367 (Bryson, J., dissenting) (providing

background for its view that fees should not be recoverable for untimely petitions) (citing

Robert C. Herd & Co. v. Krawill Mach. Corp., 359 U.S. 297, 304–05 (1959)) (explaining

that a rule of law “in derogation of the common law . . . must be strictly construed”); In re

Crescent City Estates, 588 F.3d 822, 826 (4th Cir. 2009) (“Because fee-shifting statutes

are ‘in derogation of the common law,’ courts are obliged to construe them strictly.”)

(citation omitted)). Well-settled principles of sovereign immunity are also a

consideration. Cloer II, 675 F.3d at 1367.

Premised in pertinent part on reasonableness, the standard for discretionary fee

awards allows for the practical and logical necessities of vaccine program practice. As

petitioner herself argues, “[i]n [these] scientifically complex, expensive, and

controversial cases, the interpretation of ‘reasonable basis’ demands a common sense

approach based upon the totality of the circumstances of each individual case.” Pet’r’s

Mot. 12. Numerous special masters, as well as this court, have held that reasonable basis

is an objective standard determined by the “totality of the circumstances.” E.g.,

McKellar v. Sec’y Health & Human Servs., 101 Fed. Cl. 297, 303 (Fed. Cl. 2011) (citing

Hamrick, 2007 WL 4793152 at *4). Some have further interpreted the requirement as

one that looks not at the likelihood of success of a claim but more to the feasibility of the

claim. See Di Roma v. Sec’y Health & Human Servs., No. 90–3277, 1993 WL 496981,

*1 (Fed. Cl. Spec. Mstr. Nov. 18, 1993). The circumstances are simply too numerous and

diverse in which any particular individual, who is otherwise healthy or unhealthy, may

subsequently suffer a vaccine-related injury, or an unrelated malady in temporal

proximity to a vaccination, and then seek compensation. Accordingly, the court finds

that the special master’s Fee Decision goes too far by rejecting, as a matter of course, any

consideration of the totality of the circumstances. See Fee Dec., 2013 WL 6234660 at

*16 (favoring a reasonable basis standard premised exclusively on whether there is

evidence constituting “supporting documentation” rather than a “totality of the

circumstances” inquiry).

Nonetheless, the special master is correct that “[r]easonable basis is a standard that

petitioners,” at least generally, “meet by submitting evidence.” Fee Dec., 2013 WL

6234660 at *12. Failure to submit such evidence “carries consequences.” Id. at *13. “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

11

establish reasonable basis.”7 Id. “[A] ‘petitioner must affirmatively establish a

reasonable basis to recover attorneys’ fees and costs.’” Id. (quoting McKellar, 101 Fed.

Cl. at 304). This burden is something less than the preponderant evidence ultimately

required to prevail on one’s vaccine-injury claim.8 Id.

Because “reasonable basis is linked to ‘the claim’ contained in the petition, not the

petition itself,” the reasonable basis inquiry is broad enough to survive a statute of

limitations flaw in a petition. Fee Dec., 2013 WL 6234660 at *15 & 15 n.26 (referring to

§ 300aa-15(e)(1), which links the “good faith” inquiry to the filing of the “petition,” but

the “reasonable basis” inquiry to support for the “claim”); Cloer III, 133 S. Ct. at 1894–

95. The court is similarly persuaded that the reasonable basis inquiry is broad enough to

encompass any material submitted in support of the claim at any time in the proceeding,

whether with the petition or later.

The court agrees with the special master that “[i]n the absence of a Federal Circuit

instruction, it may be easier to define a reasonable basis in terms of what it is not.” Fee

Dec., 2013 WL 6234660 at *13. For example, “[r]easonable basis requires presenting

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

which the petitioner seeks compensation.” Id. Temporal proximity is necessary, but not

sufficient. See id. at *14.

However, the court disagrees with the special master that “[a]ll these reasons

support the [conclusion that] whether petitioners have met their burden regarding

reasonable basis should not include consideration of the statute of limitations.” See id. at

*16 (concluding same). A looming statute of limitations does not forever absolve a

petitioner from his or her obligation to proceed with a reasonable basis to support his

claim, at least not if the petitioner hopes to recover any fees and costs. See § 300(e)(1).

7

The special master cites two examples. Fee Dec., 2013 WL 6234660 at *13

(citing Turpin v. Sec’y Health & Human Servs., No. 99-564V, 2005 WL 1026714, *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 Health & Human

Servs., No. 99-539V, 2005 WL 1026713, *2 (Fed. Cl. Spec. Mstr. March 11, 2005)

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

attorney”)).

8

An off-table petitioner must prove causation by the traditional tort standard of

preponderant evidence, meaning that it is more probable than not that the petitioner in

fact suffered a vaccine-related injury. § 300aa-13(a)(1)(A); Moberly v. Sec’y Health &

Human Servs., 592 F.3d 1315, 1322 & 1322 n.2 (Fed. Cir. 2010).

12

However, the statute of limitations is a factor that may affect the reasonable basis

analysis in appropriate circumstances.9

The court also declines the special master’s invitation to supplant the current

reasonable basis test that is informed by a totality of the circumstances with a reasonable

basis test that turns solely on evidentiary standards. See Fee Dec., 2013 WL 6234660 at

*17 (acknowledging that his “decision’s focus on evidence supporting a finding of

reasonable basis is different from the treatment in other cases”). An evidentiary standard

may serve as an excellent guidepost in fee decisions, but it cannot serve as the bright-line

threshold. Such a rigid position is at variance with the flexible structure of the vaccine

program.

The court considers the following. First, evidentiary rules are relaxed in vaccine

proceedings. Griglock v. Sec’y Health & Human Servs., 687 F.3d 1371, 1376 (Fed. Cir.

2012) (citing § 300aa-12(d)(3)(B)); Masias v. Sec’y Health & Human Servs., 634 F.3d

1283, 1290 (Fed. Cir. 2011) (“[I]n Vaccine Act litigation, evidence need not be presented

under the Federal Rules of Evidence.”) (citation omitted). Second, an effort to engraft a

test for reasonable basis onto the statute would disregard Congress’s plain choice not to

do so, but instead to maximize the special master’s discretion. See § 300aa-15(e)(1).

Third, even if this court were to adopt the proposed evidentiary standard, the court would

be left to determine, just as the special master asks, “how much evidence is sufficient?”

for a fee award to a non-prevailing party on an unsuccessful vaccine petition. See Fee

Dec., 2013 WL 6234660 at *13.

In contrast, under the totality of the circumstances test for reasonable basis, a

special master should consider a number of factors. McKellar, 101 Fed. Cl. at 303; Di

Roma, 1993 WL 496981 at *1. Factors to be considered “include[e] the factual basis, the

medical support, and jurisdictional issues,” and the circumstances under which a petition

is filed. Di Roma, 1993 WL 496981 at *1. Special masters have found reasonable basis

for claims absent medical records or opinions supporting vaccine causation. See Austin

v. Sec’y Health & Human Servs., No. 10–362V, 2013 WL 659574, *8 (Fed. Cl. Spec.

Mstr. Jan. 31, 2013) (citing Hamrick, 2007 WL 4793152, at *7); Lamar v. Sec’y Health

& Human Servs., No. 99–583V, 2008 WL 3845165, *4 (Fed. Cl. Spec. Mstr. July 30,

2008). A reasonable basis might even exist if a petition is filed in an untimely manner

after the close of the statute of limitations. Cloer II, 675 F.3d at 1359–61, 1364 (finding

petitioner would be eligible to receive fees and costs if, on remand, it was found her

9

The court does not need to address the degree of influence that a pending statute of

limitations might have on the reasonable basis inquiry. In this case, even though

petitioner and her counsel waited until the eve of the statute of limitations to file the

petition, they had almost two years of notice of the potential claim, and opportunity to

prepare, before the filing. See Fee Dec., 2013 WL 6234660 at *2 & *3 (noting petitioner

approached the firm in 2005, but the petition was not filed until 2007).

13

petition was brought in good faith and her claim was supported by a reasonable basis,

even though her petition was ultimately found untimely).

The conduct of petitioner’s attorneys also may be relevant in some circumstances.

A reasonable basis is lacking, for example, when a petitioner’s attorney does not properly

investigate a case before filing it. Silva, 108 Fed. Cl. at 405 (sustaining a finding of no

reasonable basis when a petitioner’s attorney failed to perform minimal investigation and

no medical evidence suggested the vaccine caused the injury). Generally, a petitioner

must furnish some evidence in support of the “claim for which the petition is brought” to

establish the statutory requirement of reasonable basis. See Woods, 105 Fed. Cl. at 152

(finding that the special master erred in failing to sufficiently analyze whether there was a

reasonable basis when the special master’s decision “cited no allegations of injury or

causation, no medical records, and no legal authority in determining that [p]etitioner’s

claim had a reasonable basis”); Turpin v. Sec’y Health & Human Servs., No. 99-564V,

2005 WL 1026714, *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

Health & Human Servs., No. 99-539V, 2005 WL 1026713, *2 (Fed. Cl. Spec. Mstr. Mar.

11, 2005) (finding no reasonable basis when petitioner presented only e-mails between

her and her attorney).

The special master acts within his or her discretion when revisiting the reasonable

basis inquiry if such reconsideration is warranted by changed circumstances during the

proceedings. See, e.g., Perreira, 33 F.3d at 1377; McKellar, 101 Fed. Cl. at 303.

Although a claim may have had a reasonable basis at the time of its filing, reasonableness

may later come into question if new evidence becomes available or the lack of supporting

evidence becomes apparent. Perreira, 27 F.3d at 1377. “[W]hen 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 (“[O]nce petitioner-appellants reviewed

the expert opinion upon which their case depended, they no longer had a reasonable basis

for claiming causation-in-fact because the expert opinion was grounded in neither

medical literature nor studies.”).

In this case, petitioner has asserted that reasonable basis is a one-time inquiry, and

once it is found to exist, it cannot be lost in later proceedings of the same case. See

Pet’r’s Mem. 9–11. Petitioner’s argument is unpersuasive. First, petitioner places undue

reliance on the case of Commissioner, I.N.S. v. Jean, 496 U.S. 154 (1990), which held

that the government’s “substantial justification” defense to a prevailing party fee award

under the Equal Access to Justice Act (EAJA) operates as a “one-time threshold.” Jean,

496 U.S. at 160. Fee-shifting provisions in the EAJA and the Vaccine Act are

“fundamentally dissimilar,” such that it is not helpful to analogize the EAJA’s

“substantially justified” standard to the Vaccine Act’s “reasonable basis” standard.

Morse v. Sec’y Dep’t Health & Human Servs., 93 Fed. Cl. 780, 785 (2010) (explaining

distinctions between the statutory provisions); see also Masias, 106 Fed. Cl. 700, 703

14

(2012) (explaining there are “important distinctions between the Vaccine Act and

EAJA”). For example, EAJA awards are available to “prevailing parties” only. 28

U.S.C. § 2412(d)(1)(A). Also, the EAJA contains an explicit statutory check-and-balance

framework—in addition to the substantial justification defense—that disallows recovery

for any portion of the litigation in which the party has “unduly and unreasonably

protracted the final resolution of the matter in controversy.” See 28 U.S.C. §

2412(d)(1)(A), (1)(C).

Second, contrary to petitioner’s contention, permitting further inquiry into

reasonableness is not an invitation to propagate litigation. See Pet’r’s Mem. 10 (arguing

same). The court does not sanction the revisiting of a claim’s reasonable basis for every

case-related activity; nor does the court sanction the revisiting of a claim’s reasonable

basis at certain pre-set stages of a proceeding. See Morse, 93 Fed. Cl. at 786 (reversing

special master’s finding that a separate determination of reasonable basis is necessary for

fees litigation). Rather, the court interprets the statute to permit the reexamination of a

claim’s reasonable basis if a notable change in circumstance should arise (such as here,

when the original counsel was unable to find an expert to support causation, but

substitute counsel continued with the litigation anyway). See Perreira, 33 F.3d at 1377

(affirming the special master’s decision to deny the award of attorney fees for activities

after petitioner received an expert opinion that was “grounded in neither medical

literature nor studies”); Murphy, 30 Fed. Cl. at 62 (finding that expert testimony not

corroborated by the facts was insufficient to establish reasonable basis for a fee claim),

aff’d, 48 F.3d 1236 (Fed. Cir. 1995) (table); see also Stevens v. Sec’y Health & Human

Servs., No. 90–221V, 1992 WL 159520, *4 (Cl. Ct. Spec. Mstr. June 9, 1992) (denying

fees where doctor and lawyer ignored glaring factual shortcomings), aff’d, 996 F.2d 1236

(Fed. Cir. 1993).

The court also rejects petitioner’s attempt to equate reasonable basis with an

attorney’s good faith or “professional judgment” in pursuing a claim. See Pet’r’s Mem.

9, 19–20. Petitioner argues that “[t]he economics and dynamics of Program practice . . .

requires the professional judgment of experienced attorneys . . . . [T]he Program would

not function without the expectation that such professional evaluation will equate to a

reasonable basis.” Id. at 19. Section 15(e) has two distinct facets: good faith and

reasonable basis. § 300aa-15(e)(1). Fees and costs on an unsuccessful vaccine-injury

petition may be recovered only if “the petition was brought in good faith and there was a

reasonable basis for the claim for which the petition was brought.” Id. (emphasis added).

The statute is unambiguous that both requirements must be met before a petitioner

becomes eligible for an award. Moreover, only “good faith” is subjective; “reasonable

basis” is objective. McKellar, 101 Fed. Cl. at 303.

Further, petitioner misinterprets the special master’s decision. The court agrees

with respondent that, “[c]ontrary to petitioner’s allegation, the special master clearly did

not ‘equate reasonable basis with preponderant or prima facie evidence of vaccine

15

causation.’” Resp’t’s’ Mem. 12 n.7 (quoting Pet’r’s Mem. at 15). Rather, the special

master reasoned that “[b]ecause 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.” Fee Dec., 2013 WL 6234660 at *13

(emphasis added). Instead, something less than preponderant evidence is required for

reasonable basis. Id. The special master simply declined to define what affirmative

evidence would be required to support reasonable basis. See id. at 18–24.

Lastly, petitioner complains that “the special master failed to explain what

constitutes enough ‘evidence’ for a petitioner to establish reasonable basis.” Pet’r’s

Mem. 15. The special master did not err in his refusal to define specifically “how much”

evidence, or what evidence, is required to satisfy the reasonable basis standard. As

respondent succinctly explains, “the special master did not have to ‘weigh’ a quantum of

evidence because petitioner produced no relevant evidence to support her causation

claim.” Resp’t’s Mem. 12.

In sum, section 300aa-15(e)(1) provides that the special master may exercise

discretion to award an unsuccessful petitioner attorneys’ fees and costs, but only if the

petitioner filed the petition in good faith and had a reasonable basis for his or her claim.

Reasonable basis is an objective standard that considers the totality of the circumstances.

This standard is consistent with the underlying spirit and purpose of the Vaccine Act, and

strikes the right balance between an award of fees to counsel who have represented

unsuccessful claimants and the statutorily expressed congressional intent to impose some

limitations on fee awards. Both the statute and case law may contemplate the evidentiary

standard set out by the special master, but neither the statute nor case law compels it.

Accordingly, the court declines to do so.

B. The Special Master Did Not Abuse His Discretion In Denying Fees

The special master did not abuse his discretion in determining that petitioner was

not entitled to attorneys’ fees or costs on her unsuccessful petition for compensation. See

Fee Dec., 2013 WL 6234660 at *18–24. Although the special master ventured too far in

his attempt to impose an evidentiary test for reasonable basis under § 300aa-15(e)(1), he

properly exercised his discretion, in this case, to deny fees to petitioner based on the

complete lack of evidentiary support for her claim and counsel’s delayed due diligence.

As the special master correctly noted, petitioner “cite[d] to no evidence supporting

a causal connection between the flu vaccine and Ms. D’Esposito’s death.” Fee Dec.,

2013 WL 6234660 at *18. An examination of the record supports the special master’s

conclusion. None of her medical records reflected a causal connection; rather, her

medical records detailed comorbidities and attributed Ms. D’Esposito’s injuries and death

to non-vaccine-related causes. In addition, neither the hospital discharge summary, nor

her death certificate, mentions the flu vaccine. Further, there is no evidence in the record

that any of her treating providers were willing to attribute any of her injuries to the

16

vaccination. Lastly, although counsel consulted with three immunologists, no one was

willing to opine on causation in this case. Instead, petitioner relies solely on temporal

proximity and petitioner’s affidavit, but these materials are not sufficient. See § 300aa-

13(a)(1) (A special master may not award compensation “based on the claims of a

petitioner alone, unsubstantiated by medical records or medical opinion.”); see also

Cedillo v. Sec’y Health & Hu man Servs., 617 F.3d 1328, 1347–48 (Fed. Cir. 2010);

Caves v. Sec’y Health & Human Servs., 100 Fed. Cl. 119, 135–37 (2011), aff’d per

curium without opinion, 463 F. App’x 932 (Fed. Cir. 2012).

In support of her reasonable basis arguments, petitioner also points to the activities

of her counsel in preparing and pursuing the claim. Contrary to the special master’s

finding, see Fee Dec., 2013 WL 6234660 at *19, the court is persuaded that counsel’s

activities can inform the totality of the circumstances that factor into a reasonable basis

analysis. The court cannot say, however, that the special master abused his discretion by

not crediting counsel for their work in this case. Reasonable minds can differ on whether

counsel’s activities reflected sufficient, timely due diligence. See Fee Dec., 2013 WL

6234660 at *2–3 (detailed recitation of CHC-C’s work before filing petition); id. at *4–5

(detailed recitation of CHC-C’s work after filing the petition); id. at *5–6 (detailed

recitation of Moxley’s work).

For example, although CHC-C engaged in some effort to procure Ms.

D’Esposito’s medical records before filing the petition, one could construe the firm’s

timesheets to reflect an earnest effort only after they filed the petition. See CHC-C’s

Timesheets. In addition, there is no evidence that CHC-C engaged in any survey of

medical or legal literature concerning causation, such as a review of medical studies or

vaccine caselaw, until January 2008, five months after the petition was filed. See CHC-C

Timesheets at 15. Likewise, communications with experts did not begin in earnest until

July 2008, after respondent had filed its report. Id. at 18. While the court does not

require, as a rule, that the firm engage in causation research or expert communications

earlier, an earlier effort arguably was warranted in this case given that counsel knew or

should have known there was no evidence of causation in the records, no support for

causation from treating providers, and ample evidence of non-vaccine-related

comorbidities. Even an earlier telephone call to one of the firm’s regularly retained

experts might have provided some evidence of timely due diligence.

The petition was filed on the eve of the expiration of limitations and the facts here

indicate that counsel played a role in the delayed filing of the petition. Ms. Chuisano

approached the firm in March 2005, but the petition was not filed until June 2007. See

Fee Dec., 2013 WL 6234660 at *2–3. During the two year period before counsel filed

the petition, counsel largely placed the burden of assembling records on Ms. Chuisano,

and did not bring its expertise in procuring records to bear until sometime later. The

court will not encourage delays in the filing of petitions, or delay in the exercise of other

17

due diligence, by sanctioning a bright-line rule that finds the existence of a reasonable

basis for every claim filed on the eve of the limitations period.

Petitioner insists that her case “had a reasonable basis in medicine and literature”

that was “known to counsel and revealed to the [special] master.” Pet’r’s Mem. 15. The

court agrees with respondent, however, that “[t]his assertion is specious and without any

basis in the record.” Resp’t’s Mem. 14. The only evidence petitioner offered to support

causation-in-fact was a temporal proximity between the vaccination and her injury, and

an affidavit detailing her subjective belief of vaccine-related injury. Counsel’s own

unsupported medical theory does not provide evidence of causation-in-fact; nor is it

sufficient to create a reasonable basis to support a claim. Further undercutting

petitioner’s assertion that she had a reasonable basis for bringing her claim is the refusal

of the three consulted immunologists to opine favorably about causation.

Petitioner contends that her “reaction to this vaccine” is “indisputable.” Pet’r’s

Mem. 17; see also id. at 18 (arguing that “medical records demonstrated that Ms.

D’Esposito became ill soon after the vaccine and that no other cause was identified for

that illness”). But, as a factual matter, petitioner’s assertion is not only unsupported by

the medical records, but is contradicted by them.

Petitioner presses for consistency in the decisions of the special masters and this

court, Pet’r’s Mem. 1, 3–4, 7–8, although such is not required as a matter of law, see

Hanlon v. Sec’y Health & Human Servs., 40 Fed. Cl. 625, 630 (1998), aff’d, 191 F.3d

1344 (Fed. Cir. 1999). Petitioner erroneously relies on the case of Davis v. Secretary of

Health and Human Services, 105 Fed. Cl. 627, 637 (2012). Pet’r’s Mem. 8. In Davis, the

court “g[ave] weight to the outcome” in a similar case in which a special master had

found that a claimant had established causation and was entitled to compensation. 105

Fed. Cl. at 637. However, the court also noted that “[t]here is nothing inherently

improper in the disparate outcomes of these two cases, of course.” Id. (explaining further

that there were salient differences between the two cases).

The special master’s decision in this case finds support in the caselaw. As the

special master points out, the Court of Federal Claims entered a similar decision on

similar facts in Silva v. Secretary of Health and Human Services. Fee Dec., 2013 WL

6234660 at *21 (discussing Silva, 108 Fed. Cl. at 401, aff’g Case No. 10-101V, 2012 WL

2890452 (Fed. Cl. Spec. Mstr. June 22, 2012)). In that case, the court affirmed the

special master’s decision, finding he did not abuse his discretion in denying fees to

attorneys on an unsuccessful petition.10 Silva, 108 Fed. Cl. at 405. As in the case at bar,

Ms. Silva’s attorneys filed the petition with little preliminary investigation of her claim.

Id. at 403–04. Ms. Silva ultimately failed to offer any evidence of causation-in-fact and

10

Special Master Moran, as well as petitioner’s counsel CHC-C, were involved in

that case, just as they are here.

18

her case was dismissed for lack of proof. Id. The special master denied fees, and this

court affirmed. Id. at 405. The failure to offer a medical opinion was not the sole reason

for the denial of fees; rather, other factors were at play, such as counsel’s delay in

reviewing records that were in counsel’s possession when the petition was filed;

counsel’s failure to account for records that cast doubt on the proposed causation theory;

counsel’s general lack of due diligence; and the complete lack of any evidence of

causation-in-fact. See id.

In Austin v. Secretary of the Department of Health and Human Services, the

special master awarded fees to CHC-C in a similar factual circumstance, but the special

master acknowledged that “[t]he issue of [whether a] reasonable basis [existed] to file

and maintain this claim [was] a very close one.” No. 10-362V, 2013 WL 659574, *15

(Fed. Cl. Spec. Mstr. Jan. 31, 2013). In that case, petitioner’s counsel had a twenty-

month period in which to process the potential claim before filing, but no effort was made

to obtain a review by a medical expert. Id. at *5. However, counsel could cite to at least

one statement by a medical provider to support causation and timing. Id. at *6. The

special master reasoned that this single notation “salvage[d] the reasonable basis for this

case [because it] suggest[ed] a link between [the injury] and [petitioner’s] vaccination.”

Id. at *11. Thus, the special master “conclude[d] that there was a reasonable basis, albeit

an extremely weak one, to file and maintain this claim, up to the point when a favorable

expert report could not be obtained.” Id.

Although petitioner asserts, Pet’r’s Mem. 7, that the events surrounding Ms.

D’Esposito’s death are “almost indistinguishable from the . . . successful death-benefit

claim” in Bragg v. Sec’y Dep’t Health & Human Servs., No. 08-477V, 2012 WL 404773

(Fed. Cl. Spec. Mstr. Jan. 18, 2012), this is simply not the case. Mr. Bragg died after

receipt of a flu vaccine, with a diagnosis of sepsis. Bragg, 2012 WL 404773 at *1–2. He

had been in good health before the vaccine was administered and died within days of the

vaccine administration. Id. At least one treating physician expressed concern regarding a

possible causal connection between the flu vaccine and Mr. Bragg’s declining medical

health. Id. at *3. The hospital sent a vaccine adverse event report (VAER) to the Center

for Disease Control, reflecting some concern of a vaccine-related injury. Id. Counsel

submitted numerous articles reflecting medical studies and other literature to support

causation. Id. at *3–6. An expert opined on causation. Id. at *12. And, petitioner

ultimately prevailed on the compensation claim. Id. at *30. None of these facts or

circumstances are present in this case.

The court does not question CHC-C’s good faith in pursuing this claim on

petitioner’s behalf. Moreover, the court might have sustained the original reduced fee

award to CHC-C had it come before this court on review; however, it did not. The

special master’s initial fee decision was withdrawn, and the court does not conclude that

the special master abused his discretion in determining, on reconsideration, that the press

19

of the statute of limitations did not furnish CHC-C a reasonable basis for an award of its

fees.

Petitioner contends that the special master had no authority to revisit the award to

CHC-C. Pet’r’s Mem. 11. But petitioner misses the mark. The special master properly

reconsidered CHC-C’s fees. As he correctly explained, Vaccine Rule 10(e) provides that

a withdrawn decision is “void for all purposes and the special master must subsequently

enter a superseding decision.” Fee Dec., 2013 WL 6234660 at *8 (quoting Vaccine Rule

10(e)). “As a consequence of the withdrawal, it is as if the [initial fee decision] never

issued.” Id. As a result, CHC-C’s original request for fees and costs was still pending

and ripe for review. The special master, therefore, necessarily had to issue new findings

with respect to CHC-C’s fees. Both petitioner and respondent were afforded an

opportunity to brief CHC-C’s entitlement on reconsideration, and petitioner now balks at

the decision issued further to her request that the special master reconsider his earlier

decision. The special master found, on the facts of this case, that CHC-C lacked a

reasonable basis for bringing a claim on petitioner’s behalf.

The special master also found that Mr. Moxley lacked a reasonable basis for

continuing to pursue petitioner’s claim after his seasoned colleagues at CHC-C had

exerted multiple efforts to locate a medical opinion on causation and failed to obtain one.

Even so, if Mr. Moxley had a reasonable likelihood of otherwise obtaining an expert, the

court would have expected some record evidence to reflect that likelihood, such as a

preliminary conference with a potential expert before he agreed to assume representation.

In any event, Mr. Moxley should have pursued and exhausted his efforts to retain an

expert in an expeditious manner immediately after he assumed representation in

November 2009. Instead, Mr. Moxley continued the litigation for an additional one and a

half years before moving on petitioner’s behalf for a decision on the record in May 2011.

Respondent has correctly observed that “[a]s long as ‘the special master has

considered the relevant evidence,’ ‘drawn plausible inferences,’ and stated ‘a rational

basis for the decision,’ reversible error is extremely difficult to establish.” Resp’t’s Mem.

9 (quoting Hines v. Sec’y Health & Human Servs., 940 F.2d 1518, 1528 (Fed. Cir.

1991)). Here, the special master considered relevant evidence, drew plausible inferences,

and set forth a rational basis for his decision. Accordingly, the court sustains his

decision.

IV. FEES ON APPEAL

The Court of Federal Claims also enjoys discretion to award a petitioner’s fees and

costs on motion for review, even if the motion is unsuccessful. § 300aa-15(e)(1); see

Masias, 106 Fed. Cl. at 704 (“[M]embers of the Vaccine Bar should be encouraged to

seek clarification of doctrine by way of appeal, even regarding the availability of

attorneys’ fees.”). The court does not question counsel’s good faith, but does find the

motion for review wanting for reasonableness. Although the court declines to articulate a

20

bright-line test for reasonable basis, the court does not disagree with the factors the

special master considered when denying fees. The special master’s decision reflects a

reasoned analysis in which he properly exercised his discretion to deny fees. As such, the

court does not find counsel had a reasonable basis to seek review.

V. CONCLUSION

The special master’s denial of attorneys’ fees and costs was permissible under the

Vaccine Act; accordingly, the court SUSTAINS the decision. It was not arbitrary,

capricious, an abuse of discretion or otherwise not in accordance with law. The Clerk of

the Court shall enter judgment accordingly. No fees or costs on review.

IT IS SO ORDERED.

s/ Patricia Campbell-Smith

PATRICIA CAMPBELL-SMITH

Chief Judge

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