Hashi v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 08-308V

(To be published)

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

*

HUSSEIN HASHI and *

SAFIA WEGED, parents *

of O.H., a minor, *

*

Petitioners, *

* Filed: August 25, 2016

v. *

* Autism; Decision on Attorneys’

SECRETARY OF HEALTH AND * Fees and Costs; Reasonable Basis

HUMAN SERVICES *

*

Respondent. *

*

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

Elaine W. Sharp, Esq., Whitfield, Sharp & Sharp, Marblehead, MA, for Petitioners.

Heather L. Pearlman, Esq., U.S. Dept. of Justice, Washington, DC, for Respondent.

DECISION AWARDING ATTORNEYS’ FEES AND COSTS

HASTINGS, Special Master.

In this case under the National Vaccine Injury Compensation Program (hereinafter “the

Program”1), Petitioners seek, pursuant to 42 U.S.C. § 300aa-15(e)(1), an award for attorneys’

fees and other costs incurred in attempting to obtain Program compensation. They seek a total

amount of $32,063.65. After careful consideration, I have determined to grant the request in

part, but to deny the greater part, because it was not reasonable for Petitioners to proceed further

with this case after April of 2012.

1

The applicable statutory provisions defining the Program are found at 42 U.S.C. § 300aa-

10 et seq. (2012 ed.). Hereinafter, for ease of citation, all "§" references will be to 42 U.S.C.

(2012 ed.). The statutory provisions defining the Program are also sometimes referred to as the

“Vaccine Act.”

1

I

BACKGROUND LAW CONCERNING ATTORNEYS’ FEES AND COSTS AWARDS

A. General

Special masters have the authority to award “reasonable” attorneys' fees and litigation

costs in Vaccine Act cases. §300aa–15(e)(1). This is true even when a petitioner is unsuccessful

on the merits of the case -- in such cases, a special master “may” award fees, if the petition was

filed in good faith and with a reasonable basis. Id. (Of course, the statutory use of the term

“may” also means that a special master may also, in his or her discretion, decline to award any

attorneys’ fees or costs to a petitioner whose case is unsuccessful on the merits. Chuisano v.

HHS, 116 Fed. Cl. 276, 284-85 (2014). “The determination of the amount of reasonable

attorneys' fees is within the special master's discretion.” Saxton v. HHS, 3 F.3d 1517, 1520 (Fed.

Cir. 1993); see also Shaw v. HHS, 609 F.3d 1372, 1377 (Fed. Cir. 2010).

Further, as to all aspects of a claim for attorneys' fees and costs, the burden is on the

petitioner to demonstrate that the attorneys' fees claimed are “reasonable.” Sabella v. HHS, 86

Fed. Cl. 201, 215 (2009); Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); Rupert v. HHS, 52

Fed. Cl. 684, 686 (2002); Wilcox v. HHS, No. 90–991V, 1997 WL 101572, at *4 (Fed. Cl. Spec.

Mstr. Feb. 14, 1997). The petitioner's burden of proof to demonstrate “reasonableness” applies

equally to costs as well as attorneys' fees. Perreira v. HHS, 27 Fed. Cl. 29, 34 (1992), aff'd, 33

F.3d 1375 (Fed. Cir. 1994).

One test of the “reasonableness” of a fee or cost item is whether a hypothetical petitioner,

who had to use his own resources to pay his attorney for Vaccine Act representation, would be

willing to pay for such expenditure. Riggins v. HHS, No. 99–382V, 2009 WL 3319818, at *3

(Fed. Cl. Spec. Mstr. June 15, 2009), aff'd by unpublished order (Fed. Cl. Dec. 10, 2009), aff’d,

406 Fed. App’x 479 (Fed. Cir. 2011); Sabella v. HHS, No. 02–1627V, 2008 WL 4426040, at *28

(Fed. Cl. Spec. Mstr. Aug. 29, 2008), aff'd in part and rev'd in part, 86 Fed. Cl. 201 (2009). In

this regard, the United States Court of Appeals for the Federal Circuit has noted that:

[i]n the private sector, ‘billing judgment’ is an important component in fee setting. It is

no less important here. 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 (emphasis in original) (quoting Hensley, 461 U.S. at 433–34). Therefore,

in assessing the number of hours reasonably expended by an attorney, the court must exclude

those “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.” Hensley, 461 U.S.

at 434; see also Riggins, 2009 WL 3319818, at *4.

The U.S. Court of Appeals for the Federal Circuit has also made clear that special

masters may rely on their prior experience in making reasonable fee determinations, without

conducting a line-by-line analysis of the fee bill, and are not required to rely on specific

objections raised by respondent. See Saxton, 3 F.3d at 1521; Sabella, 86 Fed. Cl. 201, 209

(2009); see also Wasson v. HHS, 24 Cl. Ct. 482, 484, 486 (1991), aff’d, 988 F.2d 131 (Fed. Cir.

2

1993) (holding that, in determining a reasonable number of hours expended in any given case, a

special master may rely on her experience with the Vaccine Act and its attorneys, without basing

her decision on a line-by-line examination of the fee application). A unanimous Supreme Court

has articulated a similar holding:

We emphasize, as we have before, that the determination of fees “should not result in a

second major litigation.” The fee applicant (whether a plaintiff or a defendant) must, of

course, submit appropriate documentation to meet “the burden of establishing entitlement

to an award.” But trial courts need not, and indeed should not, become green-eyeshade

accountants. The essential goal in shifting fees (to either party) is to do rough justice, not

to achieve auditing perfection. So trial courts may take into account their overall sense of

a suit, and may use estimates in calculating and allocating an attorney’s time. And

appellate courts must give substantial deference to these determinations, in light of “the

district court’s superior understanding of the litigation.” We can hardly think of a sphere

of judicial decisionmaking in which appellate micromanagement has less to recommend

it.

Fox v. Vice, 563 U.S. 826, 838 (2011) (internal citations omitted).

B. Reasonable basis

As noted above, even if a petitioner is unsuccessful in obtaining Vaccine Act

compensation for an injury, a special master “may” award fees and costs. (§300aa–15(e)(1).) Of

course, as recently noted by Chief Judge Campbell-Smith, the statutory use of the term “may”

means that a special master can also, in his or her discretion, decline to award any attorneys’ fees

or costs to a petitioner whose case is unsuccessful on the merits, if the special master does not

find that an award is deserved under all the circumstances. Chuisano v. HHS, 116 Fed. Cl. 276,

285-286 (2014). In practice, special masters have generally awarded fees, or declined to do so,

based upon whether there was a “reasonable basis” for the claim advanced by the petitioners.

The statute and legislative history afford no guidance as to the precise meaning of

“reasonable basis,” and the case law is relatively scant. The Chief Judge of this Court has

explained that not all claims should be found to have a reasonable basis, and that whether a

reasonable basis exists is determined by the “totality of the circumstances.” Chuisano v. HHS,

116 Fed. Cl. at 285-286. A special master has “discretion” in determining whether a reasonable

basis existed. Murphy v. HHS, 30 Fed. Cl. 60, 61 (1993), aff’d without opinion, 48 F.3d 1236

(1995) (judge affirmed a denial of reasonable basis, noting that the determination concerning

reasonable basis is reviewed under an “abuse of discretion” standard). In other cases in which,

as in Murphy, a judge affirmed a denial of reasonable basis, the court remarked that the special

master’s discretion is “wide” (Perreira v. HHS, 27 Fed. Cl. 29, 34 (1992)), and “very broad”

(Silva v. HHS, 108 Fed. Cl. 401, 405 (2012)). In fact, in Silva, the court remarked that it is

“difficult to imagine a broader grant of authority and discretion.” 108 Fed. Cl. at 405.

In a significant number of Vaccine Act cases, special masters have found that no

reasonable basis existed either to file the case, or to prosecute it beyond a certain point. In

almost all of those instances, the petitioner either did not seek review, or the special master’s

finding concerning reasonable basis was upheld on review. See, e.g., Somosot v. HHS, No. 13-

710V, 2014 WL 6536059 (Fed. Cl. Spec. Mstr. Oct. 31, 2014), aff’d, 120 Fed. Cl. 716 (2015);

3

Chuisano v. HHS, No. 07-452V, 2013 WL 6234660 (Fed. Cl. Spec. Mstr. Oct. 25, 2013), aff’d,

116 Fed. Cl. 276 (2014); Cortez v. HHS, No. 09-176V, 2014 WL 1604002 (Fed. Cl. Spec. Mstr.

Mar. 26, 2014); Silva v. HHS, No. 10-101V, 2012 WL 2890452 (Fed. Cl. Spec. Mstr. June 22,

2012), aff’d, 108 Fed. Cl. 401 (2012); Browning v. HHS, No. 07-453V, 2010 WL 4359237 (Fed.

Cl. Spec. Mstr. Sept. 27, 2010); Brown v. HHS, No. 99-539V, 2005 WL 1026713 (Fed. Cl. Spec.

Mstr. Mar. 11, 2005); Smith v. HHS, No. 91-057V, 1992 WL 210999 (Cl. Ct. Spec. Mstr. Aug.

13, 1992); Livingston v HHS, No. 12-268V, 2015 WL 4397705 (Fed. Cl. Spec. Mstr. June 26,

2015); Rydzewski v. HHS, No. 99-571V, 2008 WL 382930 (Fed. Cl. Spec. Mstr. Jan. 29, 2008);

McCabe v. HHS, No. 91-1540V, 1993 WL 135860 (Fed. Cl. Spec. Mstr. Apr. 15, 1993); Stevens

v. HHS, No. 90-221V, 1992 WL 159520 (Cl. Ct. Spec. Mstr. June 9, 1992), aff’d, 996 F.2d 1236

(Fed. Cir. 1993)(unpublished); Dews v. HHS, No. 13-569V, 2015 WL 1779148 (Fed. Cl. Spec.

Mstr. Mar. 30, 2015) (finding no reasonable basis in a case in which Ms. Sharp was counsel).

One key opinion of the United States Court of Appeals for the Federal Circuit,

discussing the “reasonable basis” requirement in a Vaccine Act case, is Perreira v. HHS, 33 F.

3d 1375 (Fed. Cir. 1994). In Perreira, the special master concluded that the petitioners had a

reasonable basis for initially filing the petition and for the first part of their prosecution of the

case, but concluded that there was no reasonable basis for pursuing the case beyond the point

when the Perreiras submitted an expert report, at which time the Perreiras’ attorneys should have

realized that their expert’s theory was plainly deficient to demonstrate causation. 33 F.3d at

1376. The special master denied fees and costs for work performed after that point, in taking the

case to an evidentiary hearing. Id. Both the Court of Federal Claims (27 Fed. Cl. 29 (1992)), and

the Federal Circuit (33 F.3d at 1376-77) affirmed.

The Court of Federal Claims judge rejected the Perreiras’ argument that they

automatically passed the “reasonable basis” test because they were relying on an expert’s report,

finding that argument to be “unreasonable.” 27 Fed. Cl. at 33-34. The judge found that under all

the circumstances of the case, for the petitioners to take the case to an evidentiary hearing “with

no support in the contemporaneous medical records,” and with no “reputable medical opinion or

scientific studies” (emphasis added) was also “unreasonable.” Id. at 34.

The Federal Circuit agreed with the court below, observing that “counsel’s duty to

zealously represent their client does not relieve them of their duty to the court to avoid frivolous

litigation.” 33 F.3d. at 1377. The appellate court added that Congress did not intend that every

claimant qualify for an attorneys’ fee award “by merely having an expert state an unsupported

opinion that the vaccine was the cause in-fact of the injury.” Id. The court concluded that the

special master did not err in determining that the Perreiras “no longer had a reasonable basis for

claiming causation in-fact” after their expert report was filed. Id.

4

II

BACKGROUND: THE OMNIBUS AUTISM PROCEEDING (“OAP”)

This case is one of more than 5,400 cases filed under the Program in which petitioners

alleged that conditions known as “autism” or “autism spectrum disorders” (“ASD”)2 were caused

by one or more vaccinations. A special proceeding known as the Omnibus Autism Proceeding

(“OAP”) was developed to manage these cases within the Office of Special Masters (“OSM”).3

A detailed history of the controversy regarding vaccines and autism, along with a history of the

development of the OAP, was set forth in the six entitlement decisions issued as “test cases” for

two theories of causation litigated in the OAP (see cases cited below), and will only be

summarized here.

A group called the Petitioners’ Steering Committee (“PSC”) was formed in 2002 by the

many attorneys who represented Vaccine Act petitioners who raised autism-related claims.

About 180 attorneys participated in the PSC. Their responsibility was to develop any available

evidence indicating that vaccines could contribute to causing autism, and eventually present that

evidence in a series of “test cases,” exploring the issue of whether vaccines could cause autism,

and, if so, in what circumstances. Ultimately, the PSC selected groups of attorneys to present

evidence in two different sets of “test cases” during many weeks of trial in 2007 and 2008. In

the six test cases, the PSC presented two separate theories concerning the causation of ASDs.

The first theory alleged that the measles portion of the measles, mumps, rubella (“MMR”)

vaccine could cause ASDs. That theory was presented in three separate Program test cases

during several weeks of trial in 2007. The second theory alleged that the mercury contained in

thimerosal-containing vaccines could directly affect an infant’s brain, thereby substantially

contributing to the causation of ASD. That theory was presented in three additional test cases

during several weeks of trial in 2008.

Decisions in each of the three test cases pertaining to the PSC’s first theory rejected the

petitioners’ causation theories. Cedillo v. HHS, No. 98-916V, 2009 WL 331968 (Fed. Cl. Spec.

Mstr. Feb. 12, 2009) aff’d, 89 Fed. Cl. 158 (2009), aff’d, 617 F.3d 1328 (Fed. Cir. 2010);

Hazlehurst v. HHS, No. 03-654V, 2009 WL 332306 (Fed. Cl. Spec. Mstr. Feb. 12, 2009), aff’d

2

“Autism Spectrum Disorder” is a general classification which as of 2010 included five

different specific disorders: Autistic Disorder, Childhood Disintegrative Disorder, Asperger’s

Syndrome, Rett Syndrome, and Pervasive Developmental Disorder Not Otherwise Specified

(PDD-NOS). King v. HHS, No. 03-584V, 2009 WL 892296 at *5 (Fed. Cl. Spec. Mstr. Feb. 12,

2010). The term “autism” is often utilized to encompass all of the types of disorders falling

within the autism spectrum. (Id.) I recognize that since the OAP test cases, the consensus

description of ASDs, contained now in the “DSM-V” as opposed to the prior “DSM-IV,” revises

the prior subcategories of ASD set forth in the first sentence of this footnote. However, the

DSM-V retains the same general description of ASDs. An ASD is a serious form of

neurodevelopmental disorder defined by a collection of symptoms and behaviors, including

significant impairment of social interaction and language skills, and the presence of repetitive,

stereotyped interests. E.g., Snyder v. HHS, No. 01-162V, 2009 WL 332044, at *31 (Fed. Cl.

Spec. Mstr. Feb. 12, 2009).

3

See Autism General Order No. 1, 2002 WL 31696785 (Fed. Cl. Spec. Mstr. July 3, 2002).

5

88 Fed. Cl. 473 (2009), aff’d, 604 F.3d 1343 (Fed. Cir. 2010); Snyder v. HHS, No. 01-162V,

2009 WL 332044 (Fed. Cl. Spec. Mstr. Feb. 12, 2009), aff’d, 88 Fed. Cl. 706 (2009).4 Decisions

in each of the three “test cases” pertaining to the PSC’s second theory also rejected the

petitioners’ causation theories, and the petitioners in each of those three cases chose not to

appeal. Dwyer v. HHS, No. 03-1202V, 2010 WL 892250 (Fed. Cl. Spec. Mstr. Mar. 12, 2010);

King v. HHS, No. 03-584V, 2010 WL 892296 (Fed. Cl. Spec. Mstr. Mar 12, 2010); Mead v.

HHS, No. 03-215V, 2010 WL 892248 (Fed. Cl. Spec. Mstr. Mar. 12, 2010).

The “test case” decisions were comprehensive, analyzing in detail all of the evidence

presented on both sides. The three test case decisions concerning the PSC’s first theory

(concerning the MMR vaccine) totaled more than 600 pages of detailed analysis, and were

solidly affirmed in many more pages of analysis in three different rulings by three different

judges of the United States Court of Federal Claims, and in two rulings by two separate panels of

the United States Court of Appeals for the Federal Circuit. The three decisions by special

masters concerning the PSC’s second theory (concerning vaccinations containing the mercury-

based preservative “thimerosal”) were similarly comprehensive.

All told, the 11 lengthy written rulings by the special masters, the judges of the U.S.

Court of Federal Claims, and the panels of the U.S. Court of Appeals for the Federal Circuit

unanimously rejected the petitioners’ claims, finding no persuasive evidence that either the

MMR vaccine or thimerosal-containing vaccines could contribute in any way to the causation of

autism.

Thus, the proceedings in the six “test cases” concluded in 2010. Thereafter, the

Petitioners in this case, and the petitioners in other cases within the OAP, were instructed to

decide how to proceed with their own claims. The vast majority of those autism petitioners

elected either to withdraw their claims, or to request that the special master file a decision

denying their claim on the written record, resulting in a decision rejecting the petitioner’s claim

for lack of support. However, a small minority of the autism petitioners have elected to continue

to pursue their cases, seeking other causation theories and/or other expert witnesses. A number

of such cases have gone to trial before a special master, and in the cases of this type decided thus

far, all have resulted in rejection of petitioners’ claims that vaccines played a role in causing

their child’s autism. See, e.g., Henderson v. HHS, No. 09-616V, 2012 WL 5194060 (Fed. Cl.

Spec. Mstr. Vowell Sept. 28, 2012) (autism not caused by pneumococcal vaccination); Franklin

v. HHS, No. 99-855V, 2013 WL 3755954 (Fed. Cl. Spec. Mstr. Hastings May 16, 2013) (MMR

and other vaccines found not to contribute to autism); Coombs v. HHS, No. 08-818V, 2014 WL

1677584 (Fed. Cl. Spec. Mstr. Hastings Apr. 8, 2014) (autism not caused by MMR or Varivax

vaccines); Long v. HHS, No. 08-792V, 2015 WL 1011740 (Fed. Cl. Spec. Mstr. Hastings Feb.

19, 2015) (autism not caused by influenza vaccine); Brook v. HHS, No. 04-405V, 2015 WL

3799646 (Fed. Cl. Spec. Mstr. Hastings May 14, 2015) (autism not caused by MMR or Varivax

vaccines); Holt v. HHS, No. 05-136V, 2015 WL 4381588 (Fed. Cl. Spec. Mstr. Vowell June 24,

2015) (autism not caused by hepatitis B vaccine); Lehner v. HHS, No. 08-554V, 2015 WL

5443461 (Fed. Cl. Spec. Mstr. Vowell July 22, 2015) (autism not caused by influenza vaccine);

Miller v. HHS, No. 02-235V, 2015 WL 5456093 (Fed. Cl. Spec. Mstr. Vowell August 18, 2015)

(ASD not caused by combination of vaccines); Allen v HHS, No. 02-1237V, 2015 WL 6160215

4

The petitioners in Snyder did not appeal the decision of the U.S. Court of Federal Claims.

6

(Fed. Cl. Spec. Mstr. Vowell Sept. 26, 2015) (autism not caused by MMR vaccination); R.K. v.

HHS, No. 03-632V, 2015 WL 10936124 (Fed. Cl. Spec. Mstr. Vowell Sept. 28, 2015), aff’d, 125

Fed. Cl. 57 (2016) (autism not caused by influenza vaccine); Hardy v. HHS, No. 08-108V, 2015

WL 7732603 (Fed. Cl. Spec. Mstr. Hastings Nov. 3, 2015) (autism not caused by several

vaccines); Sturdivant v. HHS, No. 07-788V, 2016 WL 552529 (Fed. Cl. Spec. Mstr. Hastings

Jan. 21, 2016) (autism not caused by Hib and Prevnar vaccines); R.V. v. HHS, No. 08-504V,

2016 WL 3882519 (Fed. Cl. Spec. Mstr. Corcoran Feb. 19, 2016) (autism not caused by

influenza vaccine), aff’d, 2016 WL 3647786 (Fed. Cl. June 2, 2016); Murphy v. HHS, No. 05-

1063V, 2016 WL 3034047 (Fed. Cl. Spec. Mstr. Corcoran April 25, 2016) (autism not caused by

DTaP or MMR vaccines), aff’d, (Aug. 15, 2016) (not yet published); Cunningham v. HHS, No.

13-483V (Fed. Cl. Spec. Mstr. Hastings Aug. 1, 2016) (not yet published).

In addition, some autism causation claims have been rejected without trial, at times over

the petitioner’s objection, in light of the failure of the petitioner to file plausible proof of

vaccine-causation. See, e.g., Waddell v. HHS, No. 10-316V, 2012 WL 4829291 (Fed. Cl. Spec.

Mstr. Campbell-Smith Sept. 19, 2012) (autism not caused by MMR vaccination); Fester v. HHS,

No. 10-243V, 2016 WL 1745436 (Fed. Cl. Spec. Mstr. Dorsey April 7, 2016) (autism not caused

by measles, mumps, rubella, and varicella (MMRV) vaccine); Fresco v. HHS, No. 06-469V,

2013 WL 364723 (Fed. Cl. Spec. Mstr. Vowell Jan. 7, 2013) (autism not caused by multiple

vaccines); Fesanco v. HHS, No. 02-1770, 2010 WL 4955721 (Fed. Cl. Spec. Mstr. Hastings

Nov. 9, 2010) (autism not caused by multiple vaccines); Miller v. HHS, No. 06-753V, 2012 WL

12507077 (Fed. Cl. Spec. Mstr. Hastings Sept. 25, 2012) (autism not caused by DTaP or MMR

vaccines); Blake v. HHS, No. 03-31V, 2014 WL 2769979 (Fed. Cl. Spec. Mstr. Vowell May 21,

2014) (autism not caused by MMR vaccination); Pietrucha v. HHS, No. 00-269V, 2014 WL

4538058 (Fed. Cl. Spec. Mstr. Hastings Aug. 22, 2014) (autism not caused by multiple

vaccines); Bushnell v. HHS, No. 02-1648, 2015 WL 4099824 (Fed. Cl. Spec. Mstr. Hastings June

12, 2015) (autism not caused by multiple vaccines); Bokmuller v. HHS, No. 08-573, 2015 WL

4467162 (Fed. Cl. Spec. Mstr. Hastings June 26, 2015) (autism not caused by multiple vaccines);

Canuto v. HHS, No. 04-1128, 2015 WL 9854939 (Fed. Cl. Spec. Mstr. Hastings Dec. 18, 2015)

(autism not caused by DTP and DTaP vaccines); Valle v. HHS, No. 02-220V, 2016 WL 2604782

(Fed. Cl. Spec. Mstr. Hastings April 13, 2016) (autism not caused by DTaP vaccine); Hooker v.

HHS, 02-472V, 2016 WL 3456435 (Fed. Cl. Spec. Mstr. Hastings May 19, 2016) (autism not

caused by multiple vaccines). Judges of this court have affirmed the practice of dismissal

without trial in such cases. E.g., Fesanco v. HHS, 99 Fed. Cl. 28 (2011) (Judge Braden

affirming); Canuto v. HHS, No. 04-1128V, 2016 WL 2586510 (Fed. Cl. Apr. 18, 2016) (Judge

Yock affirming).

In none of the rulings since the test cases has a special master or judge found any merit in

an allegation that any vaccine can contribute to causing autism.5

5

I am well aware, of course, that during the years since the “test cases” were decided, in

two cases involving vaccinees suffering from ASDs, Vaccine Act compensation was granted.

But in neither of those cases did the Respondent concede, nor did a special master find, that there

was any “causation-in-fact” connection between a vaccination and the vaccinee’s ASD. Instead,

in both cases it was conceded or found that the vaccinee displayed the symptoms of a Table

Injury within the Table time frame after vaccination. (See §300aa-11(c)(1)(C)(i); §300aa-14.)

7

III

PROCEDURAL BACKGROUND

Petitioners Safia Weged and Hussein Hashi (“Petitioners”), on April 22, 2008, filed the

“short-form petition” authorized by the Autism General Order # 1, 2002 WL 31696785 (Fed. Cl.

Spec. Mstr. July 3, 2002), for compensation under the National Vaccine Injury Compensation

Program, on behalf of their minor daughter, O.H. 6 By filing the short-form petition, Petitioners

joined the Omnibus Autism Proceeding (“OAP”), thereby asserting that O.H. has an autism

spectrum disorder (“ASD”) and that one or more vaccines had caused her condition. Petitioners

did not file any medical records or details regarding O.H.’s injuries with the short-form petition.

The case was assigned to Special Master Gary Golkiewicz.

On April 28, 2008, the special master ordered Petitioners to complete their petition by

filing the statutorily-required medical records concerning O.H., and a “Statement Regarding

Onset,” clearly detailing O.H.’s first symptom or manifestation of onset or significant

In Poling v. HHS, the presiding special master clarified that the family was compensated

because the Respondent conceded that the Poling child had suffered a Table Injury--not because

the Respondent or the special master had concluded that any vaccination had contributed to

causing or aggravating the child’s ASD. See Poling v. HHS, No. 02-1466V, 2011 WL 678559, at

*1 (Fed. Cir Spec. Mstr. Jan. 28, 2011) (a fees decision, but noting specifically that the case was

compensated as a Table Injury).

Second, in Wright v. HHS, No. 12-423, 2015 WL 6665600 (Fed. Cl. Spec. Mstr. Sept. 21,

2015), Special Master Vowell concluded that a child, later diagnosed with ASD, suffered a

“Table Injury” after a vaccination. However, she stressed that she was not finding that the

vaccinee’s ASD in that case was “caused-in-fact” by the vaccination--to the contrary, she

specifically found that the evidence in that case did not support a “causation-in-fact” claim,

going so far as to remark that the petitioners’ “causation-in-fact” theory in that case was

“absurd.” Wright v. HHS, No. 12-423, 2015 WL 6665600, at *2 (Fed. Cl. Spec. Mstr. Sept. 21,

2015).

The compensation of these two cases, thus, does not afford any support to the notion that

vaccinations can contribute to the causation of autism. In setting up the Vaccine Act

compensation system, Congress forthrightly acknowledged that the Table Injury presumptions

would result in compensation for some injuries that were not, in fact, truly vaccine-caused. H.R.

Rept. No. 99-908, 18, 1986 U.S.C.C.A.N. 6344, 6359. (“The Committee recognizes that there is

public debate over the incidence of illnesses that coincidentally occur within a short time of

vaccination. The Committee further recognizes that the deeming of a vaccine-relatedness

adopted here may provide compensation to some children whose illness is not, in fact, vaccine-

related.”)

6

On the same day, Petitioners also filed a petition on behalf of their younger daughter,

S.H. (No. 08-307).

8

aggravation of her injury. (ECF No. 5.) Respondent filed Respondent’s “Rule 4(c) report” on

May 20, 2008, noting that Petitioners had yet to file any evidence, so that Respondent could not

assess the merits of the claim without the medical records. (ECF No. 7, p. 4.) On October 23,

2008, Petitioners filed numerous exhibits of medical records, but did not submit a “Statement

Regarding Onset.”

Petitioners made no other filings in this case during 2008, 2009 and 2010. During that

time, the OAP “test cases,” and the appeals thereof, as described in Section II of this Decision

above, had concluded. On January 25, 2011, in view of the test case findings of insufficient

evidence linking vaccines and autism, Petitioners were ordered to inform the court whether or

not they wished to proceed with their claim, or if they wished to exit the Vaccine Program. (ECF

No. 13.) Petitioners indicated their intent to proceed, on June 15, 2011. (ECF No. 20.) On June

29, 2011, Petitioners filed an Amended Petition (“Am. Pet.”) alleging that an MMR vaccination

of July 1, 2002, injured O.H. (Am. Pet., ECF No. 22.)

This case was reassigned to Special Master Denise Vowell, on July 1, 2011. During a

status conference held on July 20, 2011, she advised Petitioners’ counsel that this claim might

have been filed outside the Vaccine Act’s 36-month statute of limitations. (Order, ECF No. 26.)

Between August 2011 and April 2012, Petitioners filed additional exhibits detailing

O.H.’s health from birth through early childhood.

On May 17, 2012, Respondent moved to dismiss Petitioners’ claim, asserting that the

Petition was filed after the expiration of the Vaccine Act’s statute of limitations period.

(Respondent’s Motion to Dismiss, pp. 1, 4–6.) Respondent argued that the first symptoms of

O.H.’s autism spectrum disorder (ASD) occurred more than 36 months before the petition was

filed in this case; therefore, the petition was filed outside the Vaccine Act’s statutory limitations

period. (Id., pp. 2–3, 5.)

On July 16, 2012, Petitioners filed an opposition to Respondent’s motion to dismiss,

substantially changing their theory of entitlement to a Vaccine Act award. (“Pet. Opposition.”)

They added a new, alternative claim that certain vaccinations administered to O.H. on April 227,

2006, significantly aggravated a pre-existing mitochondrial disorder in O.H. (Pet. Opposition,

ECF No. 60, p. 5), and that, therefore, the petition filed on April 22, 2008, was filed within the

statute of limitations period as to their new “significant aggravation” claim. (Id.) Subsequently,

on September 25, 2013, Petitioners filed a Second Amended Petition (“2nd Am. Pet.”), again

contending that vaccinations received in April of 2006 prompted the alleged aggravation. (2nd

Am. Pet., p. 1.)

On August 26, 2013, Special Master Vowell dismissed Petitioners’ claim that the initial

onset of O.H.’s autism was vaccine-caused, as untimely filed. Hashi v. HHS, No. 08-308V, 2013

WL 10487184 (Fed. Cl. Spec. Mstr. Aug. 26, 2013). However, Petitioners’ “significant

aggravation” claim remained unresolved. On September 18, 2014, Special Master Vowell

convened a hearing to consider testimony in support of Petitioners’ significant aggravation

claim. On June 1, 2015, she filed a “Ruling on Facts Regarding Significant Aggravation Claim.”

7

The medical records showed that vaccines were actually administered on April 24, 2006,

rather than April 22. (Ex. 7, pp. 2-3.)

9

Hashi v. HHS, No. 08-308V, 2015 WL 4626843 (Fed. Cl. Spec. Mstr. June 1, 2015). In that

ruling, the special master rejected the Petitioners’ contention that the symptoms of O.H.’s

neurodevelopmental disorder worsened significantly following her April 2006 vaccinations. Id.

at *1, 8-11, 14.

On August 6, 2015, Special Master Vowell issued a dismissal of this case, due to

Petitioners’ failure to comply with court orders. Hashi v. HHS, No. 08-308V, 2015 WL

10458848 (Fed. Cl. Spec. Mstr. Aug. 6, 2015).

This case was reassigned to my docket on August 10, 2015, due to the imminent

retirement of Special Master Vowell. Petitioners filed a Motion to Vacate Special Master

Vowell’s dismissal decision, on August 18, 2015. On August 20, 2015, I filed an Order denying

Petitioners’ Motion to Vacate. Judgment entered on September 9, 2015, dismissing the petition.

Petitioners filed a Motion for Attorneys’ Fees and Costs on February 21, 2016.

Respondent filed a Response to that Motion on March 7, 2016. Petitioners did not initially file a

reply to Respondent’s Response, but on June 29, 2016, they filed a motion seeking to file a late

reply. I granted the request. After obtaining another extension of time, they filed a reply

memorandum on August 5, 2016. (ECF No. 115.)

IV

DISCUSSION OF “REASONABLE BASIS” ISSUE

A. Introduction

As noted above, Petitioners filed an application for attorneys’ fees and costs

(“Application”) in this case on February 21, 2016, and Respondent filed an opposition

(“Opposition”) to that motion on March 7, 2016. In that Opposition, Respondent argued in detail

that I should deny any award for attorneys’ fees and costs in this case, on the ground that there

was no “reasonable basis” for filing this case. (Opposition, pp. 4-11.) Respondent further argued

that even if I find a reasonable basis for filing the case, I should nevertheless conclude that there

was no reasonable basis for continuing to pursue the case past June of 2011. (Opposition, p. 11.)

In the following pages I conclude, considering the overall record of this case and the

course of the OAP, that there was a reasonable basis for filing the petition and pursuing it

somewhat past the point where the OAP “test cases” (see Section II of this Decision above)

became final, but that at a certain point there was no longer a reasonable basis to continue

pursuing this claim. Accordingly, I will award no fees and costs incurred beyond that point.

B. There was a reasonable basis to file this case, and to pursue the case until it became clear

that Petitioners’ “initial onset” claim was time-barred.

As set forth above in Section II of this Decision, in the early 2000s major controversies

arose as to whether autism spectrum disorders might be caused or otherwise affected by either

MMR vaccines or thimerosal-containing vaccines. Therefore, thousands of parents filed Vaccine

Act claims during the early 2000s alleging that their children’s ASDs were vaccine-caused. I

10

and other special masters have generally found that those claims were brought in good faith and

with a reasonable basis. Further, given the scientific uncertainty at the time, I find that the filing

of this particular petition in 2008, along with thousands like it in the earlier 2000s, was

reasonable and in good faith. It was further reasonable to keep such claims, including this one,

pending until the OAP “test cases” became final in 2010, and for some reasonable period of time

thereafter, in order for counsel to digest the complicated science, and to consult with qualified

experts to see if a reasonable basis to go forward with the claims could be found.

Accordingly, in this case, I conclude that it was reasonable to file the petition in 2008,

given the fact that the autism “test case” rulings had not yet been issued, and to keep the claim

pending until after the test case rulings became final in late 2010. At that point, however,

Petitioners’ counsel should have carefully studied the test case decisions, along with the medical

records of O.H.’s case, to determine whether there was any feasible chance of demonstrating that

O.H.’s disorder was caused or aggravated by vaccinations. I consider it a close question whether

there remained any reasonable basis for Petitioners to continue their case for more than a brief

time after the test cases became final, a point at which most petitioners in the autism cases

voluntarily ended their pursuit of their Vaccine Act claims.

However, there was another uncertainty in the law at that time, as to the issue of timely

filing of Vaccine Act petitions. The pertinent part of the Vaccine Act’s statute of limitations

states that, in the case of vaccines administered after October 1, 1988, --

[N]o petition may be filed for compensation under the Program for such injury after the

expiration of 36 months after the date of the occurrence of the first symptom or

manifestation of onset or of the significant aggravation of such injury***.

§ 300aa-16(a)(2). In 2010 a panel decision of the Federal Circuit, Cloer v. HHS, 603 F.3d 1341

(Fed. Cir. 2010) (“Cloer I”), raised a question as to when the 36-month limitations period began

to run. That panel decision was reversed in an en banc ruling of that court, Cloer v. HHS, 654 F.

3d 1322, 1324-25 (Fed. Cir. 2011) (“Cloer II”). The Cloer II interpretation became the final,

binding ruling on that legal issue, when the Supreme Court denied certiorari in the case on April

16, 2012, in Cloer v. Sebelius, 132 S. Ct. 1908 (2012).

Therefore, after Cloer I was issued in 2010 until Cloer II became binding law on April

16, 2012, there existed an open question as to whether Petitioners’ “initial onset” claim in this

case was time-barred under §300aa-16(a)(2). I therefore find that it was reasonable for

Petitioners to continue to keep their claim alive through April of 2012.

C. There was no reasonable basis for Petitioners to further pursue their case after April of

2012.

1. Petitioners’ “initial onset” claim

As explained above, on April 16, 2012, the Supreme Court denied a writ of certiorari in

Cloer v. Sebelius, 132 S.Ct. 1908 (2012). At that point, it became clear that Petitioners’ claim

that vaccinations caused the initial onset of O.H.’s ASD was time-barred. Special Master

Vowell so ruled, in her Ruling filed on August 26, 2013. (2013 WL 10487184.) The special

master examined the medical records and found clear evidence of O.H.’s ASD predating 2005.

11

(Id. at *7.) Because the petition was not filed until April 22, 2008, that meant that any initial

onset allegation of Petitioners (which Special Master Vowell called their “causation in fact

claim”) was time-barred.

Therefore, as I assess the record of this case, there was no reasonable basis for

Petitioners to continue to pursue their case after certiorari was denied in Cloer II after April 16,

2012. As to Petitioners’ “initial onset” claim, it should have been clear to Petitioners’ counsel by

April 16, 2012, from studying O.H.’s medical records, that Petitioners’ “initial onset” claim was

time-barred. As Special Master Vowell later found, O.H.’s medical records show concern that

O.H. was experiencing developmental delay as early as April 9, 2002. (2013 WL 10487184, at

*3.) O.H.’s pediatrician referred her for Early Intervention services on May 8, 2002, noting that

she could not yet sit independently. (Id.) Further, the medical records indicate that O.H. was

diagnosed with autism in October 2004. (Id. at *3-4.) Thus, it was absolutely clear from the

medical records that the initial onset of O.H.’s ASD pre-dated the filing of the petition in this

case on April 22, 2008, by more than 36 months, so that it was not reasonable to further pursue

that claim after April of 2012, requiring Special Master Vowell to file a written ruling on a point

not reasonably in dispute.

2. Petitioners’ alternative “significant aggravation” claim

It was also not reasonable for Petitioners to pursue to an evidentiary hearing their

alternative claim that vaccines administered in April of 2006 “significantly aggravated” a pre-

existing mitochondrial disorder, thereby worsening O.H.’s developmental disorder. Petitioners

added that alternative claim in their “Opposition to Respondent’s Motion to Dismiss,” filed on

July 16, 2012. Once again, however, if Petitioners’ counsel had carefully studied the medical

records, counsel would have noted that the affidavit of O.H.’s father, upon which the aggravation

claim was based, was strongly contradicted by those medical records. Again, because

Petitioners kept pursuing this “aggravation” claim, Special Master Vowell was required to

address it in a written ruling, after hearing oral testimony from O.H.’s father (Mr. Hashi) and his

niece (Ms. Hashi) at an evidentiary hearing. Hashi v. HHS, No 08-308V, 2015 WL 4626843

(Fed. Cl. Spec. Mstr. June 1, 2015).

When Special Master Vowell addressed the issue in her ruling, she firmly concluded that

the affidavits and testimony of O.H.’s father and his niece, on which the Petitioners relied, were

decidedly outweighed by the medical records. (Id. at *8 -11, *14.) She found that “[t]he

conflicts between the hearing testimony and the medical records are profound.” (Id. at *14.) The

special master described in detail how numerous medical records contradicted the allegations of

Mr. Hashi and his niece. (Id. at *8-11.) Special Master Vowell found the contemporaneous

medical records to be more reliable than the testimony of Mr. and Ms. Hashi. (Id. at *14.) The

special master concluded that “O.H. did not experience a significant deterioration in her behavior

or health between the time she received the allegedly aggravating vaccinations and the fall of

2007,” about a year and a half later. (Id.)

Thus, in electing to go forward with Petitioners’ “significant aggravation” theory,

Petitioners’ counsel again ignored the medical records, requiring Special Master Vowell to hold

12

a hearing and write another decision that she should not have had to write. Clearly, there was no

“reasonable basis” to pursue that aggravation claim to a ruling.8

On this point, I stress that I am not concluding that it is always unreasonable in a Vaccine

Act case to pursue a theory in which the petitioners’ factual claims vary from the medical

records. This actually happens frequently in Vaccine Act cases, and in the large majority of such

cases in the past, special masters have found a reasonable basis for contesting such issues at an

evidentiary hearing. In this case, however, the divergence between the Petitioners’ factual

assertions and the facts shown by the medical records was especially great, as Special Master

Vowell explained, and I concur. Special Master Vowell concluded that Petitioners’ factual

assertions were contradicted by the medical records. (2015 WL 4626843 at *8-11, 14.) She

found that Petitioners’ factual assertions about O.H.’s alleged behavior soon after the

vaccinations “do not align with the facts recounted in O.H.’s medical and school records.” (Id. at

8

Other special masters have reached similar conclusions in other Vaccine Act cases. The

adequacy of an attorney’s investigation into the factual basis of a petitioner’s claim has been

found to be key to determining whether reasonable basis existed for a claim. Di Roma v. HHS,

No. 90-3277, 1993 WL 496981, at *2 (Fed. Cl. Spec. Mstr. Nov. 18, 1993) (“Case law teaches us

that basic inquiries are required prior to the filing of any paper under the Act,” citing Lamb v.

HHS, 24 Cl. Ct. 255, 258–59 (1991)). Although in the history of the Vaccine Act special masters

have tended to be generous in finding a reasonable basis to grant fee awards in unsuccessful

cases, that generosity does not extend to situations in which counsel fails to sufficiently

investigate the facts underlying the claim, or persists in litigating a case when the evidence is

clearly insufficient. Riley v. HHS, No. 09–276V, 2011 WL 2036976, at *3 (Fed. Cl. Spec. Mstr.

Apr. 29, 2011); see also Murphy v. HHS, 30 Fed. Cl. 60, 62 (1993) (affirming denial of

attorney’s fees where contemporaneous records provided no basis for alleged injury), aff’d, 48

F.3d 1236 (Fed. Cir. 1995); Di Roma, 1993 WL 496981 at *3 (denying attorney’s fees and costs

where “[m]inimal research and good sense should have indicated that this case had no basis

under the law.”)

Further, special masters have held that the reasonableness of a claim must be re-examined

at various stages of the proceeding. Riley v. HHS, 2011 WL 2036976, at *8 (admonishing

counsel to “ensure that a reasonable basis is present at every stage of the case”) (emphasis in

original). If a petitioner’s efforts to address questions and concerns about a vaccine claim reveal

critical deficiencies, dismissal of the petition may be appropriate, and reasonably incurred

attorneys’ fees and costs, to that point, may be awarded. Stevens v. HHS, No. 90-221V, 1992

WL 159520, at *3 (Cl. Ct. June 9, 1992), aff’d, 996 F. 2d 1236 (Fed. Cir. 1993). In addition,

prompt and responsive action by counsel is encouraged in Program proceedings once a claim’s

serious shortcomings have been identified and the reasonableness of maintaining the claim is

called into question. Compare Riley, 2011 WL 2036976, at *7-8 (awarding fees when counsel

acted quickly in winding down a case after recognizing that it was no longer reasonable to

continue), and Turner v. HHS, No. 99-544V, 2007 WL 4410030, at *10 (Fed. Cl. Spec. Mstr.

Nov. 30, 2007) (awarding partial fees when counsel promptly moved for judgment on the record

upon recognizing the deficiencies in the claim), with Stevens, 1992 WL 159520, at *3-4 (denying

fees when petitioners’ counsel “failed to react” to the ample notice provided of the factual

shortcomings of the case.)

13

*7.) For example, Mr. Hashi filed an affidavit stating that following O.H.’s vaccinations in April

of 2006, O.H. “was crying inconsolably;” had a “high fever;” “started to bite things,” including

her own hand; and “was pacing back and forth, and running around the dining table.” (Ex. 15,

ECF No. 60-1, p. 2.) Special Master Vowell, in contrast, studied the medical records, and noted

that:

There is no record that [O.H.’s parents] contacted O.H.’s pediatrician with complaints of

a fever, unfocused gaze, vomiting, or uncontrollable crying shortly after her April 2006

vaccinations. They did not bring O.H. back to her pediatrician until she developed an

upper respiratory infection more than a month later, and did not mention these post-

vaccination symptoms at this visit.

(2015 WL 4626843 at *8; Ex. 7 (ECF No. 40-1), p. 14.) As Special Master Vowell found, “[t]he

conflicts between the hearing testimony and the medical records are profound.” (2015 WL

4626843 at *14, emphasis added.)

Further, the circumstances in which Petitioners’ “significant aggravation” contention

arose in this case are telling. As explained above, until 2012 Petitioners’ sole contention in this

case had been that vaccinations caused the “initial onset” of O.H.’s disorder. However, on May

17, 2012, Respondent pointed out that that claim was untimely filed. Soon thereafter Petitioners

advanced, for the first time, their “significant aggravation” claim, pointing to an alleged

aggravation after vaccinations in April of 2006, which new claim would not be time-barred. In

my view, it was unreasonable for Petitioners to advance a new claim, which was plainly

contradicted by the medical records, merely to avoid immediate dismissal of this case as

untimely filed.

Accordingly, I find that this is the relatively unusual case in which the Petitioners have

advanced a factual claim, in questionable procedural circumstances (i.e., the pending “untimely

filing” motion), in which their contentions differed so “profoundly” from the medical records

that it was simply unreasonable for Petitioners to try to keep their case alive by filing a plainly

nonmeritorious “significant aggravation” claim.

3. Lack of evidence that vaccinations can cause or aggravate ASDs

In Sections IV(C)(1) and (2) of this Decision immediately above, I have explained that

Petitioners’ counsel in this case continued to pursue two virtually hopeless factual scenarios that

were plainly contradicted by the medical records. Further, there is another (though unnecessary

to decide this case) reason to find that the continued pursuit of this case past April 2012 was not

reasonable. It should be emphasized that after this case was filed, there occurred the filing of the

autism “test case” decisions described in Section II of this Decision. The six extremely lengthy

special master decisions in those test cases, followed by three rulings of Judges of this Court plus

two unanimous rulings of three-judge panels of the Federal Circuit, made clear in excruciating

detail the complete lack of any persuasive evidence that vaccines can cause or aggravate ASDs.

As noted above, this case was filed prior to the issuance of those decisions, and thus I am willing

to compensate counsel for her initial efforts in this case. But I find it very questionable whether

it was reasonable for counsel to have continued to pursue this case in light of those rulings.

Petitioners’ Reply filed on August 5, 2016, failed to point to any significant evidence in the

14

record of this case to indicate that, even if their claims had been timely filed, Petitioners had any

reasonable argument that any of O.H.’s vaccinations actually caused any injury to her.

D. Summary concerning “reasonable basis”

At the time that this case was filed, there was considerable uncertainty concerning how

claims alleging that vaccines could contribute to the causation of autism would fare in this Court,

so I have concluded that it was reasonable to file this case and to pursue it for a reasonable

amount of time thereafter. However, as I have set forth in the sections of this Decision

immediately above, both of the Petitioners’ causation theories were clearly contradicted by

O.H.’s medical records. In addition, Petitioners’ counsel persisted in pursuing a claim that

vaccines could contribute to the causation or aggravation of autism in the face of the “test case”

decisions concluding to the contrary. Therefore, I conclude that Petitioners’ case ceased to have

a reasonable basis after April 16, 2012, and I will award no fees and costs incurred after that

date.

V

PETITIONERS’ ARGUMENTS

In their reply memorandum filed on August 5, 2016 (“Reply”), Petitioners’ counsel

countered Respondent’s arguments concerning “reasonable basis.” I have carefully considered

Petitioners’ arguments in that regard, and find merit in some of them. I have taken those

arguments into account in reaching my findings concerning “reasonable basis” in Section IV of

this Decision.

For example, Petitioners argue that it was reasonable to originally file the case, and I

agree. Petitioners argue that there was legal uncertainty until 2012 about the timeliness of their

“initial onset” claim, and I agree. As explained above, I find it reasonable for Petitioners to have

pursued that “initial onset” claim until April 16, 2012, when the Supreme Court’s denial of

certiorari confirmed the Federal Circuit’s en banc decision in the Cloer case, thus making it

clear that Petitioners’ petition in this case was filed out-of-time as to their “initial onset” claim.

Accordingly, there certainly was no “reasonable basis” for Petitioners to continue to pursue their

“initial onset” claim after April 16, 2012.

Petitioners also argue that they had a reasonable basis for pursuing their alternative,

“significant aggravation” claim to a decision. However, I cannot agree. As explained above,

when Special Master Vowell closely examined that claim, she found no merit to it, finding that it

was plainly contradicted by O.H.’s medical records. See her “Ruling on Facts Regarding

Significant Aggravation Claim.” Hashi v. HHS, No. 08-308V, 2015 WL 4626843 (Fed. Cl. Spec.

Mstr. June 1, 2015). In that ruling, the special master strongly rejected the Petitioners’

contention that the symptoms of O.H.’s neurodevelopmental disorder worsened significantly

following her April 2006 vaccinations. (Id. at *8-11, *14.)

Specifically, when Special Master Vowell addressed the issue in her ruling, she firmly

concluded that the affidavits and testimony of O.H.’s father and his niece, on which the

Petitioners relied, were decidedly outweighed by the medical records. (Id. at *8-11, *14.) The

15

special master described in detail how a number of medical records contradicted the allegations

of Mr. Hashi and his niece. (Id. at *8-11.) She found that “[t]he conflicts between the hearing

testimony and the medical records are profound.” (Id. at *14.) Special Master Vowell found the

contemporaneous medical records to be more reliable than the testimony of Mr. and Mrs. Hashi.

(Id. at *8-11, *14.) She concluded that “O.H. did not experience a significant deterioration in

her behavior or health between the time she received the allegedly aggravating vaccinations and

the fall of 2007.” (Id. at *14.)

Thus, in electing to go forward to an evidentiary hearing concerning Petitioners’

“significant aggravation” theory, Petitioners’ counsel unreasonably ignored the medical records.

Clearly, there was no “reasonable basis” to pursue this aggravation claim to a ruling.

Concerning this point, Petitioners’ counsel points to the fact that Special Master Vowell

“ordered a hearing,” arguing that this implies that the special master perceived a reasonable

factual dispute. (Reply, p. 19.) But the fact that Special Master Vowell agreed to conduct a

hearing, requested by Petitioners, concerning Petitioners’ “significant aggravation” claim, does

not mean that there was a reasonable basis for Petitioners to request and pursue that hearing.

When a petitioner’s counsel requests a hearing concerning an issue, representing to the special

master that there is a reasonable basis for the petitioner’s position concerning the issue, the

special master usually cannot know ahead of the time of the hearing whether there is, in fact, a

reasonable basis for the claim to be presented at the hearing. In this case, it was only after

studying the medical records at around the time of the hearing, and comparing those records to

the testimony of the Petitioners’ fact witnesses at the hearing, that Special Master Vowell could

make a determination concerning the issue. It was not the special master, but Petitioners’

counsel, as an officer of the court, who had the duty in this case to carefully study the medical

records, to see to what extent they either corroborated or contradicted her witnesses’ factual

claims, before requesting to take this claim to an evidentiary hearing. Counsel should have

known how thoroughly the records contradicted her clients’ claims. In light of Special Master

Vowell’s factual conclusions, and my own examination of the record, which confirms those

conclusions, it is plain to me that Petitioners did not have an objectively “reasonable basis” to

seek the evidentiary hearing on the “significant aggravation” claim.

In other words, I have reached the conclusions concerning “reasonable basis” set forth in

Section IV above, after carefully considering the arguments of Petitioners’ counsel in her reply

memorandum.

VI

NOTATION CONCERNING “REASONABLE BASIS” IN AUTISM CASES IN

GENERAL

As discussed above in Section II of this Decision, in the early 2000s controversies arose

concerning whether autism spectrum disorders might be caused or affected by vaccines. Thus,

thousands of Vaccine Act claims were filed during those years alleging that ASDs were vaccine-

caused. These claims were certainly brought in good faith. Further, in light of the scientific

uncertainty at the time, I find that the filing of those petitions was reasonable. It was also

16

reasonable to keep such claims pending until the OAP “test cases” became final in 2010, and for

some period of time thereafter, in order for counsel for each petitioner to digest the complicated

science, and to consult with experts to see if a reasonable basis to go forward could be found.

However, by the end of 2010, the two major theories of vaccine-causation concerning

autism had been thoroughly considered and rejected in the OAP test cases, with opinions that,

among other things, found that all of the many reputable epidemiological studies had found no

association between any vaccines and autism. At that point, the vast majority of the

approximately 5,000 autism petitioners elected either to withdraw their claims, or to request that

the special master enter a decision denying their claim on the written record. Only a small

minority of the autism petitioners elected to continue to pursue their cases, seeking other

causation theories and/or other expert witnesses. Since 2010, a number of such cases have gone

to trial or to decisions on the record before special masters, and in the cases of this type decided

thus far, all have resulted in rejection of petitioners’ claims that vaccines played a role in causing

or aggravating their child’s ASD. See the cases cited above in Section II.

There is now, therefore, a serious question concerning whether it is reasonable for

additional Vaccine Act petitioners to continue to pursue highly speculative theories concerning

vaccinees with autism spectrum disorders. In each such case, of course, a case-specific decision

must be made concerning if and when it became unreasonable, under all the circumstances of the

case, to continue to go forward. In many of the cases that have been pursued to a decision since

2010, as in this case, petitioners have tried to avoid the conclusions of the test cases by alleging

that a child suffered a vaccine-caused “encephalopathy” that resulted in “autistic-like features,”

or that a child had an underlying “mitochondrial disorder” that somehow made the child more

vulnerable to injuries by vaccines. But such cases, in essence, have amounted to attempts to

prove that vaccines can cause or aggravate symptoms of ASDs. And, except for the two highly

unusual Table Injury cases described at footnote 5 above, all such theories have been rejected.

Further, a review of the post-test case decisions enumerated in Section II above

demonstrates that those cases typically involved expert witnesses who were quite underqualified

to opine on the vaccine-causation issues at hand, and/or presented theories with no substantial

scientific merit, and/or disregarded the facts contained in the medical records of the case.

Accordingly, I hereby put counsel on notice, once again, especially in autism-related

cases, that if counsel continue to go forward with such extremely weak cases, I am not likely to

find that there was a reasonable basis for their continued prosecution of the case.

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VII

CALCULATION OF FEES AND COSTS AWARDED

A. Hourly rates

Attorney Sharp has practiced law since 1989. (Ex. 25, ECF No. 107-2.) In this case, she

generally seeks compensation at hourly rates of $350 for 2008 and 2009, $360 for 2010 and

2011, and $370 for 2012. (Ex. 24, ECF No. 107-1, pp. 1-40.) I find those rates reasonable. See

McCulloch v. HHS, No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sep. 1, 2015), at *19.

Ms. Sharp also seeks hourly rates of $120 for paralegal work performed in 2011, and

$125 for paralegal work performed in 2012. (Ex. 24, pp. 13-15, 18.) I find those rates reasonable

as well.

B. Hours compensated

As explained above, I have determined to compensate Ms. Sharp for the hours that she

billed for herself and her paralegal for 2008 through 2011, and for 2012 through April 16. My

analysis of her Ex. 24 indicates that she billed 5.45 hours for 2008 and 2009 (Ex. 24 (ECF No.

107-1), pp. 1-4), 19.95 hours for 2010 and 2011 (Id., pp. 4-17), and 11.4 hours in 2012 prior to

April 16.

C. Costs

I will compensate Petitioners for the miscellaneous attorney costs, all of which were

incurred before April 2012, a total of $1,799.12. (Ex. 28, ECF No. 107-5.) I will also

compensate Petitioners in the amount of $845 for the services of Dr. Marcel Kinsbourne,

consulted as an expert witness. (ECF Nos. 107, 107-7.) Further, I will compensate the $359.45

in costs incurred by Petitioners themselves. (Ex. 29, ECF No. 107-6.)

D. Summary of fees and costs awarded

• Attorney hours 2008-09, 5.45 hours times $350 = $ 1,907.50

• Attorney hours 2010-11, 19.95 hours times $360 = 7,182.00

• Attorney hours 2012, 11.4 hours times $370 = 4,218.00

• Paralegal hours 2011, 0.75 hours times $120 = 90.00

• Paralegal hours 2012, 0.25 hours times $125 = 31.25

• Dr. Kinsbourne = 845.00

• Other attorney’s costs = 1,799.12

Attorney’s fees and costs subtotal $ 16,072.87

_______________________________________________________

• Petitioners’ costs = $ 359.45

_______________________________________________________

Total award $ 16,432.32

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VIII

CONCLUSION

For the foregoing reasons, I award Petitioners a total of $16,432.32 in attorney’s fees and

costs. A check for $359.45 shall be made payable to Petitioners. The other $16,072.87 shall be

paid in the form of a check payable jointly to Petitioners and Petitioners’ counsel. The Clerk of

this Court shall enter judgment accordingly.

/s/ George L. Hastings, Jr.

George L. Hastings, Jr.

Special Master

19