McCabe v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

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

CATHERINE GERTRUDE McCABE, *

* No. 13-570V

Petitioner, * Special Master Christian J. Moran

*

v. * Filed: August 2, 2019

*

SECRETARY OF HEALTH * Attorneys’ fees and costs,

AND HUMAN SERVICES, * reasonable basis, good faith.

*

Respondent. *

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

Clifford Shoemaker, Shoemaker, Gentry & Knickelbein, Vienna, VA, for

petitioner;

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

PUBLISHED DECISION DENYING PETITIONER’S

MOTION FOR ATTORNEYS’ FEES AND COSTS1

On May 17, 2018, the undersigned issued a decision dismissing Ms.

McCabe’s petition. On December 5, 2018, Ms. McCabe filed a timely motion for

final attorneys’ fees and costs, requesting $186,645.23.

For the reasons set forth below, the undersigned finds that Ms. McCabe did

not have a reasonable basis to maintain her petition and that the litigation was not

1

Because this decision contains a reasoned explanation for the action in this case, the

undersigned is required to post it on the United States Court of Federal Claims' website in

accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal

Management and Promotion of Electronic Government Services). This means the decision will

be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), the

parties have 14 days to identify and move to redact medical or other information, the disclosure

of which would constitute an unwarranted invasion of privacy. If, upon review, the undersigned

agrees that the identified material fits within this definition, the undersigned will redact such

material before posting the decision.

maintained in good faith. Thus, petitioner is ineligible for an award of attorneys’

fees and costs.

I. Procedural History

The facts of Ms. McCabe’s petition are laid out, with substantial detail, in

the decision denying entitlement. See Decision, issued May 17, 2018, 2018 WL

3029175, at *1-36. That history is adopted here and for brevity need not be

restated in full. Instead, only a brief recounting of the procedural history is

provided.

In her most recent petition, Ms. McCabe claimed that an influenza

vaccination that she received on September 11, 2010, “caused her to have Chronic

Fatigue Syndrome and/or significantly aggravated a preexisting condition resulting

in [Chronic Fatigue Syndrome].” Am. Pet., filed Apr. 17, 2017, at ¶ 11.

However, chronic fatigue syndrome (“CFS”) is not the disease for which

Ms. McCabe originally sought compensation. In her first petition, Ms. McCabe

merely alluded to “numerous health issues” caused by the vaccine. See Pet., filed

Aug. 12, 2013, at ¶ 3. In an affidavit filed approximately a month later, Ms.

McCabe clarified that she got very tired the afternoon following the vaccination,

fell asleep and did not wake up until the next morning. Exhibit 9 at ¶ 4-7. She

stated that the next morning she suffered from “crazy pain” in her back and legs,

sore and swollen legs, dizziness, loss of balance, difficulty walking, and cognitive

issues including memory loss. Id. at ¶ 8-14.

Nine months later, Ms. McCabe filed another affidavit clarifying the nature

of her injury and how it has affected her. She stated: “I believe that this

vaccination caused me to suffer GBS, nerve damage, sleeping problems, chronic

inflammatory respiratory problems, memory loss and walking problems.” Exhibit

13 at ¶ 7. Shortly thereafter, Ms. McCabe amended her petition to claim that she

suffered from a “demyelinating condition” caused or significantly aggravated by

the September 11, 2010 flu vaccine. See Am. Pet., filed Oct. 2, 2014, at ¶ 3.

Fatigue was not mentioned in the affidavit or amended petition.

In support of her initial claim, Ms. McCabe filed an expert report from Dr.

David Axelrod on October 27, 2014. Dr. Axelrod, an immunologist, opined that

an immune response to the vaccine “resulted in damage/dysfunction of her brain

related to her anxiety and depression or the damage/dysfunction of her brain

resulted in a new brain demyelinating disease that caused her new symptoms that

developed subsequent to her September 11, 2010 influenza vaccination.” Exhibit

16 at 3. Fatigue was never mentioned in the report.

2

In May 2015, Ms. McCabe’s first counsel communicated that he was going

to transfer Ms. McCabe’s case to substitute counsel. See order, issued May 28,

2015. As part of this substitution, Ms. McCabe sought an award of interim fees.

The parties were able to agree to a stipulation for fees on June 22, 2015. In the

stipulation, petitioner’s counsel explained that he was facing “serious health

issues” and that, given “the particular circumstances presented” the government

had agreed to “not raise her objections under Avera and Section 15(e)(1).”

Stipulation, filed June 22, 2015, at 2. The undersigned interpreted this stipulation

to reflect a professional courtesy by the Secretary to Ms. McCabe’s original

attorney so that he could be compensated in the face of his health issues while Ms.

McCabe’s case proceeded without him.

Citing the parties’ stipulation, the undersigned awarded Ms. McCabe interim

fees. The decision explicitly cited Dr. Axelrod’s report in support of the

reasonable basis of Ms. McCabe’s petition. Interim Fees Decision, issued June 26,

2015, 2015 WL 4480923, at *1. Ms. McCabe’s good faith for bringing the petition

was not questioned.

At the same time that the interim fees motion was submitted and being

adjudicated, the Secretary challenged Dr. Axelrod’s opinion that Ms. McCabe

suffered from a neurological injury following the flu vaccine. His expert, Dr.

Leist—who, unlike Dr. Axelrod, is a neurologist—pointed out that examinations

by several different physicians, including neurologists, who treated Ms. McCabe

did not identify any findings evincing a neurological injury. See exhibit A at 9.

Among these were neurological examinations by Dr. Herbstein (exhibit 1 at 106),

the NYU emergency department (exhibit 2 at 7), Dr. Forster (exhibit 8 at 8), and

Dr. Sivak (exhibit 8 at 11).

As a result of the lack of medical record evidence evincing a neurological

injury, Ms. McCabe then spent nearly a year attempting to find a neurologist that

could substantiate her and Dr. Axelrod’s allegations that she was suffering from a

demyelinating disorder. See Decision, 2018 WL 3029175, at *14. This search was

unsuccessful, and she instead elected to pivot towards the claim that she suffered

from cytokine release syndrome. Id. at *14-15.

The diagnosis of cytokine release syndrome, a condition sometimes suffered

as a result of immunotherapy treatments for cancer, was made by Ms. McCabe’s

second expert witness, Judy Mikovits. Ms. Mikovits is not a medical doctor.

Although this case was one of her earlier appearances in the Program, Ms.

Mikovits has since developed a pattern of submitting substandard work and her

credentials as an expert have been called into question. See Dominguez v. Sec'y of

3

Health & Human Servs., No. 12-378V, slip op. at 16-20 (Fed. Cl. Spec. Mstr. June

24, 2019) (concluding, after a review of Ms. Mikovits’ performance as an expert

witness in this Program, that she is not suitable as an expert witness); McKown v.

Sec’y of Health & Human Servs., No. 15-1451V slip op. at 27, 63-64 (Fed. Cl.

Spec. Mstr. July 15, 2019). As detailed in the decision denying compensation, Ms.

Mikovits would often make things up. As just one example, Ms. Mikovits stated

that Ms. McCabe experienced “progressive encephalopathy and hypothalamic

brain degeneration and peripheral neuropathy” following each administration of a

flu vaccine since 2007. Exhibit 40 at 8. This, as with many of Ms. Mikovits’

statements, was baseless. See Decision, 2018 WL 3029175, at *17. Ms. Mikovits’

reliance on misdirection was not limited to her opinions regarding the case, they

were also used to buttress her own credentials as an expert witness. See Decision,

2018 WL 3029175, at *26.

The shift away from a neurological injury to cytokine release syndrome

necessitated the Secretary retaining an expert in immunology since his previous

expert, Dr. Leist, was a neurologist. The Secretary retained Dr. Lindsay Whitton,

an immunologist, to respond to Ms. Mikovits’ claim of cytokine release syndrome.

Dr. Whitton concluded that the evidence did not support Ms. Mikovits’ claim and

criticized her willingness to provide medical diagnoses when the medical doctors

that examined and ran diagnostic tests on Ms. McCabe came to very different

conclusions. See exhibit C.

Ms. McCabe did not spend long claiming that she suffered from cytokine

release syndrome. Within a few months of the reports from Ms. Mikovits and Dr.

Whitton, Ms. McCabe pivoted again toward a new claim: that she suffered from

chronic fatigue syndrome. See Decision, 2018 WL 3029175, at *20. Ms. McCabe

submitted a report from Dr. Susan Levine to buttress that claim. Exhibit 59. She

also amended her petition to claim that she was entitled to compensation because

the vaccine caused her to develop CFS or significantly aggravated her CFS. See

Am. Pet., filed Apr. 17, 2017, at ¶ 11. A few months later, Ms. McCabe filed

another affidavit, this time stating that she was very active prior to the 2010

vaccination, with no problems with her stamina and was “always on the go.”

Exhibit 91 at ¶ 4. This time, she also included in her assessment of her current

condition that she suffered from “extreme fatigability.” Id. at ¶ 16.

The shift to CFS necessitated the Secretary finding yet another expert, this

time Dr. Mehrdad Matloubian, to address her claim that she suffered from this new

diagnosis. Dr. Matloubian, a rheumatologist and internist, opined that Ms.

McCabe did not meet the diagnostic criteria for CFS. See exhibit H. This was not

altogether surprising, since no treating physician ever diagnosed Ms. McCabe with

4

CFS, as was the case with her previous allegations of a demyelinating injury and

cytokine release syndrome. See Decision, 2018 WL 3029175, at *17.

Furthermore, Dr. Matloubian opined that there was no evidence that flu vaccines

could cause CFS. Exhibit H at 4-10.

In the year prior to the hearing, Ms. McCabe submitted a total of four reports

from Dr. Levine on the issue of Ms. McCabe’s putative CFS and the claimed

causal role that her flu vaccination(s) played in causing it. As detailed in the

decision, these reports were largely nonsensical and replete with non-sequiturs.

See Decision, 2018 WL 3029175, at *21-34. Time after time, the undersigned

explained that Dr. Levine had a somewhat simple task for her reports. For her

reports to be persuasive, she had to: 1) identify a set of diagnostic criteria for CFS,

2) explain what diagnostic criteria for CFS Ms. McCabe met, 3) explain how Ms.

McCabe met the diagnostic criteria, 4) explain her basis for concluding that Ms.

McCabe’s putative CFS got worse after the September 11, 2010 vaccination, and

5) explain why it is logical to conclude that Ms. McCabe’s CFS arose from the flu

vaccination. See id. Despite being provided with numerous chances to fix the

issues in her reports, she never did. Id.

In the months leading up to the hearing on entitlement, the undersigned

repeatedly conveyed substantial concerns about Ms. McCabe’s proof. See order,

issued Apr. 20, 2017 (indicating that the April 17, 2017 petition was adequate for

pleading purposes but did not reference the foundational basis for the assertions);

order, issued Aug. 1, 2017 (“In short, from a review of the reports from the

petitioner’s experts, it appears that petitioner’s case may not be complete and may

not be coherent”); order, issued Aug. 17, 2017 (“the undersigned is concerned that

Ms. McCabe may lack a reasonable basis to proceed to a hearing”); order, issued

Aug. 31, 2017 (“The undersigned remains concerned that Ms. McCabe’s case

contains significant gaps and weaknesses with respect to multiple elements”);

order for pretrial briefs, issued Aug. 31, 2017 (referencing the April 20, 2017 order

with the same concern) (“Ms. McCabe has yet to present a comprehensive account

of the relevant facts of her health”); order, issued Oct. 10, 2017 (“based on the

submitted record, the undersigned is concerned about whether or not a reasonable

basis for petitioner’s claim exists. The undersigned is concerned both as to the

diagnosis of CFS and the claim of causation-in-fact.”); see also Decision, 2018 WL

3029175, at *11-35 (reviewing the procedural history of this case and the

numerous concerns conveyed along the way).

By the time the hearing was nigh, Ms. McCabe’s response to these

numerous concerns was to look for assurances that if she were to proceed to a

hearing, her attorneys would be paid. On October 6, 2017 she moved for the

5

undersigned to determine whether there was a reasonable basis for proceeding to a

hearing. In this atypical motion, she cited a concern about moving forward to a

hearing without a guarantee that the Vaccine Injury Trust Fund would pay the

costs. Without such a guarantee, proceeding to a hearing would be “cost

prohibitive and an undue hardship.” Pet’r’s Mot., filed Oct. 6, 2019. In the

alternative, Ms. McCabe suggested that the expert testimony portion of the hearing

be cancelled, with the hearing proceeding only to receive testimony from Ms.

McCabe. Id.

The undersigned denied Ms. McCabe’s request to guarantee reimbursement

of costs associated with the hearing on the basis that a prospective assessment of

reasonable basis was premature. Order, issued Oct. 11, 2017, at 2. The

undersigned also concluded that delaying the hearing at this late stage of the

proceeding was not fair to the Secretary or to the Program since the hearing was set

for dates the petitioner and the Secretary requested, and the undersigned had spent

months preparing to hold the hearing on those dates. Id. Ms. McCabe ultimately

decided to proceed to a hearing so that her case for entitlement could be heard.

Pet’r’s Status Rep., filed Oct. 13, 2017.

II. The Hearing on Entitlement and Decision Denying Compensation

A three-day hearing was held on October 18-20, 2017. Five expert

witnesses from across the country and Ms. McCabe herself testified over the

course of the proceeding.

The hearing did not help Ms. McCabe’s case. As noted in the decision

denying entitlement, Ms. McCabe provided statements at the hearing that directly

contradicted other testimony provided in this case and her own medical records.

Decision, 2018 WL 3029175, at *44-46. The inconsistent statements were not

minor issues that could be chalked up to the passage of time and the frailties of

human memory, but instead involved central aspects regarding the characterization

of her condition and how it affected her. Id. Beyond the inconsistencies, Ms.

McCabe provided testimony that simply did not ring true and instead appeared

coached and directed by counsel. Id. at 46.

Ms. McCabe’s expert witnesses fared little better. The expert opinions

provided by Dr. Levine and Ms. Mikovits did not stand up to scrutiny and the

experts were repeatedly unable to answer simple questions about the factual bases

for their conclusions. This included questions as simple as on what information

Dr. Levine relied to conclude that Ms. McCabe was currently experiencing

disabling symptoms relating to CFS.

6

Q. When you say her current disabling symptoms, you know, I'm

thinking of current as of April 2017, something like that. You know,

current as of when you wrote the report. What were you thinking of as

her current disabling symptoms?

A. I guess the ones -- the last ones that were spoken about in my

written -- in the records I received, which I think might have ended --

I don't recall now, but whenever -- because I hadn't met the patient, so

I didn't know how she was doing –

Tr. 450.

On May 17, 2018, the undersigned issued a decision denying Ms. McCabe

compensation. The decision reviewed multiple aspects of Ms. McCabe’s claim in

detail. The length of the decision did not reflect the complexity of Ms. McCabe’s

case, but the number of problems with Ms. McCabe’s proof. Among other

conclusions, the undersigned found the following:

1. Ms. McCabe was not a credible witness. Her testimony presented several

glaring inconsistencies regarding her medical history and she provided

testimony that did not ring true. Decision, 2018 WL 3029175, at *44-46.

2. Ms. McCabe did not satisfy any published criteria for CFS. Dr. Levine

emphasized the importance of “unrefreshing sleep” in her diagnosis of

Ms. McCabe with CFS. This was notable since there was no evidence

beyond Ms. McCabe’s testimony at the hearing that she experienced

unrefreshing sleep as opposed to difficulty falling asleep (a symptom

reported in Ms. McCabe’s medical records dating back to the very first

visit in the record, in 2006). Id. at *36-42.

3. The medical records filed by Ms. McCabe show no discernable change in

the severity or frequency of her complaints of fatigue, depression, or

insomnia before and after the 2010 flu vaccine (or any other vaccine).

The undersigned prepared the following chart to summarize the pertinent

aspects of the medical records:

7

Id. at *42-44.2

4. Ms. McCabe’s work records show that, if anything, Ms. McCabe

increased the amount she worked following the 2010 flu vaccine. Id.

5. Ms. McCabe’s expert witnesses were not credible experts and presented

wholly unpersuasive expert testimony that often mischaracterized the

underlying record. Id. at *46-59.

The decision concluded by remarking that “The evidence does not support

that Ms. McCabe has the disorder she claims she has. In fact, the evidence does

not support that she had a change in health following the flu vaccine at all. For

those reasons alone, Ms. McCabe’s petition for compensation must fail.”

Although superfluous given the absence of any cognizable injury, the undersigned

2

This figure presents all incidents of Ms. McCabe reporting depression, insomnia,

fatigue, or receiving a B12 shot during her visits to her primary care physician (PCP). The dates

range from the first submitted record from October 2, 2006 (four years before the 2010

vaccination) to the end of 2014 (four years after the 2010 vaccination). The documented flu

shots are indicated by vertical dashed lines, with the right-most one representing the September

11, 2010 shot. Ms. McCabe received B12 shots to address her fatigue. See Tr. 64 (“Lack of

sleep and tiredness. I had been very tired. Now, I don't know if that's been ten years ago or if it's

from the flu vaccine, but I am just constantly tired. So that's why I was getting B12 shots, to give

me energy”).

8

also found that “Ms. McCabe did not present a plausible theory for how a flu

vaccine can cause the injury she alleges she has and she cannot explain how the

facts in her case are consistent with this theory. In short, nothing in petitioner’s

case supports a finding of causation.” Id. at *59.

III. Petitioner’s Fees Motion and the Parties’ Arguments

On December 5, 2018, Ms. McCabe moved for final attorneys’ fees and

costs. Ms. McCabe requested $113,034.65 in fees and $73,610.58 in costs.

Despite the numerous concerns about reasonable basis raised during the

proceeding and the decision on entitlement, which remarked explicitly on the total

absence of evidence supporting Ms. McCabe’s claim, Ms. McCabe did not support

her motion for fees and costs with any argument for why her claim was supported

with reasonable basis.

The Secretary, however, did address the reasonable basis issue in his

response. See Resp’t’s Resp., filed Mar. 22, 2019. He argued that Ms. McCabe

lost reasonable basis for her petition when his expert, Dr. Thomas Leist, filed his

responsive report on February 20, 2015. Id. at 1. The Secretary states that at that

juncture “it became clear that petitioner was unable to support her initial vaccine

injury claim of a demyelinating injury with medical records or credible medical

opinion.” Id. at 3. What was notable, in the Secretary’s opinion, was that Dr.

Leist—who was the only neurologist that testified in this case—was able to refute

the unsupported conclusion from Dr. Axelrod that Ms. McCabe had any

neurological injury. Id. Dr. Leist’s conclusion regarding the absence of a

neurological injury in Ms. McCabe was consistent with the opinions of her treating

neurologists, who found Ms. McCabe to be neurologically normal. Decision, 2018

WL 3029175, at *39. The Secretary further argued that after Ms. McCabe’s claim

of a demyelinating condition was debunked by an appropriately credentialed

expert, she continued to transition to new claims despite an absence of evidence

supporting those new claims. See Resp’t’s Resp., filed Mar. 22, 2019, at 4-6.

Ms. McCabe filed reply briefs on May 13, 2019 and May 17, 2019.3 Ms.

McCabe’s argument repeatedly emphasized the undersigned’s award of interim

fees on June 26, 2015, specifically where the undersigned found that Dr. Axelrod’s

3

Ms. McCabe’s second reply addressed the evidence supporting Ms. McCabe’s claim

that her overall condition changed following the vaccination, an analysis which was

inadvertently omitted from her first reply. See order, issued May 17, 2019.

9

report satisfied the reasonable basis requirement. Pet’r’s Reply, filed May 13,

2019, at 2, 7, 10; Pet’r’s Second Reply, filed May 17, 2019, at 13.

Ms. McCabe also stressed the sheer number of expert reports she filed as

part of her petition, noting: “At the conclusion of the case (and hearing), Ms.

McCabe had submitted an additional seven expert reports from two primary

experts, Judy Mikovits, PhD and Susan Levine, MD, with Dr. Mikovits submitting

three reports (Pet. Ex.’s 40, 58, and 81) and Dr. Levine submitting four reports

(Pet. Ex.’s 59, 72, 80, and 90).” Pet’r’s Reply, filed May 13, 2019, at 3. Ms.

McCabe also noted that several of these reports were “in direct response to

concerns and questions raised by the Special Master or in direct response to report

written by the Respondent’s experts.” Id.

Ms. McCabe’s brief also takes issue with the fact that the undersigned did

not raise questions about the reasonable basis of the petition until August 17, 2017.

Pet’r’s Reply, filed May 13, 2019, at 4. Even then, petitioner argues, the

undersigned only communicated concerns about Ms. McCabe’s reasonable basis to

“proceed to a hearing and whether any fees and costs incurred during the hearing

or related to hearing would be ‘at risk’.” Id. at 6. She continues: “none of the

discussions were about the state of Ms. McCabe’s reasonable basis since the

current counsel entered his appearance, however that, is precisely what is alleged

by the Respondent in their opposition to Petitioner’s fees.” Id. In this way,

petitioner appears to be arguing that she was blindsided by the Secretary’s

argument that her petition may not be supported by reasonable basis and that the

Secretary’s position is, at its core, unfair.

Ms. McCabe submitted a supplemental brief that specifically addressed the

objective evidence underlying Ms. McCabe’s assertion that she suffered a

degradation in her condition following the 2010 flu vaccination. In this

supplement, petitioner referenced her own affidavits to say that prior to the 2010

vaccination, “she was working and was active. She was stable, and her conditions

were controlled with medications. She enjoyed hiking, dancing, and reading. She

worked at a hardware store and as a home health aide. Her life was full and

active.” Pet’r’s Second Reply, filed May 17, 2019, at 5 (citing exhibits 9, exhibit

13, exhibit 91).

Ms. McCabe concluded her argument by stating that reasonable basis exists

because she “has provided a complete medical record, multiple expert reports, a

VAERS report from a treating doctor, substantial evidence, including testimony

from the former Chair of the Advisory Committee on CFS, supporting her

diagnosis of CFS, and substantial literature in support of her claim.” Id. at 14-15

10

IV. Standards for Adjudication

Petitioners who have not been awarded compensation are eligible for an

award of attorneys’ fees and costs when “the petition was brought in good faith

and there was a reasonable basis for the claim.” 42 U.S.C. § 300aa—15(e)(1). As

the Federal Circuit has stated, “good faith” and “reasonable basis” are two separate

elements that must be met for a petitioner to be eligible for attorneys’ fees and

costs. Simmons v. Secʼy of Health & Human Servs., 875 F.3d 632, 635 (Fed. Cir.

2017).

“Good faith” is a subjective standard. Id.; Hamrick v. Secʼy of Health &

Human Servs., No. 99-683V, 2007 WL 4793152, at *3 (Fed. Cl. Spec. Mstr. Nov.

19, 2007). In the vaccine program, “good faith” is often not litigated and is almost

always found if a petitioner honestly believes that a vaccine injury occurred.

Turner v. Secʼy of Health & Human Servs., No. 99-544V, 2007 WL 4410030, at *

5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007).

In contrast to good faith, reasonable basis is purely an objective evaluation

of the weight of the evidence. Simmons, 875 F.3d at 636. Because evidence is

“objective,” the Federal Circuit’s description is consistent with viewing the

reasonable basis standard as creating a test that petitioners meet by submitting

evidence. See Chuisano v. Secʼy of Health & Human Servs., No. 07-452V, 2013

WL 6234660, at *12-13 (Fed. Cl. Spec. Mstr. Oct. 25, 2013) (explaining that

reasonable basis is met with evidence), mot. for rev. denied, 116 Fed. Cl. 276

(2014).

The Federal Circuit and judges of the Court of Federal Claims have provided

some guidance as to what reasonable basis is not. A petition based purely on

“unsupported speculation,” even speculation by a medical expert, is not sufficient

to find a reasonable basis. Perreira v. Secʼy of Health & Human Servs., 33 F.3d

1375, 1377 (Fed. Cir. 1994). The background to Perreira comes from a 1991

decision denying compensation. The Perreiras alleged that a 1982 administration

of the diphtheria-tetanus-pertussis (“DTP”) vaccine harmed their daughter, Carly.

Initially, the Perreiras maintained that Carly started having seizures four days after

the second dose of DTP, based upon the testimony of Carly’s mother. The former

Chief Special Master found that Ms. Perreira’s testimony was not correct and

found, instead, that the seizures started 20 days after the second dose of DTP.

Perreira v. Sec’y of Health & Human Servs., No. 90-847V, 1991 WL 117740, at

*1 & n.2 (Cl. Ct. Spec. Mstr. June 13, 1991).

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Given this sequence of events, the Perreiras attempted to establish a

significant aggravation claim. This alternative claim was based upon the sequence

that two weeks after the third dose of DTP, Carly had more seizures. The former

Chief Special Master rejected the Perreiras’ claim because there was no support for

their expert’s opinion that DTP causes harm that would first appear two weeks

later. Id.

After the entitlement proceedings concluded, the Perreiras sought an award

for their attorneys’ fees and costs. The former Chief Special Master found that the

Perreiras had a reasonable basis for filing their petition. Perreira v. Sec’y of Health

& Human Servs., No. 90-487V, 1992 WL 164436, at *2 (Cl. Ct. Spec. Mstr. June

12, 1993). The decision does not state the reason for finding reasonable basis.

The former Chief Special Master also explicitly found, however, that the

reasonable basis ceased after the expert submitted a report, noting that the expert’s

theory “amounted to his own unsupported speculation[,]” and that the Perreiras’

attorney should have recognized that the expert’s theory “was legally insufficient

to establish causation.” The former Chief Special Master also stated that the

Perreiras’ attorney recognized that this case “was a ‘bad case.’” Id. at *1-2.

The Perreiras filed a motion for review of the denial of a portion of the

attorneys’ fees and costs. The Court of Federal Claims found that the former Chief

Special Master’s determination that the case lacked a reasonable basis was not

arbitrary. The Court of Federal Claims rejected the petitioners’ arguments,

including an argument that “counsel had an absolute right to rely on the expert’s

opinion in pursuing the case.” Perreira v. Sec’y of Health & Human Servs., 27

Fed. Cl. 29, 33 (1992).

These decisions are the background for the Federal Circuit’s discussion of

“reasonable basis” in its Perreira opinion. The Federal Circuit affirmed the former

Chief Special Master’s decision that the Perreiras lacked a reasonable basis to

proceed to a hearing, despite an expert report, because “the expert opinion was

grounded in neither medical literature nor studies.” The Federal Circuit explained

that “[t]he special master did not require counsel to verify the validity of the

expert’s opinion, but only required the opinion to be more than unsupported

speculation.” Perreira, 33 F.3d at 1377.

Perreira demonstrates that special masters enjoy discretion to find that a

claim lacked a reasonable basis when the evidence on which a petitioner relies

(there, an expert’s report) is rooted in unsupported speculation. In this context, the

Federal Circuit seemed to give some teeth to the term “reasonable basis.” The

12

Federal Circuit declared: “Congress must not have intended that every claimant,

whether being compensated or not under the Vaccine Act, collect attorneys’ fees

and costs by merely having an expert state an unsupported opinion.” 33 F.3d at

1377.

Another example of a case exemplifying a deeper than skin-deep look at

reasonable basis is an early case from the Vaccine Program, Murphy v. Secʼy of

Health & Human Servs., No. 90-882V, 1991 WL 74931 (Cl. Ct. Spec. Mstr. Apr.

25, 1991). Today, Murphy is often cited as a well-known case in which a special

master weighed the value of medical records created contemporaneously with the

events the medical records described against the value of affidavits created many

years later. The special master found that the medical records were more reliable,

1991 WL 74931 at *5, and the Claims Court ruled that this finding was not

arbitrary. 23 Cl. Ct. 726, 734 (1991), affʼd, 968 F.2d 1226 (Fed. Cir. 1992).

Under the representations presented in the contemporaneously created medical

records, the petitioners in Murphy were not entitled to compensation.

A less recognized aspect to Murphy is the ensuing motion for attorneys’ fees

and costs, which is more relevant to the case at hand. Although the special

master’s 1993 decision denying an award of attorneys’ fees and costs is

unpublished, the opinion on a motion for review states the special master found a

lack of reasonable basis because “the medical records and other written records

contradict the claims brought forth in the petition.” 30 Fed. Cl. 60, 61 (1993).

Upon a motion for review, the petitioners argued that the special master abused his

discretion in denying attorneys’ fees and costs. More specifically, the petitioners

argued that “because they submitted expert opinion to support their claim, they had

a reasonable basis for their case as a matter of law.” Id. at 62.

The Court, however, rejected the petitioners’ argument and ruled that the

special master was not arbitrary in finding a lack of reasonable basis. The Court

reasoned that an expert report premised on unreliable assertions does not confer

reasonable basis:

[The petitioners’] position assumes that special masters rely upon

expert testimony without determining whether it is corroborated by

the facts. This position is not plausible, as expert testimony in and of

itself does not determine reasonableness. . .. [T]he expert opinion

submitted by petitioners was founded upon Mrs. Murphy’s version of

the events, a version found to be unreliable by the special master.

Id. at 63.

13

Together, Murphy and Perriera teach that expert testimony is not sufficient

for reasonable basis to be conferred. Something more is required. At the least, this

includes a requirement that experts provide opinions rooted in more than

speculation, and that the claims of the petition not be contradicted by the

evidentiary record. Although the exact quantum of evidence has not been defined,

it is also now well-established that the burden is on petitioners to marshal the

evidence that supports the reasonable basis of the petition to be awarded

reasonable fees and costs incurred on the petition. Carter v. Secʼy of Health &

Human Servs., 132 Fed. Cl. 372, 379 (2017) (citing Woods v. Secʼy of Health &

Human Servs., 105 Fed. Cl. 148, 152 (2012) and McKellar v. Secʼy of Health &

Human Servs., 101 Fed. Cl. 297, 305 (2011)). The burden of establishing

reasonable basis is to present some quantum of evidence that is lower than the

preponderance of evidence standard.

V. Analysis

Although the current fees motion does not cover compensation for the

earliest stages of Ms. McCabe’s petition—that portion of the fees and costs were

awarded in the June 26, 2015 interim fees decision—revisiting the beginning of

this proceeding provides context for understanding the trajectory of Ms. McCabe’s

case, and why it does not present a petition that was pursued with a reasonable

basis and in good faith.

A. Ms. McCabe’s Initial Claim of a Demyelinating Disease

Ms. McCabe entered the Vaccine Program averring that she suffered a

demyelinating injury, one she characterized as causing her “GBS, nerve damage,

sleeping problems, chronic inflammatory respiratory problems, memory loss and

walking problems.” Exhibit 13 ¶ 7. Ms. McCabe was able to substantiate these

claims with an affidavit she submitted detailing how, following the September 11,

2010 vaccination, she suffered fatigue, pain in her back and legs, sore and swollen

legs, and memory loss. She was also able to substantiate her claims by providing

medical records showing that she visited an emergency department at NYU 11

days after vaccination. At this visit, she reported a history of feeling “weak,

fatigued, and achy” immediately following the vaccination. Exhibit 2 at 6.

Ms. McCabe did not stop there. She also produced an expert report from Dr.

David Axelrod. Dr. Axelrod noted that an MRI of Ms. McCabe’s brain following

the flu vaccination “revealed 3 right frontal subcortical white matter areas of hyper

intensity, consistent with a demyelinating disorder.” Exhibit 16 at 1. Dr. Axelrod

14

concluded that “the objective findings suggest dysfunction of parts of her nervous

system” and that it “was caused by an immune response to the vaccine that resulted

in damage/dysfunction of her central nervous system, including demyelinating

disease.” Dr. Axelrod proceeded to spend several pages of his report detailing how

an immune response could cause this pathology. Id. at 2-4. The combination of

the medical records, Ms. McCabe’s affidavits, and the expert report from Dr.

Axelrod provided a not insubstantial amount evidence in favor of Ms. McCabe’s

claim that she suffered from a vaccine-induced demyelinating disease.

To be sure, Ms. McCabe’s evidence was not without problems. Although

Ms. McCabe associated her presentation to the hospital on September 22, 2010

with the vaccination, the doctors who treated her there associated her condition to a

viral infection. See exhibit 2 at 7. Similarly, while her MRI showed three white

matter hyperintensities, the radiologist that interpreted the findings found them to

be “nonspecific.” Exhibit 1 at 100. This was consistent with the conclusions

provided by several other treating neurologists, all of whom found her to be

neurologically normal. See exhibit 1 at 106; exhibit 2 at 7; exhibit 8 at 8, 11.

These concerns about Ms. McCabe’s claim were highlighted in Dr. Leist’s

report. Dr. Leist, a neurologist, also independently concurred with the assessments

provided by Ms. McCabe’s neurologists, concluding that she was not suffering

from a neurological condition. Exhibit A at 10-11. As a neurologist, Dr. Leist was

substantially more credible than Dr. Axelrod on the question of whether Ms.

McCabe was suffering from a neurological injury.

When Ms. McCabe’s original attorney requested interim fees shortly before

withdrawing, the Secretary did not challenge that request. Speculating about the

reasons for the Secretary’s acquiescence is not necessary. However, the health of

Ms. McCabe’s former attorney was certainly a factor and the request for interim

fees was filed before the Federal Circuit clarified the reasonable basis standard in

Simmons, 875 F.3d 632. Regardless of the explanation, the absence of a challenge

by the Secretary was noticeable.

In the decision granting interim fees, the undersigned declined to make

arguments not made by the Secretary himself. See Greenlaw v. United States, 554

U.S. 237, 243 (2008) (“[W]e rely on the parties to frame the issues for decision and

assign to courts the role of neutral arbiter of matters the parties present”). The

assertions made by Dr. Axelrod and Ms. McCabe in the reports and affidavits were

taken at face value and the underlying basis for the claims was not scrutinized

beyond the four corners of the document. See Interim Fees Decision, issued June

26, 2015, at 2 (“Dr. Axelrod’s report (exhibit 16) fulfills the reasonable basis

15

standard in this case”). The dispute between the experts was chalked up to a battle

of the experts, one that would be resolved through further reports and testimony.

Ultimately, Dr. Axelrod’s reports turned out to be not based in fact. After

over a year of trying, Ms. McCabe was never able to identify a neurologist who

would endorse the opinions expressed by Dr. Axelrod, most notably his opinion

that Ms. McCabe had a demyelinating condition. Indeed, Ms. McCabe ultimately

decided to abandon Dr. Axelrod as an expert in her case, proceeding with new

experts adopting new diseases and new theories for how the flu vaccine caused

them.

B. From a Demyelinating Injury to CFS

Ms. McCabe’s second diagnosis, cytokine release syndrome, was a non-

starter. The diagnosis was made by Ms. Mikovits, who is not a medical doctor.

Dr. Whitton rebutted that it was without support in the record, and the condition

was not raised again. See Decision, 2018 WL 3029175, at *15-20. Ms. McCabe’s

lack of reasonable basis to claim an injury of cytokine release syndrome does not

appear to be in question. People who lack medical training are not qualified to

diagnose diseases.

Ms. McCabe’s third diagnosis, CFS, seemed to have more teeth. Indeed,

Ms. McCabe ultimately proceeded to a hearing on this disease. Ms. McCabe’s

CFS diagnosis was made by Dr. Levine, an expert in the syndrome. CFS is a

poorly understood disease. It is also not particularly well-characterized, leading to

several different diagnostic criteria with no one being the “gold-standard.” Id. at

*37. Though criteria vary, most require the patient to suffer from debilitating

tiredness. See, e.g., exhibit M1 (IOM report) at 72.4 Unlike the demyelinating

condition and cytokine release syndrome, Ms. McCabe’s record was replete with

references that she complained of fatigue. Indeed, practically every time that Ms.

McCabe visited her primary care doctor, dating back to the very first records filed

from 2006, she complained of insomnia, depression, and / or fatigue.

A foundational issue with Ms. McCabe’s newest claim, however, was that

no treating doctor ever diagnosed her with CFS. Even Dr. Levine never examined

Ms. McCabe or performed the necessary tests on her to determine if she met the

4

In addition, different criteria will require that patients meet other requirements before a

diagnosis of CFS can be made. Commonly, these involve indicia of autonomic dysfunction. See

Decision, 2018 WL 3029175, at *37-43. The main criteria used in this case are detailed in the

decision. Importantly, though not critically, Ms. McCabe was found to not meet any of the

diagnostic criteria in the record. Id.

16

criteria for the condition. Indeed, as noted earlier, when Dr. Levine was asked,

directly, what her basis was for determining that Ms. McCabe was experiencing

debilitating symptoms related to CFS—a claim that Dr. Levine made repeatedly in

her expert reports—she was unable to provide an answer. Tr. 450.

Beyond the foundational issue of whether Ms. McCabe suffers from this

amorphous condition, there is the more pressing question of what any of Ms.

McCabe’s reports of fatigue have to do with the flu vaccine she received on

September 10, 2010. Ms. McCabe’s original petition and affidavits described her

having an acute onset of symptoms associated with a demyelinating neurological

condition following the September 11, 2010 vaccination. Her petitions and

affidavits did not describe new onset or significantly aggravated fatigue following

the vaccination. These allegations did not appear until 2017, when her petition was

amended to claim CFS as the injury for which she sought compensation.

The absence of any claim of new onset or significantly aggravated chronic

fatigue in Ms. McCabe’s affidavits and petitions prior to 2017 was entirely

consistent with her medical records. These records plainly evinced an image of a

woman who suffered from ongoing fatigue, insomnia, and depression (though not

necessarily the disease CFS) since the very first records submitted into evidence.

To facilitate the process of drawing inferences from the textual records, the

undersigned created a graph that visually represented the visits and complaints:

17

Dr. Levine struggled to explain how Ms. McCabe’s medical records

supported the conclusion that she was suffering from new onset or significantly

aggravated CFS following the 2010 vaccination. Despite submitting four reports,

Dr. Levine never adequately explained the basis for her conclusions. Her inability

or unwillingness to do so is easily explained by reference to the figure above,

which demonstrates the lack of medical record support for new onset or

significantly aggravated CFS following the vaccination.

When pressed, Dr. Levine would simply list all the records she reviewed and

make conclusory statements such as “Thus, the complaints reported by the patient

in the above Exhibits match the symptoms and exclusionary criteria contained in

the case definitions provided in References 1 and 2.” Exhibit 72 at 2. When

pressed again for more specificity, Dr. Levine simply made things up. She stated

that Ms. McCabe complained of “worse” or “worsening” insomnia. Exhibit 80 at

1; exhibit 90 at 1. But, in fact, the records that Dr. Levine was referencing made

no reference to Ms. McCabe’s condition “worsening”; instead the records simply

mentioned that Ms. McCabe was continuing to complain of these conditions, as

she had been in the majority of her visits, since her earliest medical record filed in

this petition. See exhibit 1 at 2-12.

Dr. Levine was placing great emphasis on the portrayal of Ms. McCabe

provided by her and her counsel. When Dr. Levine was being asked by the

Secretary’s counsel to justify her conclusion that Ms. McCabe was suffering from

ongoing debilitating symptoms of CFS and was unable to provide an answer, Mr.

Shoemaker interjected to say: “I think included in the affidavits and also, Your

Honor, a description that we provided to her of her current condition as well, when

she was working part-time and was still quite debilitated from the illness.” Tr.

450. It appears that Dr. Levine was taking liberties with the medical records

because of the self-history Ms. McCabe and her attorney provided.

The presumption that medical records are accurate is rebuttal with strong

evidence. Cucuras v. Sec'y of Health & Human Servs., 993 F.2d 1525, 1528 (Fed.

Cir. 1993); Campbell v. Sec’y of Health & Human Servs., 69 Fed. Cl. 775, 779

(2006). Unfortunately, the evidence Ms. McCabe presented—her testimony—was

far from persuasive. Ms. McCabe was not a credible witness nor a credible

historian of her condition. As discussed in the decision, she repeatedly made

statements that contradicted her own testimony and the underlying record. She

provided a portrayal of herself that was inconsistent with not only the medical

records, but her own expert’s assessment of her condition. See Decision, 2018 WL

3029175, at *44-46. Her testimony appeared rehearsed. Id. In sum, nothing Ms.

McCabe said could be credited merely for the fact she said it.

18

The divide between petitioner’s unsubstantiated averments and the

contemporaneously created records undermines petitioner’s claim that a reasonable

basis exists for her claim that the 2010 flu vaccine caused or significantly

aggravated her CFS. See Murphy, 30 Fed. Cl. at 62. Here, as in Murphy, the

documentary evidence is directly at odds with the claims brought by Ms. McCabe.

When claims are not rooted in fact, there is not a reasonable basis for those claims.

Ms. McCabe’s argument that the numerous expert reports she submitted

provides her with reasonable basis is also unconvincing. Although expert opinion

can provide petitioners with a reasonable basis to file a petition—and in practice is

often essential in the analysis—the fact an expert opinion was submitted does not

end the analysis. See Perreira, 33 F.3d at 1377 (noting that when the expert’s

opinion of an association between the vaccination and the injury is “mere

speculation,” the statute does not envision reimbursement for fees and costs

incurred in bringing the petition). Accordingly, reasonable basis does not

automatically follow from the very fact that Ms. McCabe filed nearly a dozen

expert reports.

The opinions submitted by Dr. Levine and Ms. Mikovits were not simply

less convincing than the opinions submitted by the Secretary’s experts. Cf.

Dominguez, slip op. at 13, 16-20 (finding reasonable basis despite unpersuasive

opinion provided by Ms. Mikovits). Instead, the opinions were largely based on

untruths. Both experts adopted as true a version of events that was not

corroborated by facts in the record or adopted a facially implausible version of

events provided by the petitioner. In drawing their conclusions, the experts

ignored or misrepresented the documentary evidence that directly contradicted the

argument they were attempting to make. When experts do so, petitioners cannot

rely on the experts’ testimony to establish reasonable basis. See Murphy, 30 Fed.

Cl. at 62.

Ms. McCabe’s experts were deficient not only in their reliance on facts not

in the record, but also their inability to address fundamental issues in Ms.

McCabe’s case. One of the more salient examples was Ms. McCabe’s failure to

present a single diagnostic criterion for CFS for which she met the requirements.

See Decision, 2018 WL 3029175, at *36-42. This deficit was particularly salient

since no treating doctor ever diagnosed Ms. McCabe with CFS and because the

CFS claim appeared in the middle of the litigation after her claim of a very

different injury was effectively foreclosed.

Ms. McCabe’s fees brief does not meaningfully engage with the

undersigned’s concerns about the credibility of her experts and their seeming

19

reliance on facts not in the record. Instead, she places substantial emphasis on two

instances where the undersigned remarked about the evidence she had submitted in

the record and attempts to rely on these statements to prove the reasonable basis of

her petition. Both are unpersuasive.

First, Ms. McCabe cited the undersigned’s award of interim attorneys’ fees

in 2015 as evidence of the reasonable basis for her continued litigation. As an

initial matter, it is now well-settled law that the reasonable basis of a petition can

come and go throughout the proceedings based on the evidence in the record. R.K.

v. Sec'y of Health & Human Servs., 760 F. App'x 1010, 1012 (Fed. Cir. 2019);

Perreira, 33 F.3d at 1377. Thus, at the very least, the earlier determination does

not bind the analysis now. Furthermore, since the interim fees decision, Simmons

has refined the reasonable basis standard.

More critically, petitioner’s argument borders on being disingenuous in

several ways. First, petitioner’s brief does not mention that the award of interim

fees adopted a stipulation by the parties. Second, petitioner’s brief does not

mention that the Secretary agreed to the stipulation under consideration of the

“particular circumstances” of the motion, including it being precipitated by Ms.

McCabe’s first counsel’s withdrawal from the case due to his poor health. Third, it

ignores that reasonable basis for the petition at that time was founded solely upon

Dr. Axelrod’s opinion that Ms. McCabe suffered a demyelinating condition that

was the result of the 2010 flu vaccine. However, even Ms. McCabe has abandoned

the claim of a demyelinating injury because she was unable to support it with

evidence. Her attempt to now rely on the 2015 interim fees decision to prove up

the reasonable basis for a completely different claim is specious. Finally, the

withdrawal of one attorney provides an opportunity for a potential successor to

analyze the evidence dispassionately. See Rehn v. Sec’y of Health & Human

Servs., No. 14-1012V, 2017 WL 1011487, at *6 (Fed. Cl. Mar. 2, 2017) (denying

motion for review of decision finding no reasonable basis and stating the original

attorney’s “withdrawal from the case without finding a credible expert thus acted a

‘signal’ to [the successor attorney] about the weakness of the case”).

Second, Ms. McCabe also twice cites, in support of reasonable basis, a

statement the undersigned made in an order dated August 1, 2017. To put the cited

sentence in context, the first paragraph of the order is provided below:

Due to problems with Dr. Levine’s report dated July 3, 2017, the

undersigned believes that the hearing set for Wednesday-[Friday],

October 18-20, 2017, cannot proceed as scheduled. The present order,

20

however, does not cancel the hearing. Instead, a status conference is

set to obtain the views of the parties.

Order, issued Aug. 1, 2017, at 1. The order proceeds to explain the reasons why

Ms. McCabe’s hearing was at risk of being cancelled. One of the major reasons, as

communicated in the order, was that Dr. Levine’s reports had large gaps. One

specific concern with Dr. Levine’s reports was that the symptoms in the medical

records on which she was relying to diagnose Ms. McCabe with CFS (insomnia,

depression, and fatigue) also appeared throughout the earliest medical records

submitted by Ms. McCabe, dating back to 2006. If the same symptoms Dr. Levine

cited to support the CFS diagnosis were present before the vaccination, Ms.

McCabe could seemingly not pursue a claim of causation-in-fact. As

communicated in the order:

On October 2, 2006, Ms. McCabe reported “depression,” “insomnia,”

and “fatigue.” Exhibit 1 at 2. According to Dr. Levine, insomnia is a

key symptom of chronic fatigue syndrome. Exhibit 80 at 1.

Thus, it appears that Ms. McCabe already suffered from chronic

fatigue syndrome in 2006. If so, then Ms. McCabe cannot claim that

the September 11, 2010 flu vaccine caused her chronic fatigue

syndrome. If so, then Ms. McCabe must be asserting a cause of action

that the September 11, 2010 flu vaccine significantly aggravated her

pre-existing chronic fatigue syndrome.

Id. at 2-3. Because Ms. McCabe’s proof did not address significant aggravation,

she was warned that “there is another gap in petitioner’s case.” Id. at 3.

The undersigned provides this context so that Ms. McCabe’s use of the

undersigned’s own words can be put into a broader perspective. In her brief in

support of the reasonable basis for the petition, Ms. McCabe argued:

Further, it should not be over zealous representation to proceed to

hearing on the theory that Ms. McCabe had chronic fatigue syndrome

when 1) the Special Master noted “Thus it appears that Ms. McCabe

already suffered from chronic fatigue syndrome in 2006.” (August 1,

2017 order at 2-3) and [Dr. Levine diagnosed her with CFS].

Pet’r’s Reply, filed May 13, 2019, at 9 (emphasis added).

Ms. McCabe’s use of this single sentence of the undersigned’s remark to

convey support for the CFS diagnosis and the reasonable basis for the petition is

mistaken. Provided in context, the order was attempting to communicate to Ms.

21

McCabe that her hearing was in peril of being cancelled due to fundamental gaps

in her proof.

In sum, the undersigned finds that Ms. McCabe’s case (at least after the

withdrawal of the initial counsel) was not pursued with a reasonable basis. An

evaluation of the evidence underlying her claim makes plain that her experts based

their conclusions on a narrative of events—where Ms. McCabe was in great health

until being stricken down by the September 11, 2010 flu vaccine—that was

without support in the record. The support provided for this narrative rested

almost entirely on the averments of a single person: Ms. McCabe. However, her

testimony was repeatedly controverted. It was controverted by the facts, by her

experts, and even by herself. When a claim is pursued based on underlying factual

premises that are not true, the claim cannot be said to possess a reasonable basis.

A salient aspect of Ms. McCabe’s petition is that the October 2017 hearing

made her case for entitlement weaker. The hearing laid bare the weakness of her

experts’ testimony, and, more importantly, the hollowness of her own. In this way,

the hearing achieved its objective of clarifying the record so that a decision could

be made.

This progression of events illustrates the perils of making reasonable basis

determinations before the factual record is complete. In this case specifically,

delaying adjudication of Ms. McCabe’s motion for a determination of reasonable

basis turned out to be the right decision, for the hearing not only provided new

information, but it provided information that affected the credibility of statements

previously made by petitioner and her witnesses.

Ms. McCabe’s petition also presents one of the rare cases where the good

faith of the petitioner must be questioned. The good faith requirement of the

Vaccine Act’s attorneys’ fees provision is not well-developed for the very fact that,

fortunately, few cases present this issue. From what case law exists on the

standard, petitioners cannot obtain reimbursement of their fees and costs for claims

brought without an honest belief that the vaccine caused the injury they claim. See

Hamrick, No. 99-683V, 2007 WL 4793152, at *3 (Fed. Cl. Spec. Mstr. Nov. 19,

2007). Assessing subjective beliefs is exceedingly difficult and doing so may

involve deduction from the observable behavior of the petitioner. For example, in

Turner, the special master based on her finding of good faith on emails between the

petitioner and counsel that evinced a sincere belief in the claim. See Turner, 2007

WL 4410030, at *6.

Here, deducing petitioner’s beliefs from her conduct supports a conclusion

that this petition was not pursued with good faith. Ms. McCabe initially brought a

22

claim of a demyelinating injury. After years of trying, she was not able to support

this claim. It was only then that she transitioned to a claim of cytokine release

syndrome. Once again, it was only when she could not support that claim that she

shifted to her final claim of chronic fatigue syndrome. Along the way, Ms.

McCabe filed new affidavits that changed her complaints based on what she was

seeking compensation for. Compare exhibit 91 (claiming ongoing extreme

fatigability) with exhibit 13 (describing her condition as “GBS, nerve damage,

sleeping problems, chronic inflammatory respiratory problems, memory loss and

walking problems”). To be sure, the treating doctors did not diagnose Ms.

McCabe with any of these conditions. To support these claims, Ms. McCabe

submitted expert reports that contained characterizations of the record that she

knew, or should have known, were false. Even more, Ms. McCabe provided

testimony regarding her alleged CFS that was inconsistent with her own statements

regarding her condition. Her testimony also appeared led by counsel towards a

pre-conceived answer. See Decision, 2018 WL 3029175, at *44-46. Based on

these observations, Ms. McCabe’s claim that the September 11, 2010 flu vaccine

caused her to develop, or significantly aggravated, CFS was not pursued in good

faith. See Gilead Sciences, Inc. v. Merck & Co., Inc., 888 F.3d 1231, 1240 (Fed.

Cir. 2018) (ruling that a district court did not abuse its discretion in finding patents

were not enforceable due to unclean hands).5

* * *

Ms. McCabe filed her petition for compensation almost exactly six years

ago. The resources expended on this petition exceed the $180,000 being requested

by the petitioner here. The resources spent adjudicating this petition are even more

concerning when the backlog of petitions in this Program are taken into

consideration.

The undersigned respects counsel’s desire to zealously represent his client.

However, zealous representation is not what occurred here. What occurred was,

largely, a continuous misrepresentation of the underlying facts in search of a

colorable claim of a vaccine injury. Those misrepresentations were made not only

by petitioner’s experts, but by the petitioner herself. While Ms. McCabe

emphasizes that her experts filed many reports (Pet’r’s Reply, filed May 13, 2019,

at 10), the number of reports, in this case, indicates that the experts could not

5

In Gilead, the Federal Circuit warned that the doctrine of unclean hands should not

overtake “relatively commonplace disputes over credibility.” So, too, here, the finding of a lack

of good faith is not based simply or exclusively upon Ms. McCabe’s lack of truthfulness.

23

answer basic questions in a straightforward manner. For example, Dr. Levine’s

persistent failure to disclose the diagnostic criteria for chronic fatigue syndrome on

which she was relying in diagnosing Ms. McCabe should have alerted counsel to

the weakness of Dr. Levine’s opinion.

When Congress decided to implement a Program wherein unsuccessful

petitioners would have their fees and costs reimbursed by the taxpayer, Congress

envisioned a Program wherein able attorneys would not be dissuaded from taking

on difficult to prove cases bereft of scientific certainty regarding the underlying

injuries that are being alleged. Saunders v. Sec'y of Health & Human Servs., 25

F.3d 1031, 1036 (Fed. Cir. 1994). The undersigned’s evaluation of the reasonable

basis and good faith for Ms. McCabe’s claim takes seriously this wish by Congress

that petitioners not be penalized for bringing claims that come up short on their

proof.

Put another way, while Ms. McCabe did not provide persuasive evidence

that the flu vaccine she received could cause CFS, that is not the issue here. As

noted in the underlying entitlement decision, CFS may very well have an

immunogenic basis and vaccine reactions have immunologic consequences; it is

accordingly not inconceivable that one could have an effect on the other. Future

research may uncover a connection (or it may not). The problem with Ms.

McCabe’s petition is that she pursued it without any allegiance to the underlying

facts of her case. For that, her petition cannot be said to be pursued with a

reasonable basis and in good faith. Accordingly, she is not entitled to

reimbursement of her fees and costs.

VI. Conclusion

For the reasons explained above, the undersigned finds that Ms. McCabe’s

claim that the September 11, 2010 flu vaccine caused or significantly aggravated

CFS was not maintained in good faith and was not supported by a reasonable basis.

Accordingly, she is not entitled to compensation for her attorneys’ fees and costs

and her motion must be DENIED. 42 U.S.C. § 300aa-15(e)(1).

24

In the absence of a motion for review filed pursuant to RCFC Appendix B,

the clerk of the court is directed to enter judgment herewith.

IT IS SO ORDERED.

s/Christian J. Moran

Christian J. Moran

Special Master

25