Opinion

Harding v. Secretary of Health and Human Services

Court: United States Court of Federal Claims
Filed: Jan 6, 2020
Status: Published
Cited by: 0 cases
Authority: More cited than 10.0%

holding that a petitioner may prevail on entitlement by demonstrating that a vaccine was a “substantial factor” contributing to the injury

How later courts described this case

holding that a petitioner may prevail on entitlement by demonstrating that a vaccine was a “substantial factor” contributing to the injury
“[t]emporal proximity is necessary, but not sufficient” to establish reasonable basis
“A petitioner seeking compensation under the Vaccine Act must prove by a preponderance of the evidence that the injury or death at issue was caused by a vaccine.”

Written by the judges who cited it.

The opinion

In the United States Court of Federal Claims

No. 17-1580V

Filed: December 9, 2019

Reissued for Publication: January 6, 20201

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

JESSICA HARDING, *

Petitioner, *

v. * Vaccine Act; Motion for Review;

* Attorney’s Fees and Costs;

SECRETARY OF THE DEPARTMENT * Reasonable Basis.

OF HEATH AND HUMAN SERVICES, *

Respondent. *

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

Mark T. Sadaka, Sadaka Associates LLC, Englewood, NJ, for petitioner.

Voris E. Johnson, Senior Trial Attorney, Torts Branch, Civil Division, United

States Department of Justice, Washington, D.C., for respondent. With him were

Catharine E. Reeves, Deputy Director, Torts Branch, C. Salvatore D’Alessio, Acting

Director, Torts Branch, Civil Division, and Joseph H. Hunt, Assistant Attorney General,

Civil Division.

OPINION

HORN, J.

On October 20, 2017, petitioner, Jessica Harding, filed a request for vaccine

compensation under the National Vaccine Injury Compensation Program, 42 U.S.C.

§ 300aa-10 (2012) (Vaccine Program), in the United States Court of Federal Claims Office

of Special Masters. On August 20, 2018, petitioner filed an unopposed motion with

Special Master Thomas L. Gowen to dismiss her petition. On August 21, 2018, the Special

Master issued a “Decision on Entitlement,” dismissing petitioner’s claim for insufficient

proof. On February 28, 2019, petitioner filed an “Application for Attorney Fees and Costs,”

requesting $17,366.96 in attorney’s fees and costs.2 On June 18, 2019, the Special

1This Opinion was issued under seal on December 9, 2019. The parties did not propose

any redactions to the December 9, 2019 Opinion, and the court, therefore, issues the

Opinion without redactions for public distribution.

2The application itself states that petitioner requests “$27,366.96 for attorney’s fees and

costs,” but the record of time submitted with the application shows that the attorney’s fees

and costs totaled $17,366.96. In his decision on attorney’s fees and costs, Special Master

Gowen noted the discrepancy between the application and the underlying document

Master issued his “Decision on Attorneys’ Fees and Costs,” granting in full the petitioner’s

motion and awarding $17,366.96 in attorney’s fees and costs.3 See generally Harding v.

Sec’y of Health & Human Servs., No. 17-1580V, 2019 WL 3215974 (Fed. Cl. Spec. Mstr.

June 18, 2019). Respondent timely filed a motion for review of the Special Master’s

decision on the limited issue of attorney’s fees and costs in the United States Court of

Federal Claims.

FINDINGS OF FACT

According to the records before this court, petitioner Jessica Harding was born on

August 2, 1993 and resided in Albany, Oregon at the time she timely filed her petition for

compensation. Petitioner claimed that she suffered “vaccine induced aggravation of

Wegener’s granulomatosis, also known as granulomatosis polyangiitis [sic]” or GPA4 after

she received a second series of the three-shot human papillomavirus (HPV) vaccination

(brand name Gardasil). Twice petitioner received the series of the three-shot HPV

vaccination. Petitioner received the first series of three shots on April 2, 2009, January

28, 2010, and July 26, 2010. On August 30, 2010, petitioner saw Dr. Andrew Zeft at the

University of Utah’s Pediatric Rheumatology Clinic and described “having joint pain

everywhere” which petitioner reported as having begun in “early July 2010” and having

“persisted for approximately two months.” Petitioner also reported to Dr. Zeft that she had

been experiencing “bloody noses for the last three or four months.” On September 13,

submitted and stated that the “digit ‘2’ was most likely an inadvertent error.” Petitioner did

not dispute the Special Master’s assumption that the amount of the attorney’s fees and

costs claimed in her submissions totaled $17,366.96.

3 Special Master Gowen awarded attorney’s fees in the amount of $15,838.84, and costs

in the amount of $1,528.12. See Harding v. Sec’y of Health & Human Servs., 2019 WL

3215974, at *9.

4 In his decision on attorney’s fees and costs, Special Master Gowen cited the Mayo Clinic

definition of granulomatosis with polyangiitis or GPA, stating that “GPA specifically

‘causes inflammation of the blood vessels in your nose, sinuses, throat, lungs, and

kidneys,’” with signs and symptoms that “‘can develop suddenly or over several months,’”

and includes symptoms such as:

“pus-like drainage with crusts from your nose, stuffiness, sinus infections

and nosebleeds; coughing, sometimes with bloody phlegm, shortness of

breath or wheezing; fever; fatigue; joint pain; numbness in your limbs,

fingers, or toes; weight loss; blood in your urine; skin sores, bruising, or

rashes; eye redness, burning or pain, and vision problems; [and] ear

inflammation and hearing problems.”

Harding v. Sec’y of Health & Human Servs., 2019 WL 3215974, at *1, *3 (quoting Mayo

Clinic, Granulomatosis with Polyangiitis, https://www.mayoclinic.org/diseases-

conditions/granulomatosis-with-polyangiitis/symptoms-causes/syc-20351088 (last visited

Dec. 9, 2019)) (alteration in original).

2010, Dr. Zeft diagnosed the petitioner with GPA. Petitioner was treated with

methotrexate and prednisone. Dr. Zeft made no notation in the records provided to the

court about petitioner having received the HPV vaccination.

As indicated in petitioner’s exhibits submitted to Special Master Gowen, in 2012,

petitioner saw Dr. Stephen Parsons at PEAK ENT Associates with “severe rhinitis in the

LEFT nasal cavity, as well as sinusitis over the past couple of months,” and for a “RIGHT

middle ear effusion with some decreased hearing in the right ear.” (capitalization in

original). On May 1, 2012, petitioner underwent surgery for bilateral ear tube placement

to treat her hearing problems. The medical records submitted to the Special Master

indicate that petitioner’s symptoms began to worsen in late 2012. In October 2012,

petitioner saw Dr. Malgorzata Hanczyc at Central Utah Clinic in Provo, Utah with a sinus

infection and saw Dr. Parsons at PEAK ENT Associates complaining of significant pain

in her ear. Dr. Stephens noted, at that time, that petitioner’s GPA “seems to be under

good control.” In late February 2013, petitioner tested positive for C-ANCA. In May 2013,

petitioner saw Dr. Justin Jones at Central Utah Clinic with severe headache, nasal

pressure, and pain in her neck. In early October 2013, petitioner saw Dr. Jones

complaining of a chronic dry cough, and was diagnosed with asthma. In December 2013,

petitioner saw Dr. Yong Zhu, a rheumatologist with the Corvallis Clinic complaining of

“shortness of breath, intermittent nasal bleeding, and fatigue.” Dr. Zhu summarized

petitioner’s history of GPA, noting that “[s]he has been treated with prednisone therapy

for one year in combined [sic] with methotrexate. She has 3 years therapy of

methotrexate,” and “[d]uring the last a [sic] couple years, she gradually developed saddle

nose.”5 Petitioner also saw a pulmonologist, Dr. Vincent Gimino, in December 2013, who

noted that petitioner had developed “upper airway obstruction, most likely subglottic

stenosis related to underlying Wegener’s granulomatosis.”

In January 2014, Dr. Nick Benton evaluated petitioner and noted “[t]he patient was

not well managed for a number of months and subsequently has had worsening

symptoms.” Dr. Benton noticed “issues with nasal Wegener’s with some nose bleeding

and nasal discharge,” but “did not see other evidence of tracheal involvement with

Wegener’s” other than “a thin subglottic stenosis,” which he believed would be “amenable

to dilation.” Dr. Zhu referred petitioner to rheumatologist Dr. Steven Call in Utah, who saw

petitioner on January 10, 2014 and noted that petitioner’s “airway is about 50% of what it

should be at this point.” Dr. Call placed petitioner on the drug Rituximab. On January 16,

2014, petitioner underwent surgical dilation for her subglottic stenosis. On February 11,

2014, petitioner saw Dr. Call for a follow-up appointment, and Dr. Call noted that petitioner

was moving back to Albany, Oregon to have the support of her family while she received

treatment for GPA. Dr. Call noted that petitioner had tapered her prednisone to 20 mg,

but experienced shortness of breath and he, therefore, increased her dose of prednisone

to 30 mg.

5“A ‘saddle nose deformity’ is defined as a ‘concavity of the contour of the bridge of the

nose due to collapse of cartilaginous or bony support, or both,’ which is associated with

GPA.” Harding v. Sec’y of Health & Human Servs., 2019 WL 3215974, at *4 n.8 (quoting

Dorland’s Illustrated Med. Dictionary 1291 (32nd ed. 2012)).

On April 26, 2014, petitioner saw Dr. Joshua Schindler, an otolaryngologist and

head and neck surgeon at the University of Oregon Health and Science University

(OHSU) – Northwest Clinic for Voice and Swallowing, for difficulty with her breathing. Dr.

Schindler’s assessment was that petitioner “appears to have dyspnea, hearing loss and

nasal collapse associated with granulomatosis with polyangiitis (GPA) that looks active

today on exam.” In July 2014, Dr. Schindler noted that petitioner’s airway was narrowed

after she saw him complaining of worsened breathing. Dr. Schindler then performed

another surgical dilation of her airway. By September 28, 2014, when petitioner returned

to Dr. Schindler for her first post-operative visit, petitioner told Dr. Schindler that she felt

better and was taking 40 mg of prednisone per day. In his assessment at that first post-

operative visit, Dr. Schindler noted that petitioner “looks better to me today than she did

in the operating room and has no signs of active nasal or subglottic granulomatosis with

polyangiitis (GPA).” Dr. Schindler also suggested that petitioner could wean her oral

steroid dose “as the Cytoxan becomes active.”

Between 2014 and 2015, petitioner received the second series of the three shots

of the HPV vaccination. Petitioner received the first shot in the second series of the HPV

vaccination on October 28, 2014 from Dr. Kristin Berry, a gynecologist with Samaritan

Health Services. Dr. Berry had previously noted in petitioner’s records that petitioner was

starting on Cytoxan for treatment of her GPA and that petitioner’s physician

“recommended that the patient be on Lupon to suppress her ovaries during the time that

she is on Cytoxan as the medication can cause damage to her ovaries of [sic] not

protected.” Special Master Gowen noted that Dr. Berry’s physical assessment of

petitioner on October 28, 2014 “did not show signs of respiratory abnormalities or

distress.” Harding v. Sec’y of Health & Human Servs., 2019 WL 3215974, at *5. In his

decision, Special Master Gowen offered the following discussion of why Dr. Berry may

have started petitioner on another series of the HPV vaccination:

The medical records from this visit do not reflect the petitioner previously

completed a three-dose HPV vaccine series back in 2011. It is possible that

petitioner needed a repeat course of HPV vaccine because her treatment

for GPA, including chemotherapy drugs, wiped out her immune system. An

alternative explanation could be that the medical provider giving the HPV

vaccines in 2014 may not have been aware of the previous HPV vaccines

administered at a different medical practice back in 2011. At any rate, it

appears that in 2014, the gynecologist was aware of petitioner’s history of

GPA but did not see any contraindication for administering the HPV vaccine.

Id.

Two days later petitioner saw Dr. Schindler for a follow-up visit and he noted in his

assessment that she was taking 17.5 mg of prednisone and methotrexate. He indicated

that petitioner “continues to look good,” and that her GPA “does not appear active at this

time.” At this visit, petitioner informed Dr. Schindler that she had scheduled a rhinoplasty

for December 2014 with Dr. Wang. Dr. Schindler addressed his concerns about petitioner

undergoing surgery at length in his assessment, stating:

I have grave concerns about her undergoing rhinoplasty in the next couple

of months, however. She has not demonstrated adequacy of her

immunosuppression off prednisone yet and I fear that surgery to correct her

saddle nose deformity and septal perforation could “reawaken” her disease.

I would like to see her stably managed on methotrexate and quiescent for

several months before surgery on a known site of activity for her. I fear that

withdrawal of her immunosuppression around surgery for more than a brief

period could result in reactivation of the GPA and loss of the reconstruction.

We talked about this for a while and I promised that I would review my

thoughts with Drs. Wang and Garg. My thoughts for her nasal surgery would

be more like 6 months from now with demonstrated quiescence on

methotrexate and off oral steroids.

Dr. Schindler increased petitioner’s prednisone dose to 27.5 mg per day for two weeks,

and then 25 mg per day for two weeks. The records submitted by petitioner suggest that

she did not undergo rhinoplasty until September 1, 2015.

The second shot in the second HPV vaccination series was administered to

petitioner on November 25, 2014. On November 26, 2014, the next day, petitioner went

to her primary care practice complaining of stomach discomfort and urine smelling of

ammonia for two weeks. Petitioner’s records from the visit noted that petitioner was

tapering prednisone at 2.5 mg decrease every two weeks and was taking 10 mg of

prednisone per day at the time of her visit. Petitioner was diagnosed with abdominal pain

and fatigue and recommended for a follow-up visit with her primary care physician if her

symptoms did not improve. On December 2, 2014, petitioner returned to her primary care

practice complaining of “low energy, tapering off long term use of prednisone, increased

depression, headaches, some anxieties.” Petitioner’s medical records from this visit note

that she was taking 10 mg of prednisone per day as well as methotrexate. Petitioner’s

primary care physician, Dr. Rampton, assessed petitioner as having “Wegener’s

granulomatosis” with a note about tapering steroids, as well as headache, depression,

and anxiety, all of which he attributed to “[s]teroid withdrawal.”

Almost two weeks later, on December 15, 2014, petitioner saw Dr. Schindler for a

follow-up visit and she said she was feeling “worse.” Petitioner underwent a pulmonary

function test and the results were “substantially worse than her prior study of 7/11/14.”

Dr. Schindler’s assessment was that petitioner “looks like her granulomatosis with

polyangiitis (GPA) is inadequately controlled with evidence of nasal, tracheobronchial and

advancing subglottic disease right now.” Dr. Schindler increased prednisone to 15 mg per

day for two weeks with instructions to taper by 2.5 mg every two weeks thereafter. Dr.

Schindler suggested making “adjustments to her immunosuppression to get better control

of the disease off prednisone.” Dr. Garg examined petitioner three days later, on

December 18, 2014, and assessed petitioner as having “active disease despite 6 cycles

of cytoxan.” Dr. Garg increased petitioner’s prednisone dose to 60 mg per day for two

weeks and then down to 40 mg per day while tapering down to 10 mg per day over three

months. On January 8, 2015, petitioner once again underwent surgical dilation of her

airway. On February 24, 2015, petitioner received her third and final shot for the second

series of the HPV vaccination. In the months following petitioner’s final shot for the second

series of the HPV vaccination, she continued to taper prednisone, but it was noted that in

March 2015 that “her disease appears to be quiescent.” Dr. Sibley, a rheumatologist in

Portland, Oregon, stated in progress notes forwarded to Dr. Rampton in August 2015 that

petitioner “eventually achieved remission and has been treated with rituximab 375mg/kg

iv x 4 weekly doses starting 4/2015.”

As indicated above, on October 20, 2017,6 petitioner filed her petition pursuant to

the Vaccine Program, and the case was assigned to Special Master Gowen. On October

26, 2017, petitioner filed exhibits of medical records, totaling more than 2,000 pages, to

try to support her claim. On November 6, 2017, Special Master Gowen ordered petitioner

to file any remaining medical records and a Statement of Completion by December 1,

2017. On December 1, 2017, petitioner filed an unopposed motion for extension of time

until January 30, 2018 because she had “ordered, but has not yet received, medical

records from all of her treating physicians.” Special Master Gowen granted petitioner’s

motion and ordered petitioner to file her outstanding medical records and a Statement of

Completion by January 30, 2018. On January 30, 2018, petitioner filed a second

unopposed motion for extension of time until March 30, 2018 to file medical records which

she indicated she had ordered but not yet received from “approximately five providers”

who petitioner had identified as potentially having medical records pertaining to her

injuries. The Special Master issued an order granting petitioner’s motion until March 30,

2018. The Special Master indicated that he would not view the petition as complete until

petitioner had filed a Statement of Completion, and that respondent’s status report was

to be filed within 60 days of the filing of petitioner’s Statement of Completion as opposed

to within 60 days of the initial filing of the petition pursuant to Vaccine Rule 4(a).

On February 2, 2018, petitioner submitted an exhibit of medical records from her

gynecologist at Samaritan Health Services. On February 23, 2018, petitioner filed two

additional exhibits of medical records, the first from petitioner’s ophthalmologist at OHSU

and the second from petitioner’s gynecologist at OHSU. On March 29, 2018, petitioner

filed a third unopposed motion for extension of time until May 29, 2018, stating that

“[p]etitioner has one final medical record to submit which has been ordered and is in the

process of being obtained.” The Special Master granted in part, and, denied in part,

petitioner’s motion for extension of time, ordering that “Petitioner shall file the

outstanding medical records and a Statement of Completion within 45 days, by

Monday, May 14, 2018.” (emphasis in original). On May 14, 2018, petitioner filed a fourth

unopposed motion for extension of time until June 13, 2018, stating that the petitioner

had received “an invoice for the final medical record needed and is in the process of

obtaining.” On the following day, the Special Master granted petitioner’s motion.

On June 13, 2018, petitioner filed a status report regarding how she planned to

proceed with her case. The status report stated: “Petitioner has indicated to her counsel

that she wishes to discontinue her case. Petitioner’s counsel respectfully requests thirty

(30) days or until July 13, 2018 to file a motion for a decision on this case.” On June 14,

2018, the Special Master issued an order granting petitioner’s request. On June 20, 2018,

Special Master Gowen issued an order informing the parties that “[t]he statutory 240-day

period for the special master’s issuance of a decision in this case has expired.” Petitioner

6There does not appear to be further information in petitioner’s October 20, 2017 petition

or Special Master Gowen’s decisions and orders about any medical developments

between August 2015 and the filing of the petition with the United States Court of Federal

Claims Office of Special Masters on October 20, 2017.

was ordered to submit a notice continuing or withdrawing the petition within 30 days, or

by July 20, 2018.

On July 13, 2018, petitioner submitted a request for a status conference “to discuss

next steps.” Special Master Gowen held a status conference on July 19, 2018. In an

Order to Show Cause issued on the same day, July 19, 2018, the Special Master

indicated that during the status conference, Mr. Sadaka, petitioner’s counsel of record,

“stated that petitioner had verbally indicated that she wished to discontinue her claim in

the Vaccine Program. However, petitioner has been unwilling or unable to send Mr.

Sadaka her written authorization.” The Special Master “agreed that Mr. Sadaka needs

petitioner’s cooperation to either discontinue or continue with her claim.” Special Master

Gowen, therefore, ordered petitioner:

[T]o either file all remaining medical records and a Statement of

Completion or deliver to counsel her written authorization to

discontinue her claim within 30 days, by Monday, August 20, 2018.

Petitioner’s failure to comply with this Order will be interpreted as a

failure to prosecute her claim, which will result in its involuntary

dismissal.

(emphasis in original).

On August 20, 2018, petitioner filed an unopposed “Motion for a Decision

Dismissing her Petition.” In her motion, petitioner stated that she “understands that a

decision by the Special Master dismissing her petition will result in a judgment against

her,” and that “[s]he has been advised that such a judgment will end all of her rights in

the Vaccine Program.” The motion stated further that:

Petitioner understands that she may apply for costs once her case is

dismissed and judgment is entered against her. Petitioner’s counsel has

contacted respondent’s counsel regarding respondent’s position on this

motion and understands that respondent expressly reserves the right,

pursuant to 42 U.S.C. § 300aa-15(e), to question the good faith and

reasonable basis of her claim and to oppose, if appropriate, her application

for costs. Respondent otherwise does not oppose this motion [sic]

On August 21, 2018, the Special Master issued a “Decision on Entitlement,” dismissing

petitioner’s claim for insufficient proof. In his decision, Special Master Gowen stated:

Under the Vaccine Act, the Program may not award compensation solely

based on a petitioner’s own claims. Rather, a petitioner must support his

[sic] claim with either medical records or the opinion of a competent

physician. § 13(a)(1). The undersigned also notes that in his experience,

significant aggravation claims can be particularly fact-intensive. Such a

claim involves obtaining considerable medical records. It also involves

comparing the petitioner’s condition before and after the vaccination(s) at

issue, and considering the possible course of the condition “but for” those

vaccination(s). This further illustrates the importance of obtaining medical

records as well as a supportive opinion from a competent physician.

However, petitioner has not filed these materials.

Judgment was entered by the Clerk of Court of the United States Court of Federal Claims

on September 21, 2018, which stated: “Pursuant to the special master’s decision, filed

August 21, 2018, IT IS ORDERED AND ADJUDGED this date, pursuant to Vaccine Rule

11(a), that the case is dismissed for insufficient proof.” (capitalization in original). The

judgment also indicated that a motion for attorney’s fees and costs need to be filed by

represented petitioners within 180 days of judgment.

On February 28, 2019, petitioner filed an “Application for Attorney Fees and Costs”

requesting $17,366.96. In her “Application for Attorney Fees and Costs,” petitioner

asserted that she had brought her claim in good faith because she “developed a relapse

of GPA within 30-days after receiving a fourth Gardasil vaccine in October of 2014.”

Petitioner further asserted that under the totality of the circumstances analysis enunciated

in Chuisano v. United States, 116 Fed. Cl. 276 (2014), the court should find that petitioner

had a reasonable basis to bring her claim. Petitioner explained that because “[h]er GPA

clearly started after the second Gardasil vaccine Petitioner received in 2010. At least one

medical provider stated that her GPA was in remission around the time Petitioner received

the fourth Gardasil vaccination. Finally, the record is clear that her health rapidly

decompensated within 30-days thereafter.” Based on the forgoing, petitioner argued that

there was a reasonable basis to bring the claim.

On March 8, 2019, respondent filed a response opposing petitioner’s “Application

for Attorney Fees and Costs” on the grounds “that petitioner has failed to establish a

reasonable basis for her claim.” Respondent asserted that, under the United States Court

of Appeals for the Federal Circuit’s holding in Simmons v. Secretary of Health & Human

Services, “the reasonable basis analysis must focus on whether there is evidentiary

support for the claim set forth in the petition, not whether counsel acted reasonably in

filing the petition.” (citing Simmons v. Sec’y of Health & Human Servs., 875 F.3d 632, 636

(Fed. Cir. 2017)). Respondent stated that “[p]etitioner has not identified (nor has

respondent located) any notation in the medical records indicating that her treating

physicians believed the HPV vaccine played any role in causing or exacerbating her

condition, nor has petitioner provided an expert report in support of her claim.”

Respondent further stated that “absent any objective evidence that the HPV vaccine

caused or significantly aggravated petitioner’s alleged injury, the claim has no feasibility

of success,” and, therefore, no reasonable basis for the claim has been established.

Special Master Gowen issued his “Decision on Attorneys’ Fees and Costs” on June

18, 2019, granting in full the petitioner’s motion and he awarded petitioner $17,366.96 in

attorney’s fees and costs. See Harding v. Sec’y of Health & Human Servs., 2019 WL

3215974, at *9. In his decision, the Special Master stated that petitioner was time-barred

from claiming that the first series of HPV vaccinations was the cause-in-fact of her GPA

because the vaccinations and the onset of her GPA symptoms “were well outside of the

statute of limitations set forth by the Vaccine Act. § 16(a)(2).” Harding v. Sec’y of Health

& Human Servs., 2019 WL 3215974, at *1. The Special Master further noted that the

petition did not demonstrate “a strong temporal association between HPV vaccines and

the original onset of petitioner’s GPA in 2010,” and further, at the time petitioner moved

to dismiss the petitioner, petitioner had not “provided any treating physician or expert’s

opinion supporting vaccine causation for the original onset,” but that lack of support “does

not rule out reasonable basis for petitioner’s claim that the second round of HPV

vaccinations significantly aggravated that condition.” Id. at *4.

In granting petitioner’s request, the Special Master discussed the factual findings

summarized above, with references to the filings submitted by both parties. See id. at *3-

6. The Special Master offered his analysis of the facts in the record, including:

The medical records from late September and October 2014 do not

expressly say that petitioner was in “remission” before receiving the HPV

vaccines at issue in the significant aggravation claim. However, those

records do suggest that her condition was improving and approaching

quiescience [sic]. Additionally, the medical records reflect that within 30

days after petitioner received the first HPV vaccine at issue, petitioner did

experience of [sic] GPA. Indeed, within 45 days after the HPV vaccine, Dr.

Schindler, the doctor managing her GPA, confirmed the flare and recorded

that her condition was “inadequately controlled.”

Id. at *6. The Special Master also discussed a possible course of petitioner’s claim had

she not filed a motion for a decision dismissing the claim, stating:

If petitioner had filed her remaining medical records and a statement of

completion and the case proceeded on a litigation track, I likely would have

authorized petitioner to seek a further statement or an expert opinion as to

whether the vaccines, which are designed to cause an immune response,

can cause or substantially contribute to a flare of GPA, an autoimmune

condition during the vulnerable time period while prednisone (an

immunosuppressant) is being tapered down. See, e.g., Shyface v. Sec'y of

Health & Human Servs., 165 F.3d 1344 (Fed. Cir. 1999) (holding that a

petitioner may prevail on entitlement by demonstrating that a vaccine was

a “substantial factor” contributing to the injury). I would also question

whether there is evidence that the HPV vaccines administered to petitioner

in 2014 - 2015 did cause or contribute to a flare of her GPA, whether that

flare constituted a significant aggravation of her GPA, and whether the

timing was medically acceptable. See Althen v. Sec’y of Health & Human

Servs., 17 F.3d 374 (Fed. Cir. 1994) [sic]; Loving v. Sec’y of Health &

Human Servs., 86 Fed. Cl. 135, 144 (2009), see also W.C. v. Sec'y of Health

& Human Servs., 704 F.3d 1352 (Fed. Cir. 2007). I would also ask whether

petitioner's post-vaccination course was simply “consistent with the usual

course of GPA and/or associated changes in her medications,” as

respondent argues for the first time in his response contesting reasonable

basis. This may be a valid argument, but in my view, it would be more

appropriately addressed at a later stage in the claim with the input of

qualified medical experts.

However, before the case reached that stage, petitioner requested a

dismissal decision. When she did, the claim had been pending for ten

months. It had taken petitioner and her counsel significant time to obtain

thousands of pages of medical records from providers in at least two states.

She was still working to obtain the remaining medical records and a

statement of completion. I had not provided my preliminary view of the claim

(except for noting that any alleged injuries from the 2009 – 2010 HPV

vaccines were time-barred). Respondent had not filed a [Vaccine] Rule 4(c)

report or even a status report providing his view of the claim. Therefore,

petitioner and her counsel appear to have made an independent decision

to dismiss the claim, not because of any issues that had been clearly

identified for them. In my experience, a petitioner sometimes decides to

dismiss a claim for personal reasons such as improvement of his or her

medical status, wanting to move on with his or her life, and the delays

currently present in the Vaccine Program. The decision may also be based

on prudent advice from counsel with experience in the Program.

Harding v. Sec’y of Health & Human Servs., 2019 WL 3215974, at *7 (internal citation

omitted). The Special Master further noted that petitioner’s motion for a dismissal decision

“did not state that the evidence was insufficient to bring her claim.” Id. The Special Master

concluded: “In sum, I find that the medical records documenting a flare of an autoimmune

disease shortly after administration of a covered vaccine provided reasonable basis for

filing this petition and for pursuing it until the voluntary dismissal at an early stage.” Id.

(footnote omitted). The Special Master stated in a footnote that “[i]f the claim had

proceeded, it may have lost reasonable basis at some point. However, that did not occur

here. My determination is based on the limited filings and procedural history before me.”

Id. at *7 n.9.

Respondent timely filed a motion for review of the Special Master’s decision on

attorney’s fees and costs on July 15, 2019 in the United States Court of Federal Claims.7

In the instant case, respondent argues that “[t]he special master violated Simmons [v.

Secretary of Health & Human Services, 875 F.3d 632 (Fed. Cir. 2017)] by improperly

considering the conduct of petitioner’s counsel in his reasonable basis analysis.”

Respondent further argues that “[e]ven if the special master had not improperly

considered counsel’s conduct in his reasonable basis analysis, the Decision still

constitutes legal error because the special master did not ground his analysis in an

evaluation of the objective record evidence,” claiming that the Special Master’s analysis

“rested almost entirely on his subjective interpretation of the medical records and his

7 This court notes the inconsistency in respondent’s posture in this case and in other

vaccine cases, such as McIntosh v. Secretary of Health & Human Services, 139 Fed. Cl.

238 (2018) and Dominguez v. Secretary of Health & Human Services, 136 Fed. Cl. 779

(2018), in which respondent declined to review petitioners’ submitted requests for

attorney’s fees and costs, indicating it was the role of the special master, not the

respondent. Both with respect to issues such as “reasonable basis” and the amount of

attorney’s fees and costs claimed by a petitioner, the Special Master is entitled to receive

the input of the respondent represented by the United States Department of Justice on

petitioner’s claims for attorney’s fees and costs, not just when the respondent chooses to

do so.

speculation about what the evidence might have been if petitioner had decided to proceed

with the case.” The respondent has not challenged the amount of the fees and costs

awarded, only whether there was a “reasonable basis” for the claim.

Petitioner filed a memorandum in opposition to respondent’s motion for review on

the issue of the Special Master’s award of attorney’s fees and costs and petitioner argues

that after a thorough evaluation of several objective factors, the Special Master concluded

that an award for attorney fees and costs “was appropriate in this case.”8 Petitioner states

that “[b]ecause respondent has not shown that the Special Master erred, or that his factual

findings and legal determinations were arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law, his decision should be affirmed.”

DISCUSSION

When reviewing a special master’s decision, the assigned Judge of the United

States Court of Federal Claims may:

(A) uphold the findings of fact and conclusions of law of the special master

and sustain the special master’s decision,

(B) set aside any findings of fact or conclusions of law of the special master

found to be arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law and issue its own findings of fact and conclusions of

law, or

with the court’s direction.

42 U.S.C. § 300aa-12(e)(2). The legislative history of the Vaccine Act states: “The

conferees have provided for a limited standard for appeal from the [special] master's

decision and do not intend that this procedure be used frequently, but rather in those

cases in which a truly arbitrary decision has been made." H.R. Rep. No. 101-386, at 517

(1989) (Conf. Rep.), reprinted in 1989 U.S.C.C.A.N. 3018, 3120.

Regarding the standard of review, in Markovich v. Secretary of Health and Human

Services, the United States Court of Appeals for the Federal Circuit wrote, “[u]nder the

Vaccine Act, the Court of Federal Claims reviews the Chief Special Master's decision to

determine if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with the law.’ 42 U.S.C. § 300aa-12(e)(2)(B).” Markovich v. Sec’y of Health

& Human Servs., 477 F.3d 1353, 1355-56 (Fed. Cir.), cert. denied, 552 U.S. 816 (2007);

see also Deribeaux ex rel. Deribeaux v. Sec’y of Health & Human Servs., 717 F.3d at

1366 (The United States Court of Appeals for the Federal Circuit stated that “we ‘perform[

] the same task as the Court of Federal Claims and determine[ ] anew whether the special

master's findings were arbitrary or capricious.’” (quoting Lampe v. Sec’y of Health &

Human Servs., 219 F.3d 1357, 1360 (Fed. Cir. 2000))) (brackets in original); W.C. v. Sec’y

8 Neither party challenges Special Master Gowen’s “Decision on Entitlement.”

of Health & Human Servs., 704 F.3d at 1355; Hibbard v. Sec’y of Health & Human Servs.,

698 F.3d 1355, 1363 (Fed. Cir. 2012); Avera v. Sec’y of Health & Human Servs., 515

F.3d 1343, 1347 (Fed. Cir.) (“Under the Vaccine Act, we review a decision of the special

master under the same standard as the Court of Federal Claims and determine if it is

‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’”

(quoting 42 U.S.C. § 300aa-12(e)(2)(B))), reh’g and reh’g en banc denied (Fed. Cir.

2008); de Bazan v. Sec’y of Health & Human Servs., 539 F.3d at 1350; Althen v. Sec’y of

Health & Human Servs., 418 F.3d 1274, 1277 (Fed. Cir. 2005); Dodd v. Sec’y of Health

& Human Servs., 114 Fed. Cl. 43, 47 (2013); Taylor v. Sec’y of Health & Human Servs.,

108 Fed. Cl. 807, 817 (2013). The arbitrary and capricious standard is “well understood

to be the most deferential possible.” Munn v. Sec’y of Health & Human Servs., 970 F.2d

863, 870 (Fed. Cir. 1992). “‘Not in accordance with the law’ refers to the application of the

wrong legal standard, and the application of the law is reviewed de novo.” Rodriguez v.

Sec’y of Health & Human Servs., 632 F.3d 1381, 1384 (Fed. Cir. 2011) (citing Markovich

v. Sec’y of Health & Human Servs., 477 F.3d 1353, 1356 (Fed. Cir. 2007)); see also

Dougherty v. Sec’y of Health & Human Servs., 141 Fed. Cl. 223, 229 (2018) (“With

respect to findings of fact, the special masters have broad discretion to weigh evidence

and make factual determinations. As to questions of law, the legal rulings made by a

special master in connection with a vaccine claim are reviewed de novo, under a ‘not in

accordance with the law’ standard.”).

Regarding attorneys’ fees and costs, the Vaccine Act at 42 U.S.C. § 300aa-

15(e)(1), provides:

(1) In awarding compensation on a petition filed under section 300aa-

11 of this title the special master or court shall also award as part of

such compensation an amount to cover--

(A) reasonable attorneys’ fees, and

(B) other costs, incurred in any proceeding on such petition. If the

judgment of the United States Court of Federal Claims on such a

petition does not award compensation, the special master or court

may award an amount of compensation to cover petitioner’s

reasonable attorneys’ fees and other costs incurred in any

proceeding on such petition if the special master or court determines

that the petition was brought in good faith and there was a

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

42 U.S.C. § 300aa-15(e)(1); see also Shaw v. Sec’y of Health & Human Servs., 609 F.3d

1372, 1375 (Fed. Cir. 2010).

“In Vaccine Act cases before this Court contesting a special master's determination

of reasonable attorney’s fees, the applicable standard of review is abuse of discretion.”

Scharfenberger v. Sec’y of Health & Human Servs., 124 Fed. Cl. 225, 231 (2015) (citing

Hall v. Sec'y of Health & Human Servs., 640 F.3d 1351, 1356 (Fed. Cir. 2011) ), appeal

dismissed (Fed. Cir. 2016); see also Dominguez v. Sec’y of Health & Human Servs., 136

Fed. Cl. at 782. As indicated by the Federal Circuit in Hall, “Section 300aa–15(e) states

that ‘the special master or court shall also award as part of such compensation an amount

to cover . . . reasonable attorneys’ fees.’ Thus, the statute leaves it to the special master's

discretion to find what constitutes reasonable fees.” Hall v. Sec’y of Health & Human

Servs., 640 F.3d at 1356. As explained in Carter v. Secretary of Health & Human

Services: “As an initial matter, the record before the Court shows that the special master

correctly defined the reasonable basis standard under Section 15(e) of the Vaccine Act.

The Court reviews the special master's legal determination regarding the meaning of the

Vaccine Act's reasonable basis standard de novo.” Carter v. Sec’y of Health & Human

Servs., 132 Fed. Cl. 372, 379 (2017) “If the petition for compensation is denied, the

special master ‘may’ award reasonable fees and costs if the petition was brought in good

faith and upon a reasonable basis; the statute clearly gives him discretion over whether

to make such an award.” Saxton By & Through Saxton v. Sec’y of Health & Human Servs.,

3 F.3d 1517, 1520 (Fed. Cir. 1993) (citing Perreira v. Sec’y of Health & Human Servs., 27

Fed. Cl. 29, 31 (1992)).

In the above captioned case, the respondent does not allege that the petition was

not brought in good faith, only whether there was a reasonable basis for bringing the

claim. Because respondent argues that “[t]he primary issue in this appeal is whether the

special master correctly applied the law as stated in Simmons,” this court reviews the

issue de novo. See Rodriguez v. Sec’y of Health and Human Servs., 632 F.3d at 1384.

The Vaccine Act, pursuant to which attorney’s fees and costs can be awarded, is

silent as to the definition of “reasonable basis.” See 42 U.S.C. § 300aa-15(e)(1) (2012).

The Court of Appeals for the Federal Circuit however, has explained, “good faith” and

“reasonable basis” determinations are distinct, and that “only ‘good faith’ is subjective,”

while “‘reasonable basis is objective.’” Simmons v. Sec’y of Health & Human Servs., 875

F.3d 632, 635 (Fed. Cir. 2017) (citing Chuisano v. United States, 116 Fed. Cl. at 289);

see also Simmons v. Sec’y of Health & Human Servs., 128 Fed. Cl. 579, 582 (2016)

(citing Chuisano v. United States, 116 Fed. Cl. at 289) (“Good faith and reasonable basis

are ‘two distinct facets’ that must be judged separately.”), aff’d, 875 F.3d 632 (Fed. Cir.

2017).

One special master described the review of whether there was a reasonable basis

in order to award attorney’s fees and costs as follows:

A special master must award reasonable fees and costs to a petitioner who

receives compensation under the Vaccine Act. 42 U.S.C. § 300aa-15(e)(1)

(2012). Although not required to do so, the special master may also award

reasonable fees and costs to an unsuccessful petitioner, so long as the

petitioner (1) filed the petition in good faith and (2) had a reasonable basis

for the claim. Id.

Of note, the Vaccine Act does not compel the special master to make an

award to every petitioner who meet these requirements; rather, Congress

vested the special master with discretion and “plainly contemplat[ed] that

not all petitioners would recover fees and costs.” Chuisano v. United States,

116 Fed. Cl. 276, 286 (2014). To be sure, the special master's discretion is

tempered by the remedial nature of the Vaccine Act, which necessitates

liberally construing its provisions to effectuate its ultimate goal: “to award

compensation to vaccine-injured persons quickly, easily, and with certainty

and generosity.” Cloer v. Sec’y of HHS, 675 F.3d 1358, 1362 (Fed. Cir.

2012) (internal quotation marks omitted).

With regard to the good faith requirement, the Court of Federal Claims has

observed that petitioners “are entitled to a presumption of good faith.” Grice

v. Sec’y of HHS, 36 Fed. Cl. 114, 121 (1996). In other words, when there is

no “direct evidence of bad faith,” the special master is justified in finding that

Petitioner has met the good faith requirement. Id.

As to the existence of a reasonable basis for filing the claim, the Vaccine

Act “grants to the special master maximum discretion in applying the

standard.” Silva v. Sec’y of HHS, 108 Fed. Cl. 401, 402 (2012). Functionally,

“reasonable basis is an objective standard determined by the totality of the

circumstances.” Chuisano, 116 Fed. Cl. at 286. Although insusceptible to

precise definition, a petitioner attempting to meet this standard faces a

burden that “is something less than the preponderant evidence ultimately

required to prevail on one's vaccine-injury claim.” Id. at 287.

Mounts v. Sec’y of Health and Human Servs., No. 14-1219V, 2016 WL 4540344, at *5-6

(Fed. Cl. Spec. Mstr. July 27, 2016) (footnote omitted) (emphasis and alteration in

original).

Reasonable basis may exist at the initial filing of a petition for compensation, but

can dissipate as further evidence is introduced that undermines that basis. See Perreira

v. Sec’y of Health & Human Servs., 33 F.3d at 1377.9 For example, as indicated in

Perreira v. Secretary of Health & Human Services, “once petitioners-appellants reviewed

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

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

medical literature nor studies.” Id. In Cottingham v. Secretary of Health & Human

Services, a Judge of the United States Court of Federal Claims vacated a special master's

decision denying attorney’s fees and costs and remanded to the special master to “apply

9 In Bilodeau v. Secretary of Health & Human Services, after filing a petition, the

petitioners moved for a decision dismissing their petition, which the special master

granted. See Bilodeau v. Sec’y of Health & Human Servs., No. 14-72V, 2017 WL

2417926, at *1 (Fed. Cl. Spec. Mstr. May 9, 2017). Subsequently, the petitioners moved

for attorney’s fees and costs. In response, the respondent argued that attorney’s fees and

costs were inappropriate “stating that ‘[t]he case lacked a reasonable basis at the time

the petition was filed, and petitioners failed to obtain evidence to satisfy the reasonable

basis requirement during the pendency of the case,’ arguing that all attorneys’ fees and

costs should be denied.” Id. The special master disagreed with respondent’s

characterization and awarded petitioners the full amount of attorney’s fees and costs

sought. See id. at *10-11.

a totality of the circumstances standard and reassess whether Petitioner's claim had a

reasonable basis at the time the petition was filed and at intervals when additional

evidence became available to Petitioner’s counsel thereafter.” Cottingham v. Sec'y of

Health & Human Servs., 134 Fed. Cl. 567, 578 (2017).10 It is appropriate for a special

master to consider whether if a reasonable basis existed at the time the case was

resolved when making a determination on the appropriateness of attorney’s fees and

costs. In the above captioned case, Ms. Harding had provided some, but perhaps not all,

of the relevant medical records when the case was dismissed, and according to petitioner,

she was still trying to obtain additional records. Special Master Gowen, therefore, had to

determine if petitioner had a reasonable basis to bring her claims, although the record

was as yet incomplete. The Special Master was obligated to rely on the medical records

in the case, but his speculations about the future if the case had continued are not relevant

to his decision on attorney’s fees and costs and should not be given deference. Despite

his musings and occasional speculation on what would have happened in the future,

based on the medical records before him, it appears Special Master Gowen had a basis

to conclude that the petition was filed in good faith and that there was a “reasonable basis”

for petitioner to file the petition and to peruse her claims.

The respondent relies on Simmons, a decision issued by the United States Court

of Appeals for the Federal Circuit in 2017, which considered whether there was

reasonable basis for a petitioner’s claim when petitioner’s counsel filed a petition for

compensation based on an occurrence of Guillain-Barré syndrome shortly before the

statute of limitations in the case would have expired. See Simmons v. Sec’y of Health &

Human Servs., 875 F.3d at 634. The petition in Simmons ultimately was dismissed for

failure to prosecute by the special master, but the special master nevertheless awarded

attorney’s fees, finding as a reasonable basis that because the statute of limitation was

set to expire, “‘[t]o not file a petition . . . would be tantamount to an ethical violation.’” Id.

(quoting Simmons v. Sec’y of Health & Human Servs., 2016 WL 2621070, at *3 (Fed. Cl.

Spec. Mstr. Apr. 14, 2016), rev’d, 128 Fed. Cl. 579 (2016), aff’d, 875 F.3d 632 (Fed. Cir.

2017)) (alteration in original). The special master in Simmons noted that “Petitioner

provided only the receipt of his vaccination, which occurred on October 26, 2010,” and

the special master focused on the fact that after an initial meeting, “[d]uring the next year

and a half, Counsel attempted to contact Petitioner on at least 20 separate occasions via

10 The court notes that this Cottingham decision, Cottingham v. Secretary of Health &

Human Services, 134 Fed. Cl. 567, is one of three, distinct opinions issued by the United

States Court of Federal Claims named Cottingham referenced in this Opinion. All three

opinions relate to the same petitioner. The first two Cottingham decisions, Cottingham v.

Secretary of Health & Human Services, 134 Fed. Cl. 567 and Cottingham v. Secretary of

Health & Human Services, 139 Fed. Cl. 88 (2018) remanded the case back to the special

master. The third and final Cottingham decision, Cottingham v. Secretary of Health &

Human Services, 141 Fed. Cl. 85 (2018) denied the petitioner’s motion for review.

Cottingham v. Secretary of Health & Human Services, 141 Fed. Cl. 85, is currently on

appeal to the United States Court of Appeals for the Federal Circuit. The court notes that

the first Cottingham decision, Cottingham v. Secretary of Health & Human Services, 134

Fed. Cl. 567 was decided prior to the Federal Circuit’s decision in Simmons.

email, telephone, and written letter, in order to follow up on their initial meeting and obtain

Petitioner’s medical records,” but was only able to reach the Simmons petitioner on two

occasions. See id. at *1. The special master in Simmons emphasized that “nine days

before the statute of limitations deadline was due to expire, Petitioner called Counsel,

asking ‘to move forward’ with his claim,” but “[o]ver the next seven months, Counsel

sought out Petitioner in myriad ways but was unable to contact him.” Id. at *2.

The United States Court of Federal Claims in Simmons reversed the special

master’s decision, finding that the special master had erred in her reasonable basis

analysis because “‘[t]he fact that the statute of limitations was about to expire did not

excuse counsel’s obligation to show he had some basis for the claim beyond his

conversation with the petitioner.’” Simmons v. Sec’y of Health & Human Servs., 875 F.3d

at 634 (quoting Simmons v. Sec’y of Health & Human Servs., 128 Fed. Cl. 579, 584

(2016)). The United States Court of Appeals for the Federal Circuit upheld the decision

of the United States Court of Federal Claims, stating:

The Vaccine Act provides that there must be a “reasonable basis for the

claim for which the petition was brought” before the special master may

exercise her discretion in awarding attorneys’ fees. 42 U.S.C. § 300aa–

15(e)(1) (emphasis added). Whether there is a looming statute of limitations

deadline, however, has no bearing on whether there is a reasonable factual

basis “for the claim” raised in the petition. That is an objective inquiry

unrelated to counsel’s conduct. Although an impending statute of limitations

deadline may relate to whether “the petition was brought in good faith” by

counsel, the deadline does not provide a reasonable basis for the merits of

the petitioner’s claim. Id.

Simmons v. Sec’y of Health & Human Servs., 875 F.3d at 636 (emphasis in original). The

Federal Circuit concluded:

[C]ounsel may not use this impending statute of limitations deadline to

establish a reasonable basis for Mr. Simmons’s claim. Because the special

master only found that there was a reasonable basis for Mr. Simmons’s

claim because of the impending statute of limitations deadline, we conclude

that she abused her discretion by misapplying the law. Accordingly, we

affirm the Claims Court’s decision.

Id. (emphasis added). A difference between the current case and Simmons appears in

the records before the two courts, as the Simmons case had virtually no documentation

before the special master with only the receipt of his vaccination and nothing else having

been submitted after the petition was filed. The record in the case currently before this

court, in addition to the petition, includes over 2,000 pages of medical records submitted

by petitioner, some of which appear to raise sufficient issues for Ms. Harding to have had

a reasonable basis to file a vaccine petition with the United States Court of Federal Claims

Office of Special Masters.

As indicated by a Judge of the United States Court of Federal Claims in Cottingham

v. Secretary of Health & Human Services, 141 Fed. Cl. 85, “[t]he Court in Simmons was

presented with a narrow issue -- whether an imminent statute of limitations deadline could

be considered in assessing whether the petitioner's claim had a reasonable basis” to file

the petition. See id. at 88. Moreover, the Cottingham court explained, “[t]hus, under

Simmons, a special master may consider the evidence a petitioner provided, such as

medical records and affidavits, in determining whether a reasonable basis for the claim

exists.” Id. As noted above, in the Simmons case, the Simmons petitioner only filed one

document, proof of his vaccination and nothing else. Moreover, Mr. Simmons’ attorney

repeatedly tried to contact his client, on at least twenty occasions over a period of a year

and a half, by email, telephone, and by letter. After counsel’s initial contact with his client,

petitioner’s counsel could generally not reach his client after the petition was filed.

Notably, unlike in Ms. Harding’s case in which her petition was dismissed following her

motion for a decision to dismiss her petition, the special master in Simmons dismissed

the case for failure to prosecute. Finally, nowhere in Special Master Gowen’s decision did

he address the statute of limitations, which was the focus of the special master’s decision

in Simmons, except to note that the statute of limitations barred petitioner’s earlier HPV

vaccination was a cause in fact of her GPA. See Harding v. Sec’y of Health & Human

Servs., 2019 WL 3215974, at *1.

More recently, a Judge of the United States Court of Federal Claims addressed

the impact of the Federal Circuit’s holding in Simmons regarding the reasonable basis

analysis in Amankwaa v. Secretary of Health & Human Services, 138 Fed. Cl. 282 (2018).

In Amankwaa, the court stated that prior to Simmons:

[T]he Court of Federal Claims generally endorsed the use of a totality-of-

the-circumstances analysis to determine whether there was a reasonable

basis for a claim. See Cottingham v. Sec’y of HHS, 134 Fed. Cl. 567, 574

(2017). Specifically, special masters were expected to “consider the

circumstances under which the petition is filed, any jurisdictional questions,

the factual basis and medical support for the petition, and any other legal

issues that may arise.” Id. at 574–75; see also id. at 574 (observing that

special masters have the “discretion to consider multiple potentially relevant

circumstances—such as the novelty of the vaccine, scientific understanding

of the vaccine and its potential consequences, the availability of experts and

medical literature, and the time frame counsel has to investigate and

prepare the claim—in assessing whether a Vaccine Act claim has a

reasonable basis”). Further, “[t]his totality of the circumstances assessment

[was to] take into account evidence available at the time a claim is filed and

evidence that becomes available as the case progresses.” Id. at 575.

Amankwaa v. Sec’y of Health & Human Servs., 138 Fed. Cl. at 287 (alteration in original).

According to the Amankwaa court’s reading of Simmons, “the Federal Circuit forbade,

altogether, the consideration of statutory limitations deadlines-and all conduct of counsel-

in determining whether there was a reasonable basis for a claim.” Amankwaa v. Sec’y of

Health & Human Servs., 138 Fed. Cl. at 289. The Amankwaa court further concluded that

Simmons prohibited special masters from considering any subjective factors in

determining whether a claim had reasonable basis, but rather they must focus their

analyses on objective factors, “such as the factual basis of the claim, the medical and

scientific support for the claim, the novelty of the vaccine, and the novelty of the theory of

causation.” Id. (citing Cottingham v. Sec’y of Health & Human Servs, 134 Fed. Cl. at 574)

(footnote omitted).

The United States Court of Federal Claims also addressed the impact of Simmons

on a special master’s reasonable basis analysis in Cottingham v. Secretary of Health &

Human Services, 139 Fed. Cl. 88. The court in Cottingham v. Secretary of Health &

Human Services, 139 Fed. Cl. 88, held that, in light of the issuance of Simmons while a

petitioner’s case was pending before the special master on remand, the special master

“shall, consistent with Simmons, analyze whether the evidence alone was sufficient for

finding a reasonable basis for Petitioner’s claim, without considering the conduct of

counsel or the impending statute of limitations.” Cottingham v. Sec’y of Health & Human

Servs, 139 Fed. Cl. at 94.

In his decision on attorney’s fees and costs in the case currently before the court,

Special Master Gowen, citing to Simmons and Amankwaa stated:

“[R]easonable basis” is an objective consideration of the totality of the

circumstances except for the statute of limitations or any directly related

conduct by petitioner’s counsel. Simmons, 875 F.3d at 635; Chuisano, 116

Fed. Cl. at 289. However, this evaluation may include various objective

factors such as “the factual basis of the claim, the novelty of the vaccine,

and the novelty of the theory of causation.” Amankwaa v. Sec’y of Health &

Human Servs., 138 Fed. Cl. 282, 289-90 (2018).

Harding v. Sec’y of Health & Human Servs., 2019 WL 3215974, at *2.

The respondent, in Ms. Harding’s case, however, argues that Special Master

Gowen misapplied the legal standard for “reasonable basis” set forth by the Federal

Circuit in Simmons v. Secretary of Health & Human Services. Respondent asserts that

the Special Master “found the procedural history, and in particular the decision by

petitioner and her counsel to dismiss the claim, controlling.” Respondent further argues

that:

[N]owhere in Simmons did the Federal Circuit endorse a “totality of the

circumstances” test for evaluating reasonable basis. Rather, Simmons

makes clear that a special master’s reasonable basis analysis must focus

solely on whether there is objective support in the record for the claim set

forth in the petition. 875 F.3d at 635-36. The special master’s formulation of

the holding in Simmons is therefore legally incorrect.

Respondent also argues that because “the conduct of petitioner and her counsel (in

bringing and subsequently dismissing her petition) was plainly critical to the special

master’s reasonable basis analysis,” the decision “contains clear error, and must be

reversed.” Petitioner’s responds:

[T]he Special Master did not consider attorney conduct in ruling that there

was a reasonable basis to bring petitioner’s claim. Indeed, respondent

glances over 6-pages of the Special Master’s analysis of the medical record

to fabricate a story that somehow the focus of his analysis was on attorney

conduct and not the claim itself.

(footnote omitted). Petitioner’s counsel maintains, however, that because the Special

Master had “(1) ‘considered the relevant evidence of record,’ (2) ‘drawn plausible

inferences,’ and (3) stated, ‘a rational basis for the decision,’ therefore there is no

reversible error. Hines [v. Sec’y of Health & Human Servs.], 940 F.2d 1518, 1528.”

Respondent further argues that this court also could find legal error in the Special

Master’s decision because:

[T]he special master did not ground his analysis in an evaluation of the

objective record evidence. To the contrary, his analysis rested almost

entirely on his subjective interpretation of the medical records and his

speculation about what the evidence might have been if petitioner had

decided to proceed with the case.

It is unfortunate that the Special Master included speculation as to possible “what ifs” a

number of times in his decision, most notably when he mused, “[i]t is entirely possible that

if Dr. Schindler was consulted, he would have expressed concern about the HPV vaccines

being administered during this time period, as he did about the nasal surgery.” Harding v.

Sec’y of Health & Human Servs., 2019 WL 3215974, at *6.11 Nonetheless, the Special

Master’s review of the medical history in the record provides a basis for his award of

attorney’s fees and costs to the petitioner. The Special Master drew specifically from the

petition and the medical records, the objective factors under the Federal Circuit’s

guidance in Simmons v. Secretary of Health & Human Services, to conclude that a flare

of petitioner’s GPA after administration of the HPV vaccination provided the reasonable

basis sufficient to grant petitioner’s request for attorney’s fees and costs.

11In his decision on attorney’s fees and costs, the Special Master also speculated as to

why the petitioner may have had two separate series of the HPV vaccination. Special

Master Gowen stated: