Petty v. Secretary of Health and Human Services

In the United States Court of Federal Claims

No. 17-203V

(Filed under seal October 8, 2020)

(Reissued October 23, 2020) †

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*

L.P., by and through his parent * Vaccine Act; voluntary dismissal;

and natural guardian, MARY * attorneys’ fees and costs, 42 U.S.C.

PETTY, * § 300aa-15(e)(1); reasonable basis

* standard; preexisting condition;

Petitioner, * failure to plead significant

* aggravation; looming statute of

v. * limitations deadline; Simmons v.

* Secretary decision.

SECRETARY OF HEALTH *

AND HUMAN SERVICES, *

*

Respondent. *

*

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Amy A. Senerth, Muller Brazil, LLP, Dresher, Pa., for the petitioner.

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

Department of Justice, with whom were Chad A. Readler, Acting Assistant Attorney

General, C. Salvatore D’Alessio, Acting Director, and Catharine E. Reeves, Deputy

Director, all of Washington, D.C., for the respondent.

MEMORANDUM OPINION AND ORDER

WOLSKI, Senior Judge.

Petitioner Mary Petty has moved for review, pursuant to 42 U.S.C. § 300aa-

12(e), of a special master’s decision denying an award of attorneys’ fees and costs.

The request for fees and costs was filed after petitioner had acknowledged an

inability to prove an entitlement to compensation and moved for the dismissal of

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

Claims, the parties were given fourteen calendar days in which to object to the

public disclosure of information contained in this opinion prior to its publication.

No objection has been filed. Accordingly, the opinion is reissued for publication with

some minor typographical and grammatical corrections.

her petition. After a review of the record, the Special Master concluded that no

reasonable basis existed for filing the claim against the Secretary of Health and

Human Services (Secretary). L.P. v. Sec’y of Health & Human Servs., No. 17-203V,

2018 WL 1044952, at *3 (Fed. Cl. Spec. Mstr. Jan. 30, 2018) [hereinafter Fees

Decision]. Thus, the Special Master declined to award petitioner’s counsel fees and

costs per 42 U.S.C. § 300aa-15(e)(1). For the reasons that follow, petitioner’s motion

for review is DENIED and the Special Master’s decision is SUSTAINED.

I. BACKGROUND

Petitioner filed the petition on behalf of her infant son, L.P., on February 10,

2017. See Pet., ECF No. 1. The petition sought compensation “for gastrointestinal

injuries, and subsequent complications” which L.P. suffered, allegedly as a result of

receiving two vaccinations on February 11, 2014, when he was two months old---the

diphtheria, tetanus, and acellular pertussis (DTaP) and rotavirus vaccinations. Id.

at 1 & ¶¶ 2, 8. The petition described L.P.’s health problems and medical visits

through June 21, 2016, see id. ¶¶ 4–19, and was accompanied by 229 pages of

medical records from the Cleveland Clinic and Akron Children’s Hospital, Pet. Exs.

1–3, ECF Nos. 1-4 through 1-6. On the same day that the petition was filed, Ms.

Petty also filed a statement indicating that she believed “all relevant medical

records had been filed.” Statement of Completion, ECF No. 4.

On May 5, 2017, three days before the scheduled initial status conference, the

special master assigned to the case filed an order informing the parties of her

assessment of the medical records submitted by petitioner. Order (May 5, 2017),

ECF No. 8 [hereinafter Records Order]. The Special Master stated she “fails to see

that if L.P. had any vaccine injury, it lasted more than six months” and added that

“since L.P. had gastroesophageal reflux disease, green stools, fussiness, and gas

before he received his vaccination, petitioner would need to amend her petition to

allege significant aggravation.” Id. at 1. Referencing the definition of significant

aggravation from the Vaccine Act, 42 U.S.C. § 300aa-33(4), she noted that she “does

not see a substantial deterioration of health in these records.” Id.

The Special Master then accurately discussed the state of L.P.’s health as

reflected in the filed records, the significant portions of which are summarized

below. The medical records indicated that L.P. had suffered from gastrointestinal

problems since shortly after his birth. On December 26, 2013, when he was a few

weeks old, L.P. visited his pediatrician and petitioner reported his fussiness,

gassiness following feedings, and green stools. Id. at 1–2; see Pet. Ex. 2 at 7. On

January 10, 2014, L.P.’s doctor diagnosed him with “gastroesophageal reflux

[disease] (‘GERD’).” Records Order at 2; Pet. Ex. 2 at 17–18. A few weeks later, on

January 29, 2014, petitioner brought L.P. to see another pediatrician because of

continuing stomach issues that had previously necessitated visits to an urgent care

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facility and an emergency room. Records Order at 2; see Pet. Ex. 2 at 21. Petitioner

reported that L.P. remained gassy and spits up after feedings, and that she noticed

blood in his diaper the two previous days, and the doctor confirmed the diagnosis of

GERD. Id.; Pet. Ex. 2 at 21–22.

On February 11, 2014, L.P. returned to the second pediatrician’s office for his

two-month check-up, and Ms. Petty reported that he had recently ceased spitting up

and being fussy. Pet. Ex. 2 at 26; Records Order at 2. The doctor tested L.P.’s stool

for blood and found none, Pet. Ex. 2 at 26, 28, and administered L.P.’s DTaP and

rotavirus vaccinations, id. at 27; Records Order at 2. The next day, L.P. was

brought to the Emergency Department of the Cleveland Clinic because he was

vomiting and choking, and he had a liquid green stool. Records Order at 2–3; Pet.

Ex. 2 at 66. After an examination and an ultrasound of his pyloric channel which

showed it to be normal, he was diagnosed with “nausea and/or vomiting.” Records

Order at 3; Pet. Ex. 2 at 67–68. On February 21, 2014, L.P. returned to his

pediatrician, and petitioner reported that he suffered from fussiness and loose

stools, but that his post-vaccination vomiting lasted just one day. Records Order at

3; Pet. Ex. 2 at 34. Id. He continued to be diagnosed as having GERD. Pet. Ex. 2

at 36; Records Order at 3. Petitioner subsequently reported to physicians treating

L.P. that his diarrhea persisted for two weeks after he was vaccinated. Pet. Ex. 2 at

108; Pet. Ex. 3 at 9; Records Order at 3, 5.

Petitioner’s son continued to have gastrointestinal problems. At an April 16,

2014 appointment with a pediatrician, although his elimination was normal at that

time, blood was detected in his stools. Records Order at 3; Pet. Ex. 2 at 40–41. The

following week he had a consultation with a gastroenterologist, to whom petitioner

recounted L.P.’s history of reflux and soft stools. Records Order at 3–4; Pet. Ex. 2 at

52–53. The gastroenterologist recognized that L.P. exhibited reflux symptoms and

told petitioner that infant gastrointestinal reflux can get worse between four and

six months of age. Records Order at 4; Pet. Ex. 2 at 53.

In November of 2015, L.P. was brought to see an allergist for a second

allergist’s opinion and was diagnosed as having mild eczema and food intolerance.

Records Order at 5; Pet. Ex. 3 at 1–3. In recounting L.P.’s medical history,

petitioner reported that he had suffered from diarrhea lasting six months following

his vaccinations. Records Order at 5; Pet. Ex. 3 at 1. Three months later, L.P. was

examined by a pediatrician because of an upper respiratory infection, and petitioner

reported that her son had exhibited a change in appetite. Records Order at 5; Pet.

Ex. 2 at 72. The doctor noted that L.P. did not have diarrhea or emesis. Records

Order at 5; Pet. Ex. 2 at 72.

On March 31, 2016, at a follow-up doctor’s visit concerning L.P.’s pneumonia,

petitioner reported that L.P. “always had an issue with emesis while eating,” and

noted the possibility of “an exaggerated gag reflex.” Pet. Ex. 2 at 100; Records

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Order at 5. He had no diarrhea at that time. Pet. Ex. 2 at 100. At an April 26,

2016 doctor’s visit, petitioner reported that L.P. “had a reaction to vaccines with

severe diarrhea at 2 months old with no continued diarrhea, [failure to thrive], or

severe infections since then.” Pet. Ex. 2 at 108; Records Order at 6. The following

week L.P. was brought by petitioner to see a pediatrician. Petitioner reported that

L.P. had diarrhea for the previous week and a half. Pet. Ex. 2 at 118. He was

diagnosed as having diarrhea, a food allergy, and other “allergic rhinitis.” Records

Order at 6; Pet. Ex. 2 at 118. One month later, on June 4, 2016, following a visit to

the Emergency Department of the Cleveland Clinic, L.P. was brought back to the

pediatrician’s office and was diagnosed with cyclical vomiting associated with

migraine. Pet. Ex. 2 at 131–32; Records Order at 6.

Two and a half weeks later, petitioner brought L.P. to see a pediatric

gastroenterologist, and reported that L.P. “was overall doing fairly well until”

January of that year, when he began having nighttime episodes of emesis---three

times in January, twice in February, and once in three subsequent months. Pet.

Ex. 2 at 146; Records Order at 7. Petitioner also reported that L.P. often had loose

stools multiple times daily. Records Order at 7; Pet. Ex. 2 at 147. The doctor

agreed with the earlier diagnosis of cyclical vomiting and explained that L.P. might

have toddler’s diarrhea. Records Order at 7; Pet. Ex. 2 at 153.

The Special Master discussed her assessment of the medical records at the

initial status conference held on May 8, 2017. See Order (May 8, 2017), ECF No. 9.

Petitioner was to file a status report the following month, indicating if she wanted

to proceed with the case, and was to check to see if the medical records needed to be

updated or supplemented. Id. For three successive months, petitioner requested an

extra month in which to obtain and review medical records, see Status Reports, ECF

Nos. 10, 11, 13, and then concluded that the additional medical records would not

support L.P.’s claim, Mot. for Enlargement, ECF No. 14.

Petitioner then moved for a decision dismissing the case. Pet’r’s Mot. for

Decision, ECF No. 17. She stated that “[a]n investigation of the facts and science

supporting have demonstrated to Petitioner she will be unable to prove that she is

entitled to compensation in the Vaccine Program,” and acknowledged that “[i]n

these circumstances, to proceed further would be unreasonable.” Id. at 1. The

following day, the Special Master issued a decision dismissing the case, containing a

factual discussion that was repeated nearly verbatim from the Records Order. See

L.P. v. Sec’y of Health & Human Servs., No. 17-203V, 2017 WL 6419982, at *1–6

(Fed. Cl. Spec. Mstr. Nov. 21, 2017) [hereinafter Dismissal Decision]. 1

1 The only apparent differences were the addition of footnote 7 and some

grammatical changes.

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Petitioner then moved for attorneys’ fees and costs, initially requesting

$9,110 in attorney and paralegal fees and the $400 filing fee. Pet’r’s Appl. for Att’ys’

Fees, ECF No. 19, at 2. The Secretary opposed the request, arguing that “petitioner

has failed to establish a reasonable basis for her claim,” and that the “claim never

possessed a reasonable basis.” Resp’t’s Opp’n to Pet’r’s Mot. for Att’ys’ Fees and

Costs, ECF No. 21, at 2, 4. Petitioner filed a reply, maintaining that medical

records showing a post-vaccination injury and the consideration of a looming statute

of limitations amounted to a reasonable basis for the claim, and adding to the

requested amount the $1,552.50 in attorneys’ fees incurred in preparing the reply

paper. Pet’r’s Reply to Resp’t’s Resp., ECF No. 23, at 4–8. The Secretary then filed

a short sur-reply, primarily focusing on the applicability of the Federal Circuit’s

decision in Simmons v. Sec’y of Health & Human Servs., 875 F.3d 632 (Fed. Cir.

2017). See Resp’t’s Sur-reply, ECF No. 25, at 1–2.

The Special Master agreed with the Secretary and denied fees and costs.

Fees Decision at *3. She noted that the Simmons decision “holds that a looming

statute of limitations deadline has no bearing on whether there is an objective

reasonable basis for the claim” filed in a petition. Id. (citing Simmons, 875 F.3d at

636). Instead, the “analysis must focus on whether there is evidentiary support for

the claim set forth in the petition.” Id. Finding in the medical records that “L.P.

had gastroesophageal reflux disease, green stools, fussiness, and gas before he

received his vaccinations,” and that there was no support for a significant

aggravation claim, the Special Master concluded that the claim in the petition

lacked a reasonable basis. Id.

Petitioner then filed a motion for review of that decision, objecting to the

Special Master’s assessment of the medical records, her application of the

reasonable basis standard, and her failure to take account of the looming statute of

limitations deadline at the time the petition was filed. Pet’r’s Mot. for Review, ECF

No. 28, at 4–6, 11–14 (Pet’r’s Mot.). 2 The Secretary responded, defending the

Special Master’s decision. Resp’t’s Mem. in Resp. to Pet’r’s Mot. for Review

(Response Br.), ECF No. 30, at 8–17. The Court has given careful consideration to

the arguments in those papers, and closely reviewed the Special Master’s decision

and the medical records.

2 Because petitioner combined her motion for review and her memorandum in

support of the motion in one filing, with no internal pagination, see ECF No. 28 at 1,

6, the Court has adopted the convention of citing pages from either as being from

the motion, and using the ECF pagination for filing ECF No. 28.

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II. DISCUSSION

A. Legal Standards

Under the National Vaccine Injury Compensation Program, a petitioner

whose claim fails on the merits may nevertheless seek “reasonable attorneys’ fees

and other costs.” 42 U.S.C. § 300aa-15(e)(1) (2018). But the statute contains an

important qualification. Fees and costs to an uncompensated petitioner may be

awarded only “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.” Id. Whether this petition was filed in good faith is not at

issue. See Fees Decision at *3 (“There is no evidence that this petition was brought

in bad faith.”). Instead, the central question in this appeal is whether a “reasonable

basis” for filing this Vaccine Act claim existed. See Pet’r’s Mot. at 10.

The Federal Circuit has held that decisions regarding awards of attorneys’

fees are to be reviewed under the abuse-of-discretion standard. Hall v. Sec’y of

Health & Human Servs., 640 F.3d 1351, 1356 (Fed. Cir. 2011) (citing Pierce v.

Underwood, 487 U.S. 552, 558 (1988); Saxton ex rel. Saxton v. Sec’y of Health &

Human Servs., 3 F.3d 1517, 1520 (Fed. Cir. 1993)). In cases where compensation is

denied, the Vaccine Act “clearly gives” special masters “discretion over whether to

make such an award.” Saxton, 3 F.3d at 1520 (citing Perreira v. Sec’y of Dep’t of

Health & Human Servs., 27 Fed. Cl. 29, 31 (1992), aff’d, 33 F.3d 1375 (Fed. Cir.

1994)).

A special master’s “application of the law is reviewed de novo.” Rodriguez v.

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

misapplication of law, “only if [a tribunal] erred in interpreting the law or exercised

its judgment on clearly erroneous findings of material fact, or its decision represents

an irrational judgment in weighing the relevant factors can its decision be

overturned.” Chiu v. United States, 948 F.2d 711, 713 (Fed. Cir. 1991); see also

Hendler v. United States, 952 F.2d 1364, 1380 (Fed. Cir. 1991) (“An abuse of

discretion may be found when (1) the court’s decision is clearly unreasonable,

arbitrary, or fanciful; (2) the decision is based on an erroneous conclusion of the law;

(3) the court’s findings are clearly erroneous; or (4) the record contains no evidence

upon which the court rationally could have based its decision.”). Generally,

“reversible error is ‘extremely difficult to demonstrate’ if the special master ‘has

considered the relevant evidence of record, drawn plausible inferences and

articulated a rational basis for the decision.’” Lampe v. Sec’y of Health & Human

Servs., 219 F.3d 1357, 1360 (Fed. Cir. 2000) (quoting Hines ex rel. Sevier v. Sec’y of

Health & Human Servs., 940 F.2d 1518, 1528 (Fed. Cir. 1991)).

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B. Analysis

In this case, in which petitioner alleged that her infant son suffered

gastrointestinal injuries due to two vaccinations, Pet. at 1, the Special Master

correctly noted that the medical records showed gastrointestinal problems prior to

the vaccinations---gassiness, green stools, spitting up after feedings, blood in his

diaper, and a diagnosis of gastroesophageal reflux disease. Dismissal Decision at

*1; see Pet. Ex. 2 at 7, 17–18, 21–22. After petitioner was informed by the Special

Master that the records showed neither a vaccine injury lasting six months nor a

significant aggravation of L.P.’s preexisting gastrointestinal problems, Records

Order at 1, Ms. Petty asked that her case be dismissed, because “she will be unable

to prove that she is entitled to compensation” and thus “to proceed further would be

unreasonable.” Pet’r’s Mot. for Decision at 1. She nevertheless maintains that she

had a reasonable basis for filing the claim.

Petitioner contends that the Special Master’s decision must be overruled

because L.P.’s medical records contained information showing gastrointestinal

injuries to L.P. manifesting the day following the DTaP and rotavirus vaccinations

and lasting more than six months. Pet’r’s Mot. at 11–13. She argues that the

Special Master improperly employed the more stringent entitlement standard to

determine the reasonableness of the claim. Id. at 13. Finally, petitioner notes that

she contacted counsel about one month before the statute of limitations was due to

expire, and counsel thus had a limited opportunity to review the records and

determine if a claim could be proven. Id. at 14. Petitioner maintains that the

timing of counsel’s review supports the reasonableness of the filing of her claim.

For the reasons discussed below, the Court concludes that the Special Master

did not abuse her discretion in determining that an award of fees and costs was

inappropriate. First, the record contains evidence consistent with the Special

Master’s determination that no reasonable basis existed for bringing the claim---a

determination which rests on plausible inferences and is explained in a rational

manner. See Lampe, 219 F.3d at 1360. Moreover, the Special Master did not

employ the wrong standard in making this determination. And finally, the Special

Master was correct in concluding that a looming statute-of-limitations deadline has

no impact on the question of whether a reasonable basis existed for bringing the

claim.

1. The Special Master Did Not Err in Concluding That No Reasonable Basis

Existed for Bringing the Claim.

In objecting to the Special Master’s denial of attorneys’ fees and costs,

petitioner stresses L.P.’s condition the day after the vaccination. See Pet’r’s Mot. at

4, 11. She notes that “L.P. had been vomiting and choking, appeared lethargic and

had a decreased appetite,” and that his “father reported that [L.P.] had two to three

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large projectile white vomits and medium liquid green stool.” Id. at 12; see also Pet.

Ex. 2 at 66. The diagnosis for L.P. was nausea and vomiting. Pet. Ex. 2 at 68. But

even if this illness was caused by the vaccinations, a petition must demonstrate the

suffering of “residual effects or complications of such illness, disability, injury, or

condition for more than 6 months.” 42 U.S.C. § 300aa-11(c)(1)(D)(i) (2018). The

medical records show, however, that the vomiting lasted one day, Pet. Ex. 2 at 34,

and the “severe diarrhea” lasted for two weeks, id. at 108; see also Pet. Ex. 3 at 9.

In an attempt to show an injury lasting more than six months, Petitioner highlights

a November 2, 2015 medical record, which contains her report to the doctor that

L.P. “received his 2 month immunizations and developed diarrhea that lasted for 6

months.” Pet. Ex. 3 at 1; see Pet’r’s Mot. at 7, 12. This medical history report is not

only contradicted by the other two reports stating L.P.’s diarrhea lasted two weeks,

see Pet. Ex. 2 at 108; Ex. 3 at 9, but also by a medical record of a visit just two

months after the vaccinations showing L.P.’s elimination was “normal,” with “no

concerns” by that time. Pet. Ex. 2 at 40. The Special Master reasonably concluded

from these records that the injuries alleged to have been the immediate adverse

reaction from the vaccinations did not last six months.

Petitioner suggests, however, that the medical records showing L.P.’s

“intermittent emesis” and “loose stools” over the two-plus years following the

vaccinations also support her vaccine injury claim. Pet’r’s Mot. at 2. And she notes

that L.P. was suffering from no gastrointestinal issues on the day he was

vaccinated. Id. at 12–13; see Pet. Ex. 2 at 26–28. But by the time L.P. received his

vaccinations, he already had a well-established medical history of gastrointestinal

problems. At L.P.’s check-up when he was two weeks old, petitioner was concerned

about green stools, gassiness, and excessive fussiness. Pet. Ex. 2 at 7. At four

weeks old, L.P. remained fussy and would spit up after feeding. Id. at 17. And at

seven weeks old, L.P. would spit up frequently after feedings, suffered from gas and

had blood in his stool. Id. at 21. Thus, L.P. was diagnosed with gastroesophageal

reflux disease prior to his vaccinations. Id. at 22.

With the medical records showing that L.P. suffered from gastrointestinal

issues prior to the day he was vaccinated, and petitioner alleging that L.P.’s

subsequent, intermittent gastrointestinal issues were caused by the vaccinations,

see Pet. ¶¶ 11–20, the Special Master reasonably informed petitioner both that

significant aggravation would need to be alleged in light of L.P.’s preexisting

condition, and that the medical records accompanying the petition did not show a

substantial deterioration of L.P.’s health, Records Order at 1. As petitioner herself

concedes, “[b]ecause no further records were found to support a substantial

deterioration of health, [she] moved for a dismissal.” Pet’r’s Mot. at 3. In denying

the fees request, the Special Master rationally explained that “counsel should have

realized through their review . . . that L.P.’s medical records do not support a

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vaccine-related injury as alleged and [that] petitioner did not have a reasonable

basis to bring her claim.” Fees Decision at *3.

Whether a “reasonable basis” for a Vaccine Act claim exists “is an objective

consideration determined by the totality of the circumstances.” McKellar v. Sec’y of

Health & Human Servs., 101 Fed. Cl. 297, 303 (2011). Special masters will consider

the factual basis and medical support underlying the claim to decide if it is

reasonable. Chuisano v. United States, 116 Fed. Cl. 276, 288 (2014). It is

incumbent on the petitioner to “affirmatively establish a reasonable basis to recover

attorneys’ fees and costs.” Id. at 287. While the “burden is something less than the

preponderant evidence ultimately required to prevail on one’s vaccine-injury claim,”

petitioners must furnish some support for their contentions. Simmons v. Sec’y of

Health & Human Servs., 128 Fed. Cl. 579, 583 (2016) (citations omitted), aff’d, 875

F.3d 632 (Fed. Cir. 2017).

As was described above, the Special Master rationally concluded that L.P.’s

alleged reaction to the vaccinations, in the form of vomiting and severe diarrhea,

did not last six months. And given L.P.’s preexisting gastrointestinal issues, the

Special Master rationally found that petitioner would have to plead that L.P.’s

condition was significantly aggravated by the vaccinations for the subsequent

gastrointestinal injuries to be the basis for a claim. Under these circumstances, the

Special Master acted well within her discretion in concluding that no reasonable

basis existed for alleging a vaccine injury claim and thus denying the requested

award of attorneys’ fees. Petitioner has identified no medical record connecting the

vaccinations to L.P.’s illnesses or condition more than six months after receiving the

vaccinations, let alone any medical record suggesting that a substantial

deterioration of his health resulted from the vaccinations. Cf. Chuisano, 116 Fed.

Cl. at 290 (finding that no reasonable basis existed in a case where, inter alia, the

decedent had preexisting medical conditions prior to the vaccination, the medical

records attributed her death to those preexisting conditions, and treating providers

were unwilling to attribute her injuries to her vaccination).

Instead, based on these records, petitioner acknowledged that “to proceed

further would be unreasonable and would waste the resources of this Court, the

Respondent, and the Vaccine Program.” Pet’r’s Mot. for Decision at 1. This is not a

case in which the information initially available to a petitioner supported a vaccine

claim, but subsequent information showed the claim not to be viable. Cf. Perreira v.

Sec’y of Dep’t of Health & Human Servs., 33 F.3d 1375, 1377 (Fed. Cir. 1994)

(finding that reasonable basis for claim ended upon review of expert opinion). If it

was unreasonable to proceed further upon the basis of the medical records

submitted with the petition, it was unreasonable to bring the claim in the first

place.

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Moreover, petitioner is incorrect in her contention that the Special Master’s

decision was based on the standard for proving entitlement rather than the

reasonable basis standard. See Pet’r’s Mot. at 13. The Special Master explained

that she must look “more to the feasibility of the claim” and “not at the likelihood of

success,” and that factors such as “factual basis” and “medical support” needed to be

considered. Fees Decision at *2 (citations omitted); see also Chuisano, 116 Fed. Cl.

at 288) (citations omitted) (identifying factual basis and medical support as among

the factors to be considered). After describing L.P.’s pre-vaccination condition, the

Special Master noted that “[n]o post-vaccination record substantiates L.P. having a

substantial deterioration of health.” Fees Decision at *3. Under the circumstances,

this would have been a sufficient basis for her exercise of the discretion which “the

statute clearly gives” special masters when a petition is not successful, Saxton, F.3d

at 1520. She further noted the absence of a causation theory or a medical expert

report, see Fees Decision at *3, not to require that reasonableness be based on the

entitlement standard, but to acknowledge additional means by which the

reasonableness of a claim may be established, see Carter v. Sec’y of Health &

Human Servs., 132 Fed. Cl. 372, 380 (2017) (recognizing that expert opinions may

be used to demonstrate reasonable basis of a claim). The Special Master properly

considered whether there was a reasonable basis for a vaccine injury claim based on

such elements as allegations of an injury or significant aggravation lasting more

than six months and linked to a vaccination. See 42 U.S.C. § 300aa-11(c)(1);

Santacroce ex rel. J.R. v. Sec’y of Health & Human Servs., No. 15-555V, 2018 WL

405121, at *7 (Fed. Cl. Jan. 5, 2018).

Based on this record, it was far from irrational or implausible for the Special

Master to find that petitioner did not have a reasonable basis for bring her claim.

The Special Master clearly considered all of the relevant medical records, drew

plausible inferences and articulated a rational basis for denying the attorneys’ fees

request. See Lampe, 219 F.3d at 1360.

2. A Looming Statute of Limitations Deadline Has No Bearing on the

Reasonableness of Filing a Vaccine Claim.

Petitioner also contends that the Special Master erroneously failed to account

for the fact that the statute of limitations was about to expire when petitioner’s

counsel reviewed the medical records and filed the petition. Pet’r’s Mot. at 14.

This argument, however, is squarely foreclosed by Federal Circuit precedent.

In Simmons v. Secretary of Health and Human Services, 875 F.3d 632, 634

(Fed. Cir. 2017), the Federal Circuit faced the question of whether counsel’s

inability to review a record due to a looming statute of limitations deadline should

be considered in the reasonable basis analysis. Writing for the court, Chief Judge

Prost began by noting that whether the reasonable basis requirement is met “is an

objective inquiry unrelated to counsel’s conduct.” Id. at 636. The focus, therefore, is

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on the claim itself---and whether a reasonable basis existed for bringing it. Id.

Thus, the court held that “a looming statute of limitations deadline . . . has no

bearing on whether there is a reasonable factual basis ‘for the claim’ raised in the

petition.” Id. (quoting 42 U.S.C. § 300aa-15(e)(1)). As such, “counsel may not use

[an] impending statute of limitations deadline to establish a reasonable basis” for

filing a claim lacking in factual support. Id. The amount of time left before a

statute of limitations will run out is simply irrelevant to the reasonable basis

determinations. See Amankwaa v. Sec’y of Health & Human Servs., 138 Fed. Cl.

282, 289 (2018) (holding that “the Federal Circuit forbade, altogether, the

consideration of statutory limitations deadlines . . . in determining whether there

was a reasonable basis for a claim”).

Petitioner thus cannot use the looming statute of limitations deadline to

support her argument that there was a reasonable basis for the filing of her claim.

The Special Master was therefore correct in rejecting the statute of limitations

argument, see Fees Decision at *3, and instead looking only to the medical records

and allegations in deciding if the claim had an objectively reasonable basis.

III. CONCLUSION

For the foregoing reasons, the Special Master’s denial of attorneys’ fees and

costs was not arbitrary, irrational, an abuse of discretion or otherwise unlawful.

Petitioner’s motion for review is hereby DENIED and the Special Master’s decision

is SUSTAINED. The Clerk shall enter judgment accordingly. No fees or costs are

awarded.

IT IS SO ORDERED.

s/ Victor J. Wolski

VICTOR J. WOLSKI

Senior Judge

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