Wirtshafter v. Secretary of Health and Human Services

In the United States Court of Federal Claims

No. 18-1562V

(Filed Under Seal: August 26, 2021)

(Reissued: September 13, 2021) 1

)

LINDA WIRTSHAFTER, )

)

Petitioner, )

)

v.

)

SECRETARY OF HEALTH AND )

HUMAN SERVICES, )

)

Respondent. )

)

Howard D. Mishkind, Mishkind Law Firm Co., L.P.A., Beachwood, OH, for Petitioner.

Ryan D. Pyles, United States Department of Justice, Civil Division, Washington, D.C., for

Respondent. On the brief were Brian M. Boynton, Acting Assistant Attorney General,

Civil Division, C. Salvatore D’Alessio, Acting Director, Heather L. Pearlman, Acting

Deputy Director, and Lara A. Englund, Assistant Director, Torts Branch, Civil Division,

United States Department of Justice, Washington, D.C.

OPINION AND ORDER

SOLOMSON, Judge.

Petitioner, Ms. Linda Wirtshafter, seeks review of an order denying attorney’s

fees and costs issued by Special Master Christian J. Moran on April 16, 2021. Petitioner

brought this action pursuant to the National Vaccine Injury Compensation Program, 42

U.S.C. §§ 300aa-10–34 (2018) (“Vaccine Act”), alleging that the influenza (“flu”) vaccine

she received on October 15, 2015 caused her to suffer from small fiber neuropathy.

Special Master Moran denied compensation, finding that Petitioner failed to establish

that her vaccination pre-dated her medical condition. Petitioner subsequently sought

attorney’s fees and costs pursuant to the Vaccine Act, which the Special Master also

1On August 26, 2021, the Court issued this opinion and order under seal in accordance with

Rule 18(b) of the Vaccine Rules (Appendix B) of the Court of Federal Claims. The Court

provided the parties 14 days to propose redactions. The parties did not propose any redactions

and, accordingly, the Court reissues this opinion and order in its original form.

denied, finding that there was no reasonable basis for her claim. This case is now before

the Court on Petitioner’s motion for review of the Special Master’s fee decision. For the

reasons explained below, the Court grants Petitioner’s motion for review and remands

for the Special Master to consider an award of costs and fees, not inconsistent with this

decision.

I. FACTUAL BACKGROUND

On March 28, 2013, prior to vaccination, Ms. Wirtshafter saw her primary care

physician, Dr. Michael B. Eckstein, for an “area of hyperesthesia over the upper thoracic

spine for approximately 3 months.” ECF No. 1-6 at 18. Dr. Eckstein diagnosed

Ms. Wirtshafter with a “[b]urning [s]ensation ([d]ysesthesia)” with an uncertain

etiology. Id. at 19. On February 22, 2014, Ms. Wirtshafter returned to Dr. Eckstein

complaining of continuing hypersensitivity of the skin at the base of her neck, and Dr.

Eckstein again diagnosed her with a burning sensation. Id. at 20-21.

On October 15, 2015, Ms. Wirtshafter received an influenza vaccination. ECF No.

1-4. The next day, Ms. Wirtshafter saw Dr. Eckstein for “[t]ingling in both legs off-and-

on for one week without associated weakness.” ECF No. 1-6 at 16. Ms. Wirtshafter’s

“active problems” at the time were a burning sensation, a disc disorder of her cervical

region, and spondylosis of her cervical region without myelopathy or radiculopathy.

Id. Dr. Eckstein’s noted impression of Ms. Wirtshafter was “[t]ingling in lower

extremities of unclear etiology.” Id. at 17.

On October 31, 2015, a hand-written note – presumably drafted by Dr. Eckstein –

documented, “Tingling in arms, legs, [and] face at this time. Symptoms started in the

arms and legs [three weeks] ago then resolved. Diffuse tingling has returned.” Id. at 25.

Dr. Eckstein also noted that Ms. Wirtshafter was to go “[t]o Neuro next week.” Id.

On November 3, 2015, Ms. Wirtshafter saw a neurologist, Dr. Stefan Dupont, for

“[t]ingling all over [her] body.” ECF No. 1-7 at 12. Ms. Wirtshafter reported that, “since

the visit with [Dr. Eckstein], tingling has gone everywhere including face, chest, torso.

More on left but occurs bilaterally.” Id. Dr. Dupont listed an “active problem” as

“tingling in extremities.” Id. at 13. Dr. Dupont noted that he would “start . . . workup

for neuropathy even though [he] did not find any abnormalities on the examination. . . .

I’ll likely end up sending her to a neuromuscular specialist . . . for further evaluation if I

do not find any abnormalities on the testing I have ordered. Possible somatization but

cannot be sure at this time.” Id at 17.

On November 24, 2015, Ms. Wirtshafter saw Dr. Deborah Venesy at the

Cleveland Clinic Foundation Center for Spine Health for “diffuse paresthesia in arms,

legs, chest and occasional lips/face” that had been occurring for five to six weeks with a

progressive onset of symptoms. ECF No. 1-9 at 1. Dr. Venesy reported that the results

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from Dr. Dupont’s workup were not yet known. Id. Dr. Venesy also indicated a plan to

refer Ms. Wirtshafter to a neuromuscular specialist “re possible small fiber PN eval.” Id.

at 4.

On December 8, 2015, Ms. Wirtshafter again saw Dr. Dupont, who noted that

“[v]ery extensive serum evaluations did not reveal any abnormalities.” ECF No. 1-7 at

11. Despite Ms. Wirtshafter’s concern about multiple sclerosis or a brain tumor, Dr.

Dupont explained to her that he did not have a neurological explanation for her

symptoms, nor did he have a medical justification to order the MRI she requested. Id;

see also id. at 1. Ms. Wirtshafter informed Dr. Dupont that she had made appointments

with several neuromuscular specialists in order to explore the possibility of small fiber

neuropathy. Id. at 11.

On January 13, 2016, Ms. Wirtshafter saw a neurologist, Dr. Bashar Katirji, based

on a referral from Dr. Eckstein. ECF No. 1-10 at 10. Ms. Wirtshafter reported “tingling,

pins and needles sensation all over her body” that “started in October 2015.” Id.

Ms. Wirtshafter reported that she initially noticed the sensation in her legs, but then it

spread all over. Id. Dr. Katirji noted that the results of the tests ordered by Dr. Eckstein,

including an EMG and labs, were normal. Id. Dr. Katirji ultimately ordered further

testing, including an MRI and an autonomic test for small fiber neuropathy, and

prescribed Ms. Wirtshafter with gabapentin for her tingling. Id. at 14.

On March 29, 2016, Dr. Katirji performed a skin biopsy on Ms. Wirtshafter’s left

leg for small fiber neuropathy testing. ECF No. 1-10 at 2. Dr. Katirji noted that Ms.

Wirtshafter’s skin was still very sensitive to the touch despite a normal MRI and normal

lab results. Id.

On April 6, 2016, Ms. Wirtshafter was examined by another neurologist, Dr.

Jinny Tavee – upon a referral from Dr. Venesy – “for an opinion regarding small fiber

neuropathy.” ECF No. 1-11 at 1. Dr. Tavee’s notes recounted Ms. Wirtshafter’s medical

history and recorded that “[p]rior to the abrupt spread of symptoms, [Ms. Wirtshafter] had

the flu shot at CVS but can’t remember exactly when she had it.” Id. (emphasis added).

Dr. Tavee also noted that small fiber neuropathy was suspected, but she was awaiting

results from the biopsy. Id. Pending biopsy results, Dr. Tavee concluded: “Suspect

nonlength dependent generalized polyneuropathy affecting small sensory fibers that

may represent the small fiber variant of Guillain-[B]arre syndrome that was triggered

by the flu vaccination.” Id. at 3.

On May 5, 2016, Ms. Wirtshafter emailed Dr. Tavee’s office to report that her skin

biopsy was negative. ECF No. 1-11 at 11-12. On May 24, 2016, however, Dr. Tavee’s

office contacted Ms. Wirtshafter with Dr. Tavee’s interpretation of the skin biopsy:

“There was an abnormality. The lower leg was normal . . . , but the upper leg showed

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only 7.4 fibers/mm with normal being over 8. This is borderline reduced but is enough

to make the diagnosis of [small fiber neuropathy].” Id. at 21.

On July 21, 2016, at a follow-up appointment, Dr. Tavee again noted that the

“[s]uspected etiology immune mediated related to preceding flu vaccination.” ECF No.

1-11 at 36. Her written impression indicated that the “[p]ossible immune mediated

component has now evolved to chronic [small fiber neuropathy].” Id. Dr. Tavee listed

Ms. Wirtshafter’s diagnosis as “[s]mall fiber neuropathy (HCC)” and created a plan to

manage her symptoms. Id. at 36-37.

Dr. Tavee subsequently left the Cleveland Clinic. ECF No. 1-3 at 2.

Consequently, on October 20, 2017, Ms. Wirtshafter saw another neurologist, Dr. Steven

Shook, who took over her treatment. ECF No. 1-13 at 1. In Ms. Wirtshafter’s medical

history, Dr. Shook wrote that within a few days of receiving her flu vaccination, Ms.

Wirtshafter had experienced neuropathic pain in all of her limbs, face and chest. Id. He

also wrote that while the skin biopsy had demonstrated “no definite [small fiber

neuropathy],” Ms. Wirtshafter’s “[h]istory of preceding flu vaccination was suggestive

of possible immune-mediated phenomenon.” Id.

On October 8, 2018, Dr. Shook completed an affidavit for Ms. Wirtshafter in

which he opined that “her neuropathic pain is permanent and will continue to cause her

ongoing symptoms.” ECF No. 1-5 at 2. Dr. Shook concluded that, “[b]ased on the

history provided by [Ms. Wirtshafter] and information available to me, it is my opinion

that there is a causal relationship between her flu vaccination and her ongoing

neuropathic pain which is suggestive of a possible immune-mediated phenomenon

related to her flu vaccination.” Id.

II. PROCEDURAL HISTORY

On October 9, 2018, Ms. Wirtshafter filed a petition in this Court, alleging that

“[a]s a direct and proximate result of the receipt of [the flu] vaccine, [she] developed a

Small Fiber Neuropathy (a variant of GBS); the onset of tingling in her legs within 24

hours of receiving the vaccine, followed by tingling in her arms and face.” ECF No. 1

¶ 3. Ms. Wirtshafter maintained that she has no other medical conditions that explain

her symptoms, which “cause[] difficulty in performing activities of daily living and

work.” Id. ¶¶ 4, 5.

On October 19, 2018, the Special Master directed Ms. Wirtshafter to file

additional information regarding an “important contradiction between the medical

records and the affidavit provided by the petitioner.” ECF No. 6 at 2. Specifically, the

Special Master described the following problem:

In her affidavit, Ms. Wirtshafter avers that she received her

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flu vaccination on October 15, 2015 and that the next day she

“started having tingling in my legs that subsequently spread

to my arms and face.” Exhibit 1 at ¶ 4. She further states that

she was seen by her primary care physician, Dr. Eckstein, on

the same date that the tingling symptoms began. Id. While the

medical records show that Ms. Wirtshafter was seen by Dr.

Eckstein on October 16, 2015, the medical records state that

her chief complaint was “tingling in legs off-and-on for one-

week.” Exhibit 4 at 16. Under history of present illness, the

records provide further detail, stating that she had “tingling

in both legs off-and-on for one week without associated

weakness.”. . . Thus, the medical records indicate that the

onset of the symptoms occurred close to a week prior to her

October 15, 2015 flu vaccination.

Id. The Special Master thus instructed Ms. Wirtshafter to complete an additional

affidavit and to file any additional records necessary to clarify the date of the onset of

her symptoms relative to when the flu vaccine was administered. Id. On October 30,

2018, Ms. Wirtshafter filed her affidavit and additional medical records. ECF No. 7; see

also ECF Nos. 7-1 – 7-8.

In Ms. Wirtshafter’s affidavit – specifically, in answering the question whether

she had “any explanation for why the medical records from the visit with Dr. Eckstein

state that the tingling started approximately a week before this visit?” – Ms. Wirtshafter

responded:

My symptoms began the day after the flu shot. I do not know

where Dr. Eckstein got that information about it starting

approximately a week before the visit. I remember specifically

noticing the symptoms at work a day after the flu shot and

calling his office and was surprised I got an appointment that

same day.

ECF No. 7-1 at 2. Consequently, the Special Master held a status conference on

November 20, 2018 to discuss the evidence that Ms. Wirtshafter provided. Minute

Entry, Nov. 21, 2018. The Special Master “explained that because of the discrepancy

between Dr. Eckstein’s record and Ms. Wirtshafter’s affidavit, a hearing to determine

when her neurologic problems began would probably be required. In the meantime,

Ms. Wirtshafter could gather additional affidavits from people knowledgeable about

her health around October 15, 2015.” Wirtshafter v. Sec'y of Health & Hum. Servs., No. 18-

1562V, 2021 WL 1906258, at *3 (Fed. Cl. Apr. 16, 2021). Ms. Wirtshafter subsequently

filed additional, supporting affidavits from family and friends, as well as copies of her

calendars from the relevant time period. ECF No. 10.

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On September 23, 2019, the Secretary filed his report, in which he asserted that

because Ms. Wirtshafter’s symptoms pre-dated her vaccination, she could not establish

a causal relationship between the vaccine and her injury. ECF No. 20. The Secretary

thus argued that Ms. Wirtshafter was not entitled to compensation under the Vaccine

Act and requested that the Special Master dismiss the case. Id.

On October 31, 2019, the Special Master held a status conference to discuss the

Secretary’s report. Minute Entry, Oct. 31, 2019; see also ECF No. 22. During the status

conference, the Special Master “discussed with the parties two obstacles with respect to

chronology presented in respondent’s report: (1) that petitioner’s tingling appears from

the medical records to have pre-dated her date of vaccination, and (2) that the alleged

one-day onset of petitioner’s symptoms appears too rapid.” ECF No. 22 at 1. After

discussing the issues with counsel for both parties, the Special Master ordered

Ms. Wirtshafter either to file a status report indicating her intent to proceed with

litigation or, in the alternative, to move for voluntary dismissal. Id. at 1-2. The Special

Master apparently abandoned his earlier view that a hearing would be necessary to

address inconsistencies in the record.

On December 19, 2019, Ms. Wirtshafter filed a motion “for a decision by the

Special Master dismissing her case” – effectively electing voluntary dismissal. ECF No.

23 at 1. In her motion, Ms. Wirtshafter informed the Special Master that “[a]n

investigation of the facts and science supporting her case has demonstrated to Petitioner

that she will be unable to prove that she is entitled to compensation in the Vaccine

Program. In these circumstances, to proceed further would be unreasonable and would

waste the resources of the Court . . . .” Id. ¶¶ 1-2. As a result, the Special Master

dismissed her case on December 20, 2019. ECF No. 24 (Wirtshafter v. Sec'y of Health &

Hum. Servs., No. 18-1562V, 2019 WL 7580153 (Fed. Cl. Dec. 20, 2019) (characterizing

Ms. Wirtshafter’s dismissal as “involuntary” pursuant to 42 U.S.C. § 300aa—21(b),

thereby “protecting her right to file a civil action in the future”).

On January 29, 2020, Ms. Wirtshafter filed a motion for attorney’s fees and costs.

ECF No. 28. The Secretary filed his opposition on February 12, 2020, and

Ms. Wirtshafter filed her reply on February 18, 2020. ECF Nos. 29, 30. The Special

Master then stayed the adjudication pending the outcome of Cottingham on Behalf of K.C.

v. Sec'y of Health & Hum. Servs., 971 F.3d 1337 (Fed. Cir. 2020), a vaccine fee petition

case.

After the Federal Circuit’s adjudication of Cottingham, the parties filed briefs

reiterating their positions. ECF Nos. 32, 33. The Federal Circuit then issued another

precedential opinion concerning the reasonable basis standard, James-Cornelius on Behalf

of E. J. v. Sec'y of Health & Hum. Servs., 984 F.3d 1374 (Fed. Cir. 2021), to which the

Special Master gave both parties an opportunity to respond. ECF No. 34. The parties

again filed supplemental briefs. ECF Nos. 35, 36.

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On April 16, 2021, the Special Master issued a decision denying Ms. Wirtshafter’s

motion for attorney’s fees and costs. ECF No. 37. In his decision, the Special Master

found that Ms. Wirtshafter lacked a reasonable basis for her claim and thus was not

eligible for an award of fees. Id. at 9.

On May 14, 2021, Ms. Wirtshafter filed a motion for review, which is pending

before this Court. ECF Nos. 39, 39-1 (“Pet. Mot.”). The Secretary filed a response on

June 14, 2021. ECF No. 41 (“Sec. Resp.”). This motion is currently ripe for adjudication.

III. JURISDICTION AND STANDARD OF REVIEW

This Court possesses jurisdiction, pursuant to the Vaccine Act, to review a special

master’s decision upon the filing of a petition from the unsuccessful party within thirty

days of that decision. 42 U.S.C. § 300aa-12(e)(1). The Court 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 conclusion 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

(C) remand the petition to the special master for further

action in accordance with the court's direction.

Id. § 300aa-12(e)(2).

This Court reviews a decision of the special master to determine if it is

“‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

law.’” Rodriguez v. Sec’y of HHS, 632 F.3d 1381, 1384 (Fed. Cir. 2011) (quoting Avera v.

Sec'y of HHS, 515 F.3d 1343, 1347 (Fed. Cir. 2008)). The special master has abused his

discretion if his decision: “‘(1) is clearly unreasonable, arbitrary, or fanciful; (2) is based

on an erroneous conclusion of law; (3) rests on clearly erroneous fact findings; or (4)

follows from a record that contains no evidence on which the decision-making body

could rationally base its decision.’” Ninestar Tech. Co. v. Int'l Trade Comm'n, 667 F.3d

1373, 1379 (Fed. Cir. 2012) (quoting Genentech, Inc. v. U.S. Int'l Trade Comm'n, 122 F.3d

1409, 1415 (Fed. Cir. 1997)).

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IV. THE SPECIAL MASTER ABUSED HIS DISCRETION IN DETERMINING

THERE WAS NO “REASONABLE BASIS” FOR PETITIONER’S CLAIM

Under the Vaccine Act, a petitioner who is unsuccessful on her claim may

nonetheless be eligible for an award of reasonable attorney’s fees and costs “‘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.’” James-

Cornelius, 984 F.3d at 1376 (quoting 42 U.S.C. § 300aa-15(e)(1)). The Federal Circuit has

explained that “‘good faith and reasonable basis’ are ‘two distinct facets’” which both

must be met in order for a petitioner to qualify for an award of fees and costs. Simmons

v. Sec'y of Health & Hum. Servs., 875 F.3d 632, 635 (Fed. Cir. 2017) (quoting Chuisano v.

United States, 116 Fed. Cl. 276, 289 (2014)). In the instant matter, the Secretary does not

contest that the claim for compensation was brought in good faith and thus that inquiry

is not at issue here. The Special Master concluded, however, that Ms. Wirtshafter did

not have a “reasonable basis” for her claim and thus was not eligible for attorney’s fees.

When determining whether a petitioner has a reasonable basis for filing a claim,

our Court “often relies on ‘an objective standard determined by the totality of the

circumstances.’” Cottingham, 971 F.3d at 1344 (quoting Chuisano, 116 Fed. Cl. at 286). In

practice, however, courts have struggled with the nature and quantum of evidence

necessary to establish a reasonable basis. The Federal Circuit has held that “the

quantum of objective evidence needed to establish reasonable basis for a claim,

including causation, is ‘lower than the preponderant evidence standard required to

prove entitlement to compensation,’ but ‘more than a mere scintilla.’” James-Cornelius,

984 F.3d at 1379 (quoting Cottingham, 971 F.3d at 1346). While the Federal Circuit has

not explained with any precision how to assess whether a quantum of evidence

constitutes “more than a mere scintilla,” it is generally accepted that “a petitioner must

furnish some evidence in support of the ‘claim for which the petition is brought’ to

establish the statutory requirement of reasonable basis.” Chuisano, 116 Fed. Cl. at 288

(emphasis added) (quoting 42 U.S.C. § 300aa–15(e)(1)).

Further, the Federal Circuit has clarified “that the failure to consider objective

evidence presented in support of a reasonable basis for a claim would constitute an

abuse of discretion.” Cottingham, 971 F.3d at 1345. Outside of this narrow clarification,

however, the specific amount and quality of evidence necessary to constitute a

reasonable basis remains undefined.

In her petition, Ms. Wirtshafter advances two objections to the Special Master’s

decision denying attorney’s fees, although she does not clearly delineate between them

in her argument. Pl. Mot. at 2. Ms. Wirtshafter asserts, first, that the Special Master

failed to consider the evidence under the “totality of the circumstances” standard, and,

second, that the Special Master improperly concluded that Ms. Wirtshafter did not have

a reasonable basis for her claim. Id. The Court agrees with Ms. Wirtshafter’s contention

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that the Special Master abused his discretion in determining that she did not have a

reasonable basis for her claim.

While the Special Master correctly recited that the reasonable basis standard

constitutes a lower burden of proof than a preponderance of the evidence, ECF No. 37

at 15, he improperly determined that Ms. Wirtshafter did not provide the quantum of

evidence necessary to establish a reasonable basis for her claim. As discussed, supra,

despite the enigma that surrounds the amount and quality of evidence necessary to

establish a reasonable basis for a vaccine compensation claim, our Court has

consistently required no more than “some evidence” to meet the statutory requirement

in order to recover fees. Gomez v. Sec'y of Health & Hum. Servs., No. 17-1800V, 2019 WL

7480769, at *4 (Fed. Cl. Dec. 6, 2019); Carter v. Sec'y of Health & Hum. Servs., 132 Fed. Cl.

372, 379 (2017); Curran v. Sec'y of Health & Hum. Servs., 130 Fed. Cl. 1, 5 (2017); Chuisano,

116 Fed. Cl. at 288. Indeed, the Special Master himself articulated the very same

standard in various other decisions and in a previous order issued in this very case. See,

e.g., Graham v. Sec'y of Health & Hum. Servs., No. 14-048V, 2015 WL 5334242, at *6 (Fed.

Cl. Aug. 4, 2015), aff'd, 124 Fed. Cl. 574 (2015); see also ECF No. 6 (“The undersigned has

interpreted ‘reasonable basis’ as setting a standard that is satisfied by presenting some

evidence to support the claim for which the petition was brought.” (emphasis added)).

In the instant case, despite expressly acknowledging that Ms. Wirtshafter’s medical

records “provide some facial support” for her claim, ECF No. 37 at 12, the Special

Master inexplicably determined that Ms. Wirtshafter did not present evidence sufficient

to meet the reasonable basis standard, in reliance upon what the Court can characterize

as nothing more than a merits decision on the compensation claim itself. The Court

disagrees, as a matter of law, with the Special Master’s conclusion regarding the fee

petition.

In denying the fee petition at issue, the Special Master considered four pieces of

documentary evidence Ms. Wirtshafter submitted: (1) her affidavit, (2) Dr. Katirji’s

medical records, (3) Dr. Tavee’s medical records, and (4) Dr. Shook’s affidavit. ECF No.

37 at 6 (citing ECF No. 32 at 4-5); see also ECF No. 37 at 9-15. In analyzing that evidence,

the Special Master concluded that “the first two contribute relatively little, if anything,

to the evaluation of reasonable basis.” ECF No. 37 at 9. He correctly acknowledged

that Ms. Wirtshafter’s affidavit “supports her good faith, a condition separate from

reasonable basis required for eligibility for attorneys’ fees.” Id. The Special Master also

quickly dismissed the value of Dr. Katirji’s records, because although they “offer[ed]

some support for Ms. Wirtshafter,” they were “somewhat imprecise” and did not

associate Ms. Wirtshafter’s symptoms with the flu vaccine (or discuss the flu vaccine at

all). Id. at 10.

The Special Master thus focused extensively on two of the four items of evidence

referenced above – Dr. Tavee’s medical records and Dr. Shook’s affidavit – and

ultimately concluded that “Dr. Tavee’s reports and Dr. Shook’s affidavit either directly

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contradict Ms. Wirtshafter’s claim or are based on incorrect information.” ECF No. 37

at 15. To support his rationale for discounting these pieces of evidence, the Special

Master relied heavily on Murphy v. Sec’y of Dep’t of Health & Hum. Servs., a case in which

the special master determined that an award of fees was inappropriate because

“evidence in the medical records and other written records contradict[ed] the claims

brought forth in the petition.” 30 Fed. Cl. 60, 61 (1993), aff’d without op., 48 F.3d 1236

(Fed. Cir. 1995). While Special Master Moran in this case acknowledged that neither the

special master’s opinion nor the Court’s subsequent denial of review in Murphy was

binding, he referred to Murphy as “some appellate guidance” that “points against a

finding of reasonable basis in Ms. Wirtshafter’s case.” ECF No. 37 at 13.

This Court rejects the Special Master’s reliance on Murphy. The Federal Circuit

affirmed Murphy without an opinion, pursuant to Rule 36 of the Rules of the United

States Court of Appeals for the Federal Circuit. “Since there is no opinion, a Rule 36

judgment simply confirms that the trial court entered the correct judgment. It does not

endorse or reject any specific part of the trial court’s reasoning.” Rates Tech., Inc. v.

Mediatrix Telecom, Inc., 688 F.3d 742, 750 (Fed. Cir. 2012). Accordingly, the Federal

Circuit’s affirmance in Murphy cannot serve as either “appellate guidance” for the

rationale provided by the Court (or the special master) for the denial of fees in that case

or to light the way for the Court in this matter.

Moreover, in the instant case, Dr. Tavee’s medical records do not directly

contradict Ms. Wirtshafter’s claim. In fact, Dr. Tavee, Ms. Wirtshafter’s treating

neurologist at the time, directly links Ms. Wirtshafter’s symptoms with her flu

vaccination. ECF No. 1-11 at 3 (Dr. Tavee’s noting that he “[s]uspect[s] nonlength

dependent generalized polyneuropathy affecting small sensory fibers that may

represent the small fiber variant of Guillain-[B]arre syndrome that was triggered by the

flu vaccination”), 36 (Dr. Tavee’s concluding “[s]uspected etiology immune mediated

related to preceding flu vaccination.”). While the Special Master disregarded Dr.

Tavee’s medical records and Dr. Shook’s subsequent adoption of them as being “based

on incorrect information,” this conclusion is demonstrably false. In Dr. Tavee’s initial

consultation with Ms. Wirtshafter, Dr. Tavee noted that Ms. Wirtshafter’s onset of

symptoms had occurred in “October 2015” and had “abruptly spread” several weeks

later. ECF No. 1-11 at 1. While admittedly there is a discrepancy between Dr.

Eckstein’s account that the onset of Ms. Wirtshafter’s symptoms pre-dated her

vaccination and Ms. Wirtshafter’s own affidavit indicating the onset of symptoms one

day after vaccination, Dr. Tavee’s initial records, on their face, are consistent with either

account: Ms. Wirtshafter did receive her flu vaccine in October 2015, and her symptoms

did subsequently spread.

Further, although Dr. Tavee was initially unaware of the exact date of Ms.

Wirtshafter’s vaccination, Ms. Wirtshafter subsequently informed Dr. Tavee of the

correct date:

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I wanted to let you know that I checked with CVS and my

Dr.’s office and found out when I got the flu shot and when I

went to my internist concerning my symptoms. I got the flu

shot on October 15th and saw my internist, Dr. Eckstein, on

the 16th . . . I then went back to Dr. Eckstein on the 31st (two

weeks later) when things seemed to get worse and scary

feeling.

ECF No. 1-11 at 7. Ms. Wirtshafter provided this information to Dr. Tavee on April 7,

2016, just one day after her initial consultation. Dr. Tavee, armed with the correct date

of Ms. Wirtshafter’s vaccination, nevertheless subsequently described the suspected

etiology of Ms. Wirtshafter’s small fiber neuropathy, in the “History Since Last

Evaluation” section of her medical records, as the “preceding flu vaccination.” Id. at 36.

While the Court agrees with the Special Master that there is some conflicting

information in Ms. Wirtshafter’s medical records regarding the date of the onset of her

symptoms, 2 and while the merits of her compensation claim were perhaps correctly

doubted, the Special Master improperly categorically discounted Dr. Tavee’s opinion as

“based on inaccurate information” when that simply is not the case.

Another reason upon which the Special Master relies in concluding that Ms.

Wirtshafter did not have a reasonable basis for her claim is that “even if Dr. Eckstein

erred in stating that Ms. Wirtshafter’s symptoms began before the vaccination,” Ms.

Wirtshafter still did not have a sufficiently long latency between her vaccination and

her symptoms to support a finding of causation. ECF No. 37 at 14. The Special Master

emphasizes that Dr. Shook’s opinion is premised upon a finding that Ms. Wirtshafter

had “a history of neuropathic pain in all limbs, face and chest within a few days of

receiving her flu shot,” ECF No. 37 at 14 (emphasis in original) (citing ECF No. 1-5),

2

In claiming that Ms. Wirtshafter “contributed to inconsistencies in medical records,” the

Special Master discredits Dr. Taveee’s and Dr. Shook’s attribution of causation based on

Dr. Eckstein’s records. ECF No. 37 at 13-14. The Special Master concludes that “[a]s a

contemporaneous statement given in the context of seeking medical treatment, Dr. Eckstein’s

record is presumed accurate.” Id. at 13. Notably, however, as acknowledged by the Special

Master himself in the context of this case, “medical records are not the only type of document

and the presumption is not absolute and may be rebutted.” ECF No. 6 (citing Campbell v. Sec’y

of Health & Human Servs., 69 Fed. Cl. 775, 779 (2006)). In fact, the Special Master gave Ms.

Wirtshafter a chance to submit additional affidavits to support her claim and, specifically, to

explain the discrepancy between her account and Dr. Eckstein’s notation, which she did. ECF

No. 10. These affidavits were not considered or discussed by the Special Master at all in his

decision that Ms. Wirtshafter lacked a reasonable basis for her claim. Although the Court

declines to reach the issue, this omission may well constitute an independent, reversible error.

See Cottingham, 971 F.3d at 1345 (“[T]he failure to consider objective evidence presented in

support of a reasonable basis for a claim would constitute an abuse of discretion.”).

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rather than the one-day latency asserted by Ms. Wirtshafter and her affiants. ECF Nos.

7, 10. The Special Master distinguishes between “a few days” and “one day,” ultimately

concluding that “[t]he difference between one day and three (or more) days is critical.”

Id. This conclusion is premised not on any medical evidence in the record or upon any

binding Federal Circuit decision establishing some sort of per se medical rule, but rather

based only on the fact that the Special Master himself has found one day to be

insufficient, but “three days is permissible.” Id. (citing Contreras v. Sec’y of Health &

Human Servs., No. 05-626V, 2014 WL 8098606, at *2-8 (Fed. Cl. Spec. Mstr. Oct. 24, 2014)

and Forrest v. Sec’y of Health & Human Servs., No. 14-1046V, 2019 WL 925495, at *7-8

(Fed. Cl. Spec. Mstr. Jan. 28, 2019)). 3

This latency rationale also is fundamentally flawed for several reasons. First, as

acknowledged by the Special Master himself, his previous opinions and those of other

special masters are not binding on the Special Master here, let alone on our Court

generally. ECF No. 37 at 13 (citing Boatmon v. Sec’y of Health & Human Servs., 941 F.3d

1351, 1358 (Fed. Cir. 2019)); see also Hanlon v. HHS, 40 Fed. Cl. 625, 630 (1998) (“Special

masters are neither bound by their own decisions nor by cases from the Court of

Federal Claims, except, of course, in the same case on remand.”), aff’d, 191 F.3d 1344

(Fed. Cir. 1999). Consequently, it would not be unreasonable – in terms of the fee

petition – for Ms. Wirtshafter’s counsel to file a claim for a vaccine injury with a

possible one-day latency, even considering potentially contrary, non-binding case law. 4

Further, the Special Master cites to 42 C.F.R. § 100.3 ¶ XIV.D, the Vaccine Table 5

3Petitioner correctly points out that, in Forrest, a decision cited (and issued) by the Special

Master as evidence that a one-day latency was insufficient to prove causation, “attorney fees

were awarded even though compensation was denied based upon the fact that petitioner

brought their petition in good faith and had a reasonable basis for their petition.” Pet. Mot. at

10.

4 In the Secretary’s response brief, the Secretary cites de Bazan v. Sec’y of Health & Hum. Servs.,

539 F.3d 1347, 1350 (Fed. Cir. 2008) for the proposition “that a latency between vaccination and

the onset of the neuropathy must be greater than one day in order to reasonably infer

causation.” Sec. Resp. at 8. In de Bazan, however, the Federal Circuit simply affirmed the

special master’s holding that the petitioner had not proven by a preponderance of the evidence

that eleven hours was a medically acceptable timeframe within which acute disseminated

encephalomyelitis could manifest after her vaccination, and that de Bazan had failed to prove

the proximate temporal relationship element of her prima facie case as a result. de Bazan, 539

F.3d at 1353. The court’s conclusion regarding the alleged injury at issue in de Bazan is

inapplicable to the instant case, as there is no evidence in the record that a medically acceptable

timeframe for the manifestation of acute disseminated encephalomyelitis is the same timeframe

as for small fiber neuropathy, the latter which is at issue here.

5

Under the Vaccine Act, a petitioner may either show that she suffered a vaccine-specific injury

listed on the Vaccine Injury Table within the requisite time-period covered by the Table (a

“Table injury”), in which case causation is presumed; or petitioner may demonstrate with

reliable medical evidence that a non-Table injury was caused by a vaccine listed on the Table.

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associating the influenza vaccine with Guillain-Barré syndrome, as evidence that a one-

day latency is impermissible. Notably, however, both parties expressly stated at

various points throughout the litigation that Ms. Wirtshafter’s injury is a non-table

injury, and thus, the Vaccine Table is inapposite. See, e.g., ECF No. 39-1 at 6 (“As the

Court knows, Petitioner’s injury was a non-table injury.”); see also ECF No. 20 at 6

(Secretary’s acknowledging that “Petitioner does not specifically allege a Table injury,

nor does the record support a Table injury”). While the Special Master’s well-informed

belief may be that a one-day latency is insufficient to prove causation, the Court rejects,

as a matter of law, the contention that it unreasonable for Ms. Wirtshafter’s counsel to

make a contrary assertion in light of the lack of binding precedent or medical evidence

in this matter’s record. In any event, the Court views this issue as relevant primarily to

the merits of Ms. Wirtshafter’s compensation claim generally, rather than serving as an

impediment to a determination of whether she had a reasonable basis for her claim

sufficient to support a fee petition. 6

Finally, while certainly not dispositive, the Court notes that the Special Master

himself did not appear to believe Ms. Wirtshafter’s claim to be entirely lacking of “some

evidence” during the pendency of her case. Indeed, at various times throughout the

progression of the underlying litigation, the Special Master indicated that the case

would be scheduled for a fact hearing and further invited Ms. Wirtshafter to submit

additional evidence supporting her timeline of events. See, e.g., ECF No. 9 at 2 (“Ms.

Wirtshafter was advised that her petition may be heading towards a fact hearing to take

oral testimony from her and her affiants.”), ECF No. 12 at 1 (“Ms. Wirtshafter’s case has

been placed on a queue of cases ready to be scheduled for a fact hearing.”). In fact, in

denying attorney’s fees, the Special Master acknowledged that Ms. Wirtshafter had

“some valid arguments.” ECF No. 37 at 15. While “some valid arguments” may not be

Under the second approach, petitioners must provide evidence that shows: “(1) a medical

theory causally connecting the vaccination and the injury; (2) a logical sequence of cause and

effect showing that the vaccination was the reason for the injury; and (3) a showing of a

proximate temporal relationship between vaccination and injury.” Moberly v. HHS, 592 F.3d

1315, 1322 (Fed. Cir. 2010) (quoting Althen v. HHS, 418 F.3d 1274, 1278 (Fed. Cir. 2005)).

6The Special Master also discredits Dr. Shook’s affidavit by undercutting his assertion that Ms.

Wirtshafter’s symptoms began “a few days” after her vaccination. ECF No. 37 at 14. While the

Court agrees with the Special Master that Dr. Shook’s specific timeline is unsupported by the

record, the Court notes that the Special Master incorrectly characterizes the Federal Circuit’s

holding in Perreira v. Sec’y of Health & Human Servs., 33 F.3d 1375, 1377 (Fed. Cir. 1994), as

“provid[ing] the reasonable basis standard with some teeth.” ECF No. 37 at 14. Perreira’s

holding, as described by the Federal Circuit itself in its decision, is simply that a petitioner may

be awarded costs and fees for the duration of time during which she had a reasonable basis for

her claim, rather than for the entire pendency of her case, should the reasonable basis that may

have been sufficient to bring the claim cease to exist. Perreira v. Sec'y of Dep't of Health & Hum.

Servs., 33 F.3d 1375, 1377 (Fed. Cir. 1994). There is nothing about this holding that changes the

quantum or quality of evidence necessary to prove a reasonable basis.

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sufficient to allow Ms. Wirtshafter to prevail on the merits, when combined with the

evidence in the record that support her petition, they constitute a sufficient quantum of

evidence to provide a reasonable basis for a claim. See Woods v. Sec'y of Health & Hum.

Servs., No. 10-377 V, 2012 WL 4010485, at *6-*7 (Fed. Cl. Aug. 23, 2012) (“Respondent's

argument, however, mistakes demonstrating a reasonable basis for the claim with proving

entitlement. . . . ‘Feasibility,’ not likelihood of success, is the standard [to demonstrate a

reasonable basis].” (internal citations omitted) (emphasis added)).

Accordingly, we find that the record provides, at a minimum, “some evidence”

for Ms. Wirtshafter’s claim, and thus the Special Master abused his discretion in

determining that Ms. Wirtshafter lacked a reasonable basis for her petition. The Court

acknowledges, however, that the Special Master retains discretion to decline to award

fees even if a reasonable basis for a fee petition is found. Saxton By & Through Saxton v.

Sec'y of Dep't of Health & Hum. Servs., 3 F.3d 1517, 1520 (Fed. Cir. 1993) (“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.”). While the Court holds

that Ms. Wirtshafter possessed a reasonable factual and legal basis for her compensation

claim, the Court remands the case back to the Special Master to determine whether an

award of costs and fees is appropriate in light of the Court’s findings in this decision.

It is so ORDERED.

s/Matthew H. Solomson

Matthew H. Solomson

Judge

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