Cottingham v. Secretary of Health and Human Services

In the United States Court of Federal Claims

No. 15-1291

(Filed Under Seal: March 28, 2022)

(Reissued: April 20, 2022)1

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KASEY COTTINGHAM, *

*

Petitioner, *

*

v. * Vaccine Act; Attorneys’ Fees;

* Reasonable Basis.

SECRETARY OF HEALTH *

AND HUMAN SERVICES, *

*

Respondent. *

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Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for Petitioner.

Voris Johnson, U.S. Department of Justice, Civil Division, Washington, DC, for Respondent.

OPINION AND ORDER

DIETZ, Judge.

In 2015, Petitioner filed and subsequently voluntarily dismissed her petition for

compensation under the National Vaccine Injury Compensation Program (“Vaccine Act”), 42

U.S.C. § 300aa-10, et seq. This is the fifth opinion by this Court on the issue of whether

Petitioner had a reasonable basis for filing her claim and is thus entitled to attorneys’ fees and

costs. Under review is the Special Master’s denial of attorneys’ fees. Petitioner argues that the

Special Master held Petitioner to a heightened reasonable basis standard. For the reasons below,

the Special Master’s decision is sustained. Petitioner’s motion for review is DENIED.

I. BACKGROUND

The facts and extensive procedural history of this case are set forth exhaustively in the

Special Master’s most recent opinion. See Cottingham v. Sec’y of Health & Hum. Servs., 2021

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Pursuant to Vaccine Rule 18(b) of the Rules of the United States Court of Federal Claims, the Court issued this

Opinion and Order under seal on March 28, 2022, and provided the parties fourteen days to propose redactions. See

ECF No. 129. The parties did not propose any redactions. Accordingly, the Court reissues this Opinion and Order

without redactions.

WL 6881248, at *1-16 (Fed. Cl. Sp. Mstr. Sept. 27, 2021). The Court will recite them briefly

here.

On October 30, 2015, Susan Cottingham filed a petition for compensation under the

Vaccine Act on behalf of her daughter, Kasey Cottingham (“Petitioner”). See ECF No. 1.

Petitioner alleged that she experienced adverse reactions after receiving the Gardasil® human-

papillomavirus (“HPV”) vaccine on July 5, 2012. Id. at 1. Specifically, Petitioner claimed that

the HPV vaccine caused: (1) weekly headaches beginning November 1, 2012; (2) two episodes

of fainting on March 29, 2013, and May 23, 2013; and (3) menstrual problems in the latter part

of 2013. Id. ¶¶ 4-9. After filing the petition, Petitioner submitted medical records that roughly

aligned with Petitioner’s account of her symptoms. See, e.g., ECF No. 8-3 at 87 (headaches “off

and [on] all week” on November 30, 2012); id. at 80 (dizziness and fainting on March 29, 2013);

id. at 175 (no menstrual cycle for six months in May 2015). Petitioner’s counsel was unable to

secure a favorable expert medical opinion after contacting two experts. See ECF No. 38 at 6-7.

On October 7, 2016, Petitioner filed a motion for a decision dismissing the petition, which the

Special Master granted. ECF Nos. 33-34.

On October 26, 2016, Petitioner filed a motion for attorneys’ fees and costs that has now

resulted in eleven total decisions between the Special Master, this Court, and the Federal Circuit.

In what may now be considered the “early” stages of the litigation over this motion, Petitioner’s

request for fees was volleyed between the Special Master and this Court until the Special

Master’s third decision—a denial of Petitioner’s request for fees—was affirmed by this Court. In

that decision, the Special Master held that Petitioner had no reasonable basis for filing the

petition because she produced “no evidence to support the petition’s vaguely asserted claims that

the HPV vaccine caused” Petitioner’s symptoms. Cottingham on Behalf of K.C. v. Sec’y of

Health & Hum. Servs., 2018 WL 3432638, at *5 (Fed. Cl. Sp. Mstr. June 20, 2018).

On appeal, the Federal Circuit vacated and remanded the Special Master’s decision.

Cottingham on Behalf of K.C. v. Sec’y of Health & Hum. Servs., 971 F.3d 1337, 1348 (Fed. Cir.

2020). The Federal Circuit found that Petitioner’s medical records in combination with the

vaccine package insert—which identifies headache, dizziness, and fainting as potential adverse

reactions—“constitute at minimum circumstantial, objective evidence supporting causation.” Id.

at 1346. Thus, the Federal Circuit held that the Special Master abused his discretion because his

decision rested on the clearly erroneous finding of fact that Petitioner had produced “no

evidence” to support her claim. Id. at 1347. The Federal Circuit limited its holding to this narrow

conclusion, noting that it “make[s] no determination on the weight of the objective evidence in

the record or whether that evidence establishes reasonable basis, for these are factual findings for

the Special Master and not this court.” Id.

On remand from the Federal Circuit, the Special Master again denied attorneys’ fees. See

Cottingham v. Sec’y of Health & Hum. Servs., 2021 WL 347020 (Fed. Cl. Spec. Mstr. Jan. 7,

2021). In analyzing the Federal Circuit’s guidance that “Petitioner must point to evidence of

causation,” Cottingham, 971 F.3d at 1346, the Special Master utilized the three-prong test for

causation set forth in Althen v. Sec’y of Health & Hum. Servs., 418 F.3d 1274 (Fed. Cir. 2005).

See Cottingham, 2021 WL 347020, at *16. His denial of fees was largely based on his finding

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that Petitioner failed to present evidence to meet Althen prong two because she did not “file a

statement from a treating doctor or qualified expert indicating that the vaccination harmed the

vaccinee[.]” Id. at *18. This conclusion was rendered erroneous the next day by the Federal

Circuit’s decision in James-Cornelius on Behalf of E.J. v. Sec’y of Health & Hum. Servs., 984

F.3d 1374, 1379 (Fed. Cir. 2021), which held that “absence of an express medical opinion on

causation is not necessarily dispositive of whether a claim has a reasonable basis[.]”

Accordingly, this Court again remanded to the Special Master. See Cottingham v. Sec’y of

Health & Hum. Servs., 154 Fed. Cl. 790, 798 (2021).

We thus arrive at the decision presently on review before the Court: an 83-page opinion

from the Special Master in which he again denies attorneys’ fees. See Cottingham, 2021 WL

6881248, at *1. The Special Master explains that “[t]he main reason Ms. Cottingham’s case

lacks a reasonable basis is that the latency between the vaccination and the onset of any health

conditions was approximately four months at the shortest.” Id. at *53. He further identifies, as

contributing factors, the lack of a diagnosis of a unifying syndrome and the presence of

alternative causes of Petitioner’s symptoms. Id. at *54. In reaching his conclusion, the Special

Master utilized the Althen prongs “for structure” and considered Petitioner’s objective evidence,

including affidavits, medical records, medical articles, and the vaccine package insert. See id. at

*52.

Petitioner filed a motion for review, arguing that the Special Master erred “by holding

Petitioner to an elevated reasonable basis standard.” Pet’r’s Mem. in Support of Mot. for Review

at 5, ECF No. 120 [hereinafter Pet’r Mem.]. The Court held argument on March 7, 2022.

II. STANDARD OF REVIEW

The Court of Federal Claims has jurisdiction under the Vaccine Act to review a special

master’s decision. 42 U.S.C. § 300aa-12(e)(2). On review, this 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 discretion.

Id. § 300aa-12(e)(2).

This Court reviews a special master’s findings of fact under the arbitrary and capricious

standard and discretionary rulings under the abuse of discretion standard. Turner v. Sec’y of

Health & Hum. Servs., 268 F.3d 1334, 1337 (Fed. Cir. 2001). A special master’s factual findings

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are entitled to deference. Hines on behalf of Sevier v. Sec’y of Health & Hum. Servs., 940 F.2d

1518, 1528 (Fed. Cir. 1991). “If the special master has considered the relevant evidence of

record, drawn plausible inferences and articulated a rational basis for the decision, reversible

error will be extremely difficult to demonstrate.” Id. Legal questions, on the other hand, are

reviewed de novo. Munn v. Sec’y of Health & Hum. Servs., 970 F.2d 863, 873 (Fed. Cir. 1992).

III. DISCUSSION

Under the Vaccine Act, “when a petitioner is denied compensation for a claim, she may

still obtain compensation to cover reasonable attorneys’ fees and other 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 1379

(quoting 42 U.S.C. § 300aa-15(e)(1)). A petitioner who establishes both good faith and a

reasonable basis is eligible for, but not entitled to, an award of attorneys’ fees, as “a special

master retains discretion to grant or deny attorneys’ fees.” Id.; see 42 U.S.C. § 300aa-15(e)(1)(B)

(“[T]he special master may award . . . reasonable attorneys’ fees and other costs[.]” (emphasis

added)). Petitioner’s good faith has not been challenged in this case, and thus only Petitioner’s

reasonable basis for bringing the claim is at issue. See Cottingham, 2021 WL 6881248, at *17.

Reasonable basis “is an objective test, satisfied through objective evidence.” Cottingham,

971 F.3d at 1344. When evaluating whether a petitioner had a reasonable basis for bringing a

claim, this Court looks to “the totality of the circumstances going to the merits of the claim,

including the factual basis of the claim, medical support, and jurisdictional issues.” Bekiaris v.

Sec’y of Health & Hum. Servs., 140 Fed. Cl. 108, 112 (2018); see also Cottingham, 971 F.3d at

1344. To establish reasonable basis, a petitioner’s objective evidence must support each

“necessary element of a petition,” including, as relevant here, “a causal relationship between the

administration of the vaccine and [the petitioner’s] injuries.” Cottingham, 971 F.3d at 1346

(citing 42 U.S.C. § 300aa-11(c)(1)(C)(ii)). Subjective considerations, such as an impending

statute of limitations or an attorney’s conduct, do not factor into a reasonable basis analysis.

Simmons v. Sec’y of Health & Hum. Servs., 875 F.3d 632, 635 (Fed. Cir. 2017). Accordingly, a

special master’s consideration of subjective factors or failure to consider objective evidence

constitutes an abuse of discretion. Cottingham, 971 F.3d at 1345.

Though the Federal Circuit has clarified the type of evidence to be considered in a

reasonable basis analysis, “the specific amount and quality of evidence necessary to constitute a

reasonable basis remains undefined.” Wirtshafter v. United States, 155 Fed. Cl. 665, 672 (2021).

The Federal Circuit has provided the less-than-precise guidance that “more than a mere scintilla

but less than a preponderance of proof could provide sufficient grounds for a special master to

find reasonable basis. Cottingham, 971 F.3d at 1346; see also James-Cornelius, 984 F.3d at 1379

(explaining that “the quantum of 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” (quotations omitted)).

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This formulation does not appear to define reasonable basis so much as set its outer

bounds. That is to say, a petitioner does not automatically satisfy the reasonable basis standard

by producing “more than a mere scintilla” of evidence in support of a claim; the Federal Circuit’s

statement that a special master “could” find reasonable basis based upon more than a mere

scintilla does not mandate such a finding. See Cottingham, 971 F.3d at 1346. On the other end of

the spectrum, a special master cannot apply a reasonable basis standard that too closely

approaches that of preponderant evidence. See James-Cornelius, 984 F.3d at 1379. Accordingly,

a determination of reasonable basis may rest upon objective evidence ranging from a mere

scintilla to a preponderance. In practice, the quantum of evidence required is likely closer to a

mere scintilla than it is to a preponderance, as the reasonable basis standard “looks not at the

likelihood of success of a claim but more to the feasibility of the claim.” Chuisano v. United

States, 116 Fed. Cl. 276, 286 (2014); see also Bekiaris, 140 Fed. Cl. at 115 (“[I]t can be said with

confidence that the quantum of evidence of causation to show reasonable basis is markedly less

than that needed to prove entitlement.”). Still, such a test leaves a special master with a range

within which the special master, as the fact finder, determines whether the quantum and quality

of evidence in a case establishes a petitioner’s reasonable basis for bringing the claim. But see

Wirtshafter, 155 Fed. Cl. at 672 (stating that the reasonable basis standard “require[s] no more

than some evidence” (emphasis added) (quotations omitted)).

A. The Special Master Applied the Correct Legal Standard

Turning to the present case, the Special Master did not err in his legal conclusion that

Petitioner’s evidence, though more than a mere scintilla, does not mandate a finding of

reasonable basis. See Cottingham, 2021 WL 6881248, at *24. The question is not whether

Petitioner’s evidence has crossed the “mere scintilla” threshold, as Petitioner would have it. See

Pet’r Mem. at 22. Otherwise, the Federal Circuit’s holding in this case that Petitioner’s medical

records in combination with the package insert “constitute at minimum circumstantial, objective

evidence” would end the inquiry. See Cottingham, 971 F.3d at 1346. The Federal Circuit

explicitly stated that its ruling was not dispositive on the issue of reasonable basis, as

determinations on “the weight of the objective evidence [and] whether that evidence establishes

reasonable basis . . . are factual findings for the Special Master[.]” Id. at 1347. In accordance

with the Federal Circuit’s decision, the Special Master acknowledged that various pieces of

objective evidence submitted by Petitioner constitute at least “some evidence that is consistent

with a finding of causation.” Cottingham, 2021 WL 6881248, at *36. The Special Master then

assessed the evidence and evaluated whether it was sufficient to form a reasonable basis for

bringing the claim. This was an appropriate exercise for the Special Master, as factfinder, under

the reasonable basis test.

Additionally, the Special Master did not commit legal error by using the Althen prongs as

the framework within which to evaluate Petitioner’s objective evidence for the causation element

of her claim. Petitioner argues that the Special Master’s use of the Althen prongs—a three-part

test for causation governing entitlement to compensation in a vaccine case involving an “off-

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Table injury”2—impermissibly elevated the reasonable basis standard and conflicts with the

“totality of the circumstances” test. See Pet’r Mem. at 23. But, as may be inferred from the

Federal Circuit’s opinion in this case, reasonable basis and entitlement to compensation differ

only in the level of proof required, not in their elements. In Cottingham, the Federal Circuit listed

the five “necessary element[s] of a petition” under the Vaccine Act and suggested that evidence

of each is required to establish reasonable basis. Cottingham, 971 F.3d at 1346 (citing 42 U.S.C.

§ 300aa-11(c)(1)). Further, the Vaccine Act requires a petitioner to demonstrate each of these

same elements by a preponderance of the evidence to establish entitlement to compensation. 42

U.S.C. § 300aa-13(a)(1). Thus, though the burdens of proof differ, the elements of reasonable

basis and entitlement are intrinsically linked. This is logical, as a petitioner has no reasonable

basis to bring a claim that is facially devoid—or insurmountably deficient, as the case may be—

with respect to an element necessary to establish entitlement. See Goodgame v. Sec’y of Health

& Hum. Servs., 157 Fed. Cl. 62, 68 (2021) (“[A] claim that on its face . . . is not supported by the

materials required by the Vaccine Act for a special master to be able legally to award

compensation does not have a reasonable basis.”).

This framework demonstrates that the test for reasonable basis incorporates the elements

of entitlement, including, as relevant here, causation. See Cottingham, 971 F.3d at 1346

(“Cottingham must point to evidence of a causal relationship . . . to establish that a reasonable

basis for the claim existed when the petition was filed.”). In the vaccine injury context, causation

is defined by the Althen prongs. Moberly ex rel. Moberly v. Sec’y of Health & Hum. Servs., 592

F.3d 1315, 1321-22 (Fed. Cir. 2010). By extension, the Althen prongs may provide at least some

definitional context to causation in a reasonable basis analysis.

The Special Master made such use of Althen in this case, stating that he “borrow[ed] from

the [Althen] structure,” while simultaneously acknowledging the diminished standard required to

establish reasonable basis. Cottingham, 2021 WL 6881248, at *44. He then made only a single

specific reference to an Althen prong during his evaluation of Petitioner’s evidence on causation,

stating that a lack of evidence under Althen prong two, though not dispositive, “cut against a

finding of reasonable basis.” Id. at *48. This comports with the totality of the circumstances test,

as such a test does not eschew all consideration of individual factors in favor of a formless

approach but rather requires a weighing of factors “within the context of all other factors that are

relevant to the inquiry.” Crawford v. Dep’t of the Army, 718 F.3d 1361, 1366-67 (Fed. Cir. 2013)

(“As with any test that considers the totality of the circumstances, certain factors cannot be

singled out as dispositive without first weighing all of the other potentially competing factors.

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The Vaccine Act provides two ways for a petitioner to establish causation. Munn, 970 F.2d at 865. A petitioner

may demonstrate causation through a statutorily prescribed presumption upon a showing that the alleged injury is

one listed in the Vaccine Injury Table (the “Table”). 42 U.S.C. § 300aa-14. When the alleged injury is not listed—an

“off-Table injury”—the petitioner must prove “causation-in-fact” by a preponderance of the evidence. See 42 U.S.C.

§§ 300aa-11(c)(1)(C)(ii); Lampe v. v. Sec’y of Health & Hum. Servs., 219 F.3d 1357,1360 (Fed. Cir. 2000). To

prove causation for an off-Table injury under Althen, a Petitioner must demonstrate: “(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.” Althen, 418 F.3d at 1278.

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This is not to say that in some cases an individual factor cannot prove dispositive.”). Thus,

though a discussion of Althen is not required in every reasonable basis analysis, the Special

Master’s use here was appropriate and did not elevate his reasonable basis analysis into an

entitlement analysis.

B. The Special Master’s Decision was not Arbitrary, Capricious, or an

Abuse of Discretion

In its opinion in this case, the Federal Circuit held that Petitioner is required to “point to

evidence of a causal relationship between the administration of the vaccine and her injuries in

order to establish that a reasonable basis for the claim existed when the petition was filed.”

Cottingham, 971 F.3d at 1346. Simply pointing to evidence, however, is not sufficient, as an

evaluation of “the weight of the objective evidence [and] whether that evidence establishes

reasonable basis . . . are factual findings for the Special Master.” Id. at 1347. Based on his

evaluation of the evidence, the Special Master ruled that Petitioner did not have a reasonable

basis for her claim. Affording deference to the Special Master’s factual findings, the Court finds

that the Special Master appropriately considered the evidence and reached a rational conclusion.

See Hines, 940 F.2d at 1528 (“If the special master has considered the relevant evidence of

record, drawn plausible inferences and articulated a rational basis for the decision, reversible

error will be extremely difficult to demonstrate.”). The Court, therefore, sustains the Special

Master’s denial of attorneys’ fees.

It is not this Court’s role to “reweigh the factual evidence, assess whether the special

master correctly evaluated the evidence, or examine the probative value of the evidence or

credibility of the witnesses—these are all matters within the purview of the fact finder.” Porter v.

Sec’y of Health & Hum. Servs., 663 F.3d 1242, 1249 (Fed. Cir. 2011). In accordance with the

instruction from the Federal Circuit, the Special Master conducted a thorough evaluation of the

vaccine package insert in combination with Petitioner’s medical records, affidavits, and medical

literature. See Cottingham, 2021 WL 6881248, at *34-43. The Special Master reached some

notable conclusions with respect to the reliability and weight of this evidence. First, the Special

Master noted that although Petitioner’s medical records and the vaccine package insert match

with respect to some of the types of symptoms Petitioner experienced, the timing of the onset of

Petitioner’s symptoms differs substantially from that listed on the package insert. See id. at *31-

33. Second, the Special Master took as true Petitioner’s affidavit, except with respect to her

account of near blackouts, which he found “highly impossible” based on its inconsistency with

the medical records. See id. at *37-38. Third, the Special Master found that the medical articles

submitted by Petitioner were of little evidentiary value due to their “methodological limitations”

and limited applicability to Petitioner’s claim. See id. at *43.

The Special Master’s evaluation of the evidence, though perhaps more probing that

Petitioner might have expected under the reasonable basis standard, did not impermissibly

elevate the standard. The reasonable basis standard does not require a special master to accept

evidence at face value; otherwise, this becomes a box-checking exercise in which fees are

awarded so long as a petitioner submits an affidavit and medical records demonstrating that, at

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some point after receiving a vaccine, the petitioner suffered from an adverse medical condition.

This would render meaningless the Federal Circuit’s instruction that the Special Master was to

weigh the evidence and determine whether it met the reasonable basis standard. See Cottingham,

971 F.3d at 1346. Here, the Special Master identified several facial deficiencies in Petitioner’s

evidence, including inconsistencies between Petitioner’s affidavit and medical records, and the

delayed onset of symptoms.

Given the facial weaknesses of the other objective evidence in the case, a more extensive

analysis of, in particular, the medical literature was not an abuse of discretion. As the Special

Master noted, other petitioners that have put forth the medical literature at issue in this case have

prevailed on fees. See Cottingham, 2021 WL 6881248, at *43 n.29 (citing Balasco v. Sec’y of

Health & Hum. Servs., 2020 WL 2461911 (Fed. Cl. Spec. Mstr. Apr. 16, 2020); Combs v. Sec’y

of Health & Hum. Servs., 2018 WL 2772218 (Fed. Cl. Spec. Mstr. Apr. 23, 2018)). Petitioners in

those cases, however, “made a stronger evidentiary showing,” including expert reports based on

the articles. Cottingham, 2021 WL 6881248, at *43 n.29. In this case, to determine whether the

literature might mitigate or exacerbate the deficiencies in the other objective evidence, the

Special Master extensively analyzed the reliability of the medical literature and its applicability

to Petitioner’s reasonable basis. Under the totality of the circumstances test, such an exercise was

rational and not an abuse of discretion.

In his analysis, the Special Master cited to several entitlement cases which were decided

after the instant case was filed and in which the medical literature at issue here was found to be

unpersuasive. See Cottingham, 2021 WL 6881248, at *42-43. The Court agrees with Petitioner

that this portion of the Special Master’s decision is problematic, see Pet’r Mem. at 5-6; however,

the Court finds that this does not rise to the level of an abuse of discretion. Entitlement cases

decided after a petition is filed should have no bearing on whether a petitioner had “a reasonable

basis for the claim existed when the petition was filed.” Cottingham, 971 F.3d at 1346 (emphasis

added). The Special Master did not use these cases, however, to find that Petitioner lacked a

reasonable basis because other cases have found the medical literature unreliable. Rather, he

used the case reports to support his underlying rationale for assigning little weight to the articles:

that the “articles present a series of case reports,” which “provide little, if any, value to an

analysis of causation.” Cottingham, 2021 WL 6881248, at *43. In support of this proposition, the

Special Master cited to multiple cased decided before Petitioner’s case. See id. (collecting cases).

In other words, the Special Master could have (and should have) reached the same conclusion on

the “methodological limitations” and weight of the literature without referencing cases decided

multiple years after Petitioner filed her petition.

Based upon his evaluation of all the evidence, the Special Master reached a rational

conclusion that Petitioner provided insufficient evidence to establish a reasonable basis for filing

her petition. See Cottingham, 2021 WL 6881248, at *52. In doing so, the Special Master focused

primarily on the “latency between the vaccination and the onset of any health conditions,” which

was “approximately four months at the shortest.” Id. at *53. The Special Master found that this

latency was well beyond a reasonable time compared to the warnings on the package insert,

which indicate, for example, that headaches may occur within two weeks of vaccination or that

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there is a risk of fainting within fifteen minutes of vaccination. Id. at 49-50. Notably, despite the

Special Master’s thorough analysis of Petitioner’s affidavit and medical records, he reached this

conclusion taking Petitioner’s timeline of events as true. See id. In other words, Petitioner’s

objective evidence, on its face, did not establish reasonable basis. The medical literature, found

by the Special Master to be of little evidentiary value, could not overcome this deficiency.

In sum, the Special Master applied the appropriate standard, considered the relevant

evidence, and reached rational factual determinations. The Court understands the impulse to

believe that an 83-page opinion must have overstepped the low threshold of reasonable basis and

delved too far into the evidence presented. However, given the extensive procedural history of

this case, one can hardly fault the Special Master for giving a comprehensive explanation of his

reasoning. The Court sustains the Special Master’s decision.

IV. CONCLUSION

For the reasons stated above, the Court finds that the Special Master’s decision was not

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

motion for review of the Special Master’s decision is DENIED. The Special Master’s decision

of September 27, 2021, is SUSTAINED. The Clerk shall enter judgment accordingly.

IT IS SO ORDERED.

s/ Thompson M. Dietz

THOMPSON M. DIETZ, Judge

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