The opinion
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-991V
Filed: August 31, 2022
UNPUBLISHED
MUHAMMAD JAFARY,
Special Master Horner
Petitioner,
v. Tetanus, diphtheria, acellular
pertussis (“Tdap”) vaccine; influenza
SECRETARY OF HEALTH AND (“flu”) vaccine; necrotizing myopathy;
HUMAN SERVICES, attorneys’ fees and costs; denial;
reasonable basis; reconsideration
Respondent.
David John Carney, Green & Schafle, LLC, Philadelphia, PA, for petitioner.
Matthew Murphy, U.S. Department of Justice, Washington, DC, for respondent.
Order Denying Petitioner’s Motion for Reconsideration1
On August 7, 2020, petitioner filed a petition for compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 et seq. (the “Vaccine
Act”). Petitioner alleged that as a result of receiving an influenza vaccination on
December 6, 2017, and a tetanus, diphtheria, acellular pertussis (“Tdap”) vaccination on
January 23, 2018, he suffered necrotizing myopathy. (ECF No. 1.) The petition was
dismissed on August 16, 2021. (ECF Nos. 25, 27.) A motion for attorneys’ fees and
costs was denied on February 24, 2022, on the basis that petitioner had not
demonstrated a reasonable basis for the filing of the petition. (ECF No. 32.)
On March 4, 2022, petitioner moved for reconsideration of the decision denying
attorneys’ fees and costs. (ECF No. 34.) At the time petitioner filed his motion for
reconsideration, he also filed a July 17, 2021 letter from the expert (Dr. Gershwin) that
counsel consulted prior to dismissal of this case. (ECF No. 33; Ex. 16.) On March 8,
2022, an order was issued withdrawing the decision denying attorneys’ fees and costs
1
Because this decision contains a reasoned explanation for the special master’s action in this case, it will
be posted on the United States Court of Federal Claims’ website in accordance with the E-Government
Act of 2002. See 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the decision will be available to anyone with access to the
Internet. In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact
medical or other information the disclosure of which would constitute an unwarranted invasion of privacy.
If the special master, upon review, agrees that the identified material fits within this definition, it will be
redacted from public access.
1
so that petitioner’s arguments could be considered and ordering respondent to file a
response. (ECF No. 35.) Respondent filed his response on July 1, 2022 (ECF No. 40)
and the motion is now ripe for resolution.
For the reasons discussed below, petitioner’s motion is DENIED. Because the
decision at issue was withdrawn for purposes of considering petitioner’s arguments in
favor of reconsideration, it is now “void for all purposes.” (Vaccine Rule 10(e)(3).)
Therefore, “the special master must subsequently enter a superseding decision.” (Id.)
However, because the motion for reconsideration is denied, the original, now withdrawn,
February 24, 2022 decision denying attorneys’ fees and costs will be reissued to serve
as a superseding decision pursuant to Vaccine Rule 10(e).
I. Legal Standard
Vaccine Rule 10(e), which governs motions for reconsideration, provides,
“[e]ither party may file a motion for reconsideration of the special master's decision
within 21 days after the issuance of the decision . . . .” Vaccine Rule 10(e)(1).
Generally “[a] court may grant such a motion when the movant shows ‘(1) that an
intervening change in the controlling law has occurred; (2) that previously unavailable
evidence is now available; or (3) that the motion is necessary to prevent manifest
injustice.’” System Fuels, Inc. v. United States, 79 Fed. Cl. 182, 184 (2007) (quoting
Amber Resources Co. v. United States, 78 Fed. Cl. 508, 514 (2007)). Granting such
relief requires “a showing of extraordinary circumstances.” Caldwell v. United States,
391 F.3d 1226, 1235 (Fed. Cir. 2004) (citation omitted), cert. denied, 546 U.S. 826, 126
S.Ct. 366, 163 L.Ed.2d 72 (2005). Special masters have the discretion to grant a
motion for reconsideration if to do so would be in the “interest of justice.” Vaccine Rule
10(e)(3). It has previously been noted, however, that there is little guidance interpreting
Vaccine Rule 10(e)(3) beyond the conclusion that it is within the special master's
discretion to decide what constitutes the “interest of justice” in a given case. See
Krakow v. Sec'y of Health & Human Servs., No 03-632V, 2010 WL 5572074, at *3 (Fed.
Cl. Spec. Mstr. Jan. 10, 2011) (granting reconsideration of motion to dismiss case for
failure to prosecute).
Petitioner does not assert that there has been any change in controlling caselaw.
Nor does he contend that previously unavailable evidence is now available. 2 Rather,
petitioner indicates that he relies on the “interest of justice” standard. (ECF No. 34, p. 1
(citing Krakow v. Sec’y of Health & Human Servs., No. 03-632V, 2010 WL 5572074, at
*12 (Fed. Cl. Spec. Mstr. Jan. 10, 2011)).)3 In the decision cited by petitioner, the
special master concluded that “the ‘interest of justice’ standard is likely less onerous
than ‘manifest injustice.’” Krakow, 2010 WL 5572074, at *5. Nonetheless, “a motion for
reconsideration should not be used to gain a second opportunity to argue what was
2
Petitioner’s motion is accompanied by a previously unfiled letter by his expert, Dr. Gershwin, but that
letter is dated July 17, 2021 (ECF No. 33; Ex. 16).
3
The specific page citation included in petitioner’s motion appears to be incorrect as the Westlaw
pagination spans only from *1-9.
2
already decided.” Chuisano v. Sec’y of Health & Human Servs., No. 07-452V, 2013 WL
6234660, at *20 (Fed. Cl. Spec. Mstr. Oct. 25, 2013) (citing Fillmore Equipment of
Holland, Inc. v. United States, 105 Fed. Cl. 1, 9 (2012)). A party seeking
reconsideration “must support the motion by a showing of extraordinary circumstances
which justify relief.” Fru–Con Constr. Corp. v. United States, 44 Fed. Cl. 298, 300
(1999). The motion for reconsideration “must be based ‘upon manifest error of law, or
mistake of fact, and is not intended to give an unhappy litigant an additional chance to
sway the court.’” Prati v. United States, 82 Fed. Cl. 373, 376 (2008) (quoting Fru–Con
Constr. Corp., 44 Fed. Cl. at 300).
II. The Decision at Issue on This Motion
In order to understand petitioner’s specific arguments for reconsideration, a brief
summary of the decision at issue is necessary. The petition had alleged post-vaccinal
necrotizing myopathy evidenced by onset of certain symptoms, most notably fatigue
and muscle weakness, occurring in mid-February of 2018. (ECF No. 1, p. 2.) (That
would be approximately 10 weeks from the date of the December 2017 flu vaccination
and three weeks from the date of the January 2018 Tdap vaccination.) As noted above,
the now withdrawn decision denying attorneys’ fees and costs (previously at ECF No.
32) concluded that petitioner did not have a reasonable basis to file this petition.
With respect to the parties’ positions, the decision explained that petitioner’s
motion for attorneys’ fees and costs had stated that “[o]nce the medical literature was
reviewed in detail by Petitioner’s counsel in July 2021 and after a phone call with
Petitioner’s expert in late July, Petitioner’s counsel came to the conclusion that this case
could no longer be supported through an expert report.” (ECF No. 32, p. 4 (quoting
ECF No. 29, p. 8).) Petitioner asserted in effect that this was the point at which
reasonable basis had been lost. (Id.) This was the sole argument advanced in the
motion for attorneys’ fees and costs to explain why the petition was filed with a
reasonable basis.
However, petitioner’s prior motion to dismiss had indicated that petitioner’s
counsel had a prior case involving the same injury (necrotizing myopathy) that had
settled. (Id. at 3 (citing ECF No. 24, p. 4).) Petitioner’s motion to dismiss had also
asserted that petitioner’s medical records “reasonably demonstrated a causal link”
between petitioner’s vaccinations and his necrotizing myopathy. (Id. at 8 (quoting ECF
No. 24, p. 4).) The decision regarding attorneys’ fees and costs also considered these
points. This was the full extent of any argument petitioner had presented in any filing,
apart from the allegations of the petition itself, that speak to reasonable basis.
Respondent filed an opposition to petitioner’s motion arguing that petitioner did not have
a reasonable basis to file the petition; however, petitioner filed no reply addressing
respondent’s contentions.
In addressing the question of reasonable basis, the decision stressed that the
fact that petitioner had been unable to furnish any expert opinion to support the claim is
not dispositive because an express medical opinion is not required to demonstrate a
3
reasonable basis. Based on petitioner’s broader filings, the decision indicated that
“petitioner here seems to rely on a purported temporal relationship between petitioner’s
vaccinations and injury as well as a history of settlement of cases involving the same
vaccination and injury. This is not persuasive in the context of this case.” (Id. at 6.)
Several points contributing to this conclusion were discussed.
In discussing the legal standard for assessing reasonable basis, the decision
explained that temporal proximity alone is insufficient to establish reasonable basis for a
cause-in-fact case. (Id. at 5-6.) In that regard, it was noted that petitioner’s medical
records contained conflicting evidence regarding the onset of his symptoms, some of
which supported petitioner’s contention as to onset. However, despite that possible
temporality, none of petitioner’s treating physicians had opined that petitioner’s
condition was caused by his vaccinations, including within medical records generated
after petitioner had commenced treatment on the basis that he was suffering an
autoimmune condition. (Id. at 7.) (Of note, nothing in the record had indicated what
would constitute a medically appropriate temporal relationship under the relevant
standard for assessing causation-in-fact, so the significance of the onset urged by
petitioner was not self-evident.)
It was further noted that petitioner’s own filings confirmed that petitioner had
consulted an expert who could not causally relate the facts of the case to vaccination
based on the relevant literature. (Id. at 8.) The decision acknowledged that reasonable
basis may dissipate as a case progresses as petitioner had seemingly suggested, but
explained that because petitioner’s counsel had not explained why the expert could not
opine, there was no evidence in the record to assess petitioner’s assertion. The
decision explained that “[i]n fact, petitioner’s counsel has not disclosed what facts
prevented petitioner’s expert from opining and nothing in any of petitioner’s filings
suggests that the critical facts were unknown at the time the petition was filed.” (Id.)
Turning to petitioner’s reference to prior settlements, the decision indicated that it
is possible for a history of settlement to have some significance; however, “the fact that
other cases involving the same injury have previously settled cannot suffice to
demonstrate more than a mere scintilla of evidence of causation where the specific
facts of this case have evidently been fatal to any proposed medical opinion supporting
causation.” (Id. at 9.) It was noted, for example, that Guillain-Barre syndrome (“GBS”)
is commonly compensated in this program, but that does not mean that every GBS
allegation has a reasonable basis on its facts.
The decision concluded by noting that “[b]ased on all of the above, there is not
more than a mere scintilla of evidence supporting vaccine causation on this record.” (Id.
at 9.)
III. Party Contentions
Petitioner’s arguments in favor of reconsideration can be divided into two
categories: First, petitioner advances arguments regarding policies and procedures that
4
favor awards of attorneys’ fees and costs. These arguments seek to suggest that
reconsideration would be in the interest of justice broadly. Second, petitioner raises
arguments disputing specific aspects of the analysis contained in the decision denying
attorneys’ fees and costs. These arguments contend there are errors of law or mistakes
of fact to be corrected.
Regarding the first category, petitioner charges that:
• “Petitioners’ attorneys’ sole source of fees is an award through the
National Vaccine Injury Compensation Program” (ECF No. 34, pp. 3-4);
and
• “Special Master Horner[‘s] decision denying Petitioner’s Attorneys’ Fees
and Costs is chilling and against the purpose of the Vaccine Injury
Compensation Program.” (Id. at 20-23.)
Regarding the second category, petitioner contends that under a totality of the
circumstances test an award of attorneys’ fees and costs should be viewed as
appropriate. (Id. at 4-9.) Specifically, petitioner charges that:
• “Special Master Horner erroneously found it controlling that none of Mr.
Jafary’s medical providers associated his injury with his vaccinations” (Id.
at 9); and
• “There is objective circumstantial evidence that Petitioner’s necrotizing
myopathy began within six weeks of vaccination” (Id. at 9-11); and
• “Special Master Horner failed to appropriately consider Mr. Jafary’s
affidavit testimony about his health and onset of fatigue, which the
contemporaneous medical records corroborate” (Id. at 11-15); and
• “Petitioner’s counsel is not required to detail all the reasons why his expert
could not render a supportive expert opinion” (Id. at 15-18); and
• “Petitioner’s counsel had previously filed and successfully settled a
vaccine-caused necrotizing myopathy case.” (Id. at 18-19.)
Accompanying petitioner’s motion is a letter by Dr. Gershwin, an immunologist
and rheumatologist. (ECF No. 33-1; Ex. 16.) In the letter, Dr. Gershwin indicates that
necrotizing myopathy is an immune mediated condition and that the relevant
mechanisms of action allow for an inference of vaccine causation for up to six weeks
post-vaccination. (Id.) In this case, however, Dr. Gershwin indicates that the updated
medical records from February of 2021 were “helpful” in documenting a mixed
connective tissue disorder and scleroderma in addition to necrotizing myopathy. (Id. at
1.) Dr. Gershwin concluded that he could not distinguish necrotizing myopathy as a
standalone condition. (Id. at 1-2.) He indicated that he was willing to offer a report
5
addressing general causation of necrotizing myopathy, but could not write a supportive
report for the case due to the “excessively complicated” diagnostic issue that is present.
(Id. at 2.) Dr. Gershwin added that “I would not have expected you [referring to
petitioner’s counsel] to have spotted these complex medical issues in your investigation
of this case.” (Id.)
In response, respondent contends that petitioner has not demonstrated that
reconsideration is in the interest of justice. (ECF No. 40, p. 3.) Respondent stresses
that petitioner was put on notice regarding the reasonable basis issue in this case by
respondent’s response to the motion for fees and costs. Yet, petitioner filed no reply.
To the extent petitioner believes Dr. Gershwin’s letter supported reasonable basis, it
should have been filed as part of petitioner’s case in chief. (Id. (citing Goodgame v.
Sec’y of Health & Human Servs., 157 Fed Cl. 62 (2021)).) In any event, respondent
contends that Dr. Gershwin’s letter (which confirms he was unable to opine in this case)
actually undermines rather than supports petitioner’s assertion of a reasonable basis.
(Id. at 4.) Respondent notes that when counsel files a case without investigating the
underlying science and medicine, counsel runs the risk of being unable to establish a
reasonable basis for the filing of the petition. (Id.)
Respondent also contends that denying the motion for reconsideration would
result in no manifest injustice. (Id. at 5.) Respondent suggests that “[p]etitioner’s
motion demonstrates that he is seeking reconsideration simply because he disagrees
with the Special Master’s discretionary denial of attorneys’ fees and costs in this
case . . . . However, petitioner has not identified any evidence in the record that the
Special Master failed to consider that would result in a determination that he had a
reasonable basis for filing his claim.” (Id.) Additionally, respondent disputes the specific
contentions petitioner has raised with respect to the analysis contained in the decision,
suggesting petitioner has misapprehended the analysis, and further contends that the
decision applied the correct legal standard for assessing reasonable basis. (Id. at 5-
13.) Respondent also notes that petitioner cites the same controlling caselaw that is
discussed in the decision, but merely “argues for a different application of the law to the
facts of this case in order to achieve a different, more favorable result.” (Id. at 8.)
Petitioner filed no reply.
IV. Petitioner Has Not Demonstrated Any Basis for Reconsideration
a. The interests of justice do not favor reconsideration
Petitioner is correct that the purpose of the unusually generous fee shifting
regime included in the Vaccine Act is to ensure that petitioners with difficult cases have
access to counsel. Petitioner is unpersuasive, however, in contending that the decision
reached in this case is contrary to that purpose or would have any chilling effect on
future cases. While petitioner stresses broader policy considerations, he ignores the
specific procedural history of this case. The key issue here is petitioner’s failure to
meaningfully participate in the motion practice leading to the complained of decision.
6
As part of his motion for attorneys’ fees and costs, petitioner’s counsel stressed
his extensive prior experience in this program. (ECF No. 29, p. 5 (noting counsel has
handled 125 prior vaccine cases).) Moreover, his motion demonstrates at least broadly
his familiarity with the standards for awarding attorneys’ fees and his awareness of the
concept of reasonable basis specifically. Accordingly, petitioner’s counsel knows, or
surely should have known, that petitioner bore the burden of demonstrating a
reasonable basis as a threshold issue, a point that involves an objective inquiry based
on the record evidence and is unrelated to counsel’s conduct. Despite this, petitioner’s
discussion of reasonable basis within his motion for attorneys’ fees and costs was
limited to the following conclusory passage relating primarily to counsel’s own conduct:
. . . Mr. Carney retained an expert rheumatologist/immunologist to review
the file and analyze whether the flu and/or Tdap vaccines could have and
did cause Petitioner’s necrotizing myopathy. Therefore, Petitioner’s
counsel and his expert were required to expend resources on analyzing the
injury in relation to Petitioner’s medical history. Petitioner’s counsel and his
expert attempted to support this case, however, were unable to do so.
Once the medical literature was reviewed in detail by Petitioner’s
counsel in July 2021 and after a phone call with Petitioner’s expert in late
July, Petitioner’s counsel came to the conclusion that this case could no
longer be supported through an expert report . . . . At no time did
Petitioner’s counsel advance this case beyond what would be considered
reasonable basis . . . .
(ECF No. 29, p. 8.)
Even if petitioner’s initial conclusory treatment of the reasonable basis question
could be excused by the fact that reasonable basis was not specifically raised as an
issue prior to dismissal, respondent filed a response subsequent to this assertion that
included a detailed argument as to why respondent contends this case lacked a
reasonable basis. (ECF No. 31, pp. 4-10.) Petitioner filed no reply responding to that
argument. In fact, the decision denying an award of attorneys’ fees and costs scrubbed
the docket of this case to confirm whether any representations by petitioner in prior
filings could possibly be responsive to respondent’s argument just to be able to discuss
intelligibly petitioner’s implicit position that reasonable basis did exist for the filing of the
petition. (ECF No. 32, pp. 3-4 (drawing upon petitioner’s motion to dismiss and petition
for relevant representations).)
Policies favoring awards of attorneys’ fees and costs are predicated on
petitioners and their counsel availing themselves of the process for determining what, if
any, attorneys’ fees and costs were reasonably incurred. Given the procedural history
at issue in this case, it is highly unlikely other counsel will draw the chilling lesson
petitioner fears even if they disagree with the ultimate conclusion reached. Moreover,
petitioner has not even acknowledged his failure to reply and present his arguments
7
while the motion was initially pending, let alone attempt to establish any basis for
excusing this neglect. Motions for reconsideration are not intended to be used as a
mere mulligan.
Petitioner had a full and fair opportunity to address reasonable basis in the first
instance and counsel’s actions in this case (presenting substantive arguments for the
first time upon reconsideration) are particularly frustrating to judicial economy.
Petitioner’s failure to support his motion in the first instance is not the type of
extraordinary circumstance that warrants reconsideration. Rather, the instant motion is
the very exemplar of an “unhappy litigant [seeking] an additional chance to sway the
court.” Prati, 82 Fed. Cl. at 376.
b. Petitioner has not demonstrated any error of law or mistake of fact
Even if the circumstances were more favorable to reconsideration procedurally,
petitioner also has not identified any error in the undersigned’s discussion of the legal
standard for assessing reasonable basis. Petitioner urges application of the Federal
Circuit holdings in James-Cornelius and Cottingham and further stresses that
reasonable basis should be based on the totality of the circumstances. (ECF No. 34, p.
8 (citing Cottingham v. Sec’y of Health & Human Servs., 971 F.3d 1337 (Fed. Cir. 2020)
and James-Cornelius v. Sec’y of Health & Human Servs., 984 F.3d 1374 (Fed. Cir.
2021)).) Petitioner argues that “reasonable basis looks not to the likelihood of success,
but more to the feasibility of the claim” and is established with “more than a mere
scintilla of evidence.” (Id. at 4, 7.) However, this is precisely the legal standard
articulated by the decision at issue. (ECF No. 32, p. 5.)
Nonetheless, petitioner argues that the fee decision failed to apply the totality of
the circumstances test for reasonable basis because the decision “found it controlling”
that none of petitioner’s medical providers associated his injuries with his vaccination.
(ECF No. 34, p. 9.) Petitioner quotes the Federal Circuit holding in James-Cornelius for
the proposition that the “absence of an express medical opinion on causation is not
necessarily dispositive of whether a claim has a reasonable basis.” (Id. (quoting 984
F.3d at 1379).) Unacknowledged by petitioner, however, is the fact that the complained
of analysis incorporates this exact quotation. (ECF No. 32, p. 6.) Contrary to
petitioner’s bare assertion, nothing in the analysis treats the lack of either treating
physician or expert opinions as singularly dispositive. However, as petitioner notes in
his motion for reconsideration, the totality of the circumstances test does include
consideration of the factual and medical support for the petition. (ECF No. 34, p. 6
(quoting Chuisano v. United States, 116 Fed Cl. 276, 288 (2014)).) Here, that medical
support was entirely absent vis-à-vis any causal link to vaccination, which is what is
explained in the decision.
In the motion for reconsideration, petitioner correctly cites the Federal Circuit in
Cottingham for the proposition that medical records may provide “circumstantial
evidence of causation” (ECF No. 34, p. 9 (emphasis added) (quoting 971 F.3d at
1346)), but when turning to the facts of this case attempts to shift his burden by
8
suggesting that the records need only supply circumstantial evidence that petitioner was
even suffering the condition at issue. Specifically, he argues that reasonable basis
existed because “[t]here is objective circumstantial evidence in the medical records that
Mr. Jafary’s necrotizing myopathy symptoms of fatigue and weakness began within six
weeks of vaccination.” (Id.) According to petitioner this constitutes “circumstantial
evidence of a colorable vaccine injury claim.” (Id. at 10.) However, petitioner is not
correct to equate the type of circumstantial evidence available in either Cottingham or
James-Cornelius to the mere presence of symptoms following vaccination. For
example, the decision denying attorneys’ fees and costs explained that the medical
records in James-Cornelius included a notation by a physician questioning whether
there was vaccine-causation as well as evidence of challenge-rechallenge. The record
evidence in James-Cornelius also included medical articles addressing vaccine-
causation and a vaccine package insert that could be cross-referenced to the
petitioner’s symptoms as reflected in the medical records. (ECF No. 32, n.4 (discussing
984 F.3d at 1380).) In Cottingham, the Federal Circuit likewise explained that the
symptoms reflected in her medical records could be cross referenced against adverse
reactions documented in the vaccine package insert. 971 F.3d at 1346-47. Thus, both
Cottingham and James-Cornelius had evidence to suggest causality that went beyond
mere temporality of symptoms. Prior to the belated filing of Dr. Gershwin’s letter, the
record of this case contained nothing remotely comparable to any of this.
The remainder of petitioner’s argument is largely devoted to reasons why
petitioner believes his preferred evidence of onset (and thereby evidence of a temporal
relationship between petitioner’s vaccination and his alleged necrotizing myopathy) was
not fully credited.4 (ECF No. 34, pp. 9-15.) However, this misreads the decision. The
decision does indicate that “there is conflicting evidence in the medical records
regarding onset of the relevant symptoms” (ECF No. 32, p. 6-7), but petitioner fails to
appreciate that he was given the benefit of temporal proximity being credited arguendo
in the final analysis. Specifically, the decision concluded in relevant part: “In sum,
petitioner has offered medical records with some conflicting evidence suggestive of a
possible temporal relationship between onset of his symptoms and vaccinations.
However, no medical opinion is available within the medical records to endorse any
causal significance to that purported temporal relationship based on the available facts.”
(ECF No. 32, p. 9 (emphasis in original).)
Petitioner stresses language from the Fourth Circuit acknowledging that the
relevant standard is “easy to recite, but harder to apply.” (ECF No. 34, p. 7 (citing
Sedar v. Reston Town Ctr. Prop., 988 F.3d 756, 761, n.3 (4th Cir. 2021) (citations
omitted))). And, indeed, the decision at issue is discretionary and fact intensive. The
substantive arguments belatedly included in petitioner’s motion for reconsideration
4
One additional point warrants explanation. Petitioner suggests that discussion in the decision regarding
Raynaud’s phenomenon implies a misunderstanding of the condition at issue because Raynaud’s
phenomenon is not a symptom of necrotizing myopathy. (ECF No. 34, pp. 10-11.) Petitioner cites a
website from the Myositis Foundation to demonstrate that Raynaud’s phenomenon is not specifically
listed as a symptom of necrotizing myopathy. (Id. at 9-10.) However, Raynaud’s was specifically
included by Dr. Mecoli as part of petitioner’s own diagnosis of necrotizing myositis with scleroderma
features. (Ex. 6, p. 8.)
9
could conceivably have allowed for a more detailed discussion of reasonable basis if
they had been presented prior to issuance of the decision. As it stands, however,
petitioner is not persuasive in suggesting that any error of law or mistake of fact justifies
the relief of reconsideration.
c. Dr. Gershwin’s letter is not ultimately helpful
Finally, petitioner’s belated filing of a letter by Dr. Gershwin does not change the
calculus. The Court of Federal Claims has held that evidence not submitted during the
merits phase of litigation can be properly excluded from consideration of whether a
reasonable basis exists to support attorneys’ fees and costs. Goodgame v. Sec’y of
Health & Human Servs., 157 Fed. Cl. 62 (2021); see also Contreras v. Sec’y of Health &
Human Servs., No. 19-491V, 2022 WL 2302208 (Fed. Cl. Spec. Mstr. May 31, 2022).
Moreover, in the reconsideration context consideration of additional evidence is limited
to evidence that was not previously available. See, e.g., Cozart v. Sec’y of Health &
Human Servs., No. 00-590V, 2015 WL 6746499, at *4 (Fed. Cl. Spec. Mstr. Oct. 15,
2015) (“The additional evidence that petitioners presented is not new evidence; rather, it
is an article that was available to petitioners at the time this case went to hearing. The
argument that petitioners did not deem this article relevant until the undersigned issued
her decision is not proper grounds for reconsideration of the undersigned's decision.”).
In all events, Vaccine Rule 8(b)(1) requires that that all evidence be considered in
“fundamental fairness to both parties” (emphasis added).
Given that Dr. Gershwin’s letter is dated July 17, 2021, petitioner clearly had the
wherewithal to introduce the letter into evidence during the merits phase or, at the very
least, in connection with his original attorneys’ fees motion and/or any reply. Contrary to
petitioner’s implicit protest, it is not unusual for petitioners to provide such letters to
support reasonable basis. See, e.g., Middleton v. Sec’y of Health & Human Servs., No.
17-1910V, 2020 WL 6266699 (Fed. Cl. Spec. Mstr. Jan. 6, 2020) (finding reasonable
basis where petitioner filed, inter alia, a letter from an expert documenting her
interactions with the expert prior to filing the petition), mot. rev. denied 149 Fed. Cl. 211
(2020); Weggen v. Sec’y of Health & Human Servs., No. 15-1338V, 2016 WL 6576568,
at *6-7 (Fed. Cl. Spec. Mstr. Oct. 13, 2016) (finding that petitioner’s email exchange with
an expert who provided the possible theory that petitioner’s vaccination “could have
been responsible” for the later injury was sufficient in meeting the feasibility standard for
reasonable basis); Bates v. Sec’y of Health & Human Servs., No. 13-154V, 2016 WL
6634924, at *7, 13 (considering a treating physician’s handwritten response to a letter
petitioner’s counsel stating that he referred petitioner to a neurologist “who specializes
in vaccine related problems” to determine whether petitioner had reasonable basis).
This case is particularly unsympathetic given that counsel obtained this letter
prior to dismissing the case and then subsequently sought to affirmatively, but rather
cryptically, rely on his underlying interaction with Dr. Gershwin to support his reasonable
basis contention without filing the resulting letter. In fact, Dr. Gershwin’s letter itself put
petitioner on notice regarding the complexity of the medical issues. In the letter, Dr.
Gershwin stated, “Given my nearly 50 year experience in autoimmunity, I would not
10
have expected you to have spotted these complex medical issues in your investigation
of this case.” (Ex. 16, p. 2.) Thus, based on his interaction with Dr. Gershwin,
petitioner’s counsel clearly understood prior to applying for attorneys’ fees and costs
that there was a complicated medical issue in play that would require more than a bare
assertion that reasonable basis existed.
Petitioner charges that the decision denying fees and costs impermissibly
required petitioner to detail conversations between attorney and expert and “provide[d]
no legal support for holding that Petitioner is required to detail the reasons that his
expert could not supply a supportive opinion to meeting [sic] the burden of proof.” (ECF
No. 34, p. 15.) However, the decision included no such holding. The passage
petitioner objects to was occasioned by petitioner’s specific assertion in his motion to
dismiss and in his motion for attorneys’ fees and costs that a discussion between
counsel and Dr. Gershwin represented the point at which reasonable basis dissipated.
The decision did not require further detail regarding those discussions. Rather, the
decision explained why, given the complete paucity of supporting argumentation or
evidence, mere reference to those discussions did not provide evidence that reasonable
basis had existed in the first place. Dr. Gershwin’s letter, even if considered, would not
on balance remedy that issue.
Dr. Gershwin’s letter potentially aids petitioner on the reasonable basis inquiry in
two ways. First, he expresses a willingness to opine regarding general causation and
explains that the medically acceptable timeframe to infer vaccine-causation of
necrotizing myopathy is up to six weeks post-vaccination. (Ex. 16, p. 1.) Coupled with
the medical record evidence suggesting that onset of certain symptoms was in that
timeframe, this could arguably support a finding that petitioner had more than a mere
scintilla of evidence to support vaccine causation. Second, Dr. Gershwin suggests that
it was following review of medical records generated in February of 2021 that he
ultimately concluded he would not opine in this case. (Id.) Because this case was
initially filed on August 7, 2020, that representation could have bearing on petitioner’s
assertion that the petition did initially have a reasonable basis that later dissipated.
However, although the letter is potentially helpful in some respects, respondent is
correct to note that it does not fully support petitioner’s contentions. In fact, it reveals
significant points to be in tension, complicating rather than resolving the questions at
issue. Thus, even if I were inclined to consider it, Dr. Gershwin’s letter would not
necessarily alter the outcome.
Petitioner argues that onset of necrotizing myopathy (evidenced by fatigue and
muscle weakness) within six weeks of vaccination supports a reasonable basis for a
claim of vaccine-caused necrotizing myopathy. (ECF No. 34, pp. 2-3.) Dr. Gershwin’s
letter represents the first submission of any evidence to support that assertion. (Ex. 16.)
However, this new evidence simultaneously suggests that petitioner may actually never
have had necrotizing myopathy as a standalone condition. (Id.) Given that fatigue and
muscle weakness are not specific to necrotizing myopathy, this raises entirely new
reasons to question whether the onset of symptoms described in the medical records
actually evidence the causal link that petitioner has urged. That is, while Dr. Gershwin’s
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letter supports the causal significance of a six-week latency to symptom onset for
necrotizing myopathy, his letter also dramatically undercuts any claim that his own
symptoms can be parsed diagnostically in the way petitioner had hoped.
In that same vein, Dr. Gershwin’s letter also complicates petitioner’s claim that
reasonable basis dissipated post-petition. The letter does bolster petitioner’s argument
to the extent Dr. Gershwin specifically cited to records generated in February of 2021 as
“helpful” to his ultimate decision not to opine. (Ex. 16, p. 1.) He also confirms, however,
that the specific issue preventing him from opining is that petitioner has overlap
syndromes of mixed connective tissue disease and scleroderma. (Id.) The decision
denying attorneys’ fees and costs explained that the medical records documented
petitioner as having both mixed connective tissue disease and scleroderma as early as
December of 2018. (ECF No. 32, p. 7 (citing Ex. 5, p. 189).) In fact, the decision notes
that Dr. Mecoli expressed in July of 2019 that petitioner did not fit neatly into available
diagnostic criteria and more likely had an overlap syndrome. (Id. (citing Ex. 6, p. 8).)
Specifically, Dr. Mecoli opined that “an overlap construct fits best.” (Ex. 6, p. 8.) These
were among the records initially filed with the petition. Accordingly, even taking Dr.
Gershwin’s letter into account, it remains far from clear that the ultimate timing of
counsel’s and Dr. Gershwin’s conclusion was dictated by the collection of the updated
medical records.5 As noted in the decision denying fees and costs, “counsel’s
subjective realization that the case cannot move forward is not the relevant factor” in
determining whether a case has lost its reasonable basis. (ECF No. 32, p. 8 (citing
Simmons v. Sec’y of Health & Human Servs., 875 F.3d 632, 636 (Fed. Cir. 2017)).)
Further to this, Dr. Gershwin’s letter calls into question counsel’s reliance on his
own prior experience as supporting reasonable basis for the initial filing of this case.
Specifically, in both the motion to dismiss and in his motion for reconsideration,
petitioner cites to counsel’s prior case of Marra v. Sec’y of Health & Human Servs., 15-
261V, which is a necrotizing myopathy case that resolved via settlement in 2018. (ECF
No. 24, p. 4; ECF No. 34, p. 19.) Petitioner suggests that “HHS is certainly not in the
habit or practice of settling by stipulation meritless injuries that do not have some
medical record support.” (ECF No. 34, n. 2.) Marra, as well as the other prior
necrotizing myopathy cases that have settled, involved the flu vaccine, a point noted in
the decision denying attorneys’ fees and costs. (ECF No. 32, p. 8.) However, Dr.
Gershwin’s letter confirms, based on his explanation as to the parameters of general
causation (i.e. that the mechanisms of action typically invoked involve a latency of up to
six weeks), that any potential causal opinion for this case would have encompassed
only petitioner’s January 2018 Tdap vaccination and not his earlier December 2017 flu
vaccination given petitioner’s alleged mid-February 2018 onset. (Ex. 16.) Evidence
relating a specific vaccination to an injury is not necessarily broadly applicable. Thus,
the factors that led to resolution of Marra and other prior settlements involving the flu
5
Dr. Gershwin’s invoice reflects that he reviewed all of the medical records at one time, including the later
filed records, on July 8, 9, and 10, 2021. (ECF No. 29, p. 45.) Petitioner’s motion for fees and costs also
characterized counsel’s own detailed review of medical literature, which he notes did not occur until July
of 2021, as ultimately informing the decision to dismiss. (ECF No. 29, p. 8.) However, that literature has
never been filed and counsel did not explain why he waited until July of 2021 to conduct any review of
literature.
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vaccine are further attenuated from the reality of this case than what is already
discussed in the decision denying attorneys’ fees and costs. In this case, Dr.
Gershwin’s expressed willingness to opine on general causation references
vaccinations generically but does not explicitly invoke the Tdap vaccine or offer any
indication of how the Tdap vaccine specifically could be causally implicated. (Ex. 16., p.
2.) Obviously, petitioner’s counsel would have been aware of this important distinction
at the time he filed this petition.
In sum, the procedural posture of this case counsels against accepting Dr.
Gershwin’s letter into evidence. Moreover, based on the substance of the letter, its
exclusion is not likely to be prejudicial. On the whole, and especially given the
procedural posture of this case, Dr. Gershwin’s letter does not support reconsideration
and should also not be belatedly accepted as evidence supporting petitioner’s request
for attorneys’ fees and costs.
V. Conclusion
In light of all of the above, petitioner’s motion is DENIED. Because the decision
at issue was withdrawn for purposes of considering petitioner’s arguments in favor of
reconsideration, the original, now withdrawn, February 24, 2022 decision denying
attorneys’ fees and costs will be reissued as a superseding decision pursuant to
Vaccine Rule 10(e).
IT IS SO ORDERED.
s/Daniel T. Horner
Daniel T. Horner
Special Master
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