Sheller v. Secretary of Health and Human Services ( 2023 )

In the United States Court of Federal Claims
No. 18-696V
(Filed: February 6, 2023)
(Reissued: March 1, 2023)
FOR PUBLICATION
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CHAD SHELLER, *
as personal representative of the *
estate of DANIEL ELIAS SHELLER, *
*
Petitioner, *
*
v. *
*
SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
*
Respondent. *
*
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Jennifer Anne Gore Maglio, Maglio Christopher & Toale, Sarasota, FL, for
Petitioner. With her on briefs was Anne Carrion Toale, Maglio Christopher & Toale,
Sarasota, FL.
Rachelle P. Bishop, Trial Attorney, Torts Branch, Civil Division, United States
Department of Justice, Washington, D.C., for Respondent. With her on briefs were
Brian M. Boynton, Principal Deputy Assistant Attorney General, C. Salvatore
D’Alessio, Director, Heather L. Pearlman, Deputy Director, and Christine Mary Becer,
Vaccine/Torts Branch, Civil Division.
OPINION AND ORDER
Petitioner Chad Sheller (“Petitioner”) voluntarily dismissed his vaccine
compensation claim and requested attorney’s fees. The Special Master denied fees,
see Decision on Attorneys’ Fees & Costs (“Decision”) (ECF 63), and Petitioner moved
for review.1 The Motion for Review is DENIED.

This Opinion and Order was issued under seal on February 6, 2023. The parties were directed to
propose redactions by February 21, 2023. No proposed redactions were submitted. The Court hereby
releases publicly the Opinion and Order of February 6 in full.
1 See Pet.’s Mot. for Review of Decision (“Mot.”) (ECF 67); Pet.’s Mem. in Supp. of Mot. to Review
(“Mem.”) (ECF 67-1). The government opposes the motion. See U.S. Resp. to Mot. for Review (“Resp.”)
(ECF 70).
BACKGROUND
Petitioner’s son Daniel died at the age of two months. See Pet.’s Medical
Records Ex. 2 at 2 (ECF 8-3). Neither the initial medical examination nor an autopsy
determined a cause of death, although the autopsy did find focal petechiae and
congestion in Daniel’s lungs. See id. at 4; Pet.’s Medical Records Ex. 3 at 21 (ECF 8-
4). In his short life, Daniel received several vaccinations. See Pet.’s Medical Records
Ex. 1 at 2 (ECF 8-2); Ex. 2 at 64. Petitioner sought relief under the National
Childhood Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 to 34
(“Vaccine Act”).
Petitioner originally intended to base his theory of causation — an element of
Vaccine Act claims, 42 U.S.C. §§ 300aa-13(a)(1), 300aa-11(c)(1)(C)(ii)(I) — on the
“Triple Risk Model” of vaccine-triggered sudden infant death syndrome (“SIDS”)
proposed by Dr. Douglas C. Miller. Pet.’s Additional Documentation Ex. 20 (ECF 52-
2). That theory suggests, in essence, that a vaccine can be an “exogenous stressor”
that triggers SIDS in otherwise-vulnerable infants. Mem. at 11. But while the case
was pending before the Special Master, the Federal Circuit held that Dr. Miller’s
application of the Triple Risk Model in a vaccine case was “an unsound and unreliable
theory.” Boatmon v. Sec’y of Health & Hum. Servs., 941 F.3d 1351, 1361 (Fed. Cir.
2019). In light of that decision, Petitioner voluntarily dismissed his claim. Pet.’s Mot.
for Dismissal Decision (ECF 33).
Petitioner then sought an award of attorneys’ fees. Pet.’s Mot. for Attorneys’
Fees (ECF 38). After the government initially responded that it was “satisfied the
statutory requirements for an award of attorneys’ fees and costs are met in this case,”
U.S. Resp. to Mot. for Attorneys’ Fees at 2 (ECF 39), the Special Master twice ordered
the parties to answer questions about Petitioner’s reasonable basis and requested
that the government provide a more detailed response to the fees motion, including a
firmer position on whether Petitioner had a reasonable basis. July 28, 2020 Order
(ECF 41); Aug. 23, 2021 Order (ECF 48). In responding to the Special Master’s
questions, the government changed course — first deferring to the Special Master on
fees, U.S. Resp. to Order (ECF 45), then opposing Petitioner’s request for the first
time, U.S. Resp. to Mem. (ECF 54). The Special Master heard oral argument on the
matter, see Tr. (ECF 59), and denied Petitioner’s request for fees. See Decision at 1.
Petitioner moved for review, arguing that the Special Master violated
fundamental fairness, applied the wrong standard of proof, and ignored or
misinterpreted relevant evidence. See Mem. at 4–6, 17–18.
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DISCUSSION
I. Legal Standards
Petitioners who have been denied compensation under the Vaccine Act may
nonetheless be eligible for an award of attorneys’ fees and costs. 42 U.S.C. § 300aa-
15(e)(1).2 A petitioner is eligible for fees if “the petition was brought in good faith and
there was a reasonable basis for the claim.” Id. “Good faith” and “reasonable basis”
are separate elements. See Simmons v. Sec’y of Health & Hum. Servs., 875 F.3d 632,
635 (Fed. Cir. 2017). The government does not challenge Petitioner’s good faith, only
the reasonableness of his basis for the petition.
In order to establish a reasonable basis, a petitioner must meet an evidentiary
burden “‘lower than the preponderant evidence standard required to prove
entitlement to compensation,’ but ‘more than a mere scintilla.’” James-Cornelius on
Behalf of E. J. v. Sec’y of Health & Hum. Servs., 984 F.3d 1374, 1379 (Fed. Cir. 2021)
(quoting Cottingham on Behalf of K.C. v. Sec’y of Health & Hum. Servs., 971 F.3d
1337, 1346 (Fed. Cir. 2020)). The petitioner must have had a reasonable basis at the
time the petition was filed. Cottingham, 971 F.3d at 1344.
In reviewing a Special Master’s decision, “[f]act findings are reviewed ... under
the arbitrary and capricious standard; legal questions under the ‘not in accordance
with law’ standard; and discretionary rulings under the abuse of discretion standard.”
Munn v. Sec’y of Dep’t of Health & Hum. Servs., 970 F.2d 863, 870 n.10 (Fed. Cir.
1992). Even when a petitioner satisfies the good faith and reasonable basis standards,
“a special master retains discretion to grant or deny attorneys’ fees.” James-
Cornelius, 984 F.3d at 1379 (citing 42 U.S.C. § 300aa-15(e)(1)).
II. The Special Master Did Not Violate Fundamental Fairness
Petitioner argues that the Special Master violated fundamental fairness when he
ordered the government to answer questions after it initially declined to oppose
attorney’s fees. Mem. at 18–20; Resp. at 2. Special masters are bound by an obligation
to be fair to both parties, and to provide both parties the opportunity to present a
case. See RCFC App. B, Rule 8(b)(1) (“In receiving evidence, the special master …
must consider all relevant and reliable evidence governed by principles of
2Counsel in vaccine cases are prohibited from charging fees in addition to any award of fees and costs.
42 U.S.C. § 300aa-15(e)(3). Statutory awards of attorneys’ fees thus go solely to counsel, not to
reimburse their clients for any hourly rate or contingency fee. Cases nonetheless typically refer to
motions by, and awards to, Vaccine Act petitioners, even when the petitioner has received no award
and has nothing to gain from an attorneys’ fee decision. See, e.g., Chuisano v. United States, 116 Fed.
Cl. 276 (2014); Simmons v. Sec’y of Health & Hum. Servs., 128 Fed. Cl. 579 (2016); R.K. v. Sec’y of
Health & Hum. Servs., 760 F. App’x 1010 (Fed. Cir. 2019).
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fundamental fairness to both parties.”); id. Rule 3(b)(2) (“The special master is
responsible for … affording each party a full and fair opportunity to present its
case[.]”); see also Dickerson v. Sec’y of Dep’t of Health & Hum. Servs., 35 Fed. Cl. 593,
598 (1996) (“[T]he Court of Federal Claims has promulgated rules of procedure for
use by special masters governed by the principles of fundamental fairness to both
parties.”). Because special masters have a statutory duty to independently determine
whether a fee award is warranted, together with inquisitorial powers that allow them
to perform that duty, the Special Master did not violate fundamental fairness by
requiring additional information from the government.
This Court has repeatedly held that “[t]he Vaccine Act compels each special
master to determine independently whether a particular [fee] request is reasonable.”
E.g., Savin ex rel. Savin v. Sec’y of Health & Hum. Servs., 85 Fed. Cl. 313, 318 (2008).
The government cannot waive a special master’s obligation by failing to oppose a fee
application. Dominguez v. Sec’y of Health & Hum. Servs., 136 Fed. Cl. 779, 781, 783–
85 (2018); Carrington ex rel. Carrington v. Sec’y of Dep’t of Health & Hum. Servs., No.
99-495V, 2008 WL 2683632, at *3 (Fed. Cl. June 18, 2008). Nor is a special master
“limited to the objections raised by respondent” when evaluating a fee request. Guy
v. Sec’y of Health & Hum. Servs., 38 Fed. Cl. 403, 406 (1997). As the Federal Circuit
has noted, “the statute leaves it to the special master’s discretion to find what
constitutes reasonable fees.” Hall v. Sec’y of Health & Hum. Servs., 640 F.3d 1351,
1356 (Fed. Cir. 2011). The government, in short, cannot bind the Special Master, and
the government’s nonopposition or consent to a fee application therefore does not
diminish the special master’s duty to determine whether the statutory criteria for
fees are met.
If the special master’s statutory duty to evaluate a fee application is
independent of the government’s position on the application, it follows that his
procedural powers — i.e., lesser included powers that allow him to carry his statutory
obligations, see 42 U.S.C. § 300aa-12; RCFC App. B, Rule 8 — are independent as
well. Special masters perform inquisitorial roles, and so have always been afforded
power to ask the parties to answer questions or clarify their positions, including as to
fee applications. Harding v. Sec’y of Dep’t of Heath & Hum. Servs., 146 Fed. Cl. 381,
392 (2019); see also Masias v. Sec’y of Health & Hum. Servs., 634 F.3d 1283, 1292
n.10 (Fed. Cir. 2011) (finding no error in special master’s “inquisitorial” method of
adjudication and asking parties for additional input); Snyder ex rel. Snyder v. Sec’y of
Health & Hum. Servs., 88 Fed. Cl. 706, 714 (2009); Soto Galvan v. Sec’y of Health &
Hum. Servs., 151 Fed. Cl. 789, 797 (2021). The special masters thus may exercise that
power as to a fee application no matter what position the government takes.
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Petitioner does not argue that the matters the Special Master inquired about
— including instructing the government to take a position and asking the parties how
specific cases affected their reasoning — were themselves irrelevant or otherwise
improper subjects of the Special Master’s interest. Petitioner instead objects that by
asking additional questions, the Special Master turned the fee issue into “a second
major litigation,” Mem. at 19 (quoting Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)),
and that the Special Master “subsumed” the government’s role as Petitioner’s
adversary, id. The problem with those arguments is that they fail to account for the
Special Master’s independent obligation to assess fees even when the government
consents. That independent obligation gave the Special Master discretion to require
additional litigation processes that the government did not demand. If the matters
the Special Master inquired about were appropriate, it could not have been
fundamentally unfair for the Special Master to pursue them independently. What
questions to ask was a matter for the Special Master’s discretion.
Given that the government’s position on the fee application in this case could
not have affected the Special Master’s statutory duty or the scope of his inquisitorial
powers, I therefore conclude that it was not fundamentally unfair for the Special
Master to inquire about the matters he chose to investigate.
III. The Special Master Did Not Abuse His Discretion
To qualify for fees, Petitioner must have had “a reasonable basis for the claim”
at the time he filed it. Cottingham, 971 F.3d at 1344. The Special Master concluded
that Petitioner lacked a reasonable basis, and so denied fees. Petitioner objects on
various legal and factual grounds.
A. The Special Master applied the correct legal standard.
Petitioner claims that the Special Master applied the wrong legal standard by
requiring Petitioner to “show evidence supporting reasonable basis for each prong of
the Althen test for causation.” Pet.’s Mem. at 17–18; see Althen v. Sec’y of Health &
Hum. Servs., 418 F.3d 1274 (Fed. Cir. 2005). I conclude that the Special Master did
not err.
To have had a reasonable basis for a Vaccine Act claim, a petitioner must have
had a reasonable basis to support each of the five statutorily required elements of his
petition, one of which is causation. See Cottingham, 971 F.3d at 1345–46 (citing 42
U.S.C. § 300aa-11(c)(1)). “Because causation is a necessary element of a petition, [a
petitioner] must 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.” Id. at 1346.
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What constitutes “evidence of a causal relationship”? The Federal Circuit in
Althen explained what causation means on the merits: For “non-Table” cases like this
one, where there is no presumption of causation, the elements of causation are “(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 1278.3 Where Althen applies, its elements nest within
the statutory elements of the petition as subparts of the causation requirement.
Given that both the merits and the fee application incorporate a causation
requirement, and that Althen supplies the content of the causation standard for the
merits, it makes sense to apply the same standard to fees.
Petitioner’s alternative is to evaluate causation in fee applications using a
“totality of the circumstances” test. Mem. at 18. Although the Federal Circuit in
Cottingham mentioned evaluation of the “totality of the circumstances” in vaccine fee
applications, it has neither “endorse[d] [nor] reject[ed]” that wording as a formulation
of the underlying reasonable-basis standard. See Cottingham, 971 F.3d at 1345 (citing
Simmons v. Sec’y of Health & Hum. Servs., 875 F.3d 632, 636 (Fed. Cir. 2017)). Even
when discussing this Court’s use of a totality-of-the-circumstances analysis, the
appeals court evaluates the evidence for “Objective Evidence of Reasonable Basis.”
Id. at 1345. The Federal Circuit’s main post-Cottingham discussion of Vaccine Act
fees does not even mention totality of the circumstances. James-Cornelius, 984 F.3d
1374. A totality-of-the-circumstances analysis that rests on objective, relevant
evidence “comports” with the reasonable-basis standard, Cottingham, 971 F.3d at
1344, but it should not be confused with the standard itself. Whatever circumstantial
context might be relevant to showing a reasonable basis, the statute requires
matching up the evidence to the elements of a vaccine petition. Id. at 1345–46.
Conversely, it would be peculiar if any element of Althen were necessary for
the merits but not for a fee application. Otherwise, an attorney could submit a
petition on behalf of a client whose injury predated the vaccine — even one who has
no medical theory of causation at all — lose on the merits, but still have his fees paid
if the Court thought the “totality of the circumstances” still justified an award. That
would only open the door for inconsistency and abuse.4 The solution is to require that
3 The causation test incorporates additional elements when a petitioner claims aggravation of an
existing injury. See Heller v. Sec’y of Health & Hum. Servs., No. 15-792, 2022 WL 16549430, at *19
(Fed. Cl. Oct. 31, 2022) (citing Loving ex rel. Loving v. Sec’y of Health & Hum. Servs., 86 Fed. Cl. 135,
144 (2009)).
4 But see Cottingham v. Sec’y of Health & Hum. Servs., 159 Fed. Cl. 328, 335 (2022) (endorsing a special
master’s conclusion in dicta that “a lack of evidence under Althen prong two” was “not dispositive,”
although it “cut against a finding of reasonable basis”).
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petitioners raising non-Table injuries support each element of the Althen causation
standard at both the merits and the fee application stage.
The difference between establishing causation for the merits and for a fee
application, rather, is in the burden of proof. See Cottingham, 159 Fed. Cl. at 334
(“[R]easonable basis and entitlement to compensation differ only in the level of proof
required, not in their elements.”). For the merits, a petitioner must prove each
element of causation by preponderance of the evidence. Althen, 418 F.3d at 1278. For
the fee application, the petitioner’s showing need only be reasonable: “[M]ore 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.
The Special Master in this case set out those legal principles correctly. He
stated — as the governing standards require — that his “method for assessing the
evidence will follow the structure from Althen” but that “the burden of proof is not
the same.” Decision at 13.5 He also reiterated several times that only “more than a
mere scintilla” of evidence was required to satisfy reasonable basis. See Decision at
12, 15, 18, 21. Because the Special Master correctly used Althen to structure his
analysis, stated the correct degree of evidence required, and applied that standard to
each piece of evidence he analyzed, Petitioner has not shown error in the Special
Master’s legal approach.
B. The Special Master considered all relevant evidence.
Petitioner has also argued that the Special Master misinterpreted, failed to
consider, or gave incorrect weight to Petitioner’s evidence. As noted above, it is for
the Special Master alone to weigh evidence; I may not reweigh or reevaluate it. Porter
v. Sec’y of Health & Hum. Servs., 663 F.3d 1242, 1249 (Fed. Cir. 2011) (“We do not
reweigh the factual evidence, assess whether the special master correctly evaluated
the evidence, or examine the probative value of the evidence or the credibility of the
witnesses—these are all matters within the purview of the fact finder.”). Rather, I
consider whether the Special Master’s factfinding was arbitrary and capricious, and
whether his ultimate decision to deny fees was an abuse of discretion. Bradley v. Sec’y
of Dep't of Health & Hum. Servs., 991 F.2d 1570, 1574 (Fed. Cir. 1993) (citing 42
U.S.C. § 300aa-12(e)(2)).
5 Under an alternative interpretation of the Decision, the Special Master may have meant only to
structure his causation analysis around Althen without actually requiring a reasonable basis on each
prong. But even if the Special Master was not required to consider each Althen prong, no authority
forbids him to structure the analysis as he did, and the evidence — as discussed below — is still
consistent with the Special Master’s conclusion that the petition lacked a reasonable basis.
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Vaccine Act petitioners must support their claims with medical records or
expert opinion. Petitioner accordingly supports his fee request with (1) Daniel’s
medical records, in conjunction with published medical studies and packaging inserts
for Daniel’s vaccines; and (2) communications from Dr. Omid Akbari, an
immunologist Petitioner had consulted, and Dr. Miller, the originator of the Triple
Risk Model that underlay Petitioner’s causation theory. After a full review of the
record and the Special Master’s decision, I conclude that the Special Master properly
reviewed all of the evidence and that none of his conclusions were clearly erroneous
or an abuse of discretion.
1. Medical records
Petitioner argues that medical information about Daniel’s vaccines, coupled
with Daniel’s medical records, add up to a reasonable basis that the vaccines caused
his death. He points out that the insert for one of Daniel’s vaccines mentions several
instances of SIDS during vaccine testing, Pet.’s Mot at 7 (citing Pet.’s Ex. 13 at 12),
and that studies “have found instances of SIDS deaths and afebrile seizures following
the vaccine.” Id. at 8 (citing Pet.’s Additional Documentation Ex. 21 at 8, 9, 121 (ECF
52-3); Ex. 22 at 11 (ECF 52-4)). As for another vaccine, the Special Master notes that
its package insert mentions a risk of lung infections, id. at 7 (citing Pet.’s Medical
Literature Ex. 15 at 6), as well as febrile seizures, id. at 8 (citing Pet.’s Additional
Documentation Ex. 21 at 8, 19, 34 123; Ex. 22 at 9). The Special Master reviewed that
evidence and concluded that it did not disclose a reasonable basis for the petition
under Althen prongs one and two.6
The Special Master acknowledged that “the medical records do present a
chronology in which the vaccination preceded Daniel’s demise.” Decision at 24; see
also id. at 26–27. But as the Special Master also noted, Daniel’s medical records did
not report a cause of death, let alone any of the specific adverse reactions mentioned
in the literature. Decision at 2, 24. Although Daniel’s lungs showed certain
abnormalities, there does not seem to be any evidence that they were infected. Id. at
15. Nor was there evidence that Daniel suffered from a seizure of any kind. Id. at 19–
20. Petitioner does not point to any such evidence now. Whatever risks might be
associated with Daniel’s vaccines in general, there was nothing to connect those risks
to his particular case. See Moberly ex rel. Moberly v. Sec’y of Health & Hum. Servs.,
6 The Special Master may not have been required to include several of Petitioner’s exhibits in his
analysis, as they were filed after Petitioner voluntarily dismissed his entitlement claim. See Decision
at 7–10 (citing Goodgame v. Sec’y of Health & Hum. Servs., 157 Fed. Cl. 62 (2021); Contreras v. Sec’y
of Health & Hum. Servs., No. 19-491V, 2022 WL 2302208, at *9 (Fed. Cl. Spec. Mstr. May 31, 2022)).
While the Special Master struck several articles he considered irrelevant (a decision Petitioner does
not challenge now), he opted to review other medical articles out of an abundance of caution and to
maintain fairness. Id. at 10.
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592 F.3d 1315, 1322 (Fed. Cir. 2010); Broekelschen v. Sec’y of Health & Hum. Servs.,
618 F.3d 1339, 1345 (Fed. Cir. 2010) (“[A] petitioner must provide a reputable medical
or scientific explanation that pertains specifically to the petitioner’s case[.]”).
Another problem the Special Master observed is that even if Daniel died of
SIDS, the studies Petitioner relied upon do not show that the vaccines are linked to
that condition. Rather, the SIDS rates associated with the vaccines are consistent
with population background levels. Decision at 15. Nor did other studies Petitioner
submitted show an elevated risk of infant death. Id. at 19. If there is no association
between vaccines and a given condition, there cannot be a causal relationship either.
Doles v. Sec’y of Health & Hum. Servs., 159 Fed. Cl. 241, 248 (2022) (“Although there
can be association without causation, there cannot be causation without
association.”).
In short, there was no evidence that the conditions identified in Daniel’s
records were associated with the vaccines, nor evidence that any conditions
associated with the vaccines appeared in Daniel’s records. The Special Master thus
reasonably concluded that there was nothing in the medical record creating a
reasonable basis to claim that the vaccines caused Daniel’s death.
2. Medical opinions
Petitioner presented two communications from doctors who had reviewed
Daniel’s record and related medical literature. But the Special Master determined
that neither provided a reasonable basis under Althen prongs one and two.
Dr. Akbari wrote to Petitioner that while he “cannot draw any definitive
conclusions,” his review of medical literature suggested it would be “reasonable to
conduct further inquiry including laboratory work.” Pet.’s Ex. 5 at 2 (ECF 8-6). As the
Special Master observed, Dr. Akbari “did not offer an opinion that any vaccine caused
Daniel’s death,” nor did he “present[] any theory by which vaccines can cause an
infant’s death.” Decision at 14. The Special Master acknowledged Dr. Akbari’s review
of medical literature, but discounted some of it for reasons mentioned above, and the
rest of it because it had not been placed in the record. Id. at 14–15. He therefore
considered it only weak evidence of causation that did not amount to a reasonable
basis.
That was not arbitrary and capricious or clearly erroneous. The Special Master
described Dr. Akbari’s letter accurately: It was only a call for further study that
specifically disclaimed any opinion on causation. Petitioner does not identify any
concrete factual errors in the Special Master’s discussion of Dr. Akbari’s sources, and
so the Special Master was entitled to give little weight to Dr. Akbari’s interpretation
of them. See Porter, 663 F.3d at 1249 (“We do not reweigh the factual evidence, assess
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whether the special master correctly evaluated the evidence, or examine the
probative value of the evidence or the credibility of the witnesses — these are all
matters within the purview of the fact finder.”). Most importantly, given that the
governing standard for fees required Petitioner (in the absence of medical records) to
show a reasonable basis that he could support a medical theory of causation with a
medical opinion, Althen, 418 F.3d at 1278; James-Cornelius, 984 F.3d at 1379, the
Special Master was within his authority to discount a non-opinion lacking a causal
theory.
The other communication Petitioner relies on is an email from Dr. Miller, who
said that Daniel had experienced “a classical case of SIDS.” Pet.’s Ex. 20. He offered
to “write a report based on the statitsitcs [sic] … as to what percentage of SIDS
infants’ brains will have medullary abnormalities, and how that fits with vaccine-
induced cytokines,” but said that in Daniel’s medical record “there are no sections of
medulla to prove any possible structural abnormality.” Id. Viewed in light of
Boatmon, that would appear to mean that Dr. Miller could report on the statistical
incidence of certain brain conditions in SIDS patients, and on the risks vaccines pose
to patients with those conditions, but that he would not be able to connect his opinions
to Daniel’s own medical record. 941 F.3d at 1356. His email does not opine that the
vaccine caused Daniel’s death, nor does he expressly offer to provide such an opinion,
but he did — giving Petitioner the benefit of the doubt — appear willing to opine that
Daniel’s death could be explained by the Triple Risk Model of SIDS.
As the Special Master noted, “[a]n offer to write a report differs from a report.”
Decision at 17. In addition, “[w]hile Dr. Miller might have been able to present a
theory how childhood vaccines might cause an infant’s death, Dr. Miller’s email does
not persuasively identify a basis for opining that Daniel’s death was, more likely than
not, due to a vaccination.” Id. at 25. Although the Special Master correctly
acknowledged that “absence of an express medical opinion on causation is not
necessarily dispositive of whether a claim has a reasonable basis,” id. (quoting James-
Cornelius, 984 F.3d at 1379), he reasonably concluded that Dr. Miller’s equivocal
email did not amount to a reasonable basis for causation.
Petitioner maintains that Dr. Miller would actually have provided a report,
and he observes that at the time Dr. Miller wrote his email, a similar opinion of his
had been accepted as a theory of causation by the special master in Boatmon. Mem.
at 11. Petitioner therefore argues that it would have been reasonable to rely on Dr.
Miller’s opinion here. The Special Master acknowledged that “the presence of the
special master’s ruling in Boatmon made the claim that vaccines can cause an infant’s
death feasible,” but concluded that too fell short of a reasonable basis. Decision at 21–
22. I agree.
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To begin with, even if the eventual reversal of the special master’s Boatmon
decision cannot be held against Petitioner, see Decision at 21, the principle that
“expert opinion … grounded in neither medical literature nor studies” but only in
“unsupported speculation” cannot support Vaccine Act attorneys’ fees was hardly
new. Perreira v. Sec’y of Dep’t of Health & Hum. Servs., 33 F.3d 1375, 1377 (Fed. Cir.
1994). As the Federal Circuit observed in Boatmon, Dr. Miller’s application of the
Triple Risk Model in the vaccine context was unsupported by research, or even by
other members of the medical community, 941 F.3d at 1360–61, and his application
of the theory to the SIDS death in Boatmon rested on impermissible statistical
inference, id. at 1362–63. Those flaws were readily apparent all along; Petitioner and
his counsel overlooked them at their own risk. Perreira, 33 F.3d at 1377 (“[C]ounsel’s
duty to zealously represent their client does not relieve them of their duty to the court
to avoid frivolous litigation.”). A special master’s decision is binding on no one. See
Rickett v. Sec’y of Health & Hum. Servs., 468 F. App’x 952, 959 (Fed. Cir. 2011) (“It is
well-settled that ‘[s]pecial 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.’”) (quoting Hanlon v. Sec’y of Health & Human Servs., 40 Fed. Cl. 625, 630
(1998)). It is not necessarily reasonable to rely on an erroneous decision just because
it has not been reversed yet.
Petitioner responds that this is a “pipeline case” premised on Boatmon, and
that because “this case was in the ‘pipeline’ when the triple risk model theory was
still potentially viable, … the case had a reasonable basis.” Mem. at 13. But that is
only special pleading.7 The Vaccine Act attorney’s fees provisions make no reference
to pipeline cases; neither do the Federal Circuit’s cases clarifying the standard.8 Just
as some hold that “[t]here is no such thing as political bombing or political violence,”
Speech in Belfast on March 5th, 1981, Margaret Thatcher,
https://www.margaretthatcher.org/document/104589, there is no such thing as a
pipeline case. A case is a case is a case, id., and the same reasonable-basis standard
applies across the board. A petitioner cannot justify an unreasonable causation theory
in one case with the theory’s acceptance in another case.
7 Special pleading is a logical fallacy wherein one recognizes that a “rule, principle, or law applies to
all people alike” but “wishes to make himself or herself or another an exception to it” while “no evidence
is provided for making that exception.” T. EDWARD DAMER, ATTACKING FAULTY REASONING 171 (6th
ed. 2009).
8 Petitioner’s authority, Hooker v. Secretary of Health & Human Services, No. 02-472V, 2017 WL
3033940 (Fed. Cl. Apr. 11, 2017), stands only for the unremarkable proposition that when there was a
reasonable basis for filing cases that were ultimately unsuccessful, there might also be a reasonable
basis for similar cases that were brought at about the same time and later voluntarily dismissed. Id.at *12–13.
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If there were such a thing as a “pipeline” justifying attorneys’ fees, this would
not be the right case for it. As the Special Master observed, by the time the Boatmon
special master adopted Dr. Miller’s Triple Risk Model, several other special masters
had rejected it. See Decision at 11–12 (citing Jewell v. Sec’y of Health & Hum. Servs.,
No. 11-138V, 2016 WL 5404165, at *13 (Fed. Cl. Spec. Mstr. Aug. 29, 2016);
Copenhaver v. Sec’y of Health & Hum. Servs., No. 13-1002V, 2016 WL 3456436, at
*18 (Fed. Cl. Spec. Mstr. May 31, 2016), mot. for rev. denied, 129 Fed. Cl. 176 (2016);
Lord v. Sec’y of Health & Hum. Servs., No. 12-255V, 2016 WL 806818, at *14 (Fed.
Cl. Spec. Mstr. Feb. 9, 2016); Cozart v. Sec’y of Health & Hum. Servs., No. 00-590V,
2015 WL 6746616, at *13 (Fed. Cl. Spec. Mstr. Oct. 15, 2015), mot. for rev. denied,
126 Fed. Cl. 488 (2016)). If Petitioner were right, Vaccine Act counsel could wait for
anomalous outlier decisions adopting unreasonable causation theories, file as many
claims based on those theories as they could find, and claim their fees after the
triggering decision was reversed — all without a single actual petitioner receiving
anything.
The Special Master therefore did not act arbitrarily or capriciously in declining
to find that Dr. Miller’s communications, even in light of Boatmon, created a
reasonable basis for the Petition.
CONCLUSION
For the foregoing reasons, the motion for review (ECF 67) is DENIED and the
decision of the Special Master (ECF 63) is SUSTAINED.
The Clerk is directed to enter judgment accordingly.
IT IS SO ORDERED.
s/ Stephen S. Schwartz
STEPHEN S. SCHWARTZ
Judge
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