Yorgy v. Secretary of Health and Human Services ( 2021 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1494V
Filed: November 16, 2021
PUBLISHED
HANNAH YORGY,
Special Master Horner
Petitioner,
v. Attorneys’ Fees and Costs; Denial;
Reasonable Basis; Influenza (Flu)
SECRETARY OF HEALTH AND Vaccine
HUMAN SERVICES,
Respondent.
Matthew L. Owens, Harrisburg, PA, for petitioner.
Voris E. Johnson, Jr., U.S. Department of Justice, Washington, DC, for respondent.
DECISION REGARDING ATTORNEYS’ FEES AND COSTS 1
On September 27, 2019, petitioner, Hannah Yorgy 2, filed a petition under the
National Childhood Vaccine Act, 42 U.S.C. § 300aa-10-34 (2012)3 alleging that she
suffered reading comprehension deficits, headaches, involuntary eye darting and
twitching, insomnia, dizziness, fatigue, nausea, Tourette’s syndrome, numbness in legs,
tingling and tremors in hands and legs, Postural Orthostatic Tachycardia Syndrome,
mouth twitching, personality changes, sensory issues and abdominal pain as the result
of an influenza (“flu”) vaccination administered on September 22, 2016. (ECF No. 1, p.
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.
2
Petitioner was a minor when the petition was filed, so her parents filed the petition as her legal
representatives. Petitioner reached the age of majority and was substituted as petitioner on July 17,
2020. (ECF No. 38.)
3 Hereinafter, all references to “§300aa” refer to sections of the Vaccine Act.
1
1.) On January 11, 2021 petitioner filed a Joint Stipulation of Dismissal. (ECF No. 46.)
Petitioner now moves for an award of attorneys’ fees and costs. (ECF No. 49.).
Respondent opposes petitioner’s motion for attorneys’ fees and costs, arguing that
petitioner lacked a reasonable basis in bringing her petition. (ECF No. 50.) For the
reasons described below, I find that petitioner is not entitled to an award of attorneys’
fees and costs.
I. Procedural History
On September 27, 2019 petitioner’s parents filed a petition on her behalf
accompanied by medical records. 4 (ECF No. 1.) The case was initially assigned to
Chief Special Master Brian Corcoran. (Dkt. Oct. 1, 2019.) On February 20, 2020
petitioner filed additional medical records and a statement of completion. (ECF Nos.
12-19.) This case was reassigned to me on April 20, 2020. (ECF No. 27.) On May 7,
2020 petitioner filed her school attendance and accommodations records. (ECF No.
31.) Petitioner filed additional medical records on May 14, 2020. (ECF No. 33.) I held
a status conference on July 13, 2020 to discuss petitioner’s outstanding medical
records. (ECF No. 37.)
Petitioner reached the age of majority and was substituted as petitioner on July
17, 2020. (ECF No. 38.) On October 8, 2020 petitioner filed additional records. (ECF
No. 41.) On November 9, 2020 respondent filed his Rule 4(c) report, arguing that the
evidence presented did not meet petitioner’s burden of proof and recommending
against compensation. (ECF No. 43.) On November 18, 2020 petitioner filed her
remaining medical records. (ECF No. 45.) Petitioner then filed a joint stipulation of
dismissal on January 11, 2021. (ECF No. 46.) An Order Concluding Proceedings was
entered the same day. (ECF No. 47.) Petitioner filed an application for attorneys’ fees
and costs seeking $14,411.18 on June 10, 2021. 5 (ECF No. 49.) Respondent filed a
response on June 24, 2021. (ECF No. 50.) Petitioner filed a reply on June 30, 2021.
(ECF No. 51.)
II. Factual History
On January 10, 2002, petitioner was born in Blair County, Pennsylvania. (Ex. 11-
1 at 15.) On July 24, 2008, at six years and six months, petitioner was seen for
abdominal pain lasting two to three months, complaining that her “tummy hurts 85% of
[the] time.” (Ex. 1 at 37.)
4Petitioner initially filed her medical records as Exhibits A through N. (ECF No. 1.) Subsequently,
petitioner’s exhibits are labeled numerically as Exhibits 1 through 22. (ECF Nos. 12-15, 31, 33, 41, 45.)
5 Attached to her motion for attorneys’ fees and costs, petitioner filed Exhibits A through E. (ECF No. 49.)
To avoid confusion with petitioner’s earlier filed Exhibits (See ECF No. 1), any reference to alphabetical
exhibits in this decision shall refer to the exhibits attached to petitioner’s petition filed on September 27,
2019. (ECF No. 1.)
2
On September 13, 2011, at nine years and eight months, petitioner presented to
her pediatrician, Allison Wawer-Chubb, D.O., complaining of visual problems for the
past two weeks, “and becoming more frequent.” (Ex. 11-2, p. 45.) Dr. Wawer-Chubb
assessed that petitioner was experiencing a “visual field defect.” (Id.) On September
20, 2011, petitioner went to the Penn State Hershey Medical Center (hereinafter:
“PSHMC”) emergency department for visual disturbances occasionally associated with
headache. (Ex. 6-1, p. 19.) An MRI of petitioner’s brain and an MRA of petitioner’s
head and neck showed normal findings, as did an EEG petitioner received on
September 27, 2011 for visual distortions. (Id. at 67-68; Ex. 3-1, p. 106.)
On October 6, 2011, petitioner saw pediatric neuro-ophthalmologist Grant Liu,
M.D., at the Children’s Hospital of Philadelphia (hereinafter: “CHOP”) for visual
distortions consisting of bilateral flashes at “any time of day, morning, night and
afternoon.” (Ex. 9, pp. 2-3.) Dr. Liu noted that “[t]here were only 2 times when
[petitioner] had an associated headache.” (Id.) Petitioner’s exam was normal, and Dr.
Liu thought the visual distortions were likely benign. (Id.) Dr. Liu stated that further
testing was not necessary, and he was “reluctant to make a diagnosis of migraine
without a history of headaches.” (Id. at 3.)
On March 14, 2012, petitioner saw Kendra Sirolly, M.D., for abdominal pain. (Ex.
11-2, p. 37.) Petitioner’s physical exam showed mild periumbilical pain as well as a
“mobile mass consistent with stool” in the lower left quadrant of the abdomen but was
otherwise normal. (Id.)
On December 20, 2012 and on January 7, 2013, petitioner began behavioral
therapy counseling at Wellspan Health for issues with anger and frustration felt towards
her three younger siblings. (Ex. 4, pp. 4-6.) At this point, petitioner’s “academic
performance [and] behavior at school [wa]s excellent,” and petitioner had “healthy social
peer relationships [and] participation in class.” (Id. at 4.)
Petitioner presented to Guy Moscato, M.D., on August 26, 2013 for abdominal
pain for the past four to five weeks, with the pain growing worse with meals, and for a
frontal headache for the past five weeks. (Ex. 11-2, pp. 18-19.) Dr. Moscato instructed
petitioner to increase her fiber, fruits and vegetables. (Id.)
On March 5, 2014, petitioner saw Katie Kandrysawtz, CRNP, complaining of
recurrent, intermittent headaches for “over a year” that seemed to be getting more
frequent. (Ex. 11-2, p. 7.) Petitioner’s headaches interfered “with her daily activities,”
with petitioner going to the nurse twice a day for an ice pack and with ibuprofen no
longer helping. (Id.) Petitioner was waking up and going to bed with the headaches,
had had a headache for three days straight, and experienced worse headaches while
reading. (Id.) Petitioner’s “visual disturbances stopped” and the CRNP concluded that
petitioner was experiencing “atypical migraine possibly or hormonal.” (Id.)
Petitioner saw Matthew Hendell, MSN, CNRN, CRNP, for a neurological
evaluation for her headaches on March 24, 2014, after a headache “event that lasted
3
almost six days.” (Ex. 2, pp. 43-44.) Petitioner reported headaches two times per
week, “for many months.” (Id. at 44.) CRNP Hendell similarly suspected
undifferentiated migraine. (Id. at 43.) At a follow-up with NP Hendell on May 12, 2014,
petitioner’s general and neurological exams were normal. (Id. at 25.) Petitioner’s
mother expressed concern over an “underlying structural explanation” for petitioner’s
headaches. (Id.) NP Hendell remarked that this was “highly unlikely[,]” though he
agreed to proceed with an MRI. (Id.) He also discussed a prescription for amitriptyline.
(Id.) An MRI taken on May 22, 2014 was unremarkable. (Ex. 3-1, p. 86.)
On July 31, 2014, petitioner received an x-ray of her abdomen for abdominal
pain, but the x-ray showed no acute findings. (Ex. 3-1, p. 90.)
On September 22, 2015, petitioner saw Douglas Field, M.D., at the PSHMC
pediatric gastroenterology nutrition office for a one-year history of abdominal pain. (Ex.
6-1, pp. 75-76.) Petitioner’s abdominal pain was “achy in nature, occurring 2-3 times
per week,” would last for five to fifteen minutes or occasionally longer, and was
aggravated by eating. (Id. at 75.) Petitioner’s family history was significant for irritable
bowel syndrome (“IBS”) in her mother, and Dr. Field wrote that possible causes of
petitioner’s abdominal pain included IBS, celiac disease, lactose intolerance, peptic
ulcer disease and gastroesophageal reflux. (Id. at 75-76.) He wrote that “she could
also have although less likely pancreatitis, hepatitis, gallstones or inflammatory bowel
disease.” (Id. at 76.) Dr. Field recommended petitioner “continue with a high fiber diet,”
take probiotics, and undergo follow-up testing. Id.
Petitioner received the flu vaccine at issue on September 22, 2016. (ECF No. 1,
Ex. A, p. 4.)
On September 27, 2016, petitioner followed up with CRNP Laurie Yuncker-
Stumpf at the PSHMC pediatric gastroenterology nutrition clinic for her abdominal pain.
(Ex. 6-1, pp. 101-02, 132.) Petitioner had last been evaluated by Dr. Field in September
2015 and had not undergone the previously recommended testing. (Id. at 101-02.)
Petitioner was still having abdominal pain one to four times a week for “well over two
years now.” (Id.) NP Yuncker-Stumpf recommended petitioner test for gastritis, IBS,
and celiac disease. (Id.)
On October 3, 2016, petitioner saw her primary care physician, Lori Abels, D.O.,
at Springdale Pediatric Medicine, for vision changes, headaches, eyes darting back and
forth, and bilateral eye twitching, as well as depth perception issues and dimensional
and visual outline problems, 6 with at least one of these symptoms occurring “3-4 times a
day.” 7 (ECF No. 1, Ex. B, p. 2-4.) Dr. Abels noted that petitioner’s symptoms “started a
while ago”, approximately “middle of the summer,” and were sporadic, occurring “maybe
6 Petitioner’s “vision is ‘hazy,’ there is a ‘distinct outline,’ or things look distorted – can last a few hours or
more.” (ECF No. 1, Ex. B, p. 2.)
7 It is unclear from Dr. Abels’ notes which symptom(s) “occurs 3-4 times a day.” (ECF No. 1, Ex. B, p. 2.)
4
3-4 times this past summer.” (Id. at 2.) Though petitioner also stated that her
symptoms had become more frequent, occurring multiple times daily over the prior
week. (Id.) After reviewing petitioner’s recent lab results, Dr. Abels mentioned that the
normal inflammatory markers and complete blood count were reassuring. (Id.) Dr.
Abels referred petitioner to a neurologist. (Id.) On October 6, 2016, petitioner
underwent an EEG which showed no epileptiform abnormalities, but the neurologist
noted that petitioner experienced darting eyes and distorted vision. (Ex. 3-1, p. 65.)
Petitioner presented to NP Hendell on October 7, 2016 for “a fairly abrupt onset
[of] subjective visual complaints and persistent low-grade headache.” (Ex. 2, p. 20.)
NP Hendell wrote that petitioner’s ophthalmologic, neurologic, and general exams were
all normal, and that an EEG showed no abnormalities. (Id.) NP Hendell was “not
exactly sure what all of her symptoms mean,” and considered “some variation of
migraine” as a possible cause of her symptoms but was “not convinced it is absolutely
true at this point” that migraine was the source of her symptoms. (Id.) NP Hendell
prescribed petitioner a low dose of amitriptyline as well as naproxen to be taken every
twelve hours for five days. (Id.) NP Hendell also wondered whether anxiety could be
causing her symptoms, and he instructed petitioner to return in two weeks. (Id.)
On October 7, 2016, petitioner’s MRI without contrast showed no acute
intracranial process. (Ex. 2, p. 37.)
On October 19, 2016, petitioner saw Lee Klombers, M.D. for a neuro-
ophthalmologic examination. (ECF No. 1, Ex. G, p. 7.) Petitioner’s examination
revealed altitudinal visual field defects; her neuro-ophthalmologic exam was normal;
and Dr. Klombers recommended an MRI and possibly a lumbar puncture. (Id.)
On October 20, 2016, petitioner returned to see NP Hendell for “a history of
transient visual alterations of unclear etiology.” (Ex. 2, p. 14.) NP Hendell discontinued
the amitriptyline since it had “been of no benefit.” (Id.) NP Hendell felt “the jury [wa]s
still out regarding her ultimate diagnosis” and did not think an MRI would show anything
but acknowledged that he could not yet dispute “the potential for other inflammatory or
infectious problems,” so he proceeded with an MRI with contrast and also decided to
“look into the logistics of obtaining a sedated lumbar puncture.” (Id.) NP Hendell also
renewed petitioner’s school excuse for an additional two weeks to allow petitioner time
to undergo the necessary medical studies. (Id.)
Petitioner presented to the emergency department at PSHMC on November 7,
2016 for visual distortions for the past five weeks. (Ex. 6-2, p. 16.) Petitioner was
discharged the same day with a diagnosis of “change in vision” and was asked to see a
neurologist. (Id. at 18-19.)
On November 9, 2016, petitioner saw pediatric neurologist Jena Khera, M.D.
(Ex. 2, p. 5.) Dr. Khera wrote that “the last time [petitioner] felt completely ‘normal’ was
Sept 27, 2016, and she denies any head injury,” but petitioner also recalls falling “on her
tailbone while roller skating in July 2016” and hitting “her head on a tree branch” at the
5
end of summer 2016. (Id. at 7.) Petitioner complained of persistent visual symptoms, 8
headaches that were “not awful” and “really…not that big of a deal,” “zoning out with
eyes darting,” difficulties concentrating, abdominal pain for two years, lightheadedness,
nausea, and sleep difficulties. (Id. at 7-8.) Petitioner’s MRI, lab tests, and neuro-
ophthalmologic exam were all normal. (Id. at 6.) Dr. Khera thought that petitioner’s
“constellation of symptoms…[were] most consistent with post concussion syndrome”
since one does not even have to have “an injury to the head [to] have a concussion,”
and Dr. Khera “recommended an evaluation by concussion rehabilitation.” (Id.) Dr.
Khera states that “[t]here is no other physiological explanation for her symptoms,” partly
because her symptoms “are not indicative of inflammation or infection of the central
nervous system.” (Id.)
On November 15, 2016, petitioner had an initial evaluation for speech therapy.
(Ex. 8, pp. 40-41.)
Petitioner saw her pediatrician, Dr. Abels, again on November 21, 2016, who
wrote, “I am interested in what the neurologist at Hershey will say, but we discussed
that there is unlikely to be a definitive answer/cause found today[.] Mom is concerned
about the symptoms being caused by Flu vaccine, and I still think this is unlikely….” (Ex.
12, pp. 19-20.)
That same day, petitioner saw pediatric neurologist Debra Byler, M.D., at
PSHMC. (Ex. 6-2, p. 49.) Dr. Byler wrote that petitioner’s younger sister has had Alice
in Wonderland Syndrome, cyclic vomiting, and psoriasis, and that petitioner’s mother
has had headaches. (Id. at 50.) Petitioner’s systemic exam and neurological exam
findings were normal. (Id. at 50-51.) Dr. Byler wrote that she could not find an
explanation based on nervous system disease for petitioner’s many symptoms, and that
she could not “think of any additional studies that would be helpful.” (Id. at 51.) Dr.
Byler said petitioner’s symptoms might be from a form of somatization disorder, or be
psychologically based, and told petitioner that a neuropsychological evaluation “could
be pursued if desired.” (Id.)
Petitioner presented to the emergency department on December 15, 2016
complaining of nausea, vision changes, and headaches after hitting her head on a
wooden railing and was discharged in stable condition that same day. (Ex. 3-1, pp. 16-
17, 27.) On December 29, 2016, petitioner returned to the emergency department due
to weakness, intermittent dizziness, and nausea, and because her legs felt “shakey and
weak.” (Id. at 120.) Petitioner’s neurological exam was normal, her head CT without
contrast was “within normal limits,” and she was discharged in stable condition. (Id. at
121-122, 124.)
On January 4, 2017, petitioner had an unremarkable neurology evaluation
conducted by pediatric neurologist Dana Cummings, M.D., at the Children’s Hospital of
Pittsburgh. (Ex. 19-2, pp. 22, 24-25.) Dr. Cummings wrote that petitioner:
8 Dr. Khera wrote that petitioner’s visual symptoms were “what bothers her the most.” (Ex. 2, p. 7.)
6
is a 14-year-old with an unusual set of symptoms. Part of her sensory
dysesthesia is accompanied by lightheadedness and dizziness and that
could be in part due to some autonomic dysfunction, especially related to
low iron. We will get iron studies and thyroid studies today. [ 9] There
probably is an element of migraine as well. It is difficult to explain this so-
called persistent visual distortion given the absence of objective data that I
can find on examination. It sounds like she may have an overall disturbance
of attention both visual as well as cognitive. Reportedly, she had 1-hour
EEG that was normal. I did not have that data. So, differential diagnosis
includes [some] kind of metabolic issue versus migraine variant. Much less
likely would be some kind of occipital epilepsy. I am not really suspicious
of an encephalopathy or any kind of demyelinating disease.
Family is very focused on relationship to vaccine, but I do not really suspect
a post-vaccine encephalopathy. The family was eager to get a lumbar
puncture done at this time. I do not think that would be the next step. We
can get a 23-hour EEG to look for any signs of encephalopathy, seizure
tendencies.
…I think it would be very important for her to see a child psychiatrist. She
has been seeing a therapist and I think it will be very important as we
continue the neurologic evaluation to pursue behavioral health evaluation
in parallel.
(Id. at 25.)
After nine sessions of skilled speech therapy, petitioner requested to be
discharged on January 31, 2017 because petitioner “[felt] better and no longer [needed]
therapy.” (Ex. 8, p. 23.)
On February 8, 2017, at CHOP’s Diagnostic and Complex Care Center,
petitioner saw Alyssa Siegel, M.D., who concluded that petitioner’s “constellation of
symptoms is consistent with POT syndrome.” (Ex. 20-1, pp. 4, 7.) Dr. Siegel noted that
petitioner met the criteria for POTS when she “showed a change in heart rate of 59 bpm
from recumbent to standing.” (Id. at 7.)
Petitioner went to York Hospital on March 6, 2018 for self-injury, i.e., “several
days of cutting over the dorsal aspect of the right forearm.” (Ex. 3-2, p. 67.) Petitioner
cites many psychosocial stressors such as “trouble with friends, school work, increased
demand on her time with a role in the school musical.” (Id.) Petitioner also denied
hallucinations, suicidal ideation, and homicidal ideation. (Id.) Counselor Megan Warner
wrote:
9 These studies showed normal findings. (Ex. 19-2, p. 7.)
7
Mood is depressed. Affect is congruent. She is calm and cooperative
during the crisis assessment. Sleep is decreased. Appetite is [within
normal limits]. She denies drug/cigarette/alcohol use. She is not on any
medications. She was seeing a therapist at Meadowlands but stopped
going approximately 9 months ago because she felt like she wasn’t really
benefiting. Patient was seeing a therapist due to her medical condition.
Patient is diagnosed with POTS. Patient still reports visual disturbances at
times. She missed a majority of school last year and was home schooled.
This year she took more honors classes and feels that the work is difficult.
Mother believes that the patient is overwhelmed with the school work
because she is a perfectionist and always has to get straight A’s. Patient
also picked up “an intense” part in the school play. Mother states that the
patient is not very social because she states that she wants to stay away
from the drama. Patient does have a boyfriend who is supportive. Her one
close friend abruptly moved away and her other close friend since 3rd grade
recently told her that she “needed space.” Patient appears to be upset
about this and becomes tearful when talking about this subject.
(Id. at 71.) Counselor Megan Warner diagnosed petitioner with anxiety. (Id.)
On March 8, 2018 through March 2, 2020, petitioner saw Rachel Bradley, LCSW,
for adjustment disorder at Cognitive Health Solutions. (Ex. 21, pp. 3, 152.)
On May 31, 2018, Dr. Matthew Elias, M.D., at the CHOP Cardiac Center further
evaluated petitioner for POTS, stating that:
[Petitioner] has a normal cardiac examination and normal ECG with a prior
normal cardiac evaluation locally. She has no evidence of heart disease
as the cause of her symptoms. Certainly, if any of these symptoms,
particularly shortness of breath, worsen, we can reevaluate that
conclusion. Although she does not have any significant tachycardia upon
standing today, based [on] the note from Dr. Siegel last year, I agree that
she previously met the criteria for having POTS. I emphasized that it’s
important to know that POTS is not dangerous or life threatening and
eventually resolves on its own, but our goal is to speed up that process.
(Ex. 20-1, p. 93.)
On July 19, 2018, petitioner saw neurologist Daniel Licht, MD, at CHOP for a
second opinion. (Ex. 20-1, pp. 122, 128.) Dr. Licht wrote that petitioner “started 9th
grade and appeared to adjust well,” but at the “end of September [received] a flu [shot]
and six days after shot started [complaining] of symptoms.” (Id. at 122.) Dr. Licht also
wrote that petitioner stated she had been having “tics for over a year,” which worsened
in April 2018 and progressed to include vocal tics. (Id.) Dr. Licht also noted that
petitioner had a family history of “Alice in Wonderland Syndrome and cyclic vomiting” in
one younger sister as well as “dizziness and mild POTS” in another younger sister. (Id.
8
at 125.) Petitioner’s comprehensive neurological exam was normal, and Dr. Licht
assessed that petitioner had Tourette’s disorder. (Id. at 125, 126.) A lumbar puncture
for anti-NMDA and autoimmune encephalitis was negative. (Ex. 20-3, p. 43.)
On September 20, 2018, petitioner followed up with neuro-ophthalmologist Dr.
Liu at CHOP after last seeing Dr. Liu in 2011. (Ex. 9, pp. 4, 6.) Petitioner had a normal
exam, and Dr. Liu assessed that petitioner did not meet the diagnostic criteria for
pseudotumor cerebri syndrome, and he discouraged additional spinal taps. (Id. at 5-6.)
On September 19, 2018, petitioner saw Arunjot Singh, M.D., at CHOP’s Division
of Gastroenterology, Hepatology and Nutrition for a history of chronic abdominal pain
and nausea. (Ex. 9, pp. 11-15.) On October 29, 2018, petitioner’s abdominal
ultrasound and abdominal x-ray showed negative findings. (Ex. 3-2, pp. 18, 23.) On
December 20, 2018, petitioner followed up with Dr. Singh who wrote that “[d]ue to the
chronicity of symptoms and negative workup, this is most consistent with a functional
disorder such as irritable bowel syndrome.” (Ex. 9, p. 7, 9.)
On October 31, 2018, petitioner’s mother exchanged messages with Erin
O’Connor Prange, CRNP, and wrote, “[m]y honest opinion is that the flu shot in 2016
caused some changes in [petitioner’s] brain and body that are creating these symptoms
and maybe that doesn’t show on a[n] MRI or spinal tap. That doesn’t mean it isn’t really
happening or isn’t real.” (Ex. 20-6, p. 49.) NP O’Connor Prange wrote back that she
did not intend for petitioner’s mother to think petitioner’s symptoms were not real, but
also did not comment on petitioner’s mother’s opinion that the flu shot caused
petitioner’s symptoms. (Id. at 48-49.)
On February 5, 2019, after petitioner presented to WellSpan Urgent Care
complaining of neurological symptoms two days after a Tourette’s episode, Monique S.
Hall, M.D., diagnosed petitioner with chronic nonintractable headache, told petitioner
she may take ibuprofen or Excedrin, and instructed petitioner to see a neurologist if her
symptoms continue. (Ex. 7, p. 24.)
On February 28, 2019, petitioner presented to Erin O’Connor Prange, CRNP, for
her tics. (Ex. 20-6, p. 136.) NP O’Connor Prange wrote that petitioner “has not been
able to [concentrate] on school work. Cannot remember what she is studying. Getting
zeros on assignments” and that petitioner “has been missing multiple days of school
and unable to keep up with work.” (Id.) Similarly, on April 19, 2019, Sabrina A Gmuca,
M.D., wrote that petitioner “missed about 50 days of school this year and is at jeopardy
of not finishing this school year.” (Ex. 20-7, p. 101.)
On April 19, 2019, in response to a pain history form asking petitioner, “if events
trigger pain please describe,” petitioner reported that her pain “got way worse after flu
shot in Sept. 2016.” (Ex. 20-7, p. 102.)
On May 7, 2019, Lisa Block, M.D., noted during a psychiatric evaluation that
petitioner was “mildly fidgety but not over active and able to focus on directed questions.
9
She [did show] some evidence of tics of eye and the muscles of facial expression.” (Ex.
5, pp. 6, 8.) Dr. Block also noted that petitioner’s “eye contact was appropriate and her
behavior was generally cooperative. Her speech was of normal rate and tone without
any loosening of associations [sic]. Her answers to questions were clear and goal-
directed. Her affect was generally appropriate to her stated mod of fine.” (Id. at 8.) Dr.
Block also noted that petitioner denied “any suicidal or homicidal ideation,” that she was
“alert and oriented,” that she denied hallucinations, and that there was “no evidence of
delusional thinking.” (Id.) Dr. Bock also wrote that petitioner’s insight was “felt to be fair
to age-appropriate but her responses to questions about social judgement and the office
were variable to poor.” (Id.) Dr. Block assessed that petitioner suffers from anxiety and
depression and that petitioner should continue with therapy. (Id. at 9.) Petitioner did
not consent to taking any medications. (Id.)
III. Legal Standard
Petitioners who are denied compensation for their claims brought under the
Vaccine Act may still be awarded attorneys’ fees and costs “if the special master or
court determines that the petition was brought in good faith and there was a reasonable
basis for the claim for which the petition was brought.” 42 U.S.C. § 300aa-15(e)(1);
Cloer v. Sec'y of Health & Human Servs., 675 F.3d 1358, 1360–61 (Fed. Cir. 2012).
But even when a claim was brought in good faith and has a reasonable basis, a special
master may still deny attorneys’ fees. See 42 U.S.C. § 300aa-15(e)(1); Cloer, 675 F.3d
at 1362.
“Good faith” and “reasonable basis” are two distinct requirements under the
Vaccine Act. Simmons v. Sec’y of Health & Human Servs., 875 F.3d 632, 635 (Fed.
Cir. 2017). Good faith is a subjective inquiry while reasonable basis is an objective
inquiry that does not factor subjective views into its consideration. See James-
Cornelius v. Sec’y of Health & Human Servs., 984 F.3d 1374, 1379 (Fed. Cir. 2021). In
this case, petitioner’s good faith is not challenged, leaving only the question of whether
there was a reasonable basis for the filing of the petition.
The evidentiary standard for establishing a reasonable basis as prerequisite to
an award of attorneys’ fees and costs is lower than the evidentiary standard for being
awarded compensation under the Vaccine Act. To establish a reasonable basis for
attorneys’ fees, the petitioner need not prove a likelihood of success. See Woods v.
Sec’y of Health & Human Servs., No. 10-377V, 2012 WL 4010485, at *6-*7 (Fed. Cl.
2012). Instead, the special master considers the totality of the circumstances and
evaluates objective evidence that, while amounting to less than a preponderance of
evidence, constitutes “more than a mere scintilla” of evidence. Cottingham v. Sec’y of
Health & Human Servs., 971 F.3d 1337, 1344, 1346 (Fed. Cir. 2020); see also
Amankwaa v. Sec'y of Health & Human Servs., 138 Fed. Cl. 282, 287 (Fed. Cl. 2018).
Examples of “more than a mere scintilla” of objective evidence supporting
causation include medical records that provide “only circumstantial evidence of
causation.” James-Cornelius, 984 F.3d at 1379-80 (finding that record evidence lacking
an express medical opinion on causation still showed circumstantial evidence of
10
causation where 1) petitioner’s medicals records contained a doctor’s note questioning
whether a vaccine adverse event should be reported, 2) the medical course suggested
a challenge-rechallenge event of petitioner’s symptoms becoming worse after additional
injections of the vaccine, 3) medical articles hypothesized that the vaccine can cause
the symptoms at issue, and 4) petitioner suffered some of the same symptoms that
were listed in the vaccine’s package insert as potential adverse reactions of the
vaccine) 10; Cottingham, 971 F.3d at 1346 (finding that petitioner’s medical records
showed at minimum circumstantial evidence of causation where petitioner’s medical
records showed that petitioner received the Gardasil vaccine and subsequently
experienced symptoms that were identified in the Gardasil package insert as potential
adverse reactions of the vaccine).
Even though petitioner can meet the reasonable basis standard by pointing to
circumstantial evidence in the medical records, a temporal relationship between the
vaccine and the alleged symptoms by itself is not sufficient to establish a reasonable
basis. Compare Bekiaris v. Sec’y of Health & Human Servs., 140 Fed. Cl. 108, 110,
114-15 (Fed. Cl. 2018) (finding no reasonable basis for an award for attorneys’ fees and
costs where petitioner only showed a temporal proximity between her third injection of
the HPV vaccine and the onset of her symptoms, i.e., hives and skin irritation, without
submitting an expert report providing evidence that the HPV vaccine was the cause of
her injuries), with A.S. by Svagdis v. Sec’y of Health & Human Servs., No. 15-520V,
2020 WL 3969874, at *2 (Fed. Cl. Spec. Mstr. June 4, 2020) (finding a reasonable basis
for an award for attorneys’ fees and costs where petitioners showed more than a
temporal proximity between their daughter’s vaccines and her symptoms by submitting
four expert reports of physicians offering medical opinions and medical literature in
support of potential causation).
IV. Party Contentions
Petitioner’s initial motion did not contain a legal argument for why petitioner
should be awarded attorneys’ fees and costs. (See ECF No. 49.) Respondent
responded by arguing that petitioner provided no objective evidence because petitioner
1) did not clearly allege that the vaccine caused a clear injury as there was no unifying
diagnosis, 2) claimed that petitioner was in good health before her vaccination even
though the record shows petitioner suffered from headaches, visual disturbances, and
abdominal pain for several years prior to her vaccination, 3) provided no opinion from
any physicians that the flu vaccine could have been a possible cause of her symptoms
and conversely provided multiple physicians’ opinions that expressly doubted any
causal relationship, and 4) provided no expert report to support her claim. (ECF No. 50,
pp. 13-14.)
10 Nothing in James-Cornelius suggests the full extent of what may constitute circumstantial evidence, but
the four examples of circumstantial evidence in James-Cornelius provide some guidance regarding the
types of circumstantial evidence that may be considered in determining whether a reasonable basis was
established. Conversely, the Federal Circuit also stressed in James-Cornelius that an award of attorneys’
fees and costs is within the special master’s discretion and remanded the case for further proceedings.
984 F.3d at 1381. Accordingly, it is also not the case that the presence of these specific elements of
circumstantial evidence necessarily compel a finding that reasonable basis exists.
11
Petitioner replied by arguing that petitioner established a reasonable basis
because petitioner’s doctors did not specifically rule out the flu vaccine as a cause of
her alleged injury and instead commented that they were unsure whether the flu vaccine
was the cause. (ECF No. 51, p. 12.) Petitioner further argued that the flu vaccine was
the cause because there was no other identified cause for petitioner’s symptoms. (Id. at
13.)
Petitioner argued that she established a reasonable basis by showing substantial
objective evidence that relates to the factual basis of petitioner’s claim, per Simmons. 11
(ECF No. 51, p. 15.) Petitioner argues that the objective evidence provided is 1) “the
utter failure of any of the medical specialists to unequivocally conclude some other
causation for [petitioner’s] injuries,” 2) the fact that the flu vaccine was the only
intervening event that occurred prior to the sudden onset of her symptoms, 3) the fact
that none of petitioner’s doctors ruled out the vaccine causing petitioner’s symptoms “to
a degree of medical certainty,” and 4) the fact that many of petitioner’s doctors
referenced how suddenly petitioner’s symptoms arose. (Id.)
V. Discussion
In focusing on the confidence (or purported lack thereof) with which the treating
physicians ruled-out vaccine causation, petitioner effectively concedes there is no direct
evidence of vaccine causation in this case. As explained above, however, the required
showing of “more than a mere scintilla” of objective evidence can be satisfied even
when medical records provide “only circumstantial evidence of causation.” James-
Cornelius, 984 F.3d at 1379-80; Cottingham, 971 F.3d at 1346. Nonetheless, in this
case, neither the medical records nor the record as a whole contain even the lesser
“more than a mere scintilla” of evidence of causation required to establish a reasonable
basis. Examination of the Federal Circuit’s decision in James-Cornelius illustrates why.
In James-Cornelius, the Federal Circuit found that petitioner’s medical records
showed circumstantial evidence of causation because the medical records 1) contained
a doctor’s note (“??VAERS”) suggestive of a belief that the vaccine caused petitioner’s
symptoms, 2) suggested a challenge-rechallenge event of petitioner’s symptoms
becoming worse after additional injections of the vaccine, 3) contained medical articles
hypothesizing that the vaccine can cause petitioner’s symptoms, and 4) showed that
petitioner suffered some of the same symptoms listed in the vaccine’s package insert as
potential adverse reactions of the vaccine. See James-Cornelius, 984 F.3d at 1377,
1379-80. Here, however, the record does not include any similar evidence. Petitioner
suffered pre-existing symptoms, her doctors opined against a causal relationship to her
vaccination, and there is nothing in her filings (medical records or otherwise) that
11Simmons, 875 F.3d at 633-36 (holding that a reasonable basis requires an objective inquiry relating to
the factual basis of petitioner’s claim).
12
provides any sort of medical theory or logical sequence of cause and effect supporting
vaccine causation.
The only consideration that might serve as circumstantial evidence of causation
is the reported temporal relationship between petitioner’s vaccination and her symptoms
becoming worse after her flu vaccine. However, a temporal aspect alone is not enough
to suggest causation. Accord Hibbard v. Sec’y of Health & Human Servs., 698 F.3d
1355, 1365-66 (Fed. Cir. 2012) (finding that an award of compensation is not
appropriate where petitioner only shows a temporal association between vaccination
and injury (Althen prong three)). In fact, prior cases have explicitly held that a temporal
relationship alone does not confer a reasonable basis for the filing of a petition. See
Bekiaris, 140 Fed. Cl. at 114-15; see also A.S. by Svagdis, 2020 WL 3969874 at *2.
Moreover, because petitioner had a long history of abdominal pain, visual disturbances,
and headaches prior to vaccination, and because her physicians never arrived at a
unifying diagnosis, the temporal relationship suggested by petitioner is not self-evidently
reasonable or reliable without further medical opinion. In fact, the medical records here
also contain two express medical opinions from treating physicians (a pediatrician and a
pediatric neurologist) discounting the purported significance of the temporal relationship.
More specifically, the medical records in this case contain two categories of
medical treater notes relating to the vaccine, neither of which is sufficient to meet
petitioner’s burden. First, many of the medical records contain medical specialists’
notes commenting only on the temporal aspect of the flu vaccine and petitioner’s
symptoms with no comment about causation. Second, two physicians explicitly rejected
the possibility that the vaccine caused petitioner’s symptoms.
The first category of medical specialists’ notes (e.g., “end of September
[received] a flu [shot] and six days after shot started [complaining] of symptoms”) is
different from the “??VAERS” note in James-Cornelius. (Ex. 20-1, p. 122); James-
Cornelius, 984 F.3d at 1380. Writing “??VAERS,” even as a question, can be
interpreted as suggesting that the doctor was concerned enough that a vaccine-caused
adverse event occurred to contemplate officially reporting petitioner’s condition as such
an adverse event. 12 James-Cornelius, 984 F.3d at 1377-80. In this case, however,
many physicians merely documented that petitioner reported a history to them that
included the fact of a prior vaccination occurring during a potentially relevant period.
These physicians did not reveal any thinking as to causation.
Additionally, two of petitioner’s physicians in this case explicitly rejected the
opinion that petitioner’s flu vaccine caused her symptoms. Lori Abels, D.O., wrote that
“[m]om is concerned about the symptoms being caused by Flu vaccine, and I still think
this is unlikely….,” and similarly, pediatric neurologist Dana Cummings, M.D., wrote that
petitioner’s “[f]amily is very focused on relationship to vaccine, but I do not really
12 VAERS (i.e., the Vaccine Adverse Event Reporting System) exists for the public to report adverse
events related to vaccines. See About VAERS: Background and Public Health Importance, VAERS (Oct.
22, 2021, 3:32 PM), https://vaers.hhs.gov/about.html.
13
suspect a post-vaccine encephalopathy.” (Ex. 12, pp. 20, 22; Ex. 19-2, p. 25.) This
second category of medical treater notes, rejecting the vaccine as causing petitioner’s
symptoms, also distinguishes this case from James-Cornelius. Explicitly opining that
the vaccine was unlikely to have caused petitioner’s symptoms is obviously contrary to
any implied opinion that petitioner suffered an adverse event related to the vaccine.
Indeed, the medical records in James-Cornelius did not contain any express medical
opinion on causation, which led the court to consider the circumstantial evidence (e.g.,
the “??VAERS” note) in the first place. James-Cornelius, 984 F.3d at 1380. But here,
petitioner’s medical records do contain express medical opinions on causation that
weigh against petitioner’s claim.
The present case is also different from James-Cornelius because in James-
Cornelius, petitioner’s showing also included factual information potentially fitting
petitioner’s allegation of a rechallenge event 13 and medical articles hypothesizing a
causal relationship between petitioner’s vaccine and petitioner’s symptoms, both of
which also served as circumstantial evidence to further support a possible causal
relationship in the context of that case. Here, that additional evidence is absent.
Moreover, as explained above, in the context of this medical history, the reported
association between petitioner’s vaccination and symptoms is not self-evidently
medically reasonable without any supporting medical opinion. James-Cornelius, 984
F.3d at 1380 (explaining that “lay opinions as to causation or medical diagnosis may be
properly characterized as mere ‘subjective belief’ when the witness is not competent to
testify on those subjects . . .”). Nothing in the record of this case suggests a medical
theory or logical sequence of cause and effect to support vaccine causation.
Additionally, the fact that the petitioner in James-Cornelius experienced some of
the same symptoms (i.e., “headache and syncope”) that were listed in the vaccine’s
package insert as potential adverse reactions also served as circumstantial evidence.
James-Cornelius, 984 F.3d at 1377. The package insert was also a factor in
Cottingham where petitioner’s medical records showed that petitioner received the
Gardasil vaccine and subsequently experienced the same four symptoms (i.e.,
“dizziness, headaches, vomiting, and syncope”) that were identified in the Gardasil
package insert. Cottingham, 971 F.3d at 1346. But here, there was no package insert
listing petitioner’s symptoms as potential adverse reactions of the flu vaccine.
Moreover, in this case, even if a package insert was filed, evidence that petitioner
suffered nonspecific symptoms would not be evidence supporting causation because
petitioner had symptoms prior to vaccination, had no unifying diagnosis, and her treating
physicians explicitly rejected vaccine causation.
13 The Federal Circuit noted that “rechallenge” has been “recognized as a form of causation evidence.”
James-Cornelius, 984 F.3d at 1380 (citing Capizzano v. Sec'y of Health & Human Servs., 440 F.3d 1317,
1322 (Fed. Cir. 2006).) In Capizzano, the Federal Circuit explained that “[a] rechallenge event occurs
when a patient who had an adverse reaction to a vaccine suffers worsened symptoms after an additional
injection of the vaccine. The chief special master stated that this evidence of rechallenge constituted
‘such strong proof of causality that it is unnecessary to determine the mechanism of cause—it is
understood to be occurring.’” Capizzano, 440 F.3d at 1322. When supported factually, a rechallenge
event is therefore unique in presenting a circumstance that does not necessarily need supporting medical
opinion to explain the cause-and-effect relationship.
14
Petitioner’s remaining argument that the failure to identify an alternative cause
should in itself stand as evidence supporting a reasonable basis is especially
unpersuasive where again, as here, treating physicians explicitly rejected a causal
relationship to vaccination. Nonetheless, I note in the interest of completeness that on
November 9, 2016, another of petitioner’s physicians, pediatric neurologist Jena Khera,
M.D., stated that “[t]here is no other physiological explanation for her symptoms,” partly
because her symptoms “are not indicative of inflammation or infection of the central
nervous system.” (Ex. 2, p. 6.) Importantly, however, this statement was made in
support of Dr. Khera’s assessment of a probable concussion and not as a means of
indicating the condition was wholly unexplained. Moreover, the fact that petitioner had
no central nervous system inflammation could potentially be viewed as exculpatory of at
least some vaccine reactions. In any event, neither Dr. Khera’s record nor the absence
of an alternative explanation, provides any reasoning actually supportive of petitioner’s
claim of vaccine causation.
In sum, even though medical records with only circumstantial evidence of
causation have established a reasonable basis for purposes of an award of attorneys’
fees, the medical records in this case do not contain circumstantial evidence of
causation comparable to what was present in those cases. Here, the record shows no
suggestion of any belief of causation by treating physicians, no evidence of a causally
relevant phenomenon such as challenge-rechallenge, no medical articles hypothesizing
causation, and no package insert listing petitioner’s symptoms as potential adverse
reactions of the vaccine. Moreover, those two explicit physician opinions that are
available cast doubt on the alleged causal relationship between vaccination and injury.
And, even if an expert opinion could theoretically have helped overcome any of this lack
of evidence, no such opinion was filed.
VI. Conclusion
For the reasons set forth above, petitioner did not establish a reasonable basis
for the filing of her petition as required for an award for attorneys’ fees and costs.
Accordingly, an award for attorneys’ fees and costs is denied. 14
IT IS SO ORDERED.
s/Daniel T. Horner
Daniel T. Horner
Special Master
14In the absence of a timely-filed motion for review of this Decision, the Clerk of the Court shall enter
judgment accordingly.
15