Kimbrough v. Secretary of Health and Human Services ( 2020 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: April 10, 2020
Not For Publication
* * * * * * * * * * * * * * **
LINDA KIMBROUGH, on behalf of G.A., * No. 16-170
*
Petitioner, * Special Master Sanders
*
v. *
*
SECRETARY OF HEALTH * Reasonable Basis; Influenza (“Flu”)
AND HUMAN SERVICES, * Vaccine; Attorneys’ Fees and Costs;
* Ecchymosis; Eczema; Induration; Itching;
Respondent. * Swelling; Scarring.
* * * * * * * * * * * * * * **
Clifford J. Shoemaker, Shoemaker, Gentry & Knickelbein, Vienna, VA, for Petitioner.
Debra A. Filteau Begley, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION1
On February 4, 2016, Linda Kimbrough (“Petitioner”) filed a petition on behalf of G.A.
pursuant to the National Vaccine Injury Compensation Program (“Program” or “Vaccine
Program”).2 Petitioner alleged that the influenza (“flu”) vaccine G.A. received in her right leg
on December 16, 2014, caused her to “experience[] an injection site reaction that resulted in
pain, swelling, itching, erythema,3 induration4 and ecchymosis,5 as well as a limp . . . [and]
scarring[.]” Am. Pet. at 3–4, ECF No. 71. On December 20, 2017, Respondent filed a motion
to dismiss, Resp’t’s Mot. to Dismiss, ECF No. 51, which I granted on May 24, 2019, see Dec.,
ECF No. 75; see also Kimbrough ex rel. G.A. v. Sec’y of Health & Human Servs., No. 16-170V
2019 WL 2612757 (Fed. Cl. Spec. Mstr. May 17, 2019).
1
This decision shall be posted on the United States Court of Federal Claims’ website, in accordance with the E-
Government Act of 2002, 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), a party has 14 days to identify and move to delete medical or other information
that satisfies the criteria in § 300aa-12(d)(4)(B). Further, consistent with the rule requirement, a motion for redaction
must include a proposed redacted decision. If, upon review, I agree that the identified material fits within the
requirements of that provision, such material will be deleted from public access.
2
The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa- 10 et
seq. (hereinafter “Vaccine Act,” “the Act,” or “the Program”).
3
Erythema is defined as “redness of the skin produced by congestion of the capillaries.” Dorland’s Illustrated
Medical Dictionary 643 (32nd ed. 2012) [hereinafter “Dorland’s”].
4
Induration is defined as “the quality of being hard; . . . the process of becoming hard; . . . an abnormally hard spot
or place.” Dorland’s at 933.
5
Ecchymosis is defined as “a small hemorrhagic spot, larger than a petechia, in the skin or mucous membrane
forming a non-elevated, rounded or irregular, blue or purplish patch.” Dorland’s at 588.
On August 27, 2019, Petitioner filed a motion for attorneys’ fees and costs, seeking
$48,093.80 in attorneys’ fees and $1,153.91 in costs, for a total of $49,247.71. Pet’r’s Mot. for
Attys’ Fees and Costs, ECF No. 80 [hereinafter Pet’r’s Mot. for AFC]. On September 6, 2019,
Respondent filed his response to Petitioner’s motion, objecting on the basis that Petitioner
failed to establish a reasonable basis for her claim. Resp’t’s Resp. at 1, ECF No. 81. Petitioner
filed her reply brief on September 14, 2019. Pet’r’s Reply, ECF No. 82. For the reasons stated
below, I find that Petitioner has not satisfied the statutory requirements for an award of
attorneys’ fees and costs; therefore, I DENY Petitioner’s motion.
I. Procedural History
Petitioner filed her petition on February 4, 2016. Pet., ECF No. 1. Petitioner has been
represented by Mr. Clifford Shoemaker throughout the entirety of this case. Over the next two
months, Petitioner filed thirteen exhibits consisting of medical records and multiple notices from
medical providers, stating that they did not have any records pertaining to G.A. See Pet’r’s Exs.
1–13, ECF Nos. 10, 12–13. Petitioner filed her first statement of completion on April 29, 2016.
ECF No. 14.
On May 20, 2016, Respondent filed a status report identifying numerous outstanding
medical records and stating that Petitioner had filed no “medical records documenting six months
of residual symptoms . . ..” ECF No. 15. On May 23, 2016, Petitioner was ordered to file
documentation in support of her allegation that G.A. suffered six months of vaccine-induced injury
and an amended statement of completion by June 27, 2016. Non-PDF Order, docketed May 23,
2016.
Petitioner filed three motions for extension of time over the next five months, extending
her deadline to October 27, 2016. See ECF Nos. 17, 19, 21. Over this period, Petitioner filed
supplemental medical records and additional notices from providers stating that they did not have
records pertaining to G.A. See generally Pet’r’s Exs. 15–30, ECF Nos. 16-2–16-5, 18-2–18-10,
20-2–20-4. On October 27, 2016, Petitioner filed a status report indicating that she had been
unsuccessful in obtaining additional records and alerting the Court that “[a]ll therapy records that
. . . Petitioner [was] able to obtain ha[d] been filed.” ECF No. 23. Petitioner then noted multiple
places in the record, which she asserted “showed that [G.A.] received therapy and that [G.A.’s]
injuries lasted more than six months.” Id.
On November 15, 2016, the Court held a status conference with the parties in which
“Respondent requested that Petitioner clarify the vaccine injury alleged.” See Sched. Order at 1,
ECF No. 24; see also Min. Entry, docketed Nov. 15, 2016. Respondent also requested “additional
evidence, such as photographs and an affidavit from Petitioner,” to allow Respondent to
meaningfully engage in potential settlement discussions. Sched. Order at 1, ECF No. 24.
Petitioner was given until December 27, 2016, to file this additional documentation as well as a
status report identifying the site of the alleged injury. Id. at 2. Additionally, Petitioner was ordered
to state whether a Medicaid lien related to treatment of these injuries existed. Id.
2
Petitioner filed four motions for extension of time, extending her deadline to March 21,
2017. See ECF Nos. 25, 28–30. On March 31, 2017, Petitioner filed ten photographs, see Pet’r’s
Ex. 31, ECF No. 32-2, but did not file the status report or affidavit. I held a status conference with
the parties on April 4, 2017, and ordered Petitioner to file her affidavit, any documentation related
to the previously filed photographs, and a status report by May 4, 2017. ECF No. 34.
After filing a motion for extension of time on May 4, 2017, see ECF No. 35, Petitioner
filed an affidavit on June 5, 2017, but did not file any documentation regarding the photographs,
ECF No. 36. Petitioner then filed two additional motions for extension of time, ECF Nos. 37–38,
which I granted, Non-PDF Order, docketed June 15, 2017; Order, ECF No. 39. Petitioner filed a
fourth motion for extension of time on August 4, 2017. ECF No. 40. I issued a Show Cause Order
on August 8, 2017, and ordered Petitioner to complete the record by August 11, 2017. ECF No.
41. Petitioner filed a status report on August 11, 2017, in which she provided dates when she
believed the photographs she previously filed were taken. ECF No. 42.
Respondent filed his Rule 4(c) report on December 14, 2017, see Resp’t’s Report, ECF
No. 49, and his motion to dismiss on December 20, 2017, Resp’t’s Mot. to Dismiss, ECF No. 51.
Petitioner filed her response on February 20, 2018. Pet’r’s Resp., ECF No. 54. Respondent filed
his reply on February 28, 2018. Resp’t’s Reply, ECF No. 55. I held a status conference with the
parties on March 8, 2018. See Minute Entry, docketed Mar. 8, 2018. The parties agreed that G.A.
should be examined by a physician that could opine on the relationship, if any, between G.A.’s
scarring and her vaccination to meet the six-month requirement under the Act. ECF No. 56 at 1.
On August 31, 2018, Petitioner filed five additional exhibits. Pet’r’s Exs. 32–38, ECF Nos.
68-1–68-6. These exhibits consisted of medical literature and a letter from Dr. Penny White, a
physician at PCC Community Wellness Center at West Suburban. See id. I held a status
conference with the parties on September 19, 2018, to determine how they wished to proceed.
Min. Entry, docketed Sept. 19, 2018. The parties agreed that Petitioner should file an amended
petition containing allegations consistent with the current record and G.A.’s alleged injuries. ECF
No. 70. Petitioner was given one last opportunity to file any additional information she believed
to be relevant to the pending motion to dismiss by October 19, 2018. Id. Petitioner filed an
amended petition and seventeen pieces of medical literature on her deadline. Am. Pet., ECF No.
71; Pet’r’s Exs. 39–55, ECF Nos. 72-2–72-9, 73-2–73-9.
On May 24, 2019, I granted Respondent’s motion to dismiss this case on the basis that
Petitioner did not establish a six-month injury duration, Dec., ECF No. 75 (“Decision”), and
judgment was subsequently entered, ECF No. 78. On August 27, 2019, Petitioner filed a motion
for attorneys’ fees and costs. Pet’r’s Mot. for AFC. On September 6, 2019, Respondent filed his
response to Petitioner’s motion, objecting on the basis that Petitioner failed to establish a
reasonable basis for her claim. Resp’t’s Resp. at 1. Petitioner filed her reply brief on September
14, 2019. Pet’r’s Reply. This matter is now ripe for consideration.
II. Medical History
a. Medical Records
3
This order incorporates the medical facts set out in my May 24, 2019 decision. The facts
stated below are what I found most useful in deciding Petitioner’s motion for attorney’s fees and
costs.
G.A. was born on February 16, 2013. Pet’r’s Ex. 12 at 4. Doctors noted during both her
five-week and ten-week well-child visits that G.A. was developing normally. See Pet’r’s Ex. 5
at 66, 75. During G.A.’s four-month well-child visit, the doctor noted that G.A. was “meeting
milestones” and showed “[s]teady progression on the growth chart[,]” but that her “gross motor,
problem solving, and personal social scores [were] in [the] grey area . . . .” Id. at 58. The doctor
also noted that G.A.’s “[s]kin exam [was] consistent with bug bites.” Id. During G.A.’s six-
month well-child check-up on September 10, 2013, the doctor noted that she “appear[ed] to be in
good health and meeting all developmental milestones.” Id. at 45, 49.
On February 27, 2014, G.A. presented for her one-year well-child check. Id. at 31.
Petitioner expressed “[c]oncerns . . . includ[ing] eczema.” Id. at 33. The “[s]kin, [i]nspection”
section of the physical exam record notes that G.A’s “right thigh [had a] dry papular rash,” where
G.A. was “scratching [her] leg,” and G.A.’s “skin [was] dry overall.” Id. at 34. The doctor
assessed G.A. with “eczema.” Id. On May 21, 2014, G.A. presented for her fifteen-month well-
child visit. Id. at 22. During this visit, Petitioner complained of a “diaper rash,” which had
“started about [four] days” prior. Id. at 24.
G.A. presented for a developmental evaluation to determine whether she required an Early
Intervention Service Plan (“EISP”) on July 3, 2014. Pet’r’s Ex. 1 at 3. She was referred for this
evaluation because a treating doctor had “concerns with [G.A.’s] speech, fine motor, problem
solving[,] and personal-social development.” Id. The evaluator noted that G.A. had a thirty-nine
percent delay in her fine motor skill development and a twenty-seven percent delay in her gross
motor skill development. Id. The evaluator also noted the following concerns regarding G.A.’s
gross motor skills: “[s]he does not creep upstairs[;] [i]ncreased weight shifting and balancing
skills need development.” Id. at 28.
On December 16, 2014, G.A. presented for her twenty-two-month well-child visit. Pet’r’s
Ex. 5 at 15. During this visit, Petitioner complained to the doctor that G.A. “ha[d] been
complaining of some pain when walking for long periods of time[,]” which Petitioner “related to
a[n] issue she had when delivering [G.A.]” Id. at 17. Petitioner reported that G.A. “complain[ed]
of leg pain,” but the doctor wrote that G.A. “climb[ed] and r[a]n without issues.” Id. at 20. The
doctor recommended a physical therapy (“PT”) evaluation and ordered hip and leg x-rays because
he noticed that G.A. was “walking with [a] slight limp” and “drag[ing] [her] right leg a little bit.”
Id. at 21. At this visit, G.A. received the relevant flu vaccine in her right vastus lateralis.6 Id. at
16. G.A. underwent x-rays on December 23, 2014, which were “normal” and showed “no
fracture[,] [n]o marked soft tissue swelling[, n]o foreign body[, and n]o destructive lesion . . ..”
Pet’r’s Ex. 23 at 13.
G.A. presented for a PT evaluation on February 3, 2015. Pet’r’s Ex. 1 at 22. During this
visit, Petitioner “expressed some concerns about [G.A.’s] limping when walking.” Id. The
6
The vastus lateralis “is located on the side of the thigh.” VASTUS LATERALIS, available at
https://www.healthline.com/human-body-maps/vastus-lateralis-muscle#1 (last visited Apr. 3, 2020).
4
physical therapist wrote that G.A. “[w]alk[ed] 200 feet and r[a]n[] 100 feet, . . . [w]alk[ed]
backwards, [j]ump[ed] on the floor, with feet together, [all] without support, with adult
supervision[, and s]how[ed] no walking deviations at this time.” Id. The physical therapist
concluded that G.A. was “in no need for any further PT intervention.” Id.
On April 29, 2015, G.A. presented for her “[two-year-old] well-child exam and follow up
on leg pain/sore[ness].” Pet’r’s Ex. 5 at 6. Petitioner reported that G.A. had been experiencing
“leg pain since shots.” Id. at 7. G.A. also had developed a “bruise and now there is a knot in her
leg. [Since the injection, the] knot has gotten smaller.” Id. Petitioner reported that G.A. was
“able to walk and run” at this visit. Id. The doctor recorded Petitioner’s account that G.A “f[ell]
a lot when running[]” and had been attending “[PT] . . . once weekly[ but had shown] no
improvement[.]” Id. Under the assessment section of this record, the doctor wrote that Petitioner
“report[ed a] lump on [G.A.’s] leg after administration of vaccines during last visit.” Id. at 9. An
examination showed “erythematous satellite lesions in [genitourinary] area; scarring with mild
hyperpigmentation on right thigh[; and two] small palpable superficial nodule[s].” Id. at 10. The
doctor also noted “[range of motion] intact, normal tone, strength 5/5, moves extremities equally,
[and] no limp.” Id. The doctor determined that the nodules were “likely scar tissue based on
exam and history[]” and did not prescribe any treatment, opting instead to “continue to monitor.”
Id.
G.A. presented to the emergency room on July 1, 2015, for a head injury she sustained
when she “was throwing a temper tantrum at home . . . and threw [her]self on [the] floor hitting
the back of her head.” Pet’r’s Ex. 22 at 27. Petitioner did not complain of any issues with G.A’s
legs or pain associated with walking. See id. at 28. Doctors noted that G.A. “move[d] all four
[extremities]” and was “running around [the] exam room.” Id.
On December 8, 2015, G.A. presented for her two-and-a-half-year-old well-child
examination. Pet’r’s Ex. 19 at 15. Petitioner reported that G.A. “had an injection at [a] previous
clinic and subsequent swelling and pain.” Id. at 16. Petitioner also stated that G.A. could not
walk and “sometimes gets frustrated and ‘falls out’ . . . .” Id. The doctor, however, noted that
G.A. was “climb[ing], jump[ing], and walk[ing] around the clinic” during the visit. Id. Petitioner
also “insist[ed] that [G.A.] ha[d] a bone infection and a permanent disability.” Id. On physical
examination, G.A. had “no rashes or lesions” on her skin. Id. at 19.
Petitioner brought G.A. for an occupational therapy evaluation on February 16, 2016.
Pet’r’s Ex. 1 at 19–20. Petitioner expressed a concern regarding a knot in G.A.’s leg “from a
shot.” Id. at 19. The evaluator wrote that G.A. was “able to sit, stand, transition, walk, [and] run
independently . . ..” Id. The evaluator noted a need for further intervention to correct delays in
G.A.’s fine motor skill development, self-help skills development, and sensory processing skills
development, but did not note any delay in gross motor skill development. See id.
On June 16, 2016, G.A. presented for an “ortho referral for genu valgus7 . . ..” Pet’r’s Ex.
19 at 12. Petitioner reported a concern regarding G.A.’s “gait” and stated that “after receiving
[an immunization] . . . [G.A.] developed a bump on her right leg and it affected her walking.” Id.
7
Genu valgum is “a deformity in which the knees are abnormally close together and the space between the ankles is
increased.” Dorland’s at 771.
5
at 13. Petitioner reported that G.A. “received PT . . . but still [complains of] pain from time to
time.” Id. The doctor noted that G.A. was “walking on medial edges of feet[,]” and the doctor
referred G.A. to an orthopedist. Id. The rest of the medical record shows an uneventful follow
up to the orthopedist and a few uneventful doctors’ visits. See Pet’r’s Exs. 34–38.
b. Petitioner’s Affidavit
Petitioner submitted an affidavit on June 5, 2017. Pet’r’s Ex. 32. Petitioner stated that
G.A. had problems at birth, which “resulted in her having some pain and an occasional slight
limp in her right leg.” Id. at 1. However, Petitioner noted that as G.A. continued to grow, “the
only time she really complained was when she was walking or running for a long time and got
too tired.” Id.
Petitioner stated that when G.A. was given the vaccination at issue, the “nurse who gave
the shot . . . . jammed the shot[] in harder than [she] remember[ed] any children’s shot[] being
given. G.A. screamed, and it took a long time to calm her down.” Id. Petitioner continued,
“G.A.’s right thigh swelled up and became hot to the touch. There was a black spot where the
shot was given, and a big lump developed around it.” Id. Petitioner reported that “G.A.
complained that it was very painful, and she kept trying to scratch it.” Id. Petitioner stated that
she called the doctor’s office regarding “the swelling and the pain and was told to alternate ice
and heat and give [G.A.] Tylenol.” Id. Petitioner also stated that G.A. “kept complaining of pain,
and this was different than the pain she described before the shot that would only occur after
walking too much.” Id.
Petitioner wrote that she explained G.A.’s symptoms to the doctor at G.A.’s well-child visit
on April 29, 2015, but that the doctor “seemed to want to minimize what was going on . . ..” Id.
Petitioner indicated that “the knot on [G.A.’s] leg was not as big as it had been, [but] it was still
pretty good sized.” Id. Petitioner concluded her affidavit by stating that “G.A. has continued to
experience some pain in her leg and still has a limp. She also still has a scar where the shot was
given.” Id.
c. Letter from Dr. Penny White, M.D.
Petitioner filed a letter from Dr. Penny White on August 31, 2018. Pet’r’s Ex. 33. Dr.
White wrote her letter in response to the questions drafted by the parties about a possible cause
for scarring on G.A.’s right thigh. She wrote that she “saw GA for the first time in May of
2018[,]” and noted that this was the only time she had “formally” seen G.A.; although, she had
answered questions from Petitioner on multiple occasions. Id. Dr. White wrote that G.A. “ha[d]
a lichenified, scar-like area on her right thigh[]” that measured “about 1 by 1.5 centimeters.” Id.
Although it was “hypopigmented[,]” she “doubt[ed] that the patch of lichenification . . . could be
caused solely by the administration of a single vaccine.” Id. The vaccine was administered in
G.A.’s right vastus lateralis, however, Dr. White wrote that “[t]he scarring [was] more located
over the right vastus intermedius.8 There was no scaring over the lateralis area.” Id. Dr. White
8
The vastus intermedius “is located along the upper portion of the femur, which is also known as the
thighbone. This muscle covers the front part of the femur and the side of the femur.” VASTUS
6
opined that “[t]he scar could be from longstanding eczema [because t]he irritation and itching
can cause a scar-like lichenfied picture.” Id. Dr. White concluded that “the scarring [was] from
an allergic reaction like . . . [those] see[n] in chronic eczema.” Id.
III. Legal Standard
Under the Vaccine Act, an award of reasonable attorneys’ fees and costs is presumed
where a petition for compensation is granted. Where compensation is denied, or a petition is
dismissed, as it was in this case, a special master may award fees and costs for an unsuccessful
petition if “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); see also Sebelius v. Cloer, 569
U.S. 369, 376 (2013).
a. Good Faith Standard
“Good faith” is a subjective standard. Hamrick v. Sec’y of Health & Human Servs., No.
99-683V, 2007 WL 4793152, at *3 (Fed. Cl. Spec. Mstr. Nov. 19, 2007). Petitioners act in “good
faith” if they hold an honest belief that a vaccine injury occurred. Turner v. Sec’y of Health &
Human Servs., No. 99-544V, 2007 WL 4410030, at *5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007).
Without evidence of bad faith, petitioners are “entitled to a presumption of good faith.” Grice v.
Sec’y of Health & Human Servs., 36 Fed. Cl. 114, 121 (1996) (noting that in the absence of
evidence of bad faith, the special master was justified in presuming the existence of good faith).
Thus, so long as Petitioner had an honest belief that her claim could succeed, the good faith
requirement is satisfied. See Riley v. Sec’y of Health & Human Servs., No. 09-276V, 2011 WL
2036976, at *2 (Fed. Cl. Spec. Mstr. Apr. 29, 2011) (citing Di Roma v. Sec’y of Health and
Human Servs., No. 99-3277, 1993 WL 496981, at *1 (Fed. Cl. Spec. Mstr. Nov. 18, 1992));
Turner, 2007 WL 4410030, at *5. Respondent does not contest that this petition was filed in
good faith, see Resp’t’s Resp., and I find that the good faith standard is met in this case.
b. Reasonable Basis
Respondent does, however, contest the reasonable basis for this petition. Id. A petitioner
can receive fees and costs award even if her claim fails, but to do so she must demonstrate the
claim’s reasonable basis through some objective evidentiary showing. Simmons v. Sec’y of
Health & Human Servs., 875 F.3d 632, 635 (Fed. Cir. 2017); see also Chuisano v. Sec’y of Health
& Human Servs., 116 Fed. Cl. 276, 286 (2014) (citing McKellar v. Sec’y of Health & Human
Servs., 101 Fed. Cl. 303, 303 (2011)). “Reasonable basis” is not explicitly defined in the Vaccine
Act or Rules. Deciding whether a claim has a reasonable basis “is within the discretion of the
Special Master . . ..” Simmons v. Sec’y of Health and Human Servs., 128 Fed. Cl. 579, 582 (2016),
aff’d, 875 F.3d 632 (Fed. Cir. 2017) (internal citations omitted). The standard for reasonable
basis is lesser (and inherently easier to satisfy) than the preponderant standard applied when
INTERMEDIUS, available at https://www.healthline.com/human-body-maps/vastus-intermedius#1 (last
visited Apr. 3, 2020).
7
assessing entitlement, as cases with reasonable basis (because they have objective proof
supporting the claim) can nevertheless still fail to establish causation-in-fact. Braun v. Sec’y of
Health & Human Servs., 144 Fed. Cl. 72, 77 (2019).
In determining whether a claim has a reasonable basis, special masters apply a totality of
the circumstances test, considering factors such as “the factual basis, the medical support, and
jurisdictional issues.” Chuisano, 116 Fed.Cl. at 288 (citation omitted). Thus, petitioners must
offer more than an unsupported assertion that a vaccine caused the injury alleged. See, e.g.,
Cortez v. Sec’y of Health & Human Servs., No. 09-176V, 2014 WL 1604002, at *5 (Fed. Cl.
Spec. Mstr. Mar. 26, 2014); McKellar v. Sec’y of Health & Human Servs., 101 Fed. Cl. 297, 303–
04 (2011); Perreira v. Sec’y of Health & Human Servs., 33 F.3d 1375, 1377 (Fed. Cir. 1994).
Petitioners must “affirmatively dsemonstrate [the] reasonable basis” of their claim through some
objective evidentiary showing. McKellar, 101 Fed. Cl. at 305. Such a showing “must, at a
minimum, be supported by medical records or medical opinion.” Everett v. Sec’y of Health and
Human Servs., No. 91-1115V, 1992 WL 35863, at *2 (Fed. Cl. Spec. Mstr. Feb 7, 1992).
In Simmons, The Federal Circuit stated that the reasonable basis inquiry is objective and
unrelated to the conduct of Petitioner’s counsel prior to filing a claim. The Court consequently
affirmed the lower court's holding that the claim lacked reasonable basis based on the
insufficiency of the petitioner's medical records and proof of vaccination at the time the petition
was filed. Simmons, 875 F.3d at 636. In light of Simmons, the Court of Federal Claims
determined, “[I]n deciding reasonable basis[,] the Special Master needs to focus on the
requirements for the petition under the Vaccine Act to determine if the elements have been
asserted with sufficient evidence to make a feasible claim for recovery . . . [u]nder the objective
standard articulated in Simmons, the Special Master should have limited her review to the claim
alleged in the petition to determine if it was feasible based on the materials submitted.”
Santacroce v. Sec'y of Health & Human Servs., No. 15-555V, 2018 WL 405121 at *7 (Fed. Cl.
2018). When evaluating a case's reasonable basis, petitioner's “burden has been satisfied ... where
a petitioner has submitted a sworn statement, medical records, and [a] VAERS report which show
that recovery is feasible.” Id. Additionally, a special master may consider “the novelty of the
vaccine, scientific understanding of the vaccine and its potential consequences, the availability
of experts and medical literature, and the time frame counsel has to investigate and prepare the
claim.” Cottingham v. Sec’y of Health & Human Servs., 134 Fed. Cl. 567, 574 (2017), appeal
docketed, No. 19-1596 (Fed. Cir. Feb. 26, 2019).
IV. Arguments
a. Respondent’s Argument
On September 6, 2019, Respondent filed a response to Petitioner’s motion for attorneys’
fees and costs. See Resp’t’s Resp. Respondent opposes Petitioner’s motion, arguing that “[a]ny
award of fees and costs is inappropriate in this case, because the petition lacked a reasonable basis
. . .” Id. at 1. Further, Respondent wrote that “the Court should deny [P]etitioner’s application
in toto” because the objective evidence submitted did not demonstrate the case’s feasibility. Id.
(original emphasis).
First, Respondent argues that Petitioner’s entire claim rested solely on Petitioner’s word
8
that G.A. suffered a vaccine injury. Respondent states that the “record, at best, establishes less
than five months of sequelae.” Id. at 11 (quoting Decision). Respondent points out that I found
Petitioner had not established G.A.’s six-month injury duration requirement when dismissing the
case. Respondent goes on to write, “[e]ven if [P]etitioner could establish that G.A. suffered six
months of residual symptoms from some alleged injury, there are absolutely no medical records
that document that her vaccine actually caused any type of injury that would result in scarring.”
Id. at 10. Thus, Respondent argues that there was not enough medical support filed with this
claim to support a finding of reasonable basis. Id.
Respondent wrote that many of Petitioner’s claims were shown by her own medical
records to be inconsistent. Id. at 9. For example, Petitioner argued that she was unable to obtain
medical records because of Medicaid difficulties; however, the Medicaid lien submitted by
Petitioner showed all services provided to G.A. Id. at 9–10 n.6.
Finally, Respondent argues that by not thoroughly investigating the claim, Petitioner’s
counsel assumed the risk of not being compensated for attorneys’ fees and costs if counsel was
unable to produce documentation to show a reasonable basis for filing. Id. at 11; Everett, 1992
WL 35863, at *2. Even though petitioners are allowed to supplement their petitions to meet
statutory requirements, Respondent argues that “it would not be equitable or just to reward
counsel for waiting until after the petition was filed to finish investigating the claim.” Id. at 11.
Respondent states that “an absence of any observable symptoms on G.A.’s thigh during the
months following her vaccination should have been immediately clear to [P]etitoner’s counsel,
as records documenting G.A.’s care immediately following her vaccination were filed shortly
after the Petition.” Id.; see generally Pet’r’s Exs. 1, 5.
b. Petitioner’s Argument
Petitioner filed her reply on September 14, 2019. See Pet’r’s Reply. Petitioner’s counsel
argues that this was a “challenging case” because “obtaining cooperation from Petitioner’s
[various] medical providers was exceedingly difficult.” Additionally, Petitioner’s counsel added
that there were “continuing challenges in communicating with Petitioner.” Id. at 1. Petitioner’s
counsel states that these challenges should not preclude him from obtaining his fees and costs.
Petitioner’s counsel states that obtaining all the medical records, a proper primary care
doctor for G.A., and the letter from Dr. White were “labor-intensive act[s].” Id. at 1–2. Further,
Petitioner’s counsel argues that I should find good faith and reasonable basis because I “did not
find that Petitioner had not filed in good faith or was without reasonable basis [in my decision
dismissing this case], nor, did Respondent raise reasonable basis in their Motion to Dismiss” Id.
at 2 (original emphasis). Finally, Petitioner writes that “Counsel acted appropriately, reasonably,
and judiciously in his representations in the context of the facts and challenges of the case . . ..”
Id.
V. Analysis
a. The Objective Medical Records and Medical Opinions Submitted Did Not
Demonstrate the Claim’s Feasibility
9
After reviewing the entire record, I find that Petitioner did not have a reasonable basis to
file this claim. The feasibility of a claim must be based on the objective evidence submitted, and
Petitioner incorrectly argues the standard of reasonable basis. It is not the difficulty of how the
case proceeds which determines reasonable basis, as Petitioner suggests. Rather, it is based on
the filing of objective evidence which shows the claim’s feasibility. The Act requires that
petitions are to be accompanied by “supporting documentation” establishing entitlement, such as
“vaccination records associated with the vaccine allegedly causing the injury, [and] pre- and post-
injury physician or clinic records.” §§11(c)(1) and (2). The requirement that reasonable basis is
established by evidence means that some supporting documentation of a claim must always be
offered if the claim is to be viable. Petitioner had the opportunity to fulfill the statutory
prerequisites for filing a petition by producing evidence to show that G.A. had the alleged injury
any time before this case was dismissed. See Chuisano, 116 Fed. Cl. at 287 (finding that “the
reasonable basis inquiry is broad enough to encompass any material submitted in support of the
claim at any time in the proceeding, whether with the petition or later.”).
In support of her claim, Petitioner submitted medical records from G.A.’s fifteen-month
to two-and-a-half-year well-child visits. However, before G.A.’s December 16, 2014 vaccination
in her right leg, the medical records show that Petitioner had three primary complaints concerning
G.A.: dermatological issues, developmental issues, and leg pain. G.A.’s dermatological issues
were recorded as diaper rashes, “bug bites,” dry skin on the right thigh, and eczema. See Pet’r’s
Exs. 5, 12. Second, the records indicate that some of G.A.’s physicians had concerns about G.A.’s
development. An evaluator noted that G.A. had a thirty-nine percent delay in her fine motor skill
development and a twenty-seven percent delay in her gross motor skill development. Pet’r’s Ex.
1 at 3. Third, Petitioner indicated that G.A. complained of some pain in the legs on the date of
the vaccination, which Petitioner thought was “related to a[n] issue she had when delivering
[G.A.].” Pet’r’s Ex. 5 at 17. Immediately after receiving the vaccination, there was no indication
of an adverse reaction nor did the x-ray performed seven days post vaccination show any
swelling, lesions, or fractures. Pet’r’s Ex. 5 at 15; Pet’r’s Ex. 23 at 13. The following months
after the vaccination show that G.A. continued to present to various doctors complaining of the
same medical issues that she complained about prior to the vaccination. See Pet’r’s Ex. 5, 23.
When G.A. was evaluated for her dermatological issues, developmental issues, and leg pain, the
medical records show that G.A. was able to walk, run, and climb with no signs of difficulties.
See Pet’r’s Exs. 1, 5, 12, 23. Petitioner’s medical records do not objectively show an injury
related to the vaccination.
Respondent correctly argues that there is insufficient evidence to show an injury which
lasted longer than six months. Overall, the medical records show continuous symptoms of leg
pain, developmental concerns, and skin irritation that started before the vaccination and continued
well past the vaccination. Other than Petitioner’s word to treaters that G.A. experienced novel
pain that started post vaccination, the medical records do not indicate that the vaccine played a
role in any of G.A.’s medical concerns. In a letter submitted by Petitioner, G.A.’s own treating
physician, Dr. White, stated that the vaccine did not play a role in G.A.’s medical issues. Pet’r’s
Ex. 33. Dr. White “doubt[ed] that the patch of lichenification . . . could be caused solely by the
administration of a single vaccine.” Id. Dr. White opined that “[t]he scar could be from
longstanding eczema [because t]he irritation and itching can cause a scar-like lichenfied picture.”
Id. Dr. White concluded that “the scarring [was] from an allergic reaction like . . . [those] see[n]
in chronic eczema.” Id.
10
The consistency of the medical records and medical opinions before and after G.A.’s
vaccination does not demonstrate that this claim was feasible either at filing or after the evidence
was submitted. It should have been clear to an attorney with as much experience in the Program
as Mr. Shoemaker that there was not enough affirmative, objective evidence to sustain this claim.
Considering there was no medical opinion or record that related the vaccination to the injury, and
there was no change in G.A.’s medical concerns after vaccination, I cannot find that this case was
feasible with the evidence submitted. Therefore, I find that this claim lacked a reasonable basis.
b. The Claim Did Not Present Anything Novel or Complex About This Case
Petitioner claims that the vaccine at issue caused G.A. to “experience[] an injection site
reaction that resulted in pain, swelling, itching, erythema, induration and ecchymosis, as well as
a limp . . . [and] scarring[.]” Am. Pet. at 3–4. A “simple scarring” case, as Petitioner’s counsel
describes it, does not pose a novel or complex theory. See Pet’r’s Reply at 1. This type of alleged
condition does not present a need for specialized experts or medical literature. Thus, I find that
this case did not present anything new or complex for me to consider.
Lastly, although the statute of limitations is not the determining factor for evaluating a
claim, it is noteworthy that in this case, filing occurred almost a year before the deadline. It is
clear that Petitioner’s counsel had ample time to investigate the claim prior to filing.
VI. Conclusion
I find that the Petitioner has not alleged facts and submitted evidence to demonstrate a
reasonable basis for her claim. To find reasonable basis, I need more than Petitioner’s assertion
that a vaccine caused the alleged injury, unsupported by medical records or medical opinions, to
award fees and costs. Here, a review prior to filing would have shown that this was not a feasible
claim without more objective evidence. Therefore, I hereby DENY Petitioner’s motion for
attorney’s fees and costs. In the absence of a motion for review filed pursuant to RCFC Appendix
B, the clerk of the court is directed to enter judgment herewith.9
IT IS SO ORDERED.
s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master
9
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or jointly,
filing a notice renouncing the right to seek review.
11