Brieseacher v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1616V
Filed: May 15, 2020
* * * * * * * * * * * * * * *
RICHARD BRIESEACHER, * To Be Published
*
Petitioner, *
v. * Decision on Attorneys’ Fees and Costs;
* Reasonable Basis; Denial
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * *
Matthew Vianello, Esq., Jacobson Press P.C. Clayton, MO, for petitioner.
Julia Collison, Esq., U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
Roth, Special Master:
On October 18, 2018 (“Mr. Vianello,” or “petitioner”) filed a petition for compensation
under the National Vaccine Injury Compensation Program.2 Petitioner alleged he developed
Guillain-Barre Syndrome (“GBS”) as a result of receiving an influenza vaccination on October 23,
2015. Petition (“Pet.”), ECF No. 1. On February 10, 2020, the undersigned issued an Order
concluding the proceedings in this matter. ECF No. 28. A finding regarding entitlement was not
made.
I. Background
1
This Decision has been formally designated “to be published,” which means it will be posted on the Court
of Federal Claims’s website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, 116
Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). This means the Decision will be
available to anyone with access to the internet. However, the parties may object to the Decision’s
inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party
has fourteen days within which to request redaction “of any information furnished by that party: (1) that is
a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes
medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of
privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public. Id.2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
A. Summary of Relevant Medical Records
Petitioner received influenza (“flu”) and pneumococcal conjugate vaccinations on October
23, 2015 during an appointment with his primary care provider. Pet. Ex. 16 at 77. On that date,
petitioner presented for pain in his upper back and shoulders ongoing for three months. Id. A
cervical spine x-ray was performed and showed anterolisthesis with advanced degenerative
spondylosis at C5-C6. Pet. Ex. 3 at 37. Petitioner’s primary care provider prescribed prednisone,
a muscle relaxer, and physical therapy. Pet. Ex. 16 at 78. Petitioner was 78 years old and had a
history of hypertension, hyperglycemia, hyperlipidemia, coronary artery disease and surgery,
carotid artery disease and surgery, heart attack, gastroesophageal reflux disease (“GERD”), peptic
ulcer, chronic anemia, cervical and lumbar degenerative disc disease, and arthritis in his hands and
knees. Id. at 77-78.
In the next four weeks of November 2015, petitioner attended four weeks of physical
therapy as prescribed for pain and reduced range of motion in his neck and referred pain down his
left arm with numbness in his left hand. See Pet. Ex. 6 at 5-11.
In December of 2015, petitioner drove from Illinois to Texas, where he spent winters. See
Pet. Ex. 12 at 155; Pet. Ex. 9 at 15.
On January 18, 2016, petitioner presented to the emergency room at Rio Grande Regional
Hospital and provided a history of 10 days of cough, congestion, and weakness with five to six
days of poor appetite. Pet. Ex. 5 at 39. He reported right leg weakness beginning two or three
months ago. Id. He was diagnosed with generalized muscle weakness, bronchopneumonia, and
dehydration; he was prescribed antibiotics for acute bronchitis. Id. at 43-44. Admission was
recommended, but he refused and left against medical advice. Id. at 44.
On January 22, 2016, petitioner presented to the emergency room at McAllen Medical
Center with weakness, difficulty walking, and difficulty closing his fingers. Pet. Ex. 12 at 202. He
reported that he had a cold two weeks before which improved with a Z-pack but one week ago he
started feeling sick again; he further reported five days ago, he noticed focalized weakness that
was progressively worse on the right side. Id. at 285. He also complained of fever, chills, chest
pressure, cough, and shortness of breath. Id. He was admitted and hospitalized for two weeks. He
tested positive for the influenza A virus and was administered Tamiflu. Id. at 284. Laboratory tests
showed that he had elevated cerebrospinal fluid (“CSF”) protein but a normal white count. Id. at
144. A neurologist, Dr. Rossi, noted that the elevated CSF protein suggested possible GBS, but
because petitioner retained reflexes, a myelopathic issue should also be considered. Id. at 145. He
did not have significant sensory loss. Id. Viral myelitis was also considered. Id. An MRI could not
be performed due to metal in petitioner’s eye. Id. at 402. CT scan showed cervical spine stenosis
compatible with cervical myelopathy; a neurosurgeon recommended surgical decompression. Id.
at 338.
A neurology progress note authored by Dr. Moore on January 31, 2016, documented
disagreement with a diagnosis of GBS because petitioner’s deep tendon reflexes were preserved;
he opined petitioner likely had cervical myelopathy. Pet. Ex. 12 at 402-03. Another neurologist,
Dr. Hussain, suggested petitioner’s symptoms were due to cervical stenosis. Id. at 359, 383.
2
Petitioner was discharged from McAllen Medical Center on February 8, 2016. His
discharge diagnoses included hyponatremia, asymmetrical polyradiculoneuritis in the setting of
viral disease, which was suspicious for GBS, and community-acquired pneumonia due to influenza
A. Pet. Ex. 12 at 155-56.
Petitioner underwent three weeks at an inpatient rehabilitation center followed by 10 visits
to an outpatient rehabilitation center. See generally Pet. Ex. 13-14.
On April 5, 2016, petitioner presented to his primary care provider for follow-up. Pet. Ex.
16 at 72. He reported he developed foot drop and weakness in his right leg in late December, flu
like symptoms in late January 2016, and was diagnosed with bronchial pneumonia. Id. His
weakness progressively worsened, so he went to the ER and was diagnosed with GBS. Id.
Petitioner was referred to a neurologist. Id.
On April 30, 2016, petitioner presented to the emergency room at Good Samaritan Mt.
Vernon complaining of bilateral lower extremity weakness. Pet. Ex. 4 at 32. He reported “newly
diagnosed GBS” on January 22, 2016 after experiencing severe bilateral lower extremity weakness
and shortness of breath. He reported receiving one “dose” of IVIG. Id. He had been going to
rehabilitation therapy on an outpatient basis “since March” with no new episodes “until yesterday.”
Id. He fell “today” due to recurrent weakness. Id. Petitioner was admitted for observation. Id. He
was assessed by a neurologist. The impression was acute demyelinating peripheral neuropathy,
GBS, hypertension, hypertensive heart disease, coronary artery disease, status post-coronary artery
bypass surgery, and GERD. Id. at 45-47. The neurologist did not think that IVIG was needed but
recommended physical and occupational therapy and a speech evaluation. Id. at 47.
On May 6, 2016, petitioner was discharged from Good Samaritan. His discharge summary
documented diagnoses of melena and anemia, requiring one blood transfusion, as well as a
duodenal ulcer, which was biopsied and treated with a Protonix infusion. Pet. Ex. 4 at 26. His
discharge diagnoses also included GBS, dyslipidemia, increased weakness when ambulating,
bilateral leg weakness, and gait disturbance. Id. At discharge, he was noted to be walking with
help and “in good condition.” Id.
On June 29, 2016, petitioner presented to Dr. Silverman, a neurologist, following a referral
by his primary care physician. Pet. Ex. 7 at 7. Petitioner reported in February 2016, “he presented
with a 5 day history of worsening gait, ascending paresthesias, lower extremity weakness, right
greater than left…He was diagnosed with Guillain Barre syndrome with SIADH, though some
physicians questioned the diagnosis of GBS.” Id. “He was doing well until about 1 month ago and
then he developed a bleeding ulcer.” Id. Following an exam, Dr. Silverman noted petitioner’s
symptoms were “localize[d] to the cervical spinal cord” and the “findings are incompatible with
Guillain-Barre syndrome.” Id. at 8. Rather, the findings were “more compatible with cervical
myelopathy, possibly transverse myelitis.” Id. A cervical MRI was performed which showed spinal
cord compression at C4-5, with severe spinal canal stenosis and severe bilateral foraminal
narrowing at C5-6. Id. at 8, 10-12. “The syndrome and radiographic findings are most consistent
with cervical myelopathy due to external compression from spinal stenosis.” Id. at 8.
3
On July 25, 2016, petitioner underwent cervical laminectomies at C4, C5, and C6 for
decompression of the spinal canal. Pet. Ex. 8 at 71. Surgical findings included “significant
degeneration of the cervical spine with spondylosis and spinal cord compression consistent with
myelopathy and stenosis.” Id. at 72. He was discharged to inpatient rehabilitation on July 29, 2016.
Id. at 74-75.
On September 6, 2016, petitioner presented to Dr. Silverman for a follow-up. Pet. Ex. 7 at
4. Petitioner complained of progressive weakness that had worsened since his spinal surgery. Id.
Dr. Silverman noted that a postoperative cervical MRI showed good decompression in the spinal
cord with no new evidence of compression. Id. Upon examination, petitioner had spastic
quadriparesis, greater in the legs than the arms; his symptoms were localized to the cervical spinal
cord. Id. at 5. Dr. Silverman again noted that “[t]he exam findings are incompatible with [GBS].”
Id. Petitioner was diagnosed with cervical myelopathy. Id.
An EMG performed on October 19, 2016 showed no evidence of a demyelinating
neuropathy but did show chronic left C5-7 multilevel radiculopathy. Pet. Ex. 7 at 18; Pet. Ex. 8 at
1.
Petitioner returned to Dr. Silverman for a follow-up on December 29, 2016. Pet. Ex. 7 at
1. Examination revealed increased tone in the lower extremities but a “spastic and unsteady” gait.
Id. at 2. Dr. Silverman noted petitioner’s recent EMG showing no evidence a demyelinating
neuropathy. Id. He further noted that the examination findings were not compatible with peripheral
neuropathy but were compatible with cervical myelopathy. Id. Dr. Silverman recommended
additional physical therapy. Id.
On August 10, 2017, petitioner sought a second opinion from Dr. Nemani, a neurologist.
Pet. Ex. 9 at 12. Dr. Nemani’s impression was that petitioner had GBS as well as cervical
myelopathy. Id. at 15. He suggested an EMG, an MRI, and thorough bloodwork. Id.
Petitioner returned to Dr. Nemani on October 9, 2017. Pet. Ex. 9 at 6. Dr. Nemani
documented his review of the spinal CT and the EMG with petitioner and recommended that
petitioner see a hand surgeon for ulnar neuropathy. In Dr. Nemani’s opinion petitioner “would not
respond to IVIG therapy given the type of neuropathy he has.” Id. at 10.
B. Procedural History
The petition was filed on October 18, 2018, along with 11 exhibits including medical
records and an affidavit from petitioner. See Petition, ECF No. 1; Petitioner’s Exhibits (“Pet. Ex.”)
1-11, ECF No. 2. This claim was assigned to the Special Processing Unit (“SPU”). ECF Nos. 5-6.
Petitioner filed additional medical records and a Statement of Completion on January 2, 2019. Pet.
Ex. 12-15, ECF No. 10; Statement of Completion, ECF No. 12.
In his affidavit, petitioner affirmed, “By mid to late November, 2015, I began to lose
strength and feeling in my feet. By January 22, 2016, I was unable to walk, and by January 23,
2016, I was unable to lift my arms more than six inches.” Pet. Ex. 11 at 1.
4
Respondent filed a status report on May 2, 2019, requesting petitioner file additional
medical records. ECF No. 14. These records were filed on June 26, 2019. Pet. Ex. 16-18, ECF No.
18. Respondent filed a status report on August 27, 2019, requesting a deadline for his Rule 4(c)
Report. ECF No. 20.
Respondent filed his Rule 4(c) Report (“Resp. Rpt.”) on October 7, 2019, stating this matter
was not appropriate for compensation. ECF No. 21. Respondent pointed out petitioner does not
have a definitive diagnosis of GBS; multiple physicians attributed petitioner’s symptoms to
cervical myelopathy. Id. at 12; see also Pet Ex. 12 at 338, 383, 403; Pet. Ex. 7 at 2, 8; Pet. Ex. 8 at
21; Pet. Ex. 9 at 10. Furthermore, respondent submitted even if petitioner can provide preponderant
evidence that GBS is the correct diagnosis, the onset of his symptoms was nearly three months
after his flu vaccination, too far out in time to be connected. Id. at 13. Respondent cited to medical
records showing petitioner consistently reported an onset of symptoms beginning in early 2016 to
medical providers. Id.; see also Pet. Ex. 12 at 144; Pet. Ex. 7 at 7; Pet. Ex. 8 at 20. Respondent
added petitioner’s statement in his affidavit that his symptoms began in mid-to-late November is
not supported by the medical records. Id. Respondent pointed to four weeks of physical therapy
petitioner attended in November, with no mention of weakness or numbness in his legs at any of
those appointments. Id. Respondent further noted petitioner drove sixteen hours from Illinois to
Texas in mid-December 2015 without complaint, which would not support an onset of symptoms
in November. Id. Additionally, respondent noted an onset of symptoms in late January would be
consistent with GBS following a viral process. Id. Finally, respondent submitted that petitioner
had not offered an expert report in support of his claim. Id. at 13-14.
This matter was reassigned to me on October 11, 2019. ECF Nos. 22-23.
During a status conference on December 4, 2019, the medical records were discussed. See
Scheduling Order at 1-3, ECF No. 24. Also discussed was petitioner’s affidavit, prepared in 2018,
which stated for the first time that petitioner had symptoms in mid-to-late November 2015. Id. at
3, citing Pet. Ex. 11. This was inconsistent with the history he provided to the emergency room
physician upon presentation on January 22, 2016 and these facts were not corroborated by, or
consistent with any of the medical records created at the time of his presentation to treating
physicians and would carry less weight than contemporaneously prepared medical records. Id. I
noted that medical literature does not support an onset of GBS more than 42 days after receipt of
a flu vaccine. Id. at 4. Even if petitioner’s history of developing a foot drop at the end of December
were accepted, the onset would still be over 60 days following his flu vaccine. Id. Moreover, when
petitioner presented to the emergency room on January 22, 2016, he tested positive for influenza
A and was diagnosed with community-acquired pneumonia; he also had diarrhea. Id. Flu, upper
respiratory infections, and gastrointestinal illnesses can all cause GBS. Id. Petitioner’s counsel
advised he was contacted on the eve of the statute of limitations and had no alternative but to file
the petition without the benefit of any medical records. Id.
On February 7, 2020, petitioner filed a status report advising he would be dismissing his
Petition under Vaccine Rule 21. ECF No. 26. Later that day, petitioner filed a Motion to
Voluntarily Dismiss the Petition pursuant to Rule 21(a). ECF No. 27. An Order concluding
proceedings was issued on February 10, 2020. ECF No. 28.
5
That same day, February 10, 2020, petitioner filed a Motion for Attorneys’ Fees and Costs.
Motion for Fees, ECF No. 29. Petitioner requests attorneys’ fees in the amount of $12,510.00 and
attorneys’ costs in the amount of $916.10 for a total amount of $13,426.10. Id. at 4-6. In accordance
with General Order #9, petitioner’s counsel represents that petitioner did not incur any out-of-
pocket expenses. Id. at 5.
On February 14, 2020, respondent filed a response to petitioner’s Motion for Fees.
Response, ECF No. 31. Respondent submitted that petitioner’s medical records “provide no
objective basis for his alleged vaccine-related injury and cannot establish that his claim has a
reasonable basis….” Response at 1. Petitioner filed a Reply later that day. ECF No. 32.
This matter is now ripe for consideration.
II. Applicable Law and Analysis
The Vaccine Act permits an award of “reasonable attorneys’ fees” and “other costs.”
§ 15(e)(1). If a petitioner succeeds on the merits of his or her claim, he or she is entitled to an
award of reasonable attorneys’ fees and costs. Id.; see Sebelius v. Cloer, 133 S. Ct. 1886, 1891
(2013). However, a petitioner need not prevail on entitlement to receive a fee award as long as the
petition was brought in “good faith” and there was a “reasonable basis” for the claim to proceed.
§ 15(e)(1).
In the Vaccine Program, a petitioner is “entitled to a presumption of good faith as is the
government.” Grice v. Sec’y of Health & Human Servs., 36 Fed. Cl. 114, 121 (1996). A special
master is justified in presuming good faith “in the absence of direct evidence of bad faith.” Id.Because petitioners are afforded a presumption of good faith and respondent did not question the
good faith of the petitioner in this matter, good faith requires no further analysis.
Reasonable basis is an objective standard determined by evaluating the sufficiency of the
medical records in petitioner’s possession at the time the claim is filed. “Special masters have
historically been quite generous in finding reasonable basis for petitions.” Turpin v. Sec’y of Health
& Human Servs., No. 99-564, 2005 WL 1026714 at *2 (Fed. Cl. Spec. Mstr. Feb. 10, 2005).
However, the Federal Circuit recently denied an award of attorney’s fees based on petitioner’s lack
of reasonable basis in Simmons v. Secretary of Health and Human Services. 875 F.3d 632, 636
(Fed. Cir. 2017). In Simmons, the Federal Circuit determined that petitioner lacked reasonable
basis for filing a claim when, at the time of filing: (1) petitioner’s counsel failed to file proof of
vaccination, (2) there was no evidence of a diagnosis or persistent injury allegedly related to a
vaccine in petitioner’s medical records, and (3) the petitioner had disappeared for approximately
two years prior to the filing of the petition and only resurfaced shortly before the statute of
limitations deadline on his claim expired. See id. at 634-35. The Federal Circuit specifically stated
that the reasonable basis inquiry is objective and unrelated to counsel’s conduct prior to filing a
claim. The Court consequently affirmed the lower court’s holding that petitioner’s counsel lacked
reasonable basis in filing this claim based on the insufficiency of petitioner’s medical records and
proof of vaccination at the time the petition was filed. Id. at 636.
6
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. . . Under 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 [in demonstrating reasonable basis] has been satisfied . . . where a petitioner has submitted
a sworn statement, medical records, and [a] VAERS report which show that recovery is feasible.”
Id. Moreover, the special master may consider various objective factors including “the factual
basis of the claim, the novelty of the vaccine, and the novelty of the theory of causation.”
Amankwaa v. Sec’y of Health & Human Servs., 138 Fed. Cl. 282, 289 (2018).
Petitioner argued the petition maintained reasonable basis throughout its pendency.
Petitioner submitted that “many special masters and U.S. Court of Federal Claims judges employ
a totality of the circumstances test.” Motion at 3 (internal citations omitted). To satisfy the
reasonable basis requirement, petitioner pointed to the aforementioned diagnoses of GBS and cited
to the record from his presentation to Rio Grand Regional Hospital on January 18, 2016, where he
reported right lower extremity weakness for two to three months. Id. at 4, citing Pet. Ex. 5 at 39.
Petitioner submitted that this history is consistent with a Table onset of GBS following flu vaccine
and therefore establishes a reasonable basis for the claim. Id.
Respondent argued that petitioner’s claim did not have a reasonable basis “either at the
time it was filed, or after receiving petitioner’s medical records.” Response at 5. Respondent noted
that, although petitioner’s counsel advised that he was contacted on the eve of the statute of
limitations and had to file the petition without the benefit of any medical records, Simmons
determined that reasonable basis cannot be established by an impending statute of limitations. Id.
at 4, citing Scheduling Order at 4, ECF No. 24.
Respondent rejected petitioner’s use of the “totality of the circumstances” standard,
submitting that Simmons rejected the “totality of the circumstances” test in favor of “an “objective
inquiry” that relates to the “factual basis” or “merits of petitioner’s claim.”” Response at 3, quoting
Simmons, 875 F.3d at 633-636. Respondent submitted that petitioner relied on one hospital record
to support reasonable basis, which “is belied by the copious evidence inconsistent with the
petitioner’s affidavit and the GBS onset dates, which a reasonable pre-filing review of said medical
records should have uncovered.” Response at 4-5 (emphasis in original). Respondent cited to his
Rule 4(c) Report for several examples from the medical records where petitioner reported an onset
of symptoms in early 2016 rather than closer in time to his flu vaccination; respondent further
noted that petitioner “attended four weeks of physical therapy in November 2015, and at no point
mentioned lower extremity symptoms.” Further, petitioner reported “feeling well during his
sixteen-hour drive from Illinois to Texas in mid-December, 2015.” Id. at 5, citing Resp. Rpt. at 13.
Respondent submits not only did the record evidence “not satisfy the requirements of a Table
claim,” but “petitioner had significant causation hurdles to overcome…which he ultimately chose
not to do.” Id.
7
In his Reply, petitioner argued that respondent has conflated the reasonable basis standard
with the standard for entitlement. Reply at 1. Petitioner submitted that, if “a special master can
find that contemporaneous medical records are outweighed by later testimony that is ‘consistent,
clear, cogent, and compelling’” then “it is certainly reasonable for an attorney to believe his client’s
statement as a basis for filing a lawsuit when there are medical records that support his statement.”
Id. at 2, quoting Crowding v. Sec’y of Health & Human Servs., No. 16-876V, 2019 WL 1332797,
at *37-38 (Fed. Cl. Spec. Mstr. Feb. 26, 2019) (internal citations omitted). Petitioner further
submitted that respondent relied on a medical record (Pet. Ex. 12) that counsel did not receive until
after the claim had been filed. Moreover, petitioner submitted, the record relied upon by respondent
reflects a statement made by petitioner on January 22, 2016, whereas the record relied upon by
petitioner reflects a statement made closer in time to the vaccination, on January 18, 2016. Id.“Relying on an earlier, more contemporaneous statement is not unreasonable.” Id.Petitioner distinguished the other records cited by respondent as less reliable because the
statements were made in June and July of 2016. Id. at 3. With regard to petitioner’s failure to report
lower extremity weakness to his physical therapist in November 2015, petitioner stated that “[h]is
physical therapy ended around the same time his onset occurred so it is not surprising that he failed
to mention this issue to his physical therapist.” Id. Petitioner further discounted his statement that
he was feeling well during his drive from Illinois to Texas because the statement was made on
August 15, 2017. Id. Petitioner concluded that, although the records “raise issues of fact that may
have been important for determining entitlement” they should not “provide a basis to deny
petitioner’s motion for attorney fees when petitioner’s sworn statement was consistent with the
statement regarding onset in Exhibit 5 which was made earlier than the statements upon which
respondent relies.” Id. at 3-4.
Petitioner relies on his affidavit prepared in 2018 and one medical record on January 18,
2016 reporting right lower extremity weakness for two to three months, to establish reasonable
basis for his claim. As an initial matter, a petitioner’s own statements are not “objective” for
purposes of evaluating reasonable basis. Gumm v. Sec’y of Health & Human Servs., No. 19-0421V,
2020 WL 917040 at *4 (Fed. Cl. Spec. Mstr. Jan. 21, 2020); Chuisano, 116 Fed. Cl. at 291
(petitioner’s affidavit detailing “subjective belief” of vaccine injury did not constitute objective
evidence). Therefore, petitioner’s affidavit carries little weight in determining whether there is
objective evidence to support reasonable basis. Accordingly, petitioner’s argument relies
predominantly on one medical record to support a claim for a Table onset of GBS following flu
vaccine. This is unpersuasive when compared to the many other records which provide onset of
symptoms in early 2016, as well as a lack of definitive diagnosis of GBS. Just as significant, is the
fact that petitioner overlooked an issue which was previously raised during a status conference –
the presence of alternative causes. When he presented to the ER on January 18, 2016, he provided
a 10-day history of cough, congestion, and weakness with five to six days of poor appetite. Pet.
Ex. 5 at 39. He was diagnosed with generalized muscle weakness, bronchopneumonia, and
dehydration; he was prescribed antibiotics for acute bronchitis. Id. at 43-44. Four days later, on
January 22, 2016, he presented to the emergency room at McAllen Medical Center with weakness,
difficulty walking, and difficulty closing his fingers. Pet. Ex. 12 at 202. He reported he had a cold
two weeks before which improved with a Z-pack but one week ago he started feeling sick again;
he further reported five days ago, he noticed focalized weakness that was progressively worse on
the right side. Id. at 285. He was hospitalized for two weeks, tested positive for the influenza A
8
virus and was administered Tamiflu. Id. at 284. He was also diagnosed with community-based
pneumonia. GBS can be caused by influenza virus and other upper respiratory infections.
Moreover, the medical records indicate that petitioner’s diagnosis of GBS was questioned by
several of his treaters; his neurologist, Dr. Silverman, attributed his symptoms to cervical
myelopathy. Indeed, petitioner has severe spinal issues as reflected by multiple scans and eventual
surgery, which could have caused his lower extremity weakness.
Petitioner submits that reasonable basis should be evaluated using the “totality of the
circumstances” standard, rather than a pure “objective evidence” standard.3 In a status conference
held on December 4, 2019, when discussing issues raised by the medical records filed in this case,
petitioner’s counsel stated he was forced to file the petition due to an impending statute of
limitations. See generally, Scheduling Order, ECF No. 24. In his Reply, counsel references records
received after the petition was filed, inferring that he was forced to file the petition due to an
impending statute of limitations when not in possession of the full record.
However, counsel’s billing records indicate that this claim was not brought to him on the
eve of the statute of limitations. Rather, petitioner first contacted counsel in April 2018, six months
before the petition was filed. See Motion for Fees, Ex. A at 5. Medical records were requested in
May 2018. Id. Counsel received petitioner’s medical records from May through July 2018; during
this time, he billed 3.7 hours reviewing the medical records. Id. at 4-5. Counsel then billed 6.2
hours on October 15, 2018 and 4.2 hours on October 16, 2018 for preparing the petition before
filing the petition on October 18, 2018. Id. at 3-4. Accordingly, even if an impending statute of
limitations was considered part of the reasonable basis inquiry, it would not be applicable here.
Simply because counsel’s in-depth review of the medical records in his possession occurred on
October 15 and 16, 2018, while he was preparing the petition for filing on October 18, 2018, would
not create a basis for arguing the petition was filed under pressure of a statute of limitations.
Notably, petitioner filed his petition accompanied by medical records labeled Pet. Ex. 2-10. Id. at
4-5.
The medical records in counsel’s possession at the time that the petition was filed included
the records of petitioner’s physical therapy in November 2015; petitioner’s diagnosis of bronchitis
on January 18, 2016; Dr. Silverman’s records diagnosing cervical myelopathy, not GBS; EMG
results showing no evidence of a demyelinating neuropathy; petitioner’s spinal surgery; and
petitioner’s statement that he was able to drive sixteen hours from Illinois to Texas in December
2015. Upon review of the evidence, petitioner’s claim did not have reasonable basis at the time it
was filed and did not gain reasonable basis during its pendency.
Regardless of what test is used to review the evidence, a review of the medical records in
counsel’s possession at the time of the filing of the petition were sufficient to show there was no
3
Respondent’s argument that the totality of the circumstances test should be completely rejected in favor
of an inquiry focused solely on objective evidence is currently being litigated before the Federal Circuit
and therefore is not a question being addressed in this opinion. See Cottingham v. Sec’y of Health & Human
Servs., 134 Fed. Cl. 567 (2017), appeal docketed, No. 19-1596 (Fed. Cir. Feb. 26, 2019). However,
Simmons did definitively resolve the issue of relying on the statute of limitations as a factor in assessing the
reasonable factual basis for the claim. Therefore, it is immaterial what test is applied.
9
definitive diagnosis of GBS, the onset was outside the medically acceptable time frame of 3 to 42
days, and the statements of petitioner were not corroborated by the medical records.
III. Conclusion
In accordance with the foregoing, petitioner’s motion for attorneys’ fees and costs is
DENIED. The Clerk of the Court is directed to enter judgment in accordance with this Decision.4
IT IS SO ORDERED.
s/ Mindy Michaels Roth
Mindy Michaels Roth
Special Master
4
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice
renouncing the right to seek review.
10