# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS Filed: June 1 1

, 2020

* * * * * * * * * * * * * * * MICHAEL BRAUN

, on behalf of * PUBLISHED

son H.B., a m inor

, *

* No. 17

- 1571V Petitioner

, *

v. * Special Master Nora Beth Dorsey

* SECRETARY OF HEALTH * Attorney s’ Fees and Costs; Rea sonable AND HUMAN SERVICES, * Basis

. * Respondent. * * * * * * * * * * * * * * * *

Joseph P. Shannon

, Shannon Law Group, PC

, Woodbridge, IL , for petitioner. Heather L. Pearlman , U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON ATTORNEY S’ FEES AND COSTS 1

On October 20 , 2017, Michael Braun (“petitioner”)

, on behalf of his minor child, H.B., filed a petition under the National Vaccine Injury Compensation Program (“Vaccine Act” or “the Program”), 42 U.S.C. § 300aa

- 10 et seq. (2012). 2 Petitioner allege d that H.B. developed encephalopathy and resulting developmental delays following his receipt of the FluMist influenza (“flu”) vaccine on October 22, 2014. Petition at 1. On January 25 , 2019, the special master assigned to this case at the time issued a d ecisio n determining petitioner was not entitled to compensation and dismissing the petition. Decision dated Jan . 25 , 2019 (ECF No. 30 ).

1 Because this Decision contains a reasoned explanation for the action in this case, the undersigned is required to post it 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 Manag ement 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 informa tion, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access.

2 The Nat ional Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99

- 660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa

- 10 to

- 34 (2012). All citations in this D ecision to individu al sections of the Vaccine Act are to 42 U.S.C. § 300aa.2

I. PARTIES’ CONTENTIONS 5

A. Petitioner’s Contentions

Petitioner argues (1) the previous special master’s Decision did not apply the appropriate standard for determining reasonable basis; (2) petitioner’s petition possessed reasonable basis;

3 Respondent “d [id] not object to granting petitioner’s motion for leave to file his motion for attorneys’ fees and costs out of time.” Respondent’s Response to Motion for Attorneys’ Fees and Costs (“Resp. Response”), filed Jan. 3, 2020 , at 7 n.1 (ECF No. 42). On January 6

, 2020, the undersigned granted petitioner’s motion for leave. Order dated Jan. 6, 2020 (ECF No. 43).

4 Upon review of petitioner’s documentation in support of his attorneys’ fees and costs, the undersigned determined the total amount of fees and costs r equested differs from the amount provided in petitioner’s motion . According to petitioner’s time entries, petitioner request s $12,763.50 in attorneys’ fees

. See Pet. Mot., Ex. A. As f or costs, petitioner’s costs sheet shows costs totaling $6,719.23. Se e Pet. Mot.

, Ex. C at 1

. However, upon review of the receipts, some receipts were either not provided or do not match the amount listed on the costs sheet summary

. After making the necessary deductions, the undersigned determines petitioner’s costs are $6,573.72. Lastly, the undersigned notes the filing fee is $400 .00 , not $500 .00 as requested in petitioner’s motion

.

5 A detailed factual summary and procedural his tory are provided in the special master ’s D ecision and Judge Campbell

- Smith’s O rder, and will not be re peated here. See Decision at 2

- 5; Order at 2

- 4. On February 22, 2019, petitioner filed a mot ion for review and a memor andum in support. Petitioner’s Motion for R eview , file d Feb. 22, 2019 (ECF No. 31). Respondent filed his response to petitioner’s motion for review on March 22, 2019. Respondent’s Memorandum in Response to Petitioner’s Motion for R eview, filed Mar. 22, 2019 (ECF No. 34). On June 19, 2019, Judge C ampbell- Smith denied petitioner’s motion for re view. Opinion & Or de r (“Order”) dated June 19, 2019 (ECF No. 35).

On December 20 , 2019

, petitioner filed a mot ion for lea ve to file his fee application out of time, along with a motion for attorney s’ fee s and costs

. 3 Petitioner’s Motion for Leave to File

a P etition for Attorney s’ Fee s and Costs, filed Dec. 20, 2019 (ECF No. 41)

. Petitioner ’s counsel requested $11,405.00 in fees and $6,637.77 in costs, plus a $500 filing fe e p aid by p etitioner, for

a tot al request of $18,542.77. 4 Petitioner’s Motion for F ees a nd Costs (“ Pe t. Mot.”), filed Dec. 20, 2019, at ¶ 7 (ECF No . 41-1). Respondent filed a re sponse on January 3, 2020 , opposing petitioner’s mot ion for fe es and costs on the ground that the c laim lacke d a reasonable ba sis. Respondent ’s Re sponse to Motion for Attorne y s’ Fee s and Costs (“ Resp. Response” ), filed Jan. 3, 2020 ( E CF No. 42). Respondent emphasized that the previous spe cial master a ssigned to the

case foun d petitioner’s claim lac ked reasona ble basis. Id. a t 8-9. In hi s reply da ted February 3, 2020, petitioner mainta ined that his petition possesse d reasonable basis. Pet. Reply in Support of His Petition for Attorney’s Fees & C osts (“ Pet. Reply” ), filed Feb. 3, 2020 (ECF No. 44).

This matter is now ripe for adjudication. For the r easons discussed below, the undersigne d DENIES petitioner ’s motion fo r attorneys’ fees and costs

.3

7. Petitioner compares his case to Spahn v. Secretary of Health & Human Services

, 7 where expert reports were required to show a link betwee n the vaccine and injury, and argues that “despite [p]etitioner’s treating doctors linking the injury and the vaccine, the special master denied him the opportunity to file an expert report.” Id. at 8

. In concluding that reasonable basis existed at all t imes throughout litigation, petitioner asserts that claims such as his “are common enough in the [P]rogram to have facial credibility” and cites to medical literature and past decisions in the Program as support. Id. at 8

- 9.

Third, petitioner argues th at he is entitled to fees and costs for work performed th r ough the Decision dismissing his case

. Pet. Reply at 9. Because the previous special master directed petitioner to f

ile a brief showing why his claim should not be dismissed due to lack of reasonable basis after the August 23, 2018 status conference, petitioner maintains he should be entitled to fees and costs associated with the work performed pursuant to the special master’s order. Id. at 9

- 10. He argues that if the undersigned determine s petitioner did not possess reasonable basis to bring the motion for review, then the undersigned should find petitioner possessed reasonable basis through the briefing ordered by the previous special master. Id. at 10.

6 Althen v. Sec ’ y of Health & Human Servs

. , 418 F.3d 1274, 1278 (Fed. Cir. 2005).

7 No. 09

- 386V

, 2014 WL 12721080 (Fed. Cl. Spec. Mstr. Sept. 11, 20 1 4), mot. for rev. denied

, 133 Fed. Cl. 588 (2017). and (3) petitioner is entitled to fee s and costs for th e wor k performed through the Decision. Pet. Reply at 2-10.

First, petitioner contends the previous spe cial master’s Decision did not a pply the appropriate standard fo r determining reasonable basis, and in fact applied a hig her burden of proof. Pe t. Reply a t 3-4. Petitione r explains that the spe cial master, in con cluding pe titioner’s claim lack ed reasonable basis

, applied the Althen 6 prong s, “which dema nds a hig her burden of proof than the r easonable ba sis standa rd,” and “[w]hether a c laim has a reasonable basis is a determination separate and apart f rom whether th e re cord establishes a p reponderant link between the vaccine a nd H.B.’s injury.” Id. T he refore, because “ the special master c onflat[ed] the two standards and [did] not perform[] a full analysis of the [ p]etition’s reasonable basis,” petitione r argues the undersigned should not consider the Decision in her d etermination of whether the petition had reasonable ba sis. Id. at 4.

Second, petitioner maintains his petition had reasonable basis be cause ( a) the pe tition contained sufficient medical and scientific suppo rt for pe titioner’s claim; ( b) petitioner had an expert who was available to opine in his case; and (c ) petitioner’s claim is common in the Program. Pe t. Reply at 4-9. In support of his claim that his petition included sufficient medical and scientific support, petitioner cites to various records referencing the temporal relationship and association betwee n petitioner’s flu vaccine and his de velopment of encephalopathic symptoms. See id. at 5-6.

Petitioner nex t notes tha t his expert, D r. Lawrence Steinman, opined that the petitioner had reasonable basis before pe titioner’ s counsel took the case, and “his willingness to serve as [p]etitioner’s expert and support a theor y of causation is evidence of the [ p]etition’s reasonable basis.” Pe t. Reply at 6. He c ontends that “[t]he mer e f act of Dr. Steinman’s i nvolvement [] should be e nough for thi s c ourt to find that [p]etitioner’s petition had a reasonable basis.” Id. at4

Petitioner concludes his petiti o n had reasonable basis through his motion for review. Pet. Reply at 10. In the alternative, he concludes he possessed reasonable basis through the briefing ordered by the previous special master. Id.

B. Respondent’s Contentions

Respondent argues the evidence and the analyses from the Decision dismissing petitioner’s case and the Order denying petitioner ’s motion for review show petitioner’s claim had no reasonable basis. Resp. Response at 8. Speci fic ally, respondent points to a status conference held on August 23, 2018 where t h e previous special master “impressed upon [p]etitioner [his] strongly

- held view that [the] claim likely face d reasonable basis problems given its over all nature .” Id. (quoting Decision at 4). P articularl y , respondent notes the fact the special
master found “ the record did not support [petitioner’s] assert ion that H.B. had experienced any
t ype of encephalopathic reaction to the FluMist vaccine he received, or that his developmental regression was more than temporally related to any symptom alleged to be vaccine

- induced.” Id. ( quoting Decision at 4). Respondent also notes that the special m aster ’s Decision found “the claim as alleged lack [ed] reasonable basis.” Id. at 9 ( quoting Decision at 8).

Respondent next turns to Judge Campbell

- Smith ’s Order where she concluded that the reasonable basis standard was not applied in the Decision, but even if it was, such error was harmless. Resp. Response at 9 (citing Order at 7). Citing to Judge Campbell

- S mith’s Order,

r espondent argues the special master (1) wrote a “thorough evaluation of the record” in the Decision, which “support[s] [his] unambiguous conclusion that there was no evidence of an encephalopathic reaction close

- in

- time to the vaccination;” (2) “appropriately considered H.B.’s long history of developmental issues;” and (3) “was within his discretion to conclude that an expert report would not cure the deficiencies in the record, which in and of itself was fatal to petitioner’s claim.” Id. (c iting Order at 6

- 10). Respondent concludes that “petitioner has not (and could not) establish that his claim was supported by reasonable basis.” Id.

II. DISCUSSION

A. Reasonable Basis

Under the Vaccine Act, a special master shall award reasonable attorneys’ fees and costs for any petition that results in an award of compensation. § 15(e)(1). When compensation is not awarded, the special master “may” award reasonable attorneys’ fees an d 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.” Id. Here, respondent does not challenge petitioner’s good faith ; i nstead , r espondent asserts that petitioner’s claim had no reasonable basis.

“Special masters have broad discretion in awarding attorneys’ fees where no compensation is awarded on the petition.” Silva v. Sec’y of Health & Human Servs. , 108 Fed. Cl. 401, 405 (2012 ). In the interest of preserving this discretion, courts have declined to impose “a reasonable basis test that turns solely on evidentiary standards.” Chuisano v. Sec’y of Health & Human Servs. , 116 Fed. Cl. 276, 287 (2014). Instead, it has been describ ed simply as “an objective inquiry unrelated to counsel’s conduct.” Simmons v. Sec’y of Health & Human Servs.

, 875 F.3d 632, 636 (Fed. Cir. 2017 ). While incomplete medical records do not prohibit a finding of reasonable basis, Chuisano , 116 Fed. Cl. at 288, the Vaccine Act contemplates “a simple5

review of available medical records to satisfy the attorneys that the c laim is feasible” p rior to filing

. Silva, 108 Fed. Cl. at 405. However, “[a] c laim can lose its reasonable basis a s the case progresses.” R.K. v. Sec’y o f Health & Huma n Servs., 760 F. App ’ x 1010, 1012 (Fed. Cir. 2019) (c iting Perreira v. Sec’y of Health & Human Servs. , 33 F.3d 1375, 1376-77 (Fed. Cir. 1994) ).

Here, the undersigned determines there w as no objective e vidence of encephalopathic symptoms temporally associated with the va ccination to support a finding o f reasona ble basis.

As thoroughly e xplaine d in the special m aster’s Decision and Judge C ampbell

- Smith’s Order, they found no medical record evidence to support petitioner’s contention that H.B. experienced a n ac ute encephalopathic reaction associated with his flu vaccine. T h e unde rsigned has reviewed the medical re c ords a nd concurs.
At eight-years old, H.B. received the flu vacc ine at iss ue. H.B ’s pre -vaccination history was significant for d evelopmental and speech delays beginning more than six years prior to vaccination. At his e ighteen-month well-visit, H.B. was diagnosed with a delay in speech development. Similar diagnoses and observations were mad e a t his two-, three-

, and four-year well-visi ts. At his four -year well- visit, H.B.’s doctor also no ted sensory iss ue s. At his five -year well-visit, H.B. was assessed with a li stening c omprehension disabil ity

. At pre school, H.B. exhibited language ski lls in the low range. At his six- and seven-year well-visits, H.B. was noted to be participating in occupational and speech therapy

. The r ec ords clearly show H.B. began experiencing d evelopmental problems at eighteen-months old

— more than six years prior to H.B.’s receipt of the va ccine at issue.

Petitioner maintains that an educational assessment dated over one mont h postvaccination a nd a c omprehensive pediatric ne urodevelopment evaluation dated four months postvaccination support a temporal relationship between the vacc ine at issue a nd H.B.’s regression and development of encephalopathic symptoms. Howeve r, none of the m edical records from that ti me pe riod make a ny reference to H.B. having s ymptoms of or be ing diagnosed with encephalopathy. H.B

. received the flu vaccine a t issue on October 22, 2014. Approximately two months later, on December 1 5, 2014, H.B. sa w a n eurologist who diagnose d him with AttentionDeficit/Hyperactivity Disorder (“ADHD”) . ADHD is not e ncephalopathy

. Further, there was no reference a t that visit to H.B .’s vaccination. Pet. Ex hibit (“Ex.”) 1 at 219-20. Moreove r, on January 28, 2015, H.B. visited his pediatrician wh o documente d “ [n]o obvious sig ns of increasing . . . regression” a nd assessed H.B. with “ [l]earning diff iculties ” and possible

“ underlying de velopment delay.” Id. a t 302-03. The pe diatrician did not no te any f indings that were consistent with encephalopathy or diagnose H.B. with encephalopathy.

Petitioner further argue s the comprehensive pe diatric ne urodevelopment evaluation conducted in February 2 018 discu ssed “the influenza infe ction . . . as a pos sible c ause of [H.B.’s] regression.” Pe t. Reply at 5 ; see Pet. Ex. 1 at 1367. Howeve r, the comprehensive pediatric neurodevelopme nt evaluation merely c ontains a n ote to rule out the f lu infection

— not the flu

vac cine

— as a c ause.
As further support, petitioner relies on a letter from Dr. Rosario Trifiletti , H.B.’s neurologist, written on August 3, 2018

— almost fo ur yea rs after the va ccination at issue. Pet. Ex. 3 at 1 (ECF No. 27-3). Dr. Trifiletti’s later

- in- time letter states that he evaluate d H.B. for an “autoimmune e ncephalopathy [ ], which seemed to occur with sudden onset following a n6

influenza va ccine in early 2015.” Id. Howeve r, Dr. Trifiletti did not e xamine H.B. until April 2015 and he did not dia gnose H.B. until over on e-year post-vaccination, on Nove mber 20, 2015. See Pet. Ex. 1 at 1153, 1 159 -61. Additionally, in three of Dr. Trifilett i’s previous letter s written on July 5, 2016, February 15, 2017, and July 1, 2017, Dr. T rifiletti writes H.B. “ presented in early 2015 with the sudden onset of rage a nd decline” and H.B. “continues to have sig ns [of] autoimmune e ncephalopathy” but fails to mention any v accination . Id. at 1145, 1180, 1210.

Based on a re view of the contemporaneous medical records from birth to one yea r after H.B.’s receipt of the flu vaccine, there is no obje ctive e vidence to su pport a re asonable conclusion that H.B. sustained encephalopathy or any oth er vaccine-related inj ur y.

P etitioner relies on petitioner’s affidavit to support a finding of a tempor a l relationship. In his affidavit, petitioner a verred that within days, he “ notice d a de terioration in H.B.’s neurological function, including a d eterioration in his fine mot or skills,” a nd within months, he “observe d H.B

. experiencing h allucinations and exhibiting incr easingly a nxious behaviors.” Pet. Ex. 1 at 1443. However, without c ontemporaneous medical rec ords supporting pe titioner’s affidavit, the a ffidavit alone is insufficient. See, e.g., § 13(a)(1) (noting c ompensation cannot be awarded “based on the claims of petitioner alone ”); Murphy v. Sec’y of Health & Huma n Servs.

, 30 Fed. Cl. 60, 61 (1993 ) (affirming the special master ’ s finding of no reasonable basis whe n the medical records contradic ted petitioner’ s claims), aff’d , 48 F.3d 1236 (Fed. C ir. 1995) ; Mathis v. Sec’y of Health & Human Servs. , No. 08- 570V, 2014 WL 7664951, at *14 (Fed. Cl. Spec. Mstr. Dec. 23, 2014) (“[R] easonable basis . . . cannot be e stablished if the medic al records do not support the claims made in the pe tition. ”).

There is nothing in the m edical rec ords to sup port petitioner’s claim that a d eterioration in H.B. began within days, or even within months, of vaccination. In Chuisano, the Court found no evidence suppo rting a c ausal connection a nd instead, petitioner relied solely on petitioner ’ s affidavit, which the C ourt determined insufficient. Chuisano, 116 Fed. C l. at 290.

I n Hooker, the special master de termine d petitioners had no reasonable ba sis in part because “medical records plainl y c ontradict[ed] se veral of [p]etitioners’ ke y factual allegations as to the ti ming or existence of symptoms.” Hooker v. Sec’y o f Health & Human Servs. , No. 02- 472V, 2017 WL 303394 0, at *17 (Fed. Cl. Spec. Mstr. Apr. 11, 2017). Although petitioners contende d S.R.H.’s symptoms bega n after vaccination, the special master d etermined the medical records showe d S.R.H.’s symptoms first appeared prior to vaccination . Id. Furthermore, representations from petitioners showed sympt oms were pr ese nt prior to vaccination a nd were c ontradicted by the contemporaneous medical records. Id. at *18-20.

The spe cial maste r in Hashi found no reasonable basis to pursue a c laim that was strongly contradicted by the medical records. Hashi v. Sec’y o f Health & Huma n Servs. , No. 08-307V, 2016 WL 5092917, *10-11 (Fed. Cl. Spec. Mst r. Aug. 25, 2016). The spe cial master found that “the divergence b etwee n the [p]etitioners’ factual assertions and the f acts shown by the medical

rec ords was especially great.” Id. at *11 (emphasis omitted).

Here, there is nothing in the medic al records to support petitioner’s contentions. Petitioner ca nnot use a n affidavit of H.B .’s father, who is not a he alth care provider, to establish reasonable ba sis whe n the medic al records do not support a finding o f encephalopathy

. Like the courts in Chuisano, Hooker, and Hashi , the undersigne d finds petitioner’ s allegations alone insufficient.7

T he C lerk of C ourt shall enter judgment in accordance herewith. 8

IT IS SO ORDERED.

8 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review. Petitioner nex t argues Dr. Steinman’ s willingne ss to serve a s petitioner’s expert in this case is evidence of the pe tition’s reasonable basis

. However, a findin g of reasonable basis “requires more than the filing of medica l records and retaining an ‘expert willing to testify.’” Fuesel v. Sec’y of Health & Huma n Servs. , No. 02-95V, 2014 WL 1379241 , at *4 (Fed. Cl. Spec. Mstr. Mar. 19, 201 4) ; Young v. Sec’y of Health & Huma n Servs. , No. 05- 207V, 2014 WL 1509885, at *5 (Fed. Cl. Spec. Mstr. Mar. 27, 201 4). Further, “ expert testimony in and of it self does not de termine r easonableness.” Murphy, 30 Fed. C l. at 62 (citing Perreira v. Sec’y of Health & Human Servs.

, 27 Fed. Cl. 29, 33 (1992) ( finding it unreasona ble to gra nt attorneys ’ fees based on the mere e xistence of expert testimony) ).

I n Fuesel , the special master de nied petitioner’s application for interim costs because he found pe titioner had not established a re asona ble basis to proceed or that the int erim costs soug ht

were reasona ble. Fuesel , 2014 W L 1379241, at *4-5. Like the undersigned, the special master in Fuesel found “the medical records filed . . . do not demonstrate or e ven suggest vaccine causation.” Id. at *4. Additionally, the Fuesel petitioners, like petitioner here, argued reasonable basis e xisted because the y ha d an “expert willing to testify.” Id. I n Fuesel

, the special master determined that he “d[ id] not have suff icie nt evidence to conclude that this claim possesses a reasonable ba sis to proceed, based merely upon counsel ’ s assertion that [the expert] might in the future off er a case-specific opinion favorable to [p]etitioners []

. ” Id. U pon review of the medic al records filed in this case, any finding s an expert might have off ere d would not have ove rcom e the deficienc ies in petitioner’s case.

As support for pe titioner’s application for attorneys’ fee s and costs, petitioner attached an email exchange betwee n petitioner’s counsel and Dr. Steinman in early December 2017 . Before

counse l appeared in th is case , counsel emailed Dr. Steinman asking if he could assis t with the

case a nd whethe r he believed the case ha d merit , to which Dr. Steinman responded this “case seems plausible for fili ng. ” Pet. Reply, Ex. 1 at 1-2. The e mail exchange

, however, provides no evidenc e o r objective b asis to show that Dr. Steinman reviewed medica l records or prov ided a preliminary medic al opinion to support the allegations set forth in the pe tition.

Petitioner argue s “[t]he mer e f act of Dr. Steinman’s involvement [] shou ld be e n ough for this court to find that [p]etitioner’s petition had a reasonable ba sis.” Pe t. Reply at 7. However, “expert testimony in and of itself doe s not de termine re asonableness.” Murphy, 30 Fed. C l. at 62. Therefore, the undersigned finds that Dr. Stei nman’s willingness to review the medical

rec ords and pr ovide an opinion does not support a finding of reasonable basis.

III. CONCLUSION

For the r easons discussed a bove, the undersigned finds that petitioner is not entitled to an award o f reasona

ble attorneys’ fees and costs

.8 s/Nora Beth Dorsey Nora Beth Dorsey Special Master