AMBER ETHERIDGE

,

Petitioner,

v.

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent. Chief Special Master Corcoran

Filed: June 2 8 , 2022

Special Processing Unit (SPU);

Attorney’s Fees and Costs;

Reasonable Basis; Influenza (Flu)

Vaccine; Guillain

- Barré Syndrome

(GBS)

Milton Clay Ragsdale, IV, Ragsdale LLC, Birmingham, AL , for P etitioner.

Darryl R. Wishard

, U.S. Department of Justice, Washington, DC, for R espondent.

DECISION ON ATTORNEY’S FEES AND COSTS 1

On March 19, 2018

, Amber Etheridge filed a petition for compensation under the

National Vaccine Injury Compensation Program, 42 U.S.C. §300aa

- 10, et seq. 2 (the

“Vaccine Act”). “ Petitioner alleges that she incurred Guillain

- Barré s yndrome due to an

influenza (“flu”) vaccin e she received on September 24, 2012, casting her claim as a

T able injury under 42 U.S.C. §300aa

- 14, as amended effective March 21, 2017. ” Petition

at ¶ 7

.

On October 30 , 2020, I issued a decision dismissing Petitioner’s case based upon

untimeliness and a failure to satisfy the statutory six

- month severity requirement . ECF

No. 40 . Judgment entered on December 2, 2020. ECF No. 42

.

1 Because this unpublished D ecision contains a reasoned explanation for the action in this case, I am

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 Management and Promotion of Electronic

Government Services). This means the D ecision will be available to anyone with access to the

internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact

medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy.

If, upon review, I agree that the identified material fits within this definition, I will redact such material from

public access.

2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99

- 660, 100 Stat. 3755. Hereinafter, for ease

of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §

300aa (2012). 

# In the United States Court of Federal Claims

OFFICE O F SPECIAL MASTERS

No

. 18-0411V

UNPUBLISHED2 I. Applicable Legal Standards

Motivated by a desire to ensure that petitioners have adequate assistance from

counsel when pursuing their claims, Congr ess determined that attorneys’ fees and costs

may be awarded even in unsuccessful claims. H.R. R EP

. N O . 99

- 908, at 22 reprinted in

1986 U.S.C.C.A.N. 6344, 6363; see also Sebelius v. Cloer

, 133 S.Ct. 1886, 1895 (2013)

(discussing this goal when determining that attorneys’ fees and costs may be awarded

even when a petition was untimely filed). As Judge Lettow noted in Davis , “the Vaccine

Program employs a liberal fee

- shifting scheme.” Davis v. Sec’y of Health & Hum. Servs.

, 105 Fed. Cl. 627, 634 (2012). It may be the only federal fee

- shifting statute that permits

unsuccessful litigants to recover fees and costs

.

However, Congress did not intend that every losing petition be automatically

entitled to attorney ’ s fees. Perre i ra v. Sec’y of Health & Hum. Servs. , 33 F.3d 1375, 1377

(Fed. Cir. 1994). And there is also a prerequisite to even obtaining fees in an unsuccessful

case. The special master or court may award attorney’s fees and costs in a case in which

compensation was not awarded only if “that the petition was brought in good faith and

there was a reasonable basis for the claim for which the petition was brought .” Section

15(e)(1). Reasonable basis is a prerequisite to a fee award for unsuccessful cases

– but

establishing it does not automatically require an award, as special masters are still

empowered by the Act to deny or limit fees. James

- Cornelius on b ehalf of E. J. v. Sec'y

of Health & Hum

. Servs

., 984 F.3d 1374 , 1379 (Fed. Cir. 2021) (“even when these two

requirements are satisfied, a special master retains discretion to grant or deny attorneys’

fees”).

As the Federal Circuit explained, whether a discretionary fees award is appropriate

involves t wo distinct inquiries

– a subjective one when assessing whether a petition was

brought in good faith

, and an objective one when ascertaining whether reasonable basis

existed. Simmons v. Sec’y of Health & Hum. Servs., 875 F.3d 632, 635 (quoting Chuisano On May 26, 2021, Petitioner filed a moti on for attorney’s fees and costs, requesting

an award of $39,779.75. ECF No. 43. Maintaining that Petitioner lacked a reasonable

basis for his claim, Respondent opposes an award of attorney’s fees and costs. ECF No.

44

. On June 7, 2021, Petitioner filed hi s reply, addressing Respondent’s arguments and

requesting an additional award of $1,560.00 for time expended preparing the reply. ECF

No. 45

.

For the reasons discussed below, Petitioner has failed to establish there was a

reasonable basis for h er claim. Thus, s he is not entitled to an award of attorney’s fees

and costs, and the fees motion is denied.3

v. Sec’y of Health & Hum. Servs.

, 116 Fed. Cl. 276, 289 (2014)). “Good faith is a

subjective test, satisfied through subjective evidence.” Cottingham v. Sec’y of Health &

Hum. Servs., 971 F.3d 1337, 1344 (Fed. Cir. 2020) (“ Cottingham I”)

. “[T]he ‘good faith’

requirement . . . focuses upon whether petitioner honestly believed he had a legitimate

claim for compensation.” Turner v. Sec’y of Health & Hum. Servs. , No. 99-0544V, 2007

WL 4410030, at *5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007).

Cases in which good faith has been found to be lacking often involve petitioners

who failed to produce or actively concealed evidence undermining their claims. PurnellReid v. Sec’y of Health & Hum. Servs., No. 18-1101V, 2020 WL 2203712 (Fed. Cl. Spec.

Mstr. Apr. 6, 2020); Cro wding v. Sec’y of Health & Hum. Servs., No. 16-0876V, 2019 WL

1332797 (Fed. Cl. Spec. Mstr. Feb. 26, 2019); Heath v. Sec'y of Health & Hum. Servs

., No. 08- 00 86V, 2011 WL 4433646 (Fed. Cl. Spec. Mstr. Aug. 25, 2011); Carter v. Sec'y of

Health & Hum. Servs

., No. 90-3659V, 1996 WL 402033 (Fed. Cl. Spec. Mstr. July 3,

1996)

.

“Additionally, a petitioner’s attorney’s conduct may also be relevant when

evaluating good faith.” Purnell-Reid , 2020 WL 2203712, at *6. “ Counsel still have a duty

to investigate a Program claim even if they reasonably find their client to be a credible

individual. ” Cortez v. Sec'y of Health & Hum. Servs ., No. 09-0176V, 2014 WL 1604002,

at *8 (Fed. Cl. Spec. Mstr. Mar. 26, 2014). Factors, such as a looming statute of limitations

and the conduct of counsel, are properly considered when determining whether good faith

exists

– but do not bear on the claim’s objective basis. Simmons, 875 F.3d at 636;

Amankwaa v. Sec'y of Health & Hum. Servs

., 138 Fed. Cl. 282, 289 (2018) ( “ the effort

that an attorney makes to investigate a claim or to ensure that a claim is asserted before

the expiration of the statutory limitations period . . . are properly evaluated in determining

whether a petition was brought in good faith ”).

Reasonable basis looks to objective proof in the record in support of a claim.

Cottingham I, 971 F.3d at 1344. The reasonable basis requirement thus examines “ not at

the likelihood of success [of a claim] but more to the feasibility of the claim.” Turner , 2007

WL 4410030, at *6 (quoting Di Roma v. Sec’y of Health & Hum. Servs., No. 90-3277V,

1993 WL 496981, at *1 (Fed. Cl. Spec. Mstr. Nov. 18, 1993))

. The Federal Circuit recently

explained “that a reasonable basis analysis is limited to objective evidence, and that

su bjective considerations, such as counsel’s subjective views on the adequacy of a

complaint, do not factor into a reasonable basis determination.” James-Cornelius

, 984

F.3d at 1379.

Although clearly easier to meet than the preponderant standard required for

compensation, “courts have struggled with the nature and quantum of evidence

necessary to establish a reasonable basis.” Wirtshafter v. Sec’y of Health & Hum. Servs.,4 II. The Parties’ Arguments

Petitioner maintains that the requisite good faith and reasonable basis exist in this

case. Petitioner’s Application for Final Attorney’s Fees and Costs (“Motion”) at 1

- 4 , ECF

No. 43

. Regarding good faith, she insist s t hat “[t]he claim was pursued by counsel

following a due diligent investigation and upon a good faith legal analysis of the law and

factual basis for the claim.” Id. at 2. To establish reasonable basis, she cites medical

record entries which she argues prov ide sufficient evidence that she suffered six months

of sequelae of a GBS illness. She also cites a 2019 decision involving a determination by

another special master that the lookback provision applied to a GBS claim

, with onset

outside the period required for a Table injury

, to highlight the un certainty regarding the

applicability of the “ look

- back provision ” 3 at the time of the Petition’s filing . Motion at 2

(citing Sim

pson v. Sec’y of Health & Hum. Servs., No. 17

- 0944V, 2019 WL 11815360

(Fed. Cl. Spec. Mstr. Aug. 7, 2019)

.

As evidence that her illness could be properly characterized as GBS, Petitioner

emphasizes medical records from her first hospitalization showing the consideration of

3 The lookback provision is the commonly used term for the exception to the usual statute of limitations

which is allowed following a revision to the Vaccine Injury Table. Section 16(b ). See Clavio v. Sec’y of

Health & Hum. Servs., No. 17

- 1179V, 2022 WL 1078 175 (Fed. CL. Spec. Mstr. Feb. 16, 2022) (for a

discussion of the relevant caselaw regarding the applicability of the lookback provision

– specifically

whether it applies to actual causation, as well as Table, claims). 155 Fed. Cl. 665 at 671 (Fed. Cl. 2021). “[I]t is generally accepted that ‘a petitioner must

furnish some evidence in support of the claim.’” Id. (quoting Chuisano, 116 Fed. Cl. at

288, emphasis added in Wirtshafter ). Citing the prima facie elements of a successful claim

described in Section 11(c)(1), the Federal Circuit recently instructed that the level of the

objective evidence sufficient for a special master to find reasonable basis should be “more

than a me re scintilla but less than a preponderance of proof.” Cottingham I , 971 F.3d at

1345- 46. “ This formulation does not appear to define reasonable basis so much as set its

outer bounds. ” Cottingham v. Sec’y of Health & Hum. Servs., 159 Fed. Cl. 328, 333, (Fed.

Cl. 2022) ( “Cottingham II”) . “[T]he Federal Circuit’s sta tement that a special master ‘ could ’

find reasonable basis based upon more than a mere scintilla does not mandate such a

finding. ” Cottingham II

, 159 Fed. Cl. at 333 (citing Cottingham I , 971 F.3d at 1346)

.

Furthermore, the issue of reasonable basis is not a static inquiry. The reasonable

basis which existed when a claim was filed may cease to exist as further evidence is

presented (which collectively casts doubt on a claim’s objective basis when viewed in

toto )

. Perreira , 33 F.3d at 1377. In Perreira, the Federal Circuit affirmed a special master’s

determination that reasonable basis was lost after Petitioner’s “ expert opinion, which

formed the basis of the claim, was found to be unsupported by either medical literature

or studies .” Id. at 1376.5 4 This medical record is from a Feb ruary 11, 2014 visit to her primary care provider (“PCP”) regarding a

possible ulcer. Exhibit 4 at 7. Thus, the citation appears to be erroneous.

5 In her Motion, Petitioner provides a W estlaw citation for this decision. See Motion at 2, 4. However, the

citation (2021 WL 68808) appears to be incorrect. Id. at 2. GBS as a possible diagnosis, the inclusion of a round of IVIG therapy in her treatment,

a nd the abnormal results of an EMG. Motion at 2 (citing Exhibits 4 at 40; 5 at 16, 21; 6 at

152). She insists the medical records show there was a lack of any alternative cause for

her symptoms. Motion at 2-3.

Regarding the duration of her symptoms, Petitioner argues that her initial GBS

symptoms were severe

– requiring hospitalizations on two occasions with an intervening

inpatient rehabilitation. Motion at 3-4. Maintaining that she continued to suffer severe

migraines from a lumbar puncture she underwent during her first hospitalization (Exhibit

4 at 7 4 ), Petitioner cites to symptoms reported in early February and late May 2013

– four

and eight months post-vaccination (Exhibit 10 at 104, 46), as evidence that she continued

to suffer residual effects of GBS. Motion at 3. Petitioner argues that “it is reasonable to

infer that a GBS case requiring extensive hospitalization and in-patient rehabilitation

would continue to produce residual effects for six months, and Petitioner’s lay testimony

is consistent with this reasonable inference.” Motion at 3-4 (citing James-Cornelius, 984

F.3d at 1378- 79 5 ).

Opposing the motion for fees and costs in this case, Respondent insists that

Petitioner “has failed to establish a reasonable basis for her claim.” Respondent’s

Opposition to Petitioner’s Motion for Fees and Costs (“Opp.”) at 1

, ECF No. 44

. Respondent cites the lack of evidence that Petitioner suffered from GBS as alleged, or

that she suffered residual symptoms for more than six months. Id. at 6-9. He also

maintains that I have previously found reasonable basis lacking in cases involving an

inability to meet the requirements of the Vaccine Act’s lookback provision due to a d earth

of injury evidence. Opp. at 8 (citing Gumm v. Sec’y of Health & Hum. Servs., No. 19-

0421V, 2020 WL 917050 9Fed. Cl. Spec. Mstr. Jan. 21, 2020 and Bonsai v. Sec’y of

Health & Hum. Servs., No. 19-0420V, 2020 WL 1503276 (Fed. Cl. Spec. Mstr. Feb. 20,

20 20)).

In her reply, Petitioner discusses some of the recent caselaw regarding reasonable

basis and the proper weighing of evidence. Petitioner ’ s Reply to Opp. to Mot io n ( “ Reply ” )

a t 1-3, ECF No. 45

. To counter Respondent’s arguments regarding the nature of her

injury, she again provides citations to the medical records from her first hospitalization

. Id. at 3- 7 (Exhibits 5 at 11-12, 15-16; 6 at 152; 10 at 133; 12 at 74). She discounts the

caselaw cit ed by Respondent, arguing that those cases were dismissed not for an inability

to meet the requirements of the Vaccine Act’s lookback provision, but because of a lack6 III. Medical Records and Other Evidence

The medical records show that Petitioner received the flu vaccine alleged as

causal in this case wh ile hospitalized from September 23

- 25, 2012. Exhibit 1 at 9. She

had re turned to the hospital several days after undergoing a laparoscopic Nissen

fundoplication 8 on September 19 th , complaining of abdominal pain and nausea thought

to be caused by her failure to take her herpes simplex virus (“HSV”) medication as

instructed. Exhibits 4 at 21

- 22; 5 at 45.

Twenty

- two years old and married with two small children at the time of vaccin atio n

(Exhibit 5 at 39) , Petitioner suffered from prior conditions including “large volume reflux,

fibromyalgia, HSV, chronic pain syndrome, migraine headaches, sleep disturbances,

situational depression, [and] hypothyroidism.” Exhibit 5 at 40 ; see also Exhibit 7 a t 16

(report of increasing migraine headaches approximately nine months prior to vaccination

6 Although Petitioner provided an incorrect citation to this entry, it ap pears that this is the statement she

was referencing. See infra note 7

.

7 This citation is obviously incorrect

, as Exhibit 11 contains only 11 pages. It appears that Petitioner meant

to cite to Exhibit 10 at 46

, which is one page from her May 2013 emergency room visit. Although the treating

physician’s statement is not found on page 46, the record is from Petitioner’s May 26, 2013 emergency

room visit.

8 “A Nissen fundoplication is a surgery to treat gastroesophageal reflux disease (GERD). During the

procedure, a surgeon creates a sphincter (tightening muscle) at the bottom of the esophagus to prevent

acid reflux. Most people notice a significant decrease in acid reflux symptoms after the surgery.”

https://my.clevelandclinic.org/health/t reatments/4200

- nissen

- fundoplication (last visited June 22, 2022). o f medical reco rds reflecting a ny GBS diagno sis. Reply at 6

.

When addressing the severity requirement, Petitioner emphasizes the assertions

made in her affidavit regarding the severity and duration of her symptoms, insisting that

her testimony “is corroborated by and is consistent with the medical record evidence of a

severe neurological injur y.” Reply at 7. She argues that the opinion of the physician who

treated Petitioner when she visited the emergency room on May 26, 2013

- that

Petitioner’s “examination [wa]s not consistent with Guillian barre” (Exhibit 10 at 63), 6 was

meant to apply only to her chest pressure and right arm weakness, and not to the

symptoms she reported in her lower extremities. Reply at 8-9 (citing Exhibit 11 at 46). 7

She provides additional citations to affidavits from herself and her mother - executed in

January 2019 (Exhibits 19 at 2; 20 at 1) and to medical records regarding multiple

complaints, including headache and migraine pain in July 2013 and January 2014

– ten

and fifteen months post-vaccination (Exhibits 10 at 24; 18 at 18) and migraine and lower

leg pain in October 2018 - more than six years post-vaccination (Exhibit 17 at 7- 8) . Reply

at 8-11.7 9 Henoch

- Schonlein Purpura is a disorder causing inflammation and bleeding in the small blood vessels.

See https://www.webmd.com/skin

- problems

- and

- treatments/henoch

- schonlein

- purpura

- causes

symptoms

- treatment#1 (last visited on June 25, 202 2 ). - on Janua ry 19

, 2012)

. She reported that she was experiencing marita l difficulties a t this

time

. Id. a t 39.

Five days post-vaccination, Petitioner was again admitted to the hospital - this time

complaining of lower extremity weakness and numbness which had worsened and

developed into upper extremity weakness with some difficulty breathing. Exhibit 5 at 10.

Assessed with likely GBS, Petitioner was admitted to the ICU, and neurology and

pulmonary consultations were ordered. Id. at 11. However, the neurologist noted that

Petitioner’s “examination seems to be fluctuating, somewhat, since some physicians

seem to have gotten deep tendon reflexes . . [and he could not] elicit any reflexes at

present,” adding that “I think there is some effort related component to her weakness.”

Exhibit 12 at 34. Additionally, the physician who first saw Petitioner believed her

symptoms were due to a viral flare, similar to the Henoch-Schonlein Purpura 9 related one

she suffered when a child which caused temporary lower extremity paralysis. Exhibit 5 at

13 -14. And the results of a lumbar puncture, performed on October 1 st

, were normal.

Exhibit 6 at 136. Still, after an EMG (performed on October 2 nd ) showed abnormal results

“suggestive of a proximal polyradiculopathy such as may be seen in [GBS]” (Exhibit 4 at

40), Petitioner was prescribed five days of IVIG treatment. Exhibit 5 at 29.

Thereafter, Petitioner showed good improvement and was discharged to inpatient

rehabilitation on October 9, 2012. Exhibit 5 at 5, 30-36. By the end of her inpatient

rehabilitation

– on October 20, Petitioner “ha[d] made tremendous progress with all

activities

. . . [and] was independent in all areas of self- care.” Exhibit 10 at 135. At that

time, Petitioner suffered from only some mild dizziness and a feeling of weakness in her

bilateral lower extremities. Id.

Throughout this time, Petitioner’s treating physicians continued to question her

GBS diagnosis. On October 8 th

, for example, one neurologist considered whether

Petitioner’s condition should be characterized as GBS or toxic neuropathy . Id. at 36. The

physician who discharged Petitioner to inpatient rehabilitation on October 9, 2012, noted

that intermittently her knee reflexes were better than would have been expected with

GBS. Exhibit 5 at 5. He expressed concern that Petitioner “might be having some

secondary gain as she had been through a difficult marriage.” Id.

On October 26, 2012, Petitioner returned to the emergency room with complaints

of a migraine headac he when she woke that morning and “[a]t approximately 4 p.m. th[at]

evening

. . . abrupt onset weakness of her legs where she could not walk unassisted.”8

Exhibit 10 at 129. After remarking on the atypical nature of Petitioner’s symptoms during

her first hospitalization as revealed by the lab results from that time, the treating physician

opined that “[h]er current syndrome [wa]s also atypical in the rapid and abrupt onset of

symptoms with motor and sensory disturbances.” Id. at 131. Observing that Petitioner

“complain[ed] significantly of a severe migraine but appear[ed] to be quite pleasant,

talking in the room,” he pondered whether a “[p]sychosomatic process [wa]s also

possible.” Id. Petitioner was admitted for close observation and prescribed medication for

a possible urinary tract. Id. at 132. During this hospital stay, it was discovered that

Petitioner had again been noncompliant with her HSV medication which was thought to

be the cause of her symptoms. Id. at 124-27. The results of a lumbar puncture and nerve

conduction were normal and unremarkable, respectively. Id. at 117. In the entry regarding

her October 31, 2012 discharge, it was noted that Petitioner was “more ambulatory on

the day prior to being discharged, . . . [but] was able to ambulate to the bathroom” at that

time

. Id. at 118.

On November 2, 2012, Petitioner visited the emergency room, complaining of a

headache which began after her lumbar puncture five days earlier. Exhibit 18 at 9-11.

She was diagnosed with a spinal headache and administered morphine, Zofran, and

caffeine injections. Id. at 11-14.

Petitioner was thereafter not seen again by any medical treaters for three months,

until February 4, 2013, when she visited the emergency room again for headache pain

. Exhibit 6 at 107. A CT scan of her head revealed evidence of acute sinusitis. Id.

Three months later (and now nearly nine months post-vaccination), Petitioner was

seen in the emergency room just before midnight on May 26, 2013, when she reported a

tightness in the chest and stinging sensation in her hand which began earlier that evening

and h ad progressed to a general feeling of overall weakness. Exhibit 10 at 57. During the

physical examination, the treating physician described Petitioner as “in no acute distress

and does not appear uncomfortable.” Id. at 59. Although Petitioner indicated her

symptoms felt close to what she had experienced the previous year when treated for

GBS, the physician opined that h er “examination [wa]s not consistent with [GBS]” and

discharged Petitioner with a diagnosis of atypical chest pain. Id. at 63. There is nothing in

this medical record to indicate the treating physician’s findings applied only to the

symptoms in Petitioner’s chest and hand, and not to her feeling of overall weakness.

During the subsequent eight-month period, Petitioner was seen for headache and

migraine pain on two occasions. On July 4, 2013, Petitioner visited the emergency room

for a knot behind her left ear, a headache, blurred vision, and dizziness. Exhibit 10 at 23.

The knot was determined to be a cyst, and Petitioner symptoms improved after two hours.

Id. On January 25, 2014, Petitioner was seen for a migraine headache and light sensitivity9 IV. Analysis

Although insufficient to satisfy the greater burden of proof required to establish

entitlement, the minimal evidence of a possible GBS illness contained in the medical

records from Petitioner’s first hospitalization and potential applicability of the Vacci ne

Act’s lookback provision provide a rationale for filing this claim despite its untimely nature.

It is unlikely, but still feasible, that Petitioner may have successfully shown that her injury

met the requirements for a Table GBS or that she was entitled to the protection afford by

the lookback provision even if her GBS did not satisfy all Table elements. However, even

if there is a scintilla of proof regarding Petitioner’s alleged injury, the record does not

objectively establish six months sequelae

– me aning reasonable basis did not exist on

this matter. for approximately ten days, a three-day history of a cough, and a four-day history of body

aches and weakness. Exhibit 18 at 18-19. Describing her symptoms as different than her

prior symptoms of GBS, Petitioner specifically indicated she had “[n]o weakness in her

arms or legs, no numbness, [and] no tingling.” Id. at 23. Agreeing that he saw “[n]o signs

or recurrent GBS,” the treating physician opined that Petitioner’s headache [wa]s an

exacerbation of [her] underlying chronic migraines.” Id. at 25.

Throughout the remainder of 2014 until early 2018, Petitioner received treatment

for numerous conditions and illnesses including abdominal pain and nausea, ulcers, HSV,

fibromyalgia, migraines, insomnia, illnesses such as the flu, viral gastroenteritis, and a

cough, amphetamine use, a rash, vision loss, follow-up after a car accident, and sinus

disease. Exhibits 4 at 3-13, 33-39, 44- 49; 6 at 14- 97 ; 8 at 3- 49

. There are no reports of

weakness, pain, or tingling in her legs or other GBS-related symptoms in the medical

records from any of these visits.

On October 5, 2018

– more than six years post-vaccination and almost seven

months after the Petition was filed - Ms. Etheridge visited a new neurologist, complaining

of persistent and constant weakness in her legs since suffering GBS in 2012. Exhibit 17

at 6. She reported that she had developed migraine-like headaches during her GBS which

continued periodically, “at least once a week on average.” Id. Observing that Petitioner’s

pain was “more of a deep soft tissue pain than a superficial neuropathic pain,” the

neurologist indicated that the relationship of this current pain to Petitioner’s previous GBS

“[wa]s uncertain.” Id. at 8. He added that “[s]ome exam findings might suggest some

radiculopathy.” Id.

In early January 2019, Petitioner and her mother executed affidavits describing

ongoing headaches, weakness, fatigue, and pain which they attribute to the GBS illness

Petitioner is alleged to have suffered in October 2012. Exhibits 19-20.10

Petitioner maintains that , since her vaccination, she “ha[s] experienced symptoms

of Guillain- Barre Syndrome, including numbness, weakness, headaches, and fatigue.”

Exhibit 2 at ¶ 5; accord. Exhibit 19 at ¶ 10. She insists that her assertions of a severe

GBS illness; continued GBS symptoms

– specifically in February, May, and July 2013

, January 2014, and October 2018; and the lack of any alternative cause for her symptoms;

are collaborated by and consistent with the medical records evidence in this case. Motion

at 2-3; Reply at 7. However, a review of the medical records reveals that P etitioner’s

claims are not supported and often refuted by the information contained therein.

Although Petitioner attributes the totality of her hospitalizations and intervening

inpatient rehabilitation to vaccine caused GBS, the contemporaneously-created medical

records do not preponderantly establish the existence of a severe and ongoing GBS

illness. Indeed - GB S was only considered a possible diagnosis for Petitioner’s symptoms

during her first hospitalization. But the record shows that thereafter it was questioned

during her subsequent inpatient rehabilitation, and ultimately thought to be an incorrect

diagnosis by her second hospitalization, approximately one-month post-vaccination.

By the end of her inpatient rehabilitation on October 20, 2012, Petitioner showed

only mild symptoms. And, although she experienced an acute onset of further symptoms

in late October 2012, those symptoms were thought to be due to her repeated noncompliance with her HSV medication and/or the UTI she was experiencing. No treating

physician posited that they current condition may be due to GBS. And Petitioner was

reported to be independently ambulating by her October 31st discharge. When she

returned to the hospital on November 2 nd

, less than 40 days post-vaccination, she

complained of only migraine pain which improved during her emergency room visit.

Furthermore, there is no evidence to link the symptoms Petitioner reported and

illnesses she suffered in 2013 and later with the symptoms that she experienced during

her first hospitalization in October 2012. Neither Petitioner nor any treating physician

attributed her later complaints of headache and migraine pain, in February and July 2013

, as well as January 2014, to her October illness or the lumbar puncture she underwent in

late October 2012. And the medical records show that Petitioner experienced chronic

migraine pain both before and after vaccination. Similarly, there is nothing in the medical

record from Petitioner’s May 2013 visit to the emergency room to suggest that the opinion

of the treating physician

– that Petitioner symptoms were unrelated to her earlier GBS

illness, was limited to only some of the symptoms she was experiencing. During her

January 2014 visit, Petitioner specifically indicated her symptoms were different than

those she suffered in October 2012, and reported no weakness, pain, or tingling in her

arms or legs.11 V. Conclusion

The Vaccine Act permits an award of reasonable attorneys’ fees and costs even

to an unsuccessful litigant as long as the litigant establishes the P etition was brought in

good faith and there was a reasonable basis for the claim for which the P etition was

b rought. Section 15(e)(1). In t h is case, Petitioner has not established there was a In addition, d espite Petitioner’s assertion that there were no alternative causes for

her reported symptoms, the medical records contain numerous instances when potential

alternative causes were discussed and determined to the more likely cause of Petitioner’s

symptoms. It was noted that Petitioner had suffered a similar episode of lower extremity

paralysis connected to her diagnosis of Henoch-Schonlein Purpura when a child (Exhibit

4 at 23), experienced a UTI in late October 2012

, and sinusitis in February 2013, was

often non-compliant with her HSV medication

– a failure which could result in periodic

viral flares, and experienced frequent migraines both before and after vaccination.

Additionally, multiple different treating physicians indicated they believed at least some of

Petitioner’s symptoms were psychosomatic in nature.

Petitioner’s later complaint s of ongoing leg pain and weakness, as well as periodic

migraine-like pain, were made in October 2018

– almost six years after her hospitalization

for leg pain, weakness, and numbness, and difficulties walking; more than six months

after the Petition was filed; and more than four months after Petitioner was ordered to

provide additional evidence to show six-months sequelae, See Order, issued June 7,

2018), ECF No. 11 (following the initial status conference held on May 21, 2018). Thus,

it is more properly characterized as a current assertion made by Petitioner

contemporaneously with the advancement of this clai m

- and therefore the kind of

assertion not typically given much weight, if any. See Section 13(a)(1) (instructing that a

special master may not find c ompensation appropriate “based on the claims of a petitioner

alone, unsubstantiated by medical records or by medical opinion”) . Even the neurologist

Petitioner seen at this visit

– who had not previously treated Petitioner, questioned any

connection between Petitioner’s current leg pain and the GBS symptoms she suffered in

2012.

Petitioner has failed to provide any evidence to support her current claim of GBS

sequelae beyond November 2012

– less than two months post-vaccination. The evidence

even establishing the existence of GBS is itself weak, but even if it is supported by a

scintilla of evidence, the greater record establishes either that (a) the GBS had resolved

long before the end of the six-month period, or (b) sequelae experienced after the fall of

2012 are unrelated. Thus

, she has failed to meet the lower standard required to establish

a reasonable basis for her claim

, and an award of attorney’s fees and cost s is not

appropriate in this case

.12 s/ Brian H. Corcoran

Brian H. Corcoran

Chief Special Master

10 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. reasonable ba sis fo r filing h er claim. Petitioner’s motion fo r attorney’s fees a nd costs

is DENIED.

The C lerk o f the Cou rt is directed to enter judgmen t in accordance with this

decision. 10

IT IS S O ORDERED.