# In the United States Court of Federal Claims

No. 17

- 203 V (Filed under seal Octo ber 8 , 20 20 ) (Rei ssued October 23, 2020) †

* * * * * * * * * * * * * * * * * * * * * * * *

* L.P. , by and through his parent * Vaccine Act; voluntary dismissal; and natu ral guardian, MARY * att o rneys ’ fees and costs, 42 U.S.C. PETTY , * § 300aa

- 15(e)(1); reasonable basis

* standard; preexisting condition; Petitioner

, * failure to plead significant

* aggravation; looming statute of

v. * limitations deadline; Simmons v.

* Secretary decision

. SECRETARY OF HEALTH * AND HUMAN SERVICES, *

* Respondent

. *

* * * * * * * * * * * * * * * * * * * * * * * * *

Amy A. Senerth , Muller Brazil, LLP, Dresher, P a. , for the petitioner

.

Voris E. Johnson, Jr.

, Senior T r ial Attorney

, Tor ts B ranch, Civil Division, Department of Justice, with whom were Chad A. Readler

, Acting Assistant Attorney General, C. Salvatore D’Alessio , Acting Director, and Catharine E. Reeves , Deputy Director, all of Washin gton, D.C., for the res po n dent.

MEMORA NDU M OP INION AND ORDER
WOLSKI, Senior Judge

. Petitioner Mary Petty has moved for review , pursuant to 42 U.S.C. § 300aa

12(e), of a s pecial m aster ’s decision denyi ng an award of attorneys’ fees and costs. The reques t for fees and costs wa s f iled after pet iti on er had acknowledged an inability to prove an entitlement to compensation and moved for the dismiss al of

† P ursuant to Vaccine Rule 18(b) of the Rules of the Un i t ed States Court of Federal Claims, th e parties were given four teen c al endar d ays in which to object to the public di scl osure of informatio n contained in this opinion prior to its publication. No objection has been filed. Accordingly, the opinion is reissued for publication with

s ome minor typographical and grammatical corrections.- 2

- her petition. After a review of the record, the Special Master concluded that no reasonable basis existed for filing the claim ag ai n st the Secretary of He alt h an d Human Services (Secretary)

. L.P. v. Sec’y of Health & Human Servs. , No. 17

- 203 V

, 2018 WL 1044952, at *3 (Fed. Cl. Spec

. M st r

. Jan. 30, 2018) [hereinafter Fees Decision]

. Thus, the Special Master de clined to award petiti on er’s counsel fe es an d costs per 42 U.S.C. § 300aa

- 15(e)(1)

. For the reasons that follow, petitioner’s motion for review is DENIED and the Special M aster’s decision is SUSTAINED

.
I. BACKGROUND

Petitioner filed the petition on beha lf of her infan t son, L. P., on February 10, 2017. See Pet., ECF N o. 1. The petition sought compensation “ for gastrointestinal injuries, and sub sequent complications ” which L.P. suffered, alle gedly as a result of recei ving two vaccination s on February 1 1
, 2014
, when he was two m onths old

--- the diphtheria, tetanus, and acellular pertussis (DT a P) and r otavirus vaccin ations. Id. at 1 & ¶¶ 2, 8

. The petition described L.P. ’ s hea l th problems and medical visits through June 21, 2016, see i d . ¶¶ 4

– 19, and was a ccompanied by 2 29 page s of medical records from the Cleveland Clinic and Akron Children ’ s Hospital

, Pet. Exs. 1

– 3 , ECF No s . 1

- 4 through 1

- 6

. On the s ame da y that the pe ti tion was filed, Ms. Petty also filed a statement indicating that she believed “ all re levant medical

r ecords ha d been filed. ” Statement of Completion, ECF No. 4.
On May 5, 2017, three days before the scheduled initial status confere n ce , th e special master assigned to the case filed an order informing the parties of her assessment of the medical records s ubmit ted by petitioner. Order (May 5, 2017), ECF No. 8 [hereina fter Records Order] . The Special Master stated she “ fai l s to see that if L.P. had any vacc ine injury, it lasted more than si x months ” and added that

“ since L.P. had gastroeso phageal reflux di sease , g reen stools, fussiness

, and gas before he received his vaccination, pe titioner would need to amend her petition to allege significant aggravation. ” Id. at 1. R e fere ncing the definition of si gnificant
ag gravation from the Vaccine Act, 42 U.S.C. § 300aa

- 33 (4), she noted tha t she “ does not see a substantial deterioration of he a lth in these records. ” Id.
The Special Master th en accurately discussed the state of L.P. ’ s health as reflected in the filed records, the significant port io ns of which are s ummar ize d below. The medical records indicate d that L.P. ha d suffered from gastrointestinal problems since shortly after his birth. On December 26, 2 013, when he was a few weeks old , L.P. visite d his pediatrician and petitioner reported his fussiness,
ga ssine ss following feedings, and green stools. Id. at 1

– 2; see Pet. Ex. 2 at 7. On January 10, 2014, L.P.’s doctor diagnosed him with “gastroesophageal reflux [disease] (‘GERD’ ).” Records Order at 2 ; Pe t. Ex. 2 at 17

– 18. A few weeks lat er, on Janu ary 29, 201 4, petitioner brought L.P. to see another pediatrician becau s e of continuing stomach issues that had previously necessitated visits to an urgent care- 3

- facility and an emergency room. Records Order at 2 ; see Pet. Ex. 2 at 21 . Pe tition er reported that L.P. re m ained gassy a nd spits up after feedings, and that she noticed blood in his diaper the two previous days, and the doctor confirmed the diagnosis of G ERD. Id. ; Pet. Ex. 2 at 21

– 22.
On February 11, 2014, L.P. retu rned to the secon d pediatrician ’ s offic e f or his
two

- m onth check

- up, and Ms. Petty reported that he had recently ceased spitting up and being fussy. P e t. Ex. 2 at 26; Records Order at 2. The doctor tested L.P.’s stool for blood and found none, Pet. Ex. 2 at 26, 28, and a d ministered L.P.’s DT a P a nd
rot avirus vaccin ations

, i d. at 27 ; Records Ord er at 2 . The next day, L.P. was brought to the Emergency Depart ment of the Cleveland Clinic because he was vomiting and cho king, and he had a liquid green stool. Records Order at 2

– 3 ; Pet. Ex. 2 at 66. Af ter an exami na tion and an ultrasound of his pyloric channel which showed it to be normal, he w as dia g n osed with “ nausea and/or vomiting.” Records O r der at 3; Pet. Ex. 2 at 67

– 68. On February 21, 2014, L.P. returned to his pediatr ician , and petitioner rep orted t hat he suffered from fussiness and loose stools

, but that his post

- vaccination vomiting lasted just one day

. Records Order at 3; Pet. Ex. 2 at 34. Id. H e conti nued to be diagnosed as having GERD. Pet. Ex. 2 at 36; Recor d s Order at 3. Petitio ner subsequently reported t o phy sicians treatin g L.P. that his diarrhea persisted for tw o weeks after h e was vaccinated. Pet. Ex. 2 at 108; Pet. Ex. 3 at 9 ; Records Order at 3, 5.

Petitioner ’ s son con tinued to hav e gastrointes tinal problems . At an April 16
, 2014 appointment with a pediatrician, although his elimination w as normal at that time, blood was detected in hi s stools. Records Order at 3; Pet. Ex. 2 at 40

– 41. The following week he had a consultation with a gastroe nterologi st , to whom petitioner

re counted L.P. ’ s history o f reflux and soft stools. Records Order at 3

– 4 ; Pet. Ex. 2 at 52

– 53

. The g astroen ter olo g i st recognized that L.P. exhibited reflux sym ptoms and told pet itioner that infant gastrointestinal reflux can get wo rse between f our and

s ix months of age. Records Order at 4; Pet. Ex. 2 at 53.

In November of 201 5, L .P. was brought to see a n allergist for a second allergist ’ s opinion and was diagnosed as having mild eczema and food intolerance. Re cords Order at 5; Pe t. Ex. 3 at 1

– 3. In r ecounting L.P. ’ s medical history

, petit ioner rep orted that he had suffered from di arrhea las ting s ix months following his vaccinations. Records Order at 5 ; Pet. Ex. 3 at 1. Three months later, L.P. w as examin e d by a pediatrician bec ause of an upper respi ratory infectio n , and petitioner

repo rt ed that her son had exhibited a ch ange in appetite. Records Order at 5; Pet. Ex. 2 at 72. The doctor noted that L.P. did not have diarrhea or emesis . Records Order at 5; Pet. Ex. 2 at 72.

On Mar ch 31, 2016, at a f ol low

- up do c t o r ’ s visit concerning L.P. ’ s pneumonia, peti tioner reported that L.P. “ always had an issue with emesis while eating, ” and
note d the possibility of “ an exaggerated gag reflex. ” Pet. Ex. 2 at 100; Records- 4

- Order at 5. H e h ad no diarrhea at that t im e. Pet. Ex. 2 at 100. At an April 2 6, 2016 doct or ’ s visit, petitioner reported that L.P. “ had a reaction to vaccines with severe diarrhea at 2 months old with no continued diarrhea, [ f ailure to t hrive], or

se ver e infections sinc e then. ” Pet. Ex. 2 at 108 ; Records Or der at 6

. The following week L.P. was brought by petitioner to see a pediatrician

. Petitioner reported that L.P. had diarrhea for the previous week and a hal f. Pet. Ex. 2 at 118 . H e was diagnosed as having diarrhe a, a food allergy, and o ther “ allergic r hinitis. ” Records Order at 6; Pe t. Ex. 2 at 118. One month later, on June 4, 2016, following a visit to the Emergency Department of the C leveland Clinic, L.P. was brought back to the pediat r i cian ’ s office and was d iagnosed with cyclical v omiting associa ted with migraine. Pet. Ex. 2 at 131

– 32; Records O r der at 6.

Two and a half weeks later, petitioner brought L.P. to see a pediatric gastroenterolog ist, and reported that L.P. “ was overall doing fairly well until ” Ja nuary of that year, when he began havin g nighttime episodes of emesis

--- three time s in January, twice in February, and once in three subsequent months

. Pet. Ex. 2 at 146; Records Order at 7. Petit ioner also reported that L

. P. of ten ha d loose stools multi ple times daily. Record s Or der at 7; P et. Ex. 2 at 147. The doc tor agreed with the earlier di agnosis of cyclical vomiting and explained that L.P. might hav e toddler ’ s diarrhea. Records Order at 7; Pet. Ex. 2 at 153.
The Special Master discussed her ass essment of the medical rec ords at the ini t ial status conference held on May 8, 2017. See Order ( May 8, 2017), ECF No. 9. Petitioner was to file a st atus report the following month , indicating if she wa nted to proceed with the case, and was to check to se e if the medical records n eeded to be upd ated or supplement ed. Id. For three successive months, pe t itioner requested an extra month in which to obt ain and review medic al records, see Status Report s , ECF No s . 10 , 11, 13
, and then concluded th at the additi onal me dical records would not support L.P. ’ s claim, Mot. for Enlarg ement, ECF No. 14

. Petitioner then moved for a decision dism issing the case. Pet ’ r ’ s Mot. for Decision, ECF No. 17. S h e stated that “ [a]n in vestigation of the facts and science

suppor ting have demonst rated to Petitioner she will be unable to prove that she is entitle d to compensation in the Vaccine Program, ” and acknowledged that “ [i]n these circumstances, to pr oceed further would be unreaso nable. ” Id. at 1. The following day, the Sp ecial Master issued a deci sion d ismissing the case , containing a factual discussion t hat was rep eated nearly verbatim fr om the Records Order

. See L.P. v. Sec’y of Health & Human Servs. , No. 17

- 203 V , 2017 WL 6419982, at *1

– 6 (Fed. Cl. Spec

. M st r

. Nov. 21, 2017) [he reinaf ter Di s m i s s al Decision]. 1

1 The o nly apparent differences were the addition of footn ote 7 and some grammatical change s

.- 5

- Petitio ner then moved for attorneys’ f ee s and costs, initially requesting $9,110 in attorney and paralegal fees and the $400 filing fee. Pet ’ r ’ s Appl. f or Att ’ ys ’ Fees, ECF No. 19

, at 2. Th e Secretary opposed t he request, argui ng tha t “petitioner has failed to establish a reasonable basi s for h er cla im

, ” and that the “ claim ne ver possessed a reasonable basis. ” Resp ’ t ’ s Opp ’ n to Pet ’ r ’ s Mot. for Att ’ ys ’ Fees and Costs, ECF No. 21

, at 2 , 4

. Petitioner filed a re ply, maintai ning that m edical records showing a post

- vaccination injury and the cons ideration of a loomin g statute of limita tions amounted to a rea sonable basis for the clai m, and adding to the requested amount the $1,552.50 in attorneys ’ fees incurred in preparing the reply

pap er. Pet ’ r ’ s Reply to Resp ’ t ’ s Resp., ECF No. 23

, at 4

– 8. The Secretary then filed

a short sur

- reply, primarily focusing on the applicability of the Federal Circuit ’ s decision in Simmons v. Sec’y of Heal th & Human Servs.

, 875 F.3d 6 32 ( Fed. Cir. 2017). S ee Resp ’ t ’ s Sur

- reply, ECF No. 25
, at 1

– 2.
The Special Master agre ed with the Secretary and denied fees and costs. Fees Decision at *3. She noted that the Simmons decision “ holds that a loo ming statute of limitations deadline has no bearing on whether t here is an objective

re asonable basis for the claim ” fil ed in a pet it ion. Id. (citing Simmons , 875 F.3d at 636). Instead, the “analysis mus t focus on whether there is evidentiary support for the c laim set for th i n the petitio n.” I d. Finding in the medi cal records that “ L.P. had ga stroesop h ageal reflux d isease, green s tools, fussiness, and gas b efore he received his vaccinations, ” and that there was no support for a s ignifi cant aggravation claim, the Special Master concluded that t he claim in the petitio n lacked a reasonable basis

. Id.

Petitioner then filed a m otion for rev iew of that decision , objecting to the Special Master ’ s assess ment of the medical records, her applicat ion of the

re as onable basis standard , and her failure to take account of the looming statute of limitations deadline at the time the petition was filed

. Pet ’ r ’ s Mot. for Review , ECF No. 28

, at 4

– 6, 11

– 14 (Pet ’ r ’ s Mot.)

. 2 The Secretary responded, defe nding the Special Master ’ s decisio n. Resp ’ t ’ s Mem. in Res p. to Pet ’ r ’ s Mot. for Review (R esponse Br.), ECF No. 30

, at 8

– 17. The C o urt has given careful consideration to the arguments in those papers, and close ly review ed the Special Ma s te r ’ s decision and the medical records

.

2 Because pet itioner combine d her motion for review and her memorandum in support of the motion in one f iling, with no internal pagination, see ECF No. 28 at 1, 6, the C o urt has ad opted the convention of citing pages from either a s being from the motion, and using the ECF pagination for filing EC F No. 28.- 6

- II. DISCUSSI ON

A. Le gal S tan d a rd s

Under the National Vaccine Injury Compensation Program, a petitioner whose c laim fails on the merits may n e ve rtheless seek “reasonable attorneys’ fees and other costs.” 4 2 U.S. C. § 300aa

- 15(e)(1) (2018) . But the statute contains an impor ta nt qu al ifica tio n

. Fees and costs to an uncompens ated petitioner may be awarded only “if the speci al master or court determines t ha t the petition was brought in good faith and there was a reasonable basis for the claim for which the petition was brought. ” Id. W hethe r t h i s petition was f iled in good fai th is not at issue. See Fees Decision at *3 (“ Th ere is no evidence that this p e ti tion was brought in bad faith. ”). Instead, the central question in this appeal is whether a “reasonable basis” for filing th is Va cc ine A ct c l aim existed. Se e Pet ’ r ’ s Mot. a t 10.

The Federal Circuit has held that decisions reg arding awards of attorney s’ fee s are to be reviewed under the abuse

- of

- discretion standard. Hall v. Sec’y of Health & Human Servs ., 640 F.3d 1351, 1356 (Fe d. Cir. 2 011) (ci t i ng Pierce v

. Underwood , 487 U.S. 552, 558 (1988); Saxton ex rel. Saxton v. Sec’y of Health & Human Servs

., 3 F.3 d 1517, 1520 (Fed

. Cir. 1993)). In cases whe re compensation is denied, the Vaccine Act “clearly gives” special masters “discr et ion o v e r whe the r to make suc h an award.” Sa xton , 3 F.3d at 1520 (citing Perreira v. Sec’y of Dep’ t of Health & Human Servs

. , 27 Fe d. Cl. 29, 31 (1992)

, aff ’ d

, 33 F.3d 1375 (Fed. Cir. 1994) ).

A special m aster’s “application of the law is reviewed de novo .” Rod riguez v. Sec’y of Hea lth & Hum an Serv s. , 632 F. 3 d 1381, 1384 (Fed. Cir. 2011). Absent a misapplication of law

, “ o nly if [a tribun al] erred in interpreting the l aw or exercised its judgment on clearly erroneous findings of material fact, or its decision r epresents an irrationa l judgmen t in we ig hing the relevant fact ors c an its decision be overturned .” Chiu v. United States, 948 F.2d 711, 713 (Fed. Cir. 1991 ) ; see a lso Hendler v. United States , 952 F.2d 1364, 1380 (Fed. Cir. 1991) ( “ An abuse of discretion may be found when (1) the court ’ s deci si on is clearly unreason abl e , arbitrary, or fanciful; (2) the decision is based on an erroneo us conclusion of the law; (3 ) t he court’ s findings are clearly erroneous; or (4) the record contains no evidence upon which t he court rationally co uld have ba sed i ts decision. ”)

. G ene ral ly

,
“ reversible error is ‘extremely difficult to demonstrate’ if the special master ‘has consi dered th e relevant evidence of record, drawn plausible inferences and articu lated a ra tional basis f or the decision.’ ” La mpe v. Se c’ y of He alth & Human Servs. , 2 19 F

. 3d 1357, 1360 (Fed. Cir. 2000) (quoting Hines ex r el. Sevier v. Sec’y of Health & Human Servs.

, 940 F.2d 1518, 1528 (Fed. Cir. 1991)).- 7

- B. Analysis
In this case, in which petitioner alleg ed that her infant son suffered gastroi ntestinal injuries due to two vaccinations, Pet. a t 1, the Special Master correctly noted that the medical records sh owed gastrointestin al proble ms prior to the vaccinati ons

--- gassiness, green sto ols, spitting up afte r feedings, bl ood in hi s diaper , and a diagnosis of gastroesophageal re flux disease. Dismissal Decision at

* 1; see Pet. Ex. 2 at 7, 17

– 18, 21

– 22. After pet itioner was informed by the Special Master that the records showed neither a vaccine injury lasting six months no r a signi ficant aggravati on of L.P. ’ s preexisting gastrointestinal problems, Records Order at 1
, Ms. Petty asked that her case be dismissed, be cause “ she will be unable to prove that she is entitled to compensation ” and thus “ to proceed furth er would be unreasonabl e

. ” Pet ’ r ’ s Mo t. for Decision at 1. S h e nevertheless maintains that she had a reasonable basis for filing the claim

. Petitioner co nt ends that the Special Master’s decision must be overrul ed beca us e L.P.’s medical recor ds c o ntaine d information showing g astrointestinal injuries to L.P. manifesting the day following th e DT a P and rotavirus vaccin ations and last ing more than six months. Pet ’ r ’ s Mot. at 11

– 1 3

. S h e argues that the Special Master i mproperly employed the more stringent entitlement standard t o determine the reasonableness of the claim

. Id. at 1 3

. F inally, pet itioner not e s that she contacted counsel about one month before the st at ute o f limitations was due to expire, and counsel thus had a limited opportunity to review the records and determi ne if a claim co uld be proven. Id. at 14. Petitioner maintains that th e timing of counsel ’ s review supports the reasonableness of th e filing of her claim.

For the reasons discussed below, the Court concludes that t he Spec ia l Maste r did not abuse he r dis cretion in deter m ining that an award of fees and costs was i nappropriate. First

, the record contains evidence consistent with the Spe cial Master ’ s determination that no reasonable basis existed f or bring ing the claim

--- a determinati on which rests on plaus ible inferences a nd is exp lained in a rational

manner. See L ampe , 21 9 F.3d at 1360

. Moreover , the Special Master did not employ the wrong standard in making this determination. And finally, the Special Master was correct in conclu din g that a looming sta tute

- of

- limitati ons deadline has

no i mpact o n the question of whet her a reasonable basis existed for bringing the claim

.
1. The Spec i al Master Did Not Err in Conclu di ng That No Reasonable Basis Existed for Bringing the Claim

. In o bject ing to the Special Master’s denial of attorneys ’ fees an d costs

, petitioner stresses L.P. ’ s condition the day after the vaccination. See Pet ’ r ’ s M ot. at 4 , 11. She notes that “ L.P. had been vomiting and choking, appeared leth argic and had a decrease d appetite, ” and that h is “ father repor ted that [L.P.] had two to th ree- 8

- large projectile white vomits and medium liquid green stool. ” Id . at 12; see also Pe t. Ex. 2 at 66. The diagnosis for L.P. was nausea and vomiting. Pet. Ex. 2 at 68. But even if th is illness was caused b y the vaccinatio ns, a petition must demonstrate th e suffering of “ res idual effects or complications of such illness, di sability, injur y, or condition for mor e than 6 months

. ” 42 U.S.C. § 300aa

- 11(c)(1)(D)(i) (2018)

. The medical rec ords show, however, tha t t he vomiting l asted o ne day, Pet. Ex. 2 at 34, and the “ severe diarrhea ” lasted for two weeks, i d. at 108 ; se e also Pet. Ex. 3 at 9. In a n attempt to show a n injury lasting more than six months, Petitioner highlights

a N o v e m b e r 2
, 2 0 1 5 medical record , w h ich cont ains her re por t to the doctor that L.P. “ received his 2 month immunizations and developed diarrhea that lasted for 6 months. ” Pet. Ex. 3 at 1; see Pet ’ r ’ s Mot. at 7, 12 . This medical history report is not only contrad i ct ed by the other two repor ts s tat ing L.P. ’ s d iarr hea lasted two weeks,

see Pet. Ex. 2 at 108; Ex. 3 at 9, but a lso by a medical record of a visit just two months after the vac cinations show ing L.P. ’ s elimination was “ normal

, ” with “ no

concerns ” by that time. Pet. Ex. 2 at 4 0. T he Special Master reasona bly concluded from these records that the injuries alleged to have been the immediate adverse

reac tion fr om the vaccinations did not last six months.
Petitioner suggests, h ow ever, that t he medical records show ing L.P. ’ s

“ intermitten t emesis ” and “ loose st ools ” over the two

- plus years following the vaccinations also support her vaccine injury claim

. Pet ’ r ’ s Mot. at 2. And she notes that L.P. was suffering from no gastrointestinal issues on the day he was vacci nated. Id

. at 12

– 13 ; s ee Pet. Ex. 2 at 26

– 28

. But by the time L.P. re ceived his vaccinations, he already had a well

- established medical history of gastrointest in al

p r ob lems. At L.P. ’ s check

- up whe n he was two weeks old, petitioner was concerned about gr een stool s, gassiness, and excessi ve fus si ness

. Pe t. Ex. 2 at 7. At four weeks old, L.P. remained fussy and wo uld spit up after feeding. Id. at 1 7. An d a t

seven weeks old, L.P . w o u ld spit up frequently after feedings , suffered from gas and had blood in his stool. Id. at 21. Thus, L.P. wa s diag no sed with gast roesophageal reflux disease prior to his vaccinations. Id. at 22.

Wi th the medical recor ds showing that L.P. suffered from ga strointe sti nal issues prior to the day he was vaccinated, and petition er alleging that L.P. ’ s subsequent

, intermitte nt gastrointestinal issues were caused by the vaccination s , s ee Pet. ¶¶ 11

– 20, the Special Master reasonably informed petitioner both that

s ignificant aggravation would need to be alleged in light of L.P. ’ s pre existing condition, and that the medical recor ds accompanying the petition did not show a substantial deterioration of L.P. ’ s health, Records Order at 1. As petitio n er herself concedes, “ [b]ecause no further records were found to support a substantial det erioration of health, [ she] moved for a dismis sal. ” Pet ’ r ’ s Mot. at 3. In denying the fees request, the Special Master rationally explained that “ counsel should have realized through their review

. . . that L.P. ’ s medic al records do not support a- 9

- vaccine

- related injury as all e ged and [ that ] petit ion er did not have a reasonable basis to bring her claim

. ” Fees Decision at *3.

Whether a “reasonab le bas is ” for a Vaccine Act claim exists “is an objective consideration d ete rmined by the totality of the circum stances.” McKellar v

. Se c ’y of Health & Human Ser vs. , 101 Fed. Cl. 297, 303 ( 2011)

. Special m asters will consider the factua l basis and medical support underlying the claim to decide if it is

re asonable

. Chuisano v. United States , 116 Fed. Cl. 276, 2 88 ( 2 01 4)

. It is incumben t on the petitioner to “affirmatively establis h a reasonable basis to reco ver at to rneys’ fees and costs.” Id. at 287. While the “burden is someth ing less than the preponderant evidence ultimately require d to p r ev ail on one’s vaccin e

- i nju r y claim ,” petiti oner s m ust furnish some support for their content ions. Simmons v. Sec’y o f Heal th & Human Servs. , 128 Fed. Cl. 579, 583 (2016) (ci tat ions omitted), aff’d

, 875 F.3d 632 ( Fed. Cir. 2017).

A s was described above, the S pecial Master r a tionally concluded that L.P. ’s alleged rea ction to the vaccinations , in the form of vomiting and severe diarrhea, did not last six months. And given L.P. ’s preexisting gastrointestinal issues, the Special Master rationally found that petitioner would have to plead that L.P. ’s

c ondition was signif icantly aggravated by th e vaccinations for the subsequent gastrointestinal injuries to be the basis for a claim. Under these ci rcumst ances, the Special Master acted well wi th i n h e r discretion in concluding that no reasonable basis exist ed for alleging a v accine injury claim and thus denying the request ed award of attorneys ’ fees. Petit ioner has i dentified no medical record connecting the vaccinations to L.P. ’ s illnesses or condition more than six months after rece iving the vaccinations

, let alone any medi cal record suggesting that a substantial deteriora tion of his health resulted from the vaccinations. Cf. Chuisano , 116 Fed. Cl. at 290 (fi nding that no reasonable basis existed in a case where, i n ter al ia , the dec edent had preexisti ng m e dical conditions p rior to the vaccination, the medical

r ecords attributed her dea th to th ose preexisting conditions, and treating providers were unwilling to attribute her injuries to her vaccination)

. Instead, based on these recor ds, petitioner acknowl e dged that “ to proce ed further would be unreasonable an d would waste the resources of th is Court, the Respondent, and the V accine Program. ” Pet ’ r ’ s Mot. for Decision at 1. This is not a

case in which the information initially availa ble to a petitioner sup po rted a vaccine cl aim, but subsequent information showed the claim not to be viable. Cf. Perreira v. Sec ’ y of Dep ’ t of Health & Human Servs. , 33 F.3d 1375, 1377 ( Fed. Cir. 1994) (finding that reasonable basis for claim ended upon r eview of expert opinion ). If it

was unrea sonable to proceed further up on the basis of the medical records submitted with the p etition, it was unreasonable to bring the claim in the first place.- 10

- Moreover, petitioner is incorrect in her contention that the Special Master ’ s decis ion was based on th e standard for proving entitlement rather tha n the reasonable basis standard. See Pet ’ r ’ s Mot. at 13. The Special Master explained that she must look “ more to the feasi bility of the claim ” and “ not at the likelih ood of

success , ” and th at factors such as “ f actual basis ” and “ med ical support ” needed to be considered. Fees Decision at *2 (citat ions omitted) ; see also Chuisano , 116 Fed. Cl. at 288) (citations omitted) ( identifying factual basis an d medical support as among the fa ctors to b e considered)

. Aft er describing L.P. ’ s pre

- vaccination condition, the Special Master noted that “ [n]o post

- vaccination record su b stantiates L.P. having a substantial de terioration of healt h. ” Fees Decision at *3. Under th e circums tances, this would have been a sufficient basis for her exercise of the discretion which “ the statute clearly gives ” special masters when a pe tition is not successful, Saxton , F.3d at 15 20 . She further noted the absence of a ca usation theory or a medical expert report, see Fees Decision at *3, no t to r equire that re asonab leness be based on the entitlement stan dard, but to acknowledge additional mean s by whi ch the reasonableness of a claim may be established

, see Carter v. Sec ’ y of Health & Human Servs. , 13 2 Fed. Cl. 372, 380 (20 17) (recognizing th at expert opinions may be used to demonstrate reasonable basis of a claim)

. The Spec ial Master properly consider ed whether there was a reasonable basis for a vaccine injury claim based on such elements as allegati ons of an injury or sig nificant aggravatio n lasting more than si x months and linked to a vaccination

. S ee 42 U .S.C. § 300aa

- 11(c)(1); San tacroce e x rel. J.R. v. Sec ’ y of Health & Human Servs.

, No. 15

- 555V, 2018 WL 405121 , at *7 (Fed. Cl. Jan. 5, 2018 ).

B ased on th i s r e co rd, it was far from irrat ional or i mplausible for the Special Master to find th at petitione r did not have a reasonab le bas is for b ring her claim. T h e Special Master clearly considered all of the relevant medical records , drew plausible in ferences and articulate d a rational b asis for de nying the att o r ne ys ’ fees request

. S ee Lampe , 219 F.3d at 1360.

2. A Lo o min g S tatute of Limitations Deadline Ha s No Bearing on the Reasonableness of Filing a Vaccine Cla im.

Petitioner also cont ends t ha t t he Special Master erron eously failed to ac count for the fact that the statute of limitations was about to expire when petitioner ’ s

co un s el r ev iewed the medical records and filed th e petition

. Pet ’ r ’ s Mot. at 14. This argument, however, is squar el y fo r e c losed by Federal Circu it prece den t

. In S immons v. Secretary of Health and Human Services

, 875 F.3d 632, 634 (Fed. C ir. 20 17 ), the Federal Circuit faced the question of whether counsel’s inabi lity to review a record due to a looming statute of lim it a tio n s deadline should be con sidered in the re aso n a ble ba sis analysis . Writing for the court, Chief Judge Prost began by noting tha t whet he r the reasonable basis requirement is met “is an objective inquiry u nrelated to counsel’s conduct.” Id. at 636. The focu s , t her e fo re, is- 11

- on the claim itself

--- and whether a reas ona b l e basis existed for bringing it. Id. Thus, the court held th at “a lo oming statute of limitations deadline . . . has no bearing on whethe r there is a reasonable factual basis ‘for the claim’ r a i s ed i n the petition.” Id

. (quoting 42 U.S.C. § 30 0aa

- 15(e)(1)). As such, “counsel may not us e [ a n ] impending statute of limitations de adline to establish a rea sonabl e b asis” for filing a claim lacking in factual support. Id. The amount of tim e left be fore a statute of limi t ations will run out is s impl y ir relevant to the reasonable basis determinations. See Amankwaa v. Sec ’ y of Health & Human Servs. , 138 Fed. Cl. 282, 289 (2018) ( holding that “ the Federal C i rcuit forbade, altogether, the consideration of statu t o r y limitation s deadlines . . . in det e rmi ning whether there was a reasonable basis for a claim ” )

. Petition er thus cannot use the looming statute of limitations deadline to

s up port her argument that there was a reasonable ba sis for the fil ing of her claim. The Special Master wa s ther ef ore correc t in re jecting the statute of limitations argument
, see Fees Decision at *3, and instead look ing only to the medical rec ords and allegations in deciding if t he clai m had an objectively reasonable basis.

II I. CONCLU SIO N

For the foregoing reasons

, the Spec ial Master ’ s denial of attorn eys ’ fees and costs was not arbitrary, irrational, an abuse of discretion or otherwise unlawful. P etitione r’s motion for review is hereby D ENIED and the Special Master ’ s decis ion is SUSTAIN ED

. The Clerk shall enter judgment a ccordingly. No fees or costs are awarded

.

IT IS SO ORDERED.

s/ Victor J. Wolski
VICTOR J. WOLSKI Senior Judg e