# In the United States Court of Federal Claims

No. 07-452 V E-Filed Under Seal: May 15, 2014 1 E-filed for Publication: May 30, 2014

DEBRA CHUISANO, as Legal Representative of the Estate of FRANCES D’ESPOSITO, deceased,

Plaintiff,

v.

THE UNITED STATES,

Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) Vaccine Injury Cl aim; Attorneys’ Fees; Costs; Denial; Reasonable Basis; 42 U.S.C. § 300aa-15(e)(1); Totality of the Circumstances; Attorney Activities or Conduct; Statute of Limitations

Robert T. Moxley, Washingt on, D.C., for plaintiff.

Glenn A. MacLeod, Senior Tria l Counsel, with whom were Stuart F. Delery, Assistant Attorney General, Rupa Bhattacharyya, Direct or, Vincent J. Matanoski, Deputy Director, and Catherine E. Reeves, Assistant Director, Torts Branch, Civil Division, United States Department of Justice, Washin gton, D.C., for defendant.

OPINION AND ORDER

CAMPBELL-SMITH, Chief Judge.

Petitioner seeks attorneys’ fees and cost s for an unsuccessf ul claim under the National Childhood Vaccine Injury Act of 1986 (Vaccine Act), codified as amended at 42

1 Pursuant to Vaccine Rule 18(b) of the Rules of the Un ited States Court of Federal Claims, this opinion initially issued under seal to provide the partie s the opportunity to object to the public disclosure of information contained within it. Neither party requested any redactions. The opinion is reissued for publication with some minor, non-substantive
corrections.2 U.S.C. § 300aa-1 to -34 (2012). 2 Pet’r’s Mot. Review (Pet ’r’s Mot.), Nov. 25, 2013, ECF No. 80; Pet’r’s Mem. of Obje ctions (Pet’r’s Mem.), Dec. 16, 2013, ECF No. 86. The special master denied fees and costs to both petitioner’s origin al counsel and her
substitute counsel. Chuisano v. Sec’y Dep’t Health & Human Servs., Case No. 07-452V,

2013 WL 6234660 (Fed. Cl. Spec. Mstr. Oct. 25, 2013) (Special Master Moran) (Fee Dec.). On review, the central question is wh ether the special master erred in concluding petitioner’s claim lacked a “reasonable basis,” as required for a fee award under 42 U.S.C. § 300aa-15(e)(1), in light of petitione r’s failure to addu ce any evidence of
causation-in-fact of a vaccine -related injury. The court SUSTAINS the special master’s decision because it was not “arbitrary, capric ious, an abuse of discretion, or not in accordance with law.” See 42 U.S.C. § 300aa-12(e)(2)(A)–(C); Vaccine Rule 27(b). 3

I. BACKGROUND 4

A. Medical History

Petitioner Debra Chuisano’s mother, Frances D’Esposito, was born in 1942. Fee Dec., 2013 WL 6234660 at *2. Ms. D’Esposito’s medical re cords from 2004 reflect that she suffered from chronic obstructive pulmonary disease, chronic asthma, and arthritis. Id. On September 27, 2004, her doctor di agnosed an upper resp iratory infection and prescribed an antib iotic. Id. On October 12, 2004, Ms . D’Esposito received an influenza (flu) vaccine. Id. Four days later, she ha d aches, fever, and a sore throat. Id. Her primary care physician diagnosed “a viral syndrome” and did not prescribe more
antibiotics. Id. On Octobe r 18, 2004, she was admitted to the hospital for breathing difficulties. Id. Her admission history notes that she recently had received a flu vaccine. Id. Her initial diagnosis was pneumonia and sepsis, and subseque nt laboratory tests detected streptococcus pneumonia. Id. Sh e remained in the hospital as her condition deteriorated and until she died on December 24, 2004. Id. The co nditions listed on her discharge summary are pneumonia and congestive heart failure. Id. Her death certificate attributes cause of death to adult respir atory distress syndrome due to pneumococcal pneumonia and sepsis. Id.

2 For ease of citation, all “§” references to the Vaccine Act will be to the pertinent
subsection of 42 U.S.C. § 300aa-1 to -34 (2012).

3 The “Vaccine Rules” govern vaccine inju ry compensation claims before the Office of Special Masters and this court. They are set forth in Appendix B of the Rules of the
United States Court of Fe deral Claims (RCFC).

4 The medical and procedural history is taken primarily from the special master’s
decision and counsels’ timesheets. It is undisputed unless otherwise noted.3 B. Procedural History

Ms. Chuisano approached the law firm of Conway, Homer & Chin-Caplan (CHCC) in early March 2005 to discuss a poten tial vaccine claim because she believed her mother died as a result of receiving the fl u vaccine. Id. CHC-C specializes in the representation of claimants asserting vaccine-related in juries. See CHC-C Website, http://www.ccandh.com/default.asp (last visi ted May 12, 2014). CHC-C tasked Ms. Chuisano with “forward[ing] records and es tate docs.” Fee Dec., 2013 WL 6234660 at *2. CHC-C communicated periodically withMs. Chuisano about the medical records but, “for reasons not explained” in the record , more than a year went by and CHC-C was still waiting for materials. Id. In the fall of 2006, the firm sent Ms. Chuisano a “reject letter;” however, she responded expressing a desire to con tinue her case. Id. On December 21, 2006, CHC-C reviewed a discha rge summary provided by Ms. Chuisano. Id. at *2–3. After reviewing the discharge summary, CHC-C accepted the case pending receipt of the estate documents. Id. at *3. Legal representation appears to have been formalized in late January or early Febr uary, 2007. See CHC-C Timesheets, ECF No. 49-6 (attached as Exhibit 14 to petitioner’s first motion for fe e and costs, filed with the special master on December 16, 2011). Over the ensuing fi ve months, CHC-C received estate documents and, for the first time, the firm began active pursuit of Ms. D’Esposito’s medical records. Fee Dec., 2013 WL 6234660 at *3.

CHC-C filed Ms. Chuisano’s vaccine petition on June 28, 2007, just days before the limitations period expi red on July 1, 2007. 5 Id. It was a “skeletal petition,” id., that did not meet content requirements, see § 30 0aa-11(c); Vaccine Rule 2(c), but did aver that “the necessary ‘[d]ocuments and affidavits in support of the petition [would] be filed, once received,’” Resp’t’s Mem. in Resp. to Pet’r’s Mot. (Resp’t’s Mem.), Jan. 15, 2014, ECF No. 87, at 3 (quoting Petition at 2).

According to CHC-C’s timesheets, CH C-C had received and reviewed Ms. D’Esposito’s discharge summary before th e petition was filed. Fee Dec., 2013 WL 6234660 at *3. Ms. D’Esposito’s discharg e summary indicated that she had suffered from pneumonia and respiratory distress s yndrome and died from congestive heart failure, but did not mention the flu vaccine. Id. The firm also ha d received records from two medical providers; however, there is no ev idence that an atto rney reviewed these records before the firm filed the petition. Id . Those records were not included with the filed petition. Id. The records reflect that inFebruary 2004 (approximately eight months before receipt of the flu vaccine), a doctor determined Ms. D’Espos ito required a portable

5 “At the time, controlling precedent indicated that compliance with the statute of limitations was a jurisdictional issue and equ itable tolling was not permitted.” Fee Dec., 2013 WL 6234660 at *3 n.6 (citing Brice v. Sec’y Health & Human Servs., 240 F.3d 1367 (Fed. Cir. 2001), overruled , Cloer v. Sec’y Health & Human Servs., 654 F.3d 1322 (Fed. Cir. 2011), cert. denied, 132 S. Ct. 1908 (2012)).4 nebulizer because of “chronic and acute asthma .” Id. (citation omitted). The doctor also described Ms. D’Esposito’s “ pulmonary disease” as “very unstable.” Id. (citation omitted).

On November 26, 2007, near ly five months after fili ng the petition, the petitioner filed her initial medical records, of which th e vast majority came from Good Samaritan Hospital. Id. at *4; see also Notice of Filin g, ECF No. 14. Petitione r subsequently filed
an Amended Petition and her affidavit on January 14, 20 08. Am. Petition, ECF No. 17; Affidavit, ECF No. 18.

Respondent filed its report on May 30, 2008, pursuant to Vaccine Rule 4(c). The report recommended against compensation b ecause petitioner had not satisfied the criteria for receiving compensation under the Vaccine Act. Fee Dec., 2013 WL 6234660 at *4. Specifically, responden t pointed to, inter alia, Ms. D’Esposito’s medical records revealing multiple bouts of respiratory in fection between 2002 and 2004; her death certificate attributing death to non-vaccine-related causes; and the fact that none of her treating physicians ascribed her death to the flu vaccine, despite their awareness of its temporal proximity. Id.

In the ensuing two months, CHC-C consu lted with two immunologists, seeking an expert opinion on causation. 6 Id. One of petitioner’s attorn eys, Ms. SylviaChin-Caplan, also drafted a letter detailing her theories on cau sation. Id. CHC-C shared this letter with at least one of the potential experts. Id. Th e firm was unsuccessful in retaining an expert. See id. at *5 (discussing efforts in greater de tail). By this time, CHC-C had invested approximately 190 hours in petitioner’s representation; it had also been given four extensions of time to file an expert report. Id.

CHC-C sent petitioner a “reject letter” and, on August 17, 2009, filed a motion to
withdraw as counsel of record. Id. In Oc tober and November, before the court ruled on withdrawal, CHC-C pr ovided petitioner’s materials to Mr. Robert Moxley, another seasoned vaccine program litigator. See id.

On November 16, 2009, the court substituted CHC-C for Mr. Moxley as petitioner’s new attorney of record. See C onsented Mot. Substitute , ECF No. 38. Mr. Moxley continued CHC-C’s efforts to obtain an expert opinion to support a causation

6 CHC-C’s timesheets reflect two internal conversations about potential experts on December 27–28, 2007; the conversations oc curred after the firm had filed medical records but before it filed the amended petiti on. See CHC-C Timesheets, ECF No. 49-6 (attached as Exhibit 14 to petitioner’s first mo tion for fees and costs filed with the special master on December 16, 2011). Otherwise, tim esheet entries regard ing expert retention and communications do not start in earnest until July 2008, after CHC-C received respondent’s report. See id.5 theory. Fee Dec., 2013 WL 6234660 at *5. Timesh eets reveal Mr. Moxley
communicated on numerous occasions with CHC-C and reviewed Ms. Chin-Caplan’s causation-theory letter. Id.; see also Mo xley Timesheets, ECF No. 49-2 (attached as Exhibit 10 to petitioner’s first motion for fees and costs file d with the special master on December 16, 2011). Timesheets also reflect that Mr. Moxley ’s firm attempted to reach one potential expert in April 2010, but the reco rd is unclear what became of his firm’s overtures. Fee Dec., 2013 WL 6234660 at *5; see also Moxley Timesheets.

In September 2010, petitioner was ordered to file a status report concerning her efforts to obtain an expert report. Or der, Sept. 27, 2010, ECF No. 39. Petitioner responded that she “ha[d] been actively seeking a medical expert to support the causation syllogism required by the Vaccine Act.” Pet ’r’s Status Report, Oct. 29, 2010, ECF No. 40, at ¶ 1. Petitioner also shared her caus ation theory that “the flu virus has been observed to disrupt the molecular processes of the immune system, and to promote a synergistic effect whereby othe r infections have a greater opportunity [to cause harm]. Fatal pneumonia, for instance, is made much more likely.” Id. at 1 n.1; Fee Dec., 2013 WL 6234660 at *5 (quoting same).

After additional status reports, see Fee Dec., 2013 WL 62346 60 at *6, petitioner was ordered to file an expert report by May 16, 2011, or “[i]f . . . unable to find an expert to opine as to causation, . . . [then] a mo tion for ruling on the record,” Order, Feb. 15, 2011, ECF No. 45.

On May 16, 2011 (roughly a year and a half after Mr. Moxley assumed representation), petitione r moved for a decision on the reco rd. ECF No. 46. On May 18, 2011, the special master entered his no- compensation decision finding petitioner had failed to meet her burden of proof. See Chui sano v. Sec’y Dep’t Health & Human Servs., Case No. 07-452V, 2011 WL 2268969 (Fed. Cl. Spec. Mstr. May 18, 2011) (Liability Dec.); see also Judgment, June 20, 2011, ECF No. 48. He fo und that petitioner “failed to demonstrate either that Ms. D’Esposito suffered a ‘Table Injury’ or th at her injuries were ‘actually caused’ by a vaccination.” LiabilityDec., 2011 WL 2268969 at *1. Petitioner offered only her own statement and evidence of temporal pr oximity to support her claim of a causal relationship between the vaccine’s administration and Ms. D’Esposito’s death. Id. However, this evidence was insufficient. Id.; see also § 300aa-13(a)(1) (a special master may not award compensation “based on the claims of a petitioner alone, unsubstantiated by medical records or me dical opinion”). Petiti oner pointed to no medical records, nor did she offer any expert opinion, to support a finding of causationin-fact. Liability Dec., 2011 WL 2268969 at *1. The special master’s decision denying program compensation has not been appealed, but petitioner ha s sought fees and costs.

On September 20, 2012, the special master entered an initial decision awarding
reduced fees and costs to CH C-C ($38,365.45 of the $40,946.65 requested), but denying an award of fees and costs to Mr. Moxley, for which he had requested $3,706.90. See Fee Dec., 2013 WL 6234660 at *6–7 (describi ng earlier fee decision, filed September 20,6 2012, ECF No. 63, that was later withdrawn per Order, filed October 15, 2012, ECF No. 65); see also Resp’t’s Mem. 5–6 & 5 n.4 (dollar amounts). In this initial fee decision, the special master found that CHC-C had a “rea sonable basis” for pur suing petitioner’s claim through the filing of her petition (on the eve of the statute of limitations deadline), the subsequent gathering of medical records, and the efforts to retain an expert. Fee Dec.,
2013 WL 6234660 at *7 (describing initial fee decision). Mr. Moxley, however, lacked a “reasonable basis” to proceed with petitione r’s claim after CHC-C had been unable to obtain an expert opinion supporting a find ing of vaccine-relate d causation. Id. (describing initial fee decision).

On October 11, 2012, petitioner sought recons ideration of the total denial of Mr. Moxley’s fees and costs. See Pet’r’s Mot. Recons., ECF No. 64. Petitioner argued that the initial fee decision was prem ised on an erroneous view of the law. Id. at 2. According to petitioner, “reasonable basis” fo r a claim was a one-time inquiry; thus, if the case began under CHC-C witha reasonable basis, then the reasonable basis continued to exist when Mr. Moxley later assumed representation. Id. Petitioner “pray[ed] an order of the court, setting aside and vacating the [ini tial fee decision], for reconsideration of the [initial fee decision] and an appropriate award for reasonable fees and costs to successor counsel under the correct lega l standard . . . .” Id. at 8.

In response, the special master issued an order on October 15, 2012 that granted petitioner’s reconsideration motion in part, by withdrawing the initial fee decision and soliciting further briefing on the fee issue. ECF No. 65. As the initial fee decision had been withdrawn, the government’s briefing onreconsideration, as well as petitioner’s reply, addressed not only the propriety of fees and costs for Mr. Moxley, but for CHC-C as well. Fee Dec., 2013 WL 6234660 at *7 (discussing the scope of reconsideration briefing).

On October 25, 2013, the sp ecial master entered his final decision denying in toto the fees and costs sought by both CHC-C and Mr. Moxley. Fee Dec., 2013 WL 6234660 at *1, 23–24. The special mast er found that a fee and cost award would be inappropriate. Id. at *1. Without supportive evidence of causation-in-fact, petitioner lacked a
reasonable basis for her claim. Id. Afforded the opportunity to reconsider his earlier decision awarding fees and costs to CHC-C, the special master was persuaded by the government’s argument that “the pendency of the statute of limitation does not dispense with the petitioner’s obligation to furnish some evidence supporti ng the claim contained in the petition.” Id. Therefore, the special master reconsidered the leeway he had accorded CHC-C for filing th e petition on the eve of th e statute of limitations’ expiration—the circumstance that informed his in itial decision to award fees to that firm. See id. He ultimately conclude d, with regard to petitioner’s claim as a whole, that there remained a “gap in evidence [ ] despite Ms. Chuisano ’s retention of two separate law firms and the participation of at least three doc tors.” Id. The speci al master determined that “[w]ithout any evidence linking Ms. D’Es posito’s death to her flu vaccination, Ms.7 Chuisano’s case lacked a reasonable basis. And, without a reasonable basis, [her counsel] may not be awarded any attorneys’ fees.” Id.

Now before the court is petitioner’s motion for review of this final fee decision, see Pet’r’s Mot.; Pet’r’s Mem., and the gov ernment’s response, see Resp’t’s Mem. Neither party has challenged petitioner’s good faith in filing her petition. Fee Dec.,

2013 WL 6234660 at *1 n.2. The sole issues are (1) whether the special master erred in concluding there was never a “reasonable basis” for her claim; and (2) whether he abused his discretion by denying fees and costs to ei ther CHC-C or Mr. Moxley. Oral argument was deemed unnecessary. The matter is now ripe for decision.

II. STANDARD OF REVIEW

The Court of Federal Claims has jurisdictio n to review the decision of a special master. 42 U.S.C. § 300aa-12(e)(1); see also Vaccine Rule 23. After engaging in its review, the court may take one of three actions: (1) uphold the spec ial master’s findings of fact and conclusions of law and sustain the special mast er’s decision; (2) set aside some or all of the special ma ster’s findings of fact and conclusions of law and issue different findings of fact a nd conclusions or law; or (3 ) remand the petition for further
action in accordance with the court’s direc tion. § 300aa-12(e)(2)(A)–(C); see also
Vaccine Rule 27.

The court may set aside a special maste r’s decision only if it is “arbitrary, capricious, an abuse of discretion, or otherw ise not in accordance with law.” § 300aa12(e)(2)(B). As the Federal Circuit has explained:

These standards vary in application as well as degree of deference. Each standard applies to a different aspect of the judgment. Fact findings are reviewed . . . by [the Court of Fe deral Claims] under the arbitrary and capricious standard; legal questions under the ‘not in accordance with law’ [de novo review] standard; and discretionary rulings under the abuse of
discretion standard.

Munn v. Sec’y Dep’t Health & Human Servs ., 970 F.2d 863, 870 n.10 (Fed. Cir. 1992) (commenting further that an “abuse of discre tion” will “rarely come into play except where the special master excl udes evidence”); accord Saunde rs v. Sec’y Dep’t Health & Human Servs., 25 F.3d 1 031, 1033 (Fed. Cir. 1 994) (quoting same).

Notably, a special master’s decision whether to award or deny attorneys’ fees and costs to unsuccessful petitioners is discretionary and, thus, reviewed under an abuse of discretion standard. Saxton v. Sec’y Dep’t Health & Human Servs., 3 F.3d 1517, 1520 (Fed. Cir. 1993) (citing Perreira v. Sec’y Dep’ t Health & Human Servs., 27 Fed. Cl. 29, 31 (1992)); accord Silva v. Sec’ y Health & Human Servs., 108 Fed. Cl. 401, 405 (2012); Murphy v. Sec’y Dep’t Health & Human Serv s., 30 Fed. Cl. 60, 61 (1993); Hamrick v.8 Sec’y Health & Human Servs., Case No. 99-6 83V, 2007 WL 4793152, *3 (Fed. Cl. Spec. Mstr. Jan. 9, 2008) (Special Master Moran). “This [discretion] is a ppropriate in view of the [special master’s ] superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters.” Saxton, 3 F.3d at 1521 (quoting Hensley v. Ec kerhart, 461 U.S. 424, 437 (1983)).

For a finding of abuse of discretion, a c ourt would have to rule that a special
master’s decision was:

(1) . . . clearly unreasonable, arbitrary, or fanciful; (2) . . . based on an erroneous conclusion of the law; (3) . . . clearly erroneous; or (4) the record
contains no evidence on which the . . . [special master] rationally could
have based his decision.

Murphy, 30 Fed. Cl. at 61 (quoting Hendler v. United States, 952 F. 2d 1364, 1380 (Fed. Cir. 1991) (citation omitted)); se e also Munn, 970 F. 2d at 870 (explaining this court owes “great deference” to the fact-findings and fact -based conclusions of the special master); Silva, 108 Fed. Cl. at 405 (s tating it is “extremely difficult” to establish the “reversible error” necessary to disturb a special maste r’s decision on fees). An “abuse of discretion may only be found where ‘no r easonable man would take the view adopted by the [trial] court . . . .’” Murphy, 30 Fed. Cl. at 62 (quoting PPG Indus ., Inc. v. Celanese Polymer Specialties Co.

, 840 F.2d 1565, 1572 (Fed. Cir. 1988)).

The Federal Circuit has described a re asonable fee calculation as follows:

A reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reas onable hourly rate . . . [but] should exclude . . . hours that were not “reasonably expended” . . . [such as] hours that are excessive, redundant, or otherwise unnece ssary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission. . . . Hours that are not pr operly billed to one’s client also are not properly billed to one’s advers ary pursuant to statutory authority.

Saxton, 3 F.3d at 1521 (quoting He nsley, 461 U.S. at 433–34).

The special master’s “‘range of choice’ . . . will not be reversed if ‘it stays within that range and is not influenced by any mist ake of law.’” Murphy, 30 Fed. Cl. at 62 (quoting Heat & Control, Inc. v. Hester Indus., Inc.

, 785 F.2d 1017, 1 022 (Fed. Cir. 1986) (citation omitted)). If, however, the exerci se of discretion turns on a potentially erroneous statutory interpretation of the Vacc ine Act (a question of law), then the court will review the interpretation without deferenc e. Avera v. Sec’y Health & Human Servs., 515 F.3d 1343, 1347 (Fed. Cir. 2008) (citing Markovich v. Sec’y Health & Human Servs., 477 F.3d 1353, 1355–56 (Fed. Cir. 2007)); see Andreuv. Sec'y Health & Human

Servs.

, 569 F.3d 1367, 1379 (F ed. Cir. 2009) (explaining th at, while “considerable9 deference [is due to] the credibility determinations of specia l masters . . . this does not mean that a special master can cloak the appli cation of an erroneous legal standard in the guise of a credibility determination, and thereby shield it from appellate review”) (citation omitted); see also Saunders, 25 F. 3d at 1033 (reviewing a fee award without deference where the propriety of the award turned on cons truction of the Act’s election provision).

III. DISCUSSION

A. The “Reasonable Basis” Standard

If a petitioner succeeds on the merits of his or her compensation claim, the Vaccine Act requires the special master to aw ard reasonable fees and costs. § 300aa15(e)(1). However, the special master also en joys discretion to award fees and costs to unsuccessful petitioners, provided the unsuccessful petiti on was filed in good faith and there was a reasonable basis to support the cl aim. Id.; Sebelius v. Cloer (Cloer III), 133 S. Ct. 1886, 1891–92 (2013) (discussing standard ); Avera, 515 F.3d at 1347 (same). If a special master determines that there is good faith and a reasonable basis for a claim, “he or she may award the fees.” Silva, 108 Fed. Cl. at 403. It is nevertheless possible that, after making the required findings of good fa ith and reasonable basis, the special master may decline to award fees or costs. Id. at 402 n.5.

The statute offers no further explanati on or definition of what constitutes a “reasonable basis.” Moreover, as the special master correctly not ed, “[n]either the Federal Circuit nor [the Court of Federal Clai ms] has had occasion to define the meaning of ‘reasonable basis’ for purposes of fee aw ards under the Vaccine Act.” Fee Dec., 2013 WL 6234660 at *11 (quoting Wo ods v. Sec’y Health & Human Servs., 105 Fed. Cl. 148, 153 (2012)).

The Circuit Court has observed, however, th at “[s]tatutory construction . . . is a holistic endeavor.” Figueroa v. Sec’y Health& Human Servs, 715 F. 3d 1314, 1318 (Fed. Cir. 2013) (citation omitted). To that end, “the language of [the Vaccine Act must be considered] in light of the specific context inwhich that language is used, and the broader context of the statute as a whole.” Id. (c itation and quotation omitted). Further to the Circuit Court’s guidance, the court finds he re that recognizing a special master’s discretion to make a fee award is paramount to developing a set of finite rules or criteria. Other decisions of the court appear to agree. See, e.g., Silva, 108 Fed. Cl. at 402 (“[T]he statute grants to the special master maximum discretion in applying the standard.”). The statutory text that includes the “reasonable basis” provision shows that Congress drew a
clear distinction between an automatic f ee award for successful petitioners and a discretionary award for unsuccessful petitioners . See §300aa-15(e)(1). This distinction would be subverted by a set of inflexible rules or criteria defining “reasonable basis.” Moreover, such rules or criteria would strip a special master of his or her discretion and authority to deny fees even to those claimants who show “reasonable basis” by, inter alia,10 implying that an unsuccessful petitioner w ho meets the minimum threshold of defined requirements is entitled to a fee award as of right. See Cloer v. Sec’y Health & Human Servs. (Cloer II ), 675 F.3d 1358, 1363 (Fed . Cir. 2012) (en banc) (disagreeing with the dissent, which advocated a strict rule that untimely petitions can neve r be found to have been supported by a reasonable basis).

A “reasonable basis” standard that is not rigidly defined—as amorphous as it may
be—is consistent with the Vaccine Act as a whole. The Federal Circuit has instructed that “[r]emedial legislation lik e the Vaccine Act sh ould be construed in a manner that effectuates its underlying spirit and purpos e.” Cloer II, 675 F.3d at 1362 (citing Atchison, Topeka, & Santa Fe Ry. Co. v. Buell

, 480 U.S. 557, 561–62 (1987)); see also

, e.g.

, Peyton v. Rowe

, 391 U.S. 54, 65 (1968) (citing the “canon of construction that remedial statutes should be liberally construed”).

“The overarching purpose of the Vacc ine Act[,] and the National Childhood Vaccine Injury Co mpensation Program it create[d,] is to award compensation ‘to vaccineinjured persons quickly, easily, and with certainty and genero sity.’” Cloer II, 675 F.3d at 1362 (quoting H.R. Rep. No. 99 -908, at 3 (1986), reprinted in 1986 U.S.C.C.A.N. at 6344). A vaccine-related injury, however, is not always clear at the outset. As the Federal Circuit has noted, “[t]he first time an injury is causally linked with a vaccine
often occurs as a result of a successful non-Table petition. ” Cloer v. Sec’y Health & Human Servs. (Cloer I), 654 F.3d 1322, 1332 n.4 (Fed. Ci r. 2011). Congress would not have “intended to discourage counsel from re presenting petitioners who, because of the difficulty of distinguishing between the initial symptoms of a vaccine-related injury and unrelated malady . . . may [n evertheless] have good-faith claims with a reasonable basis. . . .” See Cloer III, 133 S. Ct. at 1895. Thus, “[a] stated purpose of the Act’s fees scheme was to avoid ‘limit[i ng] petitioners’ ability to obta in qualified assistance’ by making fees awards available for ‘non-preva iling, good-faith claims.’” Id. (quoting H.R. Rep. No. 99-908 at 22); see also Cloer II, 675 F.3d at 1362 (“Congress recognized that having to shoulder attorneys’ fees could de ter victims of vaccine-related injuries from seeking redress.”).

Although a special master may award fees and costs to unsuccessful petitioners under the Vaccine Act, the statute does not comp el such awards. “Congress [did] not . . . intend[] that every claimant, whether being compensated or not under the Vaccine Act, collect attorneys’ fees and costs.” Perreira, 33 F.3d at 1377; Phillips v. Sec’y Dep’t Health & Human Servs., 988 F.2d 111, 112–13 (Fed. Cir. 1993) (Plager, J., concurring) (stressing the negative ramifications of baseless appeals over the denial of fees and costs). There is no textual, historical, or logical support suggesting otherwise. Fee denials are expected to occur. A different constructi on of the statute would swallow the special master’s discretion. See § 300aa-15(e)(1). Congress vested such discretion with the special masters, plainly contemplating that not all petitioners w ould recover fees and costs. If Congress had intended all or nearly all petitioners to recover fees, it easily could11 have expanded fee awards to all petitions file d in good faith, rather than requiring good
faith and a reasonable basis.

Also militating in favor of a discretionary authority that permits the denial of fee awards are common law principles and polic y concerns. As the dissent in Cloer II explained, “because Congress departed from the [prevailing party requirement applicable] in virtually every other federal fee-shifting statute, [the court] should be cautious in interpreting the statutory mandate to extend beyond those cases in which feeshifting was clearly intended.” 675 F.3d at 1367 (Bryson, J., dissenting) (providing background for its view that fees should not be recoverable for untimely petitions) (citing Robert C. Herd & Co. v. Krawill Mach. Corp ., 359 U.S. 297, 304– 05 (1959)) (explaining that a rule of law “in derogati on of the common law . . . must be strictly construed”); In re Crescent City Estates, 588 F.3d 822, 826 (4th Cir. 2009) (“ Because fee-shifting statutes are ‘in derogation of the comm on law,’ courts are obliged to construe them strictly.”) (citation omitted)). Well-settled principles of sovereign immunity are also a consideration. Cloer II, 675 F.3d at 1367.

Premised in pertinent part on reasonablen ess, the standard for discretionary fee awards allows for the practical and logical ne cessities of vaccine program practice. As petitioner herself argues, “[i]n [these] sc ientifically complex, expensive, and controversial cases, the interpretation of ‘reasonable basis’ demands a common sense approach based upon th e totality of the circumstances of each individual case.” Pet’r’s Mot. 12. Numerous special masters, as well as this court, have held that reasonable basis is an objective standard determined by the “totality of the circumstances.” E.g., McKellar v. Sec’y Health & Human Servs.

, 101 Fed. Cl. 297, 303 (Fed. Cl. 2011) (citing Hamrick, 2007 WL 4793152 at *4). Some have further interpreted the requirement as
one that looks not at the likelihood of success of a claim but more to the feasibility of the
claim. See Di Roma v. Sec’y Health & Human Servs.

, No. 90–3277, 19 93 WL 496981, *1 (Fed. Cl. Spec. Mstr. Nov. 18, 1993). The circumstances are simply too numerous and diverse in which any particul ar individual, who is otherw ise healthy or unhealthy, may subsequently suffer a vaccine-related injury , or an unrelated malady in temporal proximity to a vaccination, and then seek compensation. Accordingly, the court finds that the special master’s Fee Decision goes too far by rejecting, as a matter of course, any consideration of the totality of the circumst ances. See Fee Dec., 2013 WL 6234660 at *16 (favoring a reasonable basis standard premised exclusively on whether there is evidence constituting “supporti ng documentation” rather than a “totality of the circumstances” inquiry).

Nonetheless, the special master is correct that “[r]easonabl e basis is a standard that petitioners,” at least generally, “meet by submitting evidence.” Fee Dec., 2013 WL
6234660 at *12. Failure to submit such eviden ce “carries consequences.” Id. at *13. “At the most basic level, a petitioner who submits no evidence would not be found to have
reasonable basis because the petitioner could not meet the burden of proof needed to12 establish reasonable basis.” 7 Id. “[A] ‘petitioner mustaffirmatively establish a
reasonable basis to recover attorn eys’ fees and costs.’” Id. (quoting McKellar, 101 Fed. Cl. at 304). This burden is something less than the preponderant evidence ultimately required to prevail on one ’s vaccine-injury claim. 8 Id.

Because “reasonable basis is linked to ‘the claim’ contained in the petition, not the petition itself,” the reasonable basis inquiry is broad enough to survive a statute of limitations flaw in a petition. Fee Dec., 2013 WL 6234660 at *15 & 15 n.26 (referring to § 300aa-15(e)(1), which links the “good faith” inquiry to the filing of the “petition,” but the “reasonable basis” inquiry to support for the “claim”); Cloer III, 133 S. Ct. at 1894– 95. The court is similarly persuaded that th e reasonable basis inquiryis broad enough to encompass any material submitted in support of the claim at any time in the proceeding, whether with the petition or later.

The court agrees with the special master th at “[i]n the absence of a Federal Circuit instruction, it may be easier to define a reason able basis in terms of what it is not.” Fee Dec., 2013 WL 6234660 at *13 . For example, “[r]easonable basis requires presenting
more than evidence show ing only that the vaccine precede d the onset of the injury for which the petitioner seeks compen sation.” Id. Temporal proximity is necessary, but not
sufficient. See id. at *14.

However, the court disagrees with the sp ecial master that “[a]ll these reasons support the [conclusion that ] whether petitioners have met their burden regarding
reasonable basis should not includ e consideration of the statute of limitations.” See id. at *16 (concluding same). A looming statute of limitations does not forever absolve a petitioner from his or her obligation to procee d with a reasonable basis to support his claim, at least not if the petitioner hopes to re cover any fees and costs. See § 300(e)(1).

7 The special master cites two exampl es. Fee Dec., 2013 WL 6234660 at *13 (citing Turpin v. Sec’y Health & Human Servs., No. 99-564V, 2005 WL 1026714, *2 (Fed. Cl. Spec. Mstr. Feb. 10, 2005) (fi nding “no reasonable basis when petitioner submitted only one affidavit an d no other records”); Brow n v. Sec’y Health & Human Servs., No. 99-539V, 2005 WL 1026713, *2 (Fed. Cl. Sp ec. Mstr. March 11, 2005) (finding “no reasonable basis when petitioner presented only e-mails between her and her attorney”)).

8 An off-table petitioner must prove causa tion by the traditional tort standard of preponderant evidence, meaning that it is mo re probable than not that the petitioner in
fact suffered a vaccine-related injury. § 300aa-13(a)(1)(A); Moberly v. Sec’y Health & Human Servs., 592 F.3d 1315, 13 22 & 1322 n.2 (Fed. Cir. 2010).13 However, the statute of limitations is a fa ctor that may affect the reasonable basis analysis in appropriate circumstances. 9

The court also declines the special mast er’s invitation to supplant the current
reasonable basis test that is informed by a totality of the circumstances with a reasonable basis test that turns solely on evidentiary standards. See Fee Dec., 2013 WL 6234660 at *17 (acknowledging that his “decision’s focus on evidence supporting a finding of
reasonable basis is different from the treatment in other cases”). An evidentiary standard may serve as an excellent guidepost in fee de cisions, but it cannot serve as the bright-line threshold. Such a rigid position is at varian ce with the flexible structure of the vaccine

program.

The court considers the following. First, evidentiary rules are relaxed in vaccine proceedings. Griglock v. Sec’y Health & Human Servs., 687 F.3d 1371, 1376 (Fed. Cir. 2012) (citing § 300aa-12(d)(3)(B )); Masias v. Sec’y Health& Human Servs., 634 F.3d 1283, 1290 (Fed. Cir. 2 011) (“[I]n Vaccine Act litigation, ev idence need not be presented under the Federal Rules of Evidence.”) (citati on omitted). Second, an effort to engraft a
test for reasonable basis onto the statute w ould disregard Congress’s plain choice not to do so, but instead to maximize the special ma ster’s discretion. See § 300aa-15(e)(1). Third, even if this court were to adopt the proposed evidentiary standard, the court would be left to determine, just as the special ma ster asks, “how much evidence is sufficient?” for a fee award to a non-prev ailing party on an unsuccessf ul vaccine petition. See Fee Dec., 2013 WL 6234660 at *13.

In contrast, under the totality of the ci rcumstances test for reasonable basis, a special master should consider a number of f actors. McKellar, 101 Fed. Cl. at 303; Di Roma, 1993 WL 496981 at *1. Factors to be considered “include[e] the factual basis, the medical support, and jurisdictional issues,” and the circumstances under which a petition is filed. Di Roma, 1993 WL 496981 at *1. Special masters have found reasonable basis for claims absent medical records or opinions supporting vaccine causation. See Austin v. Sec’y Health & Human Servs.

, No. 10–362V, 2013 WL 659574, *8 (Fed. Cl. Spec. Mstr. Jan. 31, 2013) (citing Hamrick

, 2007 WL 4793152, at *7); Lamar v. Sec’y Health

& Human Servs.

, No. 99–583V, 2008 WL 3845165, *4 (Fed. Cl . Spec. Mstr. July 30, 2008). A reasonable basis might even exist if a petition is filed in an untimely manner
after the close of the statute of limitations . Cloer II, 675 F.3d at 1359–61, 1364 (finding petitioner would be eligible to receive fees and costs if, on remand, it was found her

9 The court does not need to address the de gree of influence that a pending statute of limitations might have on the reasonable basi s inquiry. In this case, even though petitioner and her counsel waited until the eve of the statute of limitations to file the petition, they had almost two ye ars of notice of the potentia l claim, and opportunity to prepare, before the filing. See Fee Dec., 2013 WL 6234660 at *2 & *3 (noting petitioner approached the firm in 2005, but the petition was not filed until 2007).14 petition was brought in good faith and her cl aim was supported by a reasonable basis, even though her petition was ultimately found untimely).

The conduct of petitioner’s atto rneys also may be relevant in some circumstances. A reasonable basis is lacking, for example, when a petitioner’s attorney does not properly investigate a case before filing it. Silva

, 108 Fed. Cl. at 405 (s ustaining a finding of no reasonable basis when a petitioner’s attorney failed to perform mini mal investigation and no medical evidence suggested the vaccine caused the injury). Generally, a petitioner
must furnish some evidence insupport of the “claim for wh ich the petition is brought” to establish the statutory requirement of reasona ble basis. See Woods, 105 Fed. Cl. at 152 (finding that the special master erred in faili ng to sufficiently analyz e whether there was a reasonable basis when the speci al master’s decision “cited no allegations of injury or causation, no medical records, and no legal au thority in determini ng that [p]etitioner’s claim had a reasonable basis”); Turpin v. Sec’y Health & Human Servs., No. 99-564V, 2005 WL 1026714, *2 (F ed. Cl. Spec. Mstr. Feb. 10, 2005) (finding no reasonable basis when petitioner submitted only one affidavit and no other records) ; Brown v. Sec’y Health & Human Servs., No. 99-539V, 2005 WL 1026713, *2 (Fed. Cl. Spec. Mstr. Mar. 11, 2005) (finding no reasonable basis when petitioner presented only e-mails between her and her attorney).

The special master acts with in his or her discretion wh en revisiting the reasonable basis inquiry if such reconsideration is warranted by changed circumstances during the proceedings. See, e.g., Perreira, 33 F.3d at 1377; McKellar, 101 Fed. Cl. at 303. Although a claim may have had a reasonable basis at the time of its filing, reasonableness may later come into question if new evidence becomes available or the lack of supporting evidence becomes apparent. Perreira, 27 F.3d at 1377. “[W]hen the reasonable basis that may have been sufficient to bring the claim ce ases to exist, it cannot be said that the
claim is maintained ingood faith.” Id. at 1377 (“[O ]nce petitioner-appellants reviewed the expert opinion upon which their case depe nded, they no longer had a reasonable basis for claiming causation-in-fact because the expert opinion was grounded in neither medical literature nor studies.”).

In this case, petitioner has asserted that reasonable basis is a one-time inquiry, and once it is found to exist, it cannot be lost inlater proceedings of the same case. See
Pet’r’s Mem. 9–11. Petitioner’s argument is unpersuasive. First, petitioner places undue reliance on the case of Commissioner, I.N.S. v. Jean, 496 U.S. 154 (1990), which held that the government’s “substantial justifica tion” defense to a prev ailing party fee award under the Equal Access to Justice Act (EAJA) operates as a “one-time threshold.” Jean, 496 U.S. at 160. Fee-shifting provisi ons in the EAJA and the Vaccine Act are “fundamentally dissimilar,” such that it is not helpful to analogize the EAJA’s “substantially justified” standard to the Vaccine Act’s “reasonable basis” standard. Morse v. Sec’y Dep’t Health & Human Serv s., 93 Fed. Cl. 780, 785 (2010) (explaining distinctions between the statutory provisions ); see also Masias, 106 Fed. Cl. 700, 70315 (2012) (explaining there are “important di stinctions between the Vaccine Act and EAJA”). For example, EAJA awards are av ailable to “prevailing parties” only. 28 U.S.C. § 2412(d)(1)(A). Also, the EAJA contains an explicit statutory check-and-balance framework—in addition to the substantial jus tification defense—that disallows recovery for any portion of the litigation in which the party ha s “unduly and unreasonably protracted the final resolution of the ma tter in controversy.” See 28 U.S.C. § 2412(d)(1)(A), (1)(C).

Second, contrary to petitioner’s conten tion, permitting further inquiry into reasonableness is not an invitation to propagat e litigation. See Pet’r’s Mem. 10 (arguing same). The court does not sanction the revi siting of a claim’s reasonable basis for every case-related activity; nor does the court sanc tion the revisiting of a claim’s reasonable basis at certain pre-set stages of a proceedi ng. See Morse, 93 Fed. Cl. at 786 (reversing special master’s finding that a separate determ ination of reasonable basis is necessary for fees litigation). Rather, the court interprets the statute to permit the reexamination of a claim’s reasonable basis if a notable change in circumstance should arise (such as here, when the original counsel was unable to fi nd an expert to support causation, but
substitute counsel continued with the litigation anyway). See Perreira, 33 F.3d at 1377 (affirming the special master’s decision to de ny the award of attorney fees for activities after petitioner received an expert opinion that was “grounded in neither medical literature nor studies”); Murphy, 30 Fed. Cl. at 62 (finding that expert testimony not corroborated by the facts was insufficient to establish reas onable basis for a fee claim), aff’d, 48 F.3d 1236 (Fed. Cir. 1 995) (table); see also Steven s v. Sec’y Health & Human Servs., No. 90–221V, 1992 WL 159520, *4 (Cl. Ct. Spec. Mstr. June 9, 1992) (denying fees where doctor and lawyer ignored glarin g factual shortcomings ), aff’d, 996 F.2d 1236 (Fed. Cir. 1993).

The court also rejects petitioner’s attemp t to equate reasonable basis with an attorney’s good fa ith or “professional judgment” in purs uing a claim. See Pet’r’s Mem. 9, 19–20. Petitioner argues that “[t]he economi cs and dynamics of Program practice . . . requires the professional judgment of experien ced attorneys . . . . [T]he Program would not function without the expectation that su ch professional evaluation will equate to a
reasonable basis.” Id. at 19. Section 15(e) has two distin ct facets: good faith and reasonable basis. § 300aa-15(e)(1). Fees and costs on an unsuccessful vaccine-injury petition may be recovered only if “the petiti on was brought in good faith and there was a
reasonable basis for the claim for which the petition was brought .” Id. (emphasis added). The statute is unambiguous that both requ irements must be met before a petitioner becomes eligible for an award. Moreover, only “good faith” is subjective; “reasonable basis” is objective. McKellar, 101 Fed. Cl. at 303.

Further, petitioner misinterprets the special master’s decision. The court agrees with respondent that, “[c]ontraryto petitioner’s allegation, the special master clearly did not ‘equate reasonable basis with preponde rant or prima facie evidence of vaccine16 causation.’” Resp’t’s’ Mem. 12 n.7 (quoting Pet’r’s Mem. at 15). Rather, the special master reasoned that “[b]ecause reasonable basis is an alterna tive way to become eligible for attorneys’ fees, reasonable basis to sup port a claim cannot be based upon the same (preponderance of th e evidence) standard.” Fee Dec., 2013 WL 6234660 at *13 (emphasis added). Instead, something less th an preponderant evidence is required for reasonable basis. Id. The special master si mply declined to defi ne what affirmative evidence would be required to support reasonable basis. See id. at 18–24.

Lastly, petitioner complains that “the sp ecial master failed to explain what constitutes enough ‘evidence’ for a petitioner to establish reasonable basis.” Pet’r’s Mem. 15. The special master did not err in hi s refusal to define sp ecifically “how much” evidence, or what evid ence, is required to satisfy the reasonable basis standard. As respondent succinctly explains, “the special ma ster did not have to ‘weigh’ a quantum of evidence because petitioner pr oduced no relevant eviden ce to support her causation claim.” Resp’t’s Mem. 12.

In sum, section 300aa-15(e)(1) provides th at the special master may exercise discretion to award an unsuccessful petitioner attorneys’ fees and costs, but only if the petitioner filed the petition in good faith and had a reasonable basis for his or her claim. Reasonable basis is an objective standard that considers the totality of the circumstances.
This standard is consistent with the underl ying spirit and purpose of the Vaccine Act, and strikes the right balance between an award of fees to counsel who have represented unsuccessful claimants and the statutorily expressed congressional intent to impose some
limitations on fee awards. Both the statute an d case law may contemplate the evidentiary standard set out by the special master, but ne ither the statute nor case law compels it. Accordingly, the court declines to do so.

B. The Special Master Did Not Abus e His Discretion In Denying Fees

The special master did not abuse his disc retion in determining that petitioner was not entitled to attorneys’ fees or costs on he r unsuccessful petition for compensation. See Fee Dec., 2013 WL 6234660 at *18–24. Althoughthe special master ventured too far in his attempt to impose an evidentiary test for reasonable basis under § 300aa-15(e)(1), he properly exercised his discretion, in this ca se, to deny fees to petitioner based on the complete lack of evidentiary support for her claim and co unsel’s delayed due diligence.

As the special master corre ctly noted, petitioner “cite[d ] to no evidence supporting
a causal connection between the flu vaccine and Ms. D’Esposito’s death.” Fee Dec.,
2013 WL 6234660 at *18. An examination of the record supports the special master’s
conclusion. None of her medical records reflected a causal connection; rather, her
medical records detailed comorbidities and attri buted Ms. D’Esposito’s injuries and death
to non-vaccine-related causes. In addition, neither the ho spital discharge summary, nor her death certificate, mentions the flu vaccine. Further, there is no ev idence in the record that any of her treating providers were willi ng to attribute any of her injuries to the17 vaccination. Lastly, althoughcounsel consulted with thr ee immunologists, no one was willing to opine on causation inthis case. Instead, petitione r relies solely on temporal proximity and petitioner’s affidavit, but these materials are not sufficient. See § 300aa13(a)(1) (A special master may not award compensation “based onthe claims of a petitioner alone, unsubstantiated by medical records or medical opinion.”); see also Cedillo v. Sec’y Health & Hu man Servs ., 617 F.3d 1328, 1347– 48 (Fed. Cir. 2010); Caves v. Sec’y Health & Human Servs., 100 Fed. Cl. 119, 135–37 (2011), aff’d per curium without opinion, 463 F. App’x 932 (Fed. Cir. 2012).

In support of her reasonable basis argumen ts, petitioner also points to the activities of her counsel in preparing an d pursuing the claim. Contrary to the special master’s finding, see Fee Dec., 2013 WL 6234660 at *19, the court is persuaded that counsel’s activities can inform the totality of the circumstances that fa ctor into a reasonable basis analysis. The court cannot say, however, that the special master abused his discretion by not crediting counsel for their work in this case. Reasonable minds can differ on whether
counsel’s activities reflected sufficient, timely du e diligence. See Fee Dec., 2013 WL 6234660 at *2–3 (detailed re citation of CHC-C’s work befo re filing petition); id. at *4–5 (detailed recitation of CHC-C’s work afte r filing the petition); id. at *5–6 (detailed recitation of Moxley’s work).

For example, although CHC-C engaged in some effort to procure Ms. D’Esposito’s medical records before filing the petition, one could construe the firm’s timesheets to reflect an earnest effort only after they filed the petition. See CHC-C’s Timesheets. In addition, there is no evid ence that CHC-C engage d in any survey of medical or legal literature conc erning causation, such as a re view of medical studies or vaccine caselaw, until January 2008, five months after the petition wa s filed. See CHC-C Timesheets at 15. Likewise, communications with experts did not begin in earnest until July 2008, after respondent ha d filed its report. Id. at 18. While the court does not require, as a rule, that the firm engage in causation research or expert communications earlier, an earlier effort arguably was warranted in this case given that counsel knew or
should have known there was no evidence of causation in the records, no support for causation from treating providers, and am ple evidence of non-vaccine-related
comorbidities. Even an earlier telephone call to one of the firm’s regularly retained experts might have provided some evidence of timely due diligence.

The petition was filed on the eve of the expi ration of limitations and the facts here indicate that counsel played a role in the delayed filing of the petition. Ms. Chuisano approached the firm in Marc h 2005, but the petition was not filed until June 2007. See Fee Dec., 2013 WL 6234660 at *2–3. During the two year period before counsel filed the petition, counsel largely pl aced the burden of assembling records on Ms. Chuisano, and did not bring its expertise in procuring records to bear until sometime later. The court will not encourage delays in the filing of petitions, or delay in the exercise of other18 due diligence, by sanctioning a br ight-line rule that finds th e existence of a reasonable basis for every claim filed on the eve of the limitations period.

Petitioner insists that her case “had a reas onable basis in medicine and literature”
that was “known to counsel and revealed to th e [special] master.” Pet’r’s Mem. 15. The court agrees with respondent, however, that “[t]his assertion is sp ecious and without any basis in the record.” Resp’t’s Mem. 14. The only evidence petitioner offered to support causation-in-fact was a temporal proximity be tween the vaccination and her injury, and an affidavit detailing her subjective belief of vaccine-related injury. Counsel’s own unsupported medical theory does not prov ide evidence of causati on-in-fact; nor is it
sufficient to create a reasonable basis to support a claim. Further undercutting petitioner’s assertion that she had a reasonable basis for bringing her claim is the refusal of the three consulted immunologists to opine favorably about causation.

Petitioner contends that her “reaction to th is vaccine” is “indisputable.” Pet’r’s Mem. 17; see also id. at 18 (arguing that “medical records demonstrated that Ms. D’Esposito became ill soon af ter the vaccine and that no other cause was identified for that illness”). But, as a factual matter, petiti oner’s assertion is not only unsupported by the medical records, but is contradicted by them.

Petitioner presses for consistency in the d ecisions of the special masters and this court, Pet’r’s Mem. 1, 3–4, 7–8, although su ch is not required as a matter of law, see Hanlon v. Sec’y Health & Human Servs., 40 Fed. Cl. 625, 630 (1998), aff’d, 191 F.3d 1344 (Fed. Cir. 1999). Petitione r erroneously relies on the case of Davis v. Secretary of Health and Human Services, 105 Fed. Cl. 627, 6 37 (2012). Pet’r’s Mem. 8. In Davis, the court “g[ave] weight to the outcome” in a similar case in which a special master had
found that a claimant had established caus ation and was entitled to compensation. 105 Fed. Cl. at 637. However, the court also noted that “[t]here is nothing inherently improper in the disparate outcomes of these two cases, of course.” Id. (explaining further
that there were salient differenc es between the two cases).

The special master’s decision in this case finds support in the caselaw. As the special master points out, the Court of Fe deral Claims entered a similar decision on similar facts in Silva v. Secretary of Hea lth and Human Services . Fee Dec., 2013 WL 6234660 at *21 (discussing Silva, 108 Fed. Cl. at 401, aff’g Case No. 10-101V, 2012 WL 2890452 (Fed. Cl. Spec. Mstr. June 22, 2012) ). In that case, the court affirmed the special master’s decision, finding he did not abuse his discretion in denying fees to
attorneys on an unsuccessful petition. 10 Silva, 108 Fed. Cl. at 405. As in the case at bar, Ms. Silva’s attorneys filed the petition with little preliminary investigation of her claim. Id. at 403–04. Ms. Silva ultimately failed to offer any evidence of causation-in-fact and

10 Special Master Moran, as well as pe titioner’s counsel CHC-C, were involved in that case, just as they are here.19 her case was dismissed for lack of proof. Id. The special master denied fees, and this
court affirmed. Id. at 405. The failure to offer a medical opinion was not the sole reason for the denial of fees; rather, other factors were at play, such as counsel’s delay in reviewing records that were in counse l’s possession when the petition was filed;
counsel’s failure to account for records that cast doubt on th e proposed causation theory; counsel’s general lack of due diligence; and the complete lack of any evidence of
causation-in-fact. See id.

In Austin v. Secretary of the Department of Health and Human Services, the special master awarded fees to CHC-C in a similar factual circumstance, but the special master acknowledged that “[t]he issue of [whe ther a] reasonable basis [existed] to file and maintain this claim [was] a very clos e one.” No. 10-362V, 2013 WL 659574, *15 (Fed. Cl. Spec. Mstr. Jan. 31, 2013). In that case, petitioner’s counsel had a twentymonth period in which to process the potential cl aim before filing, but no effort was made to obtain a review by a medical expert. Id. at *5. However, counsel could cite to at least one statement by a medical provider to support causation and timing. Id. at *6. The special master reasoned that this single notation “salvage[d] the reasonable basis for this case [because it] suggest[ed] a link between [t he injury] and [petitioner’s] vaccination.” Id. at *11. Thus, the special master “conclude[d] that there was a reasonable basis, albeit an extremely weak one, to file and maintain this claim, up to the point when a favorable expert report could not be obtained.” Id.

Although petitioner asserts, Pet’r’s Mem. 7, that the events surrounding Ms. D’Esposito’s death are “almost indistinguisha ble from the . . . successful death-benefit claim” in Bragg v. Sec’y Dep’t Health & Human Servs., No. 08-477 V, 2012 WL 404773 (Fed. Cl. Spec. Mstr. Jan. 18, 2012), this is simply not the case. Mr. Bragg died after receipt of a flu vaccine, with a diagnosis of se psis. Bragg, 2012 WL 404773 at *1–2. He had been in good health before the vaccine wa s administered and died within days of the
vaccine administration. Id. At least one tr eating physician expressed concern regarding a possible causal connection between the flu va ccine and Mr. Bragg’s declining medical health. Id. at *3. The hospital sent a vaccin e adverse event report (VAER) to the Center for Disease Control, reflecting some concern of a vaccine-related in jury. Id. Counsel submitted numerous articles reflecting medica l studies and other literature to support
causation. Id. at *3–6. An expert opined on causation. Id. at *12. And, petitioner ultimately prevailed on the comp ensation claim. Id. at *30. None of these facts or circumstances are present in this case.

The court does not question CHC-C’s g ood faith in pursuing this claim on petitioner’s behalf. Moreover, the court might have sustained the original reduced fee
award to CHC-C had it come before this court on review; however, it did not. The special master’s initial fee decision was withdr awn, and the court does not conclude that the special master abused his discretion in de termining, on reconsideration, that the press20 of the statute of limitations di d not furnish CHC-C a reasonabl e basis for an award of its
fees.

Petitioner contends that the special master had no authority to revisit the award to CHC-C. Pet’r’s Mem. 11. But petitioner miss es the mark. The spec ial master properly reconsidered CHC-C’s fees. As he correctly explained, Vaccine Rule 10(e) provides that a withdrawn decision is “void for all purposes and the special master must subsequently enter a superseding decision.” Fee Dec., 201 3 WL 6234660 at *8 (quoting Vaccine Rule 10(e)). “As a consequence of the withdrawal, it is as if the [initial fee decision] never issued.” Id. As a result, CHC-C’s original request for fees and costs was still pending and ripe for review. The special master, ther efore, necessarily had to issue new findings with respect to CHC-C’s fees. Both pe titioner and respondent were afforded an opportunity to brief CHC-C’s entitlement on reconsideration, and petitioner now balks at the decision issued further to her request thatthe special master reconsider his earlier decision. The special master found, on the facts of this case, that CHC-C lacked a reasonable basis for bringing a claim on petitioner’s behalf.

The special master also found that M r. Moxley lacked a reasonable basis for continuing to pursue petitione r’s claim after his seasone d colleagues at CHC-C had exerted multiple efforts to locat e a medical opinion on causati on and failed to obtain one. Even so, if Mr. Moxley had a reasonable like lihood of otherwise obta ining an expert, the court would have expected some record evid ence to reflect that lik elihood, such as a preliminary conference with a potential expert before he agreed to assume representation. In any event, Mr. Moxley shou ld have pursued and exhausted his efforts to retain an expert in an expeditious manner immediat ely after he assumed representation in November 2009. Instead, Mr. Moxley continued the litigation for an additional one and a half years before moving on petiti oner’s behalf for a decision on the record in May 2011.

Respondent has correctly obse rved that “[a]s long as ‘the special master has
considered the relevant evid ence,’ ‘drawn plausible infere nces,’ and stated ‘a rational basis for the decision,’ reversible error is extremely difficult to establish.” Resp’t’s Mem. 9 (quoting Hines v. Sec’y H ealth & Human Servs., 940 F. 2d 1518, 1528 (Fed. Cir. 1991)). Here, the special master considered relevant evidence, drew plausible inferences,
and set forth a rational basis for his decisi on. Accordingly, the court sustains his
decision.

IV. FEES ON APPEAL

The Court of Federal Claims also enjoys discretion to award a petitioner’s fees and costs on motion for review, even if the mo tion is unsuccessful. § 300aa-15(e)(1); see Masias, 106 Fed. Cl. at 704 (“[M]embers of the Vaccine Bar shouldbe encouraged to seek clarification of doctrine by way of appeal, even regardi ng the availability of attorneys’ fees.”). The court does not question counsel’s good faith, but does find the motion for review wanting for re asonableness. Although the co urt declines to articulate a21 bright-line test for reasonable basis, the c ourt does not disagree with the factors the special master considered wh en denying fees. The special master’s decision reflects a reasoned analysis in which he properly exercise d his discretion to deny fees. As such, the
court does not find counsel had a re asonable basis to seek review.

V. CONCLUSION

The special master’s denial of attorneys’ fees and costs was permissible under the Vaccine Act; accordingly, the court SUSTAINS the decision. It was not arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. The Clerk of the Court shall enter judgment accordingl y. No fees or costs on review.

IT IS SO ORDERED.

s/ Patricia Campbell-Smith

PATRICIA CAMPBELL-SMITH Chief Judge