In the United States Court of Federal Claims

 

OFFICE OF SPECIAL MASTERS

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

TANYA LYNN CARTER, as parent * 

and legal representative of the estate * No. 15-1030

of her son, Z.J.C., deceased, * Special Master Christian J. Moran

 * 

 Petitioner, * Filed: January 10, 2017 

 * 

v. * Attorneys’ fees and costs; reasonable 

 * basis. 

SECRETARY OF HEALTH * 

AND HUMAN SERVICES, * 

 * 

 Respondent. * 

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

Mark L. Krueger, Krueger & Hernandez, S.C., Baraboo, WI, for Petitioner;

Voris E. Johnson, United States Dep’t of Justice, Washington, DC, for Respondent.

PUBLISHED DECISION DENYING ATTORNEYS’ FEES AND COSTS1

 

On September 20, 2016, the undersigned issued an order concluding 

proceedings in the above captioned matter. Petitioner Tanya Carter then filed an 

application for attorneys’ fees and costs. For the reasons set forth below, the 

undersigned finds the petition was not supported by a reasonable basis and 

DENIES petitioner’s request for attorneys’ fees and costs.

 1 The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and 

Promotion of Electronic Government Services), requires that the Court post this decision on its 

website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing 

redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4). 

Any redactions ordered by the special master will appear in the document posted on the website. 
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I. Brief Factual and Procedural History

Z.J.C. was born on March 31, 2013. Exhibit 1. He was relatively healthy 

during his first 15 months. He was seen at the emergency room by Muhammad 

Khan for an upper respiratory infection with fever on June 27, 2014. Exhibit 2 at 

35-36. On July 1, 2014, Z.J.C. received the pneumococcal and diphtheria-tetanusacellular pertussis (“DTaP”) vaccines during his 15-month well-child visit with 

pediatrician David May. During this visit, Dr. May diagnosed Z.J.C. with viral 

roseola but stated he was otherwise healthy. Exhibit 3 at 3-5. 

The following evening, on July 2, 2014, Z.J.C. was found unresponsive in 

his crib. Emergency personnel transported Z.J.C. to the local emergency room 

where he received initial emergency treatment before being transferred to the 

University of Wisconsin American Family Children’s Hospital. Exhibit 2 at 40. 

The admission note taken by Dr. Kathryn Gannon states that Z.J.C. was a healthy 

boy who was put down to bed and later found face down and not breathing by the 

mother’s boyfriend. Dr. Gannon noted the previous upper respiratory infection 

diagnosis but indicated that Z.J.C. had recovered and was “behaving like normal.” 

Id. at 44.

After extensive examinations and tests were performed on Z.J.C., it was 

determined that the results were consistent with brain death and he was taken off of 

life-support on the evening of July 4, 2014. The final discharge diagnosis included

possible non-accidental trauma. Exhibit 2 at 47-52. An autopsy was performed 

the following day with the final opinion being that the cause of death was due to a 

severe respiratory tract infection. Exhibit 5 at 3. The death certificate lists the 

cause of death as anoxia as a consequence of acute bronchopneumonia. Exhibit 9.

 Just over a month after Z.J.C.’s death, on August 11, 2014, Ms. Carter 

contacted the counsel of record regarding her claim. See Pet’r’s Fee App., filed 

Oct. 27, 2016, tab 1 at 5. For about a year, petitioner’s counsel gathered medical 

records. Id. at 5-8. On September 16, 2015, the petition was filed alleging that the 

pneumococcal and DTaP vaccines Z.J.C. received on July 1, 2014, caused a severe 

bacterial respiratory infection and his ultimate death. Shortly thereafter medical 

records and a statement that the records filed to date were substantially complete 

were filed.
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On November 19, 2015, the Secretary filed her report pursuant to Vaccine

Rule 4. During the ensuing status conference, the “parties agreed that expert 

reports were a necessary next step for this case.” Order, filed Dec. 10, 2015. Ms. 

Carter began her search for an expert at that time. See Pet’r’s Reply, filed Nov. 17, 

2016, at 2 (“Respondent is correct in her assertion that Petitioner did not search for 

an expert to support her claim until after the Petition was filed”). Over the ensuing 

months, Ms. Carter filed several status reports detailing her efforts to locate an 

expert. On September 6, 2016, Ms. Carter filed a Stipulation of Dismissal. Ms. 

Carter had not located an expert to opine on the case and did not file an expert 

report. On September 20, 2016, the undersigned issued an order concluding 

proceedings. 

On October 27, 2016, Ms. Carter filed the pending motion for attorneys’ fees 

and costs, requesting $21,014.36. She argues that due diligence in the form of a 

medical record review, VAERS search, medical literature review, and assessment 

of similar cases before the Vaccine Program was performed prior to the filing of 

the petition. She also supported the amount of fees requested. 

The Secretary opposes the motion asserting that Ms. Carter did not satisfy 

the reasonable basis standard. The Secretary argues that Ms. Carter has offered no 

evidence to support her claim that Z.J.C.’s untimely death was caused-in-fact by 

any vaccine. Resp’t’s Resp., filed Nov. 4, 2016, at 17. The Secretary cites the 

medical examiner’s determination that the cause of death was acute 

bronchopneumonia, which predated the vaccination. Id. The Secretary further 

asserts that a review of the medical records should have made the need for Ms. 

Carter to consult an expert “apparent to petitioner’s counsel.” Id.

Ms. Carter filed a reply essentially repeating the arguments she made with 

the filing of her motion. Ms. Carter also disagrees with the Secretary’s assertion 

that a medical expert should have been consulted prior to the filing of the petition. 

Ms. Carter contends that an expert opinion was not needed before the petition was 

filed based on the information researched about the claim, and requiring an 

expert’s opinion before the filing of a petition would be contrary to a goal of the 

Vaccine Program. Pet’r’s Reply at 2. 

The matter is now ripe for adjudication.
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II. Standards for Adjudication

Even when a petitioner in the Vaccine Program does not prevail on his or 

her claim and does not receive compensation, a special master may award 

reasonable attorneys’ fees and other costs if “the petition was brought in good faith 

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

42 U.S.C. § 300aa-15(e)(1); Sebelius v. Cloer, 133 S. Ct. 1886, 1893 (2013).

“Good faith” is a subjective standard. Hamrick v. Sec’y of Health & Human 

Servs., No. 99-683V, 2007 WL 4793152, at *3 (Fed. Cl. Spec. Mstr. Nov. 19, 

2007). A petitioner acts in “good faith” if he or she honestly believes that a 

vaccine injury occurred. Turner v. Sec’y of Health & Human Servs., No. 99-544V, 

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

does not contest that the petition was filed in good faith. Resp’t’s Resp. at 7. 

There is no evidence that this petition was brought in bad faith; therefore, the 

undersigned finds that the good faith requirement is present.

In contrast, the Secretary does contest the reasonable basis for this petition. 

The Federal Circuit has not interpreted “reasonable basis” or provided any 

guidance as to how petitioners satisfy the reasonable basis standard. Chuisano v. 

Sec’y of Health & Human Servs., 116 Fed. Cl. 276, 285 (2014) (citing Woods v. 

Sec’y of Health & Human Servs., 105 Fed. Cl. 148 (2012)). In the absence of 

guidance, special masters have taken different approaches. Silva v. Sec’y of 

Health & Human Servs., No. 10-101V, 2012 WL 2890452, at *8-9 (Fed. Cl. Spec. 

Mstr. June 22, 2012), mot. for rev. denied, 108 Fed. Cl. 401 (2012). 

Recent decisions have examined whether any evidence supports “the claim 

for which the petition was brought.” The statute’s use of the phrase “reasonable 

basis for the claim for which the petition was brought” is consistent with other 

portions of the statute that require the petition to be filed with evidence. See

Chuisano v. Sec’y of Health & Human Servs., No. 07-452V, 2013 WL 6234660, at 

*8-10 (Fed. Cl. Spec. Mstr. Oct. 25, 2013), mot. for rev. denied, 116 Fed. Cl. 276 

(2014). Evidence that is relevant to determining whether there is reasonable basis 

for a claim may include medical records, affidavits from percipient witnesses, and 

opinions from retained experts. See 42 U.S.C. § 300aa–11(c). 
5 

“The burden is on the petitioner to affirmatively demonstrate a reasonable 

basis.” McKellar v. Sec’y of Health & Human Servs., 101 Fed. Cl. 297, 305 

(2011), decision on remand vacated, 2012 WL 1884703 (May 3, 2012).

 

III. Discussion

 

 Ms. Carter’s petition alleged that the pneumococcal and DTaP vaccines 

Z.J.C. received on July 1, 2014, caused Z.J.C.’s condition and eventual death. 

Pursuant to the explanation above, Ms. Carter becomes eligible for attorneys’ fees 

and costs by presenting some evidence in the form of medical records or expert 

reports that supports this allegation. Ms. Carter cited no evidence that the alleged 

vaccines caused Z.J.C.’s condition and his eventual death. Ms. Carter did not cite 

to any medical record in which a treating physician linked the vaccines to Z.J.C.’s 

condition. Ms. Carter also did not file a report from an independently retained 

expert who opined that the vaccines caused Z.J.C.’s condition and/or his death. 

The absence of evidence means that there is no basis (reasonable or otherwise) for 

the claim set forth in the petition. Ms. Carter, therefore, does not satisfy the 

reasonable basis standard.

 Ms. Carter’s arguments in support of reasonable basis primarily focus on her 

attorney’s diligence and not about the evidence supporting Ms. Carter’s claim. A 

review of the attorney’s invoices reveals that all of the medical records, including 

the autopsy materials, were gathered in one year. However, diligence requires 

more than the collection of medical records. After obtaining the medical records, 

the attorney had ample time to review and to assess those records without concern 

of a looming statute of limitations deadline. Such a review would have revealed

the lack of evidence supporting the claim for which the petition was brought and 

highlighted the need for expert consultation.

Ms. Carter argues that “[p]etitioners are not required, nor should they be 

required, to hire an expert and have an expert report completed prior to the filing of 

a petition.” Pet’r’s Reply at 2. Ms. Carter cites no cases in support of this 

argument. More importantly, the Vaccine Act is inconsistent with this argument. 

As extensively discussed in Chuisano, 2013 WL 6234660, at *8-10, in crafting the

Vaccine Act, Congress expected petitioners to file front-loaded petitions with 

“supporting documentation, demonstrating” five elements. 42 U.S.C. § 300aa–

11(c)(1). Notably, one of these items, which is set forth in paragraph (C), concerns 

causation. The petition should include “supporting documentation” showing that 
6 

the vaccinee “sustained . . . any injury . . . which was caused by a vaccine.” 42 

U.S.C. § 300aa–11(c)(1)(C)(ii)(I). Ms. Carter’s failure to obtain this “supporting 

documentation” regarding causation prior to filing the petition does not eliminate 

the reasonable basis requirement. 

After Ms. Carter filed her petition, her attorney began to search for an 

expert. Ms. Carter’s attorney maintains that an unnamed expert was willing to 

support the claim but withdrew “based on some references in the medical records 

that were personally offensive.” Pet’r’s Mot. at 3. Attorneys’ assertions are not 

evidence. And allowing attorneys to justify their receipt of money with this type of 

allegation would create numerous problems. See Chuisano, 2013 WL 6234660, at 

*23. 

Finally, Ms. Carter’s need for a supporting expert is particularly acute in this 

case. She has not identified any treating doctor who suggested that the vaccines 

contributed to Z.J.C.’s death. Moreover, the records from the treating doctors 

actually point to a cause other than the vaccines — a severe respiratory tract 

infection. This information should have raised additional alarms that reasonable 

basis could be established only with a report from an expert. 

For these reasons, Ms. Carter has not established “a reasonable basis for the 

claim for which the petition was brought.” This showing is a condition for an 

award of attorneys’ fees and costs to a non-prevailing party. Without this showing, 

Ms. Carter is not eligible for an award of attorneys' fees and costs. Given this 

outcome, there is no reason to determine whether the requested amount of 

attorneys' fees and costs is reasonable. 

IV. Conclusion

Ms. Carter’s request for attorneys’ fees and costs is DENIED. In the 

absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of 

the court is directed to enter judgment herewith.

2

 2

 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, 

either separately or jointly, filing a notice renouncing the right to seek review.
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IT IS SO ORDERED. 

 S/ Christian J. Moran

 Christian J. Moran

 Special Master