In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS

No. 15-1462V

Filed: October 19, 2017

 Not to be Published.

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BETSY REDFERN, *

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Petitioner, *

v. *

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SECRETARY OF HEALTH *

AND HUMAN SERVICES, *

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Respondent. *

*

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ORDER DENYING PETITIONER’S MOTION FOR RECONSIDERATION1

On September 22, 2017, the undersigned issued a decision denying petitioner’s motion for 

attorneys’ fees and costs (“Fee Decision”). The undersigned found that petitioner’s counsel had 

ample time to review petitioner’s medical records and discover that petitioner did not have a 

reasonable basis to bring a vaccine claim. 

On October 11, 2017, petitioner filed a Motion for Reconsideration of the undersigned’s 

Fee Decision. Petitioner argues that the undersigned should reconsider her Fee Decision because 

she did not evaluate petitioner’s motion for attorneys' fees and costs based on the totality of the 

circumstances and petitioner had a reasonable basis to file the claim. Mot. at 2-5.

Respondent filed a response to petitioner’s motion for reconsideration on October 18, 

2017. Respondent argues “as repeatedly observed by the Special Master, petitioner’s claim of a 

shoulder injury related to vaccine administration is contradicted by the histories and findings in 

her contemporaneous medical records – a fact which underscores any reasonable basis for the 

claim and which should have been abundantly clear to counsel in performing due diligence prior 

to filing the petition.” Resp. at 2 (emphasis in original). 

This matter is now ripe for adjudication.

 1 Because this unpublished Order contains a reasoned explanation for the special master’s action in this 

case, the special master intends to post this unpublished Order on the United States Court of Federal 

Claims’ website, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012)

(Federal Management and Promotion of Electronic Government Services). Vaccine Rule 18(b) states that 

all decisions of the special masters will be made available to the public unless they contain trade secrets or 

commercial or financial information that is privileged and confidential, or medical or similar information 

whose disclosure would constitute a clearly unwarranted invasion of privacy. When such a decision is 

filed, petitioner has 14 days to identify and move to redact such information prior to the document’s 

disclosure. If the special master, upon review, agrees that the identified material fits within the banned 

categories listed above, the special master shall redact such material from public access.

Motion for reconsideration denied
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I. Legal Standard

A party seeking reconsideration must “support the motion by a showing of extraordinary 

circumstances which justify relief.” Fru-Con Constr. Corp v. United States, 44 Fed. Cl. 298, 300 

(Fed. Cl. 1999). A motion for reconsideration must be based upon a “manifest error of law, or 

mistake of fact, and is not intended to give an unhappy litigant an additional chance to sway the 

court.” Prati v. United States, 82 Fed. Cl. 373, 376 (Fed. Cl. 2008). Specifically, “the moving 

party must show: (1) the occurrence of an intervening change in the controlling law; (2) the 

availability of previously unavailable evidence; or (3) the necessity of allowing the motion to 

prevent manifest injustice.” Matthews v. United States, 73 Fed. Cl. 524, 526 (Fed. Cl. 2006). 

Where a party seeks reconsideration on the ground of manifest injustice, the party must be 

mindful that “[m]anifest” means “clearly apparent or obvious.” Ammex, Inc. v. United States, 52 

Fed. Cl. 555, 557 (Fed. Cl. 2002). Accordingly, a party cannot prevail on the ground of manifest 

injustice unless the party demonstrates that the asserted injustice is “apparent to the point of being 

almost indisputable.” Pac. Gas & Elec. Co. v. United States, 74 Fed. Cl. 779, 785 (Fed. Cl. 2006).

A motion for reconsideration will not be granted if the movant “merely reasserts . . . 

arguments previously made . . . all of which were carefully considered by the court.” Ammex, 

52 Fed. Cl. at 557. Nor will a motion for reconsideration be granted if it is “based on evidence 

that was readily available at the time” the matter was being decided. Seldovia Native Ass’n v. 

United States, 36 Fed. Cl. 593, 594 (Fed. Cl. 1996). Finally, an evaluation of a motion for 

reconsideration is to be “guided by the general understanding ‘that, at some point, judicial 

proceedings must draw to a close and the matter deemed conclusively resolved.’” Northern 

States Power Co. v. United States, 79 Fed. Cl. 748, 749 (Fed. Cl. 2007) (quoting Withrow v. 

Williams, 507 U.S. 680, 698 (1993)). 

II. Discussion

In support of her Motion for Reconsideration and Clarification, petitioner argues just one 

of the three bases, i.e., manifest injustice. Petitioner does not argue that there has been a change 

in the controlling law or that any previously unavailable evidence has become available. In her 

Motion for Reconsideration, petitioner argues that: (1) petitioners’ [sic] attorneys’ sole source of 

fees is an award through the National Vaccine Injury Compensation Program (“Vaccine 

Program”); (2) the undersigned did not evaluate her motion for attorneys' fees and costs based on 

the totality of the circumstances; (3) petitioner’s counsel had a reasonable basis to file the claim 

as (a) he performed a thorough investigation of the claim, (b) the facts of the case demonstrate a 

reasonable basis, and (c) his firm has won similar cases at hearing; and (4) petitioner’s counsel 

and his law firm do not intentionally file meritless cases. The undersigned finds none of the 

above-outlined arguments persuasive.

The Vaccine Act permits an award of “reasonable attorneys’ fees” and “other costs.” 

42 U.S.C. § 300aa-15(e)(1). It is not necessary for a petitioner to prevail in the case-in-chief in 

order to receive a fee award as long as petitioner brought the claim in “good faith and there was a 

reasonable basis for the claim.” Id. In her Fee Decision, the undersigned held it was not 

reasonable for petitioner to proceed. Redfern v. Sec’y of HHS, No. 15-1462V, 2017 WL 

4638661, at *6 (Fed. Cl. Spec. Mstr. Sep. 22, 2017). Thus, petitioner does not merit reasonable 
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attorneys' fees and costs. Id. The fact that petitioner claims that her counsel’s sole source of 

fees is an award through the Vaccine Program is irrelevant to whether or not there was a 

reasonable basis for petitioner to proceed.

In her Motion for Reconsideration, petitioner claims that the undersigned did not evaluate 

her motion for attorneys' fees and costs based on the totality of the circumstances. While the 

applicable standard for a reasonable basis analysis is currently pending before the United States 

Court of Appeals for the Federal Circuit2 and an evidence-based standard is generally viewed 

legally correct when conducting a reasonable basis analysis, the undersigned did apply a totality 

of the circumstances test in reaching the conclusion that petitioner did not have a reasonable basis 

to bring her claim and an award of attorneys’ fees and costs was therefore unreasonable. The 

undersigned not only considered the case records as a whole, including reviewing all medical 

records, but also looked at the statute of limitations. Petitioner's counsel has a duty to do due 

diligence, i.e., to investigate a claim before filing it. Rehn v. Sec’y of HHS, 126 Fed. Cl. 86, 93 

(Fed. Cl. 2016). In her Fee Decision, the undersigned explained that the statute of limitations 

was not a problem in petitioner's filing of her claim and her counsel had ample time to perform 

his due diligence: 

Petitioner did not contact her counsel on the eve of the running of the statute of 

limitations. She received flu vaccine on June 30, 2014. Even if petitioner’s 

alleged vaccine injury began the day she received the vaccine, she had until June 

30, 2017 before the statute of limitations would run on her claim. Petitioner’s 

attorney’s billing records show petitioner had contacted counsel by February 3, 

2015, over two years and four months before the running of the statute of 

limitations. Fee App., Ex. A, at 1. This should have been plenty of time for 

petitioner’s counsel to receive and review petitioner’s medical records and 

discover the same issues that led to the dismissal of petitioner’s case. 

2017 WL 4638661 at *5. 

While petitioner argues that her counsel performed a thorough investigation of her claim 

and that the facts demonstrates a reasonable basis for her to proceed, review of petitioner’s 

medical records would have shown petitioner’s counsel that petitioner did not have a reasonable 

basis to bring her case. In her Fee Decision, the undersigned made it clear that petitioner’s 

medical records show she did not have SIRVA but osteoarthritis causing her shoulder pain. 

Vaccinations do not cause osteoarthritis:

Petitioner did not complain of pain until two and one-half months after receiving 

her first Twinrix dose, when she told her personal care physician Dr. Leto Quarles

. . . that she was experiencing pain in joints. However, petitioner specifically 

complained of pain in her elbow, not in her shoulder. Med. recs. Ex. 8, at 59. 

Dr. Quarles attributed this pain to tendinopathy caused by antibiotics. Id. Dr. 

Quarles’ examination of petitioner’s left upper extremity showed she had no 

tenderness to palpation and that she had normal shoulder, elbow, and wrist joint 

stability and normal range of motion, which contradicts her claim that Twinrix 

 2 Simmons v. HHS, No. 2017-1405 (appeal docketed Dec. 23, 2016). 
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vaccine caused her to develop SIRVA. 

Id.

In addition, petitioner raises a new claim that Dr. Seng’s clinic notes from May 10, 2016 

provide a reasonable basis for her claim. In his response, respondent argues that Dr. Seng’s note 

is merely reiterating petitioner’s view of her injury which is not Dr. Seng’s independent opinion:

Petitioner filed her petition for vaccine injury compensation on December 3, 2015. 

At that time, none of the records filed in this case supported a shoulder injury 

related to vaccination. See Pet. Ex. 1-8. Five months after petitioner filed her 

petition, and for the first time, Dr. Seng noted inter alia that “She has a theory 

about how she developed frozen shoulder . . . She is considering that the 

vaccinations that she received prior to Panama trip may have contributed to her 

developing a painful frozen shoulder. She has a skinny frame with little muscle 

around the shoulder. She remembers at the time that the shots and the successive 

shot the next month were incredibly painful.” Pet. Ex. 10 at 1 (emphasis added). 

Dr. Seng then discussed with petitioner that there were a “multitude” of causes of 

frozen shoulder. Pet. Ex. 10 at 1. Based on petitioner’s theory of what caused her 

injury, Dr. Seng commented “I think it is plausible that because of her skinny 

frame and decreased depth of soft tissue around the shoulder, that the needle could 

have been penetrated farther than intended. I do not know the needle length that 

was used and Betsy may try and find that out.” Id. As petitioner’s left shoulder was 

“well now,” Dr. Seng was “happy to support her and be her advocate.” Id. Dr. 

Seng’s note is simply a reiteration of petitioner’s belief that her left shoulder injury 

was caused by vaccination, is unsupported by Dr. Seng’s previous records, and 

provides no more reasonable basis for the filing of this claim than the bare 

assertions in petitioner’s affidavit, which were already considered in the Special 

Master’s decisions.

Resp. at 4 (emphasis in original). The undersigned agrees with respondent’s argument. 

Moreover, petitioner’s citing her counsel’s 4 other cases involving SIRVA does not 

convert the instant case into a SIRVA case or make it reasonable to have filed it. The fact that 

some of petitioner's symptoms are the same as symptoms in SIRVA does not mean petitioner had 

SIRVA. 

Finally, petitioner claims that her counsel and his law firm do not intentionally file 

meritless cases. By denying an award of petitioner’s attorneys’ fees and costs, the undersigned 

was not asserting that petitioner's counsel and his law firm file meritless cases. The undersigned 

decided the instant case, not all of petitioner's counsel's cases, on the merits of whether or not 

there was a reasonable basis to file a claim.

For the foregoing reasons, the undersigned DENIES petitioner’s Motion for 

Reconsideration. 

IT IS SO ORDERED.
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Dated: October 19, 2017 /s/ Laura D. Millman 

 Laura D. Millman

 Special Master