In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 17-1897V

(Not to be published)

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

VALERIE NEWPORT, *

* Special Master Corcoran 

*

* Filed: March 12, 2019

Petitioner, *

v. *

* Attorney’s Fees and Costs;

SECRETARY OF HEALTH * Reasonable Basis.

AND HUMAN SERVICES, *

*

Respondent. * 

 *

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

Andrew D. Downing, Van Cott & Talamante, Phoenix, AZ, for Petitioner. 

Amy P. Kokot, U.S. Dep’t of Justice, Washington, DC, for Respondent.

DECISION AWARDING ATTORNEY’S FEES AND COSTS1

On December 7, 2017, Valerie Newport filed a Petition seeking compensation under the 

National Vaccine Injury Compensation Program (“Vaccine Program”).

2 Petitioner alleged that she 

developed a constant tremor in her right arm after receiving the influenza (“flu”) vaccine on 

September 19, 2016. Pet. at 1 (ECF No. 1). Unable to secure expert support for her claim, Ms. 

 

1 Although this Decision has been formally designated “not to be published,” it will nevertheless be posted on the 

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

means that the Decision will be available to anyone with access to the internet. As provided by 42 U.S.C. § 300aa12(d)(4)(B), however, the parties may object to the Decision’s inclusion of certain kinds of confidential information. 

Specifically, under Vaccine Rule 18(b), each party has fourteen days within which to request redaction “of any 

information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged 

or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly 

unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public

in its current form. Id.

2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 

100 Stat. 3758, codified as amended, 42 U.S.C. §§ 300aa-10 through 34 (2012) [hereinafter “Vaccine Act” or “the 

Act”]. Individual section references hereafter will be to § 300aa of the Act.
2

Newport filed a Motion seeking dismissal of the Petition on January 10, 2019, and I subsequently 

dismissed the action. Decision, dated Jan. 11, 2019 (ECF No. 21).

A week later, on January 17, 2019, Petitioner filed a motion seeking a final award of 

attorney’s fees and costs. Mot. for Final Att’ys’ Fees and Costs (ECF No. 22) (“Mot.”). Ms. 

Newport initially requested $21,329.00 in attorney’s fees, though that amount increased to 

$27,141.00 to account for fees recently incurred in the briefing of the present motion. Mot. at 3; 

Pet’r’s Suppl. to Mot. for Final Att’ys’ Fees and Costs at 1, filed Feb. 20, 2019 (ECF No. 29)

(“Supp.”).

3 As the invoice attached to the Fees Motion demonstrates, two attorneys (primary 

counsel Mr. Downing and associate Courtney Van Cott) worked on the matter between mid-June 

2017 and the present date, as well as two legal assistants. Ex. A to Mot. at 1–28. Petitioner also 

request costs in the total sum of $2,836.49, reflecting filing fees, copying, and the work of a single 

expert who consulted on the matter. Id. at 24–43.

Respondent filed an opposition to the Fees Motion on February 12, 2019. Opposition (ECF 

No. 27) (“Opp.”). Respondent maintains that the case lacks reasonable basis, emphasizing that 

Petitioner’s claim was, in the end, based solely upon her own statements rather than independent 

and objective factual evidence (and in so arguing, points out that Petitioner’s counsel filed the 

Petition without fully vetting its evidentiary basis). Opp. at 8–10. Petitioner in turn submitted a 

reply contesting Respondent’s arguments. Reply, filed Feb. 19, 2019 (“Reply”) (ECF No. 28).

Now, having had the opportunity to review all filings in light of the medical record, I hereby 

(and for the reasons set forth below) GRANT Petitioner’s motion.

I. Brief Factual Summary

Ms. Newport was born on May 17, 1969. Ex. 2 at 1. Prior to vaccination, her medical 

history was significant for anxiety and an anxiety-related hand tremor, chronic obstructive 

pulmonary disease (“COPD”), and smoking. See, e.g., Ex. 6 at 1–2; Ex. 7 at 1. 

On September 19, 2016, Petitioner received the flu vaccine. Ex. 2 at 1. Less than two weeks 

later, on October 1, 2016, Petitioner was examined at an urgent care facility with complaints of a 

two-day history of fever, lightheadedness, and weakness—but reported no tremors or any of the 

other primary symptoms complained of in this action. Ex. 3 at 4–5. Petitioner, however, has 

maintained that such symptoms began within four or five days of vaccination. See Ex. 1 at 1 ¶3 

 

3 After Respondent filed an opposition to the fees request, Petitioner filed a reply, necessitating additional attorney 

time. She thereafter filed a supplement to the existing motion, increasing her fees request by $5,812.00 to account for 

additional work performed. Supp. at 1.
3

(Decl. of Valerie Newport). She was diagnosed with a febrile illness at the October 1st urgent care 

visit. Ex. 3 at 5.

During the remainder of October, Ms. Newport had five additional medical 

appointments—but she reported tremors at none of them. See, e.g., Ex. 3 at 7–9; Ex. 7 at 1–4; Ex. 

8 at 1–5, 9–10. At most, she informed a medical treater at one such visit that she had begun to 

experience cough and dyspnea the day after her flu vaccination. Ex. 8 at 3; see also Ex. 3 at 6–7;

Ex. 7 at 1–4. She received additional treatment for shortness of breath and COPD (along with 

anxiety provoked by such instances) in early November. Ex. 7 at 14, 16; Ex. 12 at 136–39 

(documenting Petitioner’s assessment in the emergency room on November 13, 2016, for shortness 

of breath and anxiety, with associated flushing, elevated blood pressure, and lightheadedness).

It was only at the end of November 2016 that Ms. Newport first reported any right hand or

arm tremors. Ex. 8 at 11–12. The complained-of tremor is confirmed in this record. Id. at 11. She 

was subsequently referred to a neurologist, whom she saw at the end of December, and to whom 

she stated that the tremor had existed for three months (consistent with the timing of her 

vaccination—but not with the October records, which record no instance of a tremor complaint). 

Ex. 6 at 1. Examination at this time again revealed a right upper extremity tremor, which was “also 

present with rest and action, but mild.” Id. at 2. Ms. Newport was diagnosed with a tremor at that 

time, but the neurologist added that it “appear[ed] to be [an] enhanced physiologic tremor possibly 

due to anxiety and inhalers.” Id. at 3.

In 2017, Petitioner continued to obtain treatment for her preexisting COPD. Although she 

often reported to treaters that her tremor had begun after receipt of the flu vaccine, and although 

the existence of the tremor was later confirmed on examination, it was also repeatedly noted that 

no neurological explanation for the tremor had been provided, and therefore it was properly 

attributed to anxiety (as it often subsided and did not appear to limit her functionality). See, e.g., 

Ex. 7 at 27 (January 4, 2017 record); Ex. 4 at 17–18 (visit with neurologist in April 2017); Ex. 4 

at 1 (May 2017 doctor’s visit). No medical explanation for the tremor has otherwise ever been 

obtained, although it also has not been deemed neurologic in origin—and no treater has proposed 

that the flu vaccine caused it.

II. Analysis

A. Reasonable Basis Standard

I have in prior decisions set forth at length the criteria to be applied when determining if a 

claim possessed “reasonable basis” sufficient for a fees award. See, e.g., Allicock v. Sec’y of Health 

& Human Servs., No. 15-485V, 2016 WL 3571906, at *4–5 (Fed. Cl. Spec. Mstr. May 26, 2016), 

aff’d on other grounds, 128 Fed. Cl. 724 (2016); Gonzalez v. Sec’y of Health & Human Servs., 

No. 14-1072V, 2015 WL 10435023, at *5–6 (Fed. Cl. Spec. Mstr. Nov. 10, 2015). In short, a 

petitioner can receive a fees award even if his claim fails, but to do so he must demonstrate the 

claim’s reasonable basis through some objective evidentiary showing and in light of the “totality 
4

of the circumstances,” including all facts relevant to the to the case. See Chuisano v. Sec’y of 

Health & Human Servs., 116 Fed. Cl. 276, 286 (2014) (citing McKellar v. Sec’y of Health & 

Human Servs., 101 Fed. Cl. 303, 303 (2011)).

The Court of Federal Claims recently provided further illumination as to the standards to 

be used in evaluating whether the totality of the circumstances warrants a finding of reasonable 

basis. Cottingham v. Sec’y of Health & Human Servs., 134 Fed. Cl. 567, 578 (2017), appeal 

docketed, No. 19-1596 (Fed. Cir. Feb. 26, 2019). As Judge Williams therein stated, a special master 

should consider “the novelty of the vaccine, scientific understanding of the vaccine and its 

potential consequences, the availability of experts and medical literature, and the time frame 

counsel has to investigate and prepare the claim.” Cottingham, 134 Fed. Cl. at 574. The existence 

of an impending statute of limitations deadline, however, has been removed from consideration 

under the “totality of the circumstances” analysis, as it does not constitute an objective factor 

relevant to the claim’s underlying validity. Simmons v. Sec’y of Health & Human Servs., 875 F.3d 

632, 636 (Fed. Cir. 2017); see also Amankwaa v. Sec’y of Health & Human Servs., 138 Fed. Cl. 

282, 289–90 (2018) (“special masters must not consider subjective factors in determining whether 

a claim has reasonable basis[,]” and should “limit [their] review to the claim alleged in the petition 

. . . based on the materials submitted”) (quoting Santacroce v. Sec’y of Health & Human Servs., 

No. 15-555V, 2018 WL 405121, at *7 (Fed. Cl. Spec. Mstr. Jan. 5, 2018)).

Despite the fact that an attorney may no longer point to the need to file before a looming 

statute of limitations cutoff date to justify acting on an otherwise objectively baseless claim, the 

nature and extent of an attorney’s investigation into the claim’s underpinnings, both before and 

after filing, can help illuminate what a claim’s basis is (even if the attorney’s conduct does not 

establish the claim’s objective validity by itself). See Cortez v. Sec’y of Health & Human Servs., 

No. 09-176V, 2014 WL 1604002, at *6 (Fed. Cl. Spec. Mstr. Mar. 26, 2014); Di Roma v. Sec’y of 

Health & Human Servs., No. 90–3277V, 1993 WL 496981, at *2 (Fed. Cl. Spec. Mstr. Nov. 18, 

1993) (citing Lamb v. Sec’y of Health & Human Servs., 24 Cl. Ct. 255, 258–59 (1991)). Program 

attorneys are expected to conduct a reasonable pre-filing investigation—including an evaluation 

of the factual basis for the claim. See Allicock, 2016 WL 3571906, at *4; Turner v. Sec’y of Health 

& Human Servs., No. 99-544V, 2007 WL 4410030, at *7 (Fed. Cl. Spec. Mstr. Nov. 30, 2007) 

(“[a] reasonable pre-filing inquiry involves an investigation of the factual basis for a Program 

claim or the medical support for a vaccine petition”) (emphasis added)). If an attorney has 

proceeded with a Vaccine Act claim without, for example, engaging in an adequate record review 

(where those records would reveal a patent weakness), that failure is reasonably charged to the 

attorney.4

 

4 By contrast, if an attorney only possesses some of the medical records, and has otherwise been diligent in review of 

it, the fact that a record item obtained later reveals that the claim should not be pursued would not retroactively taint 

the entire case. This is wholly consistent with the fact that cases can be filed with reasonable basis but lose it later on, 

as evidence bearing on its objective basis is obtained. McNett v. Sec’y of Health & Human Servs., No. 99-684V, 2011 

WL 760314, at *6 (Fed. Cl. Spec. Mstr. Feb. 4, 2011).
5

B. The Claim Possessed Reasonable Basis up to Dismissal

Respondent’s opposition to a fees award in this case has several components. He stresses 

the fact that in Simmons, the Federal Circuit clarified that the reasonable basis inquiry focuses on 

the claim, not the attorney’s good-faith efforts to prosecute it. Opp. at 7 (citing Simmons, 875 F.3d 

at 635–36). He then maintains that this claim relied mostly on the Petitioner’s assertions that her 

tremors were vaccine-related, rather than objective medical records—and to the extent that records 

referenced such an association, it was only because the Petitioner so informed treaters. Opp. at 8. 

He also maintains that the medical record does not corroborate allegations of a tremor beginning 

shortly after receipt of the flu vaccine (given that the October 2016 records make no mention of 

this symptom). And he observes that counsel was contacted by Petitioner almost six months before 

the case was filed, giving him ample time to investigate the claim before its filing. Because the 

vaccine at issue was administered in the fall of 2016, Petitioner’s claim did not need to be filed 

before the fall of 2019, and thus counsel was under no pressure to file the case on a thin record. Id. 

at 9; Section 16(a)(1).

Petitioner argues in response that the claim possessed reasonable basis throughout its 

existence. She cites her declaration plus the medical records establishing that her tremor was 

observed by medical treaters (along with memorialized instances in which she informed treaters 

that the tremor had existed from the time of vaccination). Reply at 3–7.5 She then maintains that 

“the influenza vaccination is notorious for neurologic injury,” referencing the kinds of injuries that 

have in the Program been so associated (although she cites no cases involving the specific injury 

alleged in this case). Id. at 7. Petitioner’s original fees motion also set forth some literature support 

for the conclusion that “dystonia,” or abnormal muscle movement, could be infectious in origin 

(suggesting that vaccination could do the same). Mot. at 2–3. And she argues that Respondent has 

conflated the standard for entitlement with reasonable basis, and that Petitioner’s preexisting 

anxiety did not necessarily lead to the conclusion that her tremor was so caused (although the 

record clearly supports the conclusion that treaters proposed “anxiety” as the cause, albeit without 

relating it to any pre-vaccination symptoms). Id. at 8–9.

There is no dispute that this claim did not have sufficient evidentiary basis to proceed—

that very proposition was the grounds for Petitioner’s decision to request dismissal. The real issue 

posed by the present fees motion is whether Petitioner could have reached the same conclusion far 

sooner—perhaps even before the claim was filed—and thereby not incurred the nearly $30,000 in 

attorney’s fees that her counsel now seeks to recover.

A brief overview of special master decisions reveals many cases in which tremors are 

alleged among other neurologic symptoms. Although some such cases have settled in a petitioner’s 

favor, I have not identified a reasoned written decision in which a special master expressly found 

 

5 Petitioner also purports that a treater informed her that the tremor was likely vaccine-connected – but the attribution 

for this is derived not from a medical record but from Petitioner’s own declaration. Reply at 5 (citing Ex. 1 at ¶ 11).
6

an isolated tremor syndrome was vaccine-caused (and Petitioner for her part identifies no such 

decisions in briefing her fees request). See, e.g., Hepler v. Sec’y of Health & Human Servs., No. 

14-55V, 2016 WL 3571537 (Fed. Cl. Spec. Mstr. May 19, 2016) (decision on stipulation awarding 

damages to petitioner who suffered assorted neurological injuries, including tremors, after receipt 

of Hepatitis B vaccine). In addition, Petitioner is correct that a wide variety of neurologic injuries 

have been alleged to have been caused by the flu vaccine. Accordingly, the general concept that 

the flu vaccine could cause tremors is not properly rejected out of hand (in contrast, for example, 

to well-litigated claims arguing that autism is vaccine-caused).

But is there enough objective evidence in this case to find that Ms. Newport’s claim had 

reasonable basis? Although the matter is close, I find there was just enough objective proof in 

support of the claim to find it had reasonable basis until Petitioner could not obtain an expert’s 

assistance to substantiate the claim. Not only is there no dispute that Petitioner received the flu 

vaccine, but there is record support for the claimed injury. See, e.g., Ex. 8 at 11. In addition, the 

timeframe between when Petitioner first reported the tremor to a treater (November) and the midSeptember vaccination date is not so long to be medically unreasonable on its face. And Petitioner 

is correct in noting that claims that the flu vaccine caused a peripheral neurologic injury are 

common in the Program (and therefore it is foreseeable that experts exist who may legitimately 

agree a particular claim is scientifically supportable).

Admittedly, the record in this case augured an unsuccessful result. There are 

contemporaneous medical records from the time between vaccination and when Petitioner first 

reported a tremor that do not corroborate her assertion that the tremor began close enough in time 

to vaccination to support a causal relationship. In addition, it largely appears that Petitioner’s 

treaters discounted the possibility that her tremor had a neurologic origin. Such points confirm 

why the Petition was appropriately dismissed, once Petitioner could not locate an expert willing to 

opine in her favor. But all of the above simply goes to the claim’s strength, as opposed to whether 

it had any objective basis for proceeding. Reasonable basis is not a function of whether a claim is 

likely to succeed. Di Roma, 1993 WL 496981, at *1. It is thus appropriate to allow a fees award in 

this case.6

C. Calculation of Petitioner’s Fees and Costs Award

Having determined that a fees award is appropriate herein even though the claim was not 

successful, I must now evaluate what a reasonable award would be. Avera v. Sec’y of Health & 

 

6 Despite my reasonable basis finding herein, I take note that the attorney invoices in this case reveal that counsel had 

possession of the matter for almost six months before it was filed, and was under no pressure of a looming limitations 

cut-off to act—giving counsel sufficient time to investigate the claim. Although in this particular matter I do not find 

that the case’s reasonable basis could have been conclusively determined in that pre-filing timeframe such that counsel 

could have decided not to pursue the matter, in a case where record proof more obviously undercut the claim, a 

counsel’s failure to take advantage of such a pre-filing timeframe could bulwark a determination that reasonable basis 

did not exist. 
7

Human Servs., 515 F.3d 1343, 1347–48 (Fed. Cir. 2008); Section 15(e)(1)(B). I find that the rates 

requested by the attorneys herein are consistent with what they have received in other Program 

cases (based upon the Office of Special Masters’s rate schedule for in-forum attorneys).

7

See, e.g., 

Otto v. Sec’y of Health & Human Servs., No. 16-1144, 2018 WL 5782873, at *3 (Fed. Cl. Spec. 

Mstr. Oct. 5, 2018). And the work performed on this matter was reasonable (although the sum

expended to litigate the fee question—nearly one fourth of the total billed to the matter before that 

time—is regrettable). I therefore award in full the requested attorney’s fees. I also find that the 

costs requested are reasonable. 

Accordingly, I hereby award final attorney’s fees and costs in the total sum of $29,977.49, 

in a check payable to Petitioner and Andrew D. Downing, Esq. In the absence of a motion for 

review filed pursuant to RCFC Appendix B, the clerk of the court SHALL ENTER JUDGMENT

in accordance with the terms of this decision.8

IT IS SO ORDERED.

s/ Brian H. Corcoran

Brian H. Corcoran

Special Master

 

7 The in-forum hourly rate fees schedules are available at http://www.uscfc.uscourts.gov/node/2914.

8 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment if (jointly or separately) they file notices 

renouncing their right to seek review.