United States Court of Appeals 

for the Federal Circuit ______________________

STACEY JAMES-CORNELIUS, ON BEHALF OF 

HER MINOR CHILD, E. J.,

Petitioner-Appellant

v.

SECRETARY OF HEALTH AND HUMAN 

SERVICES,

Respondent-Appellee

______________________

2019-2404

______________________

Appeal from the United States Court of Federal Claims 

in No. 1:17-vv-01616-LKG, Judge Lydia Kay Griggsby.

______________________

Decided: January 8, 2021

______________________

ANDREW DOWNING, Van Cott & Talamante, PLLC, 

Phoenix, AZ, argued for petitioner-appellant. 

 JULIA COLLISON, Vaccine/Torts Branch, Civil Division, 

United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by 

JEFFREY B. CLARK, ALEXIS B. BABCOCK, C. SALVATORE 

D'ALESSIO, CATHARINE E. REEVES. 

_____________________

Before O’MALLEY, REYNA, and CHEN, Circuit Judges.

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2 JAMES-CORNELIUS v. HHS

REYNA, Circuit Judge.

Appellant Stacey James-Cornelius challenges the decision of the United States Court of Federal Claims affirming 

the Special Master’s denial of attorneys’ fees for her vaccine injury compensation claim. Ms. James-Cornelius contends that the Special Master erred in concluding she had 

no reasonable basis for her claim. We conclude that the 

Special Master failed to consider relevant objective evidence in conducting her reasonable basis analysis. We 

thus vacate the denial of fees and remand for further proceedings.

BACKGROUND

Ms. James-Cornelius filed a petition with the United 

States Court of Federal Claims (“Claims Court”) for vaccine 

injury compensation under the National Vaccine Injury 

Compensation Program. Ms. James-Cornelius alleged that 

her seventeen year old son, E.J., had suffered from autonomic dysfunction (i.e., dysautonomia), postural orthostatic tachycardia syndrome (“POTS”), and other symptoms 

as a result of receiving three shots of the human papilloma 

virus (“HPV”) vaccine, Gardasil®. J.A. 17–24. Ms. JamesCornelius’s October 27, 2017 petition, accompanied by 

sworn affidavits from her and her son, alleged that E.J. was 

administered doses of the Gardasil® vaccine on October 30, 

2014, December 23, 2014, and May 27, 2015. Id. at 17, 26–

27, 31–32. Within a few days after receiving his first HPV 

vaccine on October 30, 2014, E.J. felt ill and fatigued, and 

soon began experiencing severe headaches and vomiting 

three to four times per week. Id. at 18–19, 26, 31. After 

his second dose on December 23, 2014, his symptoms progressed. His headaches turned to severe migraines accompanied by vomiting and sensitivity to light. Id. at 19–20, 

27, 32. In April 2015, E.J. was diagnosed with mononucleosis, and by early May 2015, he was confirmed as cleared 

of his infection. Id. at 20, 27, 32. 

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JAMES-CORNELIUS v. HHS 3

According to the petition and the related affidavits, after E.J. received his third dose of Gardasil® on May 27, 

2015, his body pains and vomiting worsened again. Id. at 

20–21, 27–30, 32–33. Prior to this last dosage, E.J. vomited 

seven to fifteen times per day, which increased after the 

third dose to a range of twenty to thirty-two times per day. 

Id. at 20, 27–28, 32–33. E.J. stated in his affidavit that he 

was “always dizzy” and fainted several times while running. Id. at 27. E.J. also stated his bones “felt like they 

were breaking every time [he] walked.” Id. He also began 

to experience diarrhea and stomachaches. Id. at 29. E.J. 

alleged that for many months thereafter he continued to 

suffer from debilitating symptoms, including dizziness 

while using the stairs, fainting, weakness, pain, and vomiting that prevented him from attending school and participating in regular activities. Id. at 20–22, 27–30, 32–33.

In further support of the petition, Ms. James-Cornelius

submitted medical records dated between December 2014

and April 2016, which are summarized in the Special Master’s decision. Id. at 71–73. The records confirmed the 

dates of E.J.’s three Gardasil® vaccinations. Id. at 71–72.

While there are no records of any medical visits between 

his first and second vaccinations, the records document his 

diagnosis with mononucleosis in April and early May of 

2015. See id.

E.J.’s medical records also document a series of medical

visits, symptoms, and diagnoses after his third Gardasil®

vaccination in May 2015. For example, on “June 18, 2015, 

E.J. was seen by a nurse practitioner for ‘abdominal pain, 

a change in bowel habit, coughing, headaches and a sore 

throat.’” Id. at 72. The nurse practitioner diagnosed him 

with “a sore throat, pharyngitis, and bilateral thoracic back 

pain.” Id. Two months later, on August 11, 2015, E.J. visited the emergency room after suffering from “headaches, 

vomiting, diarrhea, back pain, muscle aches and lightheadedness” for one week, and he was diagnosed with malaise 

and fatigue. Id. On September 7, 2015, E.J. returned to 

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4 JAMES-CORNELIUS v. HHS

the emergency room. Id. The physician noted that he may 

be suffering from “prolonged sequela from mononucleosis,” 

but he was discharged the same day after “reassuring” test 

results. Id. On January 11, 2016, E.J. was seen by his 

former care provider, Dr. Kim, for fever, back pain, nausea, 

vomiting, diarrhea, leg pain, light sensitivity, and episodes 

that felt like his “heart was skipping.” Id. On January 22,

2016, E.J. was seen by a cardiologist for syncope during or 

immediately after exercise. Id. The summary of that visit 

referenced a previous tentative diagnosis of POTS. The 

cardiologist indicated his impressions that E.J. had been 

experiencing “syncope, neurocardiogenic (‘POTS’).” Id.

On January 29, 2016, E.J. visited Dr. Kim again and 

complained of vomiting, weakness, fatigue, and back pain. 

Id. at 67. Dr. Kim’s visit summary contained the note,

“??VAERS” (the acronym for the Vaccine Adverse Event 

Reporting System), next to a similar note including question marks next to the phrase, “chronic fatigue syndrome.”

Id. at 67. 

E.J.’s medical visits and diagnoses continued over the 

following months. On February 3, 2016, E.J. went to the

emergency room due to vomiting. Id. at 72–73. E.J.’s medical tests were “unremarkable,” and the hospital discharged him on the same day. Id. On February 9, 2016,

E.J. visited a new cardiologist for “syncope and question of 

POTS” and underwent a tilt-table test. Id. at 73. On April 

18, 2016, E.J. followed up with the cardiologist, who explained that the tilt-table test’s results were unremarkable. Id. Based on E.J.’s history, physical examination, and 

the tilt-table test results, the cardiologist diagnosed him 

with dysautonomia. Id. 

In addition to these medical records, Ms. James-Cornelius’s petition identified three medical articles hypothesizing that HPV vaccines, including Gardasil®, can cause

dysautonomia and POTS. Id. at 22–23. The petition also 

alleged that the increasing severity of his symptoms after 

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JAMES-CORNELIUS v. HHS 5

receiving subsequent doses of the Gardasil® vaccine is “evidence of re-challenge” and that the pattern of worsening 

reactions is “strongly probative of a causal relationship” between the vaccine and E.J.’s symptoms. Id. at 23. Further, 

the petition alleged symptoms such as headache and syncope, id. at 71–73, symptoms listed in the Gardasil® package insert as potential side effects associated with vaccine 

administration, Appellant’s Br. 25.

After filing the petition, Ms. James-Cornelius and her 

attorneys unsuccessfully attempted to obtain additional 

medical records relating to urgent care visits that Ms. 

James-Cornelius believed took place between E.J.’s first 

and second vaccinations. Id. at 58–60. After she sought

and obtained additional time to file the outstanding medical records, she moved to dismiss her petition. Id. at 41–

42. She explained in her motion that she and her counsel 

had worked unsuccessfully to obtain the missing records

and that “an investigation of the facts ha[d] demonstrated 

that she [would] likely be unable to prove that she [was] 

entitled to compensation in the Vaccine Program.” Id. at 

41–42. 

After the dismissal, Ms. James-Cornelius sought 

$17,111.12 in attorneys’ fees and costs under

42 U.S.C. § 300aa-15(e)(1), asserting that she had filed her 

petition in good faith and with a reasonable basis. Id. at 

68–69. The Special Master denied the request, concluding 

that Ms. James-Cornelius’s petition lacked a reasonable 

basis. Id. at 68–76. The Special Master noted that Ms. 

James-Cornelius and her counsel had discussed the need 

to obtain missing medical records for months before filing 

the petition and had found that the medical records she 

filed were insufficient to establish that she had a feasible 

claim. Id. at 74–75. The Special Master also reasoned that 

the affidavits provided by Ms. James-Cornelius and E.J. 

did not constitute objective evidence supporting a reasonable basis, but instead reflected only a subjective belief that 

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6 JAMES-CORNELIUS v. HHS

E.J. was injured by the vaccine. Id. at 75. The Claims 

Court affirmed the denial of attorneys’ fees. Id. at 1.

Ms. James-Cornelius appeals the Claims Court’s decision. We have jurisdiction under 28 U.S.C. § 1295(a)(3) and 

42 U.S.C. § 300aa-12(f).

DISCUSSION

We address three main arguments raised by Ms. 

James-Cornelius. First, Ms. James-Cornelius contends 

that an express medical opinion was not required for her to

satisfy the reasonable basis standard for attorneys’ fees. 

Appellant’s Br. 21, 28–29. Second, she argues that the affidavits she submitted in support of her petition provide

objective evidence and should not be deemed entirely subjective in nature. Id. at 30–31; Reply Br. 3 n.1. Third, she 

contends that efforts made by her counsel to obtain additional medical records do not evince a lack of a reasonable 

basis for the petition. Appellant’s Br. 17–23. 

Following receipt of a petition for compensation under 

the National Vaccine Injury Compensation Program, the 

Claims Court designates a special master to issue a decision on whether compensation should be provided and, if 

so, the amount of the compensation. 42 U.S.C. § 300aa12(d). The Claims Court has jurisdiction to review the special masters’ decisions. Id. § 300aa-12(e)(2). The Claims 

Court may uphold the special master’s findings of fact and 

conclusions of law, set aside findings of fact or conclusions 

of law that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” or remand 

the petition to the special master for further action as directed by the Claims Court. Id. If the petitioner does not 

seek review by the Claims Court, or if the Claims Court 

upholds the special master’s decision, then the Claims 

Court enters judgment in accordance with the special master’s decision. Id. § 300aa-12(e)(3). 

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JAMES-CORNELIUS v. HHS 7

This Court has jurisdiction to review the judgment issued by the Claims Court. Id. § 300aa-12(f). Specifically, 

we review a special master’s denial of attorneys’ fees and 

costs under the same standard as the Claims Court and 

will affirm unless the special master’s decision is “arbitrary, capricious, an abuse of discretion, or otherwise not 

in accordance with law.” Cottingham on Behalf of K.C. v. 

Sec’y of Health & Human Servs., 971 F.3d 1337, 1345 

(Fed. Cir. 2020) (citation omitted); see also 42 U.S.C. 

§§ 300aa-12(e)(2)(B). We review de novo a special master’s 

application of the law. Simmons v. Sec’y of Health & Human Servs., 875 F.3d 632, 635 (Fed. Cir. 2017). 

When a petitioner is denied compensation for a claim, 

she may still obtain compensation to cover reasonable attorneys’ fees and other costs “if the special master or court 

determines that 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); Cloer v. 

Sec’y of Health & Human Servs., 675 F.3d 1358, 1360–61

(Fed. Cir. 2012). But even when these two requirements 

are satisfied, a special master retains discretion to grant or 

deny attorneys’ fees. See 42 U.S.C. § 300aa-15(e)(1); Cloer, 

675 F.3d at 1362. 

After briefing but before oral argument in this appeal, 

this court issued its decision in Cottingham, addressing the 

standard for determining whether a claim has a “reasonable basis” for attorneys’ fees purposes. 971 F.3d at 1346.

Like Ms. James-Cornelius here, the petitioner in Cottingham filed a claim for injuries allegedly related to the Gardasil® vaccine and later voluntarily moved to dismiss her 

claim. Id. at 1341. In Cottingham, we reiterated our prior 

holding in Simmons that a reasonable basis analysis is limited to objective evidence, and that subjective considerations, such as counsel’s subjective views on the adequacy of 

a complaint, do not factor into a reasonable basis determination. See id. at 1344 (citing Simmons, 875 F.3d at 635). 

We also explained that the quantum of objective evidence 

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8 JAMES-CORNELIUS v. HHS

needed to establish reasonable basis for a claim, including

causation, is “lower than the preponderant evidence standard required to prove entitlement to compensation,” but 

“more than a mere scintilla.” Cottingham, 971 F.3d at 

1346. Applying those principles, we concluded that the 

special master clearly erred in finding “no evidence” of causation after overlooking objective evidence in the record. 

Id.

The parties disagree about Cottingham’s effect on this 

case. While Ms. James-Cornelius contends that Cottingham requires remand here, the Government maintains 

that, even under Cottingham, the Special Master’s decision 

remains adequately supported by the record. We agree 

with Ms. James-Cornelius and vacate the Special Master’s 

denial of attorneys’ fees for the following reasons. 

First, the Special Master emphasized the absence of 

any express medical opinion on causation. J.A. 74 (“None 

of E.J.’s medical providers associated his symptoms with 

his vaccinations.”). But absence of an express medical 

opinion on causation is not necessarily dispositive of 

whether a claim has a reasonable basis, especially when 

the case is in its early stages and counsel may not have had 

the opportunity to retain qualified experts. See Cottingham, 971 F.3d at 1346 (explaining that medical records 

paired with the vaccine’s package insert constituted objective medical evidence that may support finding a reasonable basis of causation). Further, for purposes of 

establishing a reasonable basis for a claim, “[m]edical records can support causation even where the records provide 

only circumstantial evidence of causation.” Id. 

E.J.’s medical records here provide factual support for

Ms. James-Cornelius’s reasonable basis claim even in the 

absence of an express medical opinion on causation. The 

records showed that E.J. experienced a series of symptoms 

after receiving Gardasil® vaccinations, see, e.g., J.A. 71–73, 

including headache and syncope, adverse reactions recited 

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JAMES-CORNELIUS v. HHS 9

in the vaccine’s package insert, Appellant’s Br. 25. The petition further alleged that the increase in his symptoms’ severity after his third dose suggested a “rechallenge,” which 

has been recognized as a form of causation evidence. J.A.

23; see, e.g., Capizzano v. Sec’y of Health & Human Servs., 

440 F.3d 1317, 1322 (Fed. Cir. 2006) (noting the special 

master’s reliance on evidence of a rechallenge, which occurs when “a patient who had an adverse reaction to a vaccine suffers worsened symptoms after an additional 

injection of the vaccine”). The petition also documents a 

medical diagnosis of dysautonomia and a working diagnosis of POTS for E.J.’s symptoms, as well as three medical 

journal articles allegedly hypothesizing that these diseases 

can be caused by the Gardasil® vaccine. J.A. 22–23. Further, at least one physician, Dr. Kim, wrote “??VAERS” in 

a medical report, suggesting Dr. Kim’s belief that E.J.’s 

vaccines could have caused his symptoms. Id. at 67. Notably, the Special Master did not refer to Dr. Kim’s note in 

her overview of E.J.’s medical history following E.J.’s third 

dose of the vaccine. See id. at 72. The Special Master thus 

overlooked that fact in reaching the conclusion that “[n]one 

of E.J.’s medical providers associated his symptoms with 

his vaccinations.” Id. at 74. This record reflects evidence 

that could support finding a reasonable basis for a causal 

relationship between vaccination and symptoms. Under 

these circumstances, the lack of an express medical opinion 

on causation did not by itself negate the claim’s reasonable 

basis. 

Second, the Special Master refused to consider the affidavit testimony of Ms. James-Cornelius and E.J. on the

basis that a petitioner’s affidavit can never constitute objective evidence. See id. at 75 (“It is established in the Program that a petitioner’s own statements are not ‘objective’

for purposes of evaluating reasonable basis.”). While lay 

opinions as to causation or medical diagnosis may be 

properly characterized as mere “subjective belief” when the 

witness is not competent to testify on those subjects, the 

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10 JAMES-CORNELIUS v. HHS

same is not true for sworn testimony as to facts within the 

witness’s personal knowledge, such as the receipt of a vaccine and the timing and severity of symptoms. Cf. FED. R.

CIV. P. 56(c)(4) (allowing parties to support or oppose a motion for summary judgment based on affidavits or declarations “made on personal knowledge” that “set out facts that 

would be admissible in evidence, and show that the affiant 

or declarant is competent to testify on the matters stated”); 

FED. R. EVID. 701 (allowing lay witnesses to offer opinion 

testimony if it is “rationally based on the witness’s perception,” “helpful to clearly understanding the witness’s testimony or to determining a fact in issue,” and “not based on 

scientific, technical, or other specialized knowledge within 

the scope of Rule 702”). Indeed, for many medical symptoms or events—such as a headache and other pain, dizziness, nausea, and vomiting—the patient’s or a parent’s 

testimony may be the best, or only, direct evidence of their 

occurrence. Medical records related to those symptoms 

would likely be based on the statements of those who experienced them. And while such medical records may indeed 

serve as important corroborating evidence for evaluating 

testimony’s credibility, we reject the Special Master’s broad 

pronouncement that petitioners’ affidavits are categorically “not ‘objective’ for purposes of evaluating reasonable 

basis.” See J.A. 75. 

E.J.’s and Ms. James-Cornelius’s affidavits provided 

evidence—separate and apart from any subjective beliefs 

they may have had about the cause of E.J.’s symptoms—

supporting their claim for compensation. For example, the 

affidavits stated that E.J. had received Gardasil® doses at 

three times; that he suffered from a set of symptoms that 

began shortly after he received his first dose; and that 

those symptoms recurred with increasing severity after 

each subsequent dose. See id. at 26–34. The petition also

alleged that these events suggested the occurrence of a

challenge-rechallenge event, which has been recognized as 

a basis for establishing causation. See, e.g., Capizzano, 

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JAMES-CORNELIUS v. HHS 11

440 F.3d at 1322. When taken together with the corroborating medical records included in the petition and the 

Gardasil® package insert, the factual testimony provided 

by E.J. and Ms. James-Cornelius amount to relevant objective evidence for supporting causation. The Special Master’s outright refusal to consider this testimony was error. 

Third, the Special Master based her decision in part on 

“counsel’s repeated attempts to collect additional records 

and discuss the Program’s burden of proof prior to filing.” 

J.A. 74. The Special Master reasoned that these efforts indicate that the petitioner and her counsel lacked a reasonable basis for her claim before she filed the petition. Id.

We agree with Ms. James-Cornelius that the Special Master erred in deeming counsel’s efforts to collect additional 

medical records to be evidence that the petition lacked a 

reasonable basis. Whether a petition sets forth a reasonable basis for a claim “is an objective inquiry unrelated to 

counsel’s conduct.” Simmons, 875 F.3d at 636; Cottingham, 971 F.3d at 1342. Subjective considerations, such as 

counsel’s apparent desire to obtain additional evidence, do

not negate the objective sufficiency of evidence presented

in support of a claim. See Cottingham, 971 F.3d at 1344 

(explaining that, unlike the subjective good faith test, 

“[r]easonable basis, on the other hand, is an objective test, 

satisfied through objective evidence” (internal citations 

omitted)). By going beyond the allegations and evidence in 

the petition, and instead looking to counsel’s conduct and 

state of mind as a sign that a petition may be incomplete,

the Special Master misapplied the legal standard for determining a reasonable basis. 

For these reasons, we conclude that the Special Master 

clearly erred when conducting her reasonable basis analysis of Ms. James-Cornelius’s claim. Because the decision to 

deny attorneys’ fees rested solely on the absence of a reasonable basis, we vacate that decision and remand for the 

Special Master to determine, in her discretion, whether attorneys’ fees should be granted in this case. In exercising 

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12 JAMES-CORNELIUS v. HHS

her discretion, the Special Master must articulate the basis 

of any discretionary decision to grant or deny fees, keeping

in mind the Vaccine Act’s remedial objective of maintaining 

petitioners’ access to willing and qualified legal assistance. 

H.R. REP. 99-908, at 22 (1986), as reprinted in 

1986 U.S.C.C.A.N. 6344, 6363 (stating that the Committee

“intends that the court make adequate provision for attorneys’ time and that the court exercise its discretion to 

award fees in non-prevailing, good-faith claims”). 

CONCLUSION

We have considered the parties’ remaining arguments 

and find them unpersuasive. For the reasons set forth 

above, we vacate the Special Master’s denial of attorneys’ 

fees and remand for further proceedings consistent with 

this opinion.

VACATED AND REMANDED

COSTS

Costs to the appellant. 

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