               In the United States Court of Federal Claims
                                    OFFICE OF SPECIAL MASTERS
                                             No. 17-1897V
                                           (To be published)

*************************
VALERIE NEWPORT,           *
                           *                                    Special Master Corcoran
                           *
                           *                                    Filed: April 3, 2019
               Petitioner, *
     v.                    *
                           *                                    Motion for Reconsideration; Attorney’s
                           *                                    Fees and Costs; Reasonable Basis.
SECRETARY OF HEALTH        *
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.

                   ORDER DENYING MOTION FOR RECONSIDERATION1

       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
had developed a constant tremor in her right arm from receipt of the influenza (“flu”) vaccine on
September 19, 2016. Pet. at 1 (ECF No. 1). Unable to secure expert support for her claim, Ms.



1
  This Decision will 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. § 300aa-12(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.
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).

        Petitioner thereafter filed a motion seeking a final award of attorney’s fees and costs. Mot.
filed Jan. 17, 2019 (ECF No. 22). Respondent opposed the motion, arguing that the case lacked
reasonable basis (see Opposition, filed Feb. 12, 2019 (ECF No. 27)), but I issued a decision
awarding the requested attorney’s fees and costs on March 12, 2019 (ECF No. 30) (“Fees
Decision”). I found that Petitioner’s claim had reasonable basis up until the time at which Petitioner
was unable to secure expert support (after which she promptly sought dismissal). Fees Decision
at 6.

         Respondent now moves for reconsideration of the Fees Decision, arguing that my analysis
therein improperly relied on Cottingham v. Secretary of Health & Human Services, 134 Fed. Cl.
567 (2017). Resp’t’s Mot. for Recons. at 1, filed Mar. 22, 2019 (ECF No. 31) (“Mot. for Recons.”).
Maintaining that Cottingham (a case that prompted several rounds of appeals, and in which the
final determination of the Court of Federal Claims is now on appeal at the Federal Circuit)3 has
been since superseded, he asserts that my discussion of it was misplaced. Id. at 2. He argues further
that a subsequent determination in the same case (141 Fed. Cl. 85 (2018)) undermines my finding
that this claim possessed a reasonable basis (and thus militates against an award of attorney’s fees
and costs). Id.

        In the alternative, Respondent asserts that if I do not wholly withdraw my Fees Decision, I
should withdraw it temporarily and stay its reissuance pending resolution of the Cottingham
Federal Circuit appeal. Mot. for Recons. at 3. Petitioner filed a response to Respondent’s Motion
for Reconsideration on April 1, 2019, arguing that my Fees Decision correctly harmonized
Cottingham with more recent precedent from the Court of Federal Claims and the Federal Circuit.
Pet’r’s Resp. to Resp’t’s Mot. for Recons. at 2–3 (ECF No. 31).


3
  After the special master issued a decision pursuant to the petitioner’s voluntary dismissal (Cottingham v. Sec’y of
Health & Human Servs., No. 15-1291V, 2016 WL 6575170 (Fed. Cl. Spec. Mstr. Oct. 13, 2016), petitioner filed a
motion seeking attorney’s fees and costs, which the special master initially denied. Cottingham v. Sec’y of Health &
Human Servs., No. 15-1291V, 2017 WL 1476242 (Fed. Cl. Spec. Mstr. Mar. 30, 2017). The Cottingham petitioner
sought reconsideration of the fees and costs denial, which the Special Master also denied. Cottingham v. Sec’y of
Health & Human Servs., No. 15-1291V, 2017 WL 22009904 (Fed. Cl. Spec. Mstr. Apr. 20, 2017). The petitioner then
filed a motion for review, which the Court of Federal Claims granted, vacating the special master’s decision denying
attorney’s fees and costs and remanding the case to the special master. Cottingham, 134 Fed. Cl. 567. On remand, the
special master awarded fees. Cottingham v. Sec’y of Health & Human Servs., No. 15-1291V, 2017 WL 6816709 (Fed.
Cl. Spec. Mstr. Dec. 12, 2017). Respondent sought review of the decision awarding fees, asking the Court to reconsider
the case in light of the Federal Circuit’s intervening decision in Simmons v. Sec’y of Health & Human Servs., 875 F.3d
632 (Fed. Cir. 2017). The Court remanded the decision to the special master on these grounds. Cottingham v. Sec’y of
Sec’y of Health & Human Servs., 139 Fed. Cl. 88 (2018). The special master then concluded that the claim lacked
reasonable basis and declined to award fees. Cottingham v. Sec’y of Health & Human Servs., No. 15-1291V, 2018
WL 3432638 (Fed. Cl. Spec. Mstr. June 20, 2018). The petitioner again sought review before the Court of Federal
Claims, but this time the it affirmed the special master’s decision denying fees and costs. Cottingham, 141 Fed. Cl. 85
(2018). The petitioner’s appeal of the most recent decision from the Court of Federal Claims is currently on appeal
before the Federal Circuit.

                                                          2
       Standards for Reconsideration

       Vaccine Rule 10(e) provides that either party may seek reconsideration of a special
 master’s decision within twenty-one days after the decision’s issuance. Special masters have the
 discretion to grant a motion for reconsideration if to do so would be in the “interest of justice.”
 Vaccine Rule 10(e)(3).

       As noted by another special master, “there is a dearth of law interpreting Vaccine Rule
 10(e)(3),” save for the conclusion that (as the rule itself makes clear) it is within the special
 master’s discretion to decide what the “interest of justice” is in a given case. R.K. v. Sec’y of
 Health & Human Servs., No. 03-632V, 2010 WL 5572074, at *3 (Fed. Cl. Spec. Mstr. Jan. 10,
 2011) (granting reconsideration of decision dismissing case for failure to prosecute). Many
 decisions assume that the standard for reconsideration is congruent with the “manifest injustice”
 standard utilized under Rule 59(a) of the Rules of the Court of Federal Claims, which has been
 defined as “clearly apparent or obvious” unfairness. Amnex, Inc. v. United States, 52 Fed. Cl.
 555, 557 (2002); see also R.K., 2010 WL 5572074, at *3–5 (citations omitted).

       I have previously found reconsideration merited when the movant provides new, relevant
 evidence that would have borne on my initial decision had it been previously available. See, e.g.,
 Rodriguez-Luna v. Sec’y of Health & Human Servs., No. 15-496V, 2018 WL 774256, at *2 (Fed.
 Cl. Spec. Mstr. Jan. 3, 2018) (granting motion for reconsideration of final attorney’s fees and
 costs decision when petitioner submitted previously-unfiled billing records). By contrast, I have
 denied reconsideration requests where the movant simply disagrees with my initial decision and
 has offered no truly “new” evidence. See, e.g., D’Tiole v. Sec’y of Health & Human Servs., No.
 15-085V, 2016 WL 8136296 (Fed. Cl. Spec. Mstr. Dec. 21, 2016), mot. for review denied, 132
 Fed. Cl. 421 (2017), aff’d, 726 F. App’x 809 (Fed. Cir. 2018); Kerrigan v. Sec’y of Health &
 Human Servs., No. 16-270V, 2016 WL 7575240 (Fed. Cl. Spec. Mstr. Nov. 22, 2016).

       Respondent Has Not Established Grounds for Reconsideration

         Respondent’s reconsideration request is not well-founded for several reasons. First,
Respondent has not offered any truly “new” evidence, or law, that could not have been introduced
at the time I decided to award Petitioner attorney’s fees. The Cottingham decision that Respondent
asks I compare to the present case was issued in September 2018—months before my Fees
Decision—and was not even cited in Respondent’s opposition to Petitioner’s motion for attorney’s
fees and costs. It is also well understood in the Program that special masters are only bound
precedentially by the determinations of the Court of Federal Claims in the same case, not different
cases, thus permitting me to reach a conclusion on the question of attorney’s fees in this case
contrary to another.




                                                 3
        Second, I do not find that my discussion of an earlier Cottingham decision was superseded
by the ultimate outcome on fees in that case—in particular because I did not cite Cottingham for
its outcome, but rather for its discussion. It set forth a list of factors that help illuminate whether
reasonable basis existed. Fees Decision at 4 (citing Cottingham, 134 Fed. Cl. at 574). Those factors
still have applicability to the reasonable basis test, despite the fact that, at bottom, it requires
objective proof to be satisfied. And in finding that Petitioner’s claim possessed some reasonable
basis, I rooted the decision in objective considerations—Petitioner indisputably received the flu
vaccine, medical records support her claimed injury, and she first reported her injury to treaters
within a matter of weeks after receiving the vaccine. Fees Decision at 6.

        Respondent’s remaining challenges to my Fees Decision amount to disagreement with the
outcome. Thus, he takes issue with my statement that “claims [alleging] that the flu vaccine caused
a peripheral neurologic injury are common in the Program (and therefore is it foreseeable that
experts exist who may legitimately agree a particular claim is scientifically supportable),” arguing
that “[t]his contention does not confer a reasonable basis on this claim.” Mot. for Recons. at 2
(citing Fees Decision at 6). However, the Federal Circuit recently reaffirmed that a claim can
commence with reasonable basis, but lose it during its pendency. R.K. v. Sec’y of Health & Human
Servs., No. 2018-1738, 2019 WL 1222835, at *2 (citing Perreira v. Sec’y of Health & Human
Servs., 33 F.3d 1375, 1376–77 (Fed. Cir. 1994)). In Perreira, a claim lost reasonable basis only
after the petitioners obtained an expert report which “was found to be unsupported by either
medical literature or studies, and therefore, of no value in establishing causation in-fact.” Perreira,
33 F.3d at 1376–77. It follows logically that a claim (the initial plausibility of which may be a
function of its similarity to other previously-litigated successful claims)4 may maintain reasonable
basis up until the lack of objective basis for the claim is exposed (here, by an expert opinion).

      Ultimately, Respondent has offered no new evidence or other compelling argument
demonstrating that the interest of justice would be best served by reconsideration of my March 12,
2019 Fees Decision. I hereby DENY the motion for reconsideration.



         IT IS SO ORDERED.

                                                                 s/ Brian H. Corcoran
                                                                 Brian H. Corcoran
                                                                 Special Master

4
  The opposite is also true, and frequently inures to Respondent’s benefit. Thus, when petitioners attempt to assert a
causation theory that has been repeatedly rejected time and again in the Vaccine Program—such as the contention that
vaccines cause autism—it is my practice, and that of the other special masters, to inform the claimant (based on
previously-litigated claims) that the petition lacks reasonable basis on its face. We do so despite oft-voiced objections
that the petitioner should be permitted the chance to obtain expert support for the claim. See, e.g., Motuzyuk v. Sec’y
of Health & Human Servs., No. 18-586V, 2019 WL 1451279, at *5 (Fed. Cl. Spec. Mstr. Feb. 14, 2019) (dismissing
autism claim before giving petitioner the opportunity to obtain an expert report).

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