           In the United States Court of Federal Claims
                                         No. 17-1333V
                                (Filed Under Seal: July 9, 2018)
                                     Refiled: July 30, 2018
                                       Not for Publication

*************************************
                                    *
DAVE W. HIGHLAND,                   *
                                    *
                  Petitioner,       *
                                    *
            v.                      *
                                    *
SECRETARY OF HEALTH AND             *
HUMAN SERVICES,                     *
                                    *
                  Respondent.       *
                                    *
*************************************


                                   ORDER AND OPINION 1

DAMICH, Senior Judge:

        Before the Court is counsel for petitioner, Bradley S. Freedberg’s two-page Motion for
Review (“MFR”) of the Special Master’s Decision denying petitioner’s Motion for Attorneys’
Fees and Costs in the underlying action. 2 Mr. Freedberg’s “barebones” MFR does not include a
standard of review, substantive argument, or legal support. However, he asserts that the Special
Master’s determination that petitioner’s claim lacked a reasonable basis was improper and
unjustified because (1) the Special Master “ignored” that “the record included petitioner’s oral
statement that he, based on his knowledge and memory, stated that the medical records were
incorrect concerning the site of the injection,” and (2) the Special Master failed to take judicial
notice of petitioner’s assertion that many experts suspect that the causes of Parsonage Turner
Syndrome (“PTS”) include systemic inflammatory response to the flu virus, and thus the location
of the injection is immaterial. MFR at 2. Respondent filed its response in opposition.


       1
         Pursuant to Vaccine Rule 18(b), each party shall have 14 days within which to notify
the court of any information that should be redacted from this decision for reasons of privilege or
confidentiality. If the court does not receive any such notification, the entire opinion will be
made public. No redactions were received.
       2
         Petitioner originally filed his claim under the National Childhood Vaccine Injury Act of
1986, 42 U.S.C. § 300aa-1 to -34, as amended (“Vaccine Act”).
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       After careful review, the Court holds that the Special Master did not abuse her discretion
in denying attorney fees. For the reasons stated below, the Court DENIES petitioner’s Motion
for Review and AFFIRMS the Special Master’s Denial of Attorneys’ Fees.

   I.       Procedural History

        On September 26, 2017, petitioner filed a claim alleging that a vaccine administered to
his right deltoid caused him to suffer from PTS in that deltoid. ECF No. 1. Shortly, thereafter,
on December 4, 2017, the Special Master issued an Order to Show Cause (“Order”) why the case
should not be dismissed. ECF No. 8. In her Order, the Special Master noted that the medical
records showed that petitioner’s symptoms of PTS began before the vaccination and that the
vaccine was administered to his left deltoid, not his right deltoid as he alleged in his petition, to
which she requested a response. Order at 2-3. On December 5, 2017, Mr. Freedberg forwarded
a voicemail to the Special Master and respondent’s counsel via telephone. In this voicemail,
petitioner stated that he remembered the injection site to be his right deltoid.

        In response to the Special Master’s Order, petitioner filed a Motion for a Ruling on the
Record (“Motion”) on January 19, 2018. This Motion included the statement that “[p]etitioner
was unable to have his PCP modify his records to reflect the injection site in his right deltoid as
he recalls, versus the written record of [Left Deltoid].” Motion at 1. Subsequently, the Special
Master issued a decision dismissing the case reasoning: (1) [t]he Vaccine Act prohibits her from
“ruling for petitioner based solely on his allegations unsubstantiated by medical records or
medical opinion[,]” (2) petitioner’s neurologist had a “high suspicion” that shingles caused his
PTS symptom; (3) his symptoms began four days before his flu vaccination, and (4) the flu
vaccine was administered to his left shoulder, not his right shoulder. See Highland v. Sec’y of
HHS, No. 17-1333V, slip op. (Fed. Cl. Spec. Mstr. Jan. 19, 2018). Therefore, the Special Master
held that “[t]he medical records do not support petitioner’s allegations,” and she concluded,
“[t]here is no basis in the medical record to find that flu vaccine caused petitioner's PTS.” Id. at
*5. Moreover, he did not file a medical expert opinion in support of his allegations. Id.

        After dismissal, Mr. Freedberg filed a Motion for $15,975.00 in attorneys’ fees and
$500.00 in costs. ECF No. 15. Respondent opposed arguing that petitioner’s claim had lacked a
reasonable basis at the time he filed the original claim. In Mr. Freedberg’s reply brief (“Reply”),
Mr. Freedberg argued that his lack of experience in Vaccine Act claims should be taken into
account. ECF No. 17 at 2. Mr. Freedberg also stated that petitioner had symptoms “consistent
with recognized vaccine injury,” which made it a “case worth bringing,” and that, “sometimes
things actually break in your favor as a proceeding unfolds.” Id. The Special Master denied the
Motion for Attorneys’ Fees, holding that:

        Counsel’s lack of experience in the Program has no bearing on whether there is an
        objective reasonable basis for petitioner to file his claim. Petitioner had no
        reasonable expectation that he would prove that flu vaccine administered in his
        left deltoid caused his alleged PTS in his right arm when his right arm pain began

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         before his flu vaccination and his treating neurologist diagnosed him with
         shingles brachial neuropathy.

Denial of Att’y’s Fees at 4. The Special Master further held that, “[c]ounsel has a duty to
investigate a claim before filing it,” and that Mr. Freedberg should have realized that the medical
records did “not support his allegations, and he did not have a reasonable basis to bring his
claim.” Id.

   II.      Standard of Review

        The Court of Federal Claims may set aside a decision of a Special Master “only if the
Special Master's fact findings are arbitrary and capricious, its legal conclusions are not in
accordance with law, or its discretionary rulings are an abuse of discretion.” Hazlehurst v. Sec'y
of HHS, 604 F.3d 1343, 1348-49 (Fed. Cir. 2010); 42 U.S.C. § 300aa-12(e)(2)(B). “If the
Special Master has considered the relevant evidence of the record, drawn plausible inferences
and articulated a rational basis for the decision, reversible error will be extremely difficult to
demonstrate.” Hines v. Sec’y of HHS, 940 F.2d 1518, 1528 (Fed. Cir. 1991).

        “Under the Vaccine Act, an unsuccessful petitioner may be awarded attorneys' fees ‘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.’” Simmons v. Sec’y of HHS,
875 F.3d 632, 635 (Fed. Cir. 2017) (quoting 42 U.S.C. § 300aa-15(e)(1)) (emphasis in the
original). These requirements are “two distinct facets.” Id. (quoting Chuisano v. United States,
116 Fed. Cl. 276, 289 (2014)). While “good faith” is a subjective inquiry, the presence of a
“reasonable basis” is an objective one. Id.

         “There must be a reasonable basis for the claim for which the petition was brought
before the special master may exercise her discretion in awarding attorneys' fees.” Simmons, 875
F.3d at 636 (emphasis in original). McKellar v. Sec’y of HHS, 101 Fed. Cl. 297, 303 (2011) (“To
establish a reasonable basis, the petitioner must rely on more than speculation.”); see also Collins
v. Sec’y of HHS, 1992 U.S. Cl. Ct. LEXIS 318 at *4 (Cl. Ct. 1992) (“[A] finding of entitlement
cannot be based on the claims of petitioners unsubstantiated by medical records or medical
opinion. Without such support, it would be unreasonable to file a petition.”) (citations omitted).
“[C]ounsel's duty to zealously represent their client does not relieve them of their duty to the
court to avoid frivolous litigation.” Perreira v. Sec’y of HHS, 33 F.3d 1375, 1377 (Fed.Cir. 1994)
(holding petitioners had no reasonable basis once they reviewed their evidence which was
wholly unsupported by medical literature.).

        Deciding whether a claim was brought in good faith and had a reasonable basis “is within
the discretion of the Special Master and is generally reviewed for abuse of discretion.” Simmons
v. Sec’y of HHS, 128 Fed. Cl. 579, 582 (2016) (aff’d 875 F.3d 632) (quoting Scanlon v. Sec’y of
HHS, 116 Fed. Cl. 629, 633 (2014) (citing Davis v. Sec’y of HHS, 105 Fed. Cl. 627, 633 (2012)).




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   III.      Discussion

        Mr. Freedberg argues that the Special Master’s denial of attorneys’ fees was improper for
two reasons. First, he argues that the Special Master ignored petitioner’s recorded statement
asserting that the vaccine was injected into his right deltoid. Second, Mr. Freedberg argues that
the Special Master failed to take judicial notice of petitioner’s assertion that many experts
suspect that the flu virus causes PTS. The Court will take both arguments in turn.

        First, the Court addresses Mr. Freedberg’s argument regarding petitioner’s recorded
statement. This is the first time in the record that petitioner specifically refers to the recorded
statement forwarded by voicemail on December 5, 2017. Respondent notes that the recording is
not part of the record of this case. ECF No. 22 at 9. Regardless, petitioner’s memory of the
vaccine’s injection site was amply documented in the written pleadings. See Pet’r’s Compl. at 1;
Mot. Ruling on Record at 1; Reply to Resp. to Mot. Att’y Fees at 2. Contrary to Mr. Freedberg’s
argument, the Special Master clearly took petitioner’s memory of the injection site into account
before deciding that petitioner’s claim lacked a reasonable basis, as she even referred to
petitioner’s recollection in her Denial of Attorneys’ Fees. Denial Att’y Fees at 2 (“[Petitioner]
states that he was unable to have his personal care physician modify his records to reflect that he
received flu vaccine in his right deltoid as petitioner remembers rather than the medical record
notation that the injection site was his left deltoid.”). Therefore, the Special Master did not
ignore this argument as Mr. Freedberg contends. Rather, she was aware of it, but acted in
accordance with the law and within her discretion by not finding a reasonable basis for the claim
based “solely on the claims of petitioner.” See Collins, 1992 U.S. Cl. Ct. LEXIS 318 at *4.

        Second, Mr. Freedberg argues that the Special Master failed to take judicial notice that
“Parsonage Turner Syndrome causes are suspected by many experts . . . to include systemic
inflammatory response to the flu virus – thus for these suspected causes the location of the
injection is immaterial.” MFR at 2. The Court cannot find any record that petitioner sought
judicial notice of this proposition. It is clear, however, that petitioner did not file any expert
medical opinion or medical literature which would have been required for the Special Master to
take judicial notice. Therefore, she did not abuse her discretion by not taking judicial notice of
this proposition.

       The Special Master denied the Motion for Attorneys’ Fees after considering all the
evidence provided by petitioner and, exercising her wide discretion, she found that the claim did
not have a reasonable basis. Specifically, she said:

                 Petitioner had no reasonable expectation that he would prove that flu
          vaccine administered in his left deltoid caused his alleged PTS in his right arm
          when his right arm pain began before his flu vaccination and his treating
          neurologist diagnosed him with shingles brachial neuropathy.

Denial of Att’y Fees at 4-5.


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        It is clear from the Special Master’s decision that she followed the law and examined the
record for objective evidence supporting the required elements of petitioner’s claim. See 42
U.S.C. § 300aa-11(c)(1). She properly found that petitioner lacked a reasonable expectation that
he could prove that the flu vaccine in his left deltoid caused the injury he alleged in his right arm,
when his symptoms began before his flu vaccine and his neurologist diagnosed shingles as the
cause of his PTS. See 42 U.S.C. § 300aa-11(c)(1)(C); see also Denial of Att’y Fees at 4-5. In
keeping with the Vaccine Act and the Federal Circuit’s decision in Simmons, the Special Master
properly applied the “reasonable basis” standard by focusing on the objective evidence. As such,
the Special Master’s Denial of Attorneys’ Fees was not arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.

   IV.     Conclusion

       The Court DENIES the petitioner’s motion for review and AFFIRMS the Special
Master’s Denial of Attorneys’ Fees. The Clerk is directed to enter judgment accordingly.

IT IS SO ORDERED.

                                                              s/ Edward J. Damich
                                                              EDWARD J. DAMICH
                                                              Senior Judge




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