    iIn the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                            No. 16-1293V
                                       Filed: January 25, 2018
                                         Not for Publication

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ROBERT KINZIE,                                 *
                                               *
                                               *
              Petitioner,                      *     Attorneys’ fees and costs decision;
v.                                             *     lack of reasonable basis
                                               *
SECRETARY OF HEALTH                            *
AND HUMAN SERVICES,                            *
                                               *
              Respondent.                      *
                                               *
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F. John Caldwell, Jr., Sarasota, FL, for petitioner.
Darryl R. Wishard, Washington, DC, for respondent.

MILLMAN, Special Master

        DECISION DENYING AN AWARD OF ATTORNEYS’ FEES AND COSTS1

        On October 7, 2016, petitioner filed a petition under the National Childhood Vaccine
Injury Act, 42 U.S.C. §§ 300aa-10–34 (2012), alleging that influenza (“flu”) vaccine administered
either on November 3, 2013 with a “possible onset after the 2013 vaccine” or November 1, 2014
caused him phrenic nerve paralysis on the right and/or Parsonage-Turner syndrome, and, in the
alternative for the latter vaccination, significant aggravation. Pet. at ¶¶ 1-4 and 1 n.1. On May
23, 2017, the undersigned issued a decision dismissing the case for failure to prove a prima facie
case of causation in fact. On December 20, 2017, petitioner filed a motion for attorneys’ fees
and costs. For the reasons set forth below, the undersigned DENIES petitioner’s motion for
attorneys’ fees and costs.

                                      PROCEDURAL HISTORY

       Petitioner filed his petition on October 7, 2016. The case was assigned to the
undersigned on October 11, 2016.

1
  Because this unpublished decision contains a reasoned explanation for the special master’s action in this
case, the special master intends to post this unpublished decision on the United States Court of Federal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.
        In her Order to Show Cause of October 24, 2016, the undersigned raised her concern
about the basis for any doctor to opine there was a vaccine injury five months after the November
3, 2013 flu vaccine (“2013 flu vaccine”).

        On November 21, 2016, during the first and only telephonic status conference in this case,
the undersigned discussed her Order to Show Cause with the parties. Petitioner’s counsel stated
this was a tough case and wanted to consult with a neurologist. He stated he would not proceed
with the case if a neurologist refused to support petitioner’s allegations. The undersigned gave
petitioner until January 23, 2017 to file a status report stating how he intended to proceed, i.e.,
with a motion to dismiss or by filing an expert report. Thereafter, petitioner was given two
additional extensions of time.2

         On May 22, 2017, petitioner filed a motion for an amendment of the schedule stating
petitioner’s counsel would not be filing an expert report in this case. Petitioner wanted 30 days
to file either a dispositive motion or other appropriate pleading. On May 23, 2017, the
undersigned denied petitioner’s motion and dismissed the case for lack of proof.

        On December 20, 2017, petitioner filed a motion for attorneys’ fees and costs. Petitioner
requests $20,390.60 in attorneys’ fees and $6,734.03 in attorneys’ costs, for a total request of
$27,124.63. In accordance with General Order #9, petitioner said he did not advance any funds
in the prosecution of his claim.

        On December 27, 2017, respondent filed a response objecting to an award of attorneys’
fees and costs because petitioner failed to establish a reasonable basis for his claim. Resp. at 1.
Respondent argues that petitioner’s medical records show the onset of his right shoulder injury
was over 5 months after his 2013 flu vaccine. Id. at 2. While petitioner complained his
shoulder pain radiated to his right neck, none of his medical records shows any reaction to any of
the three flu vaccinations administered to petitioner. Id. Moreover, petitioner initially contacted
counsel over 5 months before the petition was filed and all medical records had been obtained and
reviewed by counsel and paralegals prior to the filing of the petition. Id. at 3. Respondent
argues that a looming statute of limitations deadline has no bearing on whether there is a
reasonable basis for the claim raised in the petition. Id. at 5 (citing Simmons v. HHS, 875 F.3d
632, 636 (Fed. Cir. 2017)). Finally, respondent states petitioner’s counsel had ample time to
investigate reasonable basis prior to filing the petition and failed to perform fundamental due
diligence. Id. at 6-8.

       On January 3, 2018, petitioner replied to respondent’s opposition to his motion for
attorneys’ fees and costs. Petitioner argues that his medical records demonstrated his claim was

2
  On January 23, 2017, petitioner’s counsel filed a status report stating that he was in the process of having
a neurologist review the case file and he expected to file an expert report in 60 days. On the same day, the
undersigned granted petitioner’s informal motion for an extension of time until March 24, 2017 to file an
expert report. On March 24, 2017, petitioner’s counsel filed a motion for an enlargement of time stating
that the original neurologist was unable to review the records and counsel had retained another neurologist
but needed 60 more days to file an expert report. On the same day, the undersigned granted petitioner's
motion for an extension of time until May 22, 2017 to file an expert report.
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feasible and pre- and post-filing medical research indicated a reasonable connection between the
flu vaccine and his conditions. Reply at 8. Furthermore, petitioner argues that the petitioner in
Simmons had filed no medical records in support of his claim, which is different from the
situation in this case. Id. at 10. The panel in Simmons decided that this sole circumstance was
insufficient to establish a reasonable basis by itself. Id. at 11. However, the panel did not
determine that every case filed near the running of the statute of limitations was therefore bereft
of a reasonable basis. Id.

        This matter is now ripe for adjudication.

                                          DISCUSSION

   I.      Entitlement to Fees Under the Vaccine Act

           a. Legal Standard

       Under the Vaccine Act, a special master or a judge on the U.S. Court of Federal Claims
may award fees and costs for an unsuccessful petition if “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); Sebelius v. Cloer, 133 S. Ct. 1886, 1893 (2013).

       “Good faith” is a subjective standard. Hamrick v. Sec’y of HHS, No. 99-683V, 2007 WL
4793152, at *3 (Fed. Cl. Spec. Mstr. Nov. 19, 2007). A petitioner acts in “good faith” if he or
she holds an honest belief that a vaccine injury occurred. Turner v. Sec’y of HHS, No. 99-544V,
2007 WL 4410030, at *5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007). Petitioners are “entitled to a
presumption of good faith.” Grice v. Sec’y of HHS, 36 Fed. Cl. 114, 121 (Fed. Cl. 1996).

        “Reasonable basis” is not defined in the Vaccine Act or Rules. It has been determined to
be an “objective consideration determined by the totality of the circumstances.” McKellar v.
Sec’y of HHS, 101 Fed. Cl. 297, 303 (Fed. Cl. 2011). Traditionally, special masters have been
“quite generous” in finding reasonable basis. Turpin v. Sec’y of HHS, No. 99-564V, 2005 WL
1026714, at *2 (Fed. Cl. Spec. Mstr. Feb. 10, 2005); see also Austin v. Sec’y of HHS, No. 10-
362V, 2013 WL 659574, at *8 (Fed. Cl. Spec. Mstr. Jan. 31, 2013) (“The policy behind the
Vaccine Act’s extraordinarily generous provisions authorizing attorney fees and costs in
unsuccessful cases—ensuring that litigants have ready access to competent representation—
militates in favor of a lenient approach to reasonable basis.”). However, as former-Chief Judge
Campbell-Smith noted in her affirmance of Special Master Moran’s decision not to award
attorneys’ fees in Chuisano, “Fee denials are expected to occur. A different construction of the
statute would swallow the special master’s discretion.” Chuisano v. United States, 116 Fed. Cl.
276, 286 (Fed. Cl. 2014). See also Dews v. Sec'y of HHS, No. 13-569V, 2015 WL 1779148
(Fed. Cl. Spec. Mstr. Mar. 30, 2015) (in which the undersigned found petitioner was not entitled
to attorneys’ fees and costs because she did not have a reasonable basis to bring the petition).

       In determining reasonable basis, the court looks “not at the likelihood of success [of a
claim] but more to the feasibility of the claim.” Turner, 2007 WL 4410030, at *6 (citing Di
Roma v. Sec’y of HHS, No. 90-3277V, 1993 WL 496981, at *1 (Fed. Cl. Spec. Mstr. Nov. 18,
1993)). Factors to be considered include factual basis, medical support, jurisdictional issues, and
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the circumstances under which a petition is filed. Turner, 2007 WL 4410030, at *6–*9.
However, the Federal Circuit has recently clarified in Simmons that “a looming statute of
limitations deadline . . . has no bearing on whether there is reasonable factual basis ‘for the claim’
raised in the petition. That is an objective inquiry unrelated to counsel conduct.” Simmons v.
Sec’y of HHS, 875 F. 3d 632, 636 (Fed. Cir. 2017).

           b. Good faith and reasonable basis

        Petitioner is entitled to a presumption of good faith, and respondent does not contest that
the petition was filed in good faith. Grice, 36 Fed. Cl. at 121. There is no evidence that this
petition was brought in bad faith. Therefore, the undersigned finds that the good faith
requirement is satisfied. However, for the reasons outlined below, the undersigned finds
petitioner did not have a reasonable basis to bring his claim.

        Petitioner had no reasonable expectation that he would prove that flu vaccine caused him
phrenic nerve paralysis on the right and/or Parsonage-Turner syndrome with an onset interval of
five months. No medical record substantiates petitioner having a vaccine reaction. The medical
records show that the onset of petitioner’s right shoulder injury was April 21, 2014, five months
after petitioner’s November 3, 2013 flu vaccination. Petitioner did not visit a doctor in April
2014 to complain of right shoulder and neck pain until two days after he had done some yard
work on April 19, 2014. At no point during the course of these proceedings did petitioner
provide a theory causally connecting his vaccinations to any alleged injury. Petitioner has not
filed a medical expert report in support of his non-Table allegations.

         Counsel has a duty to investigate a claim before filing it. In Rehn v. Secretary of Health
and Human Services, Judge Lettow explained: “if an attorney does not actively investigate a case
before filing, the claim may not have a reasonable basis and so may not be worthy of attorneys'
fees and costs.” 126 Fed. Cl. 86, 93 (Fed. Cl. 2016). Petitioner did not contact his counsel on
the eve of the running of the statute of limitations. The billing records reflect that petitioner
initially made contact with counsel on May 5, 2016, or over five months before he filed his
petition on October 7, 2016. He received flu vaccine on November 3, 2013. Even if petitioner’s
alleged vaccine injury began the day he received the vaccine, he had until November 3, 2016
before the statute of limitations would run on his claim. Thus, petitioner’s counsel had ample
time to perform due diligence.

         Based on petitioner’s counsel’s invoice, all medical records (filed as Exhibits 1-8) had
been obtained and reviewed by at least two attorneys and several professional staff members prior
to the filing of the petition. Counsel and paralegals billed a combined 21 hours for reviewing
medical records before filing the petition. Ex 9 at 1-5 (entries dated 5/5/2016; 5/6/2016;
7/6/2016; 7/7/2016; 7/13/2016; 8/2/2016; 8/31/2016; 9/2/2016; 9/26/2016; 9/27/2016; 10/4/2016;
10/5/2016; 10/6/2016; and 10/7/2016). What counsel should have realized through his review,
however, was that petitioner’s medical records do not support a vaccine-related injury as alleged
and he did not have a reasonable basis to bring his claim.

        Simmons holds that a looming statute of limitations deadline has no bearing on whether
there is an objective reasonable basis for the claim set forth in the petition. Simmons, 875 F. 3d
632, 636. There will always be a looming statute of limitations if counsel waits long enough.
The reasonable basis analysis must focus on whether there is evidentiary support for the claim set
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forth in the petition. Id. While petitioner’s medical records show that the onset of petitioner’s
right shoulder injury was five months after petitioner’s 2013 flu vaccine, petitioner alleges in his
petition “For several days after the first flu vaccine, the petitioner noted pain in his injected arm
and nearby neck area. . . .” Petitioner further contends in footnote one “Petitioner’s injury had a
possible onset after the 2013 vaccine. Petitioner is therefore filing this matter in an abundance of
causation with the November 3, 2016, statute of limitations in mind.” The undersigned finds “a
possible onset” an expression indicating that speculation rather than an objective reasonable basis
determined petitioner’s decision to file his petition. Speculation is inherently unreasonable.

                                            CONCLUSION

       The undersigned finds that an award of attorneys’ fees and costs to petitioner is
unreasonable. Therefore, the undersigned DENIES petitioner’s motion for attorneys’ fees and
costs.

        In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the
court is directed to enter judgment herewith.3


IT IS SO ORDERED.


Dated: January 25, 2018                                           s/ Laura D. Millman
                                                                   Laura D. Millman
                                                                     Special Master




3
  Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or
jointly, filing a notice renouncing the right to seek review.
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