                 In the United States Court of Federal Claims
                                    OFFICE OF SPECIAL MASTERS
                                         Filed: August 31, 2017

* * * * * * *                   *   *   *    *   *    *
ALEXIS FARRELL,                                       *                 PUBLISHED
                                                      *
                  Petitioner,                         *                 No. 16-1374V
                                                      *
v.                                                    *                 Special Master Gowen
                                                      *
SECRETARY OF HEALTH                                   *                 Denial of Attorneys’ Fees and Costs;
AND HUMAN SERVICES,                                   *                 Approaching Statute of Limitations
                                                      *                 Deadline; Initial Inquiry; Failure to
                  Respondent.                         *                 Establish Reasonable Basis.
*    * *     *    * * * *           *   *    *   *    *

Diana L. Stadelnikas, Maglio Christopher and Toale, PA, Sarasota, FL, for petitioner.
Voris E. Johnson, United States Department of Justice, Washington, DC for respondent.

                        DECISION ON ATTORNEYS’ FEES AND COSTS1

       On October 20, 2016, Alexis Farrell (“petitioner”) filed a petition pursuant to the
National Vaccine Injury Compensation Program.2 Petitioner alleged that as a result of an
influenza (“flu”) vaccine received on November 6, 2013, she subsequently suffered injuries
including Postural Orthostatic Tachycardia Syndrome (“POTS”). Petitioner filed medical
records and a Statement of Completion and I held an initial status conference. On petitioner’s
motion, a decision dismissing the petitioner for insufficient proof was issued on May 16, 2017.
Decision

        On August 8, 2017, petitioner filed an application for attorneys’ fees and costs.
Petitioner’s Motion. On August 11, 2017, respondent filed a response, in which he suggests that
there was not a reasonable basis for the petition and attorneys’ fees and costs should not be
awarded. Respondent’s Response. On August 18, 2017, petitioner filed a reply in support of her

1
  Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this decision contains a
reasoned explanation for the action in this case, I intend to post it on the website of the United States Court of
Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. Before the decision
is posted on the court’s website, each party has 14 days to file a motion requesting 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). “An objecting party must provide the court with a proposed
redacted version of the decision.” Id. If neither party files a motion for redaction within 14 days, the decision
will be posted on the court’s website without any changes. Id.
2
 The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-10 et
seq. (hereinafter “Vaccine Act” or “the Act”). Hereafter, individual section references will be to 42 U.S.C. § 300aa
of the Act.


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motion. This matter is now ripe for adjudication. For the reasons discussed below, I find that
petitioner has not demonstrated a reasonable basis for the petition and that she is not entitled to
an award of attorneys’ fees and costs.

   I.      Procedural History

        On October 20, 2016, petitioner filed a petition in the Vaccine Program alleging that she
received an influenza (“flu”) vaccination on November 6, 2013. Petition (ECF No. 1). It further
alleged: “Approximately three to four week[s] later, petitioner began experiencing recurrent
syncope, lightheadedness and palpitations which were collectively diagnosed as Postural
Orthostatic Tachycardia Syndrome (POTS).” Id. at 1. Petitioner alleged that her condition was
caused-in-fact by the flu vaccine and she was therefore entitled to compensation. She also
provided: “This petition is being filed with the NVICP’s statute of limitations in mind;
undersigned counsel is in the process of obtaining petitioner’s relevant medical records.” Id. at
1, n.1. The petition was not accompanied by any medical records.

        On November 30, 2016, petitioner filed records from the vaccine administration, her
pediatrician, behavioral health providers, and cardiology specialists on November 30, 2016.
Exhibits 1-5 (ECF No. 6). On December 30, 2016, she filed hospital records, Exhibit 7 (ECF
No. 9) and a Statement of Completion (ECF No. 10).

        I held an initial status conference on March 22, 2017. Order (ECF No. 11). During the
status conference, respondent’s counsel indicated that respondent had not yet reviewed the
records to determine his position in the case. Based on my preliminary review of the medical
records filed to date, I noted two issues that needed to be addressed with additional records or
explanation:

        First, there appear to be no medical records during the initial time period after the
        November 6, 2013, vaccination until June 4, 2014. Second, a medical record
        from the date of vaccination states that petitioner had an episode of syncope,
        palpitations, and fainting the month prior. [Exhibit 2 at 37.] Further, a record
        from Dr. Iman Kahwaji on June 4, 2014, notes that petitioner “reports that for the
        past 2 years has felt dizziness upon standing or during prolonged standing.” Pet.
        Exhibit 6 at 2 (emphasis added). These symptoms appear to be consistent with
        POTS syndrome.

Id. I ordered petitioner to file additional medical records from the post-vaccination period, if
any, and to file additional records or an affidavit addressing her pre-vaccination symptoms
within 60 days, by May 22, 2017. Id.

        On May 16, 2017, petitioner filed a motion for a decision dismissing her petition. (ECF
No. 12). She confirmed that all medical records pertinent to the Petition had been filed; no
further evidence was available for filing in this matter; and an investigation of the facts and
science supporting her case has demonstrated to petitioner that she will be unable to prove that
she is entitled to compensation in the Vaccine Program. Id. I issued a decision dismissing the
petition on the same day. (ECF No. 13).



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        On August 8, 2017, petitioner filed a motion for $7,541.20 in attorneys’ fees and $558.56
in attorneys’ costs, for a total of $8,100.06. Petitioner’s Motion (ECF No. 16) at 1-2.3 The
motion includes contemporaneous billing records and petitioner’s counsel’s affidavit, which both
state that the claim was filed in consideration of the approaching statute of limitations.
Petitioner’s Motion, Tab 2 – Billing Entries at 1, 3; Petition’s Motion, Tab 3 – Affidavit at 3-4.

        On August 11, 2017, respondent filed a response, in which he “leaves it to the Special
Master’s discretion to determine whether the statutory requirements for an award of attorneys’
fees and costs are met in this case. Section 15(e)(1)(A)-(B).” Respondent’s Response (ECF No.
17). However, respondent contended, based on petitioner’s inability to produce any additional
evidence to resolve the issues I raised at the initial status conference, that the petition lacked a
reasonable basis.” Id. Further: “To the extent petitioner argues that the Petition was filed to
prevent the running of the statute of limitations, it is respondent’s position that filing an
unsupported petition solely to preserve the statute of limitations does not create a reasonable
basis for the claim set forth in the petition, and a reasonable basis is established only if the
petitioner can later produce evidence that supports the claim.” Id.

        On August 18, 2017, petitioner filed a reply in support of her motion for attorneys’ fees
and costs. Petitioner’s Reply (ECF No. 18). Petitioner quoted Iannuzzi v. Sec’y of Health &
Human Servs., No. 2-780V, 2007 WL 1032379, *34-35 (Fed. Cl. Spec. Mstr. Mar. 20, 2007), a
decision awarding attorneys’ fees as part of the omnibus autism proceeding, for the proposition
that “the ultimate purpose of Vaccine Act fees and costs awards is not to benefit the attorneys
involved, but to ensure that Vaccine Act petitioners will have adequate access to competent
counsel” (emphasis in the original). Petitioner’s Motion at 2. Petitioner then stated that she “had
good faith and a reasonable basis to pursue her claim to its conclusion.” Id. at 3. Petitioner did
not request any further fees and costs associated with her reply. The matter is now ripe for
adjudication.

    II.      Good Faith and Reasonable Basis

             a. Legal Standard

       Section 15(e) of the Vaccine Act governs attorneys’ fees. Section 300aa-15(e). When
awarding compensation on a petition, the special master “shall also award” reasonable attorney’s
fees and costs. Section 15(e)(1)(A)-(B). Even when compensation is not awarded, the special
master “may award” reasonable attorneys’ fees and 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.” Section 15(e)(1).

        “Good faith” is a subjective standard and petitioners are entitled to a presumption of good
faith. Hamrick v. Sec’y of Health & Human Servs., No. 99-683V, 2007 WL 4793152, at *3 (Fed.
Cl. Spec. Mstr. Nov. 19, 2007); Grice v. Sec’y of Health & Human Servs., 36 Fed. Cl. 114, 121
(1996). In the present case, respondent does not challenge the presumption of good faith and the

3
 Pursuant to General Order #9, petitioner also provided her signed statement that while represented by counsel, she
did not incur any costs related to the litigation of this matter. Petitioner’s Motion, Tab 1.



                                                         3
undersigned finds that this case was brought in good faith. Therefore, the question at issue is
whether petitioner had a reasonable basis for her claim.

        The Vaccine Act does not define “reasonable basis,” and neither the Federal Circuit nor
the Court of Federal Claims has defined “reasonable basis” for purposes of fee awards under the
Vaccine Act. Chuisano v. United States, 116 Fed. Cl. 276, 285 (Fed. Cl. 2014). The Court of
Federal Claims has held that the statutory language of Section 15(e)(1)(B) grants the special
master “maximum discretion in applying the standard.” Silva v. Sec’y of Health & Human
Servs., 108 Fed. Cl. 401, 402 (Fed. Cl. 2012).

        The burden is on petitioner to affirmatively demonstrate a reasonable basis, though
“petitioner need not establish entitlement to compensation, or even that a claim is likely to
succeed.” McKellar v. Sec’y of Health & Human Servs., No. 09-841V, 2012 WL 362030, at *6-
7 (Fed. Cl. Spec. Mstr. Jan 13, 2012), reversed on other grounds, 2012 WL 1884703 (Fed. Cl.
2012). Petitioner must furnish “some evidence” supporting the claims in the petition, but the
evidentiary showing required is less than a preponderance of the evidence. Chuisano v. Sec’y of
Health & Human Servs., No. 07-452V, 2013 WL 6234660, at *1, 13 (Fed. Cl. Spec. Mstr. Oct.
25, 2013).

        The Court of Federal Claims and many special masters have provided that the reasonable
basis requirement is an “objective consideration determined by the totality of the circumstances.”
McKellar v. Sec’y of Health & Human Servs., 101 Fed. Cl. 297, 303 (Fed. Cl. 2011); Chuisano,
116 Fed. Cl. at 286. Factors to be considered include factual basis, medical support, and the
circumstances under which a petition is filed. Turner, 2007 WL 4410030, at *6-9.

        The reasonable basis inquiry may also consider whether there is an impending statute of
limitations deadline. See, e.g. Chusiano, 116 Fed. Cl. at 287 (“the statute of limitations is a
factor that may affect the reasonable basis analysis in appropriate circumstances.”); Austin v.
Sec’y of Health & Human Servs., No. 10-362V, 2013 WL 659574,at *9 (Fed. Cl. Spec. Mstr.
Jan. 31, 2013) (“special masters have recognized that the ability to investigate adequately a claim
is constrained by the need to file quickly to preserve the claim, and have found the balance
between these competing interests favors filing.”); Lamar v. Sec’y of Health & Human Servs.,
No. 99-583V, 2008 WL 3845165, at *4 (Fed. Cl. Spec. Mstr. July 30, 2008) (“Applying a lenient
standard [for reasonable basis] is appropriate when the impending expiration of the statute of
limitations prevents an adequate investigation of the basis for the claim.”); Hamrick v. Sec’y of
Health & Human Servs., No. 99-683V, 2007 WL 4793152, at *5 (Fed. Cl. Spec. Mstr. Jan. 9,
2008) (“When faced with a near certainty that the statute of limitations will bar the action if the
action is not filed quickly, petitioners' attorneys must file the action and investigate the case
more thoroughly after the case is filed. Thus, petitioners’ attorneys are entitled to the benefit of a
doubt when they file a petition just before the statute of limitations expires.”); Turner v. Sec’y of
Health & Human Servs., No. 99-544V, 2007 WL 4410030, at *6 (Fed. Cl. Spec. Mstr. Nov. 30,
2007) (“A filing on the eve of the running of the statute of limitations may be supported by less
information than would be expected if counsel has more time to conduct a pre-filing
investigation of the factual underpinnings and the medical basis for a vaccine claim.”); Hearell v.
Sec’y of Health & Human Servs., No. 90-1420V, 1993 WL 129645, at *1 (Fed. Cl. Spec. Mstr.




                                                  4
Apr. 6, 1993) (“Because of the time constraints, it was reasonable for the petitioner to file an
incomplete petition in this case.”)

        However, a looming statute of limitations deadline does not automatically confer
reasonable basis to a claim. The Court of Federal Claims and several special masters have
emphasized the need for petitioners and counsel to evaluate the feasibility of a claim prior to
filing. See, e.g., Rehn v. Sec’y of Health & Humans Servs., 126 Fed. Cl. 86, 93 (Mar. 30, 2016)
(“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.”); Kegler v. Sec’y of
Health & Human Servs., No. 13-533V, 2014 WL 1568837 at *4 (Fed. Cl. Spec. Mstr. Mar. 28,
2014) (“Petitioner’s counsel clearly failed to perform fundamental due diligence. Consequently,
there was no reasonable basis for the filing of [p]etitioner’s claim, and [p]etitioner is not entitled
to fees and costs.”). Indeed, many of the cases quoted above emphasize the need to strike a
balance between some investigation of the claim and preserving petitioner’s rights. They
suggest greater leniency when there is a shorter period of time to investigate the claim before the
limitations period closes. See e.g., Hamrick, 2007 WL 4793152 at *5 (offering the “benefit of
the doubt… just before the statute of limitations expires” and approving attorneys’ fees and costs
because the petitioner contacted counsel and filed a claim on the last day a claim would be
possible). Thus, both the impending statute of limitations and the preliminary investigation of
the claim may be considered, as part of the reasonable basis analysis.

               b. Application

       Based on the totality of the circumstances in this case, petitioner has not established
reasonable basis for her claim. The petition alleges that the vaccine was received on November
6, 2013, and onset was approximately “3-4 weeks later.” Reading the allegations in the light
most favorable to petitioner, onset was 3 weeks after the vaccination, on November 27, 2013.
Thus, the three-year limitations period would run from that date.

        Petitioner admittedly contacted counsel and began investigating the feasibility of her
claim close to the statute of limitations. However, it was not “the eve” of the statute of
limitations; petitioner – and counsel - had some opportunity for an investigation. The records do
not show when petitioner first contacted counsel. However, the first billing entry is for October
17, 2016, when a paralegal spent 0.4 hours on “telephone conference and emails with client.
Review medical records. Discuss with attorney.” Petitioner’s Motion, Tab 2 at 1. It is not clear
which medical records were available at this point, but the review does not appear to be
extensive, based on the billing entry for multiple tasks amounting to 0.4 hours. On October 18,
2016, the same paralegal communicated further by telephone and email with the petitioner,
opened a new client file, and prepared an information packet. Id. On October 18 and 19, 2016,
an attorney and the same paralegal worked on drafting the petition. Id. The petition was filed on
October 20, 2016. Id. The petition was very brief and stated it was “being filed with the
NVICP’s statute of limitations in mind.” Petition at 1, n. 1. However, the statute of limitations
was not about to close – there were at least 38 days left.4 Even if petitioner’s counsel was
credited with filing conservatively in the case that later-obtained medical records would establish

4
    The deadline of November 27, 2016, falls on a Sunday, so the deadline would be extended to November 28, 2016.



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an earlier date of onset, the onset of an injury attributable to the vaccine at issue could not
possibly occur before the vaccine was administered on November 6, 2013. Thus, there were
approximately 17 days before the most conservative reading of the statute of limitations
deadline.

         The billing records also reveal that counsel could have made more of an effort to
investigate the claim prior to filing. The petition stated: “undersigned counsel is in the process
of obtaining petitioner’s relevant medical records.” Petition at 1, n. 1. But according to the
billing records, the petition was filed before the process of obtaining records even began. The
petition was filed on October 20, 2016, and the first entry relating to obtaining records is on the
following day, October 21, 2016, when a paralegal recorded telephones call to multiple facilities
to verify contact information and enter into “TM.” Petitioner’s Motion, Tab 2 at 1. Then on
October 24, 2016, another paralegal sent rush requests for medical records to four different
providers. Id. at 2. The rush requests seem to have been effective, as counsel received some
records as quickly as October 31, 2016. Id. Other records took additional time. Id. at 2-3.
However, it seems that counsel had the time and capability to obtain at least some of the records
and evaluate the feasibility of the claim before filing. The billing records indicate it was not
particularly time-consuming or costly to obtain the records or to conduct a preliminary review
(they were not voluminous). Doing so at the outset could have informed both petitioner and
counsel about the feasibility of the claim. Indeed, after this case was filed, I conducted an initial
status conference and readily identified potentially fatal issues with the case. I ordered petitioner
to file additional medical records or affidavits to address the pre-existing condition issue as well
as the lack of medical records between the time of vaccination in November 2013 and June of
2014. Petitioner’s counsel subsequently advised that there were no more records to be filed and
requested dismissal of her claim. This course of events also cuts against a finding of reasonable
basis.

    III.     Conclusion

       Thus, based on the totality of the circumstances, I find that petitioner has not established
a reasonable basis for her claim. Thus, I deny the 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 SHALL ENTER JUDGMENT in accordance herewith.5

           IT IS SO ORDERED.

                                                                        s/Thomas L. Gowen
                                                                        Thomas L. Gowen
                                                                        Special Master




5
  Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of notice renouncing the
right to seek review.




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