    iIn the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                            No. 17-675V
                                        Filed: July 24, 2018
                                        Not for Publication

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SHANNON FINCH,                             *
                                           *
                                           *
              Petitioner,                  *        Attorneys’ fees and costs decision;
v.                                         *        lack of reasonable basis
                                           *
SECRETARY OF HEALTH                        *
AND HUMAN SERVICES,                        *
                                           *
              Respondent.                  *
                                           *
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Joseph A. Vuckovich, Washington, DC, for petitioner.
Christine M. Becer, Washington, DC, for respondent.

MILLMAN, Special Master

        DECISION DENYING AN AWARD OF ATTORNEYS’ FEES AND COSTS1

       On May 22, 2017, 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 on
September 23, 2015 caused her Guillain-Barré syndrome (“GBS”) and chronic inflammatory
demyelinating polyneuropathy (“CIDP”). Pet. at ¶¶ 5 and 9. On January 19, 2018, the
undersigned dismissed the case. On June 29, 2018, 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 her petition on May 22, 2017. The case was assigned to the undersigned
on May 23, 2017.



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  Because this unpublished decision contains a reasoned explanation for the special master’s action in this
case, the special master intends to post this unpublished decision on the United States Court of Federal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.
       Petitioner filed medical records and an affidavit. On July 17, 2017, petitioner filed a
statement of completion of the record.

        In her Order of August 11, 2017, the undersigned raised her concern about whether, in
light of the medical records and opinions of the treating doctors, it was reasonable for petitioner to
proceed. Doc 13. The undersigned listed numerous issues including that the onset of GBS was
over 5 months after vaccination,2 petitioner had pre-existing peripheral neuropathy in her feet and
numbness in her hands and knees, and a doctor3 opined that petitioner never had GBS. Id. at 1-
2.

       During the initial status conference held on August 22, 2017, the undersigned discussed
the Order of August 11, 2017 with the parties. Petitioner’s counsel discussed the possibility of
amending her petition to allege significant aggravation of a preexisting neurological injury and
requested time to consider how to proceed.

        During a status conference held on October 5, 2017, petitioner’s counsel requested 30
days to get in touch with petitioner’s treating neurologist, Dr. Oakley Bailey, who diagnosed her
with GBS on February 24, 2016. The undersigned suggested that petitioner’s counsel send Dr.
Bailey the Order of August 11, 2017 with petitioner’s full medical records.

      On November 17, 2017, the undersigned gave petitioner until December 18, 2017 to either
move to dismiss the petition or file a status report.

        On December 18, 2017, petitioner’s counsel filed a status report which was an informal
motion for an extension of time to determine whether Dr. Bailey was willing to support
petitioner’s allegations. On December 19, 2017, the undersigned gave petitioner until January
17, 2018 to file either Dr. Bailey’s report and records or a motion to dismiss the case.

       On January 17, 2018, petitioner moved to dismiss the petition stating she was unable to
prove her case.

       On January 19, 2018, the undersigned dismissed the case. Judgment entered on February
22, 2018.

       On June 29, 2018, petitioner filed a motion for attorneys’ fees and costs. Petitioner
requests $17,459.10 in attorneys’ fees and $653.91 in attorneys’ costs, for a total request of
$18,113.01. In accordance with General Order #9, petitioner did not incur any personal costs.

        On July 13, 2018, respondent filed a response objecting to an award of attorneys’ fees and
costs because petitioner failed to establish a reasonable basis for her claim. Resp. at 3.
Respondent argued that “the reasonable basis analysis must focus on whether there is evidentiary
2
  On February 16, 2016, petitioner saw Dr. Saab for a new onset of numbness of her fingers and weakness
of her upper extremities in addition to severe motor weakness of her lower extremities. Med. recs. Ex. 2,
at 232. This occurred five months after she received flu vaccine.
3
  On April 28, 2017, petitioner saw Dr. Michelle Paff, a neurosurgeon, who found insufficient evidence for
petitioner being diagnosed with GBS because her NCS/EMG was normal with no demyelination, no
conduction delays, and normal amplitudes. Med. recs. Ex. 10, at 8.
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support for the claim set forth in the petition, not whether counsel acted reasonably in filing the
petition.” Id. at 4 (citing Simmons v. Sec’y of HHS, 875 F.3d 632, 636 (Fed. Cir. 2017)).

        On July 20, 2018, petitioner replied to respondent’s opposition to her motion for
attorneys’ fees and costs. Petitioner stated, before filing the petition, her counsel relied on
several extensive interviews with petitioner and her husband via telephone to obtain “petitioner’s
perspective on the development of her neurological condition, including the time of symptom
onset.” Reply at 2. Because petitioner’s counsel found both petitioner and her husband
credible, he “used the information they provided to inform his interpretation of the medical
record.” Id. Petitioner argued that the inconsistencies in her medical records do not negate its
reasonable basis because the records, taken as a whole can be interpreted to support the assertions
in the petition. Id. at 5. Petitioner differentiated this case from Simmons as the statute of
limitations was not an issue here. Id. at 6. Petitioner argued that the objective inquiry in
Simmons does not abrogate the totality of the circumstances test and a special master’s analysis
may include an examination of a number of objective factors. Id. at 6-7 (citing Amankwaa v.
Sec’y of HHS, No. 17-36V, 2018 WL 1125853, at *5 (Fed. Cl. Spec. Mstr. Jan. 5, 2018), rev’d,
2018 WL 3032395 (Fed. Cl. June 4, 2018); and Amankwaa, 2018 WL 3032395, at *7).

        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. Deciding whether a claim
was brought in good faith and had a reasonable basis “is within the discretion of the Special
Master.” Simmons v. Sec’y of HHS, 128 Fed. Cl. 579, 582 (2016), aff’d, 875 F. 3d 632 (Fed.
Cir. 2017) (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)). In determining reasonable basis, the Federal Circuit has
clarified in Simmons that it is “an objective inquiry unrelated to counsel’s conduct.” Simmons,
875 F. 3d at 636.




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           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 her claim.

        Petitioner filed her petition after March 20, 2017 when the U.S. Department of Health and
Human Services added Table injuries to the Vaccine Injury Table, including GBS following flu
vaccine. 42 C.F.R. § 100.3(a). In order to qualify for the Table injury GBS, a petitioner must
actually have GBS and the onset must occur within 3-42 days of vaccination. Petitioner had the
onset of her difficulty walking occurring in July 2015, three months before flu vaccination. The
medical records show that the alleged onset of petitioner’s GBS was February 16, 2016, over five
months after petitioner’s September 23, 2015 flu vaccination. Thus, petitioner would not satisfy
the Table requirement of onset of 3-42 days. Petitioner had no reasonable expectation that she
would prevail on a causation-in-fact basis either because the undersigned does not consider
causation more than two months past flu vaccination compensable. See Corder v. Sec’y of HHS,
No. 08-228V, 2011 WL 2469735 (Fed. Cl. Spec. Mstr. May 31, 2011) (dismissed suit involving
four-month onset of GBS after flu vaccination). Nonetheless, the undersigned gave petitioner
over three months to get an opinion from Dr. Bailey, who diagnosed her with GBS. At no point
during the course of these proceedings did petitioner provide a theory causally connecting her
vaccination to any alleged injury. Petitioner did not file a medical expert report in support of her
allegations.

         Simmons holds that the reasonable basis analysis must focus on whether there is
evidentiary support for the claim set forth in the petition. Simmons, 875 F. 3d at 636. In
keeping with the Vaccine Act and the Federal Circuit’s decision in Simmons, the undersigned
applies the reasonable basis standard by focusing on the objective evidence only. After she
reviewed petitioner’s medical records, the undersigned issued an Order on August 11, 2017
addressing the weaknesses of this case and whether it was reasonable to proceed. Petitioner’s
counsel completed his review of the majority of petitioner’s medical records (Exhibits 1-7) before
filing the petition. Doc 24-1, at 1-6; Doc 26, at 1-2. While petitioner’s medical records show
that the onset of her GBS was five months after her flu vaccination, petitioner’s counsel relied on
subjective evidence, information provided by petitioner and her husband, to find there was a
reasonable basis to file the petition. Counsel’s reliance on his impression based on petitioner’s
perspective and that of her husband is contrary to Simmons’ holding that reasonable basis is an
objective inquiry, not a subjective inquiry. It does not matter what counsel thought or believed
unsupported by medical records or medical opinion. 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 she did not have a reasonable basis to bring her claim.

                                         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.

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        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.4



IT IS SO ORDERED.


Dated: July 24, 2018                                             s/ Laura D. Millman
                                                                    Laura D. Millman
                                                                     Special Master




4
  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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