           In the United States Court of Federal Claims
                               OFFICE OF SPECIAL MASTERS
                                         No. 13-544V
                                    Filed: March 28, 2014

* * * * * * * * * * * * * * * * *
TERRY L. KEGLER,                *
                                *
                 Petitioner,    * Special Master
v.                              * Hamilton-Fieldman
                                *
SECRETARY OF HEALTH             *
AND HUMAN SERVICES,             * Vaccine Act Attorneys’ Fees; Reasonable
                                * Basis for a Claim.
                 Respondent.    *
* * * * * * * * * * * * * * * * *

Thomas P. Gallagher, Somers Point, NJ, for Petitioner

Ryan D. Pyles, Washington, DC, for Respondent


                     DECISION ON ATTORNEYS’ FEES AND COSTS 1

                                      I
                      BACKGROUND AND PROCEDURAL HISTORY

        On August 5, 2013, Petitioner filed a Petition for Vaccine Compensation in the National
Vaccine Injury Compensation Program (“the Program”) alleging that an influenza vaccine
Petitioner received on October 18, 2011, significantly aggravated Petitioner’s preexisting GBS.
Pet., ECF No. 1. Doctors first diagnosed Petitioner’s GBS on February 8, 2010. Pet’r’s Ex. 2, at
166.

       On November, 6 2013, Petitioner filed a Motion for Judgment on the Record, stating that
a review of Petitioner’s medical records revealed no exacerbation of the preexisting GBS. Pet’r’s

       1
                The undersigned intends to post this published decision on the United States
Court of Federal Claims’ website, in accordance with the E-Government Act of 2002, Pub. L.
No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note
(2006)). As provided by Vaccine Rule 18(b), each party has 14 days within which to request
redaction “of any information furnished by that party (1) that is trade secret or commercial or
financial information and is privileged or confidential, or (2) that are medical files and similar
files the disclosure of which would constitute a clearly unwarranted invasion of privacy.”
Vaccine Rule 18(b). Otherwise, “the entire” decision will be available to the public. Id.

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Mot. J. R., ECF No. 11. On November 13, 2013, Respondent filed a response agreeing with
Petitioner’s stance that the medical records did not show that an influenza vaccine administered
on October 18, 2011, aggravated Petitioner’s preexisting GBS. Resp’t’s Resp. Mot. J. R., ECF
No. 12. Consequently, Respondent requested Petitioner’s claim be dismissed. Id. On November
20, 2013, the undersigned dismissed Petitioner’s claim because an examination of the record
failed to show any injury stemming from an October 18, 2011 influenza vaccination. J., ECF No.
14.

       Following dismissal of Petitioner’s claim, on February 6, 2014, Petitioner filed an
“Application for Fees and Costs,” seeking $13,035.00 in attorney’s fees, $2037.28 for obtaining
medical records, and $400.00 in filing fees. Pet’r’s Mot. Atty’s Fees, ECF No. 16. On February
24, 2014, Respondent filed a “Response and Opposition to Petitioner’s Application for Fees and
Costs,” asserting that Petitioner failed to establish a reasonable basis for bringing the claim
because Petitioner’s medical records indicate that Petitioner’s GBS remained stable after the
alleged influenza vaccination. Opp’n Fees Costs, ECF No. 17.

         On March 6, 2014, Petitioner filed a “Reply to Respondent’s Opposition to Petitioner’s
Application for Fees and Costs.” Pet’r’s Reply Resp’t’s Opp’n Fees Costs, ECF No. 18. In
Petitioner’s Reply, Petitioner’s counsel asserts that Petitioner originally sought counsel’s
assistance on Sept 6, 2011, for a February 8, 2010 diagnosis of GBS allegedly resulting from an
influenza vaccination received on November 12, 2009. Id. Counsel’s billing records reflect that
he obtained authorizations from his client and began collecting medical records immediately.
Pet’r’s Mot. Atty’s Fees 4-5. Those billing records also reflect that counsel received Petitioner’s
military vaccination record, later filed as Petitioner’s Exhibit 7, from Womack Army Medical
Center on November 16, 2011. Pet’r’s Mot. Atty’s Fees 4-5; Pet’r’s Ex. 7, at 4-5, ECF No. 8.
Petitioner’s Exhibit 7 consists of seven pages. Pet’r’s Ex. 7. It shows a regular vaccination
pattern through 2007, including an influenza vaccination on November 7, 2007. Pet’r’s Ex. 7, at
4-5. Thereafter, Exhibit 7 reflects a four-year gap during which no vaccines were administered
to Petitioner, at least none that were administered or recorded at Womack Army Medical Center.
Id. The last entries on the Exhibit 7 vaccination record are those from October 18, 2011, where
the lines for every possible version of the influenza vaccine (i.e., intranasal, intradermal, etc.)
reflect that the vaccine was not administered, with “Medical (Perm)” noted in the “Exemption
Column.” Id.

        Despite this clear record documenting that no influenza vaccine was administered to
Petitioner on October 18, 2011, Petitioner’s counsel filed a petition on Petitioner’s behalf
asserting that Petitioner suffered injuries resulting from that alleged vaccine. Pet. at 1. As
recently as in his Reply Brief filed March 6, 2014, Petitioner’s counsel asserted that “[n]one of
the [10,000 pages of Petitioner’s medical] records contradict the recorded October 18, 2011
influenza vaccine administration,” and that the alleged October 18, 2011 influenza vaccination
“nullified” that “[Petitioner] had an influenza vaccination on November 2009.” Pet’r’s Reply
Resp’t’s Opp’n Fees Costs 1.
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         It is unclear what accounts for the four-year gap in Petitioner’s vaccination record from
Womack Medical Center. No other vaccination record was ever received by the Court in this
case. It is clear, however, that Petitioner never brought a claim or alleged any injury resulting
from a November 12, 2009 vaccination. Even if Petitioner could now show that he received a
vaccination on November 12, 2009, the Act’s statute of limitations would preclude Petitioner
from bringing a claim based on that vaccination. See 42 U.S.C. 300aa-16(a)(2) (The statute
provides 36 months “after the date of the occurrence of the first symptom or manifestation of
onset . . . of such injury.” Petitioner’s GBS diagnosis occurred on February 8, 2010; therefore,
the statute of limitations expired on February 8, 2013). Finally, Petitioner has acknowledged that
he suffered no exacerbation of his GBS following an alleged influenza vaccination in 2011.
Pet’r’s Mot. J. R. 1.

                                             II
                                      APPLICABLE LAW

        Under 42 U.S.C. §300aa-15(e)(1)(B), if the judgment on a petition does not award
compensation, the special master may award compensation to cover a petitioner’s reasonable
attorneys’ fees and costs incurred in any proceeding arising out of the petition if the special
master determines that the petitioner brought the claim in good faith, and there was a reasonable
basis for the petitioner’s claim. According to 42 U.S.C. § 300aa-11(b)(1)(A), eligibility to file a
petition under the Program requires that one “sustained a vaccine-related injury . . . as the result
of the administration of a vaccine set forth in the Vaccine Injury Table.” Furthermore, 42 U.S.C
§ 300aa-11(c)(1)(A) states that a petition for compensation under the Program for a vaccine-
related injury or death “shall contain . . . supporting documentation, demonstrating that the
person who suffered such an injury . . . received a vaccine set forth in the Vaccine Injury Table.”

        The good faith of Petitioner’s claim is not disputed. He suffered from GBS in February
2010, which he believed was caused by his receipt of an influenza vaccine in 2009. Pet’r’s Ex. 2,
at 166. Therefore, the only issue is whether Petitioner had a reasonable basis for bringing the
claim.

        Neither the Vaccine Act nor the rules governing the Program’s proceedings define
“reasonable basis.” There is little definitive guidance on what constitutes “reasonable basis,”
and the Federal Circuit has not interpreted the meaning of “reasonable basis.” In the absence of
a codified definition, special masters and the Court of Federal Claims have held that reasonable
basis is an objective standard determined by the totality of the circumstances. McKellar v. Sec’y
of Health & Human Servs., 101 Fed. Cl. 297, 303 (Fed. Cl. 2011) (citing Hamrick, 2007 WL
4793152, at *4). In Murphy v. Secretary of Health and Human Services, the Court of Federal
Claims held that prior to accepting a case, “an attorney should be able to distinguish a case that
has reasonable underpinnings from one that does not,” and that “an attorney should use reasoned
judgment to accept or pursue a claim.” Murphy v. Sec’y of Health & Human Servs., 30 Fed. Cl.
60, 62 (Fed. Cl. 1993), aff’d, 48 F.3d 1236 (Fed. Cir. 1995). In Silva v. Secretary of Health and

                                                 3
Human Services, the Court of Federal Claims held that special masters maintain broad discretion
in awarding attorneys’ fees when no compensation is awarded on a petition. Silva v. Sec’y of
Health & Human Servs., 108 Fed. Cl. 401, 405 (Fed. Cl. 2012); see also Saxton v. Sec’y of
Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993). Petitioners carry the burden of
affirmatively demonstrating a reasonable basis. McKellar, 101 Fed. Cl. at 305.

        Special masters may consider a number of factors in evaluating whether a reasonable
basis existed for filing a vaccine claim, including the factual basis for the claim and the medical
support in favor of the claim. Di Roma v. Sec’y of Health & Human Servs., No. 90-3277, 1993
WL 496981, at *1 (Fed. Cl. Spec. Mstr. Nov. 18, 1993). Reasonable basis is lacking, however,
when a petitioner’s attorneys do not properly investigate a case before filing it. Silva, 108 Fed.
Cl. at 405 (finding no reasonable basis when a petitioner’s attorney failed to perform minimal
investigation because no medical evidence suggested the alleged vaccine caused an injury). The
crux of a court's finding that a claim lacked reasonable basis is a determination that counsel
failed to make fundamental inquiries about the case. Stevens v. Sec’y of Health & Human Servs.,
No. 90-221V, 1992 WL 159520, at *4 (Cl. Ct. Spec. Mstr. June 9, 1992), aff'd, 996 F.2d 1236
(Fed. Cir. 1993) (denying fees where doctor and lawyer ignored glaring inconsistency between
medical records and factual allegations); see also Perreira v. Sec’y of Health & Human Servs.,
27 Fed. Cl. 29, 33-35 (1992) (denying fees after a lawyer failed to question the information of
particular interest, on which the expert premised his or her opinion).

                                                  III
                                              DISCUSSION

        In the present case, Petitioner’s medical records do not support Petitioner’s assertion that
he received an influenza vaccination on either of the alleged dates, November 12, 2009, and
October 18, 2011. Pet’r’s Ex. 7, at 4. Even a cursory glance at Petitioner’s vaccination record
reveals Petitioner’s most recent influenza vaccination was on November 7, 2007, and that
Petitioner never received a vaccination of any type in 2009. Pet’r’s Ex. 7, at 4-5. In addition,
Petitioner’s vaccination record lists the line corresponding to every subsequent influenza
vaccination Petitioner could have received and shows that Petitioner was medically exempt from
receiving an influenza vaccination. Id.

        Petitioner’s counsel began collecting medical records on September 26, 2011, nearly
three weeks before the October 18, 2011, vaccination alleged in the Petition. Pet’r’s Mot. Atty’s
Fees 4. Presumably, Petitioner’s counsel believed Petitioner received a vaccination on
November 12, 2009, that caused or contributed to Petitioner’s GBS diagnosis on February 8,
2010. The undersigned assumes that Petitioner’s counsel began collecting Petitioner’s medical
records to investigate a November 12, 2009 vaccination but failed to locate evidence of a
vaccination on this date. The fact that Petitioner first met with counsel on September 9, 2011,
and first requested medical records on September 26, 2011, is consistent with this version of the
events. Id. Petitioner’s counsel received the vaccination record on November 16, 2011. Pet’r’s

                                                 4
Ex. 7, at 1. According to Petitioner’s counsel’s time records, medical records were reviewed on
November 10, 2011 and November 11, 2011. Pet’r’s Mot. Atty’s Fees 4. The only time billed
for reviewing medical records after receipt of the vaccination record on November 16, 2011,
occurred on March 22, 2013. Id. at 5. Petitioner’s counsel had over one year and four months to
discover that Petitioner did not receive an influenza vaccination that coincided with either
Petitioner’s GBS diagnosis or an exacerbation of the GBS. It is also important to note that by the
time Petitioner’s counsel reviewed the vaccination records on March 22, 2013, the statute of
limitations for alleging that a vaccine caused Petitioner’s February 8, 2010 GBS had already
passed.

        Finally, Petitioner’s medical records do not show any exacerbation of Petitioner’s GBS
after the alleged October 18, 2011 vaccination. Petitioner’s counsel concedes that “there was no
exacerbation of Petitioner’s pre-existing GBS,” after the alleged October 18, 2011 vaccination.
Pet’r’s Mot. J. R. 1. In addition, Petitioner’s medical records show Petitioner’s GBS condition
was stable. Pet’r’s Ex. 2, at 166.

        Here, a minimal investigation would have uncovered either that Petitioner’s GBS
condition was stable or that Petitioner never received an influenza vaccination that corresponded
with an exacerbation of Petitioner’s GBS. Petitioner’s counsel possessed Petitioner’s vaccine
records for nearly a year and a half. The undersigned determines that this is ample time for
Petitioner’s counsel to discover that Petitioner never received an influenza vaccination on any
alleged date that coincided with Petitioner’s GBS diagnosis. In addition, even if Petitioner did
receive an influenza vaccination on November 12, 2009, that is not in Petitioner’s medical
records, Petitioner’s counsel allowed the statute of limitations to expire, precluding Petitioner
from bringing this claim. These facts are not buried in the medical record. There was more than
sufficient time to discover any of these facts. Petitioner’s counsel clearly failed to perform
fundamental due diligence. Consequently, there was no reasonable basis for the filing of
Petitioner’s claim, and Petitioner is not entitled to fees and costs.

                                               III
                                        CONCLUSION
       For the reasons stated herein, Petitioner’s motion for fees and costs is DENIED. In the
absence of a timely-filed motion for review filed pursuant to Appendix B of the Rules of the U.S.
Court of Federal Claims, the clerk of the court shall enter judgment in accordance herewith.

       IT IS SO ORDERED.

                                                     /s/ Lisa D Hamilton-Fieldman.
                                                     Lisa D Hamilton-Fieldman
                                                     Special Master



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