In the United States Court of Federal Claims
                          OFFICE OF SPECIAL MASTERS

*********************
TANYA LYNN CARTER, as parent *
and legal representative of the estate *    No. 15-1030
of her son, Z.J.C., deceased,          *    Special Master Christian J. Moran
                                       *
                     Petitioner,       *    Filed: January 10, 2017
                                       *
v.                                     *    Attorneys’ fees and costs; reasonable
                                       *    basis.
SECRETARY OF HEALTH                    *
AND HUMAN SERVICES,                    *
                                       *
                     Respondent.       *
*********************
Mark L. Krueger, Krueger & Hernandez, S.C., Baraboo, WI, for Petitioner;
Voris E. Johnson, United States Dep’t of Justice, Washington, DC, for Respondent.

  PUBLISHED DECISION DENYING ATTORNEYS’ FEES AND COSTS 1

      On September 20, 2016, the undersigned issued an order concluding
proceedings in the above captioned matter. Petitioner Tanya Carter then filed an
application for attorneys’ fees and costs. For the reasons set forth below, the
undersigned finds the petition was not supported by a reasonable basis and
DENIES petitioner’s request for attorneys’ fees and costs.




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         The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services), requires that the Court post this decision on its
website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing
redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4).
Any redactions ordered by the special master will appear in the document posted on the website.
                    I.   Brief Factual and Procedural History

       Z.J.C. was born on March 31, 2013. Exhibit 1. He was relatively healthy
during his first 15 months. He was seen at the emergency room by Muhammad
Khan for an upper respiratory infection with fever on June 27, 2014. Exhibit 2 at
35-36. On July 1, 2014, Z.J.C. received the pneumococcal and diphtheria-tetanus-
acellular pertussis (“DTaP”) vaccines during his 15-month well-child visit with
pediatrician David May. During this visit, Dr. May diagnosed Z.J.C. with viral
roseola but stated he was otherwise healthy. Exhibit 3 at 3-5.

        The following evening, on July 2, 2014, Z.J.C. was found unresponsive in
his crib. Emergency personnel transported Z.J.C. to the local emergency room
where he received initial emergency treatment before being transferred to the
University of Wisconsin American Family Children’s Hospital. Exhibit 2 at 40.
The admission note taken by Dr. Kathryn Gannon states that Z.J.C. was a healthy
boy who was put down to bed and later found face down and not breathing by the
mother’s boyfriend. Dr. Gannon noted the previous upper respiratory infection
diagnosis but indicated that Z.J.C. had recovered and was “behaving like normal.”
Id. at 44.

       After extensive examinations and tests were performed on Z.J.C., it was
determined that the results were consistent with brain death and he was taken off of
life-support on the evening of July 4, 2014. The final discharge diagnosis included
possible non-accidental trauma. Exhibit 2 at 47-52. An autopsy was performed
the following day with the final opinion being that the cause of death was due to a
severe respiratory tract infection. Exhibit 5 at 3. The death certificate lists the
cause of death as anoxia as a consequence of acute bronchopneumonia. Exhibit 9.

      Just over a month after Z.J.C.’s death, on August 11, 2014, Ms. Carter
contacted the counsel of record regarding her claim. See Pet’r’s Fee App., filed
Oct. 27, 2016, tab 1 at 5. For about a year, petitioner’s counsel gathered medical
records. Id. at 5-8. On September 16, 2015, the petition was filed alleging that the
pneumococcal and DTaP vaccines Z.J.C. received on July 1, 2014, caused a severe
bacterial respiratory infection and his ultimate death. Shortly thereafter medical
records and a statement that the records filed to date were substantially complete
were filed.


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       On November 19, 2015, the Secretary filed her report pursuant to Vaccine
Rule 4. During the ensuing status conference, the “parties agreed that expert
reports were a necessary next step for this case.” Order, filed Dec. 10, 2015. Ms.
Carter began her search for an expert at that time. See Pet’r’s Reply, filed Nov. 17,
2016, at 2 (“Respondent is correct in her assertion that Petitioner did not search for
an expert to support her claim until after the Petition was filed”). Over the ensuing
months, Ms. Carter filed several status reports detailing her efforts to locate an
expert. On September 6, 2016, Ms. Carter filed a Stipulation of Dismissal. Ms.
Carter had not located an expert to opine on the case and did not file an expert
report. On September 20, 2016, the undersigned issued an order concluding
proceedings.

       On October 27, 2016, Ms. Carter filed the pending motion for attorneys’ fees
and costs, requesting $21,014.36. She argues that due diligence in the form of a
medical record review, VAERS search, medical literature review, and assessment
of similar cases before the Vaccine Program was performed prior to the filing of
the petition. She also supported the amount of fees requested.

       The Secretary opposes the motion asserting that Ms. Carter did not satisfy
the reasonable basis standard. The Secretary argues that Ms. Carter has offered no
evidence to support her claim that Z.J.C.’s untimely death was caused-in-fact by
any vaccine. Resp’t’s Resp., filed Nov. 4, 2016, at 17. The Secretary cites the
medical examiner’s determination that the cause of death was acute
bronchopneumonia, which predated the vaccination. Id. The Secretary further
asserts that a review of the medical records should have made the need for Ms.
Carter to consult an expert “apparent to petitioner’s counsel.” Id.

        Ms. Carter filed a reply essentially repeating the arguments she made with
the filing of her motion. Ms. Carter also disagrees with the Secretary’s assertion
that a medical expert should have been consulted prior to the filing of the petition.
Ms. Carter contends that an expert opinion was not needed before the petition was
filed based on the information researched about the claim, and requiring an
expert’s opinion before the filing of a petition would be contrary to a goal of the
Vaccine Program. Pet’r’s Reply at 2.

      The matter is now ripe for adjudication.


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                         II.   Standards for Adjudication

       Even when a petitioner in the Vaccine Program does not prevail on his or
her claim and does not receive compensation, a special master may award
reasonable attorneys’ fees and other costs 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 Health & Human
Servs., 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 honestly believes that a
vaccine injury occurred. Turner v. Sec’y of Health & Human Servs., No. 99-544V,
2007 WL 4410030, at * 5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007). The Secretary
does not contest that the petition was filed in good faith. Resp’t’s Resp. at 7.
There is no evidence that this petition was brought in bad faith; therefore, the
undersigned finds that the good faith requirement is present.

      In contrast, the Secretary does contest the reasonable basis for this petition.
The Federal Circuit has not interpreted “reasonable basis” or provided any
guidance as to how petitioners satisfy the reasonable basis standard. Chuisano v.
Sec’y of Health & Human Servs., 116 Fed. Cl. 276, 285 (2014) (citing Woods v.
Sec’y of Health & Human Servs., 105 Fed. Cl. 148 (2012)). In the absence of
guidance, special masters have taken different approaches. Silva v. Sec’y of
Health & Human Servs., No. 10-101V, 2012 WL 2890452, at *8-9 (Fed. Cl. Spec.
Mstr. June 22, 2012), mot. for rev. denied, 108 Fed. Cl. 401 (2012).

       Recent decisions have examined whether any evidence supports “the claim
for which the petition was brought.” The statute’s use of the phrase “reasonable
basis for the claim for which the petition was brought” is consistent with other
portions of the statute that require the petition to be filed with evidence. See
Chuisano v. Sec’y of Health & Human Servs., No. 07-452V, 2013 WL 6234660, at
*8-10 (Fed. Cl. Spec. Mstr. Oct. 25, 2013), mot. for rev. denied, 116 Fed. Cl. 276
(2014). Evidence that is relevant to determining whether there is reasonable basis
for a claim may include medical records, affidavits from percipient witnesses, and
opinions from retained experts. See 42 U.S.C. § 300aa–11(c).




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       “The burden is on the petitioner to affirmatively demonstrate a reasonable
basis.” McKellar v. Sec’y of Health & Human Servs., 101 Fed. Cl. 297, 305
(2011), decision on remand vacated, 2012 WL 1884703 (May 3, 2012).

                                 III.   Discussion

       Ms. Carter’s petition alleged that the pneumococcal and DTaP vaccines
Z.J.C. received on July 1, 2014, caused Z.J.C.’s condition and eventual death.
Pursuant to the explanation above, Ms. Carter becomes eligible for attorneys’ fees
and costs by presenting some evidence in the form of medical records or expert
reports that supports this allegation. Ms. Carter cited no evidence that the alleged
vaccines caused Z.J.C.’s condition and his eventual death. Ms. Carter did not cite
to any medical record in which a treating physician linked the vaccines to Z.J.C.’s
condition. Ms. Carter also did not file a report from an independently retained
expert who opined that the vaccines caused Z.J.C.’s condition and/or his death.
The absence of evidence means that there is no basis (reasonable or otherwise) for
the claim set forth in the petition. Ms. Carter, therefore, does not satisfy the
reasonable basis standard.

       Ms. Carter’s arguments in support of reasonable basis primarily focus on her
attorney’s diligence and not about the evidence supporting Ms. Carter’s claim. A
review of the attorney’s invoices reveals that all of the medical records, including
the autopsy materials, were gathered in one year. However, diligence requires
more than the collection of medical records. After obtaining the medical records,
the attorney had ample time to review and to assess those records without concern
of a looming statute of limitations deadline. Such a review would have revealed
the lack of evidence supporting the claim for which the petition was brought and
highlighted the need for expert consultation.

       Ms. Carter argues that “[p]etitioners are not required, nor should they be
required, to hire an expert and have an expert report completed prior to the filing of
a petition.” Pet’r’s Reply at 2. Ms. Carter cites no cases in support of this
argument. More importantly, the Vaccine Act is inconsistent with this argument.
As extensively discussed in Chuisano, 2013 WL 6234660, at *8-10, in crafting the
Vaccine Act, Congress expected petitioners to file front-loaded petitions with
“supporting documentation, demonstrating” five elements. 42 U.S.C. § 300aa–
11(c)(1). Notably, one of these items, which is set forth in paragraph (C), concerns
causation. The petition should include “supporting documentation” showing that
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the vaccinee “sustained . . . any injury . . . which was caused by a vaccine.” 42
U.S.C. § 300aa–11(c)(1)(C)(ii)(I). Ms. Carter’s failure to obtain this “supporting
documentation” regarding causation prior to filing the petition does not eliminate
the reasonable basis requirement.

       After Ms. Carter filed her petition, her attorney began to search for an
expert. Ms. Carter’s attorney maintains that an unnamed expert was willing to
support the claim but withdrew “based on some references in the medical records
that were personally offensive.” Pet’r’s Mot. at 3. Attorneys’ assertions are not
evidence. And allowing attorneys to justify their receipt of money with this type of
allegation would create numerous problems. See Chuisano, 2013 WL 6234660, at
*23.

       Finally, Ms. Carter’s need for a supporting expert is particularly acute in this
case. She has not identified any treating doctor who suggested that the vaccines
contributed to Z.J.C.’s death. Moreover, the records from the treating doctors
actually point to a cause other than the vaccines — a severe respiratory tract
infection. This information should have raised additional alarms that reasonable
basis could be established only with a report from an expert.

       For these reasons, Ms. Carter has not established “a reasonable basis for the
claim for which the petition was brought.” This showing is a condition for an
award of attorneys’ fees and costs to a non-prevailing party. Without this showing,
Ms. Carter is not eligible for an award of attorneys' fees and costs. Given this
outcome, there is no reason to determine whether the requested amount of
attorneys' fees and costs is reasonable.

                                     IV.    Conclusion

      Ms. Carter’s request for attorneys’ fees and costs is DENIED. 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. 2




       2
         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.

                                               6
IT IS SO ORDERED.

                        S/ Christian J. Moran
                        Christian J. Moran
                        Special Master




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