971 F.3d 1337
Fed. Cir.2020Background
- In October 2015 Susan Cottingham filed a Vaccine Act petition on behalf of her then-minor daughter K.C., alleging that a July 5, 2012 Gardasil vaccination caused headaches, syncope/dizziness, and menstrual problems. Counsel filed just before a potentially expiring three-year limitations period.
- Medical records show recurring headaches, dizziness/syncope in 2012–2013, and amenorrhea noted in 2015; the Gardasil package insert (in the record) lists dizziness, headache, and syncope as possible adverse reactions.
- Cottingham could not obtain a favorable expert opinion; she voluntarily dismissed the petition in October 2016. Counsel then sought attorneys’ fees and costs under 42 U.S.C. § 300aa-15(e)(1).
- The Special Master initially denied fees for lack of reasonable basis; the Claims Court vacated and remanded instructing a totality-of-the-circumstances test that could consider the looming statute of limitations. After this court’s decision in Simmons (statute-of-limitations and counsel conduct are subjective and cannot supply reasonable basis), the case was remanded again.
- On remand the Special Master awarded fees based on K.C.’s affidavit; the Claims Court vacated that award (citing Simmons) and ordered reassessment without considering the statute of limitations. The Special Master then denied fees again, finding “no evidence” of causation.
- The Federal Circuit vacated and remanded, concluding the Special Master abused his discretion by finding no evidence when objective evidence (K.C.’s medical records together with the Gardasil package insert) was in the record; the court reaffirmed that reasonable-basis review is objective and may employ a totality-of-the-circumstances approach so long as it relies on objective evidence (not attorney conduct or looming statutes of limitations).
Issues
| Issue | Plaintiff's Argument (Cottingham) | Defendant's Argument (Secretary) | Held |
|---|---|---|---|
| Whether Simmons eliminated the Claims Court’s "totality of the circumstances" test for reasonable-basis inquiries | Simmons only excluded two subjective factors (looming SOL and attorney conduct); otherwise totality still applies | Simmons requires an objective, evidence-based standard and effectively rejects totality because it invites subjective factors | Court: Totality-of-the-circumstances remains permissible but must be objective; Simmons did not abolish the test—subjective factors (SOL, counsel conduct) must not be considered |
| Whether the Special Master abused his discretion in denying attorneys’ fees by finding no objective evidence of causation | Medical records + K.C.’s affidavit and the Gardasil package insert provide objective, circumstantial evidence supporting reasonable basis | No retained expert and treating records lack causation opinions; therefore no reasonable basis | Court: Special Master’s “no evidence” finding was clearly erroneous because objective evidence (medical records paired with the Gardasil package insert) existed; vacated and remanded for reconsideration |
Key Cases Cited
- Simmons v. Secretary of Health & Human Services, 875 F.3d 632 (Fed. Cir. 2017) (looming statute of limitations and counsel conduct are subjective and do not provide a reasonable basis for the claim)
- Cloer v. Secretary of Health & Human Services, 675 F.3d 1358 (Fed. Cir. 2012) (discusses Program purpose and the difficulty of causation showing, especially for novel vaccines)
- Chuisano v. United States, 116 Fed. Cl. 276 (Fed. Cl. 2014) (identifies an objective, totality-of-the-circumstances approach and nonexclusive factors for reasonable-basis analysis)
- Harding v. Secretary of Department of Health & Human Services, 146 Fed. Cl. 381 (Fed. Cl. 2019) (medical records can constitute objective evidence supporting causation for reasonable-basis purposes)
- Milik v. Secretary of Health & Human Services, 822 F.3d 1367 (Fed. Cir. 2016) (appellate court should not reweigh factual evidence or reassess credibility)
- In re Durance, 891 F.3d 991 (Fed. Cir. 2018) (defines when an agency decision constitutes an abuse of discretion)
- Rodriguez v. Secretary of Health & Human Services, 632 F.3d 1381 (Fed. Cir. 2011) (standard of review for Special Master decisions under the Vaccine Act)