Thatcher v. Secretary of Health and Human Services
17-1628
| Fed. Cl. | Sep 21, 2021Background
- Petitioner Timothy Thatcher received an influenza vaccine on October 22, 2015 and developed Guillain–Barré syndrome (GBS) with symptom onset about 16 weeks after vaccination.
- Thatcher filed a Vaccine Program claim; the claim was dismissed for lack of proof on April 12, 2019.
- Thatcher moved for an award of attorneys’ fees and costs under the Vaccine Act.
- His only causation support was a brief expert report by Dr. Jack Schim consisting essentially of two conclusory sentences asserting the flu vaccine "more likely than not" caused GBS.
- The special master warned Thatcher that the expert opinion was conclusory, gave him an opportunity to supplement the record, and Thatcher did not submit additional evidence or argument on reasonable basis.
- The special master independently reviewed the record, found no objective evidence establishing reasonable basis, and denied the motion for attorneys’ fees and costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petitioner is eligible for attorneys’ fees and costs under the Vaccine Act (good faith and reasonable basis) | Thatcher sought fees; relied on Dr. Schim’s causation opinion | No reasonable basis shown; evidence is insufficient | Denied — petitioner failed to show reasonable basis (thus not eligible) |
| Whether Dr. Schim’s report suffices as objective evidence of reasonable basis | The expert opined, to a reasonable degree of medical certainty, that the vaccine more likely than not caused GBS | The opinion is conclusory and unsupported; Perreira and other precedents deem such opinions insufficient | Denied — the two-sentence conclusory opinion did not provide objective support for reasonable basis |
| Whether the special master must independently review the record when petitioner fails to respond to orders | Thatcher provided no further argument after being warned | Special master may and should independently assess objective evidence for reasonable basis | Special master independently reviewed record (per McIntosh) and found no objective support; fee motion denied |
Key Cases Cited
- Simmons v. Sec'y of Health & Human Servs., 875 F.3d 632 (Fed. Cir. 2017) (good‑faith and reasonable‑basis are separate eligibility elements for fee awards)
- Cottingham v. Sec'y of Health & Human Servs., 971 F.3d 1337 (Fed. Cir. 2020) (objective evidence, including medical records, must be considered in reasonable‑basis analysis)
- James‑Cornelius v. Sec'y of Health & Human Servs., 984 F.3d 1374 (Fed. Cir. 2021) (medical records, affidavits, and testimony count as objective evidence; lack of explicit medical causation opinion is not necessarily dispositive)
- Perreira v. Sec'y of Dep't of Health & Human Servs., 33 F.3d 1375 (Fed. Cir. 1994) (unsupported, conclusory expert opinions do not establish causation or reasonable basis)
- McIntosh v. Sec'y of Health & Human Servs., 139 Fed. Cl. 238 (2018) (special masters have an independent obligation to review fee applications)