Ruppert v. HHS, (Fed. Cl. Spec. Mstr. Nov. 6, 2015) (Gowen, SM)
Attorney’s Fees and Costs – Reasonable Basis
The Special Master held, on a motion for reconsideration, that the fact that Petitioner had obtained a negative expert report in the early stages of the case did not preclude Petitioner from establishing a reasonable basis through other evidentiary support. Petitioner later obtained a supportive expert report from a different expert, although certain questions remained which would need to be addressed before Petitioner could ultimately prevail. However, Petitioner’s counsel was withdrawing and it was unclear whether these questions would or could be addressed in a future report.
Respondent unsuccessfully argued that a determination of whether a case is supported by reasonable basis must be made on what evidence currently exists, not what evidence might later exist. Of course, later-filed records supportive of Petitioner’s claim could not have been considered by the original expert. The special master held that the time had not yet arrived where it was clear that the necessary proof of the claim was not forthcoming, thus a reasonable basis continued to exist, and awarded fees and costs to withdrawing counsel.
Note: Interestingly, this special master did not reference the Claims Court’s decision in Chuisano v. HHS, and its “totality of circumstances” test for reasonable basis, rather, the special master relied upon the Circuit’s decision in Perreira and the Claims Court decision in McKellar.
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