Attorney’s Fees – Reasonable Basis


Miller v. HHS, (Fed. Cl. Spec. Mstr. Jun. 3, 2016) (Hastings, SM)

The court denied most of the fees and costs requested, finding it was not reasonable for Petitioners to take to trial their very weak case alleging that autism was vaccine-related. The Court awarded fees for the original participation in the OAP, however, the reasonable basis for the claim ended at the point where petitioner could find no expert to support the case but counsel’s own mother, a family practitioner, and expert whose previous vaccine program performance had been harshly criticized.

The court held “[t]he only reasonable course for Petitioners’ counsel at that time, given the facts in the medical record, and if the only expert that he could obtain was Dr. Cave, was either to persuade Petitioners to abandon their claim, or, failing that, to withdraw from the case. For Mr. Cave to incur the expense of Dr. Cave’s defective reports, then to push this case forward to an evidentiary hearing on the basis of theories that were so unpersuasive, and so contrary to the actual medical records of A.H.M., was simply not reasonable.” Ultimately the court characterized the case as frivolous.

The court warned, once again, that cases that have proceeded out of the OAP risk denial of fees and costs on reasonable basis grounds. Petitioners have tried to avoid the conclusions of the OAP test cases by alleging that a child suffered a vaccine-caused “encephalopathy” that resulted in “autistic-like features,” or that a child had an underlying “mitochondrial disorder” that somehow made the child more vulnerable to injuries by vaccines. These cases, the court observed, have typically involved expert witnesses who were quite underqualified to opine on the vaccine-causation issues at hand, and/or presented theories with no substantial scientific merit, and/or disregarded the facts contained in the medical records of the case.

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