Cooper v. HHS, (Fed. Cl. Spec. Mstr. Apr. 25, 2016) (Gowen, SM)
In this case alleging anaphylaxis and seizures caused by Hepatitis B vaccination, counsel for Petitioner indicated they no longer wished to proceed with the case and the case was ultimately dismissed. Respondent argued there was no “factual basis [for the claim] in the medical records provided,” thus no reasonable basis to award fees and costs.
The special master noted that the totality of circumstances test governs the analysis of reasonable basis controversies. Further, the court explained that reasonable basis looks at the feasibility of the claim, rather than the likelihood of success.
The court held there was a reasonable basis based on the medical records, including a pediatric visit which stated that the child had a possible allergy to the Hepatitis B vaccine and included a plan to hold additional doses “for now.” Additionally, an allergist had determined that had a vaccine reaction had occurred and recommended avoiding future doses. Finally, the court noted that an expert opinion on causation was not necessary for a reasonable basis.
The court did not award 56 hours of paralegal time requested, having determined that an earlier review by a more senior attorney, as opposed to four associates, would have resulted in the case’s dismissal much sooner. The general order #9 requirement of a signed client statement regarding costs was satisfied by paralegal affidavits outlining good faith efforts to communicate with a client who was unresponsive to both the attorneys and to the court.
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