Denial of HHS Appeal of Interim Fees; Reasonable Basis


Rehn v. HHS, (Fed. Cl. Mar. 30, 2016) (Lettow, J)

The special master had awarded interim fees to withdrawing counsel.  Respondent had challenged reasonable basis.  On appeal, the judge affirmed the applicability of the “totality of circumstances” test for reasonable basis.  Apparently, these circumstances included voluminous records, a complex medical situation following flu vaccination and illness shortly after the vaccination.  Respondent argued that no reasonable basis existed without an expert opinion, and it was unreasonable to rely on Petitioner’s assertion that his treaters supported causation.  At the very least, reasonable basis was lost when a physician assistant from the practice declined to opine on causation.

The reviewing judge acknowledged that Petitioner’s attorney has a duty to actively investigate a case before filing, however the attorney had gathered extensive medical records and had “formed a view” of how Petitioner’s circumstances fit within the framework of the vaccine program.  He then engaged in an effort to obtain a more definitive diagnosis and a medical opinion.  It was not unreasonable to keep looking for one even after the treater declined to provide an opinion.  There was no clear error in the Special Master’s finding of reasonable basis.  Respondent also failed to convince the judge that it was an abuse of discretion to award fees to a withdrawing attorney, rather than make him wait until the conclusion of the case.

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