Reiling v. HHS, (Fed. Cl. Spec. Mstr. Jun 24, 2016) (Moran, SM)
Counsel sought an award of interim fees and costs after withdrawing as counsel. The Court ultimately held that reasonable basis had not been demonstrated as of yet, although it could be later as the petitioner was proceeding pro se. Thus, an interim fee award could not be made. The legal standard applied was that “some” evidence, albeit not preponderant evidence, has to exist in support of the claim. (Ed. Note – a totality of circumstances analysis was not applied).
Multiple factors were considered on the issue of reasonable basis. The petition had alleged a latex allergy resulted in injury, however, no latex allergy existed. An expert report was later filed asserting that Tdap vaccine exacerbated an underlying traumatic brain injury. This theory was problematic because there was little to no evidence that petitioner suffered from a traumatic brain injury. Even if she had, the expert report did not indicate how her condition would have progressed any differently absent the vaccine. Also likely important to the Court’s analysis was the observation that the expert was a doctor of osteopathic medicine who previously specialized in AIDS/HIV but since 2010 was the medical director of a weight loss clinic and consultative practice involving has centered on the diagnosis and treatment of autonomic-related disorders such as traumatic brain injury and concussion, POTS, chronic fatigue, migraine headaches, orthostasis, poor memory and concentration, and irritable bowel syndrome.