Interim Fees; Reasonable Basis; Excessive Time


Sanchez v. HHS,  (Fed. Cl. Spec. Mstr. Feb. 17, 2016) (Moran, SM)

Petitioner moved for interim fees pre-hearing.  The special master found that a reasonable basis existed at least through the point in time where genetic testing was obtained on the child, and awarded fees through that date. Respondent challenged reasonable basis notwithstanding that Petitioner had multiple experts and was ready to try the case.

What this case adds to the law of reasonable basis is this: Respondent now characterizes the showing required for reasonable basis as “petitioners must show that they filed a claim that was supported by the medical records [meaning a treater opinion on causation] or by a medical [expert] opinion.”  This is based on the “some evidence” test announced by Special Master Moran in Graham, but not (yet?) followed by other special masters.  The alternate totality of circumstances test crafted in Chuisano is not mentioned in this opinion.

Here, Respondent argued that not even the expert opinion supported reasonable basis, because it relied on factual information from the parties’ affidavits that was disputed.  However, the special master found that was in keeping with long-standing program practice.  However, once findings of fact were made, the expert had to rely on those facts.  The discovery of genetic mutations and the diagnosis of Leigh’s syndrome complicated the assessment of the reasonable basis, after that point in time, thus the special master deferred on the issue of reasonable basis from that point forward.

In a separate holding, the special master found that 30 hours of legal research prior to filing the petition was excessive and to some extent premature.  He awarded only five hours, the amount of time he thought needed for counsel to reacquaint herself with seizure cases and to consider how her case compared and contrasted with them.

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