Mercer v. Secretary of Health and Human Services ( 2022 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
**********************
SHANNON MERCER, *
* No. 17-1544V
Petitioner, * Special Master Christian J. Moran
*
v. *
* Filed: December 20, 2021
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * attorneys’ fees and costs;
* reasonable basis
Respondent. *
**********************
Ronald C. Homer and Lauren Faga, Conway, Homer, P.C., Boston, MA, for
petitioner;
Debra A. Filteau Begley, United States Dep’t of Justice, Washington, DC, for
respondent.
PUBLISHED DECISION DENYING ATTORNEYS’ FEES AND COSTS1
Represented by Attorney Lauren Faga, Shannon Mercer alleged that an
influenza (“flu”) vaccination she received on October 20, 2014, caused her to
suffer Bell’s palsy and sensory neuropathy. After she was unable to retain an
expert to opine on her case, Ms. Mercer moved for a decision dismissing her
petition. A decision dismissing her petition was subsequently issued. Mercer v.
Sec’y of Health & Hum. Servs., 2020 WL 571493 (Fed. Cl. Spec. Mstr. Jan. 7,
2020).
Ms. Mercer filed a motion for attorneys’ fees and costs on April 8, 2020,
arguing that she is eligible to receive attorneys’ fees and costs as the Vaccine Act
permits. Pet’r’s Mot., filed Apr. 8, 2020. The parties filed rounds of briefs on the
1
The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17,
2002), requires that the Court post this decision on its website. Anyone will be able to access
this decision via the internet (https://www.uscfc.uscourts.gov/aggregator/sources/7). Pursuant to
Vaccine Rule 18(b), the parties have 14 days to file a motion proposing redaction of medical
information or other information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions
ordered by the special master will appear in the document posted on the website
question whether reasonable basis supports the claims set forth in Ms. Mercer’s
petition and an oral argument was held on October 7, 2021.
Ms. Mercer does not qualify for an award of attorneys’ fees. She has not
established a reasonable basis for the assertion that her sensory neuropathy lasted
for more than six months. Second, she has failed to establish a reasonable basis for
the assertion that the flu vaccine caused her to suffer sensory neuropathy. Thus,
her motion is DENIED.
I. Procedural History
Ms. Mercer’s case has proceeded through two phases, the entitlement phase
and the attorneys’ fees and costs phase.
A. Entitlement Phase
Ms. Mercer alleged that she suffered from Bell’s palsy and sensory
neuropathy as a result of a flu vaccination she received on October 20, 2014. Pet.,
filed Oct. 17, 2017. After Ms. Mercer filed medical records over the course of
several months, the record was complete. Resp’t’s Status Rep., filed Aug. 3, 2018.
The Secretary recommended against an award of compensation, arguing that
Ms. Mercer had not shown that she experienced sequela of her Bell’s palsy for
more than six months. Resp’t’s Rep., filed Sept. 20, 2018, at 6. To support this
contention, the Secretary stated that the evidence showed that Ms. Mercer’s
symptoms persisted for two months at most, given that the last mention of Bell’s
palsy symptoms was on December 3, 2014, and that Ms. Mercer reported
resolution of her symptoms by December 12, 2014. Id. at 6-7; see also exhibit 12
at 49, 131, 133. The Secretary also argued that Ms. Mercer had not shown that her
Bell’s palsy or sensory neuropathy was caused-in-fact by her flu vaccination.
Resp’t’s Rep. at 8. To support this contention, the Secretary pointed to the lack of
support for causation from Ms. Mercer’s treating doctors, as well as a treating
doctor’s opinion that her symptoms represented evidence of cervical radiculopathy,
not Bell’s palsy or sensory neuropathy. Id.; see also exhibit 12 at 43.
The undersigned then ordered Ms. Mercer to file an affidavit answering
questions relevant to the issues raised in the Rule 4(c) report. Ms. Mercer filed this
affidavit on November 9, 2018. The parties engaged in settlement discussions,
which eventually concluded without a resolution on May 28, 2019. Resp’t’s Status
Rep., filed May 28, 2019.
2
Ms. Mercer attempted to retain an expert to opine on her case. However, she
was unable to find an expert and moved for a decision dismissing her petition on
December 19, 2019. In this motion, Ms. Mercer stated that she “has been unable to
secure further evidence required by the Court to prove entitlement to
compensation.” Pet’r’s Mot. ¶ 1. The undersigned issued a decision dismissing
the petition on January 7, 2020. 2020 WL 571493.
B. Attorneys’ Fees and Costs Phase
After judgment entered, Ms. Mercer filed a motion for attorneys’ fees and
costs. However, she did not explain why she meets the reasonable basis standard
for either causation or severity of illness. The Secretary responded to petitioner’s
motion without analyzing the issue of reasonable basis, stating that “[r]espondent
is satisfied the statutory requirements for an award of attorneys’ fees and costs are
met in this case.” Resp’t’s Resp., filed Apr. 22, 2020, at 2. The undersigned then
ordered the parties to brief the issue of reasonable basis. Order, issued Aug. 21,
2020.
Ms. Mercer submitted her brief on September 18, 2020; respondent
submitted his response on November 10, 2020; and petitioner submitted her reply
on December 8, 2020. Adjudication of Ms. Mercer’s motion was deferred while
the Federal Circuit considered the factors contributing to an analysis of reasonable
basis. The Federal Circuit provided additional guidance in Cottingham v.
Secretary of Health & Human Services, 971 F.3d 1337 (Fed. Cir. 2020). The
Federal Circuit then issued another decision regarding the reasonable basis
standard in James-Cornelius v. Secretary of Health & Human Services, 984 F.3d
1374 (Fed. Cir. 2021). The parties were afforded the opportunity to submit
additional briefs in light of these recent decisions. The parties submitted
supplemental briefs maintaining their positions on March 8, 2021, and April 7,
2021.
An oral argument was held on October 7, 2021. In the oral argument, Ms.
Mercer narrowed her argument considerably. While Ms. Mercer previously
asserted that she possessed a reasonable basis to assert the claim that the flu
vaccine caused her to suffer Bell’s palsy and the Bell’s palsy lasted more than six
months, Ms. Mercer stated that her argument regarding reasonable basis rested
only on the peripheral neuropathy claim. Tr. 5 (Ms. Faga: “[O]ur claim for
reasonable basis relies on a second alleged injury of the sensory neuropathy.”), 77
(Ms. Faga: “Our claim for reasonable basis in this case is based off of her injury
for sensory neuropathy alone.”). In addition, both parties resolutely opposed a
hearing to obtain more evidence. Thus, the matter is ready for adjudication.
3
II. Summary of Evidence Regarding Peripheral Neuropathy
Ms. Mercer received a flu vaccine on October 20, 2014, when she was 46
years old. Exhibit 1 at 1. Approximately one month later, Ms. Mercer informed
her primary care doctor, Dr. Mason-Zied, that she was experiencing numbness in
her lips, a muscle on the right side of her face twitched, and her ability to raise her
right eyebrow and smile was decreased. Exhibit 12 at 132-33 (Nov. 25, 2014).
When Dr. Mason-Zied examined Ms. Mercer, Ms. Mercer denied any symptoms in
her arms. Id.; see also Tr. 8. Dr. Mason-Zied diagnosed Ms. Mercer with Bell’s
palsy and prescribed a twelve-day course of steroids.2 Dr. Mason-Zied also stated
that Ms. Mercer should be allowed to miss work until December 1, 2014. Exhibit
12 at 132-33.
Ms. Mercer returned to Dr. Mason-Zied on December 3, 2014. Ms. Mercer
stated that she was better, and she could keep her eyes closed. Dr. Mason-Zied
assessed Ms. Mercer as having “neuropathy [secondary] to Bell’s palsy.” Exhibit
12 at 131.
The parties, as discussed below, differ in their interpretation of Dr. Mason-
Zied’s notation “neuropathy [secondary] to Bell’s palsy.” In short, the Secretary
maintains that the neuropathy is limited to Ms. Mercer’s face. But, Ms. Mercer
argues that the “neuropathy” to which Dr. Mason-Zied refers is a peripheral
neuropathy.
Ms. Mercer buttresses her contention by relying upon two documents
created during this litigation, years after the December 3, 2014 appointment. First,
Ms. Mercer attested in an affidavit, “Around Christmas, the paralysis in my face
improved, but I continued to feel very weak and had pain and numbness in my
fingers and toes. It took several months until I felt more like normal, but I still had
numbness and pain in my hands and feet.” Exhibit 7 (affidavit, signed Oct. 16,
2017) ¶ 4. In another affidavit, Ms. Mercer also stated that she missed three weeks
of work. Exhibit 10 (affidavit, signed Nov. 6, 2017) ¶ 8.
Second, Dr. Mason-Zied wrote a short “To whom it may concern” letter on
July 27, 2019. Dr. Mason-Zied stated Ms. Mercer “sought medical attention in
December 2014 due to sudden onset of numbness/weakness on the right side of her
2
Thus, she would have presumably finished this treatment course in mid-December and
Ms. Mercer admits in her affidavit that her Bell’s palsy symptoms resolved in December 2014.
Exhibit 7 ¶ 4 (“Around Christmas, the paralysis in my face improved . . . .”).
4
face. At that time she was also experiencing neuropathic symptoms in her hands
and feet.” Exhibit 16.
In any event, Ms. Mercer continued to perform her duties at her job. See
exhibit 13 (employment records), especially pages 289-91. Between January 2015
and March 2015, Ms. Mercer did not seek other medical attention.
Ms. Mercer’s next appointment with a medical professional occurred on
March 10, 2015. Ms. Mercer informed Dr. Mason-Zied that she was having
numbness in her hands, dizziness, headaches, and increased blood pressure.
Exhibit 12 at 130. The medical record contains no information about when these
problems began. Although Ms. Mercer was concerned that she might be suffering
from multiple sclerosis, she declined further workup, such as Dr. Mason-Zied’s
recommendation for an EMG. Id. Ms. Mercer reported numbness in her hands
again at an appointment on May 20, 2015, without stating when the numbness
began. Id. at 129. Ms. Mercer was “not interested in further eval[uation].” Id.
Later in 2015, after she received another flu vaccine on October 2, 2015, Ms.
Mercer reported that her lips and tongue began tingling. Exhibit 2 at 127 (October
9, 2015 appointment). Dr. Mason-Zied characterized this as “numbness
[secondary] to flu shot” and prescribed a steroid. Id.
More than a year later, on May 2, 2017, Ms. Mercer reported to Dr. Mason-
Zied “numbness and tingling in upper extremities.” Exhibit 12 at 57. She also
reported that these problems “started [a] couple of [years] ago.” Id.
Ms. Mercer consulted a neurologist, Dr. Ling, on May 15, 2017. Exhibit 12
at 49-51. At this appointment, she attributed her symptoms to her Bell’s palsy
following her October 2014 vaccination. She reported that following the October
2014 vaccination, she had facial numbness, which resolved. After her October
2015 vaccination, she experienced tingling in her left arm, hands, chest, and face,
which also resolved after an oral steroid. Id. at 49. For her most recent symptoms,
Ms. Mercer reported that in the last week, she developed numbness in her hands,
arms, chest, and face. Dr. Ling’s examination was essentially normal, and he did
not identify any sensory deficits. Id. at 52. Dr. Ling assessed Ms. Mercer with an
adjustment disorder and ordered an MRI for her cervical spine and an EMG.
The MRI revealed that Ms. Mercer had degenerative disc disease at C5-6
and stenosis at C4-5. Exhibit 11 at 6 (May 19, 2017). The EMG showed a focal
sensory neuropathy of the medial nerve in the left arm, and changes that could be
“focal muscle atrophy related.” Exhibit 12 at 45 (May 24, 2017).
5
After reviewing these studies, Dr. Ling diagnosed Ms. Mercer as suffering
from degenerative disc disease and cervical radiculopathy. Exhibit 12 at 43. Dr.
Ling’s diagnoses contribute to the parties’ debate over the reasonable basis for the
claim that the flu vaccine caused Ms. Mercer to suffer a peripheral neuropathy.
III. Standards for Adjudication
Petitioners who have not been awarded compensation (like Ms. Mercer here)
are eligible for an award of attorneys’ fees and costs when “the petition was
brought in good faith and there was a reasonable basis for the claim.” 42
U.S.C. § 300aa-15(e)(1). As the Federal Circuit has stated, “good faith” and
“reasonable basis” are two separate elements that must be met for a petitioner to be
eligible for attorneys’ fees and costs. Simmons v. Secʼy of Health & Hum. Servs.,
875 F.3d 632, 635 (Fed. Cir. 2017). Here, the Secretary has not raised a challenge
to Ms. Mercer’s good faith. Thus, the disputed issue is reasonable basis.
In Cottingham, the Federal Circuit stated that the evidentiary burden for
meeting the reasonable basis standard “is lower than the preponderant evidence
standard.” 971 F.3d at 1346. Something “more than a mere scintilla” might
establish the reasonable basis standard. Id. at 1356. Petitioners meet their
evidentiary burden with “objective evidence.” Id. at 1344. In categorizing medical
records as objective evidence, the Federal Circuit stated, “[m]edical records can
support causation even where the records provide only circumstantial evidence of
causation.” Id. at 1346. Finally, the Federal Circuit in Cottingham specified that
“[w]e make no determination on the weight of the objective evidence in the record
or whether that evidence establishes reasonable basis, for these are factual findings
for the Special Master and not this court.” Id. at 1347.
In its most recent opinion regarding the reasonable basis standard, the
Federal Circuit stated that medical records, affidavits, and sworn testimony all
constitute objective evidence to support reasonable basis. James-Cornelius, 984
F.3d at 1379-81. The Federal Circuit further clarified that “absence of an express
medical opinion on causation is not necessarily dispositive of whether a claim has
reasonable basis, especially when the case is in its early stages and counsel may
not have had the opportunity to retain qualified experts.” Id. at 1379 (citing
Cottingham, 971 F.3d at 1346). These two most recent decisions guide the
analysis regarding what types of evidence constitute objective evidence of
reasonable basis, as originally articulated in Simmons, though the ultimate
weighing of such evidence is left up to the special master.
6
IV. Analysis
A critical question is whether Ms. Mercer experienced numbness in her
hands in December 2014. In conjunction with a motion for attorneys’ fees and
costs, Ms. Mercer is not required to present preponderant evidence on this point.
Instead, she bears the burden of submitting sufficient objective evidence that
would support a finding that her assertion that she suffered a peripheral neuropathy
from a flu vaccine was supported by reasonable basis.
The strongest evidence regarding Ms. Mercer’s health in November and
December 2014 is the set of records Dr. Mason-Zied created in November and
December 2014. Cucuras v. Sec’y of Health & Hum. Servs., 993 F.2d 1525, 1528
(Fed. Cir. 1993) (crediting medical record evidence over a petitioner’s
contradictory testimony and stating “[m]edical records, in general, warrant
consideration as trustworthy evidence . . . With proper treatment hanging in the
balance, accuracy has an extra premium.”). In Dr. Mason-Zied’s earlier record,
she documented Ms. Mercer was having problems in her face and that Ms. Mercer
was not having trouble in her arms. Exhibit 12 at 132-33 (Nov. 25, 2014). In the
follow-up appointment, Dr. Mason-Zied recorded Ms. Mercer’s improvement in
problems in her face. Id. at 131. Dr. Mason-Zied did not write that Ms. Mercer
was having numbness in her hands or feet in the December 3, 2014 medical record.
See Tr. 9 (Ms. Filteau-Begley: “There’s no assessment of fingers, toes, arms, legs”
in the December 3, 2014 medical record).
Dr. Mason-Zied’s assessment was “neuropathy [secondary] to Bell’s palsy.”
Exhibit 12 at 131. A natural reading of this record is that Ms. Mercer was having
problems in the nerves located in her face. Nothing in Dr. Mason-Zied’s
November 25, 2014 medical record or her December 3, 2014 medical record
suggests that nerve problems extended beyond Ms. Mercer’s face into her
periphery. Actually, Dr. Mason-Zied’s determination that Ms. Mercer was not
having problems in her arms on November 25, 2014 constitutes affirmative
evidence weighing against a finding of peripheral neuropathy.
Some additional evidence about Ms. Mercer’s health in December 2014
comes from her employment records. These records show that Ms. Mercer
continued to work. Exhibit 13. A fair inference from the employment records is
that any health problem did not incapacitate her. However, the overall value of the
employment records is relatively small as Ms. Mercer could have been
experiencing a low-level health problem but remained capable of doing her job.
See exhibit 15 (petitioner’s affidavit, signed Oct. 15, 2018) ¶ 10.
7
The employment records are more meaningful for their conflict with Ms.
Mercer’s affidavit regarding damages. Ms. Mercer attested that she “missed
approximately three (3) weeks of work.” Exhibit 10 (affidavit, signed Nov. 6,
2017) ¶ 8. While this assertion was an estimate, the employment records show that
she worked at least 40 hours a week in all but one week after her vaccination on
October 20, 2014 (and in that one other week, she worked 32 hours). Exhibit 13 at
290. In this conflict, the employment records are almost certainly accurate due to
the Department of Labor’s requirement to keep accurate records. See 29 C.F.R. pt.
516.3 It is much more likely that Ms. Mercer’s recollection about missing
approximately three weeks of work approximately three years earlier is not
accurate.
The question about the accuracy of Ms. Mercer’s memory of events, in turn,
surfaces again when considering Ms. Mercer’s slightly earlier affidavit. On
October 16, 2017, Ms. Mercer attested, “Around Christmas, the paralysis in my
face improved, but I continued to feel very weak and had pain and numbness in my
fingers and toes.” Exhibit 7 (affidavit, signed Oct. 16, 2017) ¶ 4. To be clear, Ms.
Mercer’s testimonial assertions about when she experienced certain problems
constitute a form of objective evidence, relevant to determining whether Ms.
Mercer’s claim was supported by reasonable basis. James-Cornelius, 984 F.3d at
1379-81. Ms. Mercer argues that her affidavit testimony constitutes objective
evidence of the onset and severity of her symptoms. See Pet’r’s Br., filed Mar. 8,
2021, at 5. An affidavit, however, does not necessarily mean that a petitioner has
reasonable basis for each element of petitioner’s case. See Goodgame v. Sec’y of
Health & Hum. Servs., No. 17-339V, 2021 WL 5365635 (Fed. Cl. Oct. 29, 2021)
(ruling that a special master’s decision that petitioner lacked a reasonable basis to
assert her injury lasted more than six months was not arbitrary despite petitioner’s
affidavit).
While James-Cornelius directed special masters to consider assertions in
affidavits about which an affiant has first-hand information, James-Cornelius did
not require special masters to accept assertions automatically. Instead, James-
Cornelius expected that the special master would evaluate the evidence on remand.
An evaluation of the evidence relevant to reasonable basis is consistent with
the earliest binding precedent on reasonable basis, Perreira v. Secretary of Health
& Human Services, 33 F.3d 1375 (Fed. Cir. 1994). There, the special master
3
Although the employer noted that “Due to an update in the database systems in the year
2015, a complete set of records prior to January 01, 2015 cannot be provided,” exhibit 13 at 293,
the employer did provide some records showing Ms. Mercer’s employment after the vaccination.
8
found the opinion of petitioners’ expert “unsupported.” Id. at 1377. This
characterization of petitioners’ evidence implies that the special master did not
simply look at the face of the expert opinion. Instead, it appears that the special
master compared that evidence to the remaining evidence in the record to
determine that it was “unsupported.” Because the expert’s opinion was
“unsupported,” the special master was not arbitrary in finding that the petitioners in
Perreira lacked a reasonable basis to proceed to a hearing. Id.“Unsupported” is also an accurate description of Dr. Mason-Zied’s July 27,
2019 assertion that in December 2014, Ms. Mercer was “experiencing neuropathic
symptoms in her hands and feet.” Exhibit 16. Dr. Mason-Zied does not address
how she can recall, nearly five years later, how Ms. Mercer presented in December
2014. See Milik v. Sec’y of Health & Hum. Servs., 822 F.3d 1367, 1380-81 (Fed.
Cir. 2016) (ruling that the special master was not arbitrary in not crediting a
treating doctor’s clarification of a medical record the doctor created 16 years
earlier); Frette v. Sec’y of Health & Hum. Servs., No. 14-1105V, 2017 WL
7421013, at *15 (Fed. Cl. Spec. Mstr. Dec. 29, 2017) (declining to credit a letter
from a treating doctor about his memory of events occurring two years earlier that
were not reflected in his medical records). Dr. Mason-Zied also does not explain
why, if Ms. Mercer complained about neuropathic symptoms in her hands and feet
in December 2014, she (Dr. Mason-Zied) did not document that complaint. The
assertion that Ms. Mercer told Dr. Mason-Zied about neuropathic symptoms in
December 2014 is inconsistent with how Dr. Mason-Zied responded to complaints
of numbness in her hands, among other problems, in March 2015. Then, when Ms.
Mercer talked about those symptoms, Dr. Mason-Zied attempted to evaluate the
complaints with an EMG but Ms. Mercer denied any follow up. See exhibit 12 at
130. A similar pattern occurred in May 2015, when Dr. Mason-Zied again sought
to investigate the nature of Ms. Mercer’s reports of numbness. Exhibit 12 at 129.
In short, Ms. Mercer has not presented a sufficient quantum of objective
evidence to support the assertion that she experienced numbness in any extremity
in December 2014 with reasonable basis. She did submit some evidence (namely,
her October 16, 2017 affidavit and Dr. Mason-Zied’s July 29, 2019 letter).
However, the evidence, considered as a whole, does not rise to the level to support
a reasonable basis.
Without a reasonable basis for asserting that Ms. Mercer experienced
numbness in her arms or legs in December 2014, the petition’s claim that she
developed peripheral neuropathy due to the October 20, 2014 flu vaccination falls
short of the reasonable basis standard as well. As the Secretary argued (Tr. 14),
without knowing the onset of an alleged peripheral neuropathy finding that there is
9
objective evidence to support causation is difficult. The amount of time between
the vaccination (October 20, 2014) and when Ms. Mercer first reported numbness
in her hands to Dr. Mason-Zied (March 10, 2015) is more than four months.
Special masters have found that four months is too lengthy an amount of time for
which an inference of causation is appropriate. See, e.g., Caron v. Sec’y of Health
& Hum. Servs., No. 15-777V, 2017 WL 4349189, at *10 (Fed. Cl. Spec. Mstr. Sep.
7, 2017) (rejecting a five-month interval in the context of multiple vaccines and the
onset of a form of osteomyelitis), mot. for rev. denied, 136 Fed. Cl. 360, 389-90
(2018). In fact, special masters tend to draw a line at a two-month onset. See
Conte v. Sec’y of Health & Hum. Servs., No. 17-403V, 2020 WL 5743696, at *26
(Fed. Cl. Spec. Mstr. July 27, 2020) (rejecting a twelve-week onset in a flu-CIDP
case and remarking that eight weeks appears to be the maximum onset time frame
deemed reasonable in the Vaccine Program). While Dr. Mason-Zied’s March 10,
2015 medical record does not necessarily mark when Ms. Mercer began to
experience numbness in her hands, the lack of clear information about the
beginning of numbness in her hands simply highlights the overall lack of objective
evidence.
Moreover, during the treating doctors’ course of caring for Ms. Mercer, they
did not diagnose Ms. Mercer as suffering from a peripheral neuropathy. This lack
of diagnosis is another weakness in Ms. Mercer’s case because to receive
compensation, a petitioner must establish with preponderant evidence that she
suffers from the condition that the vaccination allegedly caused. Broekelschen v.
Sec’y of Health and Hum. Servs., 618 F.3d 1339, 1346 (Fed. Cir. 2010); see also
Tr. 49-52. Here, not only is there an absence of a contemporaneously created
diagnosis of peripheral neuropathy, there are also two different diagnoses:
degenerative disc disease and cervical radiculopathy that Dr. Ling made in 2017.
Exhibit 12 at 43. This alternative explanation for the numbness about which Ms.
Mercer first complained in March 2015 weakens Ms. Mercer’s assertion that she
suffered from peripheral neuropathy. Additionally, Dr. Ling stated that there was
“no EMG evidence of generalized large fiber peripheral neuropathy.” Id. at 45.
While the reasonable basis standard is less than the preponderance of evidence
standard, and, therefore, more easily satisfied, Ms. Mercer lacks a reasonable basis
for asserting that she suffered from a peripheral neuropathy.
Given that no treating doctor diagnosed Ms. Mercer with a peripheral
neuropathy, it, therefore, follows that no treating doctor stated that the flu
vaccination caused any peripheral neuropathy in Ms. Mercer. Ms. Mercer also did
not present the report from an expert retained in the litigation. While the lack of
expert or treater support is not dispositive to the determination of reasonable basis,
10
see James-Cornelius, 984 F.3d at 1379, there is a dearth of evidence regarding
causation. Ms. Mercer’s strongest evidence regarding causation is Dr. Mason-
Zied’s letter that Ms. Mercer should not receive future flu vaccinations and various
notes in medical records listing Fluzone as an allergy. Tr. 49; see also exhibit 5 at
12; exhibit 12 at 44, 127. However, Ms. Mercer has not clarified whether Dr.
Mason-Zied could have exempted Ms. Mercer from future flu vaccinations due to
the Bell’s palsy, which is not the basis for Ms. Mercer’s argument regarding
reasonable basis.
The listing of a flu vaccine allergy is similarly ambiguous. The notation
appears in the context of Ms. Mercer’s history, suggesting that Ms. Mercer (and
not a doctor) determined that she was allergic to the flu vaccine. Ms. Mercer’s
assessment about having an adverse reaction carries little, if any, weight in
determining the reasonable basis for her assertion that the flu vaccine harmed her.
See Solak v. Sec’y of Health & Hum. Servs., No. 14-869V, 2020 WL 9173158, at
*33 (Fed. Cl. Spec. Mstr. Feb. 19, 2020) (in the context of determining entitlement,
the special master gave little weight to a treater’s report of an allergy that appeared
to come from petitioner’s history). For these reasons, Ms. Mercer has not provided
sufficient evidence to a show a reasonable basis for her claim that the flu vaccine
caused her to suffer a peripheral neuropathy.
The finding that Ms. Mercer has not provided sufficient evidence to support
reasonable basis is based upon the entire record. This finding, necessarily, does
not include information that could have been obtained at a hearing. During the oral
argument, the Secretary noted that multiple pieces of evidence contain gaps,
reducing the value of that evidence. For example, with respect to Dr. Mason-
Zied’s July 27, 2019 letter, the Secretary maintained that the face of the letter did
not present foundational elements useful to assessing the letter’s reliability. Tr. 34-
38. But, when asked to explain why Dr. Mason-Zied’s letter was reliable, Ms.
Mercer did not directly answer the question, responding that her December 3, 2014
medical record found in exhibit 2 was enough to establish the reasonable basis for
the claim that the flu vaccine caused peripheral neuropathy. Tr. 32.
At a hearing, Dr. Mason-Zied could have been asked to explain her
December 3, 2014 record, in which Dr. Mason-Zied stated that Ms. Mercer
suffered a “neuropathy.” For the reasons discussed above, the interpretation that is
more consistent with Dr. Mason-Zied’s medical records created in 2014 is that Dr.
Mason-Zied was referring to a problem in Ms. Mercer’s facial nerves, not any
peripheral nerves. Similarly, under-oath testimony from Dr. Mason-Zied could
have shed some light on Dr. Mason-Zied’s basis for recommending against flu
vaccinations. See exhibit 5 at 12. And yet, when the possibility of a conducting a
11
hearing was raised with Ms. Mercer, Ms. Mercer strongly opposed obtaining more
evidence. Tr. 58-63. The Secretary, too, resisted the notion of obtaining additional
evidence. Tr. 63-72.
Because both parties have had an opportunity to present their evidence, a
hearing is not required. See Vaccine Rule 3(b)(2). Because Ms. Mercer, the party
with the burden of proving that reasonable basis supports the claim set forth in her
petition (McKellar v. Sec’y of Health & Hum. Servs., 101 Fed. Cl. 297, 305
(2011)), argued against having a hearing, the undersigned will not schedule one.
“A request for attorney’s fees should not result in a second major litigation.”
Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).
V. Conclusion
Ms. Mercer’s eligibility for an award of attorneys’ fees and costs depends
upon her establishing a reasonable basis for the claim set forth in the petition.
While the reasonable basis standard is easier to satisfy than the preponderance of
the evidence standard, Ms. Mercer has failed to present sufficient objective
evidence that would ground a finding of reasonable basis that her flu vaccination
caused her to suffer a peripheral neuropathy. Accordingly, Ms. Mercer’s motion
for an award of attorneys’ fees and costs is DENIED.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
12