Stacey James-Cornelius, on Behalf of Her Minor Child, E. J. v. Secretary of Health and Human Services

United States Court of Appeals
for the Federal Circuit
______________________
STACEY JAMES-CORNELIUS, ON BEHALF OF
HER MINOR CHILD, E. J.,
Petitioner-Appellant
v.
SECRETARY OF HEALTH AND HUMAN
SERVICES,
Respondent-Appellee
______________________
2019-2404
______________________
Appeal from the United States Court of Federal Claims
in No. 1:17-vv-01616-LKG, Judge Lydia Kay Griggsby.
______________________
Decided: January 8, 2021
______________________
ANDREW D OWNING , Van Cott & Talamante, PLLC,
Phoenix, AZ, argued for petitioner-appellant.
JULIA COLLISON , Vaccine/Torts Branch, Civil Division,
United States Department of Justice, Washington, DC, ar-
gued for respondent-appellee. Also represented by
JEFFREY B. CLARK , ALEXIS B. BABCOCK , C. SALVATORE
D'ALESSIO , CATHARINE E. REEVES .
_____________________
Before O’M ALLEY, R EYNA, and CHEN , Circuit Judges.
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REYNA, Circuit Judge.
Appellant Stacey James-Cornelius challenges the deci-
sion of the United States Court of Federal Claims affirming
the Special Master’s denial of attorneys’ fees for her vac-
cine injury compensation claim. Ms. James-Cornelius con-
tends that the Special Master erred in concluding she had
no reasonable basis for her claim. We conclude that the
Special Master failed to consider relevant objective evi-
dence in conducting her reasonable basis analysis. We
thus vacate the denial of fees and remand for further pro-
ceedings.
BACKGROUND
Ms. James-Cornelius filed a petition with the United
States Court of Federal Claims (“Claims Court”) for vaccine
injury compensation under the National Vaccine Injury
Compensation Program. Ms. James-Cornelius alleged that
her seventeen year old son, E.J., had suffered from auto-
nomic dysfunction (i.e., dysautonomia), postural orthos-
tatic tachycardia syndrome (“POTS”), and other symptoms
as a result of receiving three shots of the human papilloma
virus (“HPV”) vaccine, Gardasil®. J.A. 17–24. Ms. James-
Cornelius’s October 27, 2017 petition, accompanied by
sworn affidavits from her and her son, alleged that E.J. was
administered doses of the Gardasil ® vaccine on October 30,
2014, December 23, 2014, and May 27, 2015. Id. at 17, 26–
27, 31–32. Within a few days after receiving his first HPV
vaccine on October 30, 2014, E.J. felt ill and fatigued, and
soon began experiencing severe headaches and vomiting
three to four times per week. Id. at 18–19, 26, 31. After
his second dose on December 23, 2014, his symptoms pro-
gressed. His headaches turned to severe migraines accom-
panied by vomiting and sensitivity to light. Id. at 19–20,
27, 32. In April 2015, E.J. was diagnosed with mononucle-
osis, and by early May 2015, he was confirmed as cleared
of his infection. Id. at 20, 27, 32.
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JAMES - CORNELIUS v. HHS 3
According to the petition and the related affidavits, af-
ter E.J. received his third dose of Gardasil ® on May 27,
2015, his body pains and vomiting worsened again. Id. at
20–21, 27–30, 32–33. Prior to this last dosage, E.J. vomited
seven to fifteen times per day, which increased after the
third dose to a range of twenty to thirty-two times per day.
Id. at 20, 27–28, 32–33. E.J. stated in his affidavit that he
was “always dizzy” and fainted several times while run-
ning. Id. at 27. E.J. also stated his bones “felt like they
were breaking every time [he] walked.” Id. He also began
to experience diarrhea and stomachaches. Id. at 29. E.J.
alleged that for many months thereafter he continued to
suffer from debilitating symptoms, including dizziness
while using the stairs, fainting, weakness, pain, and vom-
iting that prevented him from attending school and partic-
ipating in regular activities. Id. at 20–22, 27–30, 32–33.
In further support of the petition, Ms. James-Cornelius
submitted medical records dated between December 2014
and April 2016, which are summarized in the Special Mas-
ter’s decision. Id. at 71–73. The records confirmed the
dates of E.J.’s three Gardasil ® vaccinations. Id. at 71–72.
While there are no records of any medical visits between
his first and second vaccinations, the records document his
diagnosis with mononucleosis in April and early May of
2015. See id.
E.J.’s medical records also document a series of medical
visits, symptoms, and diagnoses after his third Gardasil ®
vaccination in May 2015. For example, on “June 18, 2015,
E.J. was seen by a nurse practitioner for ‘abdominal pain,
a change in bowel habit, coughing, headaches and a sore
throat.’” Id. at 72. The nurse practitioner diagnosed him
with “a sore throat, pharyngitis, and bilateral thoracic back
pain.” Id. Two months later, on August 11, 2015, E.J. vis-
ited the emergency room after suffering from “headaches,
vomiting, diarrhea, back pain, muscle aches and lighthead-
edness” for one week, and he was diagnosed with malaise
and fatigue. Id. On September 7, 2015, E.J. returned to
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JAMES - CORNELIUS v. HHS 4
the emergency room. Id. The physician noted that he may
be suffering from “prolonged sequela from mononucleosis,”
but he was discharged the same day after “reassuring” test
results. Id. On January 11, 2016, E.J. was seen by his
former care provider, Dr. Kim, for fever, back pain, nausea,
vomiting, diarrhea, leg pain, light sensitivity, and episodes
that felt like his “heart was skipping.” Id. On January 22,
2016, E.J. was seen by a cardiologist for syncope during or
immediately after exercise. Id. The summary of that visit
referenced a previous tentative diagnosis of POTS. The
cardiologist indicated his impressions that E.J. had been
experiencing “syncope, neurocardiogenic (‘POTS’).” Id.
On January 29, 2016, E.J. visited Dr. Kim again and
complained of vomiting, weakness, fatigue, and back pain.
Id. at 67. Dr. Kim’s visit summary contained the note,
“??VAERS” (the acronym for the Vaccine Adverse Event
Reporting System), next to a similar note including ques-
tion marks next to the phrase, “chronic fatigue syndrome.”
Id. at 67.
E.J.’s medical visits and diagnoses continued over the
following months. On February 3, 2016, E.J. went to the
emergency room due to vomiting. Id. at 72–73. E.J.’s med-
ical tests were “unremarkable,” and the hospital dis-
charged him on the same day. Id. On February 9, 2016,
E.J. visited a new cardiologist for “syncope and question of
POTS” and underwent a tilt-table test. Id. at 73. On April
18, 2016, E.J. followed up with the cardiologist, who ex-
plained that the tilt-table test’s results were unremarka-
ble. Id. Based on E.J.’s history, physical examination, and
the tilt-table test results, the cardiologist diagnosed him
with dysautonomia. Id.
In addition to these medical records, Ms. James-Cor-
nelius’s petition identified three medical articles hypothe-
sizing that HPV vaccines, including Gardasil®, can cause
dysautonomia and POTS. Id. at 22–23. The petition also
alleged that the increasing severity of his symptoms after
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JAMES - CORNELIUS v. HHS 5
receiving subsequent doses of the Gardasil® vaccine is “ev-
idence of re-challenge” and that the pattern of worsening
reactions is “strongly probative of a causal relationship” be-
tween the vaccine and E.J.’s symptoms. Id. at 23. Further,
the petition alleged symptoms such as headache and syn-
cope, id. at 71–73, symptoms listed in the Gardasil ® pack-
age insert as potential side effects associated with vaccine
administration, Appellant’s Br. 25.
After filing the petition, Ms. James-Cornelius and her
attorneys unsuccessfully attempted to obtain additional
medical records relating to urgent care visits that Ms.
James-Cornelius believed took place between E.J.’s first
and second vaccinations. Id. at 58–60. After she sought
and obtained additional time to file the outstanding medi-
cal records, she moved to dismiss her petition. Id. at 41–
42. She explained in her motion that she and her counsel
had worked unsuccessfully to obtain the missing records
and that “an investigation of the facts ha[d] demonstrated
that she [would] likely be unable to prove that she [was]
entitled to compensation in the Vaccine Program.” Id. at
41–42.
After the dismissal, Ms. James-Cornelius sought
$17,111.12 in attorneys’ fees and costs under
42 U.S.C. § 300aa-15(e)(1), asserting that she had filed her
petition in good faith and with a reasonable basis. Id. at
68–69. The Special Master denied the request, concluding
that Ms. James-Cornelius’s petition lacked a reasonable
basis. Id. at 68–76. The Special Master noted that Ms.
James-Cornelius and her counsel had discussed the need
to obtain missing medical records for months before filing
the petition and had found that the medical records she
filed were insufficient to establish that she had a feasible
claim. Id. at 74–75. The Special Master also reasoned that
the affidavits provided by Ms. James-Cornelius and E.J.
did not constitute objective evidence supporting a reasona-
ble basis, but instead reflected only a subjective belief that
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JAMES - CORNELIUS v. HHS 6
E.J. was injured by the vaccine. Id. at 75. The Claims
Court affirmed the denial of attorneys’ fees. Id. at 1.
Ms. James-Cornelius appeals the Claims Court’s deci-
sion. We have jurisdiction under 28 U.S.C. § 1295(a)(3) and
42 U.S.C. § 300aa-12(f).
D ISCUSSION
We address three main arguments raised by Ms.
James-Cornelius. First, Ms. James-Cornelius contends
that an express medical opinion was not required for her to
satisfy the reasonable basis standard for attorneys’ fees.
Appellant’s Br. 21, 28–29. Second, she argues that the af-
fidavits she submitted in support of her petition provide
objective evidence and should not be deemed entirely sub-
jective in nature. Id. at 30–31; Reply Br. 3 n.1. Third, she
contends that efforts made by her counsel to obtain addi-
tional medical records do not evince a lack of a reasonable
basis for the petition. Appellant’s Br. 17–23.
Following receipt of a petition for compensation under
the National Vaccine Injury Compensation Program, the
Claims Court designates a special master to issue a deci-
sion on whether compensation should be provided and, if
so, the amount of the compensation. 42 U.S.C. § 300aa-
12(d). The Claims Court has jurisdiction to review the spe-
cial masters’ decisions. Id. § 300aa-12(e)(2). The Claims
Court may uphold the special master’s findings of fact and
conclusions of law, set aside findings of fact or conclusions
of law that are “arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law,” or remand
the petition to the special master for further action as di-
rected by the Claims Court. Id. If the petitioner does not
seek review by the Claims Court, or if the Claims Court
upholds the special master’s decision, then the Claims
Court enters judgment in accordance with the special mas-
ter’s decision. Id. § 300aa-12(e)(3).
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This Court has jurisdiction to review the judgment is-
sued by the Claims Court. Id. § 300aa-12(f). Specifically,
we review a special master’s denial of attorneys’ fees and
costs under the same standard as the Claims Court and
will affirm unless the special master’s decision is “arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” Cottingham on Behalf of K.C. v.
Sec’y of Health & Human Servs., 971 F.3d 1337, 1345
(Fed. Cir. 2020) (citation omitted); see also 42 U.S.C.
§§ 300aa-12(e)(2)(B). We review de novo a special master’s
application of the law. Simmons v. Sec’y of Health & Hu-
man Servs., 875 F.3d 632, 635 (Fed. Cir. 2017).
When a petitioner is denied compensation for a claim,
she may still obtain compensation to cover reasonable at-
torneys’ fees and other costs “if the special master or court
determines that the petition was brought in good faith and
there was a reasonable basis for the claim for which the
petition was brought.” 42 U.S.C. § 300aa-15(e)(1); Cloer v.
Sec’y of Health & Human Servs., 675 F.3d 1358, 1360–61
(Fed. Cir. 2012). But even when these two requirements
are satisfied, a special master retains discretion to grant or
deny attorneys’ fees. See 42 U.S.C. § 300aa-15(e)(1); Cloer,
675 F.3d at 1362.
After briefing but before oral argument in this appeal,
this court issued its decision in Cottingham, addressing the
standard for determining whether a claim has a “reasona-
ble basis” for attorneys’ fees purposes. 971 F.3d at 1346.
Like Ms. James-Cornelius here, the petitioner in Cotting-
ham filed a claim for injuries allegedly related to the Gar-
dasil® vaccine and later voluntarily moved to dismiss her
claim. Id. at 1341. In Cottingham, we reiterated our prior
holding in Simmons that a reasonable basis analysis is lim-
ited to objective evidence, and that subjective considera-
tions, such as counsel’s subjective views on the adequacy of
a complaint, do not factor into a reasonable basis determi-
nation. See id. at 1344 (citing Simmons, 875 F.3d at 635).
We also explained that the quantum of objective evidence
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needed to establish reasonable basis for a claim, including
causation, is “lower than the preponderant evidence stand-
ard required to prove entitlement to compensation,” but
“more than a mere scintilla.” Cottingham, 971 F.3d at
1346. Applying those principles, we concluded that the
special master clearly erred in finding “no evidence” of cau-
sation after overlooking objective evidence in the record.
Id.
The parties disagree about Cottingham’s effect on this
case. While Ms. James-Cornelius contends that Cotting-
ham requires remand here, the Government maintains
that, even under Cottingham, the Special Master’s decision
remains adequately supported by the record. We agree
with Ms. James-Cornelius and vacate the Special Master’s
denial of attorneys’ fees for the following reasons.
First, the Special Master emphasized the absence of
any express medical opinion on causation. J.A. 74 (“None
of E.J.’s medical providers associated his symptoms with
his vaccinations.”). But absence of an express medical
opinion on causation is not necessarily dispositive of
whether a claim has a reasonable basis, especially when
the case is in its early stages and counsel may not have had
the opportunity to retain qualified experts. See Cotting-
ham, 971 F.3d at 1346 (explaining that medical records
paired with the vaccine’s package insert constituted objec-
tive medical evidence that may support finding a reasona-
ble basis of causation). Further, for purposes of
establishing a reasonable basis for a claim, “[m]edical rec-
ords can support causation even where the records provide
only circumstantial evidence of causation.” Id.
E.J.’s medical records here provide factual support for
Ms. James-Cornelius’s reasonable basis claim even in the
absence of an express medical opinion on causation. The
records showed that E.J. experienced a series of symptoms
after receiving Gardasil ® vaccinations, see, e.g., J.A. 71–73,
including headache and syncope, adverse reactions recited
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in the vaccine’s package insert, Appellant’s Br. 25. The pe-
tition further alleged that the increase in his symptoms’ se-
verity after his third dose suggested a “rechallenge,” which
has been recognized as a form of causation evidence. J.A.
23; see, e.g., Capizzano v. Sec’y of Health & Human Servs.,
440 F.3d 1317, 1322 (Fed. Cir. 2006) (noting the special
master’s reliance on evidence of a rechallenge, which oc-
curs when “a patient who had an adverse reaction to a vac-
cine suffers worsened symptoms after an additional
injection of the vaccine”). The petition also documents a
medical diagnosis of dysautonomia and a working diagno-
sis of POTS for E.J.’s symptoms, as well as three medical
journal articles allegedly hypothesizing that these diseases
can be caused by the Gardasil® vaccine. J.A. 22–23. Fur-
ther, at least one physician, Dr. Kim, wrote “??VAERS” in
a medical report, suggesting Dr. Kim’s belief that E.J.’s
vaccines could have caused his symptoms. Id. at 67. No-
tably, the Special Master did not refer to Dr. Kim’s note in
her overview of E.J.’s medical history following E.J.’s third
dose of the vaccine. See id. at 72. The Special Master thus
overlooked that fact in reaching the conclusion that “[n]one
of E.J.’s medical providers associated his symptoms with
his vaccinations.” Id. at 74. This record reflects evidence
that could support finding a reasonable basis for a causal
relationship between vaccination and symptoms. Under
these circumstances, the lack of an express medical opinion
on causation did not by itself negate the claim’s reasonable
basis.
Second, the Special Master refused to consider the af-
fidavit testimony of Ms. James-Cornelius and E.J. on the
basis that a petitioner’s affidavit can never constitute ob-
jective evidence. See id. at 75 (“It is established in the Pro-
gram that a petitioner’s own statements are not ‘objective’
for purposes of evaluating reasonable basis.”). While lay
opinions as to causation or medical diagnosis may be
properly characterized as mere “subjective belief” when the
witness is not competent to testify on those subjects, the
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same is not true for sworn testimony as to facts within the
witness’s personal knowledge, such as the receipt of a vac-
cine and the timing and severity of symptoms. Cf. FED . R.
CIV. P. 56(c)(4) (allowing parties to support or oppose a mo-
tion for summary judgment based on affidavits or declara-
tions “made on personal knowledge” that “set out facts that
would be admissible in evidence, and show that the affiant
or declarant is competent to testify on the matters stated”);
FED . R. EVID . 701 (allowing lay witnesses to offer opinion
testimony if it is “rationally based on the witness’s percep-
tion,” “helpful to clearly understanding the witness’s testi-
mony or to determining a fact in issue,” and “not based on
scientific, technical, or other specialized knowledge within
the scope of Rule 702”). Indeed, for many medical symp-
toms or events—such as a headache and other pain, dizzi-
ness, nausea, and vomiting—the patient’s or a parent’s
testimony may be the best, or only, direct evidence of their
occurrence. Medical records related to those symptoms
would likely be based on the statements of those who expe-
rienced them. And while such medical records may indeed
serve as important corroborating evidence for evaluating
testimony’s credibility, we reject the Special Master’s broad
pronouncement that petitioners’ affidavits are categori-
cally “not ‘objective’ for purposes of evaluating reasonable
basis.” See J.A. 75.
E.J.’s and Ms. James-Cornelius’s affidavits provided
evidence—separate and apart from any subjective beliefs
they may have had about the cause of E.J.’s symptoms—
supporting their claim for compensation. For example, the
affidavits stated that E.J. had received Gardasil ® doses at
three times; that he suffered from a set of symptoms that
began shortly after he received his first dose; and that
those symptoms recurred with increasing severity after
each subsequent dose. See id. at 26–34. The petition also
alleged that these events suggested the occurrence of a
challenge-rechallenge event, which has been recognized as
a basis for establishing causation. See, e.g., Capizzano,
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440 F.3d at 1322. When taken together with the corrobo-
rating medical records included in the petition and the
Gardasil ® package insert, the factual testimony provided
by E.J. and Ms. James-Cornelius amount to relevant objec-
tive evidence for supporting causation. The Special Mas-
ter’s outright refusal to consider this testimony was error.
Third, the Special Master based her decision in part on
“counsel’s repeated attempts to collect additional records
and discuss the Program’s burden of proof prior to filing.”
J.A. 74. The Special Master reasoned that these efforts in-
dicate that the petitioner and her counsel lacked a reason-
able basis for her claim before she filed the petition. Id.
We agree with Ms. James-Cornelius that the Special Mas-
ter erred in deeming counsel’s efforts to collect additional
medical records to be evidence that the petition lacked a
reasonable basis. Whether a petition sets forth a reasona-
ble basis for a claim “is an objective inquiry unrelated to
counsel’s conduct.” Simmons, 875 F.3d at 636; Cotting-
ham, 971 F.3d at 1342. Subjective considerations, such as
counsel’s apparent desire to obtain additional evidence, do
not negate the objective sufficiency of evidence presented
in support of a claim. See Cottingham, 971 F.3d at 1344
(explaining that, unlike the subjective good faith test,
“[r]easonable basis, on the other hand, is an objective test,
satisfied through objective evidence” (internal citations
omitted)). By going beyond the allegations and evidence in
the petition, and instead looking to counsel’s conduct and
state of mind as a sign that a petition may be incomplete,
the Special Master misapplied the legal standard for deter-
mining a reasonable basis.
For these reasons, we conclude that the Special Master
clearly erred when conducting her reasonable basis analy-
sis of Ms. James-Cornelius’s claim. Because the decision to
deny attorneys’ fees rested solely on the absence of a rea-
sonable basis, we vacate that decision and remand for the
Special Master to determine, in her discretion, whether at-
torneys’ fees should be granted in this case. In exercising
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her discretion, the Special Master must articulate the basis
of any discretionary decision to grant or deny fees, keeping
in mind the Vaccine Act’s remedial objective of maintaining
petitioners’ access to willing and qualified legal assistance.
H.R. REP. 99-908, at 22 (1986), as reprinted in
1986 U.S.C.C.A.N. 6344, 6363 (stating that the Committee
“intends that the court make adequate provision for attor-
neys’ time and that the court exercise its discretion to
award fees in non-prevailing, good-faith claims”).
CONCLUSION
We have considered the parties’ remaining arguments
and find them unpersuasive. For the reasons set forth
above, we vacate the Special Master’s denial of attorneys’
fees and remand for further proceedings consistent with
this opinion.
VACATED AND REMANDED
COSTS
Costs to the appellant.
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