Chad Sheller, As Personal Representative of the Estate of Daniel Elias Sheller v. Secretary of Health and Human Services

United States Court of Appeals
for the Federal Circuit
______________________
CHAD SHELLER, AS PERSONAL
REPRESENTATIVE OF THE ESTATE OF DANIEL
ELIAS SHELLER,
Petitioner-Appellant
v.
SECRETARY OF HEALTH AND HUMAN
SERVICES,
Respondent-Appellee
______________________
2023-1746
______________________
Appeal from the United States Court of Federal Claims
in No. 1:18-vv-00696-SSS, Judge Stephen S. Schwartz.
______________________
Decided: November 18, 2024
______________________
ANNE TOALE, Maglio Christopher & Toale, P.A.,
Sarasota, FL, argued for petitioner-appellant. Also
represented by JENNIFER ANNE MAGLIO.
RACHELLE BISHOP, Torts Branch, Civil Division, United
States Department of Justice, Washington, DC, argued for
respondent-appellee. Also represented by BRIAN M.
BOYNTON, C. SALVATORE D'ALESSIO, HEATHER LYNN
PEARLMAN.
______________________
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SHELLER v. HHS 2
Before DYK, REYNA, and STOLL, Circuit Judges.
STOLL, Circuit Judge.
Petitioner-Appellant Chad Sheller seeks an award of
attorneys’ fees to cover costs in connection with his
voluntarily dismissed Vaccine Act petition, which he filed
on behalf of his son, Daniel, who tragically passed away
after receiving several vaccines. This case addresses
whether Mr. Sheller had a reasonable basis to rely on a
now-rejected medical theory of causation for the petition,
where the medical theory of causation was potentially
viable and even had success at the time the petition was
filed.
Petitioner appeals the decision of the Special Master
denying attorneys’ fees and costs, which the United States
Court of Federal Claims affirmed. Because the Special
Master abused his discretion in rejecting the Special
Master’s decision in Boatmon as supporting a reasonable
basis, we vacate and remand.
BACKGROUND
Two days after receiving several vaccinations over a
two-week span, Daniel passed away at the age of two
months. Petitioner then filed a petition for compensation
under the National Childhood Vaccine Injury
Compensation Program, 42 U.S.C. §§ 300aa-1 to -34
(“Vaccine Act”). Petitioner based his theory of causation—
an element of Vaccine Act claims, 42 U.S.C. §§ 300aa-
11(c)(1)(C)(ii), -13—on the “Triple Risk Model” of vaccine-
triggered sudden infant death syndrome (“SIDS”) proposed
by Dr. Douglas Miller, a pathologist. In short, the Triple
Risk Model posits that a vaccine can be an exogenous
stressor that triggers SIDS in otherwise-vulnerable
infants.
At the time Petitioner filed his Vaccine Act petition, the
Triple Risk Model had been found to provide a persuasive
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SHELLER v. HHS 3
theory of attributing SIDS to vaccine causation by a special
master in a different case. Boatmon v. Sec’y of Health &
Hum. Servs., No. 13-611V, 2017 WL 3432329 (Fed. Cl.
Spec. Mstr. July 10, 2017), review granted, decision rev’d,
138 Fed. Cl. 566 (2018), aff’d on other grounds, 941 F.3d
1351 (Fed. Cir. 2019). However, while Petitioner’s case was
pending before the Special Master, we held that Dr. Miller’s
application of the Triple Risk Model in a vaccine case was
“an unsound and unreliable theory.” Boatmon, 941 F.3d
at 1361. Mindful of our decision, Petitioner voluntarily
dismissed his claim.
Following dismissal, Petitioner sought an award of
attorneys’ fees. The fees litigation ensued for more than
two years and involved a dozen briefs. The Secretary of
Health and Human Services originally stated that the
statutory elements were met and deferred to the Special
Master to exercise his discretion to determine an award for
attorneys’ fees and costs. In July 2020, the Special Master
ordered Petitioner to supplement the motion for fees and
costs to explain why a reasonable basis for the claim in the
petition existed and ordered the Secretary to respond.
Over the course of the ensuing fees litigation, Petitioner
filed forty-six additional exhibits to support the claim in
the petition, which the Secretary requested that the
Special Master strike because they were not submitted
until after the case was dismissed and thus only had been
filed to support Petitioner’s attorneys’ fees request.
Ultimately, the Special Master heard oral argument
on: (a) the Secretary’s motion to strike certain post-merits
phase materials; (b) what evidence established a
reasonable basis in this case, including evidence submitted
after the petition was dismissed; and (c) whether results in
other cases like Boatmon are evidence that support
Petitioner’s claim. After argument, the Special Master
denied Petitioner’s request for fees, largely on the ground
that the Special Master’s decision in Boatmon did not
support a finding of a reasonable basis. Petitioner then
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SHELLER v. HHS 4
filed a motion for review in the Court of Federal Claims,
which that court denied.
Petitioner appeals. We have jurisdiction under
42 U.S.C. § 300aa-12(f).
DISCUSSION
The Vaccine Act’s fee scheme makes fee awards
available for non-prevailing, good-faith claims so that a
petitioner can obtain qualified assistance. Sebelius
v. Cloer, 569 U.S. 369, 380 (2013) (citing H.R. Rep. No. 99-
908, at 22 (1986)); Cottingham on Behalf of K.C. v. Sec’y of
Health & Hum. Servs., 971 F.3d 1337, 1343 (Fed. Cir.
2020). Indeed, “one of the underlying purposes of the
Vaccine Act was to ensure that vaccine injury claimants
have readily available a competent bar to prosecute their
claims” from the outset, regardless of whether petitioner
ultimately prevails. Cloer v. Sec’y of Health & Hum. Servs.,
675 F.3d 1358, 1362 (Fed. Cir. 2012) (alteration omitted)
(quoting Avera v. Sec’y of Health & Hum. Servs., 515 F.3d
1343, 1352 (Fed. Cir. 2008)); see also H.R. Rep. No. 99-908,
at 22 (1986). When Congress decided to make fee awards
available, “[it] recognized that having to shoulder
attorneys’ fees could deter victims of vaccine-related
injuries from seeking redress.” Cloer, 675 F.3d at 1362.
Therefore, when a petitioner is denied compensation for a
claim, she may still request compensation to cover
“reasonable attorneys’ fees and other costs incurred . . . if
the special master or court determines that the petition
was brought in good faith and there was a reasonable basis
for the claim.” 42 U.S.C. § 300aa-15(e)(1)(B) (emphasis
added).
Mr. Sheller raises three issues on appeal. One,
whether the Special Master’s reliance on the evidentiary
framework from Althen v. Secretary of Health & Human
Services, 418 F.3d 1274, 1278 (Fed. Cir. 2005), was in
accordance with the law. Two, whether the Special Master
abused his discretion in denying attorneys’ fees and costs
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SHELLER v. HHS 5
on the ground that the Special Master’s decision in
Boatmon did not support a finding of a reasonable basis.
And three, whether the Special Master abused his
discretion in striking certain medical articles from the
record. We address each in turn.
We review a special master’s denial of attorneys’ fees
and costs under the same standard as the Court of Federal
Claims and “will affirm unless the special master’s decision
is ‘arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.’’’ James-Cornelius on Behalf of
E. J. v. Sec’y of Health & Hum. Servs., 984 F.3d 1374, 1379
(Fed. Cir. 2021) (quoting Cottingham, 971 F.3d at 1345);
see also 42 U.S.C. § 300aa-12(e)(2)(B). “An abuse of
discretion occurs if the decision is clearly unreasonable,
arbitrary, or fanciful; is based on an erroneous conclusion
of law; rests on clearly erroneous fact findings; or involves
a record that contains no evidence on which the [factfinder]
could base its decision.” Cottingham, 971 F.3d at 1345
(citing In re Durance, 891 F.3d 991, 1000 (Fed. Cir. 2018)).
“‘Not in accordance with the law’ refers to the application
of the wrong legal standard . . . .” Simmons v. Sec’y of
Health & Hum. Servs., 875 F.3d 632, 635 (Fed. Cir. 2017)
(citation omitted). And we review a special master’s
application of the law de novo. Id.
I
First, we address the Special Master’s use of the Althen
factors for his reasonable basis analysis and conclude that
using the Althen factors as an evidentiary framework does
not per se constitute legal error.
To establish entitlement to attorneys’ fees pursuant to
a Vaccine Act claim, a petitioner must have a reasonable
basis to support each of the five statutorily required
elements of the petition, one of which is causation. See
Cottingham, 971 F.3d at 1345–46 (citing 42 U.S.C.
§ 300aa-11(c)(1)). Indeed, “[b]ecause causation is a
necessary element of a petition, [petitioner] must point to
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SHELLER v. HHS 6
evidence of a causal relationship between the
administration of the vaccine and her injuries in order to
establish that a reasonable basis for the claim existed when
the petition was filed.” Id. at 1346. This “reasonable basis
analysis is limited to objective evidence.” James-Cornelius,
984 F.3d at 1379 (citing Cottingham, 971 F.3d at 1344).
And the quantum of objective evidence necessary to
establish a reasonable basis is “‘lower than the
preponderant evidence standard required to prove
entitlement to compensation,’ but ‘more than a mere
scintilla.’” Id. at 1379 (quoting Cottingham, 971 F.3d
at 1346). Beyond this, we have not adopted a specific
evidentiary framework for establishing that a reasonable
basis for the claim existed when the petition was filed. At
most, we previously noted the Court of Federal Claims’
“objective, totality of the circumstances test” comports with
our jurisprudence. Cottingham, 971 F.3d at 1344.
Here, the Special Master turned to the Althen factors—
a three-prong test for determining causation-in-fact on the
merits with a preponderance standard in Vaccine Act
cases—but at the lower evidentiary standard for a
reasonable basis, as set forth in Cottingham, to structure
his evaluation of a reasonable basis. This does not
constitute per se legal error because the Althen factors can
provide definitional context to causation when evaluating
whether there is a reasonable basis that a causal
relationship exists between the vaccine and the injury.
When assessing causation on the merits for cases like this
one where the complained-of injury is not listed in the
Vaccine Injury Table, there is no presumption of causation.
Rather, a petitioner must demonstrate: “(1) a medical
theory causally connecting the vaccination and the injury;
(2) a logical sequence of cause and effect showing that the
vaccination was the reason for the injury; and (3) a
showing of a proximate temporal relationship between
vaccination and injury.” Althen, 418 F.3d at 1278. Each of
these factors speaks directly to whether evidence of a
causal relationship between the administration of the
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SHELLER v. HHS 7
vaccine and a petitioner’s injuries exists. Given this, we
see no per se error in looking to the Althen factors to
provide context and structure when evaluating causation
for a reasonable basis.
Petitioner argues that the Special Master’s application
of the Althen factors was not in accordance with law
because rather than consider the totality of circumstances
when evaluating a petitioner’s reasonable basis as
required, the Special Master “insisted on a quantum of
evidence in support of each of Althen’s three [factors].” Pet.
Br. 26. To Petitioner, “[t]his impermissibly increased the
petitioner’s burden by making it a requirement to provide
particularized evidence of each [factor], rather than
evidence of causation, generally.” Pet. Br. 28. First, the
Special Master was not required to consider the totality of
circumstances. Contrary to Petitioner’s assertion, there is
no direct support in our jurisprudence for such a
requirement. As noted above, in prior cases while we have
stated that an “objective, totality of the circumstances test”
comports with our jurisprudence, it is not required.
Cottingham, 971 F.3d at 1344.
Second, the Special Master neither required a
quantum of evidence for each Althen factor, nor did he raise
Petitioner’s burden. Rather, the Special Master reviewed
the entire record and evaluated whether there was
evidence of causation under each Althen factor. See
J.A. 26–40. While the Special Master’s decision insinuates
that a failure to satisfy Althen factor one could mean
Petitioner necessarily lacks a reasonable basis, see J.A. 35,
the Special Master still proceeded to analyze whether there
was evidence of causation under Althen factors two and
three. J.A. 35–40. The Special Master also reiterated
several times throughout his analysis that only “more than
a mere scintilla” of evidence was required to satisfy
reasonable basis. See J.A. 25, 28, 31, 34. Based on his
review, the Special Master concluded that “taken as a
whole, [this case’s evidence] does not pass the reasonable
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SHELLER v. HHS 8
basis standard.” J.A. 35. Because the Special Master did
not require satisfaction of each Althen factor and instead
flexibly used the Althen factors to structure his analysis,
stated the correct quantum of evidence required, and
applied the correct standard to each piece of evidence he
analyzed, we do not see an error in the Special Master’s use
of the Althen factors to structure his reasonable basis
analysis in this case.
That said, we caution against a rigid application of the
Althen factors because a rigid application, which requires
some quantum of evidence for each Althen factor, could
exceed what is required to establish a “reasonable basis.”
Cf. Cloer v. Sec’y of Health & Hum. Servs., 654 F.3d 1322,
1332 n.3 (Fed. Cir. 2011) (en banc) (“Congress clearly
contemplated that petitioners might not be able to meet the
burden to demonstrate causation-in-fact by preponderance
at the time the petition is filed. This is easily seen in the
statute as a Vaccine Act petitioner, even if ultimately
unsuccessful, can still receive compensation to cover
reasonable attorneys’ fees and other costs incurred in the
proceeding ‘if the special master or court determines that
the petition was brought in good faith and there was a
reasonable basis for the claim.’” (quoting 42 U.S.C.
§ 300aa-15(e)(1)). In some cases, such as “[t]he first time
an injury is causally linked with a vaccine,” the petitioner
might have weaker evidence for Althen factor one (medical
theory) than Althen factor two (logical sequence of cause
and effect) but that should not preclude a special master
from finding a reasonable basis. Id. at 1332 n.4 (“Over
time, as injuries occur throughout the population and are
linked to a vaccine, the medical community begins to
recognize a link between the vaccine and the injury. This
can occur through studies published in medical journals or
as a result of government research. Often, however, before
the link is sufficiently established to become generally
recognized by the medical community, petitioners are able
to muster enough evidence to receive compensation from
the Vaccine Program.”).
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II
Now we turn to whether the Special Master
nonetheless abused his discretion in finding that the
special master’s decision in Boatmon did not support a
finding of reasonable basis. A petitioner seeking attorneys’
fees and costs must show “that a reasonable basis for the
claim raised in the petition existed at the time the petition
was filed.” Cottingham, 971 F.3d at 1344. Still, “even
when these two requirements are satisfied, a special
master retains discretion to grant or deny attorneys’ fees.”
James-Cornelius, 984 F.3d at 1379 (citing 42 U.S.C.
§ 300aa-15(e)(1); Cloer, 675 F.3d at 1362). As previously
noted, the quantum of objective evidence necessary to
establish a reasonable basis is “‘lower than the
preponderant evidence standard required to prove
entitlement to compensation,’ but ‘more than a mere
scintilla.’” Id. (quoting Cottingham, 971 F.3d at 1346).
Here, the Special Master abused his discretion by
misapplying the law, which led to his erroneous conclusion
that Mr. Sheller’s causation theory—the Triple Risk
Model—“d[id] not pass the reasonable basis threshold,”
J.A. 35. The Special Master did not consider whether the
Triple Risk Model served as a reasonable basis for the
petition at the time of filing. While the Parties focus on the
relevance of our decision in Boatmon and dispute whether
the Special Master fairly considered its impact on the case
at hand, it is undisputed that Petitioner here, like the
petitioner in Boatmon, relied on the Triple Risk Model.
Importantly, at the time Petitioner filed the petition in May
2018, the Triple Risk Model had succeeded as a causation
theory before another special master. Boatmon, 2017 WL
3432329, at *1, *43. Thus, at that time, the Triple Risk
Model was a potentially viable causation theory. However,
in July 2018, the Court of Federal Claims reversed the
special master’s Boatmon decision, which we later affirmed
in November 2019. Boatmon, 941 F.3d at 1360. Still,
attorneys’ fees were ultimately awarded to the petitioner in
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SHELLER v. HHS 10
Boatmon because the special master concluded that the
petition was filed in good faith and with a reasonable basis.
Boatmon v. Sec’y of Health & Hum. Servs., No. 13-611V,
2020 WL 2467079, at *1–2 (Fed. Cl. Spec. Mstr. April 7,
2020). Although the Triple Risk Model was ultimately
rejected on appeal as a viable causation theory on the
merits under Althen factor one, the fact that the special
master in Boatman later awarded attorneys’ fees suggests
that the Triple Risk Model was at least a plausible or
reasonable theory at the time of filing. Indeed, even at the
time of the appeal we understood this “theory that was at
best ‘plausible.’” Boatmon, 941 F.3d at 1360. A plausible
theory, like the Triple Risk Model, resides somewhere
“lower than the preponderant evidence standard required
to prove entitlement to compensation, but [higher] than a
mere scintilla.” James-Cornelius, 984 F.3d at 1379
(citation and quotations omitted).
Moreover, neither the Secretary nor the Special Master
has explained why attorneys’ fees should not equally be
awarded here or why the Triple Risk Model was not a
reasonable causation theory at the time of filing. While the
Special Master acknowledged “the Federal Circuit’s
affirmance . . . cannot be held against Mr. Sheller in
determining whether [a] reasonable basis supported the
petition when it was filed,” the Special Master did not
separately address why the Triple Risk Model was not a
reasonable causation theory at the time of filing. J.A. 34.
Instead, the Special Master concluded that Petitioner’s
causation theory was “[a]t best . . . feasible” without
explanation. Id. Because the Special Master failed to
analyze whether the Triple Risk Model was a reasonable
causation theory at the time of filing, we conclude that he
misapplied the law, which constitutes an abuse of
discretion.
Because the decision to deny attorneys’ fees rested
solely on the absence of a reasonable basis, we vacate that
decision and remand for the Special Master to determine,
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SHELLER v. HHS 11
in his discretion, whether attorneys’ fees should be granted
in this case. The Special Master’s decision in Boatmon was
sufficient to establish a reasonable basis under the first
Althen factor. We think it reasonable for Petitioner to
postpone additional evidence development as to the
application of the Triple Risk Theory to this case until our
decision in the Boatmon appeal. In exercising his
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.
III
Last, we address whether the Special Master abused
his discretion by striking from the record certain medical
articles—not referenced in the Parties’ reasonable basis
briefing—that were only submitted during the fee
litigation phase of the proceedings after the petition was
already dismissed. A special master, in his role as
factfinder, has broad discretion to determine what evidence
is relevant. 42 U.S.C. § 300aa-12(d) (granting special
masters broad discretion in how they conduct Vaccine Act
proceedings, including their hearing and evaluation of the
evidence); Porter v. Sec’y of Health & Hum. Servs., 663 F.3d
1242, 1249 (Fed. Cir. 2011) (“We do not reweigh the factual
evidence, assess whether the special master correctly
evaluated the evidence, or examine the probative value of
the evidence or the credibility of the witnesses—these are
all matters within the purview of the fact finder.”).
We conclude that the Special Master did not abuse his
discretion in striking these medical articles because,
despite their late introduction, the Special Master assessed
the relevance of each medical article and only struck those
determined not to be relevant. See J.A. 22–23, 190–94.
Here, Mr. Sheller submitted more than 40 additional
exhibits consisting of various medical literature.
Confronted with Petitioner’s “attempt[] to expand the
record to substantiate his claim for attorney’s fees and
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SHELLER v. HHS 12
costs,” the Special Master still denied the Secretary’s
motion to strike as to all exhibits that appeared relevant
“[t]o allow Mr. Sheller and [his attorney] to present their
strongest argument that [a] reasonable basis supported the
claim set forth in the petition.” J.A. 22, 23. The Special
Master then reviewed the additional exhibits and
evaluated whether each medical article was relevant. See
J.A. 23, 190–94. For each medical article stricken from the
record, the Special Master succinctly summarized the
medical article and explained why it lacked relevance.
J.A. 190–94.
Petitioner argues that in striking the medical articles
the Special Master violated the principle that special
masters are required to consider “the entire record,
including all relevant medical and scientific evidence
contained in that record.” Pet. Br. 33–34 (citing Moriarty
v. Sec’y of Health & Hum. Servs., 844 F.3d 1322, 1331
(Fed. Cir. 2016)). We disagree. As noted above, the Special
Master did consider the entire record, including all relevant
medical and scientific evidence. Petitioner also argues that
the Special Master “determine[d] the relevance of evidence
based on whether certain evidence was cited in limited,
non-merits briefing,” Pet. Br. 37. This argument lacks
merit. When evaluating the additional exhibits, the
Special Master applied the relevance test from Federal
Rule of Evidence 401 because the Vaccine Rules do not
define “relevant evidence.” See J.A. 23. We see no issue
with using the Rule 401 relevancy test for this purpose.
Therefore, we conclude that the Special Master did not
abuse his discretion in striking certain medical articles
from the record.
CONCLUSION
We have considered the Parties’ remaining arguments
and find them unpersuasive. Because the Special Master
abused his discretion, we vacate and remand for further
proceedings consistent with this opinion.
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VACATED AND REMANDED
COSTS
Costs to Petitioner-Appellant.
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