[00:00:00] Speaker 03:
HHS.

[00:00:43] Speaker 03:
Mr. Pepper.

[00:00:46] Speaker 01:
Good morning.

[00:00:47] Speaker 01:
The issue in this case is whether the Court of Federal Claims erred in finding the special master abused or discretion and awarding attorneys fees and costs to petitioners counsel.

[00:00:58] Speaker 01:
The respondent has asked this court to interpret the Vaccine Act to require a petitioner to provide some objective evidence of vaccine causation to establish a reasonable basis for the claim alleged in the petition.

[00:01:09] Speaker 01:
This would be a significant departure from the way the Vaccine Act is currently

[00:01:12] Speaker 01:
and has historically been applied.

[00:01:15] Speaker 01:
Since the inception of the vaccine.

[00:01:17] Speaker 02:
So the statutory language at issue here appears, it states two threshold requirements before the discretion kicks in, a good faith requirement and a reasonable basis requirement.

[00:01:33] Speaker 02:
And the good faith requirement is about an act, namely the act of bringing the petition.

[00:01:41] Speaker 02:
And the reasonable basis requirement is not about an act, but about the claim asserted by the act of petitioning.

[00:01:54] Speaker 02:
Why doesn't that mean, as I think the government suggests, kind of by a straightforward reading of the language,

[00:02:01] Speaker 02:
that even if the act of petitioning was made in good faith to avoid running out of time, that that doesn't mean that the claim asserted has a reasonable basis.

[00:02:17] Speaker 02:
And that requires whatever some evidence means, however high that is, there actually has to be some evidence for the claim, even if the attorney in the act of filing was proceeding in good faith.

[00:02:31] Speaker 01:
Thank you, Your Honor.

[00:02:32] Speaker 01:
I believe the reasonable basis provision does apply to the claim, and I believe the language that's used in the statute is broad enough to encompass the entire claim, including the factual basis, medical support, jurisdictional issues, and the circumstances under which the petition is filed.

[00:02:47] Speaker 01:
So I believe the language, I think the decisions that have interpreted that language reasonable basis in the fees provision have looked at three things primarily.

[00:02:56] Speaker 01:
The broad nature of the language reasonable basis.

[00:03:00] Speaker 02:
What I'm focusing on is reasonable basis of the claim, isn't that the language?

[00:03:08] Speaker 02:
Yes, for the claim for which the petition was brought and as opposed to the decision to file being reasonable which it maybe was if the lawyer was in a position of saying I either defeat the case by running out of time

[00:03:29] Speaker 02:
Or I file now and hope that when I do the investigation, it turns out to be, you know, a claim with merit.

[00:03:41] Speaker 01:
It applies to the claim.

[00:03:44] Speaker 01:
And I believe the language, it doesn't require objective evidence of the claim.

[00:03:48] Speaker 01:
It requires that the claim have a reasonable basis.

[00:03:50] Speaker 01:
So if you look at the word basis, I believe that means it's broader than just tangible evidence.

[00:03:54] Speaker 01:
It implies the support or foundation for a claim.

[00:03:58] Speaker 01:
and that basis has to be reasonable.

[00:04:00] Speaker 01:
So if you look at the term reasonable, I think reasonable is context dependent and it's a term that can't be rigidly defined.

[00:04:06] Speaker 01:
So what may be reasonably, what claim that may be reasonable under some circumstances may not be reasonable in others and vice versa.

[00:04:15] Speaker 01:
So I think that the language is broad enough to look at the entire claim and that includes all the factors that have been applied in the totality of the circumstances test.

[00:04:24] Speaker 01:
And I also believe that

[00:04:27] Speaker 01:
The decisions that have interpreted reasonable basis have looked at those three primary things in determining that the totality of the circumstances test is the appropriate application of the reasonable basis provision of the fees of the 15E.

[00:04:41] Speaker 01:
They looked at the broad language of reasonable basis.

[00:04:44] Speaker 01:
They've looked at the discretion afforded to the special master in awarding fees or denying fees in unsuccessful cases.

[00:04:53] Speaker 01:
And they've looked broadly at congressional intent in enacting the fees provision.

[00:04:58] Speaker 01:
And the congressional intent in enacting the fees provision was primarily to ensure that vaccine-injured individuals have access to competent counsel.

[00:05:06] Speaker 01:
And the discretion of special masters was viewed as important.

[00:05:10] Speaker 01:
And they believe that in order to enact that intent, special masters needed to have the discretion to award fees and non-prevailing good faith claims.

[00:05:20] Speaker 01:
So I believe that

[00:05:21] Speaker 01:
Those three factors have led to the case law that the reasonable basis provision is met by the totality of the circumstances test rather than just a rigid evidentiary standard as proposed by the respondent.

[00:05:36] Speaker 01:
And I believe a rigid evidentiary standard impinges on the discretion of the special masters, which would not do anything to further congressional intent.

[00:05:45] Speaker 02:
But what about a non-rigid evidentiary standard?

[00:05:49] Speaker 02:
I'm not quite sure what some evidence is, but this seems to be a case in which whatever that standard could mean, this case doesn't satisfy it and that if this is to survive, if the threshold to the exercise of discretion is to be met, you need to be able to establish that

[00:06:15] Speaker 02:
filing to avoid being too late, is itself enough?

[00:06:23] Speaker 01:
I believe that, well, I believe that the language itself supports more than just evidence.

[00:06:30] Speaker 02:
But I also believe that... Just focus on the evidence in support of the merits of this claim.

[00:06:38] Speaker 01:
Is there any?

[00:06:40] Speaker 01:
In this case, I believe there was some evidence

[00:06:43] Speaker 02:
And this is, I guess, what I'm remembering.

[00:06:44] Speaker 02:
Just tell me if I'm wrong.

[00:06:45] Speaker 02:
This is the council, I don't know if that was you or whoever, said, I don't actually have any medical evidence, but vaccines often cause, was it Guillain-Barre syndrome or something?

[00:06:59] Speaker 01:
Well, I believe in this case there was some evidence filed, and that some evidence was the vaccine record as well as the representations of the petitioner to council.

[00:07:10] Speaker 01:
And those representations

[00:07:11] Speaker 01:
The petitioner contacted counsel and described that he was diagnosed by a neurologist with GBS within weeks of receiving a flu vaccine and he provided a receipt of that flu vaccine confirming that it did indeed take place.

[00:07:24] Speaker 03:
We confirm that the vaccine took place but there's no evidence other than his assertion that there was any injury that resulted from the vaccine.

[00:07:33] Speaker 01:
There were no medical records showing GBS but there were his assertions to counsel.

[00:07:38] Speaker 01:
And I believe those representations of counsel to the court represented some evidence along with the vaccine record.

[00:07:45] Speaker 01:
And I believe also counsel's knowledge of case law and experience also is a factor that provides some evidence.

[00:07:56] Speaker 01:
GBS following flu vaccine is one of the most recognized injuries in the vaccine program.

[00:08:01] Speaker 01:
And the Temporal Association described by the petitioner to counsel was an appropriate temporal association.

[00:08:08] Speaker 01:
So taking those facts as some evidence and then the circumstances under which the petition was filed, he contacted counsel within days of the statute of limitations, provided the reasonable basis for that claim.

[00:08:23] Speaker 03:
You're saying that his assertion is the evidence, so his assertion is the evidence you're relying on for reasonable basis.

[00:08:31] Speaker 01:
Correct, the vaccine record and his assertions.

[00:08:33] Speaker 03:
Is there any indication of why they didn't, whether the attorneys asked him?

[00:08:37] Speaker 03:
Well, can you provide us any records?

[00:08:39] Speaker 03:
Are there any records to show this?

[00:08:41] Speaker 03:
Any of that in the record?

[00:08:43] Speaker 01:
Yes, and he did not initially provide any records.

[00:08:47] Speaker 01:
Counsel attempted to contact him on several occasions to be able to collect records from him to further validate his assertions.

[00:08:56] Speaker 01:
But he essentially became absent for a period of two years.

[00:09:01] Speaker 01:
Then nine days prior to the session of limitations, he again contacted counsel, which implied that he still believed an attorney-client relationship existed.

[00:09:08] Speaker 01:
At that point, so close to the special limitations deadline, the special master correctly held, I believe, that the circumstances under which this petition was filed helped support under the totality of the circumstances.

[00:09:27] Speaker 03:
I guess I'm not clear.

[00:09:27] Speaker 03:
When he came to you the second time, you had him there, you were discussing it with him.

[00:09:31] Speaker 03:
Did you, any indication of whether you asked him then, do you have any medical records to support your contentions?

[00:09:36] Speaker 01:
He did not have any medical records at that time.

[00:09:38] Speaker 03:
Okay, so do you assume a hypothetical case where the statute of limitations was set to expire three months from the time he came to you last as opposed to three days?

[00:09:52] Speaker 03:
That would be entirely different, right, in your view?

[00:09:54] Speaker 03:
I mean, you're relying, there's a lot of weight being put on the fact that the last time you saw him, and he seems to be kind of an elusive fellow, but the last time you saw him,

[00:10:06] Speaker 03:
you had to do something because the statute of limitations was going to expire.

[00:10:10] Speaker 03:
Well, what if there were three months left the last time you saw him and you asked him, we've got to get some evidence, and he never proceeded with it.

[00:10:17] Speaker 03:
So in that circumstance, would you have a reasonable basis to then wait until the third month, the eve of the statute of limitations expiration and say, okay, reasonable basis to file because we haven't heard anything back from him, right?

[00:10:28] Speaker 03:
Is that what you're saying?

[00:10:30] Speaker 01:
No, I think that under the circumstances, those circumstances would be different.

[00:10:35] Speaker 01:
I think ultimately it would be the discretion of the Special Master to determine if under those circumstances the basis for that claim was reasonable.

[00:10:42] Speaker 01:
I can't say for certain that they would be reasonable.

[00:10:48] Speaker 01:
I would think the due diligence of counsel in trying to acquire those records, assuming you have three months to do so, there's obviously more time to collect records within three months than nine days.

[00:11:00] Speaker 01:
And I think the due diligence of counsel is another factor.

[00:11:02] Speaker 01:
The conduct of petitioners' attorneys is also a factor that has been used in the totality of circumstances test.

[00:11:08] Speaker 01:
And I think the special master would have the discretion to look at whether due diligence was actually undertaken by counsel.

[00:11:14] Speaker 01:
And I think it could be a different outcome in those circumstances.

[00:11:30] Speaker 01:
The petitioner would articulate the reasonable basis standard as whether a reasonable attorney, under the particular circumstances at the time, would find there was sufficient support or foundation to file or maintain a petitioner's claim.

[00:11:44] Speaker 01:
And I believe that that interpretation is supported not only by the plain language of the Vaccine Act and decades of case law, but also by legislative history as Congress has explicitly intended.

[00:11:52] Speaker 03:
Can you read that again to me?

[00:11:54] Speaker 03:
You said whether the attorney believes he has a sufficient basis.

[00:12:00] Speaker 01:
Right, I would articulate reasonable basis standard as whether a reasonable attorney under the particular circumstances at the time would find there was sufficient support or foundation to file or maintain a petitioner's claim.

[00:12:11] Speaker 00:
But that's different from the statute.

[00:12:15] Speaker 00:
I believe that that interpretation... You said whether there was a reasonable basis for the claim.

[00:12:22] Speaker 01:
To file or maintain a petitioner's claim, and I believe that interpretation comports best with the plain language of the Vaccine Act.

[00:12:29] Speaker 01:
I think it imports much better than a strict evidentiary standard.

[00:12:36] Speaker 01:
There's no mention in the fees provision of an objective evidence standard or requiring evidence in order to meet the threshold of reasonable basis.

[00:12:58] Speaker 04:
Good morning, Your Honors.

[00:12:59] Speaker 04:
May it please the Court?

[00:13:00] Speaker 04:
1,239 petitions filed by at least 180 different attorneys in fiscal year 2017, according to our internal statistics.

[00:13:11] Speaker 03:
Are these all, are we talking only the off-table cases, not the on-table cases?

[00:13:16] Speaker 04:
This includes all petitions that were filed in fiscal year 2017, but the vast majority of those are off-table cases.

[00:13:24] Speaker 04:
I think of less than 10 percent and possibly less than 5 percent

[00:13:28] Speaker 04:
and fiscal year 17 were off table.

[00:13:30] Speaker 04:
That will change in the next fiscal year now that Guillen-Barre and Serva have been added to the table so that the numbers will increase.

[00:13:37] Speaker 04:
But the point is that those numbers are not indicative of a program that is struggling to find claimants to file petitions or attorneys to represent them.

[00:13:48] Speaker 04:
The petitioner's argument in this case is based almost entirely on a policy argument

[00:13:54] Speaker 04:
articulated by this court that the Vaccine Act is intended to provide a readily available bar to represent petitioners in these cases.

[00:14:02] Speaker 04:
The fundamental flaw in petitioners' argument is that there is no evidence to support their argument that that goal is not already being met.

[00:14:10] Speaker 02:
The fundamental flaw in their argument is about a topic that we are going to have to investigate the empirical statistics and what they actually mean and therefore decide whether the policy

[00:14:23] Speaker 02:
decide something out of the policy strength of their point?

[00:14:27] Speaker 04:
Actually, Your Honor, we would submit that the Court doesn't even need to reach the policy issues.

[00:14:31] Speaker 04:
Maybe even we couldn't.

[00:14:33] Speaker 04:
That is correct.

[00:14:34] Speaker 04:
I am simply pointing out for the Court that the policy argument that they make is actually not supported by the statistics that are available, which would actually weigh in favor of the government's policy argument that

[00:14:46] Speaker 04:
with the number of petitions being filed, the statute has built into it an incentive on behalf of the petitioner's bar to investigate claims to make sure that they are supported by evidence prior to filing.

[00:14:59] Speaker 03:
Let's move away from the policy and just go back to the language.

[00:15:01] Speaker 03:
I mean, here, clearly, abuse of discretion in terms of this, the special master, the government is not disputing, has a degree of discretion in deciding these, right?

[00:15:12] Speaker 03:
And they seem to, so we all agree on that piece of it, that there's a

[00:15:16] Speaker 03:
discretionary element in this.

[00:15:19] Speaker 03:
And so where is the daylight between you and the other side?

[00:15:22] Speaker 03:
They say discretion but to the special master totality of circumstances.

[00:15:28] Speaker 03:
Now totality of circumstances may or may not be different than the two-step

[00:15:34] Speaker 03:
procedure that you're at, the two-factor procedure that Judge Toronto referred to from the statute, right?

[00:15:40] Speaker 03:
So what's the difference?

[00:15:42] Speaker 04:
The daylight, Your Honor, is exactly what I think Judge Laurie was pointing out, too, with respect to the standard that was proposed by Mr. Pepper, is that the petitioner is proposing a standard that takes into

[00:15:55] Speaker 04:
On the sole consideration, the reasonableness of the attorney's actions in filing the petition, which is not consistent with what Section 15E says.

[00:16:04] Speaker 04:
Section 15 is clear that in looking at the reasonable basis, the reasonable basis pertains to the claim and not to the attorney's actions.

[00:16:14] Speaker 03:
What he's talking about, the reasonable basis for the attorney's actions falls under the other category of good faith?

[00:16:20] Speaker 03:
Absolutely, Your Honor.

[00:16:21] Speaker 03:
That is what we believe the petitioner is advocating.

[00:16:23] Speaker 03:
You seem to be arguing about his view.

[00:16:25] Speaker 03:
Is it not your view that some of the special masters have not been doing this right?

[00:16:30] Speaker 03:
So it's more beyond just his view, right?

[00:16:34] Speaker 04:
Yes, and I believe that this... I don't fault the petitioners for advocating for

[00:16:38] Speaker 04:
a position that the special masters themselves have essentially created through their own case law.

[00:16:44] Speaker 04:
And I think that there is a sense on the part of the special masters that this is supposed to be a generous program, that petitioners are supposed to be afforded every opportunity to prove their claim, and that the availability of a bar is an important factor in the prosecution of these claims.

[00:17:02] Speaker 04:
But I would point out that the generosity of the court and the special masters

[00:17:07] Speaker 04:
is already achieved by the fact that petitioners are permitted to file and complete petitions, whether the statute of limitations is impending or not, and then later supplement those petitions with medical records or other evidence

[00:17:21] Speaker 03:
in an attempt to establish not only the merits of the claim, but in the event the merits are found... What is the minimum amount these attorneys could have provided to get them past the reasonable basis of the claim?

[00:17:32] Speaker 04:
And Your Honor, that is, I submit, we submit where the special magistrate's discretion does come into play, but what we would submit is that there at least needs to be some evidence addressing the essential elements of each of the petitioner's elements under their prima facie case.

[00:17:50] Speaker 04:
There would need to be evidence showing that the case was arguably timely, that the petitioner received a vaccine that is covered by the program.

[00:18:00] Speaker 03:
Well, they did that, right?

[00:18:02] Speaker 03:
I mean, didn't they submit evidence that he got a vaccine as of a certain date?

[00:18:07] Speaker 04:
They did submit evidence of vaccination, but what they did not submit was then the other critical requirement was that the vaccination caused or significantly aggravated an injury.

[00:18:17] Speaker 04:
There was no evidence submitted in this case

[00:18:19] Speaker 04:
that petitioner suffered any injury at all, much less one.

[00:18:22] Speaker 03:
Well, is that what's missing?

[00:18:23] Speaker 03:
I mean, you're not expecting them to prove causation in their preliminary filing.

[00:18:28] Speaker 03:
So I'm just trying to hone in on how little they could have said to, in your view, satisfy the reasonable basis test.

[00:18:36] Speaker 04:
I think in order to provide some meaningful standard that would both give the litigants some ability to determine

[00:18:47] Speaker 04:
when a reasonable basis of objection is, uh, is appropriate.

[00:18:51] Speaker 03:
We're dealing with specific cases.

[00:18:53] Speaker 03:
It's not hard to draw out.

[00:18:54] Speaker 03:
What was it?

[00:18:55] Speaker 03:
They say they had a declaration or something by their client saying, and I'm got a disease or an illness based on this vaccine.

[00:19:05] Speaker 03:
Is that kind of submission of that affidavit enough?

[00:19:08] Speaker 03:
You're saying no, right?

[00:19:09] Speaker 04:
Well, I think it's the, under the, the, the, um, abusive discretion standard, you know, what the court generally looks at is,

[00:19:16] Speaker 04:
Is there a rational basis for what the special master found?

[00:19:19] Speaker 04:
And so I think there would have to be some evidence that would provide some rational basis that the special master could say,

[00:19:28] Speaker 04:
that there is evidence to meet the essential elements of the claim.

[00:19:34] Speaker 03:
Was it a declaration?

[00:19:35] Speaker 03:
I don't remember what it was.

[00:19:36] Speaker 03:
I mean, they had something from their client saying, I'm suffering an injury.

[00:19:44] Speaker 04:
Actually, Your Honor, there was not even an affidavit from the petitioner.

[00:19:48] Speaker 04:
The only

[00:19:48] Speaker 03:
If you get enough, if you submit an affidavit for a client saying, I am suffering injury acts because of which I believe is caused by the vaccine.

[00:19:57] Speaker 03:
Is that enough?

[00:19:58] Speaker 03:
Is that a reasonable basis to file?

[00:20:00] Speaker 04:
I think the special master, I think that would be a closer case than what we have here, but I don't necessarily think that a special master would have good grounds upon that evidence alone.

[00:20:10] Speaker 04:
to find a reasonable basis, since the statute requires that a petitioner provide substantiating documentation and specifically says that a special master cannot find basis on the claims of the petitioner alone.

[00:20:25] Speaker 00:
You would say that we're not in a position here to lay out what would be required, because the only fact before us is the fact of vaccination.

[00:20:35] Speaker 04:
Yes, Your Honor, we are not asking you today to articulate specifically what quantum of evidence is required to meet the reasonable basis standard, but what we are asking you to do is to say that some evidence is required to meet the reasonable basis standard, that this notion that you can look... An injury and a connection.

[00:20:56] Speaker 04:
some injury of the injury, the connection with the vaccination, and then the other essential elements, including the timeliness aspect of the claim, the other jurisdictional issues such as that it was administered in the United States.

[00:21:11] Speaker 04:
As long as there's evidence submitted to meet those critical elements that are set out in Section 11C of the Act, then we would submit that a special master can

[00:21:21] Speaker 04:
At that point, exercise his or her discretion in determining whether that evidence is sufficient to meet the reasonable basis requirement.

[00:21:28] Speaker 04:
But absent that evidence, we submit that the special master is not authorized to go beyond the evidence and look at the conduct of the petitioner's attorney in bringing the claim to determine whether it was reasonable under the circumstances as petitioners have asked this court to find.

[00:21:44] Speaker 04:
to file the petition because that simply isn't consistent with the plain language of Section 15.

[00:21:48] Speaker 02:
Are there other sources of law that use the expression reasonable basis and provide some clarifying guidance as to what that might mean in practice?

[00:22:02] Speaker 04:
Unfortunately, no, Your Honor.

[00:22:04] Speaker 04:
And this goes to the point that the Vaccine Act is unique in the sense that it actually provides

[00:22:12] Speaker 02:
But just on the phrase reasonable basis, really that's not somewhere else in the law?

[00:22:18] Speaker 04:
I'm not aware of the term reasonable basis being used in any context to define what constitutes a statutory basis for fee shifting.

[00:22:30] Speaker 04:
Again, as I was saying, the Vaccine Act is unique in that it allows for awards of attorney's fees to even unsuccessful claimants.

[00:22:40] Speaker 04:
And so in other fee-sifting statutes, you have the substantially prevailing language that usually governs whether an award of fees is available.

[00:22:50] Speaker 04:
So that's why this language and the Act we think is somewhat unique.

[00:22:54] Speaker 03:
So in our discussion, it's become clear that a reasonable basis could be a little flexible.

[00:23:02] Speaker 03:
Then you've also repeated several times that there's a

[00:23:08] Speaker 03:
there's a lot of discretion left to the special master.

[00:23:12] Speaker 03:
So I'm just wondering, are you advocating just a firm rule you can never consider in the context of reasonable basis, the timeframe upon which the attorney was operating?

[00:23:25] Speaker 03:
In other words, said another way, why is it wrong under an abuse of discretion standard, looking at just the reasonable basis stuff to factor in

[00:23:36] Speaker 03:
something may have been reasonable because you only had two days to file versus reasonable because you had three months to file.

[00:23:46] Speaker 03:
Can't that be a factor?

[00:23:48] Speaker 04:
And our answer is no, that it really should not be.

[00:23:52] Speaker 04:
That the statute of limitations issue is in some ways a red herring because if you think about it, the risk of being able to prove or not prove a reasonable basis for the claim for the purpose of

[00:24:07] Speaker 04:
awarding attorney's fees is really not taken on at the moment that the petition is filed.

[00:24:12] Speaker 04:
It's actually taken on at the moment that the representation is accepted.

[00:24:17] Speaker 04:
So it's at the moment that the petitioner's attorney agrees to take on the petitioner that the attorney is then placed with the risk of potentially not being able to, at some later point, prove a reasonable basis for the claim.

[00:24:31] Speaker 04:
Because in both circumstances,

[00:24:33] Speaker 04:
the attorney is having to rely, generally, on the representations of the potential client and determining whether, based on their professional judgment, it makes sense to accept their representation.

[00:24:44] Speaker 04:
So I don't see how you can really distinguish the situation where there is a statute of limitations that requires a filing of a petition that may later bear out to have a reasonable basis or not, and an attorney who sets a representation and has

[00:25:01] Speaker 04:
time to conduct an investigation of the claim and either will or will not file a petition based on whether they perceive that there's a reasonable basis.

[00:25:07] Speaker 04:
There really is.

[00:25:08] Speaker 04:
There's no distinction between the two without treating one group unfairly, which would be the group that gets the client in time to actually conduct an investigation.

[00:25:20] Speaker 04:
So this is why we believe that an evidence-based standard is the most fair.

[00:25:26] Speaker 04:
It treats counsel fairly regardless of when they agreed to accept the representation, whether it's two days before the statute runs, whether it's two months before the statute runs,

[00:25:37] Speaker 04:
As in this case, it was really two years before the statute ran that the counsel had an opportunity to investigate the claim notwithstanding the petitioner's noncompliance and noncooperation.

[00:25:51] Speaker 02:
And can you just get back and clarify on this question of, I think you said that there was no affidavit or other declaration from Mr. Simmons.

[00:26:02] Speaker 02:
but was there some kind of assertion he made, telephonically or otherwise, to counsel?

[00:26:10] Speaker 02:
I just, this is a kind of what does the record say question.

[00:26:13] Speaker 04:
Right, my understanding is that there were, and what the Special Master includes in her decision is that there were two contacts, two conversations, and one of which she found dispositive, but that she does note during

[00:26:28] Speaker 04:
The final conversation with the petitioner, and this is at Appendix 6 on star page 2, that counsel spoke with the petitioner again on the telephone with regard to the collection of medical records.

[00:26:42] Speaker 04:
That is the sum total of what I'm aware of in terms of counsel's conversations with petitioners about what evidence may or may not be available.

[00:26:51] Speaker 02:
So there isn't a

[00:26:54] Speaker 02:
Nothing in the record says Mr. Simmons said, I had a vaccine, I am ailing in some way.

[00:27:02] Speaker 02:
Even that?

[00:27:04] Speaker 04:
I would have to go back and look at the actual fee application.

[00:27:07] Speaker 04:
I believe it was in the fee application that counsel detailed the conversations and the contacts with.

[00:27:13] Speaker 04:
Mr. Simmons, but I don't believe that level of detail was provided as to why he did not provide the information other than I believe the record reflects that it was distressing to him to relive the whole experience of his alleged GBS and that that was why he had been out of communication with his counsel.

[00:27:37] Speaker 04:
I did just want to briefly address CLAWR in the time that I have remaining.

[00:27:41] Speaker 04:
It was raised in the gray brief for the first time.

[00:27:44] Speaker 04:
And I would simply note that I think that the petitioner has taken that CLAWR a little bit too far.

[00:27:50] Speaker 04:
If you look at the language that's cited in CLAWR, and this is on page 1362 at 675 F3rd, the petitioner relies on language saying the statutory language requiring a reasonable basis is broad enough to encompass the statute of limitations.

[00:28:05] Speaker 04:
But our reading of Chlora is actually, and if you go on to read that same paragraph,

[00:28:09] Speaker 04:
there is a separate determination that the court acknowledged would have to be conducted once the timeliness issue was resolved, and that is that fees would only be awarded upon a finding of good faith and reasonable basis.

[00:28:22] Speaker 04:
So our reading of the Clore decision, en banc decision, is that these really are two distinct determinations.

[00:28:29] Speaker 04:
The statute of limitations or timeliness issue is distinct from the reasonable basis issue, and even under the majority's decision in Clore, both of those determinations require

[00:28:38] Speaker 04:
a look at the evidence that is offered to support the actual merits of the arguments and the underlying claims.

[00:28:47] Speaker 04:
And with that, thank you.

[00:28:50] Speaker 03:
You've got a few minutes left.

[00:28:52] Speaker 03:
Do you want to address Judge Toronto's question first about really what the evidence was beyond that he had got a vaccine on a certain date?

[00:29:02] Speaker 01:
Sure.

[00:29:05] Speaker 01:
Mr. Simmons, the evidence consisted of the vaccine record that was provided by Mr. Simmons, and it also consists of assertions Mr. Simmons made to counsel in a phone conference.

[00:29:16] Speaker 02:
Those assertions had what content?

[00:29:19] Speaker 01:
What did he say?

[00:29:20] Speaker 01:
He said that he was seen by a neurologist and diagnosed with Guillain-Barre syndrome within three weeks of receiving his flu vaccine that he received on October 26, 2010.

[00:29:32] Speaker 01:
there was never any tangible medical record that we had in our hand, but we did provide that information to the special master.

[00:29:39] Speaker 01:
In Choisano, the... I'm still not clear.

[00:29:43] Speaker 03:
So you had a phone conversation with your client in which he made this representation.

[00:29:47] Speaker 03:
Then what did you actually put into the record?

[00:29:52] Speaker 01:
We detailed the conversation.

[00:29:55] Speaker 01:
So we did bring to the special master's attention, I believe it was in the context of the fee application, that

[00:30:02] Speaker 01:
Mr. Simmons received a vaccine as confirmed by the vaccine receipt.

[00:30:08] Speaker 01:
He went to a neurologist and was diagnosed with GBS by the neurologist within three weeks of receiving the flu vaccine.

[00:30:16] Speaker 01:
So that was our summit.

[00:30:19] Speaker 03:
When you filed the petition or the complaint or whatever it is, what was alleged there?

[00:30:23] Speaker 01:
We alleged in the complaint a neurological demyelinating injury, just to keep it broad in case the medical record showed perhaps something else.

[00:30:33] Speaker 01:
And GBS is a neurological demyelinating injury, but rather than saying specifically GBS, we kept it vague for the purposes of that petition.

[00:30:44] Speaker 03:
So you said in the complaint he has suffered as a result of the vaccine?

[00:30:49] Speaker 01:
Correct.

[00:30:50] Speaker 01:
Correct.

[00:30:50] Speaker 01:
We have said he has suffered a neurological demyelinated injury as a result of the flu vaccine he received on October 26, 2010.

[00:30:56] Speaker 03:
And then for purposes of fees, you established the basis for that being this conversation you had with him.

[00:31:03] Speaker 01:
That's correct.

[00:31:04] Speaker 01:
That's correct.

[00:31:06] Speaker 01:
And I just want to reiterate in the time that I have left that the totality of the circumstances test has been a universally adopted interpretation of the reasonable basis provision

[00:31:13] Speaker 01:
since the inception of the vaccine program.

[00:31:16] Speaker 01:
And in Senior Judge Firestone's decision, she did acknowledge that the totality of the circumstances test was the correct analysis, but she didn't articulate how the Special Master abused her discretion in awarding fees and costs in this case.

[00:31:31] Speaker 01:
I believe you asked about whether there's another rule of law that uses a reasonable basis language.

[00:31:39] Speaker 01:
In the briefs, I discussed federal rule of civil procedure 11, which I don't believe uses reasonable basis language specifically, but it is an objective standard of reasonableness under the circumstances.

[00:31:51] Speaker 02:
It uses language about whether a factual assertion is reasonably based in belief or lack of information.

[00:32:01] Speaker 02:
I think that's some phrase like that.

[00:32:03] Speaker 01:
Correct.

[00:32:05] Speaker 01:
Compliance with Rule 11 is measured by an objective standard of reasonableness under the circumstances, and in pending statute of limitations, deadline is an important factor in applying Rule 11, and also the discretion of the district court in applying Rule 11 is viewed as paramount.

[00:32:18] Speaker 01:
So I think the standard that the respondent asks you to adopt would place counsel of practice in the vaccine program differently than counsel of practice in federal district court with regard to whether a claim is reasonable at the time it was filed.

[00:32:39] Speaker 03:
Thank you.

[00:32:40] Speaker 03:
We thank both sides.

[00:32:41] Speaker 03:
The case is submitted.

[00:32:42] Speaker 03:
The foods are proceeding for this morning.