[00:00:00] Speaker 04: The first case is Casey Cottingham, 2022, 1737. [00:00:07] Speaker 04: Mr. Donahue. [00:00:09] Speaker 04: Yes, Your Honor. [00:00:12] Speaker 00: Your Honors, good morning. [00:00:14] Speaker 00: My name is Andrew Downing. [00:00:16] Speaker 00: I'm representing the petitioner appellant Casey Cottingham in connection with a vaccine claim that has taken a very circular route with regards to attorney's fees as much as I enjoy hearing. [00:00:33] Speaker 04: You've had five decisions. [00:00:35] Speaker 00: Yes, yes. [00:00:37] Speaker 00: As much as I enjoy appearing before this court, I don't enjoy necessarily having to appear on the same issue twice, but that's where we are. [00:00:49] Speaker 00: Back in August of 2020, this court issued its decision in this case reversing Special Master Moran's denial of attorney's fees. [00:00:57] Speaker 00: The court performed a detailed review of the evidence, gave an extensive [00:01:02] Speaker 00: and thorough commentary on the reasonable basis standard and the evidence specifically in this case supporting reasonable basis. [00:01:12] Speaker 04: Counsel, as you say, reasonable basis is the issue. [00:01:17] Speaker 04: And with respect to latency period, did this vaccine for these certain symptoms [00:01:32] Speaker 04: Your Honor, the latency period varies from disease to disease. [00:01:50] Speaker 00: minutes to hours for anaphylaxis, days to weeks for other autoimmune type of injuries like Guillain-Barre syndrome, thrombocytopenia, other types of autoimmune processes this vaccine program deals with on a regular basis. [00:02:07] Speaker 00: Autonomic dysfunction, which is what Ms. [00:02:09] Speaker 00: Cottingham has, is a different animal altogether. [00:02:14] Speaker 00: I was going to touch on the latency later, but I think [00:02:20] Speaker 04: Your Honor, at appendix. [00:02:27] Speaker 00: Correct. [00:02:28] Speaker 00: Those are two symptoms associated with autonomic dysfunction. [00:02:33] Speaker 00: Special Master Moran relies on the product monograph where they only measure [00:02:38] Speaker 00: the manifestation of the symptom to that endpoint. [00:02:41] Speaker 00: It doesn't mean that those symptoms cannot and do not manifest well after that. [00:02:46] Speaker 00: And I would refer your honors to appendix page 285, which is the Kineshita article. [00:02:53] Speaker 00: Special Master Moran had that article at the time. [00:02:55] Speaker 00: He wrote his decision. [00:02:57] Speaker 00: And about the third line in the abstract, they discuss because they tested for these specific injuries and found the median onset range to be five months. [00:03:08] Speaker 00: in confirmed cases. [00:03:10] Speaker 00: So this is not an unreasonable latency period between initiation of a vaccine and an immune response and manifestation of symptoms. [00:03:21] Speaker 00: This is probably, not probably, it is the most novel vaccine in the program right now. [00:03:28] Speaker 00: And the research on this vaccine in terms of injuries caused and latency periods is still developing. [00:03:35] Speaker 00: But the paper and the one I just referenced, the Kenesheeta article, came out in 2014. [00:03:42] Speaker 00: That's what we had at the time we filed Casey Cottingham's case in 2015. [00:03:47] Speaker 00: We didn't have the cases that Special Master Moran cites to in trying to tear down the literature. [00:03:53] Speaker 00: We didn't have those cases then. [00:03:54] Speaker 00: Those cases were decided in 2020. [00:03:56] Speaker 00: In 2015, [00:04:00] Speaker 00: The evidence will show through the medical literature that we submitted and the other issues that this Court has already addressed, which I want to touch on, that that type of onset time frame was well accepted by the medical community at that point in time and still is today. [00:04:19] Speaker 00: So I think that Special Master Moran wants to use other onset time frames and apply them to this particular case, which is why we filed the medical literature in the first place. [00:04:32] Speaker 00: Your Honors, we still have. [00:04:34] Speaker 00: Nothing in this case has changed since the last time. [00:04:38] Speaker 00: And I believe Judge Raina and Judge Hughes, you were on our panel last time. [00:04:42] Speaker 00: Nothing has changed since you guys looked at the evidence the last time. [00:04:45] Speaker 00: We still have an under oath attestation from this individual. [00:04:49] Speaker 00: We're not. [00:04:49] Speaker 00: We're not. [00:04:50] Speaker 00: I'm sorry, Your Honor. [00:04:51] Speaker 03: We're not you guys. [00:04:53] Speaker 00: What's that? [00:04:54] Speaker 03: We're not you guys. [00:04:55] Speaker 00: Well, I apologize, Your Honor. [00:04:57] Speaker 00: That was slang. [00:04:58] Speaker 00: I apologize for that. [00:05:02] Speaker 00: We still have the under oath testimony from the witness with personal knowledge as to system onset. [00:05:06] Speaker 05: What's different in this case is that the special master did consider the evidence that he didn't the first time. [00:05:16] Speaker 00: Well, he went to great lengths, 83 pages of a decision to... When you say nothing is different, that's not entirely correct. [00:05:24] Speaker 05: Here we have the special master [00:05:27] Speaker 05: reviewed the evidence that he said he did not review last time, and that's why he's here until last time. [00:05:36] Speaker 00: Your Honor, I think that is a true statement, and I think it's worse than the last time we were here, because what Special Master Moran did holds a petitioner in the vaccine program too far too high of a burden. [00:05:50] Speaker 00: to look at. [00:05:52] Speaker 05: And I think that's where, right now, this case lies. [00:05:56] Speaker 05: So let's talk a little bit about the burden. [00:05:59] Speaker 05: When we're dealing with reasonable basis, when we're looking at reasonable basis as standard within the Vaccine Act, and we're looking at it solely through the lens of attorney's fees, what is it we're trying to show at reasonable basis? [00:06:16] Speaker 05: Is it feasibility, or is it a likelihood of success? [00:06:20] Speaker 00: It definitely is not a likelihood of success. [00:06:24] Speaker 00: Feasibility has been the word that has been traditionally used, just that the case was feasible, not that there is a likelihood of success. [00:06:33] Speaker 00: And I think, Your Honor, I spent a lot of time in this on my brief, but the Court of Federal Claims recently addressed this exact issue [00:06:43] Speaker 00: with this exact special master doing the exact same thing that he did to another petitioner that he's done here. [00:06:50] Speaker 00: It's the Werkshafter case. [00:06:53] Speaker 00: It is 155, federal claim 665. [00:07:03] Speaker 00: And your honors, in that instance, on review, [00:07:10] Speaker 00: This is the language. [00:07:11] Speaker 00: And I think that what the Court of Federal Claims looks at traditionally is you just have to show some evidence. [00:07:19] Speaker 00: That's a tough word to define in terms of a legal standard. [00:07:24] Speaker 00: But some evidence is what is required to be shown. [00:07:30] Speaker 00: And in work chapter, when the court looked at what Special Master Moran did, [00:07:35] Speaker 00: he said, the court stated, in the instant case, despite expressly acknowledging that Ms. [00:07:42] Speaker 00: Workshapter's medical records, quote, provide some facial support, end quote, for her claim, the special master inexplicably determined that Ms. [00:07:52] Speaker 00: Workshapter did not present evidence sufficient to meet the reasonable basis standard in reliance upon what the court can characterize as nothing more than a merits decision on the compensation claim itself. [00:08:04] Speaker 00: that is exactly what happened here. [00:08:07] Speaker 02: Is it? [00:08:07] Speaker 02: I mean I thought here he found no sufficient evidence of causation. [00:08:13] Speaker 02: I mean he wrote a very detailed opinion. [00:08:16] Speaker 02: You seem to take him to task for writing 82 pages. [00:08:19] Speaker 02: I mean I think it shows that he's being very careful here because he's had to look at this so many different times that he went through in detail and explained why there's no reasonable basis in this case. [00:08:30] Speaker 02: I mean that's a factual question, right? [00:08:32] Speaker 02: Reasonable basis? [00:08:34] Speaker 00: to an extent. [00:08:35] Speaker 02: What do you mean to an extent? [00:08:37] Speaker 00: Because it is, while it is a factual discretionary determination, that when you extend that burden too far, it is not only contrary to law, but it's an abuse of that discretion. [00:08:48] Speaker 02: Well where in his opinion do you think he didn't apply a reasonable basis test? [00:08:53] Speaker 00: Let me start with some of the language in this decision that I think completely controverts the reasonable basis standard. [00:09:02] Speaker 00: At page 219 of the appendix, Special Master Moran specifically states, quote, the federal circuit saw the present case as one in which Ms. [00:09:10] Speaker 00: Cottingham had presented some evidence of reasonable basis. [00:09:14] Speaker 00: End quote. [00:09:15] Speaker 00: That's it. [00:09:15] Speaker 00: That's the standard. [00:09:17] Speaker 00: We presented some evidence to satisfy it. [00:09:20] Speaker 02: But it does go on, Your Honor, I can give additional... Well, you can give that, but that's a characterization of our opinion. [00:09:26] Speaker 02: And if you look at our opinion, we explicitly said we're making no findings whatsoever on a reasonable basis, that that's a factual finding for the special master. [00:09:36] Speaker 02: So the fact that he looked at our opinion that way doesn't provide any evidence that he's applying the wrong standard. [00:09:42] Speaker 00: No, it doesn't end of itself. [00:09:45] Speaker 00: But then whenever he continues, and he quotes the exact same evidence that Your Honor's considered in the previous opinion at Appendix 247, he finds that Ms. [00:09:54] Speaker 00: Cottingham's medical records showing her injuries post-vaccination constitute some evidence consistent with a finding of causation. [00:10:02] Speaker 00: That's Special Master Moran's findings in this case. [00:10:05] Speaker 00: at page 260 of the appendix. [00:10:07] Speaker 00: Special Master Moran acknowledged that the product insert constitutes some evidence consistent with causation of her injuries. [00:10:14] Speaker 00: So he's made specific findings once again in this case detailing the evidence that supports reasonable basis and then... So your view is basically any evidence is sufficient for reasonable basis. [00:10:30] Speaker 00: I don't think you could put it that way, Your Honor, because obviously there has to be some showing by a petitioner of objective evidence that would make the claim feasible, which is exactly what we have done in this case. [00:10:41] Speaker 02: Well, he disagreed with you, though. [00:10:43] Speaker 00: Well, he did. [00:10:43] Speaker 02: And that's an actual finding that you have to show clear error in. [00:10:47] Speaker 00: I agree. [00:10:49] Speaker 00: I think, well, on the discretionary findings, yes, I have to be able to show that he abused his discretion in making those. [00:10:57] Speaker 00: Or is he failing to apply the proper standard to a reasonable basis analysis? [00:11:04] Speaker 00: If that's the case, that is contrary to law. [00:11:06] Speaker 00: Because the reasonable basis analysis in a causation assessment [00:11:10] Speaker 00: which is what he did in this decision. [00:11:12] Speaker 02: I'm a little confused about what you're trying to say because reasonable basis is the test. [00:11:17] Speaker 02: Are you saying there's some further articulation of the test or it's just this is a discretionary decision? [00:11:23] Speaker 02: The special master looks at the evidence presented in the claim and determines whether it initially presented a reasonable basis or not. [00:11:31] Speaker 02: That's it. [00:11:32] Speaker 02: Reasonable basis is the test. [00:11:34] Speaker 02: And he finds there's no reasonable basis here because there was insufficient evidence of causation. [00:11:39] Speaker 02: What's the clear error or abuse of discretion in that? [00:11:42] Speaker 00: The clear error, Your Honor, is there cannot be a reasonable basis test where each and every piece of evidence is strictly and over the top evaluated and tried to bring down. [00:12:01] Speaker 02: I really do not understand this point. [00:12:05] Speaker 02: I mean, it sounds to me like there's a thread throughout your briefing and even your argument here today that somehow Special Master Moran is biased against you or is treating you unfairly. [00:12:16] Speaker 02: I mean, you have a sentence in your brief that says clearly he took his multiversals personally. [00:12:21] Speaker 02: What's your basis for that? [00:12:22] Speaker 02: I mean, you don't do yourself any favors by attacking the credibility and good faith of the Special Master. [00:12:30] Speaker 00: Your honor, the point here is this is not the first time that this has happened. [00:12:38] Speaker 00: It happens over and over again with Special Master Moran. [00:12:41] Speaker 00: It's happened in this case. [00:12:42] Speaker 00: It happened in word chapter. [00:12:43] Speaker 00: It's the exact same problem. [00:12:44] Speaker 02: Well, if it happened in this case and you think it's a problem, why didn't you seek his recusal? [00:12:49] Speaker 02: If you think he's biased against you in this case, you could have sought his recusal from the court of federal claims. [00:12:54] Speaker 00: I did not say he was biased against me in this case. [00:12:58] Speaker 02: i said that we just said it happens over and over again insinuating that he's not performing his duties fairly you know what the the point of that is so let's use coddingham's original appeal before this court and the case that you know i think you're way over reading our original opinion in this case all we said is he said there is no evidence at all [00:13:22] Speaker 02: And we looked at the record and said, well, there's evidence right here. [00:13:25] Speaker 02: You need to consider it. [00:13:26] Speaker 02: We didn't say anything about whether that was sufficient evidence, whether it provided a reasonable basis. [00:13:32] Speaker 02: I mean, we specifically say to be clear, we make no determination on the weight of the objective evidence, because that's the special master's job. [00:13:41] Speaker 02: And isn't that what he did here? [00:13:42] Speaker 02: He looked at the entire record, very carefully explained why the weight of that evidence didn't establish a reasonable basis. [00:13:49] Speaker 02: And now you're asking us to second guess that. [00:13:52] Speaker 00: Your Honor, I do not over-read the original Cottingham opinion from this Court. [00:13:58] Speaker 00: What happened here is, of course, Your Honors went through the evidence, talked about the evidence. [00:14:06] Speaker 00: Of course, at the end of the opinion, it's qualified that you're not making any specific rulings in terms of reasonable basis, but your opinion [00:14:17] Speaker 00: identifies multiple elements of evidence that would support reasonable basis. [00:14:24] Speaker 00: So did Special Master Moran. [00:14:26] Speaker 00: And the whole argument that we're here for today. [00:14:28] Speaker 02: That would potentially support it, but had to make a determination of whether it actually was a reasonable basis. [00:14:37] Speaker 02: If you're saying as soon as you identify a piece of evidence that potentially might support a reasonable basis, that automatically makes it a reasonable basis. [00:14:45] Speaker 02: That's no standard whatsoever. [00:14:47] Speaker 00: No, and I would agree with that. [00:14:49] Speaker 00: But what we're saying here is, for example, when you have an under oath witness statement, is that objective evidence that can support reasonable basis? [00:14:59] Speaker 00: Of course. [00:15:01] Speaker 00: If the medical chart corroborates what the under oath attestation says, is that reasonable basis? [00:15:06] Speaker 00: Possibly. [00:15:08] Speaker 00: When you have the product monograph that specifically... But possibly not. [00:15:14] Speaker 00: That is true. [00:15:15] Speaker 02: And that the possibly not is what he ultimately found here. [00:15:20] Speaker 02: Sorry, I've eaten through all of your rebuttal time. [00:15:25] Speaker 02: You can finish if you want. [00:15:27] Speaker 00: Okay. [00:15:28] Speaker 00: Your Honor, let me just close with the fact that there's two things to take away from this. [00:15:34] Speaker 00: The way the Court of Federal Claims addressed this exact issue in Word Chapter is how it should be addressed. [00:15:40] Speaker 00: You cannot say with facts like this that there is not some evidence, especially when the special master in the decision says this is some evidence that would tend to support causation. [00:15:52] Speaker 00: The second thing, Your Honor, is if the reasonable basis standard is applied in this fashion in the vaccine program, [00:16:03] Speaker 00: you lose the original intent of the act, which is to make certain that victims have access to competent counsel. [00:16:10] Speaker 00: The way reasonable basis is being applied in the vaccine program is already having a chilling effect on lawyers being willing to take these cases, that are close call cases, because they can't get paid. [00:16:23] Speaker 04: Thank you, counsel. [00:16:23] Speaker 04: Thank you. [00:16:24] Speaker 04: You have two minutes for a bottle. [00:16:25] Speaker 00: Thank you, your honor. [00:16:27] Speaker 04: Mr. Johnson. [00:16:29] Speaker 04: Thank you, your honor. [00:16:31] Speaker 01: Good morning. [00:16:32] Speaker 01: May it please the court? [00:16:34] Speaker 01: The special master did what the court asked him to do on remand. [00:16:39] Speaker 01: The court sent the case back to him with specific instructions to analyze the evidence that he had not addressed in his original opinion and to make a determination whether there was a reasonable basis based on that evidence. [00:16:55] Speaker 02: What do you make of his argument that [00:16:58] Speaker 02: in his final opinion, the Special Master acknowledged that there's some evidence of causation and there's pointing to these things. [00:17:07] Speaker 02: Why isn't the fact that there's some evidence enough for a reasonable basis? [00:17:12] Speaker 01: So later in the Special Master's decision, and this is beginning on page [00:17:23] Speaker 01: Appendix 260, the Special Master goes through each of the symptoms and each of the injuries that Ms. [00:17:30] Speaker 01: Cottingham is alleging. [00:17:31] Speaker 01: And he analyzes the evidence with respect to that specific injury or symptom and makes a determination as to whether there is a reasonable basis based on that evidence. [00:17:41] Speaker 01: What he found was that with respect to syncope or fainting and to headaches, that the product insert provides more than a scintilla of evidence to support causation for those two specific symptoms. [00:17:53] Speaker 01: But he then went on to explain that because of the four-month latency between the vaccination and the onset of those symptoms, in this case, I mean, at best four months for the fainting, it's actually longer. [00:18:04] Speaker 01: But that given that latency, the product insert doesn't really provide any support for petitioners claim because [00:18:11] Speaker 01: Based on the product insert, the only time frame for which there is evidence to support some basis for causation is 15 minutes for fainting and 15 minutes for headaches. [00:18:21] Speaker 05: And you would say, I guess, if that's a question of fact. [00:18:25] Speaker 01: That is absolutely a question of fact, Your Honor. [00:18:28] Speaker 05: My concern is not whether the special master reviewed the evidence or not. [00:18:36] Speaker 05: My concern is, [00:18:38] Speaker 05: What's the standard that he used to reach reasonable basis? [00:18:43] Speaker 05: Is it likelihood of success? [00:18:45] Speaker 05: And if that's the case, then don't we have a situation where, not just in this case, but in the vaccine now, in order to qualify or receive attorney's fees, you have to show a reasonable basis. [00:19:01] Speaker 05: And that reasonable basis, the standard for that is likelihood of success, because it's the standard for the merits. [00:19:08] Speaker 05: So do you have to prove your case, your vaccine act case, along the timeline of a lawsuit? [00:19:17] Speaker 05: Do you have to prove it every time? [00:19:22] Speaker 05: So answer that question. [00:19:24] Speaker 01: I believe, if I understand your question, the special measure made it clear throughout his decision that he was not requiring petitioner to submit preponderant evidence in order to establish a reasonable basis. [00:19:36] Speaker 01: The special master applied the standard that this court handed down in both Cottingham and James Cornelius in which it said that reasonable basis is more than a mere scintilla but less than a preponderance. [00:19:50] Speaker 01: I don't believe he was, and I think he makes that clear throughout his decision, that he is looking for evidence that falls as Judge Dietz characterized it within a range. [00:20:00] Speaker 05: If he was setting that standard or looking at this case to do that summary, that would be error, right? [00:20:08] Speaker 01: If the special master had required evidence that would be sufficient to prove the merits of the claim in a reasonable basis analysis, that would be error. [00:20:16] Speaker 01: But we submit that's not what he did here. [00:20:18] Speaker 01: He acknowledged that, and no one's arguing that the evidence in this case was sufficient to surpass the preponderance threshold. [00:20:27] Speaker 01: Ms. [00:20:27] Speaker 01: Cottingham withdrew her claim a year after it was filed before any decision on the merits had even been made. [00:20:33] Speaker 01: I don't think there's an argument here that the evidence surpasses the preponderance level. [00:20:38] Speaker 01: But even so, the Special Master acknowledged that that's not the standard for reasonable basis. [00:20:42] Speaker 05: It is a case that you can lose your case, your vaccine case, down the line. [00:20:47] Speaker 05: Yes, Your Honor, and that happens in the vast majority of cases. [00:20:55] Speaker 01: There are very few cases in which the government actually asserts a reasonable basis objection. [00:21:00] Speaker 01: It is in those cases where there is a clear failure of evidence as to [00:21:04] Speaker 01: one element of the claim that's set forth in Section 11C. [00:21:09] Speaker 01: And that was the standard that this court handed down in Cottingham. [00:21:13] Speaker 01: It said that a reasonable basis requires more than a centilla, but less than a preponderance of objective evidence addressing each of the elements in Section 11C of the Act. [00:21:22] Speaker 01: And so that is the standard and the framework that the special counsel has filed. [00:21:27] Speaker 02: So is your view, and I think this is [00:21:30] Speaker 02: the way the special master looked at this is there is evidence suggesting that the vaccination could cause these symptoms. [00:21:38] Speaker 02: And so there's some evidence on that point. [00:21:41] Speaker 02: The problem here is that the latency period was so long that it was unexplained and therefore there was no evidence whatsoever connecting the two, the vaccination with the injuries because of the significant latency period. [00:21:58] Speaker 01: Correct, exactly what you said, that the fact that the product insert lists those two symptoms as symptoms for which there are some basis in science to believe that the vaccine can cause them, that that provided more than a scintilla of evidence with respect to those two symptoms. [00:22:16] Speaker 01: But as he acknowledges and as Judge Dietz found, this court's standard doesn't require a reasonable basis automatically upon a finding of more than a mere scintilla, that there's then [00:22:27] Speaker 01: a range within the special master could still find that the evidence doesn't rise to a level of reasonable basis. [00:22:34] Speaker 02: And that was the issue here, is that... So if she had reported these symptoms as occurring within two days after the vaccination, we wouldn't be here, right? [00:22:43] Speaker 02: We would not be here. [00:22:46] Speaker 02: And presumably, if she had reported these symptoms occurring two years after the vaccination, we wouldn't be here either for the other way, because there seems to be no suggestion that it would be that big of a gap. [00:22:56] Speaker 01: Right. [00:22:58] Speaker 01: And I think even Mr. Downing, when we had oral argument in front of the special master after the remand, acknowledged that he would not file a case where the onset of symptoms was two or three years post-vaccination. [00:23:10] Speaker 01: So he's getting closer at four months. [00:23:13] Speaker 01: But again, this is a discretionary decision by the special master to decide whether, in his view, that establishes a reasonable basis for bringing the claim. [00:23:27] Speaker 01: Uh, so we believe that the, the sole issue before the court, um, you know, we, we submit that the special master applied the standard that this court handed down. [00:23:36] Speaker 01: Uh, we, um, submit that the only issue for this court's decision at this point is to determine whether his weighing of the evidence was rational. [00:23:43] Speaker 02: Is there some specific articulation of, and, you know, cause the statute just says reasonable basis. [00:23:50] Speaker 02: Is there some other specific articulation? [00:23:53] Speaker 02: that any courts have provided or is it just this because that's what the statute said and it's a factual question that's left up to the special master. [00:24:01] Speaker 02: I mean we struggle a little bit with this because it does seem that it's a fairly loose term and if you give the special master discretion then where are the bounds of that discretion. [00:24:12] Speaker 01: And I'll be honest with you. [00:24:14] Speaker 01: I think both the special master and Judge Dietz struggle with that in this case. [00:24:17] Speaker 01: And the special master even says at one point in the decision, an appellate court could set the bounds closer to preponderance or closer to more than a mere scintilla. [00:24:27] Speaker 01: But absent that guidance at this point, that's the range that the special masters have to work within. [00:24:34] Speaker 02: I mean, have you all thought about this at Justice about what the proper articulation of the burden should be? [00:24:42] Speaker 01: We have, obviously. [00:24:43] Speaker 01: And the reasonable basis seems to be a fairly unique provision. [00:24:51] Speaker 01: It's not used in other fee-shifting statutes that we've been able to find. [00:24:58] Speaker 01: We submit that the court's standard, as articulated in Cottingham and James Cornelius, is sufficient at this point, that the special master here applied that standard. [00:25:06] Speaker 01: But if the court were inclined to provide some more guidance, the formulation that the court has used, more than a scintilla but less than a preponderance, has been [00:25:19] Speaker 01: Similar language has been used when courts have discussed the substantial evidence standard. [00:25:23] Speaker 01: Judge Raina, in fact, you issued an opinion a few years ago. [00:25:27] Speaker 01: This is Henry AT&T Intellectual Properties, 856 F3rd, 991, in which you wrote, substantial evidence is more than a marathon tillet. [00:25:37] Speaker 01: It is evidence that a reasonable mind might accept is adequate to support a conclusion. [00:25:42] Speaker 01: Courts and other jurisdictions have also defined substantial evidence the same way this court framed the Vaccine Act's reasonable basis standard. [00:25:50] Speaker 02: It's a little, I understand where you're going with that because the language is the same, but I struggle with the notion that Congress intended a substantial evidence standard to apply here because that was really well known. [00:26:02] Speaker 02: And if they admit substantial evidence to support a fee, I think they would have said that. [00:26:07] Speaker 02: So it seems to me that it must be given the [00:26:11] Speaker 02: the policy goals of inviting in good counsel to represent these cases, that it has to be somewhat less than the substantial evidence standard, I would think. [00:26:22] Speaker 02: So you're not aware of it, because I know there are other automatic fee-shifting statutes out there. [00:26:30] Speaker 02: I don't know what the statute is, but when you bring cases on behalf of [00:26:34] Speaker 02: Children with disabilities from the school system is not fulfilling their needs. [00:26:38] Speaker 02: There's I believe an automatic be shifting center there I don't know if you're familiar with that or if that is automatic and [00:26:45] Speaker 02: or if it has an L, just like the reasonable basis went here. [00:26:49] Speaker 01: I can check into that. [00:26:50] Speaker 01: I'm not familiar with that particular statute. [00:26:52] Speaker 01: I know most of the fee-shifting statutes where the government is involved requires a party to substantially prevail. [00:26:59] Speaker 01: Well, sure. [00:26:59] Speaker 01: Then that's a different thing. [00:27:01] Speaker 02: But EJA is a much higher burden. [00:27:03] Speaker 02: I mean, EJA, you don't get fees against the government unless you can show, I mean, if the government can show that they were substantially justified. [00:27:13] Speaker 02: it's really hard to get fees sometimes in those cases, where this is clearly meant to be the other way. [00:27:19] Speaker 02: It's to be a very low burden, but not a zero burden. [00:27:24] Speaker 01: That's our view. [00:27:25] Speaker 01: I mean, we think that there has to be some meaning to the term reasonable basis. [00:27:28] Speaker 01: And while Congress did intend for the fee-shifting provision in the act to provide for competent counsel for petitioners, as the special officer pointed out, this court has denied and, in per era, found that fees weren't available there. [00:27:42] Speaker 01: So there are obviously cases where our finding that there is no reasonable basis is appropriate. [00:27:48] Speaker 01: And we would submit that this is one such case. [00:27:50] Speaker 05: But one thing we can all agree on is that, [00:27:52] Speaker 05: A reasonable basis does not mean you have to prove your case at the following level, right? [00:27:58] Speaker 05: So you may be wrong. [00:28:03] Speaker 05: A petitioner may be incorrect. [00:28:06] Speaker 05: They have to see certain evidence, like latency, and say, well, it's not clear here. [00:28:12] Speaker 05: It could be a month. [00:28:14] Speaker 05: It could be two weeks. [00:28:15] Speaker 05: But as long as there's that evaluation, and that's a reasonable evaluation, [00:28:20] Speaker 05: then the case goes on in terms of the attorney fees. [00:28:24] Speaker 01: Correct. [00:28:24] Speaker 01: We are not arguing that every case in which a petitioner fails to prove the merits, they shouldn't be denied fees. [00:28:29] Speaker 01: That's not what the statute says, and that we would never take that position. [00:28:33] Speaker 01: And again, we don't bring reasonable basis objections in very many cases. [00:28:37] Speaker 01: We try to limit them to those cases in which there is a clear failure of proof in one aspect of petitioner's case. [00:28:44] Speaker 05: So when we hear on this bench, if we're talking about the sufficiency of the latency period, [00:28:50] Speaker 05: So there is enough or not. [00:28:52] Speaker 05: That's really not an issue, is it? [00:28:54] Speaker 05: And not for us. [00:28:55] Speaker 05: That's a factual issue that's already been determined. [00:28:58] Speaker 05: The question is whether the special master's decision as to that particular point is reasonable or not. [00:29:07] Speaker 05: And that's based on whether the reasonableness is based on feasibility. [00:29:16] Speaker 01: Correct. [00:29:16] Speaker 01: And that was the factual determination for the special master to make, whether the four-month latency in this case was too remote in time to be able to confer a reasonable basis for the claim and the petition. [00:29:29] Speaker 01: He decided it wasn't. [00:29:31] Speaker 01: Other special masters may have disagreed. [00:29:33] Speaker 02: You mean he decided it was too remote? [00:29:35] Speaker 01: He decided it was too remote. [00:29:37] Speaker 02: And that's the linchpin for his opinion. [00:29:41] Speaker 02: And for us to reverse, we would have to find that that was either an abusive... I'm a little confused. [00:29:46] Speaker 02: Is that a factual finding? [00:29:48] Speaker 01: Yes. [00:29:48] Speaker 02: So then that's a clear error review. [00:29:51] Speaker 01: Correct. [00:29:52] Speaker 02: So we would have to find clear error in the determination that four months is too remote. [00:29:57] Speaker 01: Yes, that there was no rational basis for his determination that four months is too long. [00:30:05] Speaker 01: Unless the court has further questions, we would ask the court to affirm this such master's decision. [00:30:11] Speaker 04: Thank you, Mr. Johnson. [00:30:13] Speaker 04: Mr. Browning, we'll give you two minutes for a body. [00:30:16] Speaker 00: Thank you, Your Honor. [00:30:18] Speaker 00: I appreciate you giving me just a bit of extra time there. [00:30:24] Speaker 00: So just very briefly, I think [00:30:28] Speaker 00: Judge Rainier, your questions with regards to feasibility versus likelihood of success go to the heart of what, at least in part, our appeal has to deal with here. [00:30:43] Speaker 00: Originally, reasonable basis was evaluated as a scintilla, a scintilla of evidence, which means a spark of evidence. [00:30:52] Speaker 00: And I'm not sure how that helps us establish what the threshold is. [00:30:56] Speaker 00: But it's very small. [00:30:58] Speaker 00: Here, Special Master Moran applied the alpha prongs to reasonable basis. [00:31:07] Speaker 00: He looked at alpha prong one. [00:31:09] Speaker 00: Can vaccination do this? [00:31:11] Speaker 00: And has there been evidence submitted? [00:31:13] Speaker 00: He applied the prongs on causation. [00:31:16] Speaker 00: in determining whether reasonable basis exists. [00:31:19] Speaker 00: That is error. [00:31:21] Speaker 00: It's not a causation test. [00:31:22] Speaker 00: It's just not. [00:31:24] Speaker 00: All you have to do, again, is show feasibility with some evidence. [00:31:28] Speaker 05: And when Special Master Moran finds... So what are we talking about? [00:31:32] Speaker 05: The strength of a litigation theory or... [00:31:36] Speaker 05: the sufficiency of petitioners' belief that they have a case? [00:31:41] Speaker 00: Those are factors. [00:31:42] Speaker 00: I mean, I think the program still applies to totality of the circumstances. [00:31:47] Speaker 02: I'm a little confused when you say it's air to look at the outcome factors. [00:31:51] Speaker 02: You don't have to meet burdens of proof on the outcome factors, but don't you have to come forth with at least some evidence to show that you would you would meet them because that's what you need to prove your claim. [00:32:02] Speaker 02: Right. [00:32:02] Speaker 02: So how would you determine if you had a reasonable basis to meet that without looking at those factors? [00:32:07] Speaker 02: you can you can look at them your honor my point was he applied them his opinion well we can read his opinion and decide for ourselves whether he's doing what you think he's doing or whether you know he's doing what the court of federal claims seem to think which was applying the right reasonable basis standard and looking at whether there was sufficient evidence to form a reasonable basis on causation [00:32:31] Speaker 02: So let me just ask you this. [00:32:33] Speaker 02: If he makes, and we don't have the quibble about what it says, we can read the decision ourselves. [00:32:38] Speaker 02: If he made the factual finding that even though this vaccine can cause the identified injuries here, there's [00:32:47] Speaker 02: no reasonable basis to conclude or there's no evidence to suggest that it would happen four months after the vaccine. [00:32:55] Speaker 02: If he makes that factual finding and says you have submitted not a centella of evidence that it would occur four months, it's too late. [00:33:04] Speaker 02: That's a factual finding that we review for clear error, right? [00:33:08] Speaker 00: Correct. [00:33:09] Speaker 00: In total. [00:33:10] Speaker 02: Right. [00:33:11] Speaker 02: And what's wrong with that factual finding here? [00:33:14] Speaker 02: Why isn't it clear? [00:33:16] Speaker 00: As I indicated earlier, one of the reasons on latency was that we submitted the medical literature [00:33:27] Speaker 00: in existence at the time. [00:33:29] Speaker 02: You know, Special Master Moran tried to... Not with your claim, though, right? [00:33:32] Speaker 00: Way down the... But we cited it, and then we submitted it when, you know, we had to have our oral argument with Special Master Moran on remand. [00:33:42] Speaker 00: We submitted them to him for review. [00:33:45] Speaker 02: But not with the original... We didn't file it with the petition. [00:33:48] Speaker 02: Right. [00:33:49] Speaker 02: But... Isn't that what we look at, for a reasonable basis, what you filed with the petition? [00:33:54] Speaker 02: Well, as I said, not what you supplement the record with much later. [00:33:58] Speaker 00: Well, that that is partially true. [00:34:00] Speaker 00: As I said, we reference them throughout this, even our original in the petition. [00:34:07] Speaker 02: You're not being very direct about this. [00:34:10] Speaker 02: Did you submit any of this medical literature with the petition? [00:34:13] Speaker 02: I thought with the petition, you submitted her medical records, the Gardasil insert, and her description of the onset of the symptoms, and nothing else. [00:34:22] Speaker 00: I think that is true, Your Honor. [00:34:24] Speaker 00: I'm not sure we submitted the medical literature until our first motion for fee was in the case. [00:34:29] Speaker 02: Well, why is that good enough? [00:34:31] Speaker 02: I mean, don't you look at the filing of the petition to see whether it had a reasonable basis? [00:34:36] Speaker 02: And there, all you have is her medical records, nothing that suggests that a four-month latency period is good enough. [00:34:46] Speaker 00: Your Honor, as I said, to litigate reasonable basis, there is a separate motion for compensation. [00:34:55] Speaker 02: I understand that. [00:34:56] Speaker 02: But am I wrong? [00:34:57] Speaker 02: Don't you look at what? [00:34:59] Speaker 02: You submitted in the petition originally when when the government brings an objection at the outset and says there's a reasonable basis for this petition. [00:35:07] Speaker 02: You look at what's in the petition. [00:35:10] Speaker 00: Correct. [00:35:10] Speaker 00: In part. [00:35:11] Speaker 00: I mean, on a motion for fees, the filing party is not solely bound to the evidence from the petition. [00:35:21] Speaker 00: There are multiple items that get submitted during a motion for fees that weren't in the petition originally, not the least of which is the invoice from counsel. [00:35:29] Speaker 00: But if experts haven't testified, we may submit CVs from them to support it. [00:35:36] Speaker 00: I just want to touch very quickly on the latency thing, because I know that [00:35:40] Speaker 00: that that's an issue that Special Master Moran seemed to come back to multiple times. [00:35:46] Speaker 00: I just want to refer the court again to Appendix 285, because not only is a five-month latency period average for this disease process, but the very first two things that are noted after that five-month period is frequent manifestation include headaches, fatigue, [00:36:07] Speaker 00: limb pain, weakness, and it goes on to list symptoms. [00:36:09] Speaker 04: It's the same symptoms in this case.