Mazzone v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS ************************* JANMARIE MAZZONE, * No. 22-1891V * Petitioner, * * Special Master Christian J. Moran v. * * Filed: June 25, 2026 SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * ************************* Jessi Carin Huff, Maglio Christopher & Toale, Seattle, WA, for petitioner; James Vincent Lopez, United States Dep’t of Justice, Washington, DC, for respondent. PUBLISHED DECISION AWARDING ATTORNEYS’ FEES AND COSTS 1 Janmarie Mazzone alleged that an influenza vaccine she received on November 30, 2021, caused her to develop Guillain-Barré syndrome (“GBS”). After filing medical records and receiving the Secretary’s assessment that she was not entitled to compensation, Ms. Mazzone dismissed her case voluntarily. Entitlement Decision, issued July 22, 2024, 2024 WL 3825581. Ms. Mazzone is now seeking an award of attorneys’ fees and costs. The Secretary opposes on the ground that Ms. Mazzone has not established a prerequisite for a discretionary award of attorneys’ fees, namely reasonable basis. For the reasons explained below, Ms. Mazzone has established a reasonable basis for her claim. Thus, she is eligible for a reasonable award of attorneys’ fees and costs. For Ms. Mazzone, a reasonable amount of attorneys’ fees and costs is $74,789.83. 1 Because this decision contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims’ website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government Services). This means the decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), the parties have 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. Any changes will appear in the document posted on the website. I. Events in Ms. Mazzone’s Medical History 2 Ms. Mazzone was born in 1960. Exhibit 5 at 541. She alleges she did not have any history of neurologic disease before the allegedly causal vaccination. Pet., filed Dec. 12, 2022, ¶ 7. The Secretary, likewise, did not assert that any medical problem before the vaccination that may have contributed to Ms. Mazzone developing GBS, which occurred after her vaccination. See Resp’t’s Rep’t, filed Dec. 7, 2023, at 6-9. Although Ms. Mazzone technically alleged as an alternative cause of action, that the flu vaccine significantly aggravated an underlying neurologic problem, this pleading lacks any factual support. Thus, this decision does not further discuss a cause of action based upon significant aggravation. Relevant medical history begins in November 2021, when she had developed renal calculi. She was hospitalized at Kaiser for treatment of these renal calculi. During the hospitalization on November 27, 2021, she tested negative for COVID-19. Exhibit 5 at 406. She received the allegedly causal flu vaccine on November 30, 2021. Exhibit 5 at 424. She left the hospital that day. Id. at 365. On December 3, 2021, Ms. Mazzone called her primary care physician, Nisha Jadhaw, and reported “having symptoms of congestion, rhinitis, headache, low grade temp, chills, [and a scratchy] throat.” Exhibit 1 at 735. Dr. Jadhaw suspected her symptoms had a “likely viral etiology.” Id. On December 26, 2021, Ms. Mazzone began to develop fever, fatigue, shortness of breath, cough, nausea, and vomiting. Using an at-home test, Ms. Mazzone was positive for COVID-19. Exhibit 5 at 541, 546, 578. Ms. Mazzone had not been vaccinated for COVID-19. Id. Ms. Mazzone’s infection with COVID-19 worsened. On January 5, 2022, Ms. Mazzone went to a hospital’s emergency department, reporting she “became increasingly weak over the past 24 hours, fell last night while trying to go to bathroom, and [was] barely able to stand up.” Exhibit 5 at 572. Her oxygen saturation in triage was 85% (normal: 95%-100%). Id. at 546. Ms. Mazzone was diagnosed with “sepsis with acute respiratory failure secondary to COVID pneumonia.” Id. at 578. She was treated with oxygen, bronchodilators, corticosteroids, anti- viral medication, and a blood thinner. Id. at 579. Her blood culture was positive for gram positive cocci bacteria, in clusters, and she was treated with IV antibiotics. Id. at 591-592, 594. Ms. Mazzone was hospitalized for seven days and discharged on January 12, 2022, in stable condition. Id. at 579-81. At discharge, she was prescribed an oxygen concentrator for home use and additional corticosteroids. Id. On January 17, 2022, forty-eight days after the flu vaccination, Ms. Mazzone was taken to the Kaiser emergency department (“ED”) via ambulance for “[right] back pain and chest pain that began th[at] evening.” Exhibit 5 at 496. Ms. Mazzone reported “she was doing fine 2 The relevant parts of Ms. Mazzone’s medical history are relatively few. Thus, this decision sets them out in abbreviated fashion. However, all medical records have been considered. 2 otherwise since being discharged” from her hospitalization for COVID-19. Id. On exam, Ms. Mazzone had a fever and tenderness of her chest wall. Id. at 497. She had no focal weakness or paresthesias. Id. at 498. Her white blood cell (“WBC”) count was abnormal. Id. at 499. Ms. Mazzone was treated with oxygen and pain medications and discharged home the next day in stable condition. Id. at 500-01. On January 25, 2022, fifty-six days after vaccination, Ms. Mazzone was taken by ambulance to the Kaiser ED for back pain, nausea, and vomiting. Exhibit 5 at 899-904. She reported having vomited three times since the prior night. Exhibit 6 at 6. In the ED, the physical exam was unremarkable. Exhibit 5 at 901. She was admitted to the hospital. In the hospital, she underwent various tests. A nasal swab test collected the morning of January 26, 2022, was positive for COVID-19, and negative for flu and RSV. Id. at 936, 974. Later on January 26, 2022, Ms. Mazzone reported numbness and tingling in her hands and ankles. Exhibit 5 at 911. She also reported that she had been “[a]ble to walk around [her] house w[ith out] problem until two days ago when she developed paresthesia, tingling in her feet and then leg weakness.” Id. at 981. Upon an examination, the doctor determined that she had minimal to no deep tendon reflexes in her upper extremities as well as bilateral weakness in both upper and lower extremities. The doctor ordered additional tests as well as a consultation with a neurologist. A lumbar puncture was performed on January 26, 2022. The results showed elevated protein, albumin, and glucose levels. Exhibit 5 at 1117. Neurologist John Neely, M.D.’s assessment was that Ms. Mazzone had “post-COVID [GBS], presenting with low back pain on 1/25 and weakness in her limbs, worse initially in her lower limbs, and numbness in her legs and hands beginning on 1/26,” and ordered IVIG. Id. at 988. Infectious disease specialist Zaina El-Isa, M.D., examined Ms. Mazzone and noted: 61 y[ea]r old female presented w[ith] neurological symptoms, COVID 1 month ago, presented with paresthesia and weakness started in lower limbs and associated with shortness of breath but no hypoxia. [Computed tomography angiography of the] chest negative for [pulmonary embolism]. Areflexia on physical exam, GBS in differential, reported 1 to 4 weeks post Covid infection with literature review, time lag of 1-4 weeks and may be attributable to the “immune mechanism of molecular mimicry.” Id. at 989. In this litigation, the parties agree that Ms. Mazzone suffered from Guillain-Barré syndrome. See Pet. ¶ 39; Resp’t’s Rep’t at 6. The parties, however, dispute when Ms. Mazzone first manifested symptoms or signs of the Guillain-Barré syndrome. Details about how GBS affected Ms. Mazzone do not inform the question of whether reasonable basis supports her claim that the flu vaccine caused her GBS. It is sufficient to note 3 that Ms. Mazzone experienced a severe case of GBS and her recovery, unfortunately, has not been complete. For example, she required a ventilator and a feeding tube. For additional details about the Ms. Mazzone’s course of GBS, see Pet. ¶¶ 24-39; Resp’t’s Rep. at 4-6. When doctors were caring for Ms. Mazzone, they sometimes commented upon the potential cause for her GBS. On May 9, 2022, as part of a telehealth appointment, Ms. Mazzone’s primary care doctor (Nisha Jadhaw) stated that her history included “GBS possibly 2/2 [secondary to] flu shot.” Exhibit 1 at 893. On July 20, 2023, her neurologist, Dr. Neely, stated that Ms. Mazzone had a “history of [GBS] that occurred in 1/2022 likely triggered by COVID.” Exhibit 11 at 553. II. Procedural History A. Before the Petition was Filed Ms. Mazzone first contacted the law firm that is representing her on May 10, 2022. Exhibit 17. 3 About two weeks later, a paralegal spent approximately three hours conducting a “thorough review of over 900 pages of client provided medical records.” Entry for May 26, 2022. It is likely that these 900 pages are records from Kaiser. About one week later, the attorney who represents Ms. Mazzone, Jessica Huff, spent about three hours reviewing “voluminous medical records” as well as other tasks. Entry for May 31, 2022. Attorney Huff spoke with Ms. Mazzone for about one hour on June 1, 2022. Ms. Huff gave Ms. Mazzone the firm’s “initial assessment of the hurdles and set expectations about retention and expectations for the longevity of cases within the program.” Over the few days, Ms. Mazzone retained the law firm. Paralegals ordered and tracked down medical records. By the end of October 2022, a paralegal spent more than 15 hours reviewing records from Kaiser. On November 10, 2022, a paralegal began drafting the petition. More medical records were collected. The petition was finalized and filed on December 22, 2022. The attorney who drafted the petition was Elizabeth Abramson. B. Petition Because the operative part of the Vaccine Act (42 U.S.C. § 300aa–15(e)) links “reasonable basis” to the “claim for which the petition was brought,” a close review of the petition is consistent with the statute. The petition’s preamble lacks specificity. In relevant part, the preamble states that Ms. Mazzone seeks compensation “for injuries resulting from adverse effects of a vaccination or vaccinations.” The petition mentions Ms. Mazzone was hospitalized in early January 2022, but does not allege that she was diagnosed with or suspected of having GBS at that time. See Pet. ¶¶ 16-17. The petition mentions Ms. Mazzone again sought hospital treatment for back pain among other problems on January 17, 2022, but similarly does not assert any GBS at that time. See Pet. ¶¶ 18-19. Rather, the petition alleges that Ms. Mazzone was 3 Exhibit 17 is the timesheet for the attorneys and paralegals who represented Ms. Mazzone. Future references to dates of her attorneys’ activities are based upon information in Exhibit 17. 4 evaluated for and diagnosed with GBS, (only) in connection with her third hospitalization at the end of January 2022. See Pet. ¶ 21. The petition also asserts that Ms. Mazzone continues to suffer from GBS. See Pet. ¶ 39. The petition asserts that Ms. Mazzone’s “injury is causally related to an adverse reaction to a vaccination.” Pet. ¶ 40. The petition did not claim that Ms. Mazzone suffered an on-Table injury. There is no indication in any time entry that an attorney attempted to consult an expert before filing the petition. 4 C. Completion of Entitlement Phase The Secretary contested entitlement. Resp’t’s Rep., filed Dec. 7, 2023. The Secretary argued that Ms. Mazzone’s petition did not set forth an on-Table GBS claim, as the onset of her symptoms was approximately 55 days after she received the flu vaccine. Resp’t’s Rep. at 6-7. Respondent further noted that Ms. Mazzone had not presented an expert report, and her treating doctors attributed her GBS to her COVID-19 infection. Id. at 8-9. To discuss the Secretary’s arguments against compensation, a status conference was held on February 8, 2024. Ms. Mazzone’s counsel was asked whether there was a valid on-Table claim. Ms. Huff said yes, because the onset of GBS was 48 days after vaccination. This explanation made little sense because the Secretary has associated the flu vaccine with GBS when the GBS develops within 3-42 days of flu vaccination. 42 C.F.R. § 100.3(a)¶ XIV.D. The Secretary, in turn, argued that the onset was actually 55 days. Thus, even if Ms. Huff’s interpretation of the evidence were correct, Ms. Mazzone could not prevail upon an on-Table claim. At Ms. Huff’s request, the parties were given an opportunity to resolve the case informally. The parties were unable to resolve the case informally. Pet’r’s Status Rep., filed March 8, 2024. Around this time, Attorney Huff began investigating the times for which an inference of causation is medically acceptable. See time entries for Mar. 21, 2024; Mar. 26, 2024; Apr. 03, 2024. In the ensuing status conference, Ms. Mazzone stated that she planned to obtain a report from an expert. When asked whether the petitioner’s expert would address the COVID-19 infection as a potential alternative cause, Ms. Huff said yes, because the COVID-19 infection is the elephant in the room. To guide the preparation of reports from experts, a set of expert instructions was issued in draft form, and the parties were allowed to comment. The parties did not raise any objections or concerns. Order, issued April 5, 2024. Despite this guidance, Ms. Mazzone did not submit a report from an expert. She sought dismissal of her case voluntarily. 4 Because Ms. Mazzone received the allegedly causal flu vaccine on November 30, 2021, the three-year statute of limitations was not close to expiring. See 42 U.S.C. § 300aa–16. 5 Pet’r’s Mot., filed July 1, 2024. Ms. Mazzone did not receive compensation. 2024 WL 3825581. D. Attorneys’ Fees and Costs After judgment entered, Ms. Mazzone was directed to present arguments regarding reasonable basis in conjunction with any request for attorneys’ fees and costs. Order, issued Aug. 26, 2024. Despite this instruction, Ms. Mazzone’s initial motion did not present any argument as to why the claim in her petition was supported by reasonable basis. Thus, the motion was struck. Order, issued Nov. 20, 2024. Ms. Mazzone requests an award of attorneys’ fees and costs via the pending motion, which was filed on December 11, 2024 (“Pet’r’s Mot.”). She requests $73,356.00 in attorneys’ fees and $3,433.83 in attorneys’ costs. Id. at 12. Ms. Mazzone generally argues that reasonable basis supports her claim. She goes so far as to assert that “Petitioner would argue that she had reasonable basis to pursue either an on-table or an off-table claim.” Pet’r’s Mot. at 8. With respect to onset, Ms. Mazzone asserted that the onset of her Guillain-Barré syndrome was 36 days after vaccination, when she became increasingly weak and fell. Pet’r’s Mot., citing Exhibit 5 at 546-50. Thus, according to this argument, Ms. Mazzone had a valid claim for an on-Table injury, (even though the petition did not assert it). Ms. Mazzone alternatively argued that onset was either January 17, 2022, or January 24, 2022, which are 48 days and 55 days after vaccination respectively. She cites cases to further contend that an interval of up to 55 days is medically appropriate to infer causation. With respect to alternative causation, Ms. Mazzone argued that because the Secretary bears the burden of proving alternative causation, the Secretary’s “alternative cause argument has no bearing on whether Petitioner had a reasonable basis to file her petition.” Id. at 11. The Secretary opposed any award of attorneys’ fees and costs. The Secretary argued for a complete denial of fees: Petitioner lacks a reasonable basis for her claim. The objective evidence indicates that petitioner neither began her case with a reasonable basis, nor did one emerge as her case progressed. For the reasons explained below, petitioner’s record evidence does not rise to more than a scintilla of evidence in support of her claim. Her Fee Motion must be denied. Resp’t’s Resp., filed Jan. 8, 2025, at 12. The Secretary reviewed each of the three elements required to establish causation-in-fact, see Althen v. Sec’y of Health & Hum. Servs., 418 F.3d 1274, 1278 (Fed. Cir. 2005), and argued that Ms. Mazzone did not submit a scintilla of evidence on any prong. The Secretary also maintained that Ms. Mazzone’s “failure to recognize COVID- 19 as the likely cause of her GBS before reviewing respondent’s Rule 4(c) Report does not confer reasonable basis to her claim.” Id. at 16. 5 5 In accord with the Secretary’s practice, the Secretary did not interpose any objection to the amount of attorneys’ fees and costs requested. 6  Ms. Mazzone defended her request for attorneys’ fees and costs. She argued that any of the three proposed onset dates were medically acceptable. Pet’r’s Reply, filed Jan. 21, 2025, at 2. With respect to the Secretary’s argument that she did not present a medical theory, Ms. Mazzone argued that the Secretary’s “entire argument here does not take the timing of this case into account.” Id. at 3. She also continued to dispute whether she was required to address alternative causation as part of reasonable basis. Id. at 3-4. Ms. Mazzone also cited Dr. Jadhaw’s note that Ms. Mazzone’s “GBS possibly 2/2 [secondary to] flu shot.” Id. at 4, citing Exhibit 1 at 893. Ms. Mazzone maintains that she could not have known, “prior to consulting with an expert, that she could not prevail in this case. However, this attributes expertise in the area of neurology onto Petitioner and counsel, something that is not required under this program.” Id. at 3. With the submission of the reply, the case is ready for adjudication. The analysis is contained in two separate parts. The first part addresses whether Ms. Mazzone should receive any attorneys’ fees and costs. Because the answer to that analysis is yes, the second part analyzes the amount of attorneys’ fees and costs that is reasonable. III. Analysis Part One: Eligibility for Attorneys’ Fees and Costs The first part of the analysis is to determine whether Ms. Mazzone should receive any attorneys’ fees and costs. This analysis is contained in three sections. Section A sets forth the standards for determining whether reasonable basis supports the claims in a petition. Section B considers whether Ms. Mazzone met her burden to show reasonable basis. Finally, Section C resolves whether Ms. Mazzone should be awarded her reasonable attorneys’ fees and costs as a matter of discretion. A. Standards for Adjudication regarding Reasonable Basis To be entitled to compensation, petitioners must establish five elements, which are found in 42 U.S.C. § 300aa–11(c)(1)(A)-(E). When petitioners establish all five elements with preponderant evidence (and respondent does not establish an alternative factor explaining the medical disorder), petitioners are entitled to receive compensation. 42 U.S.C. § 300aa–13. One type of compensation successful petitioners receive is an award of reasonable attorneys’ fees and costs. 42 U.S.C. § 300aa–15(e). By way of contrast, petitioners who did not establish entitlement are not awarded attorneys’ fees and costs automatically. The Vaccine Act grants special masters discretion to award attorneys’ fees and costs upon a showing of two items: “that the petition was brought in good faith and there was a reasonable basis for the claim for which the petition was brought.” 42 U.S.C. § 300aa–15(e). 6 As the fee applicant, Ms. Mazzone bears the burden of demonstrating reasonable basis. McKellar v. Sec’y of Health & Hum. Servs., 101 Fed. Cl. 297, 305 (2011). It is well established that the standard of establishing reasonable basis is lower than a preponderance of the evidence. The Federal Circuit stated: “more than a mere scintilla but less than a preponderance of proof could provide sufficient grounds for a special master to find 6 Here, as in most cases, the Secretary has not argued that Ms. Mazzone lacked good faith. 7 reasonable basis.” Cottingham v. Sec’y of Health & Hum. Servs., 971 F.3d 1337, 1346 (Fed. Cir. 2020). However, the Federal Circuit did not define a “scintilla.” Petitioners meet their evidentiary burden with “objective evidence.” Id. at 1344. In categorizing medical records as objective evidence, the Federal Circuit stated, “[m]edical records can support causation even where the records provide only circumstantial evidence of causation.” Id. at 1346. Finally, the Federal Circuit in Cottingham specified that “we make no determination on the weight of the objective evidence in the record or whether that evidence establishes reasonable basis, for these are factual findings for the Special Master and not this court.” Id. at 1347. As to what must potentially be shown with a scintilla of evidence, the Federal Circuit has offered some guidance. The same five elements necessary to establish causation can be considered in determining whether a petition was supported by a reasonable basis. Cottingham, 971 F.3d at 1345-46. 7 In Cottingham, the disputed item concerned causation, which is subparagraph C in section 11(c)(1) of the Vaccine Act. Furthermore, according to the Court of Federal Claims, the finding of a scintilla does not mandate a finding of reasonable basis. Cottingham v. Sec’y of Health & Hum. Servs., 159 Fed. Cl. 328, 336 (2022) (denying motion for review of decision not to award attorneys’ fees and costs), aff’d without op., 2023 WL 7545047 (Fed. Cir. 2023). In a precedential opinion regarding the reasonable basis standard, the Federal Circuit stated that medical records, affidavits, and sworn testimony all constitute objective evidence that could support reasonable basis. James-Cornelius v. Sec’y of Health & Hum. Servs., 984 F.3d 1374, 1379-81 (Fed. Cir. 2021). The Federal Circuit further clarified that “absence of an express medical opinion on causation is not necessarily dispositive of whether a claim has reasonable basis, especially when the case is in its early stages and counsel may not have had the opportunity to retain qualified experts.” Id. at 1379 (citing Cottingham, 971 F.3d at 1346). More recently, the Federal Circuit held that in assessing whether reasonable basis supports the claims set forth in a petition, a special master may structure the analysis around the Althen prongs. Sheller v. Sec’y of Health & Hum. Servs., 121 F.4th 1301, 1305-07 (Fed. Cir. 2024). In doing so, the special master should recognize that the quantum of evidence for reasonable basis is lower than the quantum of evidence for entitlement. Id. In doing so, the Federal Circuit “caution[ed] 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.’” Id. 8 7 Ms. Mazzone argued that: “Petitioner met all the requirements for reasonable basis including having received a covered vaccine, an onset within a medically acceptable amount of time, and sequelae lasting longer than six months.” Pet’r’s Reply at 3. This list of required elements is accurate but incomplete. 8 By way of contrast, petitioners must fulfill all three Althen prongs to receive compensation. W.C. v. Sec’y of Health & Hum. Servs., 704 F.3d 1352, 1358 (Fed. Cir. 2013) (“a petitioner must establish all three prongs of the Althen test”). 8  Although the reasonable basis standard does not set an especially high bar, evaluations of reasonable basis must contain sufficient detail to allow an appellate court to review the reasoning. Stratton v. Sec'y of Health and Hum. Servs., 138 F.4th 1368, 1378 (Fed. Cir. 2025). B. Evaluation of Reasonable Basis With respect to the five statutory elements found in 42 U.S.C. § 300aa–11(c)(1), Ms. Mazzone easily satisfies four of them. These uncontested elements are (A) receiving a vaccine listed in the Vaccine Injury Table, (B) receiving the vaccine in the United States, (D) suffering the consequence of the injury for more than six months, and (E) not previously collecting compensation. Thus, the only disputed item is causation, which is in paragraph (C). A deficiency of proof on causation can justify a finding that a petitioner lacked reasonable basis. See Cottingham, 971 F.3d at 1346 (stating “[b]ecause “causation is a necessary element of a petition,” a petitioner “must point to evidence of a causal relationship” to establish reasonable basis” and remanding); Cottingham, 159 Fed. Cl. at 328 (denying a motion for review of decision finding a lack of reasonable basis due to insufficient evidence regarding causation); Chuisano v. United States, 116 Fed. Cl. 276, 288–89 (Fed. Cl. 2014) (“reasonableness may [] come into question if . . . the lack of supporting evidence becomes apparent.”). As to how Ms. Mazzone planned to meet her burden of proof with respect to paragraph C / causation, her petition is not a model of clarity. The general impression is that the petition did not present an on-Table claim. In this regard, the lack of an explicit assertion regarding an on-Table claim appears telling. Furthermore, the petition did not assert that Ms. Mazzone developed GBS within the time recognized on the Table. Nevertheless, in an attempt to support her request for an award of attorneys’ fees and costs, Ms. Mazzone states that “Petitioner would argue that she had reasonable basis to pursue either an on-table or an off-table claim.” Pet’r’s Mot. at 8. Because the elements of proof regarding causation differ for an on-Table claim and an off-Table claim, the analysis is taken up in two different sections. 1. On-Table Claim A petitioner establishes a presumption of causation by showing that she sustained . . . any illness . . . set forth in the Vaccine Injury Table in association with [a] vaccine ... and the first symptom or manifestation of the onset . . . any such illness . . . occurred within the time period after vaccine administration set forth in the Vaccine Injury Table. 42 U.S.C. § 300aa-11(c)(1)(C)(i). Here, the evidence shows that Ms. Mazzone received a flu vaccine and developed GBS. The Vaccine Injury Table, in turn, associates the flu vaccine with GBS when “the first symptom or manifestation of the onset” of the GBS occurs within 3-42 days. 42 C.F.R§ 100.3(a)¶ XIV.D. The question becomes whether there was a reasonable basis for asserting that Ms. Mazzone’s GBS developed within 3-42 days. The answer is no. There is not a reasonable basis for asserting that Ms. Mazzone’s GBS developed within 3-42 days. 9  As a preliminary matter, it bears discussing that Ms. Mazzone’s petition appears not to assert a claim based upon the Table. Most notably, it contains no explicit allegation that Ms. Mazzone suffered a Table injury. In fact, the word “Table” does not appear within the petition at all. Nor does the petition implicitly present an on-Table claim by alleging that Ms. Mazzone developed GBS within the 3-42 day Table, as discussed more below. Further, there was no request for referral to the Special Processing Unit of the Office of Special Masters. 9 The Secretary, too, did not view the petition as asserting an on-Table claim. See Resp’t’s Rep. at 6 (“petitioner does not allege a Table GBS injury”). Thus, it is highly doubtful that Ms. Mazzone’s petition “sets forth” the claim of an on-Table injury. See 42 U.S.C. § 300aa-15(e). If the petition did not set forth the claim of an on-Table injury, then the analysis could end. Nevertheless, to demonstrate all of Ms. Mazzone’s evidence and arguments have been considered, this section will assume for sake of argument that the petition does (implicitly) assert an on-Table claim. Asserting a claim is not the equivalent of establishing a reasonable basis for the claim. Otherwise, the reasonable basis standard, which Congress placed in section 15(e) of the Vaccine Act, would be meaningless. After the Federal Circuit’s opinion in Simmons, it is clear that reasonable basis is an “objective” test, meaning one evaluated based upon evidence. See Harville v. Sec'y of Health and Hum. Servs., No. 21-1893, 2025 WL 1806434, at *6-7 (June 5, 2025) (finding no reasonable basis for an on-Table claim). In determining whether to award compensation, special masters are expected to base opinions upon medical records or medical opinion. 42 U.S.C. § 300aa-13(a). In the context of determining whether a petitioner is entitled to compensation, when a petitioner claims to have suffered a Table injury, a petitioner must establish with preponderant evidence that the vaccinee suffered the injury using medical records or the statement from an expert. See Harrington v. Sec'y of Health and Hum. Servs., 139 Fed. Cl. 465, 469 (2018) (denying motion for review and ruling that the special masters correctly concluded that petitioner failed to establish that he suffered from GBS); Keith v. Sec'y of Health and Hum. Servs., 55 Fed. Cl. 791, 797 (2003). Although both Harrington and Keith were decided in the context of a claim for entitlement, the basic analysis guides an assessment of reasonable basis, which requires a lower level of proof. The difference between entitlement to compensation and eligibility for attorneys’ fees concerns the burden of proof, not the methods of proof. See Cottingham, 971 F.3d at 1346. On the topic of whether Ms. Mazzone developed GBS within 3-42 days of her flu vaccination, there is a dearth of evidence. For the category of “medical opinion,” Ms. Mazzone never submitted the report of any expert, presenting any opinion. Thus, the evidence, if it is to be found, would be contained in the “medical records.” 10 Ms. Mazzone has not cited any medical records that support her assertion that she developed GBS within 3-42 days of the vaccination. Ms. Mazzone contended: “Petitioner 9 Although the case was assigned to the special processing unit, Ms. Mazzone has not argued that this action contributes to her arguments regarding reasonable basis. 10 Special masters also should consider affidavits when the affiant is competent to testify about the matters contained in the affidavit. James-Cornelius, 984 F.3d at 1379-81. 10 argued that onset occurred at 36 post-vaccination, on January 5, 2022, when Petitioner became increasingly weak and fell ill. Ex. 5 at 546-50.” Pet’r’s Mot. at 7. Later, Ms. Mazzone similarly stated: “Petitioner has maintained that the medical records support a finding of onset within 36 days of vaccination. Ex. 5 at 546-50.” Id. at 8. 11 Thus, according to way Ms. Mazzone has argued her motion for attorneys’ fees, any basis for the claim that she suffered GBS on January 5, 2022, will be found within pages 546-50 of Exhibit 5. The medical record found on those pages reflects Ms. Mazzone’s appearance at an emergency room on January 5, 2022. The chief complaint includes “shortness of breath” in the context of testing positive at home for COVID-19. Exhibit 5 at 546. In the review of systems, Ms. Mazzone was negative for, among other conditions, “numbness.” Id. at 547. As part of the neurologic examination, the doctor determined that Ms. Mazzone had “No sensory deficit,” and “No weakness.” Id. at 548. Likewise, her coordination and gait were “normal.” Id. After receiving laboratory studies, Ms. Mazzone was discharged home. There were three diagnoses listed: “1. Coronavirus Covid-19 disease” “2. Shortness of Breath,” and “3. Fever.” Id. at 550. Ms. Mazzone has not explained how this presentation is consistent with a diagnosis of GBS. To start with the bottom line, the doctor who treated her in the emergency room did not diagnose GBS and, instead, discharged her home. Exhibit 5 at 550. Ms. Mazzone cannot point to a doctor’s statement that on January 5, 2022, she suffered from GBS. Moreover, in the undersigned’s experience, the lack of numbness, the lack of sensory deficits, the lack of weakness, the normal coordination, and the normal gait make the diagnosis of GBS unlikely. Similarly, the doctor’s determination that Ms. Mazzone could be discharged from the emergency room seems inconsistent with GBS, which often declines abruptly. In short, there is so little evidence supporting the contention that Ms. Mazzone experienced GBS on January 5, 2022, that Ms. Mazzone’s argument to gain her eligibility for attorneys’ fees appears not grounded in good faith. Therefore, the arguing attorney’s credibility is reduced. 2. Off-Table Claim As an alternative to an on-Table claim, a petitioner can pursue an off-Table claim. 42 U.S.C. § 300aa-11(c)(1)(C)(ii)(I); Moberly v. Sec'y of Health and Hum. Servs., 592 F.3d 1315, 1321 (Fed. Cir. 2010). Off-Table claims are also known as “causation-in-fact” claims. The most natural reading of Ms. Mazzone’s petition is that she was alleging that the flu vaccine was the cause-in-fact of her GBS. Petitioners establish causation-in-fact by meeting the three prongs set out in Althen v. Sec'y of Health and Hum. Servs., 418 F.3d 1274 (Fed. Cir. 2005). These are: “(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 11 On both pages 7 and 8, Ms. Mazzone used a verb’s past tense: she “argued” and she “maintained” the onset of her GBS as 36 days after vaccination. However, it is not clear when before her pending motion seeking attorneys’ fees that she contended that the onset was 36 days after vaccination. 11 proximate temporal relationship between vaccination and injury.” Id. at 1278. In considering whether a petitioner has shown that a reasonable basis supports the claims set forth in a petition, special masters may structure the analysis around the Althen prongs. However, the Federal Circuit has “caution[ed] against a rigid application of the Althen factors because a rigid application, which requires some quantum for each Althen factor, could exceed what is required to establish ‘reasonable basis.’” Sheller, 121 F.4th at 1307. The level of proof for reasonable basis remains lower than the proof required for entitlement. Here, Ms. Mazzone argues that reasonable basis supports her claim based upon two points. The first point is based upon rulings in other cases. The second point is based upon a statement from a treating doctor. Rulings in Other Cases. Based upon Sheller, Ms. Mazzone seems to argue that once special masters accept a specific combination of vaccine and injury, other future petitioners are not required to submit evidence regarding how a vaccine can cause an injury. See Pet’r’s Br. at 9. Along this line, Ms. Mazzone cites three cases in which a special master credited the opinion of a doctor retained by the petitioner regarding the appropriate interval. These three cases are: Pierson v. Sec'y of Health & Hum. Servs., No. 17-1136V, 2022 WL 322836, at *32 (Fed. Cl. Spec. Mstr. Jan. 19, 2022); Spayde v. Sec'y of Health & Hum. Servs., No. 16-1499V, 2021 WL 686682, at *18 (Fed. Cl. Spec. Mstr. Jan. 27, 2021); Barone v. Sec'y of Health & Hum. Servs., No. 11-707V, 2014 WL 6834557, at *13 (Fed. Cl. Spec. Mstr. Nov. 12, 2014). 12 They can be summarized: Name Vaccine Injury Pet’r’s Expert Theory Latency Comments Barone Flu GBS Dr. Tornatore Molecular 6 weeks Respondent did not mimicry present an expert. Spayde Flu GBS Dr. Forsyth Molecular 49-60 Respondent’s expert (treater) & Dr. mimicry days was contradictory on Alkaitis onset. Pierson Prevnar GBS Dr. Steinman Molecular Within Dr. Steinman relied mimicry 56 days upon Schoenberger Before the Federal Circuit’s opinion in Sheller, the Federal Circuit had stated that special masters should look to “objective” evidence supporting a petitioner’s claim. Simmons v. Sec’y of Health & Hum. Servs., 875 F.3d 632, 636 (Fed. Cir. 2017). Sheller found that petitioner’s failure to offer evidence in the form of an expert’s report was excusable because of unusual circumstances in which the expert’s causal theory was being reviewed by appellate authorities 12 Ms. Mazzone cites a fourth case, Osorio v. Sec'y of Health & Hum. Servs., No. 18- 1835V, 2021 WL 3370218, at *7 (Fed. Cl. Spec. Mstr. July 9, 2021), but in Osorio the special master did not find entitlement. 12 when Mr. Sheller was developing his claim. Sheller, 121 F.4th at 1308. Whether Sheller should be limited to situations with similar unusual circumstances is not clear. Determining how broadly or how narrowly Sheller should be interpreted is not necessary to resolve Ms. Mazzone’s pending motion for attorneys’ fees and costs. As mentioned previously, Ms. Mazzone’s argument regarding reasonable basis rests upon more than similar cases. Treating Doctor. In the entitlement context, a statement from a treating doctor merits careful consideration. Capizzano v. Sec’y of Health & Hum. Servs., 440 F.3d 1317, 1327 (Fed. Cir. 2006). So, too, in determining whether reasonable basis supports the claim set forth in a petition, a special master should weigh a statement from a treating doctor. To shore up the petition’s claim that the flu vaccine caused her GBS, Ms. Mazzone relies upon a medical record from Dr. Jadhaw who conducted a telehealth visit with Ms. Mazzone on May 9, 2022. Pet’r’s Mot. at 11; see also Pet’r’s Reply at 4 (citing same record). Dr. Jadhaw’s “History of