Graham v. HHS, (Fed. Cl. Nov. 30, 2015) (Braden, J)
In the trial court, the special master denied fees in this voluntarily dismissed case. Petitioner appealed the denial of fees, contending that the special master had erroneously interpreted the reasonable basis standard. The reviewing court held that Petitioner misconstrued the Supreme Court’s reference to frivolous claims in Cloer, and its reference to frivolous was not necessarily the binary opposite of reasonable basis. Rather, more is required than that a claim not be frivolous or specious. The claims court gave a nod to the totality of circumstances test, and disagreed that the special master below had failed to apply this test in favor of a bright-line evidentiary test for reasonable basis.
The court also noted that Petitioner’s desire for consistency among special masters was misguided, because it was not required, thus it was irrelevant that other special masters had awarded fees in similar circumstances.
In the end, this case stands for the proposition that, if there is sufficient time to obtain a negative expert review prior to the expiration of the statute of limitations, there will be no reasonable basis for that claim if filed prior to the completion of review.