SCOTUS Affirms Recovery of Attorney's Fees in Vaccine Cases Under Broad Circumstances
Under the National Childhood Vaccine Injury Act of 1986 (“NCVIA”), vaccine injured parties became entitled to a no-fault compensation system to be commenced by service upon the Secretary of Health and Human Services and “the filing of a petition containing” specified evidence with the clerk of the Court of Federal Claims. See 42 U. S. C. 300aa–11(a)(1). The Act allowed claimants the opportunity to file a claim without being charged by an attorney because the Court of Federal Claims paid attorney’s fees and costs incurred by a claimant in any proceeding on an unsuccessful petition, so long as that petition was brought in good faith.
In the Cloer matter, the vaccine injured party received her third Hepatitis-B vaccine in 1997. She experienced symptoms that led to a multiple sclerosis (MS) diagnosis in 2003 and then filed a NCVIA claim in 2005 when she learned of a link between MS and the Hepatitis-B vaccine. The special master concluded, although reasonable minds could differ, that Cloer’s claim was untimely because the NCVIA’s 36-month limitations period began to run when she first experienced MS symptoms in 1997. The Federal Circuit affirmed the special master’s decision. Nevertheless, Cloer sought reinbursement of her attorney’s fees and costs. The Federal Circuit ruled in favor of Cloer. This past week, the Supreme Court affirmed that decision.
The government argued that it is rare for Congress to require the payment of attorney’s fees for losing parties, so the Court should be reluctant to read theNCVIA provision so broadly as to apply to cases not filed within the statute of limitations. In the opinion, Justice Sotomayor noted that the NCVIA requires the Secretary of HHS to regularly publish in the Federal Register a list of all “filings” under the Vaccine Act. Those lists have never attempted to exclude untimely petitions. No dissent was issued.
In summary, nothing in the attorney’s fees provision of the NCVIA suggests that the reason for a potential subsequent dismissal of a petition, such as untimeliness, nullifies the initial filing. An NCVIA petition delivered to the court clerk, forwarded for processing, and adjudicated before a special master is a “petition filed under section 300aa–11.” The government’s contrary argument was held to be inconsistent with the fees provision’s purpose, which was to avoid limiting the petitioners’ ability to obtain qualified assistance by making awards available for “non-prevailing, good-faith claims.” This decision was a victory for vaccine injured plaintiffs.
"This decision was a victory for vaccine injured plaintiffs."
I appreciate the work of EBCALA, I have a different perspective on the attorney fees issue. I watched the following situation infold:
Family engages attorney to file vaccine injury claim. Family pays filing fees of $1000 more or less. After less than one year, family decides to not proceed with claim and informs counsel to cease any efforts on their behalf.
About 8 years later, family is shocked to see their name on the internet as claimant under VICP. Attorney, who was directed to not pursue claim, is awarded $18,000 in legal fees, and family is awarded back $1000 filing fees.
The attorney spent maybe up to six hours discussing case with family, and filed the claim. How is that worth $18,000 in legal fees?
The family is victimized twice- trusted the doc, got a vaccine injured child. Trusted the attorney- sees the attorney use their injured child as vehicle to game the VICP out of $18,000. Does this happen often? I dunno.
The VICP is hopeless. No VICP- no iatrogenic vaccine injury epidemic. The VICP is the very vehicle that allowed the vaccine schedule to balloon, and allows vaccine pushers to laugh in the face of vaccine injured families. I am not well versed enough in law to understand how this ruling is a victory for vaccine injured families- the VICP is a screw job pure and simple for vaccine injured families. Maybe one reason the VICP is still around is because the attorneys who participate have discovered a Gov't boondoogle that allows them to collect huge fees for doing very little work.
Posted by: Ottoschnaut | May 24, 2013 at 07:50 AM
SCOTUS ruled against the Special Master:
"The special master concluded, although reasonable minds could differ, that Cloer’s claim was untimely because the NCVIA’s 36-month limitations period began to run when she first experienced MS symptoms in 1997.
What does SCOTUS recommend claimants do whenever the decision of the "special master" disagrees with "reasonable minds"? As things stand today .. NOTHING.
Thanks to a previous decision by SCOTUS that awarded the VACCINE COURT absolutely authority .. should a special master's decision "disagree with reasonable minds" .. parents are denied their Constitutional Right to seek legal remedy in State and Federal Courts and must therefore accept the "unreasonable decision" of the VACCINE COURT.
It is incomprehensible that SCOTUS would ignore the spirit and intent of the Founding Fathers who wrote a Constitution guaranteeing a citizen the right to pursue his claims in State and Federal Courts.
Making it even worse .. the mere creation of the VACCINE COURT would have violated the spirit and intent of the Founding Fathers.
Shame on them.
Posted by: Bob Moffitt | May 24, 2013 at 07:14 AM