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U.S. Supreme Court OKs Attorney Fees In Untimely, Good Faith Vaccine Cases

WASHINGTON, D.C. - (Mealey's) A federal vaccine compensation petitioner who filed an untimely claim may qualify for attorney fees if her claim was filed in good faith and there was a reasonable basis for it, the U.S. Supreme Court ruled May 20 (Kathleen Sebelius, et al. v. Melissa Cloer, No. 12-236, U.S. Sup.). ( subscribers may access Supreme Court briefs for this case).

(Opinion available. Document #28-130606-005Z.)

Melissa Cloer, M.D., received her last hepatitis b vaccine in 1997 and afterwards experienced spreading numbness. In 2003, she was diagnosed with multiple sclerosis.

In 2004, Cloer became aware of a link between multiple sclerosis and the hepatitis B vaccine and filed a claim for compensation under the National Childhood Vaccine Injury Act (NCVIA or the Vaccine Act). The claim was ultimately denied because it was found to be untimely: claims must be filed within 36 months of symptoms.

Cloer then moved for attorney fees, which the act provides for, win or lose. The Federal Circuit U.S. Court of Appeals, sitting en banc, in 2012 ruled that claimants can seek attorney fees for claims made in good faith and with a reasonable basis.

The U.S. Department of Health and Human Services appealed.

Untimely Claims Not Nullified

The Supreme Court rejected the government's argument that because Cloer's petition was untimely, it was not "filed" and is therefore not eligible for attorney fees. The court said nothing in the Vaccine Act's fee provisions suggest that a filing is nullified by a later finding of untimeliness.

"And so long as such a petition was brought in good faith and with a reasonable basis, it is eligible for an award of attorney's fees, even if it is ultimately unsuccessful," the court wrote, citing case law. "If Congress had intended to limit fee awards to timely petitions, it could easily have done so."

The court noted that nothing in the law requires petitioners to allege or demonstrate that their petition is timely.

No Prior Determination

"If the NCVIA's limitations provision worked to void the filing of an untimely petition, then one would expect the Secretary [of Health and Human Services] to make timeliness determinations prior to publishing such notice or to strike any petitions found to be untimely filed from the Federal Registers," the court wrote. "But there is no indication that the Secretary does either of these things."

"That 'no petition may be filed for compensation' after the limitations period has run does not mean that the late petition was never filed at all," the court wrote.

The court also said, "The Government does not explain why Congress would have intended to discourage counsel from representing petitioners who, because of the difficulty of distinguishing between the initial symptoms of a vaccine-relate injury and an unrelated malady . . . may have good-faith claims with a reasonable basis that will only later be found untimely."

'Shadow Trials'

The government also argued that allowing attorney fees for untimely petitions would force special masters - who initially decide vaccine cases - to conduct costly and wasteful "shadow trials." The Supreme Court found that Congress specifically provided for "shadow trials" by permitting the awarding of attorney fees in cases brought in good faith and with a reasonable basis.

The court said the government's fears "appear to us to be exaggerated." It noted that special masters consistently make fee determinations, develop a "good sense" of the merits of a case and are able to determine if a reasonable basis exists for a claim.

The government also offered no support for its claim that an affirmation of the Federal Circuit ruling will lead to the filing of more untimely petitions. The court said that argument is premised on the assumption that attorneys will bring bad faith claims in derogation to their ethical duties.

Finally, the court said the special masters have shown themselves to be "more than capable of discerning untimely claims supported by good faith and a reasonable basis from those that are specious."

Mostly Unanimous Opinion

Justice Sonya Sotomayor wrote the opinion. She was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito and Elena Kagan.

Justices Antonin Scalia and Clarence Thomas joined in all but the ruling that Congress did not intend to discourage counsel from representing claimants where there is difficulty distinguishing between initial symptoms and an unrelated malady.

In Cloer's underlying appeal, the Federal Circuit found that the Vaccine Act was subject to equitable tolling in limited circumstances.


The government was represented by Assistant U.S. Solicitor Benjamin J. Horwich, Solicitor General Donald B. Verrilli Jr., Acting Assistant Attorney General Stuart F. Delery, Deputy Solicitor General Malcolm L. Stewart, Michael S. Raab, Anisha S. Dasgupta, Vincent J. Matanoski and Lynn E. Ricciardella of the Justice Department and Acting General Counsel William B. Schultz, David Benor and Anna Loraine Jacobs of the Department of Health and Human Services, all in Washington.

Cloer was represented by Robert T. Fishman of Ridley, McGreevy & Winocur and Mari C. Bush of Kay & Bush, both in Denver.

Robert J. Krakow of the Law Office of Robert J. Krakow in New York and Kevin Conway of Conway, Homer and Chin-Caplan in Boston represent amicus curiae the Elizabeth Birt Center for Autism Law and Advocacy and 19 other patient and parent advocacy groups.

Clifford J. Shoemaker of Shoemaker, Gentry & Knickelbein in Vienna, Va., and Peter H. Meyer of the George Washington University Law School in Washington represent amicus National Vaccine Information Center.

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