EMAIL TO A FRIEND COMMENT

 

Untimely Vaccine Act Claim Brought in Good Faith Eligible for Attorney Fees


A woman received a series of injections of a Hepatitis-B vaccine. Shortly after her final injection, she began to experience symptoms that, after six years, led to a diagnosis of multiple sclerosis (MS). A year after her diagnosis she learned of a connection between Hepatitis-B vaccine and MS.

 

A year after learning of the connection, she filed a claim for compensation under the National Childhood Vaccine Injury Act (NCVIA). The Chief Special Master dismissed her claim as untimely because the NCVIA's 36-month limitations period began to run when she had her first MS symptoms, approximately eight years before she filed her claim. The woman appealed the decision in the United States Court of Federal Claims, which affirmed the decision of the special master. The woman appealed to the Court of Appeals for the Federal Circuit, which affirmed, holding that the NCVIA's limitations provision was nonjurisdictional and subject to equitable tolling in limited circumstances, but that she was ineligible for tolling. The woman then moved for attorney fees.

 

The Court of Appeals for the Federal Circuit remanded with instructions, holding that the claimant was eligible for an award of attorney fees absent a determination that the petition was not brought in good faith or that the claim lacked a reasonable basis.

 

The Supreme Court of the United States unanimously affirmed. The Court held that an untimely petition brought under the NCVIA in good faith and with a reasonable basis that is filed with the clerk of the Court of Federal Claims is eligible for an award of attorney fees. Under the NCVIA, attorney fees are provided, not only for successful cases, but even for unsuccessful claims that are not frivolous. The Court construed the NCVIA as intending that an untimely petition brought in good faith and with a reasonable basis that is “filed with,” meaning delivered to and received by, the clerk of the Court of Federal Claims is eligible for an award of attorney fees.

 

The Court found that the NCVIA was unambiguous with respect to whether an untimely petition could garner an award of attorney fees. Thus, the canon favoring strict construction of waivers of sovereign immunity, and the presumption favoring retention of long-established and familiar common-law principles, did not apply to bar the awards.

 

See: Sebelius v. Cloer, 2013 WL 2149791 (U.S., May 20, 2013) (not designated for publication).

 

See also Medical Law Perspectives January 2013 Report: Vaccines: An Ounce of Prevention May Lead to a Pound of Injury

 

 

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