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Tuesday, October 22, 2019

U.S. SC: Woman can seek lawyers' fees from government in lawsuit over vaccine

By Jessica M. Karmasek | May 21, 2013

WASHINGTON (Legal Newsline) -- The U.S. Supreme Court, in a ruling Monday, agreed with a federal appeals court that an untimely petition under the National Childhood Vaccine Injury Act can garner an award of attorney's fees.

The act, enacted in 1986, established a no-fault compensation system to stabilize the vaccine market and expedite compensation to injured parties.

Under the act, a proceeding for compensation is initiated by service upon the secretary of U.S. Department of Health and Human Services -- in this case, Kathleen Sebelius -- and the filing of a petition containing specified documentation with the clerk of the Court of Federal Claims, who then immediately forwards the petition for assignment to a special master.

Also under the NCVIA, an attorney may not charge a fee for services in connection with such a petition, but a court may award attorney's fees and costs incurred by a claimant in any proceeding on an unsuccessful petition, as long as that petition was brought in "good faith" and there was a "reasonable basis" for the claim for which the petition was brought.

In 1997, shortly after receiving her third Hepatitis-B vaccine, Melissa Cloer began to experience symptoms that eventually led to a multiple sclerosis diagnosis in 2003.

In 2004, she learned of a link between MS and the Hepatitis-B vaccine, and in 2005 she filed a claim for compensation under the NCVIA, alleging that the vaccine caused or exacerbated her MS.

After reviewing the petition and its supporting documentation, the chief special master concluded that Cloer's claim was untimely because the act's 36-month limitations period began to run when she had her first MS symptoms in 1997.

The U.S. Court of Appeals for the Federal Circuit ultimately agreed that Cloer's petition was untimely.

Cloer then sought attorney's fees and costs.

The en banc Federal Circuit found that she was entitled to recover fees on her untimely petition.

The nation's high court agreed, saying the text of the statute is "clear."

"If Congress had intended to limit fee awards to timely petitions, it could easily have done so," Justice Sonia Sotoymayor wrote for the court. "But the NCVIA instead authorizes courts to award attorney's fees for those unsuccessful petitions 'brought in good faith and [for which] there was a reasonable basis.'"

She continued in the 13-page decision, "If the NCVIA's limitations provision worked to void the filing of an untimely petition, then one would expect the Secretary to make timeliness determinations prior to publishing such notice or to strike any petitions found to be untimely from the Federal Register. But there is no indication that the Secretary does either of these things."

From Legal Newsline: Reach Jessica Karmasek by email at

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