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U.S. Supreme Court Confirms Award of Attorney’s Fees in Vaccine Injury Cases

Posted on in Vaccine Injuries

b2ap3_thumbnail_American-flag-Chicago.jpgLast Monday, the U.S. Supreme Court unanimously confirmed that attorneys may recover fees and costs for a petition seeking compensation for a vaccine injury even if it is ultimately found to be untimely (filed past the 36 month statute of limitations).  In Sebelius v. Cloer, the Supreme Court had to determine whether a finding that a petition was untimely was a bar to awarding attorney’s fees.

Under the National Childhood Vaccine Injury Act attorney’s may not seek payment from a client for filing a petition; instead the Act provides for payment of attorney’s fees and costs from the fund whether the claim was successful or unsuccessful so long as the petition was filed in good faith and there was a reasonable basis for the claim.  In order to be timely the petition must be filed within 36 months of the date of the first symptom of such injury.  42 U.S.C. §300aa-16(a)(2).

The issue of timeliness is not jurisdictional in cases seeking compensation under the Act, and is often not determined until substantial time and resources have been spent.  For instance, in Sebelius v. Cloer, Dr. Cloer received a vaccine in 1997; one month after the vaccine she started experiencing some tingling and numbness in one arm.  The numbness gradually spread, but it wasn’t until 2003 that she was diagnosed with multiple sclerosis (MS).  In 2004, Dr. Cloer learned of a link between MS and the vaccine she received.  Dr. Cloer filed her petition for compensation for her vaccine injury in 2005.  After reviewing the petition and the supporting documentation the Special  Master determined that Dr. Cloer’s first symptom of MS was in 1997.  Thus, the petition filed in 2005 was well beyond the 36 month limitations period.

Dr. Cloer appealed and the Federal Circuit Court of Appeals reversed finding that the limitations period did not begin to run until the medical community recognized a link between the vaccine and the injury.  Ultimately, the Federal Circuit Court hearing the case en banc concluded that the limitations period began to run with the first symptom in 1997.  Therefore, the claim was found to be untimely.

As is often the case in vaccine injury compensation cases, determining when the limitations period begins to run is fact-based and often not entirely clear.  Petitioners often do not know until they receive a definitive diagnosis that their illness or injury could be associated with a vaccine they received.  Petitioners also may not know or realize at the time that initial symptoms are related to their ultimate diagnosis.  Therefore, a petitioner may file a petition in good faith believing they are within the limitations period but later have the court find that they had symptoms that fall outside the limitations period resulting in their claim being dismissed.  Because of the Supreme Court’s recent holding in Sebelius v. Cloer, petitioners in that situation will still be able to petition for attorney’s fees and costs.  Thanks to this decision, petitioners with good faith claims but potential timeliness issues won’t be unable to find an attorney.

If you believe you or a family member may have been injured by a vaccine, please contact the Law Offices of Chicago-Kent, in Chicago, Illinois to learn more about compensation for your injury.

US Court of Federal Claims American Bar Association
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