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We recently commented on claimants who manipulate and evade the Vaccine Act by making vaccine claims, only then to make no effort to pursue them.  Their play is to abandon their claims after the statutory 240-day waiting period and file lawsuits, where they stand a better chance of recovering more money.  Because we think the Vaccine Act is a reasoned and fair way to compensate patients who experience vaccine side effects, we frown upon claimants and attorneys who treat the vaccine claims process as an inconvenient way station on the way to MDL gold country. 

Imagine then our mood when we read about a plaintiffs’ attorney who not only actively evaded the vaccine claims process for hundreds of claims, but then insisted he was entitled to fees for his “effort.”  And, when the special master denied fees and costs, the attorney moved to disqualify him from all the attorney’s cases.  We guess no good deed goes unpunished, even when you are a special master. 

The case is Fetters v. Secretary of Health and Human Services, No. 21-928V, 2023 WL 3597513 (Ct. Fed. Cl. May 23, 2023), which was one of hundreds of similar claims from the same attorney.  The petitioner submitted a claim through the Vaccine Program after her minor child allegedly experienced complications from an HPV vaccine.  As we have explained before, the Vaccine Act sets up a no-fault claims process that claimants have to exhaust before they can sue in a court of law.  Exhaustion is expected to involve adjudication and a result, but petitioners can also exhaust the administrative process by withdrawing their petitions if they have not been acted on within 240 days.  See 42 U.S.C. § 300aa-21. 

As mentioned, the petitioner in Fetters was one of more than one hundred vaccine claimants represented by the same attorney, who was eager to exhaust the claims process and get into the more lucrative land of multidistrict litigation.  He was not subtle about it.  He proposed that the court allow his HPV vaccine clients to file short-form petitions and be relieved of their obligation to file medical records and affidavits to support their claims.  According to counsel, this would allow his clients to exhaust their Vaccine Program remedies “without requiring a ton of effort from the [c]ourt or anyone else.”  Id. at *1. 

We are sure the court appreciated counsel’s concern for the court “or anyone else,” but the Special Master’s Office declined to adopt a process aimed only at getting counsel’s claims through the Vaccine Program without adjudication and as fast as possible.  In addition, the special master signaled that it would consider counsel’s “check the box” approach when considering requests for fees and costs.  Id. at *2.  Counsel therefore proceeded with his eyes wide open and continued to submit claims—and then made little effort to pursue them.  In one case, the claimant requested eight extensions of time, ensuring that the claims process could not be completed within the statutory 240 days.  Id. at *3.  Sure enough, the petitioner withdrew her petition after 240 days and filed her lawsuit.

One of the curiosities of the Vaccine Act is that it allows an award of fees and costs even to unsuccessful petitioners, so long as they brought their claims in good faith and had a reasonable basis.  Id. at *5.  This petitioner’s attorney therefore applied for fees, in this case and his many others.  We will repeat that.  Counsel expressly and openly minimized the claims process and did not adjudicate his claims, but then expected to use that same process as a funding source. 

The Special Master saw right through this: 

[E]ven if petitioners may legitimately pass through the [Vaccine] Program en route to the ‘promised land’ of another forum in which they hope to receive a favorable determination, I am not compelled by the Act to turn a blind eye to this stratagem—especially since it is highly likely (if not a certainty) that this claim, as well as the other comparable claims being dismissed, would have resulted in an unfavorable determination had it been litigated fully in the Vaccine Program

Id. at *8 (quoting related case, emphasis in original).  The Special Master denied fees—not because they were lacking in good faith, but because the petitioner had not submitted basic supporting documentation and did not show a reasonable basis.  She did not even submit the vaccine record, nor an affidavit explaining any effort to obtain the vaccine record.  The Court of Federal Claims affirmed the denial of fees on that basis and ruled that the special master did not err by assigning little weight to other, circumstantial evidence.  Id. at *5-*7.

If counsel had stopped there, we could chalk it up to zealous advocacy.  Instead he responded to this threat to his funding by doubling down and moving to disqualify the special master from all his cases.  The standard is whether a reasonable person, knowing all the facts, would question the special master’s impartiality.  Id. at *4.  Here, counsel took issue with the special master’s rulings and his comments regarding counsel’s “stratagem” and his intended pathway to “the promised land,” i.e., multidistrict litigation.  The Court of Federal Claims ruled that counsel had not meet the heavy burden for disqualification and that the special master’s orders were “reasoned judicial rulings, routine case management decisions, and ordinary admonishments to counsel.”  Id. at *7.

We have an annual ten best list and an annual ten worst list.  If we had a top ten “chutzpah” list, this case would go on it.