Supreme Court to consider attorney's fees issue in vaccine injury claim

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The U.S. Supreme Court has agreed to decide whether a party whose petition under the National Vaccine Injury Compensation Program was dismissed as untimely may recover an award of attorney fees and costs from the government.  In the underlying vaccine injury claim, the plaintiff claimed she developed the vaccine injury of  multiple sclerosis after receiving a series of Hepatitis-B vaccinations.  In 2005 she hired a vaccine attorney and filed a claim under the Act, but the claim was dismissed because it was filed more than 36 months after the first symptoms of MS occurred in 1997.  After several levels of appeal, the appellate court held that the Vaccine Injury Act’s statute of limitation is not jurisdictional and that some claims brought under the Vaccine Act are subject to equitable tolling.  However, it concluded that the plaintiff’s claim did not meet the equitable tolling criteria and again, dismissed her vaccine injury petition as untimely.

The petitioner then sought an award of attorney fees and costs for the work performed by her vaccine injury lawyer.  The Federal Circuit agreed, holding that a petitioner who asserts an unsuccessful but non-frivolous limitations argument through a vaccine injury attorney should be eligible for a determination of whether reasonable attorneys’ fees and costs incurred in proceedings related to the petition should be awarded.  The Supreme Court granted the government’s petition for certiorari review, and they will hear the case later this term.

The case is Sebelius v. Cloer, No. 12-236;  675 F.3d 1358 (Fed. Cir. 2012).