A Vaccine Injury Case Goes to the Supreme Court

The Elizabeth Birt Center for Autism Law and Advocacy (EBCALA) recently submitted an amicus brief to the U.S. Supreme Court in Sebelius v. Cloer. Nineteen other civil society organizations joined us to support petitioner Dr. Melissa Cloer in her quest that her lawyers receive payment for having brought her good faith, reasonable claim for injury compensation.

Dr.  Cloer, an adult physician, petitioned the Vaccine Injury Compensation Program (VICP) in 2005 after she developed multiple sclerosis (MS) from hepatitis B vaccines in 1996 and 1997.  Despite the earliest symptoms appearing only a month after her last vaccination, it was not until 2003 that Dr. Cloer received the diagnosis of MS.   In 2004, she learned of the possible link between MS and the hepatitis B vaccine in the scientific literature and applied to the VICP.

After three proceedings on the matter, the Court of Appeals for the Federal Circuit ultimately ruled that Dr. Cloer’s claim, filed more than three years after her first MS symptom, was ineligible for compensation.  While the Court of Appeals ruled her claim untimely, it did acknowledge that her attorneys had brought the case in good faith and on a reasonable basis, meeting the necessary criteria for them to receive legal fees.

Remarkably, the Department of Health and Human Services (HHS) contested payment to Dr. Cloer’s attorneys and filed a petition in the Supreme Court.  The Supreme Court agreed to hear the issue on March 19, 2013.  The 1986 National Vaccine Injury Act, which established the VICP, provides no time restrictions on legal fees.  The Act states only that claims must be in good faith and on a reasonable basis.

Simply put, the issue before the Supreme Court is, will the VICP pay Dr. Cloer’s lawyers for having brought Dr. Cloer’s legitimate vaccine injury claim?  HHS argues that lawyers should not be paid for bringing a claim ultimately found to be late.

The outcome will have a tremendous impact.  Due to the nature of vaccine injury and the often-murky onset of symptoms, issues of timeliness are common.  If attorneys can’t be sure they will be paid for good faith, reasonable claims, families of the vaccine-injured will suffer.   While untimeliness may be grounds not to compensate the petitioner, it does not justify failure to pay lawyers for legitimate work. If HHS wins, attorneys will likely turn down all but the most extreme cases of vaccine injury.

And this may be precisely HHS’ point:  to drive down the number of vaccine injury petitions filed.  Families going forward may have to fend for themselves without counsel, with much lower chances of compensation, or simply forego litigation.  Congress’s intent in the 1986 National Vaccine Injury Act was to provide a generous alternative to the tort system for vaccine-injured people; we trust the Supreme Court will uphold that intent in its decision.

EBCALA has filed friend-of-the-court briefs in the Supreme Court and the Court of Appeals for the Federal Circuit in high profile cases related to vaccine injury and autism, including Bruesewitz v. Wyeth and Cedillo v. HHS.  EBCALA is proud to continue to advocate for the rights of vaccine-injured people, including many whose injuries manifest as autism. We would like to thank these organizations for joining us:

Age of Autism

Alan D. Clark, M.D. Memorial Research Foundation

Alliance for Human Research Protection

Autism Action Network

Autism One

The Canary Party

The Center for Personal Rights

Citizens for Health

The Coalition for Safe Minds

Generation Rescue

Maryland Coalition for Vaccine Choice

National Autism Association

National Autism Association New York Metro Chapter

The Office of Medical & Scientific Justice

Schafer Autism Report

Truth About Gardasil

Unlocking Autism

Vermont Coalition for Vaccine Choice

We the Parents