The U.S. Supreme Court ruled that lawyers who file claims on behalf of clients alleging injury from a vaccine may recover their legal fees even if the claim is untimely.  In Sebelius v. Cloer (pdf), the high court found Dr. Melissa Cloer, who developed MS from three type hepatitis-B vaccinations, can seek attorneys’ fees under the National Vaccine Injury Compensation Program, even though a special master found the petition untimely and denied plaintiffs’ request for $119,000 in attorney fees.

Congress established the National Vaccine Injury Compensation Program in 1986 in an effort to provide a cost-effective process for resolving vaccine injury claims outside of tort litigation and to ensure a stable market supply of vaccines.  Successful claims are paid out of a federal trust fund that comes from a tax levied on every dose of vaccine.

The chief special master in the U.S. Court of Federal Claims dismissed Cloer’s petition, finding that she had waited too long to file her claim since her first symptoms appeared in 1997.  The National Childhood Vaccine Injury Act, which created the program, requires petitions to be filed within 36 months of the initial symptoms. 

Even though Cloer missed the deadline, she asked the Federal Circuit to allow her to seek $119,000 from the program to cover her lawyers’ fees.  The Federal Circuit found that Cloer could recover the fees, provided her claim was brought in good faith and with a reasonable basis, and the Supreme Court agreed.

“If Congress had intended to limit fee awards to timely petitions, it could easily have done so,” Justice Sonia Sotomayor wrote for the court.  Instead, the law allows courts to award attorneys’ fees for unsuccessful petitions “bought in good faith and for which there was a reasonable basis,” she wrote. 

In opposing Cloer’s request for fees, the Justice Department argued that allowing fees for unsuccessful claims would trigger a flood of untimely lawsuits, as lawyers would take on cases after the expiration of the 36-month window in the hope of recovering fees.  The high court found the government’s fear “exaggerated.”

Robert Fishman of Ridley McGreevy & Winocur in Denver, who represented Cloer, said the decision will make it easier for people injured by vaccines to find a lawyer to represent them and is unlikely to trigger a flood of frivolous claims under the vaccine act.  “I wouldn’t really expect to see much more than a marginal increase,” he said.

NALFA supported plaintiffs’ claim for fees in this case.  NALFA also reported on this case in “U.S. Supreme Court to Consider Attorney Fees in Vaccine Cases”