CHAPTER 22

• Jurisdiction: United States

CHAPTER 22 PROGRESSION OF THE VACCINE ACT CLAIM

Once the petition is filed in a conventional vaccine compensation (VICP) case, what happens next depends on whether the petition undergoes normal case progression, or whether it is assigned to the Special Processing Unit (SPU). Think of this SPU as a sidetrack to faster compensation. Since its inception in July 2014, the SPU pathway up until September 2019 had paid compensation in 1,329 cases totaling $130,982,662.¹

Note that the COVID-19 vaccine is a designated "countermeasure," so claims follow the tighter CICP channel created by the 2005 PREP Act, and these cases do not often result in settlement or a claimant-desired outcome.

Normal VICP Case Progression

Generally after the Statement of Completion is filed, the special master assigned to the case will initiate a call to discuss case progression and whether any documentation is missing. Once the special master believes all needed evidence has been received, he or she will order respondent to provide a "Rule 4 Report." The Rule 4 Report derives its name from Rule 4 of the Vaccine Rules of the United States Court of Federal Claims, which states in relevant part:

1. In General. Within 90 days after the filing of a petition, or in accordance with any schedule set by the special master after petitioner has satisfied all required documentary submissions, respondent must file a report setting forth a full and complete statement of its position as to why an award should or should not be granted.
2. Contents. The report must contain respondent's medical analysis of petitioner's claims and must present any legal arguments that respondent may have in opposition to the petition. General denials are not sufficient.

Prior to issuing its Rule 4 report, however, respondent will have the claim reviewed by one of HHS's medical officers or medical contractors. Generally, this process takes much longer than the ninety days prescribed in the Vaccine Rules, because there is a backlog of claims. For example, according to the Advisory Commission on Childhood Vaccines' March 2019 meeting minutes, there was a backlog of 371 cases awaiting review by a medical officer.²

The Rule 4 report will include the medical officer's recommendation and the legal analysis by an attorney from the Department of Justice Vaccine Litigation Section, which states the VICP respondent's position, and which is filed with the court.³ If the respondent opposes the petition and the parties do not settle, the special master may order parties to produce expert reports and will schedule one or more evidentiary hearings. Thereafter, the special master will issue a written decision on the issue of whether the petitioner is entitled to an award. If the special master determines that the petitioner is entitled to an award, then the case moves into the damages phase.

To facilitate the damages phase, the special master will issue an order outlining the proof required, the methods of resolving the issue, and a schedule for submitting evidence. If the respondent disputes the amount of damages that the petitioner alleges, the special master may order expert reports on the issue and may hold hearings. Ultimately, the special master determines the amount and type of compensation. Often, the Justice Department⁴ settles cases to reduce the backlog, rather than continue to litigate a case that appears to have merit.

Exception to Normal Vaccine Case Flow: The Special Processing Unit

In response to their increasing caseload and the statutory limit on the number of special masters, the Office of Special Masters developed the Special Processing Unit in July 2014 to fast-track petitions that can be easily resolved.⁵ For example, most Table Injury cases are assigned to the SPU.⁶ All SPU claims are assigned to the chief special master; however, the day-to-day case management is handled by an Office of the Special Masters staff attorney.⁷ The chief special master, however, makes the entitlement decisions on SPU claims.⁸ Since SPU claims are generally resolved without extensive litigation, these cases typically do not require a medical expert. In fact, if you engage an expert, that cost may not be reimbursed.

Once a petition is assigned to the SPU, the respondent's requirement to provide a Rule 4 Report is suspended.⁹ Instead, a status conference takes place to discuss the claim and to determine what steps are necessary to expedite its resolution. The respondent, however, can request to file a Rule 4 report.¹⁰ If it is later determined that the claim does not meet the requirements of a Table Injury, or the respondent contests the petition, it will be removed from the SPU and assigned to another special master.¹¹

Settlement, Proffers, Compromise, and Concession in the VICP

As noted earlier, a majority of compensated claims are the products of settlement. "Settlement," however, can mean different distinct concepts in the VICP: litigative risk settlement, proffer, or compromise. A litigative risk settlement is an agreement as to damages made prior to the entitlement ruling.¹² In a litigation risk settlement, the government representative does not concede the claimant's entitlement, but does agree to pay some compensation.¹³

After the entitlement hearing, damages can be agreed upon (or "settled") either by proffer or compromise. If the petitioner and respondent agree that the evidence supports compensation of a particular amount, then the respondent will submit a proffer of that amount to the special master.¹⁴ The special master will then generally issue a decision adopting that proffer.¹⁵ If the petitioner and respondent do not agree that the evidence supports compensation of a particular amount, they can nonetheless negotiate and find a compromise.¹⁶

What Role Will Claimant's Counsel Play in Typical Child or Adult Vaccine Claims?

In a typical court case, the attorney is a counselor to and advocate for her client; however, she is also the "captain" of the case (with client's appropriate consent). That is, counsel has control over what causes of action to bring, what methods of discovery she wants to pursue, and how to present her evidence in court.

In the VICP case, by contrast, what claims to bring, and how to obtain and present evidence, are largely prescribed by rules under the 1986 Act and by the special master. Accordingly, in a VICP case, counsel is more like a chief mate than the captain. The program and special master have charted the course; counsel need only make sure the ship is equipped, maintained, and safely navigated. The key to counsel's success in this system is thoroughly investigating and developing a vaccine case.

A thorough investigation into a vaccine case requires obtaining records and understanding the science. Doing this will help develop the case, and guide...