116 Fed. Cl. 629
Fed. Cl.2014Background
- Petitioner Ina Scanlon received the Zostavax (shingles) vaccine on April 1, 2010 and soon developed severe thrombocytopenia; she filed a Vaccine Act petition on March 28, 2013.
- The Vaccine Injury Table lists a catchall entry “varicella vaccine,” which on its face includes vaccines containing varicella-zoster virus (both Varivax for chicken pox and Zostavax for shingles).
- The government moved to dismiss, arguing Zostavax is not a covered vaccine because the Table entry was intended to refer only to the childhood varicella (Varivax) vaccine.
- The special master and then this Court agreed with the government: despite the plain wording, statutory and regulatory context (including the excise-tax funding scheme and distinct uses of the vaccines) showed the Table’s “varicella vaccine” entry was meant to cover only the chicken pox vaccine.
- Scanlon lost on the merits; she then sought attorneys’ fees. The special master denied fees, finding the petition lacked a "reasonable basis," in part because three prior special-master decisions had denied Zostavax claims.
- This Court reviewed the fee denial, held (1) a petition can sometimes have a reasonable basis even if the vaccine is later held not to be covered, and (2) the special master abused her discretion in finding Scanlon’s petition lacked a reasonable basis given the Table’s plain language, the timing near the limitations deadline, and limited precedential force of prior special-master denials.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a petition seeking compensation for injury from a vaccine later held not to be on the Vaccine Injury Table can nevertheless have a "reasonable basis" for fee eligibility | Scanlon argued she reasonably believed Zostavax fell within the Table’s unqualified term “varicella vaccine,” so her petition had a reasonable basis | Gov’t argued petitions for vaccines not on the Table lack reasonable basis and so fees should be denied | Court held such petitions can have a reasonable basis; fee eligibility is assessed on totality of circumstances and fee provision should not be narrowly read to bar reasonable, good-faith claims |
| Whether Scanlon’s petition had a reasonable basis at filing | Scanlon emphasized the plain Table language, inconsistent medical terminology, and filing close to the statute-of-limitations cutoff | Gov’t relied on earlier special-master Zostavax denials to show futility and absence of reasonable basis | Court held the special master abused discretion: given Table’s plain wording, timing of filing, and nonbinding contrary special-master decisions, Scanlon’s petition was reasonable at filing |
| Whether prior special-master decisions denying Zostavax petitions made further filings objectively unreasonable | Petitioner contended those decisions were not binding and did not negate the fair textual reading of the Table | Gov’t argued the prior denials should have alerted counsel that the claim was futile | Court held prior special-master decisions, by themselves, did not render the petition unreasonable; special masters can disagree and decisions were not precedential |
| Whether special master's denial of fees was an abuse of discretion | Petitioner argued the denial ignored relevant context and timing and over-weighted nonbinding rulings | Gov’t argued deference to special master was appropriate given her role and prior decisions | Court found abuse of discretion and remanded for an award of fees and costs for 90 days |
Key Cases Cited
- Lampe v. Secretary of the Dep’t of Health & Human Servs., 219 F.3d 1357 (Fed. Cir. 2000) (special master fact findings reviewed under arbitrary-and-capricious standard)
- Saunders v. Secretary of the Dep’t of Health & Human Servs., 25 F.3d 1031 (Fed. Cir. 1994) (legal conclusions reviewed de novo)
- Munn v. Secretary of the Dep’t of Health & Human Servs., 970 F.2d 863 (Fed. Cir. 1992) (discretionary decisions reviewed for abuse of discretion)
- Saxton v. Secretary of the Dep’t of Health & Human Servs., 3 F.3d 1517 (Fed. Cir. 1993) (fee-award principles in Vaccine Act context)
- Perreira v. Secretary of the Dep’t of Health & Human Servs., 33 F.3d 1375 (Fed. Cir. 1994) (reasonable-basis may terminate during pendency; fees awarded only until point of futility)
- Genentech, Inc. v. United States Int’l Trade Comm’n, 122 F.3d 1409 (Fed. Cir. 1997) (standards for finding abuse of discretion)
- Ninestar Tech. Co. v. International Trade Comm’n, 667 F.3d 1373 (Fed. Cir. 2012) (abuse-of-discretion framework)
- McKellar v. Secretary of the Dep’t of Health & Human Servs., 101 Fed. Cl. 297 (Fed. Cl. 2011) (objective totality-of-circumstances test for reasonable basis)
- Davis v. Secretary of the Dep’t of Health & Human Servs., 105 Fed. Cl. 627 (Fed. Cl. 2012) (deference to special masters on fee amounts; recognition that different special masters may reach different conclusions)
- Hanlon v. Secretary of the Dep’t of Health & Human Servs., 40 Fed. Cl. 625 (Fed. Cl. 1998) (special-master decisions are not binding on other special masters)