What Can I Expect When You Take My Case? Phase 5-HHS/DOJ Review.
There are several phases in a vaccine case, and we will go over each phase in a single post.
As the PAR Process concludes, the assigned Special Master enters the initial scheduling order. That gives the opposing side, the Secretary of HHS, their deadline for their review. Under Vaccine Rule 4(c)(1), they Department of Justice (DOJ) attorneys must file their Respondent’s Report (HHS’ answer to your claim) within 90 days or 3 months after filing the petition (or when the Petitioner has satisfied all required documentary submissions, meaning the PAR Process has concluded).
As of today, the DOJ is routinely taking on average 12 to 16 months to file HHS’ answer to your claim. Significantly, this is twice the amount of time in which Congress originally intended these cases to be resolved. What this means is, approximately halfway through this process we will be ordered to collect updated medical records and go through that entire process again.
In certain cases, if you’re in the SPU with a Table case, the Chief Special Master will allow you to file a Motion for a Ruling on the Record if the DOJ has not filed its answer within 12 months of the case being activated. In non-Table cases this is not an option. So, the cases sit. At times for nearly a year and a half. In most circumstances, there is no remedy available to us to expedite the case for you. [NOTE: The crushing delays in the NVICP will be discussed in a separate post.]
Let’s assume these 12 to 16 months have passed and you have alleged a Table injury. The DOJ typically file 1 of 3 responses. The most common response these days is that they have reviewed the evidence and are amenable to discussing settlement. This does not mean you won your case. That is significant, because it means the DOJ will reduce your damages based on their assessment of your litigative risk. In civil litigation litigative risk is calculated by each party’s risk of losing a case if they go to trial. Litigative risk in the NVICP is a very different animal. Typically, in these circumstances, the DOJ makes an offer based on their assessment of the case – without providing any evidence in support of that assessment – and that offer is non-negotiable and considerably below awards in comparable cases that have already been decided. In this situation you may have to request the Chief Special Master make a ruling on the record regarding causation, where you will brief the issues. The Chief Special Master may order you to appear at a Motions Day hearing – essentially a mini oral argument by the parties. After the Chief Special Master makes a fact finding on whether you have a Table case, you may then have him rule on damages as well.
The DOJ may also simply concede the case which means there should be no litigative risk reduction to the award. However, offers from the DOJ in these cases typically do not meet the awards in comparable cases either, so you end up briefing damages.
Finally, the third option, the DOJ may contest causation and challenge your case outright. Typically, this means you will proceed on a full-blown litigation track with experts and trial and your case will be transferred out of the SPU to another Special Master. This could be a challenge to your case being a Table injury (that is, that your injury does not meet either the jurisdictional requirement of lasting 6 months OR that your injury does not meet the definitions in the QAIs at the end of the Table) or to the injury completely. These challenges to claims based on alleged fairly to meet the QAIs happens frequently these days. You may think you have a simple SIRVA case, but it can easily turn into a full blown expert hearing case.
As noted above, the DOJ’s response will dictate what happens next in your case. Based on that, the next phase is either Damages/Settlement or Entitlement.
For more information contact The Law Office of Renée J. Gentry, Esq.