Updated: Mar 18
There are several phases in a vaccine case, and we will go over each phase in a single post. [NOTE: Every case is different. What is presented below is what generally happens. But each case has its own unique posture and requirements.] Because we have already discussed the elements of damages in depth here, this post will focus more on the procedural points and timing.
There is a significant difference between settlement and damages – although the elements of each are the same. That difference is if you’re in settlement, also known as “litigative risk settlement”, that means you have not won your case. Because of that the DOJ/HHS will not pay you 100% of your damages. The amount of litigative risk they assess varies by case but it is typically considerably higher than we assess it to be. In settlement the parties engage in informal negotiations – and these negotiations are not discussed with the Special Master. Since there is no decision on entitlement or causation, the Special Master has no power to award compensation different than what the DOJ offers. If there is a decision on entitlement in your favor, that is, if you win your case, you’re entitled to 100% of your damages and we can submit evidence to the Special Master if the opposing side’s offer is below awards in comparable cases.
The evidence required for either settlement or damages is the same, that is, supporting documentation for each component of damages: out of pocket unreimbursable expenses, lost wages and pain & suffering. As discussed in an earlier post here, you should already be keeping a pain & suffering log, documenting when your pain interferes with your life, as well as keeping receipts for out of pocket expenses. For lost wages, you will need to provide tax returns, W-2s or 1099s, and usually a social security statement. In some circumstances, a complete copy of your employment file is necessary. In addition, you may need to provide current copies of insurance policies and coverages to support future medical expenses. Witness statements may also be helpful for several components of damages (as well as causation). If your future needs require documentation, we may need your doctors to fill out questionnaires on future care needs.
In cases where lost wages are complex or your future care needs are substantial and complex we may need to engage the services of experts such as economists, life care planners and vocational rehabilitation experts. You are not responsible for any fees incurred by these experts. Their bills are reimbursed at the conclusion of the case. In the event we need a life care planner you should expect to participate in an onsite visit to your home (if a minor is involved a visit to their school may also be required) and sometimes doctors to assist the planner in preparing a care plan for you.
In each instance where we engage an expert or consultant, the DOJ/HHS will engage one as well. Both life care planners will be at the onsite visit. Don’t worry – we will thoroughly prepare you for the visit.
Eventually, each side presents its position to the other. If they are unable to reach an agreement the Special Master may refer the case to mediation (also know as ADR, alternate dispute resolution) or they may schedule a damages trial. [NOTE: if you’re in settlement and there is no agreement, settlement will end and the parties will continue with Entitlement until that is resolved.] Damages trials are typically scheduled more quickly than entitlement trials as the evidence being presented is more limited. In certain circumstances we can brief these issues rather than go to trial.
Unfortunately, the Damages/Settlement phase can be as delayed and prolonged as the rest of the case. That is why we ask for so much documentation at the beginning to ensure we can move the case forward quickly when we are able to. If you are missing items or don’t have supporting documentation we can help you find other ways to document expenses etc.
If we do reach an agreement on compensation with the DOJ/HHS the next step is for them to file either a stipulation (if we’re in settlement) or a proffer (if we’re in full damages). The DOJ automatically gets 15 weeks to get the stipulation to us for your signature. They usually take nearly the entire 15 weeks. Proffers don’t require your signature and are usually filed in less than 15 weeks, but their file time varies. Once either the proffer or the stipulation is filed the Special Master must issue a decision adopting the stipulation or proffer. This can take 24 hours to 1 week depending on the Special Master. After the decision issues the parties may expedite the judgment by filing joint notices to waive their right of appeal. We cannot guarantee that the DOJ will agree to this, but we try to get this filed every time. Without a joint notice the judgment issues 30 days after the decision. We then file an election to accept the judgment at which point the file transfers back to the DOJ for them to write a payment memo. While the timing varies, you can typically expect your compensation check within 45-60 days of the election being filed. The next phase for you would be the fees and costs phase.
Before addressing fees and costs, we’ll look at what happens if the Special Master rules against you: the Appeals Phase.
For more information contact The Law Office of Renée J. Gentry, Esq.