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.]
As the result of the HHS/DOJ review dictates the next phase, this will be a two-part post. This first post will discuss the Entitlement Phase, that is, when the DOJ’s response is to oppose causation. What is “Entitlement”? Entitlement means the Special Master decides whether you are entitled to compensation, that is, whether the vaccine caused your injury. Before the case goes into Entitlement, the Vaccine Rules require the Special Master to conduct what is called a Rule 5 Status Conference with the parties. This is a telephonic status conference with the lawyers. This is not a hearing and you are not required to be present. During this Rule 5 status conference, the parties are given the opportunity to address each other’s positions, and then the Special Master will give their tentative findings and conclusions.
If you are still in the SPU with an alleged Table injury, you will likely not need an expert and in most cases of these cases, you will address entitlement by briefing. However, in some cases experts are required.
If you are required to prove causation, or causation-in-fact as it is sometimes called, we will need to get an expert to review your case. Experts will be specific to your injury. For example, if you have a neurological injury we will use a neurologist. We may need an immunologist as well. It is very difficult to get experts in these cases, and this process can take considerable time. Treating doctors are rarely used because 1) treating doctors rarely say the vaccine caused the injury, and 2) the Vaccine Court doesn’t usually find their testimony persuasive.
Each side will get experts as the DOJ will find someone to counter our expert. In addition to their reports, experts often file numerous medical literature articles in support of their position. Significantly, we usually go through multiple rounds of supplemental reports that address issues raised by the other side’s experts. The expert report part of entitlement can often take more than a year, as typically experts get 60 days in which submit their reports. The best experts are busy and this is what their schedules allow for. Multiple rounds of 60-day intervals adds up quickly. [NOTE: If the Special Master raised weaknesses in your position in the Rule 5 status conference, your expert may address them in a report.]
Once all evidence from the experts is in, the case is ready to either go to trial or briefing. The Special Masters are not required to give you a trial. Because of their overcrowded dockets, Special Masters are increasingly limiting the parties to briefing, instead of a trial. In those circumstances we file a Motion for Finding of Facts or Ruling on the Record, the DOJ responds and we usually have an opportunity to file a reply brief. And then we wait for a decision from the Special Master.
In the event, the Special Master wants to hear live testimony, they will set a trial date. Unfortunately, again due to the overloaded dockets, current trial dates are around 2 years out. Meaning if you were to try to set a trial today, March 16, 2023, you might be scheduling a trial in 2025. In the interim, we will continue to update medical records and keep the Special Master informed of any changes in your condition.
As the trial date approaches, we will file prehearing briefs outlining our position and including witness lists and exhibit lists. Trials can be either in person or be conducted virtually on a platform such as Zoom. If they are in person, they are typically in Washington DC. However, in very rare circumstances the Court does travel to where the Petitioner lives. With the use of Zoom etc, the Court no longer travels as much. Trials may take multiple days depending on the number of experts. The parties usually can file post-trial briefs as well. And then we wait for a decision from the Special Master.
Current wait times for most of the Special Masters is approximately 1 year from the conclusion of briefing (for both Rulings on the Record and post-trial). As you can see, this entire practice is extremely long and frustrating. That is why any opportunity we have to expedite something; we need to take it.
Obviously, the Special Master’s decision dictates what happens next in your case. If they rule against you, you may have an opportunity to have that decision reviewed on appeal. If they rule in your favor, you go immediately into damages. Based on that, the next phase is either Damages/Settlement or Appeal.
For more information contact The Law Office of Renée J. Gentry, Esq.