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Many parents are concerned about the supposed risks between vaccination and autism, but the CDC has stated that the studies have not supported a link between vaccinations and incidence of autism. Because of the rise of litigation in the '70s and '80s with big damage awards, even in the absence of scientific evidence, Congress enacted the National Childhood Vaccine Injury Act ("Vaccine Act") to limit liability and address public health concerns.

Do vaccines cause illness in children? If a parent believes that his or her child has been injured by a vaccine, is there a legal remedy?

In recent consolidated cases before the Federal Circuit Court of Appeals, parents sued the Secretary for Health and Human Services for illnesses they claim were caused by the administration of vaccines to their respective daughters.

The parents sought compensation under the National Vaccine Injury Compensation Program, alleging that DTaP (Diptheria-Tetanus-acellular Pertussis) caused their daughters’ seizure-related illnesses.

The Mayo v. Prometheus case from last week is already generating the effect that many legal analysts predicted it would. On March 20, the U.S. Supreme Court overturned a decision from the Federal Circuit Court of Appeals, citing in its decision that companies cannot patent their observations on a natural phenomenon.

In light of that ruling, the U.S. Supreme Court is sending another case back to the Federal Circuit Court of Appeals. The high court is asking the Federal Circuit to review a case that challenged two patents held by Myriad Genetics Inc.

Arctic Slope Native Ass'n, Ltd. v. Sebelius, 10-1013

Indian tribe's suit against the Secretary of Health and Human Services for contract support costs

Arctic Slope Native Ass'n, Ltd. v. Sebelius, 10-1013, concerned an Indian tribe's suit against the Secretary of Health and Human Services for breach of contract, claiming that the government failed to pay plaintiff's so-called contract support costs shortfall for fiscal years 1999 and 2000.


Wanless v. Shinseki, 10-7007, involved an incarcerated veteran's request for full reinstatement of his disability benefits following his transfer from a state-operated prison to a privately owned prison.  In affirming the Board of Veterans' Appeals' and the Veterans Court's denial of the request, the court held that the Veterans Court properly construed section 5313 to include penal institutions that are privately operated, yet state-contracted.

 

Shaw v. Sec'y of Human & Health Serv., No. 09-5117, concerned a challenge to the Court of Federal Claims' dismissal for lack of jurisdiction in an appeal of Special Master's decision to award plaintiff's undisputed portion of his request for interim attorneys' fees and costs and deferring consideration of the remaining amount until submission of a final petition for fees and costs in a case under the Vaccine Act.

As stated in the decision: "The Special Master's grant or denial of interim attorneys' fees is a decision on compensation and as such it is reviewable by the Court of Federal Claims under section 12(e).  Moreover, the Special Master's decision on interim attorneys' fees is a final decision on the issue of "interim fees."  And if the interim fee denial cannot be reviewed until after a decision on the merits, it is no longer an interim fee.  Foreclosing review of a denial of interim fees is tantamount to a denial of such fees."

Thus, in reversing, the court held that 42 U.S.C. section 12(e) confers jurisdiction on the Court of Federal Claims to review interim attorney fee decisions as an interim attorney fee decision is a separate decision on compensation, and as such, is reviewable even when that decision issues prior to a decision on the merits. 

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In Colantonio v. Shinseki, No. 09-7067, the Federal Circuit faced a challenge to the decision of the United States Court of Appeals for Veterans Claims finding that petitioner was not entitled to a free medical examination in connection with his claim for compensation for a service-connected disability.

In reiterating the interpretation of subparagraph B adopted in Waters v. Shinseki, the court wrote: "[M]edically competent evidence is not required in every case to "indicate" that the claimant's disability "may be associated" with the claimant's service.  Of course, that is not to say that it will always be possible to establish a nexus through lay evidence, as there may be instances, such as Waters case itself, in which the lay evidence falls short of satisfying the statutory standard."

 Thus, in concluding that the Veterans Court may have applied an erroneous interpretation of 38 U.S.C. section 5103A(d)(2), the court vacated and remanded the judgment to permit the Veterans Court to reconsider its harmless error analysis in light of the proper interpretation of 38 U.S.C. section 5103A(d)(2). 

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Gaston v. Shinseki, No. 09-7104, concerned a petitioner's claim for an earlier effective date for his award of total disability based on individual unemployability (TDIU).  In affirming the judgment of the United States Court of Appeals for Veterans Claims denying his claim,  the court held that under 38 U.S.C. section 5110(b)(2), a veteran is only entitled to an earlier effective date if an increase in his disability occurred during the year before he filed his claim.     

As the court wrote: "It is clear from the plain language of 38 U.S.C. section 5110(b)(2) that it only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim.  Section 5110(b)(2) first specifies that the effective date of an increase 'shall be the earliest date' that the evidence shows 'an increase in disability had  occurred.' The statute then imposes a condition, permitting the application of this earlier date only 'if application is received within one year from such date."

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Hazlehurst v. Sec'y of Health & Human Serv., No. 09-5128, concerned a petition of the Court of Federal Claims' decision affirming the special master's denial of plaintiffs' claim on behalf of their son, seeking compensation under the National Childhood Vaccine Injury Act of 1986, claiming that the measles, mumps, and rubella (MMR) vaccine, which was administered to their son before his first birthday, caused him to develop regressive autism.

In affirming the decision of the Court of Federal Claims, the court held that compensation under the Act is limited to those individuals whose injuries or deaths can be linked causally, either by a Table Injury presumption or by a preponderance of "causation-in-fact" evidence to a listed vaccine.  Here, the special master's conclusion that petitioners' evidence failed to demonstrate the necessary causal link is correct, as  the petitioners have not identified any reversible error in the special master's decision reaching that conclusion. 

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Decison involving Vaccine Act's statute of limitations

In Cloer v. Sec'y of Health & Human Serv., No. 09-5052, the Federal Circuit faced a challenge to a decision affirming a Chief Special Masters' report denying petitioner's request for compensation under the Vaccine Injury Compensation Program. 

As stated in the decision: "Markovich confirms that, under section 300aa-16(a)(2), in general, a symptom must be recognizable by the medical community at large as constituting a vaccine-related injury.  As this court expressly held, the limitations period begins at the first event objectively recognizable as a sign of a vaccine injury by the medical profession at large."

Thus, the denial of petitioner's request is reversed and remanded as the Vaccine Act's statute of limitations, 42 U.S.C. section 300aa-16(a)(2), does not begin to run where a claimant experiences a symptom of injury, but the medical community at large does not recognize that the symptom is related to a vaccine and the claimant has not received medical information suggesting a connection. 

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