Argument Recap

Last week, the Federal Circuit heard oral argument in DiMasi v. Secretary of Health and Human Services, a vaccine case. In it, the Federal Circuit is reviewing a determination by the Court of Federal Claims that a “Special Master’s denial of relief from judgment was not an abuse of discretion.” Notably, after the pro se petitioner filed informal briefs, the court issued an order appointing two attorneys to serve jointly as amicus curiae in support of the pro se petitioner’s appeal and scheduled oral argument. Judges Moore, Prost, and Taranto heard the argument, and this is our argument recap.

J. Kain Day argued as amicus curiae for DiMasi. He began by asserting “it is undisputed that the Special Master applied the wrong legal standards when he denied Ms. DiMasi’s Rule 60 motion.” He further contended that, when “applying the correct legal standards to the undisputed facts, DiMasi is entitled to relief [because] a mistake of fact infected the Special Master’s compensation decision.” He specified that this mistake of fact occurred when the “Special Master adopted an incorrect symptom onset narrative.”

Multiple judges then posed questions. For example, one asked how the rate at which “symptoms arrive post-vaccine affected the Special Master’s reasoning.” Day responded by arguing that the rate has an impact because “one of the most important facts” to the determination “is how [DiMasi] reacted to the vaccine and what those [specific] symptoms were.” One judge then followed up with a question asking Day to point to anything in the Special Master’s determinations “where the analysis and the result [was] predicated explicitly on that fact.” Day answered the question by highlighting the Rule 60 decision showing “no clear indication that the Special Master would have reached the same conclusion but for the [determination of] initial onset.”

The argument then moved to the issue of significant aggravation. Day noted how, “[u]ltimately, significant aggravation is a distinct claim from initial onset under the Vaccine Act.” He analogized the decision by DiMasi’s former counsel not to press a significant aggravation claim to a settlement, and he contended counsel should not have done without first communicating with DiMasi. One judge questioned Day about the existence of a significant aggravation claim. Day responded by arguing that “there is actually a clear path in this case” where DiMasi’s former counsel “could have argued [significant aggravation] in the alternative.” He further remarked that a significant aggravation claim “would not require any inconsistent statement across the initial onset claims.”

Day maintained the “exceptional circumstance” warranting relief here “is the fact that the Special Master issued an order” acknowledging the possibility of DiMasi having a significant aggravation claim and “then counsel fail[ing] to even approach” DiMasi with respect to that particular claim. A judge then asked whether the argument is “undone by the fact that that same Special Master found” the present case “was not an extraordinary circumstance.” Day responded by maintaining the argument is not “undone” because there was “a legal error” underlying the Special Master’s finding. Specifically, Day argued, “the Special Master never recognized the legal principle that when counsel settles or takes comparable action against their client without authority, that is a basis for relief under Rule 60.” He further maintained “it is clear that counsel lacked authority, either expressed or implied, to concede [DiMasi’s] significant aggravation claim and the equities tip clearly in her favor to reopening on that basis.”

Caroline Lopez argued for the government. She began by noting a “key limitation on reopening” a case: the error in question must be “material.” She contended the error asserted here is not material “to either of the Special Master’s decisions in the original entitlement decision.”

The discussion shifted to the issue of significant aggravation when a judge asked what standard the court should follow with regard to the reopening the case. Lopez responded by arguing that the standard should be “total abandonment of representation,” which she noted is often coupled with an “affirmative misleading of clients.” Lopez then expressed concern over the prospect of the court delivering an overly broad opinion that would lead to mass reopening of cases.

Lopez argued “the Special Master did not abuse his discretion in light of everything that was in front of him, including [the fact] that the petitioner continued to argue strenuously that she did not have any pre-existing conditions.” Specifically, Lopez argued, one key aspect of this case’s context is that DiMasi urged her attorney to make “clear [that] she did not have pre-existing conditions.” Therefore, Lopez contended, “it was a tactical decision” that DiMasi’s former counsel did not go forward with the significant aggravation claim. A judge then asked Lopez whether there was any point in the Special Master’s determination where he acknowledged the fact that DiMasi’s attorney “did not consult his client” and stated that he approved of that fact because he viewed it as a “reasonable tactical decision.” Lopez responded by arguing that the behavior of DiMasi’s attorney constituted a sort of “tactical decision that attorneys can make as to how to best carry out their client’s instructions and overall objections.”

In rebuttal, Day argued that “reversal is required here for significant aggravation.” He once again maintained that the Special Master “failed to recognize that there is a legal principle” that when “an attorney settles or takes comparable action without authority,” relief is justified. He acknowledged that there are two potential claims in this case, but he does not “think they necessarily go different ways.” He further explained that the two claims should have been pleaded in the alternative.

We will continue monitoring this case and report on developments.