This morning, the Federal Circuit released two opinions: a precedential opinion in a patent case addressing infringement and anticipation and a nonprecedential opinion in a pro se vaccine case we have been tracking because it attracted an amicus brief. Late last Friday, the court also released a nonprecedential order dismissing an appeal. Here are the introductions to the opinions and a link to the dismissal.
Liquidia Technologies, Inc. (“Liquidia”) appeals from a decision of the United States District Court for the District of Delaware holding that (1) claims 1, 4, and 6–8 of U.S. Patent 10,716,793 (“the ’793 patent”) are not invalid and are infringed by Liquidia and (2) claims 1–3 of U.S. Patent 9,593,066 (“the ’066 patent”) are invalid as anticipated, but are otherwise infringed by Liquidia. United Therapeutics Corporation (“United Therapeutics”) cross-appeals from the court’s decision holding that (1) claims 1–3, 6, and 9 of the ’066 patent are invalid as anticipated and (2) claims 6, 8, and 9 of the ’066 patent are not infringed by Liquidia. See United Therapeutics Corp. v. Liquidia Techs., Inc., 624 F. Supp. 3d 436 (D. Del. 2022) (“Decision”). For the reasons provided below, we affirm.
DiMasi v. Secretary of Health and Human Services (Nonprecedential)
Stephanie DiMasi received a seasonal influenza vaccination on December 4, 2012. In late 2015, through counsel, she timely filed a petition in the U.S. Court of Federal Claims (Claims Court) under the National Vaccine Injury Compensation Program (Vaccine Act), Pub. L. No. 99-660, tit. III, 100 Stat. 3755 (1986) (codified at 42 U.S.C. §§ 300aa-10 through -34), seeking compensation for conditions assertedly caused by the vaccine. The Claims Court special master, prompted by pre-vaccination medical records and expert opinion suggesting that the conditions preexisted the 2012 vaccination, directed the parties to address the elements of a claim of significant aggravation, i.e., a claim that the vaccine, even if it did not cause the initial onset of the conditions, made the conditions significantly worse. In response, counsel for Ms. DiMasi first failed, then expressly declined, to present such an alternative claim. With the only live claim being that the 2012 vaccination caused the initial onset of the conditions, the special master then denied Ms. DiMasi’s petition for compensation, a denial that became a final judgment.
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We now hold that Ms. DiMasi is not entitled to relief based on her first challenge. As relevant here, although Rule 60(b)(1) authorizes relief from judgment for a mistake, we conclude that the asserted mistake of counsel and the special master—a mistake, based on assertedly inaccurate post-vaccination records, about the precise post-vaccination timing of manifestation of Ms. DiMasi’s critical symptoms—was harmless as to the initial-onset claim. We read the special master’s opinion denying Rule 60(b) relief to have determined that the finding of pre-vaccination onset rested independently on the pre-vaccination medical records and expert testimony based on those records. There has been no adequate showing that correcting the asserted timing mistake about post-vaccination symptom manifestation could reasonably have altered the determination based on the pre-vaccination records. We therefore affirm the denial of reopening of the initial-onset claim.
We further hold, however, that Ms. DiMasi is entitled to relief under Rule 60(b)(6) on her second challenge in the extraordinary circumstances of this case. Ms. DiMasi’s then-counsel disclaimed any significant-aggravation claim without securing consent from his client, despite the special master’s sua sponte order calling for briefing on significant aggravation and identifying the evidence of prevaccination existence of the conditions at issue that made a significant-aggravation claim possibly of crucial importance to Ms. DiMasi receiving any compensation. Later, after the adverse judgment, then-counsel told Ms. DiMasi that the special master had effectively rejected a significant-aggravation claim on the merits, even though such a claim was never asserted or adjudicated. We deem this combination of facts to constitute circumstances that are among the rare ones in which the client is not bound by a choice of counsel. We therefore partly reverse the denial of Ms. DiMasi’s motion for relief from judgment, and we remand the case for further proceedings limited to setting aside the underlying judgment to permit assertion and adjudication of a significant-aggravation claim.