Last week, the Federal Circuit issued its opinion in DiMasi v. Secretary of Health and Human Services, a pro se vaccine case we have been following because it attracted an amicus brief. In this case, the Federal Circuit reviewed 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 to present oral argument. In an opinion authored by Judge Taranto and joined by Judges Prost and Moore, the Federal Circuit affirmed in part, reversed in part, and remanded. This is our opinion summary.
Judge Taranto began by explaining the factual background of the case:
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) . . . 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.
Approximately nine months later, Ms. DiMasi, now pro se, sought to reopen her case. Of importance here, she made two challenges. First, she argued that her counsel and the special master made a mistake about precisely when, post-vaccination, her critical symptoms first appeared (immediately or four days later) and that the mistake infected the adjudication of the initial-onset claim, the only claim presented. Second, she argued that her counsel never informed her of the possibility of filing a significant-aggravation claim or obtained her consent when deciding, on his own, not to present such a claim. The special master, treating her filings as a motion for relief from judgment under Claims Court Rule 60(b), denied Ms. DiMasi’s motion, reasoning (as her second challenge) that her former counsel’s decision not to press a significant-aggravation claim was a tactical choice that he had the authority to make within the attorney–client relationship. The Claims Court affirmed.
Ms. DiMasi timely petitioned this court for review, and the matter was briefed by her (pro se) and by the Secretary. Seeking additional assistance in clarifying both the facts and the relevant law, we then appointed amici to develop arguments in support of Ms. DiMasi’s appeal. Amici filed a brief doing so, the Secretary responded, amici replied, and we heard oral argument.
After this background, the opinion shifted to DiMasi’s first challenge related to her initial-onset claim. The court found that “Ms. DiMasi is not entitled to relief based on her first challenge.” Judge Taranto explained how the “special master did not abuse his discretion in making the determination we deem decisive on the initial-onset claim.” He explained “neither Ms. DiMasi nor amici have set forth a persuasive concrete explanation of just how acceptance of a four-day delay in pertinent symptoms after the December 4, 2012 vaccination would undermine . . . the special master’s interpretation of the pre-vaccination records.” In these circumstances, Judge Taranto explained, the court “affirm[ed] the special master’s rejection of the Rule 60(b) challenge to the denial of the initial-onset claim.”
In contrast to the first challenge, Judge Taranto discussed how the court made “a different conclusion about Ms. DiMasi’s argument for setting aside the . . . judgment denying compensation so that she may present a significant-aggravation claim and have it duly adjudicated.” He noted how, “[i]n the specific circumstances established on the Rule 60(b) record actually made,” the court concluded “that Ms. DiMasi is not bound by her then-counsel’s disclaimer of a significant-aggravation claim.” The court held “that it was an abuse of discretion for the special master to decline to set aside the . . . judgment to permit adjudication of a significant-aggravation claim in this case.” The court highlighted how, in this case, “there was a particular kind of gross negligence that makes it clearly unreasonable to bind Ms. DiMasi to counsel’s choice to disclaim the potentially critical significant-aggravation claim for compensation.”
As a result of its analysis, the Federal Circuit held that “the special master did not abuse his discretion in denying Rule 60(b) relief from . . . judgment to revive the initial-onset claim but did abuse his discretion in denying Rule 60(b) relief from . . . judgment to allow presentation and adjudication of a significant-aggravation claim.” As a result, the court “affirm[ed] the judgment . . . in part, reverse[d] it in part, and remand[ed] the case for further proceedings, consistent with this opinion, to permit presentation and adjudication of a significant-aggravation claim.”