Mora v. HHS, Case No. 13-421V (Fed. Cl. Jun. 30, 2015) (Kaplan, J)

In this case, the Special Master had denied a Rule 60(b) motion for relief from judgment premised on counsel’s unawareness that design defect claims had been foreclosed by the Supreme Court decision in Bruesewitz.  This case involved a child rendered paraplegic from transverse myelitis attributed to a flu vaccination by treating physicians. The Petitioner decided to pursue a civil action rather than accept a vaccine award due to the $250,000 cap on pain and suffering damages and the collateral source rule.

In order to secure the necessary judgment to file a civil action, petitioner moved to dismiss her vaccine case. The Special Master granted the motion to dismiss without making any findings of fact or conclusions of law as to the merits of the petition for compensation.

Petitioner then filed a civil suit alleging causes of action for strict products liability for manufacturing defect, design defect, and failure to warn against Sanofi Pasteur, Inc. (“Sanofi”), the manufacturer of the flu vaccine administered to G.G.M., and unnamed defendants. Further, Petitioner demanded arbitration with Kaiser Permanente for medical malpractice and lack of informed consent based on the alleged failure of G.G.M.’s pediatrician and nurse to provide the Vaccine Administration Sheet to petitioner prior to administering G.G.M.’s vaccination.

After removal to federal court, the defendant’s motion to dismiss was granted based on preemption under the holding in Bruesewitz, and petitioner’s complaint was dismissed with leave to amend. Thereafter, petitioner amended her complaint to allege that Sanofi had post-market data showing that at least two other children who received a flu vaccine from the batch petitioner received had suffered severe adverse reactions to the vaccine. Petitioner alleged causes of action for strict product liability for manufacturing defect and improper warnings, negligent manufacturing, intentional misrepresentation by concealment, and breaches of express and implied warranties.

Meanwhile, Petitioner also filed a motion for relief from judgment in the vaccine action, under Rule 60(b).  Petitioner requested that her vaccine claim be restored without prejudice in exchange for dismissing her pending product liability and medical malpractice actions. Petitioner’s counsel stated that he had been unaware that any design defect claim or failure to warn claim against the vaccine manufacturer was preempted by the Vaccine Act. Petitioner argued that her counsel’s ignorance of both the Supreme Court’s decision in Bruesewitz and section 300aa-22(c) of the Vaccine Act constitutes “mistake, inadvertence, surprise or excusable neglect” under RCFC 60(b)(1).  In the alternative, petitioner argued that the Special Master should set aside judgment under the catch-all provision in RCFC 60(b)(6), which states that the court may relieve a party from final judgment for “any other reason that justifies relief.”

The Special Master denied the motion, noting that relief under Rule 60(b)(1) would be improper because of what she called “a well-established rule that gross carelessness, ignorance of the rules, and/or ignorance of the law are not sufficient bases to afford Rule 60(b)(1) relief.”

The Special Master also declined to provide petitioner relief under Rule 60(b)(6). Under that rule, finding that the petitioner had failed to establish that absent relief, “a grave miscarriage of justice” would result.  The Court noted that while petitioner could not proceed with her design defect or failure to warn claim, she could still pursue her pending manufacturing defect claim and that she still had a pending demand for arbitration against the vaccine administrator. Further, the Court observed, the petitioner might recover additional damages in a future legal malpractice suit.

On appeal, Petitioner did not challenge the Court’s ruling under 60(b)(1), only under 60(b)(6), the catch-all, which has been characterized as a “grand reservoir of equitable power to do justice in a particular case,” although not a “bottomless” one.

The Special Master’s refusal to set aside her order dismissing the petition because she concluded that the negligence of petitioner’s counsel must be imputed to the petitioner and because the dismissal was the product of a voluntary and deliberate, albeit ill-advised, action taken by the petitioner (through her counsel) was held not to have been an abuse of discretion. Considerable discretion exists under the rule to strike a balance between the interest in the finality of judgments and preventing injustice to individuals.

Substantial case law, even from the Supreme Court, supported the Special Master’s conclusion that this case did not present extraordinary circumstances justifying relief under Rule 60(b)(6), thus the reviewing court held it “must, with great regret, deny the motion for review.”

Vaccine Case Reviews Affirmance of Denial of Relief from Judgment; Paraplegic Child Rejected Program Award Mistakenly Believing a Viable Design Defect Claim Existed