D.B. v. HHS, (Fed. Cl. Spec. Mstr. Nov. 18, 2015) (Hamilton-Fieldman, SM)

Petitioner had previously moved for dismissal for insufficient proof, which motion had been granted.  The parties had experts and were scheduled to try the case, but counsel, in his motion, “indicated that upon a review of the medical records, he did not believe that there was ‘sufficient evidence to proceed with litigating this case’; he did not believe that Petitioner ‘[would] be able to meet the preponderan[ce of] evidence’ standard.  Attempts to find a better expert than originally proffered had failed.”

One year later, Petitioner found new counsel, who filed a motion to vacate stating that “[her] claim was not decided on the merits through no fault of her own or her prior attorney’s but as a direct result of a federal indictment against…her then expert, Dr. John Shane.”  Petitioner also filed two additional expert reports, supporting documentation, and supporting medical literature with the motion.

Relief from judgment under RCFC 60(b) can be obtained for the specific reasons listed in RCFC 60(b) (1)-(5) or pursuant to the “catch-all” provision of RCFC 60(b) (6), which allows relief “for any other reason.”  The Court held that Dr. Shane’s grand jury indictment for alleged will forgery, which indictment was subsequently lifted and the will upheld, did not constitute an “extraordinary circumstance” under RCFC 60(b)(6).

Although trial counsel reportedly only discovered the indictment on the eve of trial, no mention was made of this problem at the time of moving to dismiss the case.  Instead, counsel cited a lack of evidence, both scientific and factual, as the reason for Petitioner’s requested dismissal.

Additionally, a change in litigation strategy is not an “extraordinary circumstance” under RCFC 60(b)(6).  The Court found that Petitioner made a conscious, deliberate, and voluntary decision to ask for dismissal of her case in order to bring a civil action, as indicated in the motion.   Petitioner also made a deliberate, conscious choice not to ask for review of the dismissal or appeal the judgment.

Finally, the court held that Petitioner had ample opportunity to make her case on the merits in the four years of its pendency and no explanation was given as to why the two expert reports proffered with the motion to vacate could not have been obtained earlier.  In any event, the Court found that Petitioner’s symptoms predated the vaccine, weighing in favor of the finality of judgment and against vacating the judgment pursuant to RCFC 60(b)(6).  “If simply finding new experts to opine under these circumstances was enough, no vaccine case would ever be closed.”

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Vaccine Case Reviews Denial of Motion to Vacate – Problems with Expert Witness