[00:00:00] Speaker 00:
Health and Human Services.

[00:00:45] Speaker 00:
Mr. Dixler, please proceed when you're ready.

[00:00:52] Speaker 01:
Good morning, Your Honors.

[00:00:53] Speaker 01:
May it please the Court?

[00:00:54] Speaker 01:
My name is Scott Dixler.

[00:00:55] Speaker 01:
I represent the Appellant GGM.

[00:00:59] Speaker 01:
Your Honors, this case presents the threshold question whether Rule 60B6 relief is ever available to relieve a client from the consequences of her attorney's gross negligence.

[00:01:07] Speaker 01:
A majority of circuits have held that such relief is available under those circumstances, and the government now agrees that such relief can be available.

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Even so, the special master in this case failed to recognize that Rule 60B-6 relief was ever available in the case of attorney gross negligence.

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So at a minimum, this court should remand this matter to the special master with instructions to apply the correct legal standard.

[00:01:28] Speaker 00:
Why don't you point me to a sentence in the special master opinion or some place where you think it's clear that she did not appreciate that you can ever grant 60B for gross negligence by an attorney.

[00:01:43] Speaker 01:
Yes, Your Honor.

[00:01:45] Speaker 01:
observation.

[00:01:46] Speaker 01:
I'll turn to the language right away, but just before I do.

[00:01:48] Speaker 01:
The special master never said as much, so that's the first thing.

[00:01:52] Speaker 00:
The fact that she didn't say that 60B can be granted in gross negligence doesn't mean that she didn't understand it.

[00:01:59] Speaker 00:
Your argument is that she failed to appreciate a governing legal point, and so I need to understand just failure to mention it doesn't indicate to me that she failed to appreciate it.

[00:02:11] Speaker 01:
Right, Your Honor.

[00:02:11] Speaker 01:
So turning to the actual

[00:02:14] Speaker 01:
standard that she did apply, the way her decision is structured is that she sets out the legal standard for Rule 60B1 first.

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And under the Rule 60B1 discussion, she cites authority for the proposition that a client is always bound by a lawyer's conduct, including a lawyer's neglectful conduct.

[00:02:34] Speaker 00:
Why don't you tell me, I mean, I'd really like you to show me in the opinion

[00:02:38] Speaker 00:
someplace that maybe will really make it clear to me that she failed to understand the law.

[00:02:45] Speaker 01:
Right, Your Honor.

[00:02:46] Speaker 01:
So turning to, if you look at page seven of the Joint Appendix, she cites the Petal case, where she says, federal courts have consistently upheld the principle that, quote, an attorney's failure to evaluate carefully the legal consequences of a chosen course of action

[00:03:02] Speaker 01:
provides no basis for relief from judgment under Rule 60B1 or 60B6.

[00:03:07] Speaker 00:
Well, that's not wrong.

[00:03:09] Speaker 00:
To the extent that circuits have identified gross negligence as a basis for 60B1, it seems to me that the judge for the Court of Federal Hines pretty effectively and clearly articulated the difference between gross negligence of the kind

[00:03:31] Speaker 00:
which separates the lawyer from his client.

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I tell you I'm going to file something in a timely fashion, and then I don't file it.

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The lawyer, his actions were not consistent with his client's wishes.

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And that kind of gross negligence is gross negligence attributed solely to the lawyer and therefore should not be held attributable to the client.

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But in this case, there are repeated examples of the lawyer

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saying that he and his client have agreed to pursue civil remedy where they think they can receive a larger compensation package.

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I can understand why they'd want to do that, but it doesn't seem to me that there is any fundamental breakdown in the attorney-client relationship, which I see in every one of the cases where gross negligence was allowed.

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So what am I missing?

[00:04:22] Speaker 01:
Well, Your Honor, the distinction is a distinction the government draws as well between

[00:04:27] Speaker 00:
Well, the court of federal claims drew this distinction.

[00:04:29] Speaker 01:
Right.

[00:04:30] Speaker 01:
Between gross negligence that takes the form of a dismissal for failure to prosecute or a default judgment on the one hand, or here, a failure to conduct legal research that results in a voluntary dismissal.

[00:04:45] Speaker 00:
The problem is, the argument you're asking for, it seems to me, would allow for a 60B every single time an attorney

[00:04:54] Speaker 00:
makes an incorrect assessment of the legal proposition at issue.

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Any time the attorney makes an error of law, if there is a case that says the opposite, then he shouldn't have led his client down that path.

[00:05:10] Speaker 00:
The problem is that happens all the time.

[00:05:12] Speaker 00:
Nothing personal, but on many instances, lawyers overlook, often inexcusably, as in in this case, but overlook governing law

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and make those mistakes with their client's agreement in assent.

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And yes, the client is not knowledgeable or sophisticated and doesn't know it, but that's what happens.

[00:05:31] Speaker 00:
That, I think, it seems to me, has been ruled out as a basis for 60B by the case law and accepted as not entitling someone to 60B relief.

[00:05:44] Speaker 00:
What am I missing?

[00:05:45] Speaker 01:
Well, Your Honor, the cases are clear, as I've said,

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attorney gross negligence can be a basis for relief from a judgment under Rule 60B6.

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So the concern that there's going to be a floodgate of cases or the floodgates of cases will be opened where clients will come in and say, well, my attorney made a legal error, so I need 60B6 relief.

[00:06:04] Speaker 01:
What the limiting factor is, is the gross negligence of counsel.

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And the Ninth Circuit makes this point in the Tani case, that unfortunately, attorney negligence, failure to understand legal rules, et cetera, is all too common.

[00:06:16] Speaker 01:
But gross negligence is rare.

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And here, in this case, there's no concern about that at all because the government concedes that attorney Sun's failure to conduct any research about the preemptive scope of the Vaccine Act was grossly negligent.

[00:06:29] Speaker 04:
So while in some cases, admittedly, there could be a hard... Are you trying to make a distinction between legal error and really bad legal error for purposes of Rule 60B?

[00:06:42] Speaker 01:
I wouldn't phrase it that way, Your Honor.

[00:06:44] Speaker 01:
I would phrase it in terms of negligence and gross negligence, and sometimes gross negligence, as in this case, could manifest itself in the failure to conduct any legal research at all.

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So this isn't just a case where there was legal research conducted and it led the attorney to an erroneous conclusion of law that unfortunately had bad consequences for the client.

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This is a case where no legal research whatsoever was conducted.

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And that's where, just to bring up another point, is that the government

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like the special master, or excuse me, like Judge Kaplan, put significant weight on the distinction between a grossly negligent act and a grossly negligent omission.

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And the government argued that while a grossly negligent omission could justify relief from a judgment, but a grossly negligent, or excuse me, you're right, and a grossly negligent act never could.

[00:07:26] Speaker 01:
But here there was a grossly negligent omission, which was the failure to conduct any legal research.

[00:07:32] Speaker 03:
Can we talk about the green brief, Sanofi's green brief?

[00:07:35] Speaker 01:
Yes, Your Honor.

[00:07:36] Speaker 03:
What's your position?

[00:07:37] Speaker 03:
Do you agree with Sanofi that the special master issued an order that she, as a legal matter, was not legally able to issue, that being the fact that she issued a judgment of dismissal as opposed to an order concluding proceedings?

[00:08:01] Speaker 01:
Well, Your Honor, just to back up for a second.

[00:08:06] Speaker 01:
We agree with Sanofi that the vaccine program is the appropriate venue for GGM's claim.

[00:08:13] Speaker 01:
We completely agree with Sanofi that this case should not be proceeding in the federal district court.

[00:08:17] Speaker 01:
It shouldn't have proceeded in state court.

[00:08:18] Speaker 01:
It belongs in the vaccine program.

[00:08:20] Speaker 01:
So on that, we agree completely.

[00:08:22] Speaker 00:
Until resolved on the merits.

[00:08:24] Speaker 01:
Right, right.

[00:08:25] Speaker 01:
So yeah, we were totally on board with Sanofi in that respect.

[00:08:29] Speaker 01:
In terms of the procedural argument that Sanofi raises, I mean, it's an argument that we considered candidly and we decided not to pursue.

[00:08:36] Speaker 01:
And the reason why is that, as we see it, as between GGM and the government, the argument's completely inconsequential, whether a judgment entered, as it did in this case, or whether an order concluding proceedings entered under Rule 21.

[00:08:49] Speaker 00:
You're baffling me.

[00:08:50] Speaker 00:
I have to stop you.

[00:08:51] Speaker 00:
You've got to stop talking.

[00:08:53] Speaker 00:
You're digging yourself a hole.

[00:08:55] Speaker 00:
I don't even understand your argument.

[00:08:58] Speaker 00:
Inconsequential, if this had been an order,

[00:09:01] Speaker 00:
dismissal without prejudice, you could have refiled.

[00:09:04] Speaker 00:
You had your California order on, let's see my dates here, you could have brought, your California order was, you could have brought until September 7th of 2015 a new petition.

[00:09:19] Speaker 00:
If the petition had been dismissed without prejudice, you could have refiled.

[00:09:25] Speaker 00:
So how can you say it's inconsequential?

[00:09:28] Speaker 00:
whether the special master had dismissed without prejudice, which seems to me the only thing that would have been appropriate to do under the rules of the Vaccine Act and the statute, versus actually entering a judgment against you seemingly, which cannot be done under the rules or the statute absent a decision on the merits, and a judgment against you prevents you from refiling and leaves you with the only avenue being 6DB.

[00:09:55] Speaker 00:
If she had followed proper rules and instead entered this as a dismissal with prejudice, when you found out from California, you still had almost a whole year in which you could have refiled this claim, not been barred by the statute of limitations, and refiled your petition.

[00:10:09] Speaker 00:
Because a dismissal without prejudice would have allowed you to do that.

[00:10:13] Speaker 00:
So how can you say her designation of this is inconsequential?

[00:10:17] Speaker 00:
How can you say you considered it and decided not to do it because it didn't make a difference?

[00:10:24] Speaker 00:
I'm at a loss.

[00:10:25] Speaker 01:
Your Honor, I mean, inconsequential as the court sits now from the appellate perspective.

[00:10:30] Speaker 01:
From the appellate perspective right now, because keep in mind, there was a judgment.

[00:10:33] Speaker 04:
I still don't understand it.

[00:10:34] Speaker 04:
I mean, I think you're giving away your case.

[00:10:36] Speaker 04:
Yeah, yeah.

[00:10:38] Speaker 04:
If it's a judgment, you lose.

[00:10:42] Speaker 04:
Because I don't think we're going to agree.

[00:10:44] Speaker 04:
I'm speaking for myself.

[00:10:46] Speaker 04:
But your view of the difference between gross negligence and negligence and attorney mistake is not going to hold up with me.

[00:10:53] Speaker 04:
But if this was not a judgment and should never have been entered as a judgment, then maybe there's something that the special master should have taken a look at.

[00:11:02] Speaker 01:
Right.

[00:11:02] Speaker 01:
And under the rules, I think that the argument is well taken, that under Rule 21, when there's a voluntary dismissal, an order concluding proceedings should enter and not a judgment as was entered.

[00:11:14] Speaker 01:
Now, the reason I said it was inconsequential, and maybe that was a bad choice of words, but the reason I mentioned it is because either the judgment

[00:11:23] Speaker 01:
or the order concluding proceedings in this under Vaccine Rule 36 is subject to attack under Rule 60B.

[00:11:29] Speaker 04:
So in either case, and that's just what I- Yes, but if it's a judgment, you lose.

[00:11:33] Speaker 04:
If it was an order concluding proceedings, you probably win.

[00:11:37] Speaker 01:
Okay, Your Honor.

[00:11:37] Speaker 01:
And obviously, I don't agree that we should lose if it were a judgment, but I take Your Honor's point.

[00:11:42] Speaker 01:
So in that world, what I would ask the court to do is that if the court agrees with Sanofi that an order concluding proceeding should have entered and not a judgment,

[00:11:50] Speaker 01:
What I would just ask is that the court not remand with instructions to enter the order concluding proceedings.

[00:11:54] Speaker 01:
Because as a practical matter, that would have no consequence.

[00:11:57] Speaker 01:
And that's kind of what I meant.

[00:11:59] Speaker 04:
Did you have any settlement discussions?

[00:12:01] Speaker 04:
You don't have to tell me the content.

[00:12:03] Speaker 04:
I know they're confidential.

[00:12:04] Speaker 04:
But either before the Special Master or before the Court of Federal Claims when you refiled this?

[00:12:09] Speaker 01:
Before the Special Master, yes.

[00:12:11] Speaker 01:
Before the Court of Federal Claims, yes.

[00:12:13] Speaker 01:
And I wasn't involved in the case at that time.

[00:12:15] Speaker 01:
On appeal?

[00:12:16] Speaker 04:
Not the first time on the 60B motion.

[00:12:19] Speaker 01:
On the 60B motion, I believe so.

[00:12:21] Speaker 01:
Yes.

[00:12:23] Speaker 01:
If there's nothing else, Your Honor, I'd like to reserve the balance of time for rebuttal.

[00:12:28] Speaker 00:
All right.

[00:12:28] Speaker 00:
Mr. Coleman.

[00:12:32] Speaker 02:
Thank you.

[00:12:34] Speaker 02:
May it please the court.

[00:12:36] Speaker 02:
My name is Robert Coleman.

[00:12:37] Speaker 02:
I represent the appellee, Secretary of Health and Human Services.

[00:12:40] Speaker 02:
Regarding the amicus motion that was raised in the previous argument, I'd like to raise four procedural issues at the outset.

[00:12:48] Speaker 02:
The first is that the amicus brief was filed late under this court's rule 29E.

[00:12:53] Speaker 04:
You're not going to get very far.

[00:12:56] Speaker 04:
I mean, we allowed the filing of it.

[00:12:57] Speaker 04:
We've read it.

[00:12:58] Speaker 04:
We obviously have questions about it.

[00:12:59] Speaker 04:
Why don't you address the merits of the amicus argument?

[00:13:02] Speaker 02:
Certainly, Your Honor.

[00:13:04] Speaker 02:
First off, regarding whether this was a decision or not, appellee's position is that it was a decision.

[00:13:09] Speaker 02:
This was issued in response to petitioners' explicit request for a decision.

[00:13:14] Speaker 02:
It was treated by all the parties as a decision.

[00:13:17] Speaker 02:
And then mean a judgment.

[00:13:18] Speaker 02:
No, I mean the decision from which a judgment would follow.

[00:13:22] Speaker 04:
And that can only occur in certain circumstances, right?

[00:13:26] Speaker 02:
A judgment?

[00:13:28] Speaker 02:
Yeah.

[00:13:29] Speaker 02:
Yes, however.

[00:13:30] Speaker 00:
This is a decision under the statute 42 USC, section 300 AA-12D3A.

[00:13:36] Speaker 00:
Decision of a special master shall include findings of fact and conclusions of law, be issued as expeditiously as practical but not later than 240 days,

[00:13:46] Speaker 00:
et cetera, et cetera, et cetera.

[00:13:47] Speaker 00:
Where are the findings of fact and conclusions of law in this decision?

[00:13:50] Speaker 02:
That would be on JA 33, which is the second page of the dismissal decision.

[00:14:01] Speaker 02:
And perhaps they're not the same findings of fact and conclusions of law typically seen in other cases.

[00:14:06] Speaker 04:
Wait, say that again.

[00:14:07] Speaker 04:
We're on JA what, 33?

[00:14:08] Speaker 02:
Sure, JA 33.

[00:14:10] Speaker 04:
Which paragraph?

[00:14:12] Speaker 02:
We can start with the top paragraph.

[00:14:14] Speaker 02:
But it'll be the top three paragraphs.

[00:14:16] Speaker 02:
There are particular findings of fact noted, which are... Where is a finding of fact?

[00:14:21] Speaker 00:
This looks to me to be Petitioner's Counselor stated, Respondent stated, Petitioner's Motion.

[00:14:26] Speaker 00:
Where in those first three paragraphs is any finding of fact?

[00:14:29] Speaker 02:
Those are what we submit are findings of fact, although they may not be, as I said, originally typical findings of fact.

[00:14:35] Speaker 00:
OK, so it is a finding of fact about what Petitioner's Counsel argued.

[00:14:39] Speaker 02:
It's a finding of fact that on March 11th, the demand

[00:14:43] Speaker 02:
to respond to this issue.

[00:14:44] Speaker 02:
That's a fact.

[00:14:45] Speaker 04:
But those are no findings of fact about entitlement or the like.

[00:14:49] Speaker 04:
That's what's contemplated by the statute, isn't it?

[00:14:52] Speaker 02:
We argue that it just says findings of fact and conclusions of law, but doesn't specify any further.

[00:14:58] Speaker 00:
Wait, but your vaccine rule, is vaccine rule 10 governed in this case?

[00:15:04] Speaker 00:
Yeah, it can be applicable.

[00:15:05] Speaker 00:
Do the vaccine rules govern?

[00:15:06] Speaker 00:
They're not just wishy washy.

[00:15:08] Speaker 00:
You can do them when you want to.

[00:15:09] Speaker 00:
The vaccine rules actually govern, right?

[00:15:11] Speaker 00:
These were promulgated after notice and comment, and they are the force and effect of law.

[00:15:17] Speaker 00:
Is that right?

[00:15:18] Speaker 00:
vaccine rule 10, which interprets the statutory provision I just read to you about findings of fact and conclusion of law, says, pursue it to 42 USC section 300.

[00:15:29] Speaker 00:
It's the same section.

[00:15:30] Speaker 00:
The special master will issue a decision on the petition with respect to whether an award of compensation is to be made, and if so, the amount thereof.

[00:15:38] Speaker 00:
Doesn't that rule

[00:15:40] Speaker 00:
lend further support to the idea that a decision is only a decision if it reaches the merits of the case, and is distinct from a dismissal of the case.

[00:15:52] Speaker 02:
Respectfully, Your Honor, I don't believe so.

[00:15:53] Speaker 02:
I think it must deal with whether or not compensation is awarded here as she is dismissing the case.

[00:16:01] Speaker 04:
So their compensation was appropriate.

[00:16:05] Speaker 04:
I'm having a real hard time.

[00:16:07] Speaker 04:
reconciling your petition or your position in this case with the paper you filed in the autism cases.

[00:16:16] Speaker 04:
I assume you know which one I'm talking about.

[00:16:18] Speaker 04:
Yes, I do.

[00:16:18] Speaker 04:
The green brush cited it.

[00:16:19] Speaker 04:
Throughout this, you have different examples of where a judgment is not appropriate.

[00:16:26] Speaker 04:
And not every one of them, but they all seem to mirror, in some respects, this case.

[00:16:34] Speaker 04:
None.

[00:16:34] Speaker 04:
And your distinction in those autism cases all seems to rely on the fact that a judgment shouldn't enter unless the special master makes findings of fact regarding whether compensation is appropriate.

[00:16:48] Speaker 02:
I understand your point, Your Honor.

[00:16:51] Speaker 02:
First of all, though, I would like to highlight for the court that there is a provision under the law for a claim to be removed from the vaccine program after 240 days and for the petitioner to then seek

[00:17:03] Speaker 02:
remedy in civil court there too.

[00:17:06] Speaker 02:
So this, although that's not exactly what happened here procedurally, that's an example of what you would end up at the same conclusion that we have here.

[00:17:14] Speaker 04:
But that's not what happened here.

[00:17:16] Speaker 04:
No, but that was... I mean the petitioner, I don't know which of these paragraphs in your autism thing this falls under, but it falls under one of

[00:17:25] Speaker 02:
Yes, and to touch on that exact point, the Curry decision was cited and that was... Let me ask you this.

[00:17:31] Speaker 04:
Let's assume we find that your autism position makes it improper for the special master to have entered judgment here.

[00:17:43] Speaker 04:
What do we do?

[00:17:43] Speaker 02:
I think you can look to the decision where in the

[00:17:50] Speaker 02:
Dismissal of decision, the special master indicated that she was treating this as a stipulation under vaccine rule 21A1B.

[00:17:59] Speaker 02:
That under 21A1B, under 21A2, which also deals with the same provision, under 21A2, a stipulation for dismissal can be prejudicial.

[00:18:14] Speaker 02:
That's up to the petitioner.

[00:18:16] Speaker 02:
And here, petitioner, as petitioners are requesting,

[00:18:19] Speaker 02:
that a decision and judgment to pursue civil action, they're inherently arguing that they need a prejudicial decision.

[00:18:26] Speaker 03:
You're saying vaccine rule 21A2, a dismissal can be with prejudice?

[00:18:32] Speaker 02:
Yes.

[00:18:33] Speaker 03:
But not under circumstances that we have here?

[00:18:36] Speaker 04:
I mean, this is exactly the opposite of what you argued in this autism paper.

[00:18:41] Speaker 04:
You were arguing against allowing people to opt out of this process until they got a decision.

[00:18:46] Speaker 04:
I know you didn't get a chance to respond to this and that it was responded late.

[00:18:51] Speaker 04:
I think I may suggest that you're going to get a chance to respond to this in writing because I'm particularly troubled by the fact that it seems like you're making inconsistent positions.

[00:19:01] Speaker 02:
Thank you very much for potentially the opportunity to brief the issue.

[00:19:05] Speaker 02:
We would appreciate that.

[00:19:06] Speaker 02:
But additionally, regarding the Curry decision, and this was the point in the Curry decision from Special Master Hastings and in our briefing of that issue, is that there was a fear that the vaccine program would be given short shrift, that petitioners would enter the program, would seek to dismiss their case the next day, and would use that to launch into civil court.

[00:19:29] Speaker 02:
We don't have that here.

[00:19:31] Speaker 02:
The 240 days also serves as a threshold to show good faith.

[00:19:35] Speaker 02:
The petitioner here entered the program, gave it a chance to work, even obtained some settlement discussions, pursued their claim for more than 240 days.

[00:19:46] Speaker 02:
They're entitled to a judgment, to a decision within 240 days, but they didn't get that.

[00:19:50] Speaker 02:
Therefore, they're then able to remove and get out of the vaccine program.

[00:19:56] Speaker 02:
But that doesn't eliminate their right to do it.

[00:19:59] Speaker 00:
I don't understand how that has any bearing on what we're deciding.

[00:20:04] Speaker 00:
Well, one of the primary issues is... We're deciding whether 60B is appropriate under the facts of this case, which include a scenario in which, because the special master procedurally, inaccurately entered judgment in this case, procedurally... I think she may have thought she was helping them.

[00:20:26] Speaker 00:
because entering judgment would let them bounce over to a civil suit in California.

[00:20:32] Speaker 00:
I don't know why she did it, but it's clearly contrary to the rules in the statute.

[00:20:36] Speaker 00:
Judgment could not have been entered in this case.

[00:20:39] Speaker 00:
A voluntary dismissal does not amount to judgment.

[00:20:42] Speaker 00:
And your rule, by the way, vaccine rule 21A2, which I also have here, says unless the notice or stipulation states otherwise, dismissal is without prejudice.

[00:20:50] Speaker 00:
So that's the general rule.

[00:20:52] Speaker 00:
Except a notice of dismissal may, in the discretion of the special master,

[00:20:56] Speaker 00:
be deemed to operate as an adjudication on the merits if filed by a petitioner who previously dismissed the same claim.

[00:21:02] Speaker 00:
So if she came back a second time and tried to dismiss, then it could be.

[00:21:07] Speaker 00:
That's the only circumstance.

[00:21:08] Speaker 00:
The rule that you actually cited to Judge Chen claiming that allowed for this does not allow for it, clearly on its face.

[00:21:15] Speaker 00:
It only allows a dismissal with prejudice in one circumstance, which is absolutely not the facts of this case.

[00:21:21] Speaker 02:
But it says if, in the stipulation, it states otherwise.

[00:21:26] Speaker 02:
we would argue is, by implication, what happened here.

[00:21:30] Speaker 04:
You've referred to this 240-day.

[00:21:32] Speaker 04:
Maybe I should wait for the writing on this.

[00:21:34] Speaker 04:
But if a claimant goes 240 days in the program and doesn't get a decision, what happens if she wants to get out?

[00:21:45] Speaker 02:
Typically, a notification will issue alerting the petitioners of the fact that 240 days has now expired.

[00:21:52] Speaker 02:
And they are given the opportunity to simply opt out of the program.

[00:21:56] Speaker 04:
So was this all done before the 240 days?

[00:21:59] Speaker 02:
This was done after 240 days.

[00:22:01] Speaker 02:
So Petitioner had already... But there was no notification?

[00:22:05] Speaker 02:
There was a notification.

[00:22:07] Speaker 02:
At the 240 day mark, there was a notification and Petitioner opted to remain in the program at that time.

[00:22:14] Speaker 02:
But that doesn't eliminate the right forever for closing them from pursuing their client.

[00:22:21] Speaker 02:
So here, we understand that that didn't procedurally occur here.

[00:22:24] Speaker 02:
The 240 days wasn't actually referenced in the decision.

[00:22:28] Speaker 04:
But that just goes to the fact that- So if they had said, even after they'd remained in after the 240, if they'd come back and said, well, we're done now.

[00:22:37] Speaker 04:
We still haven't gotten a decision.

[00:22:38] Speaker 04:
It's more than 240 days.

[00:22:39] Speaker 04:
Give us a decision.

[00:22:42] Speaker 04:
But the special master can then issue a decision saying this case is resolved on the merits?

[00:22:48] Speaker 02:
The special master wouldn't issue

[00:22:50] Speaker 02:
any decision there.

[00:22:51] Speaker 02:
You wouldn't need a decision in judgment.

[00:22:53] Speaker 02:
It's a separate provision.

[00:22:55] Speaker 02:
Just opting out after 240 days is enough to opt into civil court.

[00:23:03] Speaker 04:
I understand what you're saying, but that's not useful at all, because that's not what happened here.

[00:23:09] Speaker 02:
It's not what happened here, but we would argue it's harmless error, because that was the right of petitioner to do.

[00:23:14] Speaker 02:
Here, we're trying to, in this vaccine program, protect the rights of petitioners.

[00:23:18] Speaker 02:
And that's one of the rights.

[00:23:19] Speaker 02:
And in fact, the amicus brief

[00:23:20] Speaker 02:
is submitted trying to protect the interest of the vaccine manufacturers.

[00:23:24] Speaker 02:
But we would highlight for this court, the program was also created for petitioners.

[00:23:28] Speaker 02:
And this is the right of petitioners to get out of the program.

[00:23:31] Speaker 02:
The special master may have procedurally not.

[00:23:33] Speaker 00:
Let me get this straight.

[00:23:35] Speaker 00:
You're standing in front of me arguing that your argument is in the best interest of vaccine acclaimants right now.

[00:23:42] Speaker 00:
That's what you're arguing?

[00:23:43] Speaker 00:
You have a two-year-old little girl that is paralyzed by virtue of receiving the flu vaccine.

[00:23:47] Speaker 00:
The government is not disputing

[00:23:50] Speaker 00:
this fact, this little girl is going to need a lot of medical care.

[00:23:53] Speaker 00:
And that's why we have the Vaccine Act set up.

[00:23:55] Speaker 00:
So you don't get to stand in front of me and take the high road and claim that my government is acting in the best interest of the Vaccine Act claimant.

[00:24:03] Speaker 00:
Because my government would not be standing here defending this case.

[00:24:06] Speaker 00:
My government would have not opposed the Rule 60B to begin with.

[00:24:09] Speaker 00:
You might be on totally solid foundation with this gross negligence nonsense, but you are on terrible footing on the Sanofi brief.

[00:24:16] Speaker 00:
And when you leave here, you're going to think about it.

[00:24:18] Speaker 00:
And I'm going to give you 60 days to brief why I shouldn't send it back under 60B and have the special master evaluate the failure of the special master to have followed proper procedure, which seems pretty damn clear to me in this case, that she should not have entered a judgment.

[00:24:35] Speaker 00:
And that is what is presented.

[00:24:37] Speaker 00:
I have all the dates in front of me.

[00:24:38] Speaker 00:
They could have refiled a new petition.

[00:24:40] Speaker 00:
And we wouldn't be here.

[00:24:41] Speaker 00:
The government all but admitted that everything

[00:24:45] Speaker 00:
factually wait in favor of giving this little girl's family money.

[00:24:49] Speaker 00:
So don't you dare come into this court and try to take the high road in a case like this.

[00:24:53] Speaker 00:
My government doesn't behave this way, and it sure as hell doesn't do it in a haughty fashion.

[00:24:57] Speaker 02:
I understand, and I apologize.

[00:25:01] Speaker 02:
The one potential, it's not even an argument, but just another consideration, is that there are also other petitioners coming before the program.

[00:25:12] Speaker 02:
Look, I get it.

[00:25:15] Speaker 04:
I used to argue before the secretary for VA, it's really hard defending the government against very sympathetic claimants.

[00:25:22] Speaker 04:
And I get what you're trying to argue is that the program overall, even though it may be unfair here, is intended to allow claimants who want to elect their choice to opt out.

[00:25:35] Speaker 04:
But if they do that,

[00:25:36] Speaker 04:
shouldn't it be incumbent upon the special master and the government to make sure that they're doing it under the right procedures, which would have here been, I take it, to file an election that they're no longer willing to proceed after 240 days, rather than to enter into some kind of stipulated dismissal that under your rules shouldn't have resulted in a judgment.

[00:25:59] Speaker 02:
Yes, I believe that's true.

[00:26:00] Speaker 02:
This was a unique set of circumstances where I think the issue was raised orally instead of in writing and the respondent didn't know that it was coming up and the special master didn't know that it was coming up.

[00:26:13] Speaker 02:
So yes, it should have been dealt with in a different procedural way.

[00:26:18] Speaker 02:
All of those boxes should have been checked.

[00:26:21] Speaker 02:
We're simply arguing it is the rights of the petitioner to get out and to pursue civil action, that is all.

[00:26:28] Speaker 00:
I apologize.

[00:26:29] Speaker 00:
I should not have gotten so angry at you.

[00:26:31] Speaker 00:
But when you made the comment about this is in the best interest of the vaccine acclaimants, in this case, this little girl is not getting what's in her best interest.

[00:26:42] Speaker 00:
But it's not you, and I know that.

[00:26:44] Speaker 00:
And the government has made legitimate arguments that are quite well-founded on the gross negligence points.

[00:26:51] Speaker 00:
And I understand why you'd want to take them to the natural conclusion on the legal points.

[00:26:56] Speaker 00:
I get all of it.

[00:26:57] Speaker 00:
I guess for me, I don't understand why he didn't settle this case, and I'm going to give you 60 days to do it, and I sure as heck hope you do.

[00:27:04] Speaker 00:
I do think there is a very legitimate argument in the green brief, but it wasn't made by him.

[00:27:10] Speaker 00:
And I get that.

[00:27:12] Speaker 00:
I get that.

[00:27:13] Speaker 00:
That doesn't mean it couldn't be.

[00:27:15] Speaker 00:
I mean, I've done all the research on 60B.

[00:27:16] Speaker 00:
You can make as many of them as you want.

[00:27:19] Speaker 00:
I mean, it's an equitable thing.

[00:27:20] Speaker 00:
The equities clearly all favor them.

[00:27:22] Speaker 00:
And if the special master was complicit in, even though they asked for it to be a judgment,

[00:27:27] Speaker 00:
The attorney beforehand was completely incompetent.

[00:27:30] Speaker 00:
And that ought to weigh in favor of this two-year-old paralyzed little girl in terms of the equities.

[00:27:35] Speaker 00:
So I think I really hope that I don't have to see you guys back here.

[00:27:40] Speaker 00:
But we're going to issue an order asking for briefing on some of the points raised in Sanofi.

[00:27:45] Speaker 00:
And we'll give you, will 60 days be an adequate amount of time?

[00:27:48] Speaker 02:
Yes, that's sufficient.

[00:27:49] Speaker 02:
And thank you very much for that opportunity.

[00:27:51] Speaker 03:
What's the latest on settlement negotiations contact?

[00:27:55] Speaker 03:
When was the last one made?

[00:27:58] Speaker 02:
Standing before you today, I couldn't tell you exactly when the last contact was made, but we will consider that certainly as we move forward.

[00:28:05] Speaker 02:
We're happy to.

[00:28:07] Speaker 04:
Anything further?

[00:28:09] Speaker 04:
No, I just hope that both sides understand that they need to be reasonable here.

[00:28:14] Speaker 04:
I mean, we've certainly been very difficult on the government, but there were serious mistakes made by the claimants council earlier in this process that deprived her of what she was due.

[00:28:23] Speaker 04:
And those should factor into whatever discussions you have.

[00:28:28] Speaker 00:
All right.

[00:28:29] Speaker 00:
Well.

[00:28:29] Speaker 00:
Thank you Mr.. Coleman.

[00:28:31] Speaker 00:
You've actually done I think a very good job with a really really difficult set of facts in a difficult case, but Mr. Dick sir I want to give you a couple of minutes of rebuttal time and You can use it however you see fit I think you ought to sit down, but you can use it however you see fit I will I do want to go ahead start his clock.

[00:28:52] Speaker 00:
I'm going to talk the part of it

[00:28:53] Speaker 00:
I do want to tell you that I agree tremendously with Judge Hughes.

[00:28:56] Speaker 00:
You don't have a strong case in the blue brief.

[00:28:59] Speaker 00:
You don't.

[00:29:00] Speaker 00:
There's a really good case in the green brief.

[00:29:02] Speaker 00:
But that, at best, most likely requires you to go back and file a new 60B motion with the same special master that denied you once before.

[00:29:10] Speaker 00:
This little girl deserves some sort of support for the rest of her life.

[00:29:15] Speaker 00:
And I hope that you all will find a collective way to reach clearly the right result here.

[00:29:21] Speaker 00:
But you don't have a super strong case.

[00:29:23] Speaker 00:
Um, so I don't want the fact that we came down so hard on the government.

[00:29:26] Speaker 00:
I don't want you to think, okay, there's a huge payday in the future.

[00:29:29] Speaker 00:
You know, you don't have a great case in the blue brief.

[00:29:31] Speaker 00:
The best you've got is maybe a vacate and remand for consideration of arguments raised in the green brief.

[00:29:36] Speaker 00:
And I guess I just want you to know that flat out so that you're not walking in to a settlement agreement thinking you've got a clear cut winner in this case.

[00:29:44] Speaker 00:
You know, do you understand?

[00:29:45] Speaker 00:
I mean, you heard all the questions.

[00:29:47] Speaker 01:
I understand your honor.

[00:29:48] Speaker 01:
Thanks.

[00:29:49] Speaker 00:
Yeah.

[00:29:49] Speaker 00:
And you can go ahead and use whatever time you want.

[00:29:51] Speaker 01:
I'm going to take your Honor's advice to sit down.

[00:29:54] Speaker 01:
Before I do, I just want to make clear that in addition to the gross negligence point, and this goes to points that the bench was making during the government's argument, is that there are other equitable considerations here apart from the gross negligence issue that warrant 60B relief in this case.

[00:30:12] Speaker 01:
And that's lack of prejudice to the government is conceded.

[00:30:14] Speaker 01:
The gross negligence of counsel, as I meant, is conceded.

[00:30:19] Speaker 01:
The finality of judgments has no bearing in the context of the Vaccine Act, which is a no-fault compensation scheme.

[00:30:25] Speaker 01:
So with those points, I'll submit.

[00:30:27] Speaker 01:
Thank you.

[00:30:28] Speaker 03:
So you're not disavowing the green brief, right?

[00:30:31] Speaker 01:
Oh, no.

[00:30:31] Speaker 01:
We're not disavowing the green brief.

[00:30:32] Speaker 03:
But you also understand it's unusual for courts to adopt arguments in a green brief that weren't in the blue brief.

[00:30:40] Speaker 03:
Yes, Your Honor.

[00:30:40] Speaker 03:
OK.

[00:30:45] Speaker 00:
Okay, I think.