BRIAN H. CORCORAN, Special Master.
Petitioners Robert and Erica Vernacchio, as the parents and natural guardians of L.V., a minor, seek to establish that the influenza ("flu") vaccine that L.V. received on December 8, 2006, exacerbated a regressive encephalopathy resulting in certain physiological symptoms and developmental regression. Since initiation of the case almost seven years ago, medical records, expert reports, and supporting literature have been filed in anticipation of an entitlement hearing to be held in April of 2015.
The Vernacchios recently filed a motion to estop Respondent from taking a factual position in defending against their claim that is contrary to the position Petitioners allege was adopted by Respondent in a different Vaccine Program
L.V. was born on March 15, 2005. Pet'rs' Ex. 1. Up until and through his eighteen-month check up on September 8, 2006, doctors found L.V. to be developmentally appropriate for his age. Pet'rs' Ex. 3 at 98. On December 8, 2006, L.V. received a trivalent flu vaccination. Id. at 128-31. By December 13, 2006, L.V. was observed to be experiencing speech delay. Id. at 134-37.
The Vernacchios originally filed this petition on July 11, 2008. At that time, the case was among the thousands of similar claims involving alleged autism or autism spectrum disorder injuries, and therefore fell within the Omnibus Autism Proceeding ("OAP").
The Petitioners filed an expert report on August 20, 2013 (ECF No. 64), and then Respondent filed her Rule 4(c) report along with a responsive expert report on February 19, 2014, arguing that the record failed to establish by preponderant evidence a causal connection between receipt of the flu vaccination and L.V.'s subsequent conditions, and disputing the reliability of Petitioners' medical theory. ECF No. 71. The Vernacchios then elected to file a supplemental expert report. ECF No. 95. With records gathering and the filing of other relevant evidence complete, a two-day entitlement hearing has been set for April of 2015.
The present Motion for Judicial Estoppel was filed on January 5, 2015. ECF No. 112. In it, the Vernacchios request that Respondent be estopped from litigating aspects of Petitioners' causation theory herein in light of the Poling case.
Respondent opposed the Vernacchios' Motion on January 15, 2015 (ECF No. 115), arguing that as a matter of law, the doctrine of collateral estoppel cannot be asserted against the Respondent (a United States governmental entity) in Vaccine Program claims, given the policy reasons for limiting application of the doctrine set forth in a different Supreme Court case, United States v. Mendoza, 464 U.S. 154 (1984). Respondent also asserts that she has never conceded (in Poling or otherwise) that any vaccine can cause significant aggravation of a pre-existing mitochondrial disorder, highlighting that vaccine cases are highly fact-specific and have no precedential bearing on subsequent cases. Resp't Resp. ECF No. 115 at 2-3. And Respondent points out factual and procedural differences between Poling and the present case, asserting that Respondent's recommendation to compensate in Poling as set forth in that case's Rule 4(c) report was unrelated to the validity of a particular causal theory. Id. at 2.
The Vernacchios filed a reply in support of their motion on January 28, 2015. ECF No. 117. Their reply asserts that Respondent has misconstrued Petitioners' motion as invoking collateral estoppel, when in fact the motion is based on the related but distinct concept of judicial estoppel — although they maintain that their motion could also be granted on the basis of collateral estoppel, since in their view Mendoza's policy reasons for prohibiting collateral estoppel to be asserted against the United States do not apply. Id. at 8. Petitioners also attempt to establish a close identity between Poling and the present case, based on the fact that both cases were once in the OAP and that Poling itself was originally going to be an OAP test case before it settled. Id. at 10. In so doing, Petitioners analogize the OAP to a class action suit, referring to Nevada v. United States, 463 U.S. 110 (1983) in support of this argument. Id. at 6.
Petitioners' Motion for Judicial Estoppel is now ready to be decided.
Petitioners stress that their motion is not primarily based upon the doctrine of non-mutual offensive collateral estoppel (although they do attempt to argue that the relief they seek could be justified on that basis). This version of the estoppel doctrine is the one most commonly asserted in the Vaccine Program — but it is universally rejected as inapplicable against Respondent.
The doctrine of collateral estoppel provides that "a judgment on the merits in the first suit precludes relitigation in a second suit of issues actually litigated and determined in the first suit." Innovad Inc. v. Microsoft Corp., 260 F.3d 1326, 1334 (Fed. Cir. 2001). "Offensive" and non-mutual use of collateral estoppel occurs when an entity or person who was not party to the prior judgment wants to invoke that judgment to prevent a defendant (in this case, Respondent) from relitigating the issues that were resolved against that defendant in the earlier proceeding. Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326 (1976). In Mendoza, however, the Supreme Court held that non-mutual offensive collateral estoppel cannot be applied against the federal government. Mendoza, 464 U.S. at 160. As the Supreme Court reasoned, the United States is inherently different from a private litigant due to the geographic scope and multiplicity of its litigation. Id. Furthermore, government litigation more frequently addresses legal questions of substantial importance, and therefore allowing the United States to be subject to estoppel would "thwart the development of important questions of law." Id.
The bar on application of collateral estoppel against the United States includes Vaccine Program cases. Under Section 12(b)(1) of the Act, the Secretary of the Department of Health and Human Services, a federal entity, is officially designated to defend against a petitioner's claim. 42 U.S.C. § 300aa-12(b)(1). Numerous vaccine cases have affirmed the inapplicability of the collateral estoppel doctrine in this context. See, e.g., Bast v. Sec'y of Health & Human Servs., 117 Fed. Cl. 104, 124 n. 18, appeal dismissed sub nom., M.S.B. ex rel. Bast v. Sec'y of Health & Human Servs., 579 F. App'x 1001 (Fed. Cir. 2014); Stewart v. Sec'y of Health & Human Servs., No. 06-777V, 2011 WL 2680580, at *2 (Fed. Cl. Spec. Mstr. June 15, 2011); Sharkey v. Sec'y of Health & Human Servs., No. 99-669V, 2010 WL 5507915, at *1 (Fed. Cl. Spec. Mstr. Dec. 10, 2010).
Petitioners correctly observe that the bar against collaterally estopping the United States is not absolute, but is instead subject to exceptions.
The Vernacchios' argument may accurately describe the contours of Vaccine Program litigation, but it does not invalidate the underlying policy concerns that have led other special masters to find that collateral estoppel is not appropriate in this forum. Stewart, 2011 WL 2680580, at *2 (discussing in detail the Supreme Court's reasoning in Mendoza). For even if all of the claims asserted under the Act are litigated in a single forum and by the same federal entity, Vaccine Program petitions feature a multitude of fact-specific claims. Even in cases involving the same vaccine or causation theory, the evidentiary circumstances vary widely, making an outcome favorable to a petitioner appropriate in some cases but not in others. Rickett v. Sec. of Health & Servs., 468 Fed. Appx. 952, 959 (Fed. Cir. 2011) ("[a] special master's acceptance of a theory in one case does not require him or her to accept the theory in subsequent cases involving similar facts or the same vaccine. Rather, a different evidentiary record can lead to different outcomes"). Given the varied nature of Vaccine Program claims, and the ever-evolving medical and scientific evidence that informs their resolution, to avoid "thwart[ing] the development of important questions of law by freezing the first final decision" (Mendoza, 464 U.S. at 160), the bar on invocation of collateral estoppel in Vaccine Program cases is appropriately observed, and therefore is not available to Petitioners herein.
Attempting to sidestep the above, the Vernacchios invoke the distinct concept of judicial estoppel as the true basis for their motion. This estoppel argument does not appear to have been advanced in any Vaccine Program cases before. But it is equally unavailing.
Under the doctrine of judicial estoppel, "where a party successfully urges a particular position in a legal proceeding, it is estopped from taking a contrary position in a subsequent proceeding where its interests have changed." Cuyahoga Metropolitan Housing Auth. v. United States, 65 Fed. Cl. 534, 554 (2005), (quoting Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1565 (Fed. Cir. 1996)); see also Davis v. Wakelee, 156 U.S. 680, 689 (1895); New Hampshire v. Maine, 532 U.S. at 751; Pegram, 530 U.S. at 211. The Court of Federal Claims has identified three "necessary elements" to be considered when determining whether application of judicial estoppel is appropriate: (1) whether a party's later position is inconsistent with its earlier position; (2) whether a party had successfully persuaded a court to accept the earlier position, such that judicial acceptance of the inconsistent position would suggest that one of the courts had been misled; and (3) whether the party asserting the inconsistent position would be unfairly advantaged (or the other party unfairly prejudiced) unless estopped. Moreland Corp. v. United States, 76 Fed. Cl. 268, 294 (2007) (citing Cuyahoga Metropolitan Housing Auth., 65 Fed. Cl. at 554). Ultimately, the doctrine is intended to protect the integrity of the judicial system rather than the individual parties to a case, and its application is left to a court's discretion. Data Gen. Corp., 78 F.3d at 1565; Cuyahoga Metropolitan Housing Auth., 65 Fed. Cl. at 554.
Petitioners wish to treat the statements contained in Respondent's Rule 4(c) report
The inapplicability of judicial estoppel when based upon a settled case flows from the second Moreland Corporation factor, which considers if there has been "judicial acceptance" of the purportedly inconsistent position. Where a party resolves his claim prior to its adjudication, there is no actual judicial determination on the merits.
In addition to the above, there are other equally-compelling grounds for denying the Vernacchios' Motion. In particular, the Vernacchios erroneously assume an identity of interest with the Poling petitioners and their claim, based upon their common participation in the OAP and the related causation theories advanced in both actions. As noted above, however, the Poling petitioners asserted a Table Injury claim rather than the non-Table Injury claim at issue herein.
The third Moreland Corporation factor is also unsatisfied herein. Because the Poling Petitioners never actually litigated their Althen prong one theory, it works no prejudice on the Vernacchios (or advantage to Respondent) to require Petitioners to prove it herein. In attempting to do so, the Petitioners are free to adopt arguments or borrow reasoning from litigated cases they believe are instructive (such as Paluck).
At bottom, in exercising the discretion recognized by both the Federal Circuit and the Supreme Court (and keeping in mind that judicial estoppel exists to serve the interests of the tribunal rather than the litigants), I do not find that estopping Respondent in the manner requested by the Petitioners is warranted. The fact that Respondent settled a case analogous in certain ways (but not others) to the present claim, and in so doing made pre-settlement statements about the proof offered in that case, is not grounds for preventing Respondent from actually litigating the relevant causation theories. Those theories remain hotly disputed, and it would ultimately prejudice the judicial process by which Vaccine Act claims are resolved to find under these circumstances that they were already fully determined.
Based upon my review of the Parties' briefs and their legal arguments, I
