Kimberly Warfle v. HHS - other (2010)

On December 30, 2005, Melissa Guffey filed a petition for vaccine injury compensation on behalf of her minor daughter, Kimberly Warfle. An evidentiary hearing on entitlement was held on December 18, 2008, but no decision on compensation had been issued.

On February 12, 2009, petitioner's counsel moved for an award of interim attorney fees and costs totaling $86,089. However, counsel was unable to obtain his client's signature on a required statement delineating costs borne by each party, as mandated by General Order #9, due to being unable to contact his client.

On March 24, 2009, counsel filed a motion seeking relief from this requirement, attaching an affidavit detailing his unsuccessful attempts to contact the petitioner and stating that she had paid only $50 toward litigation costs. Special Master Abell denied this motion on April 22, 2009, finding the fee application incomplete and that the time for the respondent, the Secretary of Health and Human Services, to respond had not yet commenced.

The interim fee request remained unresolved. Petitioner then filed a motion for review of the Special Master's order on May 21, 2009.

The parties submitted legal memoranda on the issue of the court's jurisdiction to review the Special Master's order. On October 5, 2009, petitioner's counsel moved to withdraw, which was granted by the court on November 10, 2009.

The Court of Federal Claims, in an order issued March 9, 2010, concluded that it lacked jurisdiction to review the Special Master's procedural order. The court reasoned that the order did not constitute a "decision" as contemplated by the Vaccine Act and its rules, as it neither granted nor denied the fee request but merely addressed a procedural requirement.

The court found that allowing review of such interim orders would lead to piecemeal appeals and disrupt the Special Masters' caseload management. The court also considered whether the collateral order doctrine, established in Cohen v.

Beneficial Indus. Loan Corp., could apply, but determined that the Special Master's order was not conclusive, was effectively reviewable on later appeal, and did not present a situation where delaying review would imperil a substantial public interest.

The court noted that while the petitioner's counsel had withdrawn, the underlying litigation was expected to be resolved, at which point the fee issue could be addressed. The court also denied a request for a writ of mandamus.

The public decision does not specify the vaccine(s) administered or the alleged injury, as the case was decided solely on jurisdictional and procedural grounds related to attorney fees. The motion for review was dismissed.