Ina Scanlon v. HHS - Varicella, immune thrombocytopenia (2014)

Ina Scanlon filed a petition on March 28, 2013, alleging that a varicella zoster (shingles) vaccination she received on April 1, 2010 caused her to develop immune thrombocytopenia (ITP). Within two months of vaccination, she developed a viral infection that caused her platelet count to drop from approximately 209,000 to 6,000; her physician concluded the infection was caused by the vaccine.

She continues to suffer from inconsistent platelet counts and ITP, characterized by excessive bleeding and dangerous bruising. The special master denied compensation on the ground that the shingles vaccine (Zostavax), unlike the chicken pox vaccine (Varivax), is not a "covered vaccine" under the National Childhood Vaccine Injury Act — the Vaccine Injury Table listing for "varicella vaccine" was held to encompass only the chicken pox vaccine.

The Court of Federal Claims upheld this determination. The special master subsequently denied attorneys' fees, finding the petition lacked a reasonable basis because three prior decisions by the same special master had denied compensation for Zostavax-related claims.

Ms. Scanlon moved for review of the fee denial.

On June 3, 2014, Judge Lettow of the Court of Federal Claims vacated the special master's fee denial and remanded for an award of attorneys' fees and costs. The court held that a petition can have a reasonable basis even if the vaccine is later found not to be covered, and that it was not unreasonable for petitioner and her counsel to believe that the Vaccine Table listing "varicella vaccine" included both types of varicella zoster vaccines, given that the plain text of the Table supported that reading and neither the special master nor the government initially recognized the coverage question.

The court also noted that counsel filed the petition four days before the arguable expiration of the statute of limitations.