Sherry Bailiss v. HHS - other (1996)

On September 28, 1990, Elton and Sally Bailiss filed a petition on behalf of their daughter Sherry, alleging a vaccine injury. The case was heard by Special Master E.

LaVon French, who entered a judgment for the Secretary of Health and Human Services on October 30, 1995. Petitioners' counsel, Christopher P.

Leyel, intended to file an election to reject the judgment and pursue a civil action, as permitted by the National Childhood Vaccine Injury Act of 1986. However, this election was not filed within the statutory 90-day period, which expired on January 30, 1996.

The public decision does not describe the specific vaccine(s) or the alleged condition. The untimeliness was attributed to administrative errors within the petitioners' counsel's office.

Specifically, counsel's secretary, Alexandra Freire, went on maternity leave four days before the judgment was entered. Prior to her leave, she allegedly instructed a temporary secretary to prepare and file the election.

The petitioners' motion states that for an unspecified reason, the temporary secretary never prepared the document. Counsel for the petitioners ceased working for his firm on June 6, 1996.

The petitioners inquired about the status of the election on July 7, 1996, and learned it had not been filed. On August 6, 1996, over 180 days after the Special Master's judgment, an untimely election and a motion for relief were filed.

The petitioners sought relief under Rule 60(b) of the Rules of the Court of Federal Claims, arguing excusable neglect, and also argued for equitable tolling. The court, presided over by Judge Moody R.

Tidwell, III, denied the motion for relief. The court found that the National Childhood Vaccine Injury Act clearly mandates that an election to reject a judgment must be filed within 90 days, and failure to do so results in the petitioner being deemed to have accepted the judgment.

The court cited Gilbert v. Secretary of Health & Human Servs. for the principle that the statute's clear language and design prevent extensions of this deadline.

The court also determined that Rule 60(b) cannot be used to extend the statutory 90-day election period, as it does not apply to the operation of a statute but rather to relief from a court's judgment, order, or proceeding. Furthermore, the court found that the circumstances did not warrant equitable tolling.

The court noted that equitable tolling is applied sparingly and typically requires active pursuit of remedies or misconduct by the adversary, neither of which was present. The court concluded that the petitioners' claim of excusable neglect due to the secretary's maternity leave and miscommunication with a temporary replacement did not meet the criteria for equitable tolling.

The court emphasized that the attorney's negligence, which included a lack of due diligence in confirming the filing, did not justify equitable tolling. Consequently, the motion for relief was denied, and the case was dismissed as the petitioners were deemed to have accepted the Special Master's judgment.