[00:00:00] Speaker 02:
Our next case for argument is 23-1659 Falzon versus HHS.

[00:00:07] Speaker 02:
Mr. Rogers, please proceed.

[00:00:09] Speaker 01:
Thank you, Your Honor.

[00:00:11] Speaker 01:
Your Honors, my name is Greg Rogers.

[00:00:13] Speaker 01:
May it please the court, I'm here on behalf of the appellate, Miss Adrienne Falzon.

[00:00:18] Speaker 01:
And she is the legal representative of Paul Giaccio as for his estate.

[00:00:25] Speaker 01:
The central issue in this case, Your Honors,

[00:00:28] Speaker 01:
is whether or not the court might apply equitable tolling of the petition that was filed by the petitioner on March the 18th of 2021 in a vaccine case.

[00:00:40] Speaker 01:
Particularly, Your Honor, we are looking at the extraordinary circumstances that were caused by the COVID-19 pandemic during that period of time.

[00:00:53] Speaker 02:
Let's just focus for a sec.

[00:00:55] Speaker 02:
The petition is 119 days late.

[00:00:57] Speaker 02:
Is that correct?

[00:00:58] Speaker 02:
Yes.

[00:00:58] Speaker 02:
Yes, your honor.

[00:00:59] Speaker 02:
Okay.

[00:00:59] Speaker 02:
And so you created a chart and that chart sort of detailed what reasons existed for various time periods for the delay.

[00:01:09] Speaker 04:
Yes, your honor.

[00:01:09] Speaker 02:
Is that fair?

[00:01:10] Speaker 04:
Yes, your honor.

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

[00:01:11] Speaker 02:
And the board said, look, we're not going to decide whether

[00:01:16] Speaker 02:
You know, the attorney's COVID or the attorney's father's illness and subsequent death satisfy it.

[00:01:24] Speaker 02:
I think they do.

[00:01:25] Speaker 02:
But the lawyer didn't apply on that because he said, regardless, you don't meet 119 days.

[00:01:30] Speaker 02:
So I felt like it's a lot like when my kid misses curfew at night, right?

[00:01:35] Speaker 02:
And then they try to give me the excuse about how it took 15 minutes to get the Uber.

[00:01:39] Speaker 02:
That doesn't explain why you're an hour late.

[00:01:41] Speaker 02:
So how do you explain why you're 119 days late?

[00:01:45] Speaker 01:
Yes, Your Honor, on the subject of the second prong of the test, which is actually the extraordinary circumstances.

[00:01:52] Speaker 01:
We do believe that there were a few days that were missed by the court of federal claims.

[00:01:57] Speaker 01:
The one in particular, Your Honor, was on November the 14th.

[00:02:01] Speaker 01:
We are a small office.

[00:02:02] Speaker 01:
We have five office members and three attorneys.

[00:02:06] Speaker 01:
We had a paralegal in our office that unwittingly came to the office with COVID.

[00:02:11] Speaker 01:
She'd been told that she didn't have COVID.

[00:02:13] Speaker 01:
Turns out she did have COVID, and she basically exposed our entire office on November the 14th of 2020 to the COVID virus.

[00:02:23] Speaker 01:
As a result of that, we shut down our complete operation for 10 days, up until Thanksgiving, just simply to make sure that we weren't spreading – all of our employees are older, and we wanted to make sure that we weren't spreading the virus around the office.

[00:02:37] Speaker 00:
But you could have – you could have engaged another player.

[00:02:42] Speaker 01:
Yes, Your Honor, that's a good point.

[00:02:45] Speaker 01:
And we didn't do that.

[00:02:48] Speaker 01:
We really thought that, to be honest with you, that we were going to be able to get the petition filed under the circumstances, but we didn't.

[00:02:58] Speaker 01:
We think that those 10 days also would constitute extraordinary circumstances, which added to the 113 that was found.

[00:03:07] Speaker 02:
I mean, I'm not going to second guess the trial court

[00:03:11] Speaker 02:
on that.

[00:03:12] Speaker 02:
I mean, among other things, lots of people have risk of exposure.

[00:03:18] Speaker 02:
If you weren't actually sick, you went home and you worked from home.

[00:03:22] Speaker 02:
What you're asking for would be such a sweeping ruling.

[00:03:25] Speaker 02:
And so many circuit courts have already looked at this issue of, what do we do when people miss deadlines because of COVID-related quarantine?

[00:03:33] Speaker 02:
Not COVID, illness.

[00:03:34] Speaker 02:
I think actual illness of the person involved who needs to do the filing is one thing.

[00:03:41] Speaker 02:
It's another thing to say, okay, well, we all quarantined because somebody else was ill.

[00:03:46] Speaker 02:
Because, you know, I don't know about you, but while I was quarantined, I was still working at home.

[00:03:50] Speaker 01:
Yes, Your Honor.

[00:03:51] Speaker 01:
Unfortunately, at that time, we were not as well equipped to work remotely as we are now.

[00:03:56] Speaker 01:
The world has changed considerably in the last four years in terms of our ability to do that.

[00:04:01] Speaker 01:
And we were adapting in the process of adapting to working remotely at that time.

[00:04:06] Speaker 01:
The paralegal that got sick was the only paralegal in our office that had any experience at all dealing with the vaccine court.

[00:04:17] Speaker 01:
We have other practice areas that

[00:04:19] Speaker 01:
our people are involved in.

[00:04:22] Speaker 01:
In terms of the diligence, the court also – we appreciate the court actually addressing the second prong of the test.

[00:04:32] Speaker 01:
The court didn't have to do that because the court found that we didn't meet the first prong of the test, which was diligence.

[00:04:38] Speaker 01:
The area of time that the court focused in on was really from October the 4th through November the 1st, during that period of time when I returned from my father's funeral.

[00:04:51] Speaker 01:
And the court mentioned that we were working during that time because we had social security disability hearings that we were doing in that period of time.

[00:04:59] Speaker 00:
In other words, other places were given higher priority.

[00:05:02] Speaker 01:
They were in that moment, Your Honor.

[00:05:05] Speaker 01:
Yes, sir, they were.

[00:05:06] Speaker 01:
And they were because so many of those hearings had been reset from the previous two months that I had been out of the office in August and September with my father's illness.

[00:05:17] Speaker 01:
But, having said that, we were working on the case.

[00:05:20] Speaker 01:
We had an expert that we were working with, Dr. Stern.

[00:05:24] Speaker 01:
We were trying to find some support and a callization from a medical expert.

[00:05:28] Speaker 01:
Dr. Stern was an expert in sepsis.

[00:05:31] Speaker 01:
That is, in fact, what Mr. Giaccio died from, was sepsis.

[00:05:36] Speaker 01:
And we were pressing her to get a letter to file the case in early November, and then the circumstances of early November took place.

[00:05:45] Speaker 01:
that were unforeseen, and that's what caused the problem, Your Honor.

[00:05:49] Speaker 00:
We're not sitting there in judgment of the decisions you made in difficult circumstances, but have to decide whether the Claims Court has substantial evidence to determine that there were extraordinary circumstances.

[00:06:07] Speaker 04:
Yes, Your Honor.

[00:06:08] Speaker 00:
So whether you and them in a deferential manner

[00:06:12] Speaker 01:
Sure, I understand.

[00:06:13] Speaker 01:
The courts have determined that this issue of equitable tolling is something that is to be applied sparingly, certainly.

[00:06:22] Speaker 01:
and we recognize that.

[00:06:24] Speaker 01:
It's also determined that it is to be applied on a case-by-case basis.

[00:06:28] Speaker 01:
And so even though it's a question of law, there still is some level of factual analysis that has to be determined on a case-by-case basis to make that decision.

[00:06:40] Speaker 01:
We respect the Federal Court of

[00:06:44] Speaker 01:
claims their opinion on the decision.

[00:06:46] Speaker 01:
We feel like their analysis was fair, but it was an error simply because there were circumstances that were going on on the issue of diligence during that period of October to November where we were trying to get the expert report that we felt like needed to be in place to file the claim.

[00:07:06] Speaker 01:
Certainly, the respondent has taken the position that an expert report was not required.

[00:07:11] Speaker 01:
But in good conscience, we didn't feel like we should file a petition without any plausible theory under the Althea standard.

[00:07:17] Speaker 02:
Well, in the end, did you file it with the expert report?

[00:07:21] Speaker 01:
No, Your Honor, we didn't.

[00:07:23] Speaker 01:
And so, reluctantly.

[00:07:28] Speaker 01:
So with regards to diligence, the court has determined that reasonable diligence is required, not maximum feasible diligence.

[00:07:36] Speaker 01:
And we respectfully contend that we were being reasonably diligent during that period of time.

[00:07:40] Speaker 01:
Had we known what was coming in November with my illness in the first part of November and then the COVID illness of our paralegal on November the 14th, we would have filed a petition during the October period.

[00:07:55] Speaker 01:
Unfortunately, intervening circumstances took place that we just simply had no way of predicting that was going to take place.

[00:08:05] Speaker 01:
And then finally, with regards to the 113 days, and Judge Moore, you accurately indicated that Judge Ramel found that there was 113 days of extraordinary circumstances.

[00:08:18] Speaker 01:
We believe that the period of time both in the illness of my paralegal on November the 14th through Thanksgiving would have been an additional 10 days.

[00:08:27] Speaker 01:
That would have made the petition timely.

[00:08:29] Speaker 01:
We also ask for consideration of the fact that Georgia was in a state of emergency shutdown from

[00:08:34] Speaker 01:
March the 14th, Your Honor, through essentially July the 12th of 2020.

[00:08:41] Speaker 01:
That's not maybe below that, is it?

[00:08:44] Speaker 01:
That's correct, Your Honor.

[00:08:45] Speaker 01:
That is an incantation that we made just from the period of the COVID.

[00:08:51] Speaker 01:
I think quite honestly, Your Honor, the problem with my paralegal getting COVID was a bigger issue.

[00:08:59] Speaker 01:
That sent our office into a complete tailspin.

[00:09:02] Speaker 01:
And not just because we had to quarantine, but also because just about all of our staff are elderly and we wanted to make sure that everybody was safe.

[00:09:15] Speaker 01:
Surely, I now wonder if that was the appropriate decision, but it felt like the right decision at the time.

[00:09:23] Speaker 02:
Sometimes some people miss deadlines, file malpractice claims.

[00:09:26] Speaker 02:
Did that happen here?

[00:09:28] Speaker 01:
It is not, although when this happened, Judge, we alerted the petitioner to the situation.

[00:09:34] Speaker 01:
We advised them to get independent counsel.

[00:09:37] Speaker 01:
We spoke with the Georgia Bar Association on how to handle that appropriately.

[00:09:41] Speaker 01:
Certainly, it's the first time in my career I've ever been in this situation.

[00:09:45] Speaker 01:
We sent her a letter advising her that she could get legal representation and pursue that.

[00:09:52] Speaker 01:
The petitioner decided, she asked if there was any possible remedy.

[00:09:57] Speaker 01:
I said, well,

[00:09:57] Speaker 01:
The one possibility is that we file it late and petition the court for an equitable tolling of the statute of limitations.

[00:10:04] Speaker 01:
And that's what she opted to do.

[00:10:07] Speaker 01:
So here we are.

[00:10:08] Speaker 02:
I mean, in order to prevent all malpractice, they'd have to almost prove it, but for causation, but for the mis-examination, they would have to prove it.

[00:10:18] Speaker 02:
I mean, what's the deal with the left arm, right arm thing?

[00:10:20] Speaker 02:
Like, I'm just going to jump to the merits of something for a second.

[00:10:22] Speaker 02:
I mean, the blood work was one arm, the flu shot was the other arm.

[00:10:27] Speaker 01:
Notably, it's a big deal.

[00:10:29] Speaker 01:
And that was probably, in all honesty, Your Honor, while I was so intent on trying to get an expert report before we... Because it was going to be a hard case to put on the merits.

[00:10:39] Speaker 01:
This case arose from the petitioner had a family friend that was a world-renowned expert on sepsis.

[00:10:45] Speaker 01:
And that expert had privately told

[00:10:49] Speaker 01:
the petitioner and the family that they felt like there could be some connection between the vaccine and the very rare condition the bacterial infection that he got in the right one.

[00:11:00] Speaker 01:
So as the case materialized, we were not confident because the expert was not able to really produce a lot of evidence to support that.

[00:11:11] Speaker 01:
She still nonetheless felt like there could be an aggravation

[00:11:14] Speaker 01:
of the bacterial infection in the right arm because of the flu shot that was given a couple of days prior to his death.

[00:11:22] Speaker 01:
But having said that, we recognized that that was a stretch.

[00:11:26] Speaker 01:
And we really wanted to be on solid footing before we filed the petition, and that's why we were working so hard to get the expert report.

[00:11:37] Speaker 02:
All right.

[00:11:37] Speaker 02:
Should we hear from the closing counsel?

[00:11:40] Speaker 01:
Yes, Your Honor.

[00:11:41] Speaker 01:
I'll do the rest of my time for a moment.

[00:11:42] Speaker 01:
Thank you.

[00:11:48] Speaker 03:
Good morning, Honors.

[00:11:49] Speaker 03:
May it please the Court?

[00:11:51] Speaker 03:
As Judge Romero noted in her opinion, this case involves sad circumstances with which we can all sympathize.

[00:11:58] Speaker 03:
The loss of a child or a parent is understandably difficult, and the pandemic presented undeniable challenges for all of us.

[00:12:06] Speaker 03:
However, it's the commonality of these experiences that make them un-extraordinary for purposes of equitable tolling.

[00:12:14] Speaker 03:
The Supreme Court has made clear that equitable tolling should be applied sparingly.

[00:12:18] Speaker 02:
The commonality of these experiences, because everybody has somebody that dies, you think that can't amount to extraordinary circumstances that justify equitable tolling?

[00:12:28] Speaker 02:
If you have a close family member that died, you think because everybody has people that die, it's not an extraordinary circumstance that warrants tolling?

[00:12:35] Speaker 03:
I think it can.

[00:12:36] Speaker 03:
I don't think it necessarily does in every case.

[00:12:40] Speaker 03:
And as Mr. Rogers acknowledged, this is an issue that needs to be turned on a case by case basis.

[00:12:45] Speaker 03:
However, that will then have a bearing on what other people think.

[00:12:50] Speaker 02:
Well, then you need to think, because you didn't start this with a case by case basis.

[00:12:52] Speaker 02:
You started by saying these are all common circumstances, and that's why they can't be extraordinary.

[00:12:56] Speaker 02:
You made a blanket statement of objective scope that would cover all circumstances like this.

[00:13:02] Speaker 03:
I believe that the circumstances that are presented by this case, that many, many people did have issues during the pandemic in terms of being able to do their jobs.

[00:13:14] Speaker 03:
If the court were to find that that was sufficient by itself to justify equitable tolling, it could open the floodgates to any number of potentially time barred claims.

[00:13:26] Speaker 03:
that people would then be able to claim equitable tolling justifies being able to file the claim late.

[00:13:32] Speaker 03:
So I think that's where, in this case, you have to look at the specific facts.

[00:13:36] Speaker 03:
And I think the problem that both the special master and Judge Rumel had is that Mr. Rogers didn't establish the specificity how those circumstances stood in the way of him timely filing the claim.

[00:13:46] Speaker 03:
As you indicated, if he himself were not able to file the claim in a timely fashion due to his own illness or due to issues that were going on in his office, he could have enlisted another attorney to take the case for him.

[00:14:03] Speaker 03:
That would have, I think, indicated the kind of diligence that the standard for equitable tolling

[00:14:10] Speaker 03:
anticipates is that lawyers have a duty to be diligent in the way that they are handling their claim.

[00:14:19] Speaker 03:
As Judge Rumel noted, when faced with the choice between filing a timely petition without an unnecessary expert report or filing an untimely petition accompanied by an unnecessary expert report, a diligent pursuit to preserve petitioners' rights require counsel to choose the former.

[00:14:35] Speaker 03:
And so that was, you know, I appreciate that Mr. Rogers wanted to find an expert that would be able to support his case.

[00:14:42] Speaker 03:
We certainly see numerous cases filed in our program that don't have an expert report accompanying the petition.

[00:14:50] Speaker 03:
That's later, the petitioners later supplement the record with expert reports, or if they aren't, the cases get dismissed.

[00:14:57] Speaker 03:
But at least you've preserved the timely filing of the petition.

[00:15:02] Speaker 03:
And that was, I think, the choice that was incumbent upon Mr. Rogers in this case was to file the petition before the statute ran.

[00:15:09] Speaker 03:
and then he could continue to try to pursue this expert report.

[00:15:14] Speaker 03:
As you noted, Judge Moore, he actually ended up filing the petition untimely without an expert report.

[00:15:21] Speaker 03:
I think that kind of proves the point that the expert report wasn't necessary in the first instance.

[00:15:31] Speaker 03:
We think that Judge Rumel, in particular, did a thorough analysis of the facts and applying them to the legal standard that's applicable to equitable tolling.

[00:15:42] Speaker 03:
We would encourage the court to adopt her reasoning.

[00:15:46] Speaker 03:
We think it's sound.

[00:15:47] Speaker 03:
We think it's thorough on both the diligence prong and on the extraordinary circumstances prong.

[00:15:53] Speaker 02:
Did Judge Rumel find that the 66 days attributed to the father's illness and death and funeral

[00:15:59] Speaker 02:
were not an extraordinary circumstance?

[00:16:03] Speaker 03:
I don't believe that either the Special Master or Judge Romel actually reached that issue, because I think they both determined that even if they were to generously interpret the equitable tolling standard for extraordinary circumstances to include the father's illness and counsel's illness, that that still wouldn't amount to a sufficient number of days

[00:16:29] Speaker 03:
to make the physician timely.

[00:16:31] Speaker 03:
So, I think they left open the possibility that those issues could justify equitable tolling, that they could constitute extraordinary circumstances for purposes of equitable tolling, but I don't believe either the Special Investor or Judge Rimmel actually made

[00:16:46] Speaker 03:
that finding.

[00:16:47] Speaker 02:
Are there cases on that point?

[00:16:49] Speaker 02:
Are there cases on the point about when an attorney gets ill, whether that can or cannot qualify as satisfying and extraordinary circumstances?

[00:16:59] Speaker 03:
I'm not aware of any cases.

[00:17:02] Speaker 03:
I know there aren't in the context of the Vaccine Act.

[00:17:07] Speaker 03:
I have not done an exhaustive search for cases on that issue outside of

[00:17:12] Speaker 03:
the circuit or outside of our program.

[00:17:15] Speaker 03:
I know that in KG, which is an opinion of this court, the court noted that the mental incapacity of the petitioner, in that case herself, could constitute an extraordinary circumstance for purposes of equitable tolling.

[00:17:31] Speaker 03:
But as Judge Ramel noted,

[00:17:32] Speaker 03:
that is distinguishable from this case in which we're looking at counsel's incapacity.

[00:17:38] Speaker 03:
And it's not so much the counsel's mental incapacity, it's just his incapacity due to his illness or these other cases that he was working on, his father's illness and things of that nature.

[00:17:53] Speaker 03:
So I think that is an issue that has not been addressed by this court.

[00:17:57] Speaker 00:
reviewing Judge Rumel's decision or the special master's?

[00:18:04] Speaker 03:
So actually, W.R.

[00:18:05] Speaker 03:
that's an interesting question.

[00:18:06] Speaker 03:
I believe that the standard of review here is probably de novo because we are not contesting the facts below.

[00:18:13] Speaker 03:
So there wasn't really fact finding that was required by the special master or Judge Rumel.

[00:18:19] Speaker 03:
They were accepting, we accepted the facts the petitioner was alleging as true.

[00:18:25] Speaker 03:
and so the court ruled it as well.

[00:18:28] Speaker 03:
The case law does suggest that the determination of whether equitable tolling applies when the facts are undisputed is a question of law that the court would review de novo.

[00:18:40] Speaker 04:
And in your view on 113 days then, I just want to make sure that's right, you think the Special Master and Judge Ramell just assumed without making a finding that there were up to 113 days of extraordinary service?

[00:18:53] Speaker 03:
That is my reading of both of them.

[00:18:54] Speaker 03:
And that's what you would have us do.

[00:18:57] Speaker 03:
I think that it's unnecessary.

[00:18:58] Speaker 03:
I think as the Special Master and Judge Rimmel concluded, it's unnecessary to make a finding on that issue because even if you were to determine that counsel's illness and the illness and death of his father constituted extraordinary circumstances, it still would not render the petition timely filed.

[00:19:15] Speaker 04:
unless we think we've found another six plus days in the record, right?

[00:19:22] Speaker 03:
You could.

[00:19:22] Speaker 03:
I mean, certainly that would be within the court's authority to do that, I think, under de novo review.

[00:19:28] Speaker 03:
But I think that you would then be having to make fact-finding that is not really the role of this court to do in the first instance.

[00:19:37] Speaker 03:
I think if that

[00:19:39] Speaker 03:
If the court thinks that there's still an issue that needs to be determined on whether additional days could be considered extraordinary circumstances, for instance, the state of emergency in Georgia that petitioner just raised in this appeal,

[00:19:57] Speaker 03:
I think, again, there would need to be some showing that the state of emergency and the shutdown during that period of time, which at this point is outside of the requested tolling period that Petitioner has argued for, how that extraordinary circumstance would then have prevented a timely filing and also that there would need to be some showing of counsel's diligence during those periods to show that despite the shutdown, he was still trying to advance the claim.

[00:20:29] Speaker 02:
Thank you.

[00:20:31] Speaker 02:
Mr. Rogers, you have some rebuttal time?

[00:20:32] Speaker 01:
Thank you, Your Honor.

[00:20:35] Speaker 01:
Just briefly.

[00:20:37] Speaker 01:
May it please the Court?

[00:20:38] Speaker 01:
Just a couple of points, Your Honor.

[00:20:42] Speaker 01:
Number one, we agree that the standard here is de novo and certainly we believe that the court has an opportunity to review Judge Romel's findings in its entirety.

[00:20:53] Speaker 01:
We recognize that this court typically is not in the business of looking at factual issues.

[00:21:00] Speaker 01:
We feel that the equitable tolling statute or equitable tolling issue, however, is one which is unusual in that it does require a certain level of consideration of the facts under de novo.

[00:21:11] Speaker 01:
Um, the other thing, uh, I wanted to mention, your honor was in, um, 2020, the COVID vaccine or the COVID, um, conditioned by us looked a whole lot different in 2020 than it does now.

[00:21:27] Speaker 01:
And, um, at that time, uh,

[00:21:30] Speaker 01:
We felt like we had to lock down our office because of the exposure that we have from one of our paralegals.

[00:21:39] Speaker 01:
With regards to referring it out to another attorney, Judge Lowry, the vaccine bar is quite small.

[00:21:48] Speaker 01:
It's so much different, particularly in

[00:21:51] Speaker 01:
rural Georgia, where we don't have a lot of other vaccine attorneys in the state of Georgia, much less certainly my area.

[00:22:01] Speaker 01:
So perhaps I should have done that, but to be perfectly honest with you, I wouldn't have really known who to call, so to speak.

[00:22:10] Speaker 01:
I appreciate the court considering all of these arguments.

[00:22:14] Speaker 01:
We realize

[00:22:16] Speaker 01:
the gravity of the situation here.

[00:22:17] Speaker 01:
I also want to say one thing in closing on behalf of Ms.

[00:22:21] Speaker 01:
Falzon.

[00:22:22] Speaker 01:
I operated as her attorney.

[00:22:25] Speaker 01:
I was her agent.

[00:22:27] Speaker 01:
I take full responsibility for all the issues that bring us here today.

[00:22:31] Speaker 01:
And I appreciate you that we have this opportunity.

[00:22:35] Speaker 02:
Thank you.

[00:22:35] Speaker 02:
Thanks for your counsel.

[00:22:36] Speaker 02:
This case is taken under submission.

[00:22:38] Speaker 01:
Thank you.