SIGNIFICANT CASES HANDLED
VACCINE PROGRAM CASES
SHALALA V. WHITECOTTON (1996). Mr. Moxley argued the first Vaccine Program case to go before the United States Supreme Court. Previously, Mr. Moxley had obtained reversal in the Federal Circuit Court of Appeals of a special master’s Decision denying “table injury” treatment to the significant aggravation of a childhood encephalopathy. On remand from the Supreme Court, the Federal Circuit again clarified a proper standard for significant aggravation cases.
AVERA V. SECRETARY OF DHHS (2008). Mr. Moxley took on the task of seeking to reform Vaccine Program attorneys fees doctrine, and achieved the repeal of the “local rates” doctrine which prevailed over the first twenty years of the Vaccine Program. This victory proved to be pyrrhic, as the Vaccine Program succeeded in restoring the local rates doctrine, imposing its own notion of “reasonable” rates and continuing to discount even local billing rates. Avera, however, also validates the doctrine that “reasonable attorneys fees” includes interim attorneys fees in appropriate cases, and many hundreds of thousands of dollars in interim fees have been paid to petitioners’ counsel nationwide as a result. Several small firms were literally saved from financial ruin. The insufficiency of fees and costs reimbursement remains a systemic problem of great magnitude in the Program; the anti-petitioner bias of Program fees doctrine effectively deprives vaccine injured persons of effective counsel and prevents them from litigating on a level playing field.
CLOER V. SECRETARY OF DHHS (2012). The claim for vaccine injury compensation in the Cloer litigation arose after the petitioner developed Multiple Sclerosis several years into an autoimmune injury process apparently initiated by Hepatis B vaccination. The 36-month statute of limitations in the Vaccine program had always been strictly construed, and in a series of court decisions, petitioner was denied compensation by a special master for untimely filing, and the denial was upheld in the Court of Federal Claims. An appeal to the Court of Appeals for the Federal Circuit resulted in the application of a doctrine that deemed the claim timely, accruing when the medical community at large recognized the condition as a vaccine injury. The government sought and obtained en banc review and again was able to deprive the claimant of compensation, and the United States Supreme Court declined to review the matter. However, in another en banc opinion, the Federal Circuit decided that untimely filing would not deprive the court of jurisdiction to award reimbursement for attorneys fees and costs. The Cloer fees litigation resulted in the first explicit decision validating the essential nature of the Vaccine Act as remedial legislation, and will make many dozens of autism cases eligible for statutory fees and costs.
The government sought review of the attorneys fees victory, and the Supreme Court granted certiorari. In a 9-0 decision issued May 20, 2013, the Supreme Court upheld the Federal Circuit in awarding attorneys fees. The Supreme Court's decision in Sebelius v. Cloer reinforced the thrust of the Act intended to make qualified representation available to persons with vaccine injuries. Justices Scalia and Thomas declined to join the majority in the finding that the Act should be interpreted to avoid limiting the access of injured persons to counsel.
RELIGIOUS FREEDOM CASES
COOPER V. STATE OF WYOMING DEPARTMENT OF HEALTH (2001). Class action was filed in Federal Court under the Civil Rights statute (42 U.S.C. § 1983) to challenge state “regulation” of religious exemptions from childhood vaccinations. The Wyoming Department of Health was requiring exemption applicants to write an essay explaining their religious beliefs, and assumed the power to deny exemptions. Persons whose exemptions were denied were afforded a “religious sincerity” hearing before an administrative tribunal. The case was settled with a permanent injunction that required exemptions to be granted upon a statement under oath that objection to vaccination was based on religious belief.
IN RE LEPAGE (2001). Mr. Moxley, in affiliation with the Rutherford Institute, represented the first Wyoming citizen subjected to a “religious sincerity” hearing in order to obtain a religious exemption to vaccinations for her school-age children. In a case certified to the Wyoming Supreme Court, the Court held that such regulation of religious exemptions exceeded the statutory authority of the Department of Health. In dicta the Court noted that further legislation might “call into question the constitutional prohibition against governmental interference with the free exercise of religion.”
BOONE V. BOOZMAN and MCCARTHY V. BOOZMAN (2002). Civil Rights suits filed in the Eastern and Western Districts of Arkansas challenged the Arkansas statutory scheme for religious exemption from childhood vaccinations as a condition to school admission. The Courts set aside the Arkansas statute on Establishment Clause grounds, which granted exemptions only to members of a “recognized religion.” Appeal was taken to the 8th Circuit Court of Appeals, seeking judicial recognition of the right to decline prophylactic medical measures; the appeal was dismissed as moot, when the Arkansas General Assembly passed a new statute providing for broad religious and philosophical exemption rights.
FULCHER V. STATE (1981). This case established the defense of “unconsciousness” in a criminal matter where a culpable mental state (mens rea) is required. Mr. Fulcher had committed an assault at a time when he was suffering a brain injury and was in a state of “traumatic automatism.” He had no memory of the events, and the trial court found his condition a mitigating factor, but not a defense. The prosecution stipulated for the appeal that Mr. Fulcher suffered from the condition, but the Wyoming Supreme Court rejected the stipulation because it was not approved by the Attorney General. The Supreme Court found that the condition was a complete defense, but that Mr. Fulcher had not had it, and affirmed the conviction. The trial court, however, which had validated the stipulation of facts for appeal, later set aside the conviction. The case underlies unique rules of criminal procedure, requiring notice of the defense and the opportunity for the State to evaluate an accused whose relies on unconsciousness as a defense.
FRIAS V. STATE (1984 to 1986). Martin Frias was convicted in 1984 of murdering his common-law wife, who had in fact committed suicide. Mr. Moxley marshaled nationally-known forensic experts who proved that the original death scene evidence had been misinterpreted (including the incorrect conclusion that the victim had been shot in the back) and obtained a new trial. Mr. Frias was acquitted in 1986, having spent two years and ten days wrongly imprisoned. The story of the case has been featured on The West, a television magazine in Sacramento, on 60 Minutes with Mike Wallace, on The New Detectives (a History Channel show) and Court TV’s The Forensic Files.
MICKELSON V. STATE OF WYOMING (1994 and 1995). Mr. Moxley defended the owner of a bar in Laramie who was convicted of misdemeanor interference with peace officers after he refused them admission into his closed business establishment. The Wyoming Supreme Court reversed, finding that police were not in the “legal performance of their duties” when they demanded entry. The first of two decisions featured a three-to-two majority; on rehearing, the majority opinion was authored by an original dissenter. The cases solidified the parameters of consent to search and reaffirmed the requirement for reasonable suspicion of criminal activity before police may infringe upon the liberty interests of a citizen.
STATE OF WYOMING V. JUAREZ (2011). In this case the Wyoming Supreme Court upheld the District Court in Rawlins in its order excluding nine pounds of marijuana from introduction into evidence, by virtue of illegal search. A Wyoming Highway Patrol drug interdiction trooper had stopped Mr. Juarez because he failed to use his turn signal while entering the Interstate Highway. The trial court found that the statutes do not require a turn signal when a motorist follows a merging lane onto the highway, finding that the intended course of such a vehicle is known and obvious to other motorists. The Supreme Court agreed and stated that a motorist on a merging lane has no choice but to enter the Interstate. The prosecution was dismissed.