The Federal Circuit Court of Appeals has determined that a physician vaccinated for Hepatitis B timely filed a claim under the Vaccine Injury Compensation Program because the purported link between the vaccine and the multiple sclerosis (MS) symptoms she experienced in 1997 was not known until 2004, and she filed her claim less than 36 months thereafter. Cloer v. Sec’y of Health & Human Servs., No. 2009-5052 (Fed. Cir., decided May 6, 2010).

According to the court, the National Childhood Vaccine Injury Act requires that a petition for compensation be filed within 36 months of “the date of the occurrence of the first symptom or manifestation of onset or of the significant aggravation of [a vaccine-related] injury.” The court agreed with the physician that the medical community at large needs to recognize a link between the injury and the vaccine for the statute of limitations to begin running. Because the first time anyone in the medical community could have objectively recognized a link between MS and a vaccine was September 2004, when an article on the subject was published, the physician’s September 2005 petition was timely. The court noted that the government continues to deny a causal association and the Vaccine Injury Table does not list MS as a vaccine-related injury.

A dissenting judge contended that the majority had created a new statute of limitations for non-Table petitioners under the Vaccine Act and, so doing, misread the law.