Affirming the dismissal of a federal vaccine injury compensation program claim filed by a physician who purportedly developed multiple sclerosis (MS) after receiving Hepatitis-B vaccinations, the Federal Circuit Court of Appeals, sitting en banc, has revised its interpretation and application of the law’s statute of limitations in a divided ruling. Cloer v. Sec’y of Health & Human Servs., No. 2009-5052 (Fed. Cir., decided August 5, 2011). The court also overruled a 2001 decision that precluded the use of the doctrine of equitable tolling in cases brought under the National Vaccine Injury Act, but found that it did not avail the claimant here.
The law requires claimants to file their petitions for compensation under the vaccine program within 36 months “after the date of the occurrence of the first symptom or manifestation of onset … of such [vaccine-related] injury.” Claimant Melissa Cloer allegedly received three Hepatitis-B vaccinations in 1996 and 1997 and first manifested MS symptoms in 1997. The symptoms were sporadic through the following years, and, while MS was suspected, a definite diagnosis was not made until 2003. Cloer did not learn of an alleged potential link between the disease and the vaccinations until she read a September 2004 medical article. She brought her claim in 2005, arguing that the statute of limitations does not begin to run until a “clinically definite” diagnosis is made or was tolled because she had no reason to suspect a link to the vaccine until she read the article. A Federal Circuit panel found her claim timely in 2010, but agreed to hear the case en banc at the request of the Health and Human Services secretary.
The court focused on “what constitutes a ‘vaccine-related injury’ and what event triggers the running of the Vaccine Act’s statute of limitations.” Based on a “plain reading” of the statute, it rejected the claimant’s argument that an injury cannot occur under the Act “until the medical community at large understands and recognizes the causal relationship between the claimed injury and the administration of a vaccine.” It also rejected her argument that “the statute of limitations should not trigger until after a petitioner has suffered from six months of consistent, clinically related symptoms.”
While the court determined that the Vaccine Act does not contain a discovery rule “that would key the accrual of a non-Table injury claim and the beginning of the statute of limitations to a claimant’s discovery that the vaccine caused her injury” and that the discovery rule cannot be read by implication into the law’s statute of limitations, it also concluded that equitable tolling applies to the Vaccine Act. The court ruled that any strict time deadlines in the Act did not overcome a U.S. Supreme Court presumption that “all federal statutes of limitations are amenable to equitable tolling absent provision by Congress to the contrary.”
Still, the court refused to apply equitable tolling here, finding it unavailable where the claimant bases application of the doctrine on “unawareness of a causal link between an injury and administration of a vaccine.” According to the court, Cloer “individually asks for the same relief as a matter of equity that Congress has withheld from all petitioners as a matter of law. But we find no basis in equity for doing so.” The four dissenting judges would have found that the Vaccine Act “incorporates a discovery rule under which the limitations period does not begin to run until the claimant knew or should have known of a connection between the alleged injury and a vaccine.”