Ashlyn Markovich v. HHS - DTaP, seizure disorder and intractable epilepsy (2005)

Ashlyn Markovich, born May 12, 2000, received DTaP, IPV, and Hib vaccinations on July 10, 2000. On the same day, she experienced repeated eye-blinking episodes, which her parents initially attributed to tiredness.

These episodes continued, and on August 30, 2000, Ashlyn was admitted to Fairview Ridges Hospital and diagnosed with a seizure, though the cause was not identified. Over the next two years, Ashlyn experienced an escalating pattern of seizures, multiple hospital admissions, and was diagnosed with intractable epilepsy.

By April 2002, a Mayo Clinic neurologist identified her July 10, 2000 eye-blinking as a seizure, marking the first medical diagnosis to do so. She also developed mild receptive and expressive language delays, and a vagus nerve stimulator was implanted in October 2002 with little improvement.

On August 29, 2003, Ashlyn's parents filed a petition alleging the July 10, 2000 vaccinations caused her seizure disorder and intractable epilepsy. Petitioners' expert pediatric neurologist, Dr.

Jean-Ronel Corbier, testified that the July 10 eye-blinking episode was an objective symptom of cerebral dysfunction linked to the later seizure, and in retrospect, the eye blinking had been seizures all along. The Special Master ruled on July 22, 2005, that the first symptom or manifestation of Ashlyn's seizure disorder occurred on July 10, 2000, the date of vaccination and initial eye-blinking.

This ruling placed the petition filing date of August 29, 2003, fifty days outside the Vaccine Act's three-year statute of limitations, leading to dismissal for lack of jurisdiction. The Court of Federal Claims, in a memorandum opinion by Judge Braden on October 31, 2005, affirmed the Special Master's decision.

The court held that under existing precedent, the statute of limitations runs from the first symptom or manifestation of injury, even if the petitioner did not know at the time that the vaccine caused the injury. The court noted that equitable tolling is unavailable in Vaccine Act cases.

The court expressed concern about applying this rule to subtle symptoms and suggested that the Federal Circuit consider modifying the rule to clock the limitations period from the date of identification by a licensed physician. The court denied Petitioners' Motion for Review.