Lee Ann Kay, on behalf of her minor son Mason Kay v. HHS - Hepatitis B, speech delay and learning disabilities (2008)
Case summary [AI summaries can sometimes make mistakes]
Lee Ann Kay, on behalf of her minor son Mason Kay, filed a petition on March 23, 2005, alleging that Mason suffered from speech delay and learning disabilities as a result of receiving thimerosal-containing vaccines. Mason received multiple vaccines between April 22, 1999, and October 10, 2000, including Hepatitis B, DTaP, Hib, and IPV vaccines.
In May 2001, specialists identified severe deficits in Mason's auditory comprehension, expressive communication, social skills, sensory integration, and play skills. The Special Master dismissed the compensation claim because the first symptoms manifested more than thirty-six months before the petition was filed, exceeding the statutory limit of 42 U.S.C. § 300aa-16(a)(2).
Subsequently, the petitioner filed an application for attorneys' fees and costs. The Special Master rejected this application, ruling that jurisdiction to award fees is contingent upon the timely filing of the compensation claim, citing Brice v.
Sec’y of HHS. The Court of Federal Claims reviewed this decision, upholding the Special Master's ruling.
The court determined that the statute of limitations in the Vaccine Act is jurisdictional, and therefore, the court lacked jurisdiction to award attorneys' fees when the underlying claim was time-barred. The court cited the Supreme Court's decision in John R.
Sand & Gravel Co. v. United States, which reinforced the principle that statutes of limitations in waivers of sovereign immunity, such as the Vaccine Act, are jurisdictional prerequisites.
The court concluded that because the Special Master had no jurisdiction to consider the compensation petition due to its untimeliness, he also had no jurisdiction to award attorneys' fees and costs. The court upheld the Special Master's decision and dismissed the application for attorneys' fees and costs for lack of subject matter jurisdiction.
Petitioner's counsel was not named. Respondent's counsel was not named.
Special Master John F. Edwards issued the compensation decision.
Judge Christine O.C. Miller issued the court's opinion.
Theory of causation
Petitioner Lee Ann Kay, on behalf of her minor son Mason Kay, filed a petition alleging speech delay and learning disabilities resulting from thimerosal-containing vaccines administered between April 22, 1999, and October 10, 2000. The first symptoms or manifestations of onset were identified in May 2001, which was more than thirty-six months prior to the petition filing date of March 23, 2005. Special Master John F. Edwards dismissed the compensation claim for lack of jurisdiction, citing the statute of limitations under 42 U.S.C. § 300aa-16(a)(2). Petitioner subsequently applied for attorneys' fees and costs under 42 U.S.C. § 300aa-15(e), which was also denied by the Special Master based on the untimeliness of the underlying claim, as per Brice v. Sec’y of HHS. The Court of Federal Claims, in an opinion by Judge Christine O.C. Miller, reviewed the Special Master's decision and upheld the dismissal of the attorneys' fees application. The court determined, consistent with Brice II and reinforced by John R. Sand & Gravel Co. v. United States, that the Vaccine Act's statute of limitations is a jurisdictional bar. Therefore, the court lacked subject matter jurisdiction to award attorneys' fees when the compensation claim itself was time-barred. The petition was dismissed, and the application for attorneys' fees and costs was denied.
Source PDFs
USCOURTS-cofc-1_05-vv-00393