{"package_id":"USCOURTS-cofc-1_05-vv-01002","decision_granule_id":"USCOURTS-cofc-1_05-vv-01002-cl6658712","petitioner_identifier":"Dr. Melissa Cloer","is_minor":0,"age_at_vaccination":28.6,"age_unit_raw":"years","vaccine_type":"Hepatitis B","vaccination_date":"1996-09-03","condition_raw":"Multiple Sclerosis","condition_category":"other","autism_spectrum_adjacent":0,"outcome":"dismissed","award_amount_usd":null,"decision_date":"2008-11-25","extraction_version":"gemini-v2","extracted_at":"2026-04-30T14:30:44.429912+00:00","number_of_concurrent_vaccines":1,"dose_number":1,"time_to_onset_days":30,"theory_of_causation":"Hep B series (Sep 3, 1996; Nov 11, 1996; Apr 3, 1997) → MS (demyelinating disease). First symptom: Lhermitte sign May 1997. Provisional MS diagnosis Nov 2003. Filed Sep 16, 2005 — 5 years after statute ran (36-month period from 1997 first symptom expired 2000). Chief SM Golkiewicz May 15, 2008: DISMISSED (time-barred). Applied Markovich objective test. Setnes subjective test rejected. CFC Judge Block Nov 25, 2008: AFFIRMED. § 300aa-11(c)(1)(D)(i) (6-month requirement) = condition precedent, not tolling. Constitutional challenges rejected (rational basis; Leuz, Blackmon). Dates correct.","is_death":0,"date_of_death":null,"petition_filed_date":"2005-09-16","case_summary":"Dr. Melissa Cloer was born on January 22, 1968, and prior to the vaccination at issue had no significant medical history. She began a series of three hepatitis B vaccinations on September 3, 1996, received the second dose on November 11, 1996, and received the third and final dose on April 3, 1997. Approximately one month after her third vaccination, in approximately May 1997, Dr. Cloer began experiencing numbness in her left forearm and hand and developed what she described as an \"electric shock sensation\" running down the center of her back to both feet when she flexed her head forward — a symptom known as Lhermitte sign, which is a common indicator of multiple sclerosis. Her initial symptoms largely resolved over the following months.\n\nIn 1998, Dr. Cloer sought evaluation from Dr. Michael Andrew Meyer, a neurologist with a specialty in multiple sclerosis, who ordered an MRI. The scan revealed white matter lesions, and Dr. Meyer noted \"probable early inactive non-progressive CNS demyelination/MS,\" while observing that the condition could represent MS, Lyme disease, acute disseminated encephalomyelitis, or other demyelinating processes. Dr. Meyer later affirmed in an affidavit that as of 1998, Dr. Cloer had not met \"formal diagnostic criteria for clinically definite MS,\" because the lesion \"could have remained a clinically isolated event.\" In May and June 1999, Dr. Colapinto, a second neurologist, traced Dr. Cloer's ongoing symptoms to the demyelinating disease she had first exhibited in 1997. On November 26, 2003, Dr. Wood gave Dr. Cloer a \"provisional\" diagnosis of MS. In 2004, Dr. Metcalf, who evaluated Dr. Cloer for Social Security Disability purposes, noted that she had exhibited symptoms consistent with MS since 1997 and that she had begun manifesting \"full blown\" MS in the fall of 2003. Dr. Meyer later confirmed in retrospect that the 1997 Lhermitte sign was the first symptom of MS.\n\nDr. Cloer filed her petition on September 16, 2005, alleging that the hepatitis B vaccinations had caused her to develop MS. Hepatitis B is an on-Table vaccine, and the applicable limitations period was 42 U.S.C. § 300aa-16(a)(2), which bars petitions filed more than 36 months after \"the date of the occurrence of the first symptom or manifestation of onset\" of the claimed vaccine injury. Dr. Cloer argued for the more lenient subjective test under which the limitations period begins to run only when the onset of the injury becomes clinically diagnosable, as endorsed in Setnes v. United States, 57 Fed. Cl. 175 (2003); because she did not receive even a provisional MS diagnosis until November 2003, she contended the period ran from 2003 and her 2005 petition was timely.\n\nChief Special Master Golkiewicz dismissed the petition on May 15, 2008, applying the Federal Circuit's decision in Markovich v. Secretary of HHS, 477 F.3d 1353 (Fed. Cir. 2007), which adopted the objective test: the statute of limitations is triggered by the first symptom or manifestation of onset, even if the petitioner did not yet know that the vaccine caused the injury and even if a definitive diagnosis was impossible at that time. The Chief Special Master concluded that the first symptom of MS was the Lhermitte sign Dr. Cloer experienced in 1997, making the limitations period run in 2000, more than five years before the petition was filed.\n\nJudge Block, writing for the Court of Federal Claims on November 25, 2008, affirmed the dismissal. Markovich was binding and controlling, and the statute's disjunctive construction (\"first symptom or manifestation of onset\") made clear that the limitations period is triggered by whichever occurs earlier — a mere symptom, not necessarily a full clinical diagnosis. The court rejected petitioner's argument that § 300aa-11(c)(1)(D)(i), which requires a petitioner to allege that the residual effects of the vaccine injury lasted more than six months, served as a tolling provision; the court held that provision is a condition precedent to filing a petition, not an element of the limitations period. The court also rejected Dr. Cloer's constitutional challenges under the Fifth Amendment's Due Process and equal protection guarantees, holding that the limitations period survives rational basis review because it is rationally related to the dual legislative goals of expeditious resolution of vaccine claims and protection of vaccine manufacturers from open-ended liability, as confirmed by Leuz v. Secretary of HHS, 63 Fed. Cl. 602 (2005), and Blackmon v. American Home Products, 328 F. Supp. 2d 647 (S.D. Tex. 2004).","is_minor_inferred":0,"is_pediatric_broad":0,"special_master":"Gary J. Golkiewicz","petitioner_identifier_original":null,"caption_petitioner_name":null,"petitioner_attorney_name":null,"petitioner_attorney_firm":null,"petitioner_attorney_location":null,"adjudicator_name":null,"caption_people_backfilled_at":null,"attorney_canonical_keys":null,"firm_canonical_key":null,"package_title":"Cloer v. Secretary of Health & Human Services","canonical_url":"https://vicp-registry.org/case/USCOURTS-cofc-1_05-vv-01002","plain_text_url":"https://vicp-registry.org/case/USCOURTS-cofc-1_05-vv-01002.txt","json_url":"https://vicp-registry.org/case/USCOURTS-cofc-1_05-vv-01002.json","source_documents":[{"granule_id":"USCOURTS-cofc-1_05-vv-01002-cl6658712","title":"Cloer v. Secretary of Health & Human Services","docket_text":"lead-opinion","date_issued":"2008-11-25","pdf_url":"https://www.courtlistener.com/opinion/6775502/cloer-v-secretary-of-health-human-services/","pdf_bytes":null,"triage_decision":"keep","triage_reason":"recovered via CL opinion 6658712 (html_with_citations)","download_status":"ok","registry_pdf_url":"https://vicp-registry.org/pdf/USCOURTS-cofc-1_05-vv-01002/USCOURTS-cofc-1_05-vv-01002-cl6658712"}]}