Joshua Acevedo v. HHS - DTaP, encephalitis (2007)

Joshua Acevedo, represented by his legal representatives Yluminada Mojica and Julio Acevedo, filed a petition for compensation under the National Childhood Vaccine Injury Act of 1986. The petition alleged that Joshua suffered injuries as a result of receiving a DTaP and a Prevnar vaccination on June 28, 2004.

That night, Joshua experienced shaking episodes and a fever. The following morning, he exhibited shaking of his upper extremities, drooling, and eye deviation.

He was hospitalized and diagnosed with encephalitis, which was considered potentially infectious or post-vaccine. By November 2004, Joshua showed increased muscle tone and developmental delay, leading to a recommendation for early intervention programs.

The petition was filed on July 3, 2007, which was a few days after the three-year statute of limitations expired on June 28, 2007. Petitioners' counsel attempted to file the petition via Federal Express for overnight delivery on June 25, 2007, but the courier lost the package.

A second petition was filed on July 3, 2007, and a third on July 13, 2007. The Special Master dismissed the petition as untimely, ruling that the statute of limitations under the Vaccine Act is jurisdictional and not subject to equitable tolling, citing Brice v.

Secretary of Health & Human Services. The court affirmed this decision, holding that equitable tolling is not available for Vaccine Act claims, even in cases of courier mishaps and diligent efforts by counsel, as the statute's limitations are considered jurisdictional.

The court noted that while counsel took reasonable steps to file the petition on time, the Federal Circuit's precedent in Brice categorically bars equitable tolling in all cases involving late petitions under the Vaccine Act. The court also considered the pending Supreme Court case John R.

Sand & Gravel Co. v. United States but concluded it would not alter the outcome.

The petition was dismissed, and no award was granted.