VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_13-vv-00442
Package ID: USCOURTS-cofc-1_13-vv-00442
Petitioner: Joel Gonzalez, Jr.
Filed: 2014-03-10
Decided: 2014-04-28
Vaccine: pneumococcal conjugate and rotavirus
Vaccination date: 2010-06-28
Condition: fever and staring episode; seizure disorder
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Maria and Joel Gonzalez, as legal representatives of their minor son, Joel Gonzalez, Jr., filed a petition for vaccine injury compensation on March 10, 2014. They alleged that six hours after receiving pneumococcal conjugate and rotavirus vaccines on June 28, 2010, Joel Jr. suffered a fever, a staring episode, and developed a seizure disorder. The petition was dismissed by Chief Special Master Denise Kathryn Vowell on April 28, 2014, because it was filed after the statute of limitations had expired. The first symptoms of Joel Jr.'s seizure disorder occurred on June 28, 2010, which meant the petition should have been filed by June 28, 2013. The petition was received and filed by the clerk on July 1, 2013. The Special Master found no basis for equitable tolling, as the petitioners did not present arguments for fraud or duress, and unawareness of a causal link does not justify tolling. The court noted that the Vaccine Act requires the petition to be filed within 36 months of the first symptom or manifestation of onset or significant aggravation of a vaccine-related injury. The public decision does not describe the specific clinical story beyond the initial symptoms, any diagnostic tests, or treatments. The Special Master's decision was based solely on the untimeliness of the filing. The case was dismissed as untimely filed.

Theory of causation field:
Petitioners Maria and Joel Gonzalez, as legal representatives of minor Joel Gonzalez, Jr., filed a petition alleging a vaccine injury on March 10, 2014, for pneumococcal conjugate and rotavirus vaccines administered on June 28, 2010. They alleged that six hours post-vaccination, Joel Jr. experienced a fever, staring episode, and subsequently developed a seizure disorder. The petition was dismissed by Chief Special Master Denise Kathryn Vowell on April 28, 2014, as untimely filed. The first symptom or manifestation of the alleged injury, a fever and staring episode, occurred on June 28, 2010. Under the Vaccine Act, the petition must be filed within 36 months of the first symptom or manifestation of onset or significant aggravation of a vaccine-related injury. Therefore, the petition should have been filed by June 28, 2013. The petition was filed on July 1, 2013. Petitioners did not present arguments for fraud or duress, and the Special Master rejected equitable tolling based on unawareness of a causal link, citing Federal Circuit precedent. The public decision does not detail the specific mechanism of injury or name any experts. The dismissal was based solely on the statute of limitations. No award was made.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_13-vv-00442-0
Date issued/filed: 2014-04-28
Pages: 4
Docket text: PUBLIC DECISION (Originally filed: 03/10/2014) regarding 15 DECISION of Special Master. Signed by Chief Special Master Denise Kathryn Vowell. (tpj) Copy to parties.
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Case 1:13-vv-00442-UNJ Document 17 Filed 04/28/14 Page 1 of 4
ORIGINAL
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
No.13-442V FIl FH
Filed: March 10,2014 VlUCU
(Not for Publication) MAR 1020'*
********************************* U.S. COURT OF
MARIA GONZALEZANDJOEL GONZALEZ, * FEDERALCLAIMS
legal representatives of a minor child, *
Joel Gonzalez, Jr., *
Petitioners, * Dismissal; Equitable Tolling;
Statute of Limitations.
v.
SECRETARY OF HEALTH AND HUMAN
SERVICES,
*
Respondent. *
****** ** *************************
Maria Gonzalez and Joel Gonzalez, legalrepresentatives ofa minorchild,Joel
Gonzalez, Jr., pro se petitioners.
Ryan Pyles, Esq., U.S. Dept. of Justice, Washington, DC,for respondent.
DECISION1
VowelI, ChiefSpecial Master:
On July 1, 2013, MariaGonzalez and Joel Gonzalez, legal representatives ofa
minor child, Joel Gonzalez, Jr., ["petitioners"]fileda petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, etseq.2 [the
"Vaccine Act"]. On December 19, 2013, Iissued a decision that dismissed their petition
due to untimelyfiling. Judgment entered on January 24, 2014. Judgment was vacated
and this case was reinstated on February 3, 2014.
For the reasons stated below, Iagain dismiss this case as untimely filed.
1Becausethisunpublished decision contains a reasonedexplanation for theaction in thiscase, Iintend
topostitonthe United States CourtofFederalClaims'website, in accordancewith theE-Government
Actof2002, Pub. L. No. 107-347, 116Stat. 2899,2913(Dec. 17,2002). In accordance with Vaccine
Rule 18(b), petitioners have14daystoidentify andmove toredactmedical orotherinformation, the
disclosure ofwhichwouldconstitute an unwarranted invasionofprivacy. If, upon review, Iagree that the
identified material fits within this definition, Iwill redact such material from public access.
2National Childhood VaccineInjury Actof1986,Pub. L. No. 99-660,100Stat. 3755.

Case 1:13-vv-00442-UNJ Document 17 Filed 04/28/14 Page 2 of 4
I. Procedural History.
The petition alleges that six hours after the administration of pneumococcal
conjugate and rotavirus vaccines on June 28, 2010, Joel Gonzalez suffered a fever and
staring episode. Petition at 1. At a status conference inAugust 20, 2013, petitioners
noted that they had mailed their petition on June 28, 2013. The petition was not
received until July 1, 2013, when itwas duly filed by the clerk.
On September 4, 2013, respondent filed a motion to dismiss arguing that under
Section 16(a)(2) of the Vaccine Act the petition was barred by the statute of limitations.
Respondent's Motion to Dismiss at 1. The case was re-assigned to me on September
5, 2013. In an order issued on September 9, 2013, petitioners were instructed to file
missing medical records and a response to the motion to dismiss by no later than
November 22, 2013. On December 19, 2013, Iissued a decision dismissing the case
as time-barred by the statute of limitations. Judgment entered on January 24, 2014.
Afterjudgment had entered itcame to my attention that petitioners did file
additional medical records and a response to the motion to dismiss as they had been
ordered. However, because petitioners did not title their pleading as a response to
respondent's motion and included a copyofCourt Form 2 (Cover Sheet),3 it was treated
as a new petition by the clerk's office. As a new petition, a new case number was given
and the case assigned to a different specialmaster.4 Because my December19,2013
decision did not considerthe arguments presented by petitioners intheir November
2013 filling, Ivacated judgment and reinstated this case. Order, issued Feb. 3, 2014.
On February 12, 1014, Iissued an orderthat indicated respondent could file a
reply brief in support of her motion to dismiss that addressed petitioners' November
2013 filing, which was attached to the order as Court Exhibit I. Respondent's optional
reply briefwas due by February 28, 2014. To date, no brief has been filed.
Form 2 is typically attached to new petitionsand provides basic information about the petitioner, such as
the nature of the suit(Contact, Tax, Military Pay, Vaccine Injury, etc). See Form 2, available at
http://www.uscfc.uscourts.gov/sites/default/files/court_info/20130813_rules/Form%202.pdf; seealso
Filinga Complaint- Pro Se Information, available at http://www.uscfc.uscourts.qov/pro-se-information.
4An OrderConcluding Proceedingswas filed in the newcase (13-927V) by Special Master Dorsey on
February6, 2014.

Case 1:13-vv-00442-UNJ Document 17 Filed 04/28/14 Page 3 of 4
II. Arguments and Analysis.
A. Untimely Filing.
The Vaccine Act's statute of limitations provides in pertinent part that, in the case
of:
a vaccine set forth in the Vaccine Injury Table which is administered after
October 1, 1988, if a vaccine-related injury occurred as a result of the
administration of such vaccine, no petition may be filed for compensation
under the Program for such injury after the expiration of 36 months after
the date of the occurrence of the first symptom or manifestation of onset
or of the significant aggravation of such injury ....
§ 16(a)(emphasis added).
In Cloer, the Court of Appeals for the Federal Circuit affirmed that "the first
symptom or manifestation of onset of a vaccine-related injury is 'the first event
objectively recognizable as a sign of a vaccine injury by the medical profession at
large.'" Cloer, 654 F.3d. at 1335 (quoting Markovich v. Sec'y, HHS, All F.3d 1353,
1360 (Fed. Cir. 2007)). In Wilkerson, the Federal Circuit explained that the "recognition
may have occurred some time after the symptoms first occurred." Wilkersonv. Sec'y,
HHS, 593 F.3d 1343, 1346 (Fed. Cir. 2010).
The Federal Circuit has held that "[t]here is no requirement that the vaccine injury
be diagnosed." Cloer, 654 F.3d at 1329 (emphasis omitted). The Circuit determined
the date of the first symptom or manifestation of injury is "a statutory date that does not
depend on when a petitioner knew or reasonably should have known anything adverse
about her condition." Cloer, 654 F.3d at 1339. The date is dependent on when the first
sign or symptom of injuryappears, not when a petitioner discovers a causal relationship
between the vaccine and the injury. Id.
The petition filed inthis case states that Joel Jr. suffered a fever, jerking of his
arms and legs, and a staring episode on June 28, 2010, six hours after receipt of his
vaccinations that day. Petition at 1. The affidavits of both Joel and Maria Gonzalez
also indicate that his seizure disorder developed on June 28, 2010. Pet. Exs. 6-7. The
medical records are consistent with the parents' recollection that the first symptom of
onset occurred on June 28, 2010. See, e.g., Pet. Ex. 8, p.1.
Because the first symptoms of Joel Jr.'s seizure disorder occurred on June 28,
2010, this petition needed to be filed by no later than June 28, 2013. The petition was
not filed untilJuly 1, 2013, and thus is untimely.

Case 1:13-vv-00442-UNJ Document 17 Filed 04/28/14 Page 4 of 4
B. Equitable Tolling.
The doctrine of equitable tolling is a legal principle that acts to overcome a
statute of limitations problem in certain situations. Ifa case is untimely filed and the
doctrine of equitable tolling applies, then the case will be permitted to continue.
In Cloer, the Federal Circuit acknowledged that equitable tolling applies in
Vaccine Act cases, but under very limited circumstances, such as when a petitioner was
the victimoffraud or duress, or when a procedurally deficient pleading was timely filed.
Cloer,654 F.3d at 1344-45. Itsquarely rejected the applicability ofequitable tolling "due
to unawareness of a causal linkbetween an injuryand administration of a vaccine." Id.
at 1345.
Petitioners have not presented any arguments that would support the application
ofequitable tolling to this claim, and myexamination ofthe record does not disclose any
basis for applying equitable tolling to this case.
III. Conclusion.
Intheir November 22, 2013 response, petitioners urge me to award them
compensation so that they can providethe best education and treatment fortheirson.
WhileIam sympathetic with petitioners' plight, Imust enforce the Vaccine Actas itis
written. The Act required them to file their petition byJune 28, 2013. The petitionwas
not received and filed bythe court until July 1, 2013, and thus was untimelyfiled.
Furthermore, petitioners have not demonstrated any extraordinary circumstances
warranting equitable tolling. Thus, this claim is dismissed as untimely filed under
the Vaccine Act's statute of limitations.
My February 3, 2014 order vacating the prior judgment and reinstatingthis
petition did notexplicitly withdraw myprior decision. The clerk shall formally
withdraw my December 19, 2013 decision, and enter judgment according to this
decision.
IT IS SO ORDERED.
Denise K. Vow;
Chief Special Master