Elmer D McKercher v. HHS - H1N1 monovalent, Guillain-Barré syndrome (2015)

Elmer McKercher filed a petition alleging that an H1N1 monovalent vaccination he received on January 18, 2010, caused him to develop Guillain-Barré syndrome (GBS) and significantly aggravated a pre-existing GBS from a 1976 H1N1 vaccination. He also received a trivalent flu vaccine on August 30, 2010, but did not allege this caused injury.

The respondent moved to dismiss the petition, arguing it was time-barred by the Vaccine Act's thirty-six-month statute of limitations and that the H1N1 monovalent vaccine was not a covered vaccine under the Program. The petitioner's counsel sought discovery to investigate potential tolling of the statute of limitations.

However, the court noted that the H1N1 monovalent vaccine is not covered by the National Vaccine Injury Compensation Program. While a trivalent flu vaccine was covered, any claim related to it would be time-barred, as Mr.

McKercher filed his petition on November 5, 2015, well after the three-year window for an alleged 2010 injury. The court also found no evidence to support tolling the statute of limitations, especially since the primary vaccine cited was not covered.

The petitioner agreed with his counsel's recommendation to conclude the case. Consequently, the court denied the motion for discovery and dismissed the case for failure to state a claim upon which relief can be granted and because the claim was time-barred.