VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_15-vv-01310
Package ID: USCOURTS-cofc-1_15-vv-01310
Petitioner: Trevor Taylor
Filed: 2015-11-03
Decided: 2016-05-04
Vaccine: unspecified
Vaccination date: 
Condition: Gulf War Illness (GWI)
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Trevor Taylor, acting pro se, filed a petition for compensation under the National Vaccine Injury Compensation Program alleging Gulf War Illness (GWI) resulting from vaccinations he received in the military. He indicated that he had suffered from GWI for 25 years. The petition did not specifically allege that his GWI was vaccine-caused, but questioned the safety of military inoculations. The medical records submitted were for Trevor Alan Moeller and indicated typhoid and tetanus-diphtheria vaccinations on February 12, 1991, with other vaccinations noted as illegible. The court issued an Order to Show Cause, explaining that claims must be for injuries from Program-covered vaccines and filed within the statutory time period. Mr. Taylor filed an amended petition alleging polio and tetanus vaccinations caused his GWI and other sicknesses, and argued the filing was timely due to incapacitation. The court found that the claim was untimely, as Mr. Taylor himself indicated the condition had persisted for 25 years, placing the filing approximately 22 years beyond the statute of limitations. The court rejected the argument for equitable tolling, finding Mr. Taylor failed to provide specific details or medical records to support his claim of incapacitation, and noted his ability to obtain Social Security disability benefits contradicted a decades-long incapacitation preventing him from filing. Furthermore, the court noted that GWI is not a Table injury and the petition did not establish causation. The case was dismissed as untimely.

Theory of causation field:
unclear

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_15-vv-01310-0
Date issued/filed: 2016-05-04
Pages: 6
Docket text: PUBLIC DECISION (Originally filed: 01/28/2016) regarding 9 DECISION of Special Master (Signed by Chief Special Master Nora Beth Dorsey.)(mpj) Copy to parties.
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Case 1:15-vv-01310-UNJ Document 11 Filed 05/04/16 Page 1 of 6
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 15-1310V
Filed: January 28, 2016
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
TREVOR TAYLOR, *
*
Petitioner, * Dismissal; Statute of Limitations;
v. * Untimely; Equitable Tolling
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
Trevor Taylor, pro se, Ann Arbor, MI, petitioner.
Ann Donohue Martin, U.S. Department of Justice, Washington, DC, for respondent.
DECISION1
On November 3, 2015, petitioner filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 [the
“Vaccine Act” or “Program”]. The petition alleges that petitioner suffered Gulf War
Illness (“GWI”) resulting from vaccinations he received in the military. For the reasons
discussed below, petitioner’s claim is hereby DISMISSED.
I. Factual and Procedural History
Acting pro se, Mr. Taylor filed a petition on his own behalf on November 3, 2015.
(See Petition (“Pet”), ECF No. 1.) The petition alleged that Mr. Taylor suffers from a
condition known as Gulf War Illness or “GWI.” (Pet at 1.) Mr. Taylor’s petition did not
1 Because this unpublished decision contains a reasoned explanation for the action in this case, it will be
posted on the United States Court of Federal Claims' website, in accordance with the E-Government Act
of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501
note (2006)). In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to
redact medical or other information, the disclosure of which would constitute an unwarranted invasion of
privacy. If, upon review, the undersigned agrees that the identified material fits within this definition, it will
be redacted from public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2006).

Case 1:15-vv-01310-UNJ Document 11 Filed 05/04/16 Page 2 of 6
specifically allege that his Gulf War Illness was caused by a vaccine; however, he
questioned “why are American Veterans being given poisonous inoculations.” (Id.) Mr.
Taylor’s petition also did not specifically address the onset of his alleged vaccine injury.
The petition did, however, indicate that he has suffered the complained-of GWI for 25
years. (Pet at 2.) Mr. Taylor requested assistance paying his court costs. (Pet at 1.)
Accompanying his petition, Mr. Taylor also filed 10 pages of medical records
from military service without exhibit designation. (See ECF No. 1, Attachment No. 1.
(“ECF No. 1-1.”)) The records are for a Trevor Alan Moeller. (Id.) According to the
petition, petitioner was formerly known as Trevor Moeller and these records are U.S.
army medical records for Desert Storm.3 (Pet at 2.)
The records indicate that Mr. Moeller received typhoid and tetanus-diphtheria
vaccinations on February 12, 1991. (ECF No. 1-1, p. 9.) Additional “ISG” and polio
vaccinations are noted as being administered in February, but the day and year are
illegible. (Id. at 10.) There is also a notation appearing under “cholera vaccine,” but that
notation is not legible. (Id. at 9.)
On November 5, 2015, the undersigned issued an Order to Show Cause. (ECF
No. 4.) The Order to Show Cause explained that compensation is limited to claims
brought for injuries sustained from Program-covered vaccines and which are brought
within the time period prescribed by the Vaccine Act. (Id. at 1-2.) Petitioner was ordered
to file an amended petition alleging a timely injury from a Program-covered vaccine, or
otherwise show cause for why the petition should not be dismissed.4 (Id. at 2.) To the
extent petitioner had requested assistance with court costs, the Order to Show Cause
directed petitioner to the necessary In Forma Pauperis application. (Id. at 2.)
On November 20, 2015, Mr. Taylor filed a motion to proceed in forma pauperis
with accompanying information regarding his 2015 social security disability benefits.
(ECF No. 5.) That motion was granted. (ECF No. 8.)
On November 20, 2015, Mr. Taylor also filed an amended petition. (See,
Amended Petition (“Am. Pet.”), ECF No. 6.) The amended petition alleges that Mr.
Taylor’s polio and tetanus vaccinations caused or contributed to his Gulf War Illness, as
well as additional sicknesses such as Disk Degenerative Disease. (Am. Pet. at 1.) The
amended petition also alleges that “this is a timely filing even though it far surpasses the
regular deadline due to the nature of the illnesses that were caused – and said illnesses
prevented earlier filings due to incapacitation (please see my medical records with the
Social Security Administration).” (Am. Pet. at 1.) The amended petition was
3 Mr. Taylor indicated, however, that he was recalled and served only in Germany and was never
deployed to the Gulf. (Pet at 2.)
4 In his initial petition, Mr. Taylor requested assistance from a third party in the event his petition was
considered insufficient. (Pet. at 1.) For that reason, the Order to Show Cause also provided Mr. Taylor
with a list of attorneys practicing in the Program. (ECF No. 4, p. 2.) However, on November 16, 2015,
Mr. Taylor e-mailed the staff attorney managing this case and indicated that he did not wish to have
counsel.

Case 1:15-vv-01310-UNJ Document 11 Filed 05/04/16 Page 3 of 6
accompanied by the same vaccination record filed with the original petition. (See ECF
no. 6, Attachment No. 1.)
Although petitioner’s amended petition introduced allegations stemming from
Program-covered vaccines, this is inadequate in light of all the circumstances of this
case.
II. Discussion
As noted in the previously-issued Order to Show Cause, for vaccines
administered after October 1, 1988, “if a vaccine-related injury occurred as a result of
the administration of such vaccine, no petition may be brought 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.” See §16(a)(2). In his amended petition, Mr. Taylor
himself characterizes his claim as “far surpass[ing] the regular deadline” (Am. Pet. at 1)
and, indeed, his initial petition indicated that he has suffered his alleged condition for
fully 25 years. (Pet at 2.)
Nonetheless, petitioner also contends that his claim should be considered timely
due to his incapacitation. (Am. Pet. at 1.) The undersigned construes this contention as
an argument based on the concept of equitable tolling.5 Petitioner has failed, however,
to establish a basis for equitable tolling in this case.
Equitable tolling may occur under the Vaccine Act, but only where “extraordinary
circumstances” are present. Cloer v. HHS, 654 F.3d 1322, 1344-45 (Fed. Cir. 2011)
(citing Pace v. DiGuglielmo, 544 U.S. 408, 418). It does not apply simply because the
statute of limitations deprives a petitioner of his claim. Id. at 1344.
Federal courts allow equitable tolling only “sparingly” and generally provide such
relief only where a litigant has “actively pursued his judicial remedies” or where he “has
been induced or tricked by his adversary’s misconduct into allowing the filing deadline to
pass.” Irwin v. Dept. Veterans Affairs, 498 U.S. 89, 96 (1990). Indeed, the Supreme
Court has cautioned that “procedural requirements established by Congress for gaining
access to the federal courts are not to be disregarded by courts out of a vague
sympathy for particular litigants.” Baldwin County Welcome Center v. Brown, 466 U.S.
147, 152 (1984).
5 There are two commonly cited legal principles that address the late filing of claims, the discovery rule
and equitable tolling. The two are often confused, but are distinct. See, e.g. Garcia v. Brockway, 526
F.3d 456, 465 (9th Cir. 2008). The discovery rule extends the applicable statute of limitation until such
time as the plaintiff knows of both the existence and cause of his injury. Id. Equitable tolling, however,
addresses a different type of circumstance wherein the plaintiff knows of his injury and his statute of
limitation has run, but he was prevented despite his diligence from acting on his claim. See, e.g. Cada v.
Baxter Healthcare Corp., 920 F.2d 446, 451 (7th Cir. 1990). Significantly, in binding precedent, the
Federal Circuit has held that equitable tolling, but not the discovery rule, is available to petitioners under
the Vaccine Act. See Cloer v. HHS, 654 F.3d 1322 (Fed. Cir. 2011).

Case 1:15-vv-01310-UNJ Document 11 Filed 05/04/16 Page 4 of 6
It is possible for mental or physical incapacity to serve as a basis for equitable
tolling. 6 See, e.g. Barrett v. Principi, 363 F.3d 1316 (Fed. Cir. 2004); Brown v.
Parckchester South Condominiums, 287 F.3d 58 (2nd Cir. 2002). However, the Federal
Circuit has made clear that in order to warrant equitable tolling, a physical disability
must prevent the individual “from engaging in ‘rational thought or deliberate decision
making’ or [have] rendered him ‘incapable of handling [his] own affairs or unable to
function in society.’” Arbas v. Nicholson, 403 F.3d 1379, 1381 (Fed. Cir. 2005) (quoting
Barrett, supra.) Federal appellate courts have also warned that the burden of
establishing extraordinary circumstances remains with the plaintiff and that a
“conclusory and vague claim” is “manifestly insufficient” to invoke equitable tolling
absent “a particularized description of how [the] condition adversely affected [plaintiff’s]
capacity to function generally or in relationship to the pursuit of her rights.” Boos v.
Runyon, 201 F.3d 178, 185 (2nd Cir. 2000); c.f. Wax v. HHS, 108 Fed Cl. 538, 541 (Fed.
Cl. 2012) (noting that petitioners in the Vaccine Program bear the burden of establishing
both diligence and extraordinary circumstances to invoke equitable tolling).
Here, although petitioner claims that his alleged vaccine injury resulted in
incapacitation, he has failed to describe his symptoms or in what way his alleged
injuries incapacitated him. Nor has he provided any medical records to otherwise
support his allegation. The only records filed in this case pertain to petitioner’s pre-
vaccination state of health.7 Thus, Mr. Taylor’s assertion is exactly the type of vague
and conclusory statement that federal appellate courts have disallowed for purposes of
equitable tolling.
Although Mr. Taylor states that he has 20 of 50 symptoms of GWI8, federal
regulations regarding veteran compensation for Gulf War syndromes or illnesses
suggest that the symptoms can include fatigue, headache, muscle or joint pain, sleep
disturbances, weight loss, gastrointestinal symptoms, or skin conditions. See 38 C.F.R.
§3.317(b)(2000); See also Myers v. U.S., 50 Fed. Cl. 674, 686 (Fed. Cl. 2001)
(describing 38 C.F.R. §3.317(b)(2000) as setting forth criteria for Gulf War Syndrome).
Prior Vaccine Act cases have similarly likened Gulf War Illness to Chronic Fatigue
Syndrome. See Jane Doe/52 v. HHS, No. [redacted]V, 2009 WL 5206199, *9 (Spec.
6 The undersigned notes, however, that the Federal Circuit has not ruled on that specific question with
regard to the Vaccine Act.
7 Although petitioner sought to rely by reference on medical records on file regarding his social security
disability, he has not filed those records with the court. The Vaccine Act requires that all petitions be
accompanied by supporting documentation. See §300aa-11(c). Moreover, Vaccine Rule 2 similarly
requires that petitioners must file “all available medical records supporting the allegations of the petition.”
Without such filing the undersigned does not have access to the records Mr. Taylor has referenced.
8 It is not clear on what basis petitioner contends that there are 50 symptoms of GWI. None of the
symptoms are described.

Case 1:15-vv-01310-UNJ Document 11 Filed 05/04/16 Page 5 of 6
Mstr. Fed. Cl. January 4, 2010).9 Thus, even if potentially disabling, it cannot be
assumed that the nature of GWI is such that it is necessarily incapacitating to an extent
that would prevent Mr. Taylor from engaging in deliberate thought or decision making or
otherwise pursuing his rights.
In addition, petitioner’s claim of incapacity must be measured against the
excessive delay present in this case. Petitioner indicated in his petition that he has
suffered his injury for 25 years, placing his filing approximately 22 years beyond the
statute of limitation. It is worth noting then that petitioner would need to establish a
decades-long, rather than temporary, incapacitation to effectively invoke equitable
tolling in this case. In that regard, petitioner’s claim of incapacity is contradicted by his
assertion that he was able to file his medical records with the Social Security
Administration and successfully petition for disability benefits in 2004. (See Am. Pet. at
1.) Petitioner’s ability to gain disability benefits through the Social Security
Administration indicates that, despite suffering disability, Mr. Taylor was sufficiently
capable of functioning to pursue his rights as early as ten years ago and there is no
evidence that he has experienced the type of disability that would have prevented him
from filing his claim for over 20 years.10 Petitioner’s conclusory and vague statement
that he was previously incapacitated does not in itself meet his burden.
Moreover, although the timeliness issue is dispositive, it is also significant that
neither the petition, amended petition, nor any of the records filed in this case establish
that petitioner’s injury was vaccine-caused. Gulf War Illness is not a recognized injury
on the vaccine Table. 42 C.F.R. §100.3. In addition, although petitioner has claimed
that his GWI was caused by his vaccinations, he has not even specifically identified his
own symptoms, or provided medical records evincing a diagnosis or opinion on
causation. Indeed, to the extent petitioner has filed only pre-vaccination records stating
that he is “in excellent health” the fact of petitioner being injured at all, regardless of
cause, has not been established.
III. Conclusion
I have tremendous sympathy for Mr. Taylor. His suffering is terribly unfortunate.
I am bound, however, by the Vaccine Act and by the relevant case law, to dismiss his
claim as untimely.
9 Although Gulf War Illness was referenced, the petitioner in that case alleged chronic fatigue syndrome,
hepatitis, fibromyalgia and polyneuropathy. The cited decision does not address the question of whether
Gulf War Illness is vaccine-caused.
10 Additionally, Mr. Taylor has filed the instant claim without any claim or indication that his allegedly
incapacitating disability has improved, abated, or otherwise changed with regard to his ability to function
or pursue his rights.

Case 1:15-vv-01310-UNJ Document 11 Filed 05/04/16 Page 6 of 6
This case is dismissed as untimely. The clerk shall enter judgment
accordingly.11
s/ Nora Beth Dorsey
__________________
Nora Beth Dorsey
Chief Special Master
11 If petitioner wishes to bring a civil action, he must file a notice of election rejecting the judgment
pursuant to 42 U.S.C. § 300aa-21(a) “not later than 90 days after the date of the court’s final judgment.”