VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_16-vv-01044
Package ID: USCOURTS-cofc-1_16-vv-01044
Petitioner: Ivana Phillips
Filed: 2016-08-23
Decided: 2016-11-29
Vaccine: MMR
Vaccination date: 2008-12-31
Condition: encephalopathy
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
On August 23, 2016, Aprises Phillips and Ivan Phillips, Sr. filed a petition under the National Childhood Vaccine Injury Act of 1986 on behalf of their minor daughter, Ivana Phillips. Ivana was born on December 18, 2008. The petition alleged that Ivana suffered an encephalopathy with developmental effects, including problems with fine and gross motor skills, behavior, and learning, as well as recurrent infections. The petitioners claimed that Ivana became sick with measles-like symptoms in January 2009 through exposure to her brother, Ivan, who allegedly developed measles-like symptoms after receiving an MMR vaccination on December 31, 2008. Prior to this exposure, Ivana was developing normally. The petition stated that on January 22, 2009, Ivana was seen by Dr. Ryan Walley, who noted a facial rash and described the illness as viral. The petitioners also reported that pediatrician Dr. James Womack (or Wamack) informed them that the MMR vaccine could not have caused the listed problems or autism-like behavior. They explained their late filing by stating they had long believed the MMR vaccinations were not the cause, were unaware of the Vaccine Program, and later learned compensation might be available. No medical records were filed in support of Ivana's petition. Special Master George L. Hastings dismissed the petition on November 29, 2016, finding it was filed untimely. Under the Vaccine Act, petitions for vaccinations administered after October 1, 1988, must be filed within 36 months of the first symptom or manifestation of the alleged injury. The Special Master determined that Ivana's alleged symptoms began in January 2009, making the petition filed on August 23, 2016, more than seven years later, thus time-barred. The Special Master treated the petitioners' request to extend the deadline as a request for equitable tolling but found no basis for it, as lack of knowledge of the Vaccine Program or a potential causal theory does not extend the statutory deadline. The petitioners sought review in the Court of Federal Claims. Senior Judge Lynn J. Bush sustained the dismissal on March 10, 2017, with the public opinion issued on April 6, 2017. The court reviewed the Special Master's factual findings regarding symptom onset under the arbitrary and capricious standard and the legal conclusions regarding the statute of limitations and equitable tolling de novo. The court agreed that the Special Master's finding of symptom onset in January 2009 was supported by the record and that the application of the statute of limitations was correct. The court also affirmed the Special Master's decision not to equitably toll the statute of limitations, citing Cloer v. Secretary of Health & Human Services, which held that ignorance of the Vaccine Act or a potential causal link does not constitute extraordinary circumstances for equitable tolling. The court noted that the Special Master had also observed, without deciding the case on that basis, that MMR-autism and developmental-delay theories have been repeatedly rejected in Vaccine Program decisions. No compensation was awarded. The Phillips parents represented themselves; respondent was represented on review by Ryan D. Pyles of the Department of Justice.

Theory of causation field:
Indirect MMR exposure theory: Ivana Phillips, born December 18, 2008, allegedly became ill in January 2009 after her brother Ivan received an MMR vaccine on December 31, 2008, and developed measles-like symptoms; Ivana allegedly became sick through exposure and subsequently suffered an encephalopathy with developmental effects including problems with fine/gross motor skills, behavior, and learning, as well as recurrent infections. DISMISSED as untimely. No medical records were filed. Petition alleged January 22, 2009 visit with Dr. Ryan Walley for facial rash/viral illness and reported pediatrician Dr. James Womack/Wamack stated MMR could not have caused the problems or autism-like behavior. Special Master George L. Hastings dismissed November 29, 2016, finding the petition untimely as alleged symptoms began January 2009 and the petition was filed August 23, 2016, exceeding the 36-month Vaccine Act limitations period; lack of knowledge of the Program or causation theory did not support equitable tolling. Senior Judge Lynn J. Bush sustained dismissal March 10, 2017/public April 6, 2017, affirming the Special Master's factual findings on symptom onset and legal conclusions on the statute of limitations and equitable tolling, citing Cloer v. HHS. Petitioners Aprises Phillips and Ivan Phillips, Sr. pro se; respondent attorney Ryan D. Pyles on review.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_16-vv-01044-0
Date issued/filed: 2017-01-03
Pages: 5
Docket text: PUBLIC DECISION (Originally filed: 11/29/2016) regarding 7 DECISION of Special Master. Signed by Special Master George L. Hastings. (kh) Copy to parties.
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Case 1:16-vv-01044-LJB Document 11 Filed 01/03/17 Page 1 of 5
REISSUED FOR PUBLICATION
JAN 3 2017
OSM
U.S. COURT OF FEDERAL CLAIMS

Case 1:16-vv-01044-LJB Document 11 Filed 01/03/17 Page 2 of 5
I
APPLICABLE STATUTORY PROVISION
The statutory deadlines for filing Program petitions are provided at § 300aa-16.
With respect to vaccinations administered after October 1, 1988, as was the vaccine at
issue here,§ 300aa-16(a)(2) provides that a Program petition must be filed within 36
months of the onset of the first symptom of the injury alleged to have been vaccine
caused.2
II
PROCEDURAL HISTORY AND
FACTUAL ALLEGATIONS
On August 23, 2016, Aprises Phillips and Ivan Phillips, Sr. ("Petitioners"), acting
prose, filed a Petition alleging that their daughter, Ivana Phillips, was injured by a
vaccine or vaccines listed on the Vaccine Injury Table. See § 14. This Petition (ECF No.
16-1044) was filed in association with two other claims (see ECF Nos. 16-1046 and
16-1045), which were filed on behalf oflvana's siblings (Ivan, and Ivanka). All tlu·ee of
these petitions present essentially the same facts, with each containing information
pertaining to all three siblings. Ivana's Petition (ECF. No. 16-1044) stated that Ivana's
"conesponding records" would be filed to supp01t this claim (Petition, p. 2); however, no
medical records have been filed.
Petitioners state that "[w]e are requesting compensation for our minor children, 9
year old Ivan Phillips, 7 year old Ivana Phillips, and 6 year old Ivanka Phillips, under the
National Vaccine Injury Compensation Program for injuries, including encephalopathy,
resulting from adverse effects of vaccinations, specifically, but not limited to the MMR
vaccination Ivan Phillips received on 8/25/2008 and the MMR vaccination Ivan Phillips
received on 12/31/2008." (Petition, p. 1.)3
Ivana Phillips was born on December 18, 2008. (Petition, p. 2.) Petitioners claim
that about two weeks later, when Ivana's brother, Ivan, received an MMR (measles
mumps-rubella) vaccination on December 31, 2008, Ivan "became sick with measles
2
See§ 300aa-16(a)(2)("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.").
3 Ivan's vaccination on August 25, 2008, occurred almost four months before his
sister Ivana was born. Ivan's vaccination on December 31, 2008, occurred thirteen days
after Ivana was born.
2

Case 1:16-vv-01044-LJB Document 11 Filed 01/03/17 Page 3 of 5
symptoms," and then "Ivana became sick with measles symptoms" in January 2009,
"through exposure." (Id.) According to the Petition, on January 22, 2009, when Ivana
was about one month old, she was examined "by Dr. Ryan Walley, at Redmon\ Pediatric
Associates, P.C. in Birmingham, AL, and she was sick with measles symptoms." (Id.)
Ivana's mother alleges that Dr. Walley documented that Ivana "had a rash on her face
that day, and he told Ivan Sr. and I that what she had was viral." (Jd.)4
The Petition states that before these events, Ivana had been "developing
normally," but then Ivana "got sick due to an exposure," and Ivana stopped developing
normally. (Petition, p. I.) Based on these allegations, Petitioners argue that they are
eligible for compensation, on Ivana's behalf, "for injuries, including encephalopathy,
resulting from adverse effects of vaccinations." (Id.) The effects oflvana's alleged
encephalopathy "include problems with fine and gross motor skills/functioning, behavior
(psychological), and learning (cognitive)," as well as "reculTent infections." 5 (Jd.)
Fmther, Petitioners claim that Ivana's adverse symptoms persisted for more than six
months, and that she continues to have developmental problems. (Id., p. 2.)
Petitioners report that the treating pediatrician, Dr. James Womack,6 informed
them that "the MMR vaccine couldn't have caused the problems listed above, nor autism
like behavior." (Petition, p. 2.) Fmther, Petitioners state that "[f]or a long time we were
led to believe that the MMR vaccinations weren't the cause for the children's injuries."
(Id.) Petitioners asse1t that as a result of these assurances, they did not file their Petition
until years later, when they were "surprised to find out" that compensation might be
available to them under the Vaccine Act.7 (Id.) For this reason, and other delays related
4 As noted previously, neither Dr. Walley's medical records, nor any other records,
have been filed in this case.
5 The Petition states that "Prior to the exposure causing Ivana's sickness with
measles symptoms she was in good health, suffered no medical conditions with the
exception of dry skin also referred to as eczema, and did not have the above listed
problems, which we're seeking compensation for." (Petition, p. 2.)
6 Subsequently, Petitioners, in their letter filed on September 29, 2016, stated that
the doctor's name is Wamack, not Womack.
7 This Decision concerns the issue of whether or not the Petition was timely filed.
However, it should be noted that there have been many decisions that reject the claim that
the MMR vaccination can cause autism spectrum disorders or developmental delay. See,
e.g., Cedillo v. HHS, No. 98-916V, 2009 WL 331968 (Fed. Cl. Spec. Mstr. Feb. 12,
2009) ofj"d, 89 Fed. Cl. 158 (2009), ajj"d, 617 F.3d 1328 (Fed. Cir. 2010); Hazlehurst v.
HHS, No. 03-654V, 2009 WL 332306 (Fed. Cl. Spec. Mstr. Feb. 12, 2009), ajf'd, 88 Fed.
Cl. 473 (2009), ajf'd, 604 F.3d 1343 (Fed. Cir. 2010); Snyder v. HHS, No. Ol-162V, 2009
WL 332044 (Fed. Cl. Spec. Mstr. Feb. 12, 2009), ajf'd, 88 Fed. Cl. 706 (2009).
Therefore, even if the statute of limitations did not require dismissal of this case, it is
extremely unlikely that Petitioners would be entitled to receive compensation under the
Vaccine Act.
3

Case 1:16-vv-01044-LJB Document 11 Filed 01/03/17 Page 4 of 5
to obtaining medical records and scheduling medical appointments, the Petition was not
filed until August 23, 2016. (Id.)
On September 29, 2016, Petitioners filed a supplemental statement providing
further information concerning events that occurred in 2010 and later. (See Petitioners'
Letter, ECF No. 4, filed Sept. 29, 2016.)
Ill
DISCUSSION
Petitioners contend that "Ivana became sick with measles symptoms" in January
2009, "through exposure" to her brother Ivan while he was ill with measles symptoms
allegedly caused by his MMR vaccination on December 31, 2008. (Petition, p. 1.)
Petitioners also state that before "the exposure causing Ivana Phillips' sickness with
measles symptoms, she was in good health." (Id.) However, after Ivana "got sick due to
exposure," in January 2009, Ivana "stopped" developing normally. (Id.) Thus, according
to Petitioners' own representations, Ivana's symptoms, which Petitioners allege were
caused by vaccines, first became apparent in January of2009.
The Vaccine Act, at§ 300aa-16(a)(2), requires that a Program petition with
respect to a vaccination that was administered after October 1, 1988, must be filed within
36 months after the occurrence of the first symptom of the alleged injury. However, the
Petition under consideration here was filed on August 23, 2016, more than seven years
after the first appearance ofivana's symptoms.8 Therefore, under a straightforward
application of§ 300aa-J 6(a)(2), this petition is clearly time-barred.
The Petition acknowledges that Ivana's symptoms appeared more than 36 months
before the Petition was filed, but requests that I "extend the deadline for filing this case."9
(Petition, p. 2.) Further, Petitioners' Letter argues that they were unable to file their
Petition earlier because they "had no idea that the National Vaccine Injury Compensation
Program existed." (Petitioners' Letter, ECF No. 4, filed Sept. 29, 2016.)
The "extension" of the filing deadline that Petitioners desire could be considered a
request for "equitable tolling" of the statute of limitations set forth in the Vaccine Act.
Such tolling, however, is allowed only in very limited circumstances. Cloer v. HHS, 654
8 Other than alleging that Ivana manifested symptoms of measles in January of
2009, Petitioners do not propose a specific date when the alleged onset of symptoms of
an "encephalopathy" occurred, or when the other symptoms of developmental delay
became apparent.
9 Petitioners request that "considering all this along with their symptoms being
older than three years, Ivan Sr. and I are asking that you extend the deadline for filing this
case." (Petition, p. 2.)
4

Case 1:16-vv-01044-LJB Document 11 Filed 01/03/17 Page 5 of 5
F.3d 1322, 1344 (Fed. Cir. 2011). In Cloer, the U.S. Court of Appeals for the Federal
Circuit affirmed that the statute of limitations begins to run on the "date of occunence of
the first symptom or manifestation of onset of the vaccine-related injury." Id. at 1325.
This date is dependent on when the first sign or symptom of injury appears, not when a
petitioner discovers (or suspects) a causal relationship between the vaccine and the
injury. Id. at 1339. Nor is the filing deadline contingent on when a Petitioner becomes
aware of the existence of the Vaccine Program.
The Cloer opinion also states that equitable tolling of the statute of limitations
may possibly occur, but only in "extraordinary circumstances," such as when a petitioner
files a timely but defective pleading, or is the victim of fraud or duress. Id. at 1344-45
(citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); Irwin v. Dep 't of Veterans
Affairs, 498 U.S. 89, 96 (1990)). Equitable tolling may not apply simply because the
petitioner was unaware of a possible causal link between the vaccination and the
vaccinee's injury.
Petitioners' Letter, filed on September 29, 2016, does not include any information
demonstrating that lvana's Petition was timely filed, nor does it offer any explanation that
would suggest that equitable tolling is appropriate in this case. In fact, Petitioners' Letter
does not even mention Ivana or the onset of her alleged injury.
Accordingly, I conclude that Petitioners have failed to satisfy the requirements of
42 U.S.C. § 300aa-16(a)(2), and therefore the Petition must be dismissed as untimely
filed.
IV
CONCLUSION
It is, of course, very unfortunate that Ivana suffers from a debilitating chronic
condition. She is certainly deserving of sympathy for that condition. As the above
discussion indicates, however, I have no choice but to conclude that this petition must be
dismissed, because it was not timely filed. Absent a timely motion for review of this
Decision, the Clerk of this Court shall enter judgment accordingly.
IT IS SO ORDERED.
George L. Hastings, Jr.
Special Master
5

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DOCUMENT 2: USCOURTS-cofc-1_16-vv-01044-1
Date issued/filed: 2017-04-06
Pages: 9
Docket text: JUDGE VACCINE UNREPORTED OPINION (public version of 3/10/17 14 Opinion). Signed by Senior Judge Lynn J. Bush. (dls) Copy to parties.
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Case 1:16-vv-01044-LJB Document 16 Filed 04/06/17 Page 1 of 9
ORIGIt\|AI.
llntlst @nitr! $tutBg @ourt of febersl @taims
No. l6-1044 V
FILED
(Filed April 6,2017],'
-
APR 6 20t7
UNPUBLISHED
.H"?,l?'&lP,,i.
* d.,k,k,k't,k * * * d,,k,l,k *,k,t,k,t * * *,t,1.
and *
APRISES PHILLIPS
of *
IVAN PHILLIPS, SR., parents
Ivana Phillips, a minor,
* National Childhood Vaccine
Petitioners,
* Injury Act of 1986,42 U.S.C.
* 300aa-l to -34 (2012);
$$
* Untimely Petition under 42
AND * 'I'',JS' .C. $ 300aa-16(a)(2).
SECRETARY OF HEALTH
SERVICES.
HUMAN !K
*
Respondent. *
* * * * * * * * * * * *,1. *,k,k'i'i r* * *< * *,1.
Aprises Phillips and Ivan Phillips, Sr., Chelsea, AL, pro se petitioners.
Ryan D. Pyles,United States Department of Justice, with whom were
Joyce R. Branda, Acting Assistant Attomey General, C. Salvatore D'Alessio,
Acting Director, Catherine E. Reeves, Deputy Director, and Heather L. Pearlman,
Assistant Director, Washington, DC, for respondent-
OPINION
BUSH, Senior Judge.
'/ Pwsuant to Rule l8(b) of Appendix B of the Rules of the United States Court of Federal
Claims, this opinion was initially filed under seal on March 10,2017. Pursuant to 4 of the
U
ordering language, the parties were to propose redactions of the information contained therein on
or before March24,2017. No proposed redactions were submitted to the court.

Case 1:16-vv-01044-LJB Document 16 Filed 04/06/17 Page 2 of 9
Now pending before the court is petitioners' motion for review of the special
master's dismissal of their petition for compensation under the National Childhood
Vaccine Injury Act of 1986, 42 U.S.C. gg 300aa-1 to -34 (2012) (the Vaccine Act).
See Phillips ex rel. Phillips v. Sec'y of Health & Human,Servs., No. l6-1044Y,
2016 WL 7636929 (Fed. Cl. Spec. Mstr. Nov. 29, 2016) (Opin.).2 Petitioners seek
compensation on behalfoftheir daughter Ivana, who allegedly developed
encephalopathy and developmental difficulties as a result ofvaccinations
administered to her brother Ivan on August 25, 2008 and December 3 1, 2008. The
special master dismissed the petition as untimely under 42 U.S.C. $ 300aa-
l6(a)(2), based on the special master's finding that Ivana first displayed symptoms
ofher alleged vaccine-related injuries more than three years before the filing ofthe
petition on August 23,2016. The court, finding no elror in the special master's
findings of fact or conclusions of law, denies petitioners' motion for review and
sustains the dismissal of this case.
BACKGROUND3
Factual Background
Ivana was bom on December 18, 2008. When she was two weeks old her
brother Ivan, on December 3 1, 2008, was inoculated for the second time with the
MMR (measles-mumps-rubella) vaccine. Her parents allege that Ivana came down
with measles at that time, in January 2009, through exposure to her brother, and
suffered a vaccine-related injury as a result. Pet. at 2. Although there is no precise
diagnosis of Ivana's alleged vaccine-related injury in the petition, it might be
broadly summarized as an encephalopathy-related developmental injury. SeePet.
at 1 ("Effects of the[] encephalopathy include problems with fine and gross motor
skills/functioning, behavior(psychological), and learning(cognitive)."). The
petition acknowledged that Ivana's symptoms occurred more than three years
before the petition was filed, and requested that the Office of Special Masters of
'/ The court cites to the pages of the opinion posted on this court's website on January 3,
2017, not to the pagination of the Westlaw version of the document.
'/ These facts are taken lrom the petition and other documents filed in this case by petitioners.
The court makes no findings of facts in this opinion.

Case 1:16-vv-01044-LJB Document 16 Filed 04/06/17 Page 3 of 9
the Vaccine Program of this court "extend the deadline for filing this case." 1d at
2.
IL
Procedural History
Petitioners filed their petition for compensation under the Vaccine Act on
August 23,2016. They supplemented the petition with a letter which explained
their delay in filing the petition; petitioners specifically noted that they "had no
idea that the National Vaccine Injury Compensation Program existed." Letter of
Sept. 29, 2016. Petitioners attempted to excuse the untimeliness of the petition by
citing their difficulties in navigating the health care system and their lack of
knowledge of the Vaccine Act's compensation program. Id. ln their letter and in
their petition, Ivana's parents also reported that at least two of their children's
doctors had assured them the MMR vaccine was not the cause of their children's
developmental problems. Id.;Pet. at2. The special master considered petitioners'
plea "to extend the deadline for filing this case," Pet. at2, to be a request to
equitably toll the Vaccine Act's statute of limitations.
The special master found that the symptoms of any vaccine injury that Ivana
suffered, in January 2009, were manifest well before the thirty-six month
limitations period providedby 42 U.S.C. $ 300aa-16(a)(2). Opin. at 4. The special
master considered the petition and supplemental letter to include a plea that he
equitably toll the Vaccine Act's statute of limitations. Id. The special master
declined to toll the statute of limitations embodled in 42 U.S.C. $ 300aa- l6(a)(2).
Relying on the binding precedent of Cloer v. Secretary of Health & Human
Services,654 F.3d 1322 (Fed. Cir. 20ll) (en banc), he found that ignorance of the
Vaccine Act and vaccine injury causation theories does not excuse the failure to
file a timely petition for compensation under the Act. The petition in this case was
dismissed as untimely on November 29,2016 by order of the special master.
Petitioners filed theirpro se motion for review of that dismissal on
December 28,2016. The government's response to their motion was filed on
January 24,2017. Petitioners' motion is therefore ripe for review.a
o/
On February 23, 2017, petitioners filed a document titled "Election to File a Civil Action."
Ifthe court understands the overall intent of this document, which is not easy to decipher,
(continued...)

Case 1:16-vv-01044-LJB Document 16 Filed 04/06/17 Page 4 of 9
DISCUSSION
I.
Standards ofReview
This court has jurisdiction to review the decision of a special master in a
Vaccine Act case. 42 U.S.C. $ 300aa-12(e)(2). This court uses three distinct
standards of review in Vaccine Act cases, depending upon which aspect of a
special master's judgment is under scrutiny:
These standards vary in application as well as degree of
deference. Each standard applies to a different aspect of
the judgment. Fact findings are reviewed . . . under the
arbitrary and capricious standard; legal questions under
the "not in accordance with law" standard; and
discretionary rulings under the abuse ofdiscretion
standard.
Munnv. Sec'y of Dep't of Health & Human Servs.,970 F.2d 863, 870 n.10 (Fed.
Cir.1992).
The arbitrary and capricious standard of review, applied to the special
master's factual findings, is limited in scope and is highly deferential. Lampe v.
Sec'y of Health & Human Servs.,2l9 F.3d 1357, 1360 (Fed. Cir. 2000). For legal
questions, the court reviews the special master's conclusions de novo, without
deference. Averav. Sec'y of Health & Human Servs., 515 F.3d 1343, 1347 (Fed.
Cir. 2008); Saunders v. Sec'y of Dep't of Health & Human Servs.,25 F.3d 1031,
1033 Ged. Cir. 1994).
(...continued)
if
petitioners therein attempt to elect to pursue a vaccine injury claim in another forum, but only
a deadline for such an election is imminent. The document references a "Judgment" filed on
January 24,2017. The govemment's response brief was filed on January 24,2017. That
document is not ajudgment. Only the Clerk's Office of this court can enter ajudgment; when
judgment is entered, petitioners will receive notice of that fact.
Pursuant to Vaccine Rule 12, an election "to file a civil action for damages" must occur
"[w]ithin 90 days after the entry ofjudgment." This opinion directs the Clerk of the Cout to
enterjudgment in this case. The court cannot advise petitioners on the "election" mentioned in
Vaccine Rule I 2. To elect, or not to elect, to file a civil action for damages is their choice alone.

Case 1:16-vv-01044-LJB Document 16 Filed 04/06/17 Page 5 of 9
In this case, the court reviews the special master's factual findings as to the
timing of Ivana's first symptoms of an encephalopathy-related developmental
injury under the deferential arbitrary and capricious standard. See, e.g., Carson ex
rel. Carsonv. Sec'y of Health & Human Servs.,727 F.3d 1365, 1369 (Fed. Cir.
2013) (affirming a special master's fact findings as to symptom onset under the
arbitrary and capricious standard). By contrast, the special master's interpretation
and application of the Vaccine Act's statute of limitations present questions of law
which the court reviews de novo. Goetz v. Sec'y of Health & Human Servs., 45
Fed. Cl. 340,341(1999), aff'd,4 F. App'x 827 (Fed. Cir. 2001).
II. The Special Master Did Not Err in Dismissing the Petition as Untimely
Pursuant to the Vaccine Act's limitations provision, "no petition may be
filed for compensation under the Program for vaccine-related] injury after the
[a
expiration of36 months after the date ofthe occurrence ofthe first symptom or
manifestation of onset or the significant aggravation of such injury." 42 U.S.C.
$ 300aa-16(a)(2). The special master found that Ivana's first symptoms of an
alleged vaccine-related injury occurred in January 2009, more than 36 months
before the petition was filed in this case. Petitioners do not attempt to refute this
factual finding, and the record before the special master supports that finding as to
the onset of Ivana's symptoms.5 Thus, under the arbitrary and capricious standard
applicable here, Munn,970 F.2d at 870 n.10, the special master's finding that the
petition filed in this case was untimely under 42 U.S.C. $ 300aa-16(a)(2) must be
sustained.
The only real dispute before the court, then, is whether the special master
erred when he did not equitably toli the limitations period for the filing of the
petition in this case. Following Cloer, the special master found that petitioners'
allegation that they were unaware of the Vaccine Act's compensation program
during the first three years oflvana's alleged vaccine injury was not sufficient
reason to equitably toli 42 U.S.C. $ 300aa- 16(a)(2). See Opin. at 5 (commenting
that the limitations period is not "contingent on when a Petitioner becomes aware
of the existence of the Vaccine Program"). Again applying Cloer, the special
master held that petitioners' delayed investigation ofa causal iink between Ivan's
'/ Ivana's measles episode in January 2009 is alleged to have caused encephalopathy,
although the precise date ofthe encephalopathy is not provided in the petition.

Case 1:16-vv-01044-LJB Document 16 Filed 04/06/17 Page 6 of 9
MMR vaccinations and Ivana's alleged injury, purportedly delayed because of
reassurances from their children's pediatricians, also was not cause to equitably toll
the statute of limitations. Id. ln the court's view, the special master's application
of the law of equitable tolling, as expressed in Cloer, is unassailable.
Three aspects of the Cloer decision are relevant to this question. First, the
United States Court of Appeals for the Federal Circuit, acting en banc, construed
the Vaccine Act to not include a "discovery rule," under which the limitations
period could vary depending on the date a vaccinee discovered the causal link
between his or her health condition and a particular vaccination. 654 F.3d at 1340.
While discussing this issue, the Federal Circuit stated: "In our view the personal,
plaintiff-oriented approach ofa discovery rule is antithetical to the simple,
symptom-keyed test expressly required by the Vaccine Act's text." Id. Congress,
according to Cloer, intended the Vaccine Program to be simple and easy to
administer, and for the results of the compensation program to be the same for
/d
similarly-situated vaccinees. Congress did not intend compensation outcomes
to "vary widely based on each plaintiff s personal circumstances." Id. This
passage in Cloer counsels against tolling the limitations period for Vaccine Act
petitions to accommodate the date a petitioner discovers that the Vaccine Program
exists or the date that petitioners discover information, accurate or inaccurate,
linking vaccinations to the symptoms experienced by their child. C/ Speights ex
rel. Speights v. Sec'y of Health & Human Servs., No. 03-2619y,2013 WL
5944084,at*73 & n.36 (Fed. Cl. Spec. Mstr. Oct. 17,2013) (holdingthat
if
Congress did not intend for the Vaccine Act's statute of limitations to be tolled
the only justification for tolling was that a petitioner had not received information
about the Vaccine Act's compensation program at the time of vaccination (citing
Cloer,654 F.3d at 1327)).
A second passage in Cloer is even more inhospitable to petitioners' request
for equitable tolling. Citing a number of cases where the equitable tolling of
statutes of limitation was contemplated, the Federal Circuit noted that the
application of equitable tolling is limited to extraordinary circumstances, such as a
timely but ineffective filing of a defective pleading, a fiiing prevented by fraud or
duress, or where the diiigent pursuit of a legal right was delayed by unusual
circumstances . Cloer, 654 F.3d at 1344-45 & n.1 1 (citations omitted). Equitable
tolling in Vaccine Act cases, pursuant to Cloer, is a doctrine with "stringent
requirements." Id. at 1345 n. 1 1. Here, petitioners' excuse for not filing a timely
6

Case 1:16-vv-01044-LJB Document 16 Filed 04/06/17 Page 7 of 9
Vaccine Act petition is simply that they were unaware of the Vaccine Program, or
that their pediatricians did not believe that Ivana's developmental problems could
be traced to Ivan's MMR vaccinations. The special master correctly held that
und,er Cloer, ignorance of the Vaccine Act and theories linking vaccinations to
developmental problems is not sufficient to justifu the equitable tolling of 42
U.S.C. $ 300aa-16(a)(2).
Third, and equally damning to petitioners' request, is the Federal Circuit's
application of the equitable tolling analysis to the facts of Cloer. Dr. Melissa Cloer
requested equitable tolling in that proceeding because she was only alerted to a
possible link between her multiple sclerosis and her Hepatitis-B vaccine in2004,
whereas her first symptom of the disease was seen in 1997. She argued that it was
"inequitable and unfair to hold her to the 36 month filing period when she had no
reason to know, before 2004, ofthe causal link between her injury and the Hep-B
vaccine." Cloer, 654 F.3d at 1344. The Federal Circuit rejected this argument
because Dr. Cloer had not cited any extraordinary circumstances preventing her
from filing a timely Vaccine Act petition. Id. at 1344-45.
In doing so, the Federal Circuit rejected Dr. Cloer's "unfair result because
she had no reason to know" equitable tolling argument. Although Dr. Cloer
contended that it was inequitable and unfair to be deprived ofaccess to Vaccine
Act compensation due to a lack of information at the time of the onset of the
alleged injury, the Federal Circuit did not agree that Dr. Cloer's argument justified
equitable tolling in that case. Id. at 1344. Here, too, petitioners state that it is
unfair to deprive Ivana of vaccine Act compensation because the vaccine Act and
vaccine-injury causation theories were untnown to her family at the crucial time.
Mot. for Review at 1.
The Cloer decision, however, makes it clear that lack of information
essential to a Vaccine Act claim is not sufficient, in itself, to justifu equitable
tolling of 42 U.S.C. g 300aa-16(a)(2). See 654 F.3d at 1345 (denying Dr. Cloer,s
appeal, in part, because of "Dr. Cloer's failure to point to circumstances that could
justifu the application of equitable tolling ro forgive her untimely claim").
Ignorance ofthe provisions ofthe Vaccine Act has repeatedly been held to be
insufficient to justifz equitable tolling of the limitations period in 42 U.S.C.
$ 300aa-16(a)(2). See Maack v. Sec'y of Health & Human Servs., No. l2-354V,
*5
2013 WL 4718924, at (Fed. Cl. Spec. Mstr. Aug. 6,2013) (.,A petitioner's lack

Case 1:16-vv-01044-LJB Document 16 Filed 04/06/17 Page 8 of 9
of knowledge of the law does not constitute an extraordinary circumstance
permitting equitable tolling of the statute of limitations." (c\t|ngCloer,654 F.3d at
l3aa-al); Johnston v. Sec'y of Health & Human Servs., No. I I -7 96V, 20 1 3 WL
*5
664709, at (Fed. Cl. Spec. Mstr. Jan. 31,2013) ("To endorse the argument that
ignorance of the law thereby tolls the application of the Vaccine Act limitations
period would not be consistent with the Federal Circuit's teaching fin Cloer) that
the equitable tolling doctrine is to be applied 'sparingly."'); Andersonv. Sec'y of
*4
Health & Human ^lervs., No. l2-16Y,2013 WL 691003, at (Fed. Cl. Spec.
Mstr. Jan. 29,2013) ("It is well-established that a petitioner's lack of knowledge of
the law does not constitute an extraordinary circumstance justiffing equitable
tolling of the statute of limitations.") (citing cases).
Nor is equitable tolling available simply because a doctor advised parents
that there was no causal link between a vaccination and the child's alleged vaccine
injury. See, e.g., Powers v. Sec'y of Health & Human.Servs., No. 14-ll95V ,2016
WL 1 73 0 I 89, at * 5 (Fed. Cl. Spec. Mstr. Apr. 8, 20 I 6) (holding that the alleged
failure of doctors to diagnose a child's "condition as a vaccine injury" is irrelevant
to the equitable tolling inquiry under Cloer); Goetz,45 Fed. Cl. at 343 (finding that
equitable tolling did not apply even where the filing of a Vaccine Act claim was
"persistently thwarted by [allegedly] incorrect information from doctors"). Under
the de novo standard of review applicable here, Munn,970 F.2d at 870 n.10, the
court sustains the special master's decision that petitioners failed to identifi,'
extraordinary circumstances which would justiff the equitable tolling of the
limitations period in 42 U.S.C. g 300aa- 6(a)(2).
1
CONCLUSION
For the foregoing reasons, the court finds no error in the special master's
dismissal of petitioners' claim as untimely under 42 U.S.C. $ 300aa-16(a)(2).
Accordingly, it is hereby ORDERED that
(1) Petitioners' Motion for Review, filed December 28,2016,is
DENIED;
(2) The decision of the special master, filed November 29,2016, is
SUSTAINED;

Case 1:16-vv-01044-LJB Document 16 Filed 04/06/17 Page 9 of 9
(3) The Clerk's Office is directed to ENTER final judgment in
accordance with the special master's decision of November 29,2016;
and
(4) The parties shall separately FILE any proposed redactions to this
opinion, with the text to be redacted clearly marked out or otherwise
indicated in brackets, on or before March 24,2017
.
J.B
or Judge