VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_16-vv-01046
Package ID: USCOURTS-cofc-1_16-vv-01046
Petitioner: Aprises Phillips and Ivan Phillips, Sr.
Filed: 2016-08-23
Decided: 2017-04-06
Vaccine: MMR
Vaccination date: 2008-08-25
Condition: encephalopathy and developmental difficulties
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Aprises Phillips and Ivan Phillips, Sr. filed a petition on August 23, 2016, on behalf of their son, Ivan Phillips, alleging he suffered vaccine-related injuries, including encephalopathy and developmental difficulties, after receiving MMR vaccinations on August 25, 2008, and December 31, 2008. Ivan Phillips was born on February 19, 2007. The petition stated that after the August 25, 2008 vaccination, Ivan stopped developing normally and experienced regression, with symptoms resembling autism, including problems with motor skills, behavior, and learning. The petition also claimed that a second MMR vaccination on December 31, 2008, caused him to become ill again and increased his developmental problems. The petitioners stated that their pediatrician, Dr. James Womack (later identified as Wamack), informed them that the MMR vaccine could not have caused these problems. They also noted that Dr. Anne Stafford of Midtown Pediatrics examined Ivan on May 24, 2010, documented measles symptoms, and referred him for an autism evaluation. The petitioners asserted that their delay in filing was due to a lack of knowledge about the National Vaccine Injury Compensation Program and difficulties in obtaining medical records. The Special Master ordered the petitioners to show cause why the petition should not be dismissed as untimely. In response, the petitioners argued for an extension of the deadline due to their ignorance of the program and medical assurances that the MMR vaccine was not the cause. The Special Master dismissed the petition, finding it was filed more than seven years after the first symptoms appeared in 2008, and that ignorance of the program or medical opinions about causation did not constitute extraordinary circumstances for equitable tolling. The Special Master's decision was issued on November 28, 2016. The petitioners filed a motion for review of this decision. On April 6, 2017, Senior Judge Lynn J. Bush of the U.S. Court of Federal Claims affirmed the Special Master's decision, denying the motion for review and sustaining the dismissal. The court found that the petition was filed outside the 36-month statute of limitations, as Ivan's symptoms first became apparent between 2008 and 2010. The court also held that the petitioners' lack of knowledge of the Vaccine Act and the medical opinions they received did not meet the stringent requirements for equitable tolling of the statute of limitations, citing the precedent set in Cloer v. Secretary of Health & Human Services. The court directed the Clerk's Office to enter final judgment in accordance with the Special Master's decision.

Theory of causation field:
Petitioners Aprises Phillips and Ivan Phillips, Sr. filed a petition on August 23, 2016, alleging that their son, Ivan Phillips, born February 19, 2007, suffered encephalopathy and developmental difficulties following MMR vaccinations on August 25, 2008, and December 31, 2008. The petition alleged symptom onset and regression between 2008 and 2010, with symptoms resembling autism. The Special Master dismissed the petition as untimely under 42 U.S.C. § 300aa-16(a)(2), finding the petition was filed more than seven years after the first symptoms appeared. The U.S. Court of Federal Claims affirmed the dismissal, holding that the symptoms manifested between 2008-2010, well outside the 36-month statute of limitations. The court rejected the petitioners' request for equitable tolling, citing Cloer v. Secretary of Health & Human Services, and determined that ignorance of the National Vaccine Injury Compensation Program and medical assurances regarding causation did not constitute extraordinary circumstances for tolling. No specific medical experts were named in the provided text, and the theory of causation was not elaborated upon beyond the petitioners' allegations and the rejection of equitable tolling. The case was dismissed by Special Master George L. Hastings, Jr., and affirmed by Senior Judge Lynn J. Bush. Attorneys for the petitioners were pro se, and Ryan Pyles represented the respondent. The decision date for the Special Master was November 28, 2016, and the court's opinion was issued on April 6, 2017.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_16-vv-01046-0
Date issued/filed: 2017-01-03
Pages: 5
Docket text: PUBLIC DECISION (Originally filed: 11/28/2016) regarding 8 DECISION of Special Master. Signed by Special Master George L. Hastings. (kh) Copy to parties.
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Case 1:16-vv-01046-LJB Document 12 Filed 01/03/17 Page 1 of 5
REISSUED FOR PUBLICATION
JAN 3 2017
ffiffiiGINIAL
OSM
U.S. COURT OF FEDERAL CLAIMS
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OFFICE OF SPECIAL MASTERS
No. l6-1046V
Filed: November 28, 201 6
(Not for publication)
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APRISES PHILLIPS and,
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IVAN PHILLPS, SR., .
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of Ivan Phillips, a Decision to Dismiss;
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Statute of Limitations;
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Untimely Filed
SECRTTARYOFHEALTHAND *
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Aprises Phillips and lvan Phillips, Sr., Chelsea, AL, pro se Petitioners.
Ryan Pyles, U.S. Department ofJustice, IYashington, DC, for Respondent.
DECISION
HASTINGS, Special Master.
This is an action seeking an award under the National Vaccine Injury
Compensation Program (hereinafter the "Program"-- see 42 U.S.C. $ 300aa-10 et seq.t).
For the reasons stated below, I conclude that the Petition must be dismissed because the
Petition was not timely filed.
'
The applicable statutory provisions defining the Program are found at 42 U.S.C.
$
300aa-10 et seq. (2012 ed.). Hereinafter, for ease ofcitation, all "$" references will be to
42 U.S.C. (2012 ed.). I will also sometimes refer to the statutory provisions defining the
Prosram as the "Vaccine Act."

Case 1:16-vv-01046-LJB Document 12 Filed 01/03/17 Page 2 of 5
I
APPLICABLE ST A TUTORY PROVISION
The statutory deadlines for filing Program petitions are provided at § 300aa-l 6.
With respect to vaccinations administered after October 1, 1988, as were the vaccines 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, Ap rises Phillips and Ivan Phillips, Sr. ("Petitioners"), acting
prose, filed a Petition alleging that their son, Ivan Phillips, was injured by a vaccine or
vaccines listed on the Vaccine Injury Table. See§ 14. The Petition stated that Ivan's
"corresponding records" would be filed to support the claim (Petition, p. 2); however, no
medical records have been filed.
Ivan Phillips was born on February 19, 2007. (Petition, p. 2.) Petitioners claim
that after receiving several vaccinations on August 25, 2008, including the MMR
(measles-mumps-rubella) vaccination, Ivan became ill and stopped developing normally
in some ways. (Id., p. 1.) The Petition also claims that on December 31, 2008, Ivan
received a second MMR vaccination, "which caused him to get sick again," and his
developmental problems increased. (Id.) Based on these allegations, Petitioners argue
that they are eligible for compensation "under the Vaccine Injury Compensation
Program, for injuries, including encephalopathy, resulting from adverse effects of
vaccinations." (Id.) The effects of the alleged encephalopathy "include problems with
fine and gross motor skills/functioning, behavior (psychological), and learning
(cognitive)'', as well as "recurrent infections." (Id.) Petitioners contend that Ivan's
adverse symptoms resemble autism, and persisted for more than six months. (Id., p. 2.)
Petitioners state that the treating pediatrician, Dr. James Womack,3 informed them
that "the MMR vaccine couldn't have caused the problems listed above, nor autism like
2
See § 300aa-l 6(a)(2)("ln 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 Subsequently, Petitioners, in their document filed on September 29, 2016, stated
that the doctor's name is Wamack, not Womack.
2

Case 1:16-vv-01046-LJB Document 12 Filed 01/03/17 Page 3 of 5
behavior." (Petition, p. 2.) Further, the Petition states that "[f]or a long time we were led
to believe that the MMR vaccinations weren't the cause for [Ivan's] injuries." (Id.)
Petitioners assert 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.4 (Id.) For this reason, and other delays related to
obtaining medical records and scheduling medical appointments, the Petition was not
filed until August 23, 2016. (Id.)
After reviewing the Petition, I filed an Order requiring Petitioners to show cause
why their Petition should not be dismissed as untimely filed. (Order to Show Cause, filed
Aug. 30, 2016.) Thus, Petitioners were directed to provide information or an explanation,
on or before September 29, 2016, demonstrating that their Petition was filed within the
time period allowed by the Vaccine Act. (Id., p. 3.)
On September 29, 2016, Petitioners filed a statement in response to my Order to
Show Cause. (See Pet. Response, ECF No. 5, Sept. 29, 2016.)
III
DISCUSSION
Petitioners contend that because Ivan received an MMR vaccination and other
vaccinations on August 25, 2008, "he got sick and stopped developing normally in some
areas." (Petition, p. 1 .) They allege that Ivan "stopped eating and talking" after these
vaccinations. (Id., p. 2.) Petitioners also claim that the MMR vaccination that Ivan
received on December 31, 2008, "caused him to get sick again, and he stopped
developing normally in other areas." (Id, p.l.) They allege that Ivan "showed regression
after both rounds of vaccinations." (Id.)
In a later filing, Petitioners discuss medical records that allegedly document
another episode when Ivan exhibited "measles symptoms that he was having on 5/13/10
as well as autism vs. speech delay." (Pet. Response, ECF No. 5, Sept. 29, 2016.)
Petitioners also allege that Dr. Anne Stafford of Midtown Pediatrics in Birmingham,
Alabama, examined Ivan on May 24, 2010, documented his measles symptoms, and
4 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) ajj"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), aff'd, 604 F.3d 1343 (Fed. Cir. 2010); Snyder v. HHS, No. Ol-162V, 2009
WL 332044 (Fed. Cl. Spec. Mstr. Feb. 12, 2009), aff'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-01046-LJB Document 12 Filed 01/03/17 Page 4 of 5
referred him to Children's Medical Autism Clinic for an evaluation.5 (Id.) Thus,
according to Petitioners' own representations, all of I van's symptoms, which Petitioners
allege were caused by vaccines, first became apparent during the years 2008 to 2010.
The Vaccine Act, at§ 300aa-16(a)(2), requires that a Program petition with
respect to a vaccination that was administered after October I, 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 oflvan's symptoms, in 2008. Therefore, under a
straightforward application of§ 300aa-16(a)(2), this petition is clearly time-barred.
The Petition acknowledges that Ivan's symptoms appeared more than 36 months
before the Petition was filed, but requests that I "extend the deadline for filing this case."
(Petition, p. 2.) Further, Petitioners' Response to the "show cause order" argues that they
were unable to file their Petition earlier because they "had no idea that the National
Vaccine Injury Compensation Program existed." (Pet. Response, ECF No. 5, Sept. 29,
2016.)
The "extension" of the filing deadline that Petitioners desire could be considered a
request for "equitable tolling" of the Vaccine Act's statute of limitations. Such tolling,
however, is allowed only in very limited circumstances. Cloer v. HHS, 654 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 occurrence 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' Response to the "show cause order" filed on August 30, 2016, does
not include any information demonstrating that their Petition was timely filed, nor does it
offer any explanation that would suggest that equitable tolling is appropriate in this case.
(See Pet. Response, ECF No. 5, Sept. 29, 2016.)
5 As noted previously, the medical records of Dr. Wamack, Dr. Stafford, and
others, which have been cited by Petitioners, have not been filed.
4

Case 1:16-vv-01046-LJB Document 12 Filed 01/03/17 Page 5 of 5
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.
III
CONCLUSION
It is, of course, very unfortunate that Ivan suffers from a debilitating chronic
condition. He 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-01046-1
Date issued/filed: 2017-04-06
Pages: 9
Docket text: JUDGE VACCINE UNREPORTED OPINION (public version of 3/10/17 15 Opinion). Signed by Senior Judge Lynn J. Bush. (dls) Copy to parties.
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Case 1:16-vv-01046-LJB Document 17 Filed 04/06/17 Page 1 of 9
OREGE[{AL
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No. 16-1046 V
(Filed April 6,2017)l FILED
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UNPUBLISHED APR 6 2017
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* National Childhood Vaccine
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* Injury Act of 1986, 42 U.S.C.
* $$ 300aa-l to -34 (2012);
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Untimely Petition under 42
AND * U.S.C. g 300aa-16(a)(2).
SECRETAR' OF HEALTH
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Respondent. ;
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Apris es P hillips and Ivan P hillips, Sr., Chelsea, AL, pro se petitioners.
Ryan D. Pyles,United States Department of Justice, with whom were
Joyce R. Branda, Acting Assistant Attorney 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.
r/
Pursuant to Rule 18(b) ofAppendix B ofthe Rules of the United States court ofFederal
claims, this opinion was initially filed under seal on March 10,201j. pursuant to fl 4 of the
ordering language, the parties were to propose redactions ofthe information contained therern on
or before March24,2017. No proposed redactions were submitted to the court.

Case 1:16-vv-01046-LJB Document 17 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. 16-1046V,
2016 WL 7636932 (Fed. Cl. Spec. Mstr. Nov. 28, 2016) (Opin.).2 Petitioners seek
compensation on behalf of their son Ivan, who allegedly developed encephalopathy
and developmental difficulties as a result of vaccinations administered on August
25,2008 and December 31, 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 Ivan first displayed symptoms of his alleged vaccine-related injuries more than
three years before the filing of the petition on August 23,2016. The court, finding
no error in the special master's findings of fact or conclusions of law, denies
petitioners' motion for review and sustains the dismissal of this case.
BACKGROUND'
Factual Background
Ivan was born on February 19,2007. When he was eighteen months old he
received a number of vaccinations, including the MMR (measles-mumps-rubella)
vaccine, all administered on August 25,2008. According to his parents, he then
stopped developing normally. Later that year, on December 3 1, 2008, Ivan had a
second MMR vaccination, which allegedly caused another round of developmental
problems, described by his parents as "regression." Pet. at 1. Although there is no
precise diagnosis of Ivan's alleged vaccine-related injury in the petition, it might
be broadly summarized as an encephalopathy-related developmental injury. The
petition acknowledged that Ivan's symptoms occurred more than three years before
the petition was filed, and requested that the Office of Special Masters of the
Vaccine Program of this court "extend the deadline for filine this case." Id. at 2.
U.
Procedural History
-'/ The court cites to the pages ofthe 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 from the petition and other documents filed in this case bv petitroners.
The court makes no findings of facts in this opinion.

Case 1:16-vv-01046-LJB Document 17 Filed 04/06/17 Page 3 of 9
Petitioners filed their petition for compensation under the Vaccine Act on
August 23,2016. On August 30,2016, the special master ordered petitioners to
show cause why their claim should not be dismissed as untimely pursuant to 42
U.S.C. $ 300aa-16(a)(2). Petitioners responded on September 29,2016 with
additional factual allegations of Ivan's symptoms which were the subject of
medical appointments in 2010. The special master found that the symptoms of
Ivan's alleged vaccine injury became apparent in the time-frame of 2008-2010.
Opin. at 4.
The special master concluded that the symptoms of any vaccine injury that
Ivan suffered were manifest well before the thirty-six month limitations period
provided by 42 U.S.C. g 300aa-16(a)(2). Petitioners' response to the special
master's show cause order did not refute this finding, but 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.
LetterofSept.29,2016. Intheirletterandintheirpetition, Ivan'sparentsalso
reported that at least two of Ivan's doctors had assured them the MMR vaccine was
not the cause of Ivan'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 declined to toll the statute of limitations embodied in 42
U.S.C. S 300aa-16(a)(2). Relying on the binding precedent of Cloer v. Seoetary 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 on November 28,2016 by order of the special master.
Petitioners filed theirpro se motion for review of that dismissal on
December 28,2016. The govemment'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."
If the court understands the overall intent of this document, which is not easy to decipher,
petitioners therein attempt to elect to pursue a vaccine injury claim in another forum, but only if
a deadline for such an election is imminent. The document references a "Judgment" filed on
Jarnary 24,2017 . The government's response brief was hled on January 24,2017. That
(continued...)

Case 1:16-vv-01046-LJB Document 17 Filed 04/06/17 Page 4 of 9
DISCUSSION
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 ofa
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 of discretion
standard.
Munnv. Sec'y of Dep't of Health & Human Servs.,970 F.2d 863, 870 n.l0 (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. Ayera v. 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 103 l,
1033 (Fed. Cir. 1994).
In this case, the court reviews the special master,s factual findings as to the
timing of Ivan's first symptoms of an encephalopathy-related developmental injury
(...continued)
document is not ajudgment. only the clerk's office ofthis 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 o]the court to
enter judgment in this case. The court cannot advise petitioners on the "election" mentioned in
Vaccine Rule 12. To elect, or not to elect, to file a civil action for damages is their choice alone.

Case 1:16-vv-01046-LJB Document 17 Filed 04/06/17 Page 5 of 9
under the deferential arbitrary and capricious standard. See, e.g., Carson ex rel.
Carson v. 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 noyo. Goetz v. Sec'yof Health & Human Servs.,45
Fed. Cl. 340,341(1999), aff'd,4 F. App'x 827 (Fed. Cir.200l).
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 [a vaccine-related] injury after the
expiration of 36 months after the date of the occuffence of the 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 Ivan's symptoms of an alleged
vaccine-related injury occurred in the 2008-2010 time-frame, 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 Ivan's symptoms. Thus, under the arbitrary and capricious standard
applicable here, Munn,970F.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 toll 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 of Ivan's alleged vaccine injury was not sufficient
reason to equitably toll 42 U.S.C. g 300aa-16(a)(2). See Opin. at 4 (commenting
that the limitations period is not "contingent on when a petitioner becomes aware
of the existence of the Vaccine Program"). Again applyin g Cloer, the special
master heid that petitioners' delayed investigation of a causal link between Ivan's
MMR vaccinations and Ivan'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. rn the court's view, the special master's application
of the law of equitable tolling, as expressed in Cloer, is unassailable.

Case 1:16-vv-01046-LJB Document 17 Filed 04/06/17 Page 6 of 9
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 parlicular vaccination. 654 F.3d aI 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
similarly-situated vaccinees. 1d. congress did not intend compensation outcomes
to "vary widely based on each plaintiff s personal circumstances.', 1d 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 ch1td. cf. speights ex
rel. Speights v. Sec'y of Health & Human.lervs., No. 03-2619V .2013 WL
5944084, at*13 & n.36 (Fed. Cl. Spec. Mstr. Oct. 17,2Ol3) (holding that
congress did not intend for the vaccine Act's statute of limitations to be tolled if
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 filing prevented by fraud or
duress, or where the diligent pursuit of a legal right was delayed by unusual
.
circumstances cloer, 654 F.3d at 1344-45 & n.1 I (citations omitted). Equitable
tolling in Vaccine Act cases, pursuant to Cloer, is a doctrine with,,stringent
requirements." Id. at 1345 n. 1 I . Here, petitioners' excuse for not filing a timely
vaccine Act petition is simply that they were unaware of the vaccine program, or
that their pediatricians did not believe that Ivan's developmental problemJ could be
traced to his MMR vaccinations. The special master correctly held that under
Cloer, ignorance of the Vaccine Act and theories linkine vaccinations to
6

Case 1:16-vv-01046-LJB Document 17 Filed 04/06/17 Page 7 of 9
developmental problems is not sufficient to justifu the equitable tolling of 42
U.S.C. $ 300n-r 6(a)(2).
Third, and equally fatal 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, of the 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.
,,unfair
In doing so, the Federal Circuit rejected Dr. Cloer's result because
she had no reason to know" equitable tolling argument. Although Dr. Cloer
contended that it was inequitable and unfair to be deprived of access 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 Ivan of vaccine Act compensation because the vaccine Act and
vaccine-injury causation theories were unknown to his 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 justi$ 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 to forgive her untimely claim").
Ignorance of the provisions of the vaccine Act has repeatedly been held to be
insufficient to justifu equitable tolling of the limitations period in 42 U.S.C.
$ 300aa-16(a)(2). See Maackv. Sec'y of Health & HumanServs., No. l2-354y,
2013 WL 4718924, at *5 (Fed. Cl. Spec. Msrr. Aug. 6,2013) (,,A petitioner,s lack
of knowledge of the law does not constitute an extraordinary circumstance
permitting equitable tolling of the statute of limitations." (citingCloer,654 F.3d at
1344-a5); Johnston v. Sec'y of Health & Human Servs., No. ll-796V,2013 WL
*5
664709' at (Fed. cl. Spec. Mstr. Jan. 3l,2ol3) ("To endorse the argument that

Case 1:16-vv-01046-LJB Document 17 Filed 04/06/17 Page 8 of 9
ignorance of the law thereby tolls the application of the Vaccine Act limitations
period would not be consistent with the Federal Circuit's teaching lin Cloerf that
the equitable tolling doctrine is to be applied 'sparingly."'); Anderson v. Sec'y of
*4
Health & Human,Servs., No. l2-16V,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 justifuing 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 & HumanServs., No. l4-1195V,2016
WL 1730189, at *5 (Fed. Cl. Spec. Mstr. Apr. 8,2016) (holdingthatthe 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 appiicable here,, Munn, 970 F .2d at 870 n. 10, the
court sustains the special master's decision that petitioners failed to identifu
extraordinary circumstances which would justiff the equitabie tolling of the
limitations period in 42 U.S.C. g 300aa-16(a)(2).
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. g 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 28, 2016, is
SUSTAINED;
I il The Clerk's Office is directed to ENTER final judgment in
accordance with the special master's decision of November 28,2016;
ano

Case 1:16-vv-01046-LJB Document 17 Filed 04/06/17 Page 9 of 9
(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.
9