VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_18-vv-00120
Package ID: USCOURTS-cofc-1_18-vv-00120
Petitioner: K.G.
Filed: 2018-01-24
Decided: 2023-01-17
Vaccine: influenza
Vaccination date: 2011-10-12
Condition: Guillain-Barré syndrome (GBS) and/or Chronic Inflammatory Demyelinating Polyneuropathy (CIDP)
Outcome: compensated
Award amount USD: 117499

AI-assisted case summary:
K.G., a 48-year-old woman, received an influenza vaccine on October 12, 2011. She later filed a petition alleging that this vaccine caused her to develop Guillain-Barré syndrome (GBS) and/or Chronic Inflammatory Demyelinating Polyneuropathy (CIDP). The initial decision in this case, filed on November 5, 2018, dismissed the petition as untimely. The court found that K.G.'s claim accrued no later than February 2012, and the three-year statute of limitations would have expired in February 2015. While K.G. argued for equitable tolling due to mental incapacity from November 2012 to May 2016, the court determined that tolling should have ceased in March 2014 when her sister was appointed as her legal guardian, who had the authority to file a claim on her behalf. The court also noted that even if the claim were considered under the recent Table amendment for GBS, it failed because the medical evidence overwhelmingly supported a CIDP diagnosis, which is an exclusionary criterion for GBS under the Table, and the onset of symptoms was outside the Table's timeframe. K.G. appealed this dismissal. On March 6, 2019, the Court of Federal Claims affirmed the Special Master's decision, holding that equitable tolling does not continue once a legal guardian is appointed, as the guardian has the statutory authority to file a claim. The court emphasized that the Vaccine Act provides for legal representatives to act on behalf of disabled individuals and does not contain a savings clause that would extend tolling beyond the guardian's appointment. Ultimately, the court found that the petition was filed well after the statute of limitations expired, even with the period of mental incapacity without a guardian considered. However, a subsequent decision on January 17, 2023, shows that the parties reached a stipulation to settle the case. Respondent denied causation but agreed to compensation. The stipulation awarded K.G. a lump sum of $102,941.76, plus $14,558.24 to satisfy a State of Iowa Medicaid lien, for a total award of $117,499. This settlement resolved all claims related to the alleged vaccine injury.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_18-vv-00120-1
Date issued/filed: 2018-11-05
Pages: 17
Docket text: PUBLIC DECISION (Originally filed: 8/17/2018) Regarding 42 DECISION of Special Master (Signed by Special Master Brian H. Corcoran). (cr) Service on parties made.
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Case 1:18-vv-00120-MCW Document 50 Filed 11/05/18 Page 1 of 17
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-120V
(to be published)
* * * * * * * * * * * * * * * * * * * * * * * * *
K.G., * Special Master Corcoran
*
*
Petitioner, * Filed: August 17, 2018
*
v. *
* Influenza Vaccine; Guillain-Barré
SECRETARY OF HEALTH * Syndrome; Chronic Inflammatory
AND HUMAN SERVICES, * Demyelinating Polyneuropathy;
* Table Claim; Limitations Period;
Respondent. * Equitable Tolling; Mental Incapacity
*
* * * * * * * * * * * * * * * * * * * * * * * * *
Thomas Reavely, Whitfield & Eddy, P.L.C., Des Moines, IA, for Petitioner.
Voris Johnson, U.S. Dep’t of Justice, Washington, DC, for Respondent.
DECISION DISMISSING CASE AS UNTIMELY1
On January 24, 2018, K.G. filed a petition seeking compensation under the National
Vaccine Injury Compensation Program.2 The petition alleges that an influenza (“flu”) vaccine
K.G. received on October 12, 2011, caused her to experience Guillain-Barré syndrome (“GBS”)
and/or Chronic Inflammatory Demyelinating Polyneuropathy (“CIDP”). See Petition (“Pet.”)
(ECF No. 1) at 9-10.
1 This Decision will be posted on the Court of Federal Claims’ website in accordance with the E-Government Act of
2002, 44 U.S.C. § 3501 (2012). This means the ruling will be available to anyone with access to the internet. As
provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the Decision’s inclusion of certain
kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen days within which
to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial
in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of
which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the Decision in
its present form will be available. Id.
2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”).
Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).

Case 1:18-vv-00120-MCW Document 50 Filed 11/05/18 Page 2 of 17
K.G. seeks an entitlement award based upon an injury she alleges was caused by a
vaccine administered seven years ago – raising the question of whether the claim is time-barred
under the Program’s three-year limitations period for bringing claims. Section 16(a)(2). The
Petition forthrightly acknowledges the above, but argues that K.G. was mentally incapacitated
for almost four years (from 2012 until 2016), thereby establishing grounds for equitable tolling
of the limitations statute. I directed the parties to brief the merits of Petitioner’s equitable tolling
argument. See Order, dated March 20, 2018 (ECF No. 9). Petitioner filed a brief in support of her
position on June 14, 2018 (ECF No. 36) (“Brief”), Respondent opposed that position and
requested dismissal on July 12, 2018 (ECF No. 37) (“Opp.”), and then Petitioner filed a reply,
dated July 19, 2018 (ECF No. 38) (“Reply”).
Having reviewed the parties’ submissions, I hereby determine that Petitioner’s claim is
untimely, and also that she has not established a basis for equitable tolling of the limitations
period. As discussed in greater detail below, although there exists persuasive case law that
supports tolling of the Vaccine Act’s limitations statute due to mental incapacity (especially
when that incapacity is associated with the claimed injury), it is far from a settled matter in the
Program. More importantly, even assuming tolling were available under such circumstances,
K.G. had a legal representative/guardian looking after her interests for a large portion of the time
in which she was allegedly mentally incapacitated - suggesting that any tolling would have ended
upon that person’s appointment in 2014. Petitioner therefore is not excused from her failure to
act diligently in exercising her rights, and the claim warrants dismissal.
Factual Background
Vaccination and Initial Evidence of Reaction/Neurologic Symptoms
Petitioner was born on October 21, 1962, and thus was 48 years old when she received
the flu vaccine at issue. Ex. 8. The vaccine was administered to her at Mercy Medical Clinic in
Johnston, Iowa on October 12, 2011, during pre-op treatment for a bilateral knee replacement
surgery scheduled for November 21, 2011. Ex. 1 at 3; Ex. 3 at 497, 504, 512, 526, and 537; Ex.
6 ¶ 3. Petitioner had experienced “multiple” knee surgery procedures since 1979. Ex. 16 at 1.
Prior to surgery, K.G.’s treaters observed that she exhibited an elevated heart rate between 92-
108 beats per minute. Ex. 19 at 456; Ex. 2 at 226; Ex. 15 at 55. Later on in the day of her
November surgery, Petitioner reported that her right leg and right toes were tingling, and she
repeated such concerns on the day after. Ex. 3 at 512, 533, 620; Ex. 16 at 9.
Records from the post-operative period in the second half of November suggest that K.G.
was experiencing pain associated with her recent procedure, but do not suggest at all any of the
kinds of neuropathic symptoms typically associated with GBS (i.e., numbness, parasthesias, leg
weakness). Ex. 16 at 9-13. Indeed, a December 1, 2011 record reported that, two weeks from
2

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surgery (and now seven weeks from vaccination) Petitioner was “doing well,” and memorialize
no complaints of anything approximating a neuropathic symptom. Id. at 14.
K.G. continued to experience an elevated heart rate for the next several weeks. Ex. 2 at
236; Ex. 19 at 456. By December 6, 2011, she became concerned enough about the problem to
contact her primary care provider, Dr. Amy Mitchell. Ex. 2 at 234. However, this record
(like those from the second half of November) also makes no reference to peripheral
neuropathic symptoms, and in fact states that Dr. Mitchell learned, after speaking by
phone with K.G., that “[p]ain is well controlled and she has no other symptoms.” Id
(emphasis added). Dr. Mitchell saw Petitioner on December 8, 2011, and after examination
diagnosed her with tachycardia, referring her to a cardiology specialist for further treatment,
although these follow-up evaluations did not propose an explanation for her condition – and
these records do not reference peripheral neurologic symptoms of any kind. Id. at 227, 236; Ex.
3 at 364, 484; Ex. 15 at 3, 51, 53.
In the meantime, K.G. experienced an alleged worsening of the nascent neurologic
symptoms she claims to have reported around the time of her November surgery. Thus, on
January 12, 2012, she reported to Dr. Mark Matthes, an orthopaedic surgeon at Iowa Ortho in
Des Moines, Iowa, for a post-operative follow-up. Ex. 16 at 15. She now reported “decreased
sensation” in her lower extremities. Id at 16. However, records from this visit mainly record an
examination aimed at assessing Petitioner’s recovery from knee surgery, and contain no
suggestion of concerns (by Petitioner or Dr. Matthes) that any problems she faced were
unrelated to that surgery. Id. at 15-16.
By early February, Petitioner returned to Iowa Ortho complaining of instability and pain
in her left knee. Ex. 16 at 18. At a follow-up visit on February 23, 2012, she reported the same
plus difficulty walking, which she claimed was “kind of a spontaneous event” that had only
begun in January. Id. at 37. On exam, Petitioner exhibited “no gross sensory deficit,” and
reasonable extension of the left knee, accompanied with some strength deficit. Id. The treater
who saw K.G. allowed for the possible need for an EMG to “rule out something like a
neuropathy or some other sort of nerve injury,” and planned to follow up with her after it was
conducted in the next several weeks.
There is a subsequent ten-week gap in the records before the testing proposed in
February was conducted on May 7, 2012. See Ex. 16 at 38. A nerve conduction study of
her left tibial nerves resulted in an abnormal finding, with “prolonged distal latency.” Id.
at 39. In mid-May, K.G. returned to Iowa Ortho, and now described “hypersensitivity
and lack of sensation on the bottom of both feet as well as from the knees down,” along
with tingling, [and] sharp burning sensation down both legs into [her] feet.” Id. at 24. She
reported that same month to her primary care treater that she was also experiencing
“abnormal sensation in the fingertips bilateral hand affecting all fingers.” Ex. 2 at 197.
3

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Doctors initially diagnosed her with “tarsal tunnel [syndrome] on the right [leg]” (Ex. 16 at 24),
but referred her to neurology specialists for further evaluation. Ex. 16 at 26; Ex. 2 at 198. That
evaluation, performed on June 15, 2012, noted “progressive paresthesias involving all four
extremities,” “sensory changes” and “depressed” reflexes and indicated that these findings “may
go with peripheral nerve disease such as diffuse peripheral neuropathy.” Ex. 7F at 3232. Based
upon the above, Petitioner’s treating neurologists disputed the accuracy of the earlier tarsal
tunnel syndrome diagnosis, and prescribed Gabapentin to treat Petitioner’s burning and tingling
sensations. Id. However, other than observing some lower extremity reflex abnormalities, the
records from this neurologic evaluation do not suggest she was suffering from GBS, observing
(a) an absence of “progressive parasthesias involving all four extremities,” (b) “no objective
motor findings,” (c) and “no involvement of her upper extremities at this time.” Id.
Throughout the summer of 2012, K.G. continued to experience similar symptoms, which
she felt were worsening in intensity. Ex. 2 at 166; Ex. 20 at 5. On September 11, 2012, she
went to the emergency room at Mercy Medical Center (“Mercy”) in Des Moines, Iowa, and was
hospitalized for her neurological symptoms at the recommendation of her primary care physician.
Ex. 7I at 3847, Ex. 7F at 3168. By the fall, Petitioner’s speech had also become affected, and
she was diagnosed in October 2012 with ataxic dysarthria.3 Ex. 13A at 267. She also began to
experience increasing bladder control issues. Ex. 2 at 124.
After falling at home in November 2012, K.G. was transported by ambulance to Mercy.
Ex. 2 at 113; Ex. 7D at 1531. She subsequently went into respiratory distress and was later
admitted to Mercy on December 13, 2012, where she remained until mid-January 2013. Ex. 2 at
113; Ex. 21 ¶ 10; Ex. 7B at 457-59. At admission, Petitioner’s initial diagnosis was “immune-
mediated sensorimotor polyneuropathy,” but the diagnosis was expanded to include CIDP at
discharge. Id. at 457. Subsequent records from the winter of 2013 confirm the CIDP diagnosis.
See., e.g., Ex. 18 at 60-63 (February 11, 2013 visit).
The discharge records make no mention of GBS. Petitioner, however, has pointed to
other documents (primarily from records generated after post-hospitalization visits to her
primary care physician, Dr. Mitchell) where a purported GBS diagnosis is referenced. See, e.g.,
Ex. 2 at 97 (January 28, 2013 visit), and 65 (April 13, 2013 visit).4 However, these records
3 Ataxic dysarthria is “dysarthria seen in patients with cerebellar lesions, characterized by slowness of speech,
slurring, a monotonous tone, and scanning.” Dorland’s Illustrated Medical Dictionary (32nd Ed. 2012)
(“Dorland’s”) at 575. Dysarthria is “a speech disorder consisting of imperfect articulation due to the loss of
muscular control after damage to the central or peripheral nervous system.” Id.
4
Petitioner also points to a “vaccine assessment” form filled out at Mercy during her December 2012 hospitalization
in which a box is checked in the “contraindications” section that reads “history of [GBS] within 6 weeks after a
previous influenza vaccination,” and the word “plasma” is written in next to it. Ex. 7B at 509. It appears based on
this form that Petitioner was not at this time given the flu vaccine – but I do not conclude from this form that its
existence reflects a reasoned, supportable treater opinion that, just because the box on the form was checked, in fact
4

Case 1:18-vv-00120-MCW Document 50 Filed 11/05/18 Page 5 of 17
contain no independent assessment of Petitioner’s CIDP diagnosis or challenge to its validity,
and do not relate any of her symptoms to the flu vaccine; indeed, some records from visits to Dr.
Mitchell confirm the CIDP diagnosis. Id. at 105 (January 16, 2013 record noting that Petitioner
had been “[h]ospitalized for 9 weeks and diagnosed with CIDP”). She continued to receive
treatment for her neurologic symptoms into 2013 and beyond.
Mental Health Issues and Appointment of Guardian
Petitioner has alleged in this case that during the same time period in 2011-2012 that she
was beginning to experience neuropathic symptoms allegedly associated with her receipt of the
flu vaccine, she was contending with family problems that in turn took a toll on her mental
health. Ex. 2 at 180, 189, 205; Ex. 7I at 3855. By the fall of 2012, she was beginning to report
feeling depressed, and linked her state of mind to her declining physical health. Ex. 7F at 3168.
She also began to develop substance abuse problems, taking an excessive amount of
prescription medications. Ex. 2 at 118, 132, 169; Ex. 7F at 3169.
After her discharge from the hospital in January 2013, K.G.’s mental health
deteriorated further, exacerbated by financial problems, and she continued to struggle with
substance abuse. Ex. 11 at 231; Ex. 2 at 31, 62, 67; Ex. 21 ¶ 12; Ex. 23 ¶ 11. Eventually, her
condition became so severe that she received in-patient treatment in May 2013 after being
found unresponsive at home by a family member. Ex. 21 ¶ 16; Ex. 11 at 7; Ex. 21 ¶ 17. K.G.
received medical treatment and was diagnosed with altered mental status. Ex. 11 at 4.
Unfortunately, K.G.’s mental problems thereafter became progressively worse, and she
experienced more frequent occasions in which she could not display rational conduct or
understanding of her immediate circumstances. Accordingly, in June 2013, she was admitted to
Grinnell Health Care Center for in-patient care and rehabilitation services. Ex. 11 at 2-3; Ex. 3 at
833; Ex. 13A at 1. A month later, in July 2013, her sister obtained power of attorney on her
behalf. Ex. 3 at 781-83. K.G. remained at the Grinnell Health Care Center until 2016. While an
in-patient, treaters were able to observe and evaluate her behaviors. Eventually she obtained
psychologic counseling from Dr. Daniel Ephraim Pott-Pepperman at Applied Behavioral Health
Consultants. Ex. 13A at 499-500. In October 2013, after a thorough psychological
examination, Dr. Pott-Pepperman diagnosed Petitioner with “Korsakoff’s Amnesia,” a syndrome
characterized by neurocognitive impairment. Ex. 10 at 9-10.5
a treater was opining that K.G. experienced GBS no later than the end of November 2011 – in the prior year.
5 Korsakoff’s Syndrome is “a syndrome of anterograde and retrograde amnesia with confabulation associated with
alcoholic or nonalcoholic polyneuritis.” The term is “currently used synonymously with the term amnestic
syndrome.” Dorland’s at 1836.
5

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In the ensuing period in which she was treated, Petitioner’s family made the decision to
place her under a guardianship and conservatorship. Ex. 4 at 1; Ex. 21 ¶ 23; Ex. 22 ¶ 10; Ex. 23
¶ 12. They initiated the process for appointment of a guardian in Iowa state court in March 2014,
and obtained the appointment later that same month, designating Petitioner’s sister as guardian.
Ex. 4 at 1, 16. Petitioner’s sister’s powers as guardian and conservator included control over
K.G.’s financial and medical interests. Id. at 17.
Improvement and Termination of Guardianship
By the spring and summer of 2016, Petitioner’s mental state showed encouraging signs of
improvement. Ex. 13D at 1640; Ex. 4 at 141. After it was determined that K.G. could again
function independently, the guardianship was terminated by the end of August 2016. Ex. 4 at
194. By late November 2016, Petitioner was again living with her husband in Grinnell, Iowa.
Ex. 14 at 159.
Procedural History
As noted, this case was filed (along with a substantial number of medical records) in
January 2018 – almost 18 months from the date K.G.’s in-patient mental health treatment ended,
along with termination of her sister’s guardian status. I held a status conference on March 20,
2018, during which I raised questions regarding the Petition’s timeliness. Order, dated March 20,
2018 (ECF No. 9), at 1. Petitioner acknowledged that the claim’s timeliness was an issue, but
asserted that the limitations period should be subject to equitable tolling to take into account
Petitioner’s mental incapacity for a period of time from 2012-2016. Id. In response, I noted that
the degree of tolling Petitioner asserted vastly exceeded what had previously been allowed in
other Vaccine Program cases, but I informed Petitioner that I would provide her with an
opportunity to make her case. Id. at 2. The parties subsequently filed the aforementioned briefs,
concluding the process in mid-July of this year.
Petitioner contends that she was mentally incapacitated such that she could not protect
her own legal interests from November 9, 2012 (the date when she first was taken to the hospital
after falling at home), to May 10, 2016 (when she underwent a mental examination and showed
positive results) - a period of 1,278 days, or approximately three and one-half years. Brief at 36.
Based upon this assertion, Petitioner adds 1,095 days (representing the Vaccine Act’s three-year
statute of limitations) for a total period of 2,373 days after the date of her vaccination in which
Petitioner argues she had to file her claim before it would be untimely. Id. at 39-40. Because the
Petition was filed on January 24, 2018 -- 2,265 days after the date of her vaccination -- Petitioner
argues that her claim is timely. Id. at 40.
Respondent advances three counter-arguments regarding the untimeliness of K.G.’s
claim. First, Respondent contends that equitable tolling on the basis of mental incapacity should
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not be available to Vaccine Program petitioners at all - or, at a minimum, should be unavailable
during a period in which the petitioner was represented by an appointed legal guardian able to
pursue a petitioner’s legal interests. Opp. at 6. In so arguing, Respondent emphasizes that the
Federal Circuit’s Barrett decision (relied upon in J.H. and Gray) was heavily dependent on
veterans benefits laws and the policy goals behind them, which are not congruent with the
Vaccine Act. Id. at 7. Second, Respondent maintains that Petitioner’s proposed period of
incapacity is too long, and that application of a more reasonable tolling period would still result
in the Petition being untimely. Id. at 9. Finally, Respondent argues that tolling would be
improper because the late filing was not the “direct result” of Petitioner’s mental incapacity. Id.
at 15.
In her Reply, Petitioner contends that prohibiting equitable tolling in Vaccine Program
cases would be inconsistent with past precedent as well as the goals of the Program itself. Reply
at 3. Second, Petitioner argues that tolling is available even when a claimant has a legal
representative, therefore mooting from consideration the fact that K.G. had such a representative
during a large portion of her mental incapacitation. Id. at 8. Third, Petitioner maintains that
refusing to apply equitable tolling in this case would be inconsistent with how other federal
courts have applied the equitable tolling doctrine. Id. at 12. Finally, Petitioner contends that she
has demonstrated that her late filing was the direct result of her mental incapacity. Id. at 16.
Relevant Legal Standards
The statute of limitations prescribed by the Vaccine Act is three years, or thirty-six
months. Section 16(a)(2). The statute begins to run from the manifestation of the first objectively
cognizable symptom, whether or not that symptom is sufficient for diagnosis (or even recognized
by a claimant as significant). Id; Carson v. Sec’y of Health & Human Servs., 727 F.3d 1365,
1369 (Fed. Cir. 2013). Special masters have appropriately dismissed cases that were filed outside
the limitations period, even by a single day or two. See, e.g., Spohn v. Sec'y of Health & Human
Servs., No. 95-0460V, 1996 WL 532610 (Fed. Cl. Spec. Mstr. Sept. 5, 1996) (dismissing case
filed one day beyond thirty-six-month limitations period), mot. for review denied, slip. op. (Fed.
Cl. Jan. 10, 1997), aff’d, 132 F.3d 52 (Fed. Cir. 1997).
The U.S. Supreme Court has observed that equitable tolling of a limitations period should
be permitted “sparingly.” Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96, (1990). To obtain
it, a litigant must establish ‘‘(1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way’’ to filing the claim. Pace v. DiGuglielmo, 544 U.S.
408, 418 (2005). The appropriateness of permitting equitable tolling is, however, to be
determined on a case-by-case basis without rigid application of such overarching guidelines.
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Holland v. Florida, 560 U.S. 631, 649–50 (2010); accord Arctic Slope Native Ass’n v. Sebelius,
699 F.3d 1289, 1295 (Fed. Cir. 2012).
The Federal Circuit has held that the doctrine of equitable tolling can apply to Vaccine
Act claims in limited circumstances. See Cloer v. Sec’y of Health & Human Servs., 654 F.3d
1322, 1340-41 (Fed. Cir. 2011). To date, these circumstances have been enumerated to include
fraud and duress -- but not, for example, lack of awareness on a petitioner’s part that she might
have an actionable claim. Cloer, 654 F.3d at 1344-45 (it is well-settled in the Program that
tolling of the Vaccine Act’s statute of limitations period is not triggered “due to unawareness of a
causal link between an injury and administration of a vaccine”).
The Federal Circuit has not yet stated whether a claimant’s mental incapacity should
constitute another basis for tolling. Nevertheless, on a handful of occasions special masters have
been asked to toll the limitations period for this reason. One of the first such instances occurred
in J.H. v. Sec’y of Health & Human Servs., 123 Fed. Cl. 206 (2015), on remand, No. 09-453V,
2015 WL 9685916 (Fed. Cl. Spec. Mstr. Dec. 21, 2015). In that case, a petitioner alleged that he
was injured by vaccines received in March and April 2006, with symptoms beginning in early
June of that same year. J.H., 123 Fed. Cl. at 208. But the claim was filed in July 2009 –
rendering it literally untimely (albeit by approximately one month) under the Act’s limitations
statute, and leading the special master presiding over the case to dismiss it. Id. at 215.
Petitioner thereupon filed a motion for review, arguing that in the period between onset
and filing of the claim, he had suffered from serious mental health problems that constituted
reasonable grounds for equitable tolling of the statute. J.H., 123 Fed. Cl. at 216. The Court,
reviewing the medical record, found that the special master had not fully evaluated that record
(which documented in detail the petitioner’s mental health problems), and remanded the case so
that the availability of equitable tolling could be determined. Id. at 219. Despite the implication
of the holding, the J.H. Court acknowledged there was limited controlling authority addressing
whether mental illness was a sufficient justification for equitable tolling, given that the sole
Federal Circuit precedent relevant to the issue – Barrett v. Principi, 363 F.3d 1316, 1318-20
(Fed. Cir. 2004) – involved veteran’s benefits statutes rather than the Vaccine Act.6 Id. at 216.
6
Barrett specifically stated that a veteran claimant could obtain equitable tolling for mental illness by demonstrating
that his “failure to file was the direct result of a mental illness that rendered him incapable of ‘rational thought or
deliberate decision making,’ or ‘incapable of handling [his] own affairs or unable to function [in] society.’ A
medical diagnosis alone or vague assertions of mental problems will not suffice.” Barrett, 363 F.3d at 1321
(citations omitted).
The Federal Circuit in Barrett also emphasized that permitting tolling for mental incapacity was consistent with the
policy goals of the veterans benefit system, which provides an entitlement to those citizens who have given military
service to their country, and that “it would be both ironic and inhumane to rigidly implement [the relevant
limitations period] because the condition preventing a veteran from timely filing is often the same illness for which
compensation is sought.” Barrett, 363 F.3d at 1321.
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Indeed, the Court specifically noted that “the issue of whether the Barrett standard should be
applied in Vaccine Act cases is not before the court,” because the parties had not contested it in
the motion for review. Id. at 216 n.8.
On remand, the special master reevaluated the evidence, and in doing so found that
tolling was appropriate during the intervening period in which the petitioner was “not capable of
managing his affairs” due to mental illness. J.H., 2015 WL 9685916, at *24. However, the
special master noted that the lack of Federal Circuit guidance on the subject meant that the
conclusions reached therein might warrant revisiting in the future. Id. In addition (and of
relevance herein), the special master discussed at some length whether the petitioner’s mental
illness meant he should obtain a legal representative going forward – given that the Vaccine
Rules expressly permit claimants to have guardians or other duly-authorized individuals pursue
claims on an injured individual’s behalf. Id. at *21-23.
A subsequent special master’s decision, Gray v. Sec’y of Health & Human Servs., No.
15-146V, 2016 WL 787166 (Fed. Cl. Spec. Mstr. Feb. 4, 2016), is consistent with J.H. There, a
petitioner alleged that a flu vaccine she received in October 2011 caused neurologic symptoms
that began that November. Gray, 2016 WL 787166, at *1. She filed her claim on February 18,
2015 – three months after the limitations period would have run from alleged onset in November
2011 – but argued that the period should be tolled for a five-month period7 to account for a
timeframe in which she was allegedly mentally incapacitated. The special master embraced the
reasoning of J.H. and found that the petitioner should have the opportunity to prove that her
incapacity met the standard set in Barrett. 2016 WL 787166, at *6-7. After the marshalling of the
evidence on that point, the special master found that tolling was appropriate, and therefore that
the claim was timely. Gray v. Sec’y of Health & Human Servs., No, 15-146V, 2016 WL 6818884
(Fed. Cl. Spec. Mstr. Oct. 17, 2016).
Even more recently, the Court of Federal Claims weighed in again on the availability of
equitable tolling for mental incapacity – but reached a result somewhat contrary to J.H. and
Gray. Clubb v. Sec’y of Health & Human Servs., 136 Fed. Cl. 255 (2018). In Clubb, a petitioner
appealed a special master’s finding that his case - filed in August 2015, and based upon a July
2012 vaccination – was untimely by one day only, arguing that physical and mental impairments
relevant to his alleged vaccine-caused injury had incapacitated him, and that therefore the statute
should be equitably tolled. Clubb, 136 Fed. Cl. at 263. The special master had observed that the
impairment in question, while actual, was not demonstrated to have prevented him from pursuing
his legal rights.136 Fed. Cl. at 265.
7
Both Gray and J.H. employed a “stop-clock” approach in calculating the overall limitations period, referencing
Federal Circuit law in support. Gray v. Sec’y of Health & Human Servs., No. 15-146V, 2016 WL 787166, at *6
(Fed. Cl. Spec. Mstr. Feb. 4, 2016), citing Checo v. Shinseki, 748 F.3d 1373, 1379 (Fed. Cir. 2014). Under this
approach, “the statute is tolled for the period of severe mental disability and begins to run again when the petitioner
is capable of asserting a claim.” Gray, 2016 WL 787166, at *6.
9

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The Court affirmed dismissal, largely based on its determination that the special master
had appropriately found that (assuming tolling was available) the petitioner’s impairment was
insufficient to justify tolling. Clubb, 136 Fed. Cl. at 264-66. However, the Court also noted that
the policy arguments against allowing equitable tolling in the Vaccine Program for mental or
physical incapacity were compelling. Id. at 263-64. The Court thus credited as persuasive
Respondent’s arguments that (a) there was no Federal Circuit authority supporting the contention
that equitable tolling for mental or physical impairment was appropriate in the context of the
Vaccine Act, (b) the Vaccine Act expressly permitted claims to be brought on behalf of injured
parties by authorized representatives, and (c) the Act also allowed compensation for injuries that
could directly produce cognitive impairment, such as encephalopathy, but did not exclude such
claims from the three-year limitations period – all suggesting that the Act envisioned
circumstances in which a claimant would need to act to assert a legal cause of action despite
mental incapacity. Id. As a result, the Court expressed “misgivings” about the appropriateness of
allowing this kind of equitable tolling in Vaccine Program cases. Id. at 264.
ANALYSIS
I. Tolling the Limitations Period for Petitioner’s Mental Incapacity
Would not Render the Claim Timely Filed
Based upon the filed medical records, Petitioner has established that she was mentally
incapacitated for a lengthy period of time after her vaccination. However, whether equitable
tolling on the grounds of mental incapacity should be available to Program claimants remains an
unsettled question. Decisions like J.H. and Gray provide reasoned grounds for allowing tolling in
the case of mental incapacity. In addition, the flexible, case-by-case manner in which requests
for equitable tolling are to be evaluated supports permitting claimants to attempt to substantiate
their tolling arguments with evidence, rather than dismissing such attempts categorically. At the
same time, the Court’s recent decision in Clubb makes valid points as to why the Vaccine Act
might not countenance this kind of tolling. See Opp. at 6-8. And, most fundamentally, there is no
Federal Circuit precedent instructing how to apply equitable tolling under these circumstances.
Despite the above, I need not add my two cents to this debate – for the untimeliness of
Petitioner’s claim is manifest even if I assume that equitable tolling is available for mental
incapacity.
To evaluate application of tolling to this case, I must determine (a) the nature of
Petitioner’s injury, (b) when Petitioner’s claim accrued, (c) whether there was a period of time in
which the statute ran before it was subsequently tolled due to mental incapacity, and finally, (d)
if the date the case was ultimately filed still fell within the three-year period even after taking
into account tolling.
10

Case 1:18-vv-00120-MCW Document 50 Filed 11/05/18 Page 11 of 17
As noted above, Vaccine Act claims accrue at the first manifestation of symptoms,
regardless of whether those symptoms are understood (by a petitioner or even treaters) to
evidence the complained-of injury. Here, Petitioner alleges she experienced some form of
peripheral neuropathy after her October 2011 vaccination, and although she has termed it GBS in
her Petition, I find that the medical record evidence only supports a diagnosis of CIDP. First, the
CIDP diagnosis was actually made by treaters. Ex. 7B at 457-59. GBS, by contrast, is only
referenced in passing, subsequent to Petitioner’s late 2012 hospitalization, and those references
lack any analytical support and do not reflect reasoned treater views. Ex. 2 at 65, 97.
Second, the Petitioner’s symptoms are inconsistent with GBS, which is well understood
to be acute and monophasic, reaching nadir in four to six weeks in most instances. Blackburn v.
Sec’y of Health & Human Servs., No. 10-410V, 2015 WL 425935, at *23 (Fed. Cl. Spec. Mstr.
Jan. 9, 2015). CIDP, by contrast (which is not simply a GBS variant, despite its parallel character
as a peripheral neuropathy), can wax and wane over a far longer period of time. Blackburn, 2015
WL 425935, at 31. Petitioner’s medical history reflects a lengthy, halting course progressing
from the date of her flu vaccine in October 2011 until her CIDP diagnosis in late 2012, and such
evidence persuasively establishes CIDP as the only cognizable neuropathic injury.8
I further conclude that the record suggests onset of K.G.’s CIDP occurred no later than
February 2012. Although Petitioner reported experiencing “decreased sensation” in her lower
extremities in January 2012 (Ex. 16 at 16), these feelings are most credibly linked to Petitioner’s
fall 2011 surgery, and the records at this time do not establish a neuropathic injury. By February,
however, Petitioner’s complaints of leg numbness were seen by treaters as the basis for an EMG
or nerve conduction study, the kind of tests deemed highly probative of peripheral neuropathic
injury. See Simanski v. Sec’y of Health & Human Servs., No. 03-103V, 2013 WL 7017568 (Fed.
Cl. Spec. Mstr. Aug. 20, 2013). Such an onset is also consistent with CIDP, which can present
erratically, but which (in the views of prior experts testifying in the Program) will typically first
present within two or three months post-vaccination. See, e.g., Strong v. Sec’y of Health &
Human Servs., 15-1108V, 2018 WL 1125666, at *7, 21 (Fed. Cl. Spec. Mstr. Jan. 12, 2018)
(noting that two months would be an appropriate onset timeframe for CIDP post-vaccination,
whereas 4-5 months would be too long). Thus, all things being equal, this case should have been
filed by mid-February 2015 – not almost three years after that date, in 2018.
8
I also note that, for purposes of my present analysis, it benefits Petitioner to treat her injury as CIDP. Given its
more acute nature, GBS would be expected to manifest in no more than six to eight weeks from vaccination at
longest – meaning the start of the limitations period in this case would have to have begun no later than November
or December 2011, increasing the amount of time that the statute would have run before K.G.’s incapacitation.
Assuming the injury to be CIDP is not only more consistent with the record, but also allows me to find onset to have
begun slightly later.
11

Case 1:18-vv-00120-MCW Document 50 Filed 11/05/18 Page 12 of 17
I next must determine when the limitations statute stopped running due to K.G.’s mental
incapacity, applying the “stop-clock” approach for calculating the overall limitations period.
Checo v. Shinseki, 748 F.3d 1373, 1379 (Fed. Cir. 2014); Gray, 2016 WL 787166, at *6.
Petitioner contends that the proper date for the start of tolling was November 9, 2012. Mot. at 36.
The record reflects that on that date, Petitioner was found by her sister and her sister’s husband
after a fall, and that because two family members were unable to help her, an ambulance was
called which took Petitioner to the hospital. Six days later, Petitioner went into respiratory
distress (later diagnosed as Acute Respiratory Distress Syndrome), requiring use of a ventilator
and feeding tube. Ex. 7D at 1540, 1846. During this time, Petitioner notes that she was placed in
wrist restraints due in part to her cognitive impairment. Id. at 1623. Petitioner was ultimately
discharged on January 11, 2013, approximately two months later.
Despite the above, evidence subsequent to November 2012 suggests that Petitioner’s
overall mental status had not yet so declined that she could be said to be fully incapacitated.
Although the record clearly establishes that Petitioner’s mental health may have been a concern
around the time of her late 2012 hospital stay, her treaters were then more concerned with her
ongoing physical symptoms than her mental symptoms. In addition, K.G. improved to a point
where she was allowed to return home. And a February 11, 2013 follow-up appointment for
neuropathy and numbness noted Petitioner’s mental state as “alert,” and that her “judgment and
insight were intact and appropriate,” and she had an “appropriate fund of knowledge.” Ex. 18 at
61-62.
I therefore do not conclude that November 9, 2012, is an appropriate date to begin tolling.
Instead, the record best establishes that K.G. did not become sufficiently mentally impaired so as
to stop the running of the limitations period before May 26, 2013 – when she was found
collapsed at home a second time. Only after this incident was she hospitalized as an in-patient for
her mental problems, and subsequently diagnosed that fall by Dr. Pott-Pepperman with a form of
amnesia. Her substance abuse and other conduct before this time does not establish sufficient
mental impairment, despite its alarming nature. Based on this determination, the limitations
period on Petitioner’s claim ran for approximately 15 months before stopping, or from February
2012 to May 2013 – leaving 21 months left before the claim would be time-barred.9
Finally, I must determine the date the limitations countdown started again. Petitioner
proposes May 2016 as that start-up time, based on her documented mental health improvement.
But the record more persuasively establishes that the “clock” started again in March 2014, when
Petitioner’s sister was appointed as her legal guardian.
9
Acceptance of Petitioner’s proposed tolling start date would not render her claim timely. With an onset of
symptoms in February 2012, Petitioner’s time to file would have elapsed only nine months before tolling under
Petitioner’s theory. But, given my determination (discussed below) that tolling ceased in March 2014, K.G. would
only have an additional 27 months to file – or by June 2016 – meaning that the claim would still be untimely.
12

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The record establishes that the appointment of K.G.’s sister as guardian in this case
empowered her to act on Petitioner’s behalf. Specifically, as noted in Petitioner’s submissions,
the guardianship/conservatorship appointment gave K.G.’s sister authority to make decisions
with respect to Petitioner’s physical wellbeing and otherwise. Ex. 4 at 17. Concerning
conservatorship powers, the “Notice of Your Rights” document (required by statute to be
provided to the protected person, and mailed along with the petition for appointment of guardian
and conservator), states that “[i]f a conservator is appointed, the conservator may, without court
approval, . . . sue and defend any claim by or against you . . . .” Id. at 3 (emphasis added). This
language mirrors that of Iowa Code § 633.646, which provides, in pertinent part, that “[t]he
conservator shall have the full power, without prior order of the court, with relation to the estate
of the ward: 1. To collect, receive, receipt for any principal or income, and to enforce, defend
against or prosecute any claim by or against the ward of the conservator; to sue on and defend
claims in favor of, or against, the ward or the conservator” (emphasis added). Indeed – it may be
particularly appropriate that an individual who was mentally impaired after vaccine
administration have such a representative litigating the claim for her. See J.H., 2015 WL
9685916, at *5-6. Petitioner’s guardian was thus a person with the capacity to bring her vaccine
injury claim, even if Petitioner’s individualized mental incapacity continued after the
appointment.10
Petitioner’s arguments that the appointment of a guardian has no bearing on the
availability of equitable tolling are misplaced. She cites J.H. as so holding – but the facts of that
case are disparate to the present circumstances. There, Respondent argued that the adult
petitioner could have had a parent appointed as guardian during his incapacity, leading the
special master to discuss the distinction between an existing representative’s right to file suit for
another, versus the obligation of a potential, qualified person to become a legal guardian or
representative for another who lacked such a guardian. J.H., 2015 WL 9685916, at *6. The
special master emphasized the importance of protecting the rights of such an unrepresented
individual under the Vaccine Act, rather than imposing a duty on an otherwise-qualified
individual to become a legal representative. Id. at *7.11 Here, by contrast, it cannot be disputed
10
Indeed, in discussing why equitable tolling for mental incapacity should be allowed in Program cases, the special
master in Gray emphasized that authority existed elsewhere highlighting the importance of a representative’s
appointment in measuring the limitations period. Gray, 2016 WL 787166, at *5, citing Clifford v. United States, 738
F.2d 977 (8th Cir. 1984) (individual’s medical malpractice claim under Federal Tort Claims Act for wrongful coma
did not accrue until time of representative’s appointment, since that was time person with requisite knowledge of
injury had legal duty to act for the injured party; coma prevented injured party from being aware of claim entirely).
11
Other courts have suggested that appointment of a guardian is actually evidence that a person was mentally
incapacitated. See, e.g., Speiser v. Dep’t of Health & Human Servs., 670 F. Supp. 380, 385 (D. D.C. 1986) (claimant
seeking to establish mental incapacity basis for tolling of statute of limitations could do so by establishing that she
“took measures to let someone else handle her affairs as might be done for someone who is non compos mentis”).
But this does not mean that any tolling of a limitations statute continues unabated even after the guardian’s or
representative’s appointment – and Petitioner in this case has offered no persuasive authority so holding.
13

Case 1:18-vv-00120-MCW Document 50 Filed 11/05/18 Page 14 of 17
that K.G. did have a legal representative for a substantial period, and that this individual had full
authority to bring a legal claim on her behalf.
Accordingly, I find that the limitations period governing Petitioner’s claim restarted in
March 2014. Since the 36-month period had only elapsed 15 months by this date, there remained
only 21 months – or until December 2015 – to file the case. Because it was not filed until
January 2018, it is untimely by over two years.
I also do not find that the broader equitable considerations at play in evaluating a request
to toll a limitations period favor Petitioner’s tolling request. In particular, I find that Petitioner
and/or her legal representative did not act diligently in exercising her legal rights. Although some
cases like J.H. suggest that diligence is not relevant to the specific period of a claimant’s mental
incapacity, a claimant’s diligence can be evaluated during the period in which the petitioner or
her authorized representative had capacity to bring a Vaccine Act claim – as well as when the
petitioner was not so incapacitated.
Here, and based upon my onset finding of February 2012, Petitioner had the capacity to
bring her claim for more than a year before she lost the mental facilities to act in May 2013.
Then, her representative held a guardianship position for over two years without taking action,
even though the record establishes that Petitioner’s alleged vaccine-caused symptoms already
existed. Given that these symptoms existed for nearly two years before the representative’s
appointment in March 2014, it is reasonable under such circumstances to hold that legal
representative – who had sufficient authority to act on Petitioner’s behalf in numerous regards -
responsible for bringing such a claim in a more timely manner. This – along with the fact that
this claim remained unfiled for an additional year and a half more even after Petitioner regained
mental competency – does not constitute diligence thwarted by circumstances beyond one’s
control.12
The lack of diligence is only underscored when the injury in question is taken into
account. Claims that the flu vaccine caused GBS, CIDP, or some other form of peripheral
neuropathy are legion in the Vaccine Program, and flu-GBS cases have been deemed to have
sufficient medical legitimacy to cause amendment of the Table to add them as a specified injury
that can be established without a showing of causation. 42 C.F.R. § 100.3(a); 82 FR 6294-01,
12
Whether Petitioner’s alleged vaccine-caused CIDP is related to her mental incapacity presents a closer call. The
medical records do not establish that her neuropathic injuries produced directly a brain or central nervous system
injury that could be medically associated with the same process that might in theory produce the kind of
demyelination resulting in GBS or CIDP. However, Petitioner has maintained that her decline in physical health
post-vaccination contributed to her depression and substance abuse, and it is reasonable to conclude from this that
the vaccine injury alleged did play a role in her subsequent mental incapacity. Regardless, I need not resolve this
question, given the overall untimeliness of the claim’s filing despite the existence of a legal representative with the
capacity to have filed the claim for Petitioner.
14

Case 1:18-vv-00120-MCW Document 50 Filed 11/05/18 Page 15 of 17
2017 WL 202456 (Jan. 19, 2017). It should not take a party over six years to allege such a claim
unless exceedingly rare circumstances are established. While Petitioner’s personal suffering is
self-evident and tragic, it has not been demonstrated herein to constitute the kind of unique
situation in which equity would demand tolling.
II. The Lookback Provisions of the Table Revision Adding GBS as a Table Injury Do
Not Save Petitioner’s Claim
Although I have determined that Petitioner’s claim is untimely regardless of equitable
tolling, I note that Petitioner’s claim is formally styled as a Table claim alleging GBS as the
injury. Petition at ¶ 76. In an abundance of caution, I will therefore also evaluate whether the
recent revisions to the Vaccine Act to add GBS as a Table Injury provide an alternative basis for
finding the claim timely.
Effective March 21, 2017, the Vaccine Table was amended to include GBS as a specified
injury for individuals receiving the flu vaccine. 82 FR 6294-01, 2017 WL 202456 (Jan. 19,
2017). The enacting regulations specified that this new Table claim was subject to the Act’s
existing three-year limitations period, but included a lookback provision, providing that any
individual who alleged to have experienced injury occurring not more than eight years before the
effective date of revision (March 21, 2017) could file suit based on the new Table claim within
two years of the effective date. 42 U.S.C. § 300aa-16(b).
Petitioner’s claim was filed on January 24, 2018 – clearly within two years of the
addition of the flu-GBS claim to the Table. Moreover, she alleges GBS as her injury, with onset
in November 2011 – a date within eight years of the Table amendment’s effective date. Thus,
Petitioner’s claim could be timely based on this lookback provision despite her inability to
establish grounds for equitable tolling.
There is, however, a significant bar to Petitioner making use of this lookback provision to
save her claim. The evidence submitted in this case, which is already voluminous,
overwhelmingly does not support the conclusion that she suffered from GBS, but rather CIPD,
an exclusionary criteria under the Table’s Qualifications and Aids to Interpretation (“QAI”). 42
C.F.R. § 100.3(c)(15)(iv) (stating, in pertinent part, that “[e]xclusionary criteria for the diagnosis
of all subtypes of GBS include the ultimate diagnosis of any of the following conditions: chronic
immune demyelinating polyradiculopathy (CIDP) . . .”). As noted above, although GBS is
referenced in offhand fashion in some medical records, Petitioner ultimately received a formal
diagnosis of CIDP. Ex. 7B at 457-59; Ex. 18 at 60-63.
Moreover, and independent of diagnosis, Petitioner’s course of injury is wholly
inconsistent with GBS, which is known to be acute and monophasic, rapidly reaching nadir after
15

Case 1:18-vv-00120-MCW Document 50 Filed 11/05/18 Page 16 of 17
initial insult (whether caused by infection or vaccination less commonly). See Reichert v. Sec’y
of Health & Human Servs., No. 16-697V, slip op. at 21 (Fed. Cl. Spec. Mstr. Aug. 2, 2018). K.G.
received the flu vaccine in October 2011; experienced some possibly neurologic symptoms a few
weeks later that were more likely associated with her November 2011 knee replacement surgery;
and then did not truly experience the symptoms classically associated with a peripheral
neuropathy until February 2012 (at earliest) – approximately four months after vaccination on
October 12, 2011, and thus well outside what special masters have found to be a reasonable
timeframe for GBS onset. See, e.g., Barone v. Sec’y of Health & Human Servs., No. 11-707V,
2014 WL 6834557, at *13 (Fed. Cl. Spec. Mstr. Nov. 12, 2014) (eight weeks is the longest
reasonable timeframe for a flu vaccine/GBS injury). Arguably, the timeframe is even longer,
since she was not diagnosed with any kind of possible neuropathic injury before May 2012 (Ex.
16 at 24-26), and only sought emergency treatment in the fall of 2012 – now a year post-
vaccination. Brief at 7. This course most persuasively describes the waxing/waning nature of
CIDP – not GBS – and therefore the existing record does not at all support the conclusion that a
claim based on GBS as the injury could possibly succeed.13
For similar reasons, Petitioner’s claim also fails a second flu-GBS Table requirement
involving symptom onset. A Table claim of flu vaccine-caused GBS must establish the first
symptom or manifestation of onset occurred 3-42 days after vaccination. 42 C.F.R. § 100.3. This
means that because Petitioner was vaccinated on October 12, 2011, her GBS must have
presented in some form by November 23, 2011. However, the medical records do not permit the
finding that more likely than not her neurologic symptoms (assuming for argument that they did
reflect GBS) began any earlier than February 2012. Prior to this date, she complained only
intermittently of leg pain and tachycardia (a symptom not associated with GBS); after, she noted
“decreased sensation” in her legs, and then obtained testing results that clearly documented the
neurologic nature of her injury. Onset in February is too long outside the 42-day window to
successfully establish a Table injury based on a vaccine received the prior October.
CONCLUSION
This case is dismissed because it was not filed within the three-year statute of limitations.
The Clerk shall enter judgment accordingly.
13
For such reason, and based upon my review of the extensive records filed, I would find that a claim positing GBS
as the injury in this case would lack reasonable basis (meaning fees generated in prosecution of the case should not
be reimbursed) even if it had been filed in a timely manner. In the face of such evidence, an expert could not
reasonably, credibly establish that her injury is not as her treaters ultimately determined.
16

Case 1:18-vv-00120-MCW Document 50 Filed 11/05/18 Page 17 of 17
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Special Master
17

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_18-vv-00120-2
Date issued/filed: 2019-03-06
Pages: 8
Docket text: **VACATED PURSUANT TO THE C.A.F.C. MANDATE, DATED APRIL 27, 2020. ** JUDGE VACCINE REPORTED OPINION re: 51 Order on Motion for Review, Judge Vaccine Reported Opinion. Signed by Senior Judge Mary Ellen Coster Williams. (mm) Service on parties made. Modified on 5/7/2020 to indicate opinion has been vacated. (dls).
--------------------------------------------------------------------------------
Case 1:18-vv-00120-MCW Document 53 Filed 03/06/19 Page 1 of 8
In the United States Court of Federal Claims
No. 18-120V
(Filed: March 6, 2019)1
* * * * * * * * * * * * * * * * * * * * * * * *
*
K.G., * National Childhood Vaccination
Petitioner, * Injury Act of 1986, 42 U.S.C.
* §§ 300aa-1 et seq.; Statute of
v. * Limitations; Equitable Tolling;
* Mental Incapacity; Savings
SECRETARY OF HEALTH AND * Clause; Appointment of Legal
HUMAN SERVICES, * Guardian.
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * *
Zachary James Hermsen, Whitfield & Eddy Law, 699 Walnut Street, Suite 2000, Des
Moines, IA 50309, for Petitioner.
Joseph H. Hunt, C. Salvatore D’Alessio, Catharine E. Reeves, Heather L. Pearlman, and
Voris Edward Johnson, U. S. Department of Justice, Torts Branch, Civil Division, P.O. Box 146,
Benjamin Franklin Station, Washington, DC 20044-0146, for Respondent.
_________________________________________________________
OPINION AND ORDER
_________________________________________________________
WILLIAMS, Senior Judge.
This Vaccine Act case presents a novel issue of statutory interpretation: whether the statute
of limitations may be tolled during the timeframe when a petitioner who lacks mental capacity,
has a legal guardian. The Special Master determined that there was no basis to toll the statute of
limitations, finding that while Petitioner herself may have been unable to file suit, Petitioner’s
guardian had the capacity to sue on her behalf. This Court sustains the Special Master’s decision.
1 Pursuant to Vaccine Rule 18 of the Rules of the United States Court of Federal Claims, the
Court issued its Opinion under seal to provide the parties an opportunity to submit redactions. The
parties did not propose any redactions. Accordingly, the Court publishes this Opinion.

Case 1:18-vv-00120-MCW Document 53 Filed 03/06/19 Page 2 of 8
Background2
On October 12, 2011, Petitioner, a 48-year old woman, received the flu vaccine in
preparation for a knee replacement at Mercy Medical Clinic in Johnston, Iowa. After the surgery
on November 21, 2011, Petitioner reported tingling sensations in her toes as well as pain, which
her medical providers attributed to the recent procedure. Dec. *3-4. In December 2011,
Petitioner’s primary physician observed no other symptoms, but in the months following,
Petitioner reported “decreased sensations” in her lower extremities, instability in her left knee and
difficulty walking. Dec. *5. In February 2012, Petitioner’s physician ordered an
electromyography test (EMG) to “rule out something like a neuropathy or some other sort of nerve
injury . . . .” Dec. *6. The EMG was performed on May 7, 2012, and produced abnormal findings
of “prolonged distal latency” in her left tibial nerves. Id. (citing Ex. 16, at 39).
In mid-May, after reporting hypersensitivity and lack of sensation at the bottom of both
feet, burning sensations in her legs, and abnormal sensations in her fingers, Petitioner was referred
to a neurology specialist, whose findings suggested a possible “peripheral nerve disease.” Dec.
*6-7 (citing Ex. 7F, at 3232). Over the summer of 2012, these symptoms worsened, and others
appeared – slurred speech and depression as well as impaired judgment due to “the enormous
amounts of alcohol and prescription medications she was consuming.” Pet’r’s Mot. 5; Ex. 2, at
118, 132, 169.
On November 9, 2012, Petitioner fell in her home and was transported to the hospital. Ex.
2, at 113. Records of her commitment indicate that Petitioner was unable to speak and was
hallucinating, which required her providers to use wrist restraints, a ventilator, and a feeding tube.
At discharge on January 11, 2013, Petitioner’s diagnosis included Chronic Inflammatory
Demyelinating Polyneuropathy (“CIDP”). Upon returning home, Petitioner continued to struggle
with substance abuse, and while Petitioner’s mental health generally deteriorated over the next
four months, the record of a February 11, 2013 follow-up appointment with her neurologist noted
that Petitioner was alert and that her “[j]udgment and insight were intact and appropriate.” Ex. 18,
at 61-62.
On May 26, 2013, Petitioner was again hospitalized after being found unconscious on the
floor of her home. On June 21, 2013, she was transferred to an in-patient facility, where she
remained against her will and “under constant medical supervision for the next three and a half
years, during which time she continued exhibiting significant mental incapacity.” Pet’r’s Mot. 8.
In the Fall of 2013, Petitioner was diagnosed with Korsakoff’s Amnesia, “a syndrome of
anterograde and retrograde amnesia with confabulation associated with alcoholic or nonalcoholic
polyneuritis.” Dec. *11 & n.5.
On July 17, 2013, shortly after Petitioner moved into the in-patient facility, Petitioner’s
sister was granted a power of attorney over Petitioner’s health care decisions by an Iowa state
court. Ex. 3, at 780-83. On March 24, 2014, with the entire family’s agreement, Petitioner’s sister
was appointed her guardian and conservator by the Iowa District Court for Poweshiek County.
2 These facts are derived from the Special Master’s decision dismissing Petitioner’s case,
K.G. v. Sec’y of Health & Human Servs., No. 18-120V, 2018 U.S. Claims LEXIS 1523 (Fed. Cl.
Aug. 17, 2018) (“Dec.”), as well as the Appendix to Petitioner’s Motion for Review.
2

Case 1:18-vv-00120-MCW Document 53 Filed 03/06/19 Page 3 of 8
Dec. *11; Ex. 4, at 16-17; Ex. 21 ¶ 23; Ex. 22 ¶ 10; Ex. 23 ¶ 12. According to the “Notice of Your
Rights” given to Petitioner when her sister became her guardian and conservator, these
designations gave Petitioner’s sister the authority to make decisions with respect to Petitioner’s
physical wellbeing and otherwise and “to sue and defend any claim by or against [Petitioner] . . . .”
Ex. 4, at 17, 3. The order granting guardianship and conservatorship to Petitioner’s sister stated
that there was “clear and convincing evidence and good cause for the appointment of a guardian
and conservator of the proposed ward, all without limitations.” Ex. 4, at 16.
During assessments at the in-patient facility, Petitioner consistently blamed her sister “for
all her problems and sadness,” for making “[her] room [her] prison,” and for telling her sons that
“she [had] brain problems from drinking so much.” Ex. 13D, at 1398; Ex. 17, at 4, 10, 21.
Petitioner’s sister testified in her declaration that her appointment as guardian caused a strain on
their relationship that ultimately caused her to stop “acting as [Petitioner’s] guardian and
conservator [because it] became too much . . . to personally handle.” Ex. 21 ¶ 24. Nevertheless,
Petitioner’s sister continued to act as her guardian and conservator. See also, Ex. 4, at 134-36;
139-42. In an assessment on May 10, 2016, Petitioner “finally showed medical evidence of
cognitive improvement.” Pet’r’s Mot. 11. On August 29, 2016, the Iowa District Court terminated
Petitioner’s sister’s guardianship and conservatorship, and by November 2016, Petitioner had
returned home.
Procedural History
On January 24, 2018, Petitioner, who no longer had a guardian, filed a claim for
compensation under the National Vaccine Injury Compensation Program, alleging that she
developed Guillain-Barre Syndrome (“GBS”) and/or Chronic Inflammatory Demyelinating
Polyneuropathy (“CIDP”) as a result of the influenza vaccine she received on October 12, 2011.
Petitioner admitted that her claim, filed more than six years after onset of her symptoms, was
untimely under the Vaccine Act’s three-year statute of limitations. However, Petitioner argued
that because she was mentally incapacitated from November 9, 2012, to May 10, 2016, the statute
of limitations should have been equitably tolled for that time period – some three and one-half
years.
The Special Master determined that the statute of limitations began to run “no later than
February 2012,” when Petitioner first experienced leg numbness, a symptom consistent with CIDP,
a slowly progressive autoimmune disease. Dec. *23 (“Thus, all things being equal, this case should
have been filed by mid-February 2015 . . . .”); see Dorland’s at 1491. The Special Master further
determined that Petitioner was “sufficiently mentally impaired so as to stop the running of the
limitations period” on May 26, 2013, when Petitioner was hospitalized after being found
unresponsive at home. Dec. *24-25. The Special Master rejected Petitioner’s argument that she
became mentally incapacitated on November 9, 2012, finding that, while Petitioner’s mental health
was a concern by that date, her release from the hospital and positive mental health assessment at
the February 2013 follow-up appointment demonstrated that her mental health had not yet declined
to the point where she was fully incapacitated. Id.
The Special Master then determined that the limitations period resumed on March 24, 2014,
when an Iowa state court appointed Petitioner’s sister as her legal guardian and conservator,
because these appointments gave Petitioner’s sister the authority “‘to sue and defend any claim by
or against [Petitioner] . . . .’” Dec. *26 (quoting Ex. 4, at 3). The Special Master cited the “Notice
3

Case 1:18-vv-00120-MCW Document 53 Filed 03/06/19 Page 4 of 8
of Your Rights” Petitioner received and relied upon language in that Notice that mirrored Iowa
Code § 633.646, the statute setting forth the powers of a conservator. This Iowa Code provision
stated that “[the] conservator shall have the full power, without prior order of the court, with
relation to the estate of the ward . . . to sue on and defend claims in favor of, or against, the ward
or the conservator.” Iowa Code § 633.646 (2018). The Special Master determined that, despite
Petitioner’s continued mental incapacity, tolling was no longer appropriate once her guardian was
appointed, because she “did have a legal representative for a substantial period,” who “had full
authority to bring a legal claim on her behalf.” Dec. *28. The Special Master concluded that the
petition filed on January 24, 2018, was untimely, as the three-year statute of limitations expired in
December 2015, even tolling for the period from May 26, 2013 until March 24, 2014, when
Petitioner was mentally incapacitated without a guardian. Id.3
In her Motion for Review, Petitioner argues that the statute of limitations should be tolled
for the entire period that she was mentally incapacitated - - even when she had a guardian - - and
that the Special Master erred by restarting the limitations clock when Petitioner’s sister became
her court-appointed legal guardian. Petitioner submits that, even if tolling generally ends once a
guardian is appointed, tolling should nevertheless continue in this case, because Petitioner’s
guardian could not effectively communicate with Petitioner or “identify the need to file a Vaccine
Act claim . . . .” Pet’r’s Mot. 20. Petitioner cites Petitioner’s “severe psychological decline,
including impaired memory, impaired logical reasoning abilities, communication difficulties, and
a paranoid distrust toward her guardian.” Id.
Discussion
In Vaccine Act cases, the Court of Federal Claims may: (1) uphold the findings of fact and
conclusions of law and sustain the special master’s decision; (2) set aside any of the findings of
fact or conclusions of law “found to be arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law and issue its own findings of fact and conclusions of law” or (3)
“remand the petition to the special master for further action in accordance with the court’s
direction.” 42 U.S.C. § 300aa-12(e)(2)(A)-(C) (2012); Althen v. Sec’y of Health & Human Servs.,
418 F.3d 1274, 1277 (Fed. Cir. 2005); Saunders v. Sec’y of Dep’t of Health & Human Servs., 25
F.3d 1031, 1033 (Fed. Cir. 1994).
Section 11(b)(1)(A) of the Vaccine Act provides that:
any person who has sustained a vaccine-related injury, the legal representative of
such person if such person is a minor or is disabled, or the legal representative of
any person who died as the result of the administration of a vaccine set forth in the
Vaccine Injury Table may. . . file a petition for compensation under the Program.
42 U.S.C. § 300aa-11(b)(1)(A). The Vaccine Act defines “legal representative” as “a parent or an
individual who qualifies as a legal guardian under State law.” Id. § 300aa-33(2).
3 There is no dispute that Petitioner was no longer mentally incapacitated on May 10, 2016,
the date of her first medical test demonstrating cognitive improvement. Pet’r’s Mot. 2.
4

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Section 16(a)(2) of the Act establishes the limitations period within which the person “who
has sustained a vaccine-related injury” or that person’s legal representative must file a claim,
stating:
[I]f 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.
Id. § 300aa-16(a)(2).
This statute of limitations is subject to equitable tolling. Cloer v. Sec’y of Health & Human
Servs., 654 F.3d 1322, 1343-44 (Fed. Cir. 2011) (en banc). As the United States Court of Appeals
for the Federal Circuit recognized in Cloer, the Vaccine Act’s limitations period may be tolled
where “extraordinary circumstance[s],” such as fraud or duress, block a claimant from filing on
time. Id. at 1344-45 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
In his decision dismissing the petition as untimely, the Special Master did not reach the
issue of whether Petitioner’s claimed mental incapacity constituted the type of extraordinary
circumstance under Cloer that would warrant equitable tolling of the Vaccine Act’s statute of
limitations. The Special Master, instead, determined that assuming arguendo that tolling was
available due to Petitioner’s mental incapacity, the petition was still time-barred because once
Petitioner’s guardian was appointed, Petitioner had a legal representative who “had full authority
to bring a legal claim on her behalf.” Dec. *28.
Petitioner argues that the Special Master erred by not continuing the tolling period for the
duration of her mental incapacity after the appointment of her legal guardian. This Court disagrees.
Assuming, as the Special Master did, that Petitioner had a mental illness that constituted an
extraordinary circumstance that prevented her from pursuing her claim herself, the appointment of
Petitioner’s sister as her legal guardian removed that obstacle.4
The Vaccine Act expressly grants the statutory right to bring a claim to the legal
representative of a disabled person who allegedly has sustained a vaccine-related injury. 42 U.S.C.
§ 300aa-11(b)(1)(A). The Act defines a “legal representative” as “a parent or an individual who
qualifies as a legal guardian under State law.” Id. § 300aa-33(2). Here, Petitioner’s sister was duly
appointed as Petitioner’s legal guardian by the Iowa District Court for Poweshiek County and was
granted the power to sue and defend actions. Ex. 4, at 16-17; Iowa Code § 633.646. As such,
Petitioner’s sister qualified as her legal representative under the Vaccine Act.
Under the Act’s statute of limitations, a disabled person’s legal representative must file a
petition before “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.” 42 U.S.C. § 300aa-
16(a)(2). Once Petitioner’s sister became her legal guardian, she possessed a statutory right to file
4 The Special Master assumed arguendo that Petitioner had demonstrated the requisite
mental incapacity to trigger tolling. Such mental incapacity would have rendered Petitioner
“disabled” within the meaning of the Vaccine Act.
5

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suit on Petitioner’s behalf, and there was no longer any impediment preventing Petitioner from
suing or any “extraordinary circumstance” warranting equitable tolling. As such, the Special
Master correctly determined to end the tolling period once Petitioner’s sister became her legal
guardian on March 24, 2014.
Petitioner urges this Court to follow what she characterizes as the “overwhelming majority
of jurisdictions” that have decided that tolling based on mental incapacity should continue even
after the appointment of a legal guardian. Pet’r’s Mot. 16-17. The cases Petitioner cites are
distinguishable however, as the statutes of limitations in those cases contain savings clauses. By
its terms, a savings clause tolls or suspends the statute of limitations for certain classes of
incompetent individuals - - typically minors and mentally incapacitated persons - - until the
incompetency is removed. See, e.g., Whalen v. Certain-Teed Prods. Corp., 134 S.E.2d 528, 529-
30 (Ga. Ct. App. 1963) (where the savings clause, Ga. Code Ann. § 3-801, provided that “[i]nfants,
idiots, or insane persons, or persons imprisoned, who are such when the cause of action shall have
accrued, shall be entitled to the same time, after the disability shall have been removed, to bring
an action, as is prescribed for other persons”); Tzolov v. Int’l Jet Leasing, Inc., 283 Cal. Rptr. 314,
316-17 (Cal. Dist. Ct. App. 1991) (where the savings clause, Cal. Civ. Proc. § 352, provided that
for persons lacking legal capacity at the time of accrual of the claim, “the time of the disability is
not part of the time limited for the commencement of the action”); Talley by Talley v. Portland
Residence, Inc., 582 N.W.2d 590, 591 (Minn. Ct. App. 1998) (where the statute of limitations,
Minn. Stat. § 541.15(a), provided that insanity “existing at the time when a cause of action accrued
or arising anytime during the period of limitation, shall suspend the running of the period of
limitation until the same is removed; provided that such period . . . , shall not be extended for more
than five years, nor in any case for more than one year after the disability ceases”). Or a savings
clause may provide a different limitations period for a person with a legal disability, which is
triggered after the disability is removed. See, e.g., Freeman v. Alex Brown & Sons, Inc., 73 F.3d
279, 281 (10th Cir. 1996) (where the savings clause, Okla. Stat. tit. 12, § 96, provided that if “a
person entitled to bring an action . . . be, at the time the cause of action accrued, under any legal
disability, every such person shall be entitled to bring such action within one (1) year after such
disability shall be removed”).
In the cases cited by Petitioner, the courts relied on the express text of the savings clauses
in holding that the appointment of a legal guardian did not end tolling but that a different statutorily
prescribed circumstance did - - the removal of the incapacity. Those courts did not rely upon
traditional notions of equity that would be implicated in tolling the Vaccine Act’s limitations
period here, but instead relied on principles of law - - the express language of the savings clauses
themselves - - in suspending the running of the statute of limitations until the claimants regained
mental capacity.5
5 Two of the cases Petitioner cites, recognizing that the savings clause only covered persons
who were incompetent at the time the cause of action accrued, relied on equitable principles to toll
the limitations period for persons who allegedly became incompetent after accrual and were not
covered by the savings clause. See, e.g., Pardy v. United States, 548 F. Supp. 682, 683 (S.D. Ill.
1982); Unkert v. Gen. Motors Corp., 694 A.2d 306, 309 (N.J. Super. Ct. App. Div. 1997).
6

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In stark contrast to the statutes Petitioner cites in which savings clauses dictate the
operation or suspension of the limitations period, the Vaccine Act’s statute of limitations lacks a
savings clause. The Vaccine Act does not provide a statutory mechanism for suspending the
limitations period for a disabled person and restarting the limitations period once his disability is
removed, or for a minor until he comes of age. Instead, the Act empowers a legal representative
to sue on behalf of a disabled person or a minor as of the accrual of the cause of action or once a
disability is demonstrated.
Equitable tolling is not appropriate in instances where a statutory limitations bar is
structured to either encompass or withhold the relief tolling would otherwise effect. In Cloer, the
Federal Circuit declined to apply equitable tolling where the petitioner was unaware of the causal
link between her injury and the administration of a vaccine until after the limitations period had
run. As the Cloer majority found, a Vaccine Act claim accrues, and the limitations period begins,
upon the “occurrence of the first symptom or manifestation of onset of a vaccine-related injury”
and not upon awareness of the causal link between an injury and administration of a vaccine.
Cloer, 654 F.3d at 1338-40. In Cloer, the Court declined to apply equitable tolling recognizing
that doing so would have granted “the same relief as a matter of equity that Congress has withheld
from all petitioners as a matter of law.” Id. at 1344. Here, in a similar vein, equitable tolling is
unavailable as the language of the Vaccine Act itself addresses the circumstance for which tolling
is sought; the Act accommodates a disabled person’s inability to file suit within the statutory period
by giving the guardian the right to sue on his behalf.
Finally, Petitioner argues that even if equitable tolling is generally not available under the
Vaccine Act once a guardian is appointed, the doctrine should be applied here because Petitioner’s
guardian could not effectively communicate with Petitioner and identify the need to file a Vaccine
Act claim. Petitioner cites her “severe psychological decline, including impaired memory,
impaired logical reasoning abilities, communication difficulties, and a paranoid distrust toward her
guardian.” Pet’r’s Mot. 19. Petitioner continues that to end tolling “‘would ignore the fact that so
long as the injured party remains incompetent, he is unable to assist in the preparation and
presentation of his case.’” Id. at 17 (quoting Unkert v. Gen. Motors Corp., 694 A.2d 306, 310 (N.J.
Super. Ct. App. Div. 1997)). However, the language of the Vaccine Act presumes that the legal
representative, unassisted by the injured person, will file the petition and pursue the case for the
minor (often an infant), disabled person or deceased person. By granting a legal guardian the
statutory right to file a claim on a disabled person’s behalf, the Vaccine Act envisions that the
injured party may not be able to assist his or her legal guardian, as the status of injured claimants
for whom guardians may sue - - minors, disabled, and deceased individuals - - would as a practical
matter foreclose such assistance. 42 U.S.C. § 300aa-11(b)(1)(A).
According to the Act’s legislative history, Congress anticipated that “legal representatives
will be parties in the filing and processing of most petitions for compensation” because most
individuals injured by vaccines are children, who are unable to assist their parent or legal guardian
in bringing their own Vaccine Act claim. H.R. Rep. No. 99-908, at 31 (1986); accord Somosot on
behalf of R.D.S. v. Sec’y of Health & Human Servs., 118 Fed. Cl. 687, 693-94 (2014) (affirming
Special Master’s dismissal of claim filed by parents on behalf of seven-year-old child as time-
barred because onset of first symptom occurred six years prior to filing).
7

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In sum, the circumstances of this case and Petitioner’s inability to communicate with her
guardian do not constitute grounds to toll the statute of limitations.6
Conclusion
The Court denies Petitioner’s Motion for Review and sustains the decision of the Special
Master.
s/Mary Ellen Coster Williams
MARY ELLEN COSTER WILLIAMS
Senior Judge
6 The Iowa court found that Petitioner’s sister was fully qualified to serve as Petitioner’s
guardian and conservator. Petitioner stated that the deterioration of her relationship with her sister
“should not be interpreted as a criticism of [her sister’s] work on [her] behalf.” Pet’r’s Suppl. Resp.
Br. 12 n.3. Further, Petitioner represented that “[m]edical records and affidavits filed in this case
largely depict [Petitioner’s sister] as a concerned and dedicated sister who struggled with
[Petitioner’s] mental deterioration, just as [Petitioner’s] husband and children did.” Id.
8

================================================================================
DOCUMENT 3: USCOURTS-cofc-1_18-vv-00120-4
Date issued/filed: 2023-01-17
Pages: 8
Docket text: PUBLIC DECISION (Originally filed: 12/21/2022) regarding 120 DECISION Stipulation/Proffer. Signed by Chief Special Master Brian H. Corcoran. (saj) Service on parties made.
--------------------------------------------------------------------------------
Case 1:18-vv-00120-MCW Document 123 Filed 01/17/23 Page 1 of 8
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-120V
* * * * * * * * * * * * * * * * * * * * * * * * *
* Special Master Corcoran
K.G., *
*
Petitioner, * Filed: December 21, 2022
*
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * * *
Zachary James Hermsen, Whitfield & Eddy Law, Des Moines, IA, for Petitioner.
Voris Edward Johnson, U.S. Dep’t of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On January 24, 2018, K.G. filed a petition seeking compensation under the National
Vaccine Injury Compensation Program (“Vaccine Program”).2 Petitioner alleged that she suffered
from Guillain-Barré syndrome (“GBS”) as a result of her October 12, 2011, receipt of the influenza
(“flu”) vaccine. (She later contended she had experienced a chronic GBS variant due to
vaccination).
1 Because this decision contains a reasoned explanation for my actions in this case, I will post it on the United States
Court of Federal Claims website, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). As
provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the decision’s inclusion of certain
kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen days within which
to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial
in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which
would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole decision will
be available to the public. Id.
2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”).
Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).

Case 1:18-vv-00120-MCW Document 123 Filed 01/17/23 Page 2 of 8
Respondent denies that the flu vaccine caused Petitioner to suffer from GBS or any other
injury or condition. Nonetheless both parties, while maintaining their above-stated positions,
agreed in a stipulation (filed on December 14, 2022) that the issues before them could be settled,
and that a decision should be entered awarding Petitioner compensation.
I have reviewed the file, and based upon that review, I conclude that the parties’ stipulation
(as attached hereto) is reasonable. I therefore adopt it as my decision in awarding damages on the
terms set forth therein.
The stipulation awards:
• A lump sum of $102,941.76, in the form of a check payable jointly to Petitioner and
the Whitfield & Eddy Trust Account; and
• A lump sum of $14,558.24 to satisfy a State of Iowa Medicaid lien, in the form of a
check made payable jointly to Petitioner and:
Iowa Medicaid
PO Box 36446
Des Moines, IA 50315
Ref.: K. Gipple, IME Case No. 129597
Stipulation ¶ 8. These amounts represent compensation for all damages that would be available
under Section 15(a) of the Act.
I approve a Vaccine Program award in the requested amounts set forth above to be made
to Petitioner. In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk
of the Court is directed to enter judgment herewith in accordance with this Decision.3
IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either jointly or separately)
a notice renouncing their right to seek review.
2

Case 1:18-vv-00120-MCW Document 123 Filed 01/17/23 Page 3 of 8
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
_________________________________________
)
K.G., )
)
Petitioner, )
) No. 18-120V (ECF)
v. ) Chief Special Master Corcoran
)
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
_________________________________________)
STIPULATION
The parties hereby stipulate to the following matters:
1. K.G. (“petitioner”) filed a petition for vaccine compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 to -34 (the “Vaccine Program”).
The petition seeks compensation for injuries allegedly sustained following petitioner’s receipt of
an influenza (“flu”) vaccine, which vaccine is contained in the Vaccine Injury Table (the
“Table”), 42 C.F.R. §100.3(a).
2. Petitioner received a flu vaccine on October 12, 2011.
3. The vaccine was administered within the United States.
4. Petitioner alleges that she suffered the injury Guillain-Barré syndrome (“GBS”)
within the time period set forth in the Table. Petitioner further alleges that she experienced the
residual effects of her GBS for more than six months.
5. Petitioner represents that there has been no prior award or settlement of a civil
action for damages as a result of her condition.
6. Respondent denies that the flu vaccine caused petitioner’s alleged GBS or any

Case 1:18-vv-00120-MCW Document 123 Filed 01/17/23 Page 4 of 8
other injury, or her current condition.
7. Maintaining their above-stated positions, the parties nevertheless now agree that
the issues between them shall be settled and that a decision should be entered awarding the
compensation described in paragraph 8 of this Stipulation.
8. As soon as practicable after an entry of judgment reflecting a decision consistent
with the terms of this Stipulation, and after petitioner has filed an election to receive
compensation pursuant to 42 U.S.C. § 300aa-21(a)(1), the Secretary of Health and Human
Services will issue the following vaccine compensation payment:
a. A lump sum of $102,941.76, in the form of a check payable jointly to
petitioner, K.G., and the Whitfield & Eddy Trust Account; and
b. A lump sum of $14,558.241 to satisfy a State of Iowa Medicaid lien, in
the form of a check made payable jointly to petitioner and:
Iowa Medicaid
PO Box 36446
Des Moines, IA 50315
Ref.: K. Gipple, IME Case No. 129597
Petitioner agrees to endorse this check over to Iowa Medicaid.
These amounts represent compensation for all damages that would be available under 42 U.S.C.
§300aa-15(a).
9. As soon as practicable after the entry of judgment on entitlement in this case, and
after petitioner has filed both a proper and timely election to receive compensation pursuant to
42 U.S.C. § 300aa-21(a)(1), and an application, the parties will submit to further proceedings
1 This amount represents full satisfaction of any right of subrogation, assignment, claim, lien, or
cause of action the State of Iowa may have against any individual as a result of any Medicaid
payments Iowa Medicaid has made to or on behalf of K.G. as a result of her alleged vaccine-
related injury suffered in or around January 2012, under Title XIX of the Social Security Act, see
42 U.S.C. § 300aa-15(g), (h).
2

Case 1:18-vv-00120-MCW Document 123 Filed 01/17/23 Page 5 of 8
before the special master to award reasonable attorneys’ fees and costs incurred in proceeding
upon this petition.
10. Petitioner and her attorney represent that compensation to be provided pursuant to
this Stipulation is not for any items or services for which the Program is not primarily liable
under 42 U.S.C. § 300aa-15(g), to the extent that payment has been made or can reasonably be
expected to be made under any State compensation programs, insurance policies, Federal or
State health benefits programs (other than Title XIX of the Social Security Act, 42 U.S.C. § 1396
et seq.), or by entities that provide health services on a pre-paid basis.
11. Payment made pursuant to paragraph 8 and any amounts awarded pursuant to
paragraph 9 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa-15(i), subject
to the availability of sufficient statutory funds.
12. The parties and their attorneys further agree and stipulate that, except for any
award for attorneys’ fees and litigation costs, and past unreimbursed expenses, the money
provided pursuant to this Stipulation will be used solely for the benefit of petitioner, as
contemplated by a strict construction of 42 U.S.C. § 300aa-15(a) and (d), and subject to the
conditions of 42 U.S.C. § 300aa-15(g) and (h).
13. In return for the payments described in paragraphs 8 and 9, petitioner, in her
individual capacity, and on behalf of her heirs, executors, administrators, successors or assigns,
does forever irrevocably and unconditionally release, acquit and discharge the Secretary of
Health and Human Services and the United States of America from any and all actions or causes
of action (including agreements, judgments, claims, damages, loss of services, expenses and all
demands of whatever kind or nature) that have been brought, could have been brought, or could
be timely brought in the Court of Federal Claims, under the National Vaccine Injury
3

Case 1:18-vv-00120-MCW Document 123 Filed 01/17/23 Page 6 of 8
Compensation Program, 42 U.S.C. § 300aa-10 et seq., on account of, or in any way growing out
of, any and all known or unknown, suspected or unsuspected personal injuries to, or death of,
petitioner resulting from, or alleged to have resulted from, the flu vaccine administered on
October 12, 2011, as alleged by petitioner in a petition for vaccine compensation filed on or
about January 24, 2018, in the United States Court of Federal Claims as petition No. 18-120V.
14. If petitioner should die prior to entry of judgment, this agreement shall be
voidable upon proper notice to the Court on behalf of either or both of the parties.
15. If the special master fails to issue a decision in complete conformity with the
terms of this Stipulation, or if the Court of Federal Claims fails to enter judgment in conformity
with a decision that is in complete conformity with the terms of this Stipulation, then the parties’
settlement and this Stipulation shall be voidable at the sole discretion of either party.
16. This Stipulation expresses a full and complete negotiated settlement of liability
and damages claimed under the National Vaccine Injury Act of 1986, as amended, except as
otherwise noted in paragraph 9 above. There is absolutely no agreement on the part of the
parties hereto to make any payment or to do any act or thing other than is herein expressly stated
and clearly agreed to. The parties further agree and understand that the award described in this
Stipulation may reflect a compromise of the parties’ respective positions as to liability and/or
amount of damages, and further, that a change in the nature of the injury or condition or in the
items of compensation sought, is not grounds to modify or revise this agreement.
17. This Stipulation shall not be construed as an admission by the United States of
America or the Secretary of Health and Human Services that petitioner’s alleged GBS and
residual effects, or any other injury, were caused by the flu vaccine.
4

Case 1:18-vv-00120-MCW Document 123 Filed 01/17/23 Page 7 of 8
18. All rights and obligations of petitioner hereunder shall apply equally to
petitioner’s heirs, successors and/or assigns.
END OF STIPULATION
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