Bruce A. Ling Jr. v. HHS - Influenza, fever, lightheadedness, labored breathing, fluttering heart, spasms, weakness, fatigue, clenching jaw, eventual unexplainable head, muscle and joint aches; Guillain-Barre syndrome (GBS) (2019)

Bruce A. Ling Jr. filed a second petition under the National Childhood Vaccine Injury Act on June 18, 2018, seeking compensation for alleged injuries following an influenza vaccination on November 8, 2011.

Mr. Ling, who was 35 years old and incarcerated at the time of vaccination, had previously filed a petition in 2014, which was denied on July 21, 2017, because his treating physicians did not substantiate his claims of injury and he failed to provide expert opinion linking the vaccine to his alleged injuries.

He also pursued a claim in federal district court, which was dismissed for failure to state a claim on July 16, 2018. The current petition was filed on June 18, 2018, while the federal district court action was still pending, which the respondent argued was a jurisdictional bar under the Vaccine Act, citing 42 U.S.C. § 300aa-11(a)(5)(B).

The respondent also argued the petition was barred by the statute of limitations, though Mr. Ling contended that a 2017 amendment to the Vaccine Injury Table, which added Guillain-Barre Syndrome (GBS) with onset between two and 42 days following the flu vaccine as presumptively caused by the vaccine, extended the filing deadline under 42 U.S.C. § 300aa-16(b).

Special Master Christian J. Moran initially viewed the jurisdictional defect as "needless formalism" and allowed the case to proceed, ordering Mr.

Ling to supplement his petition with evidence of GBS. However, the Court of Federal Claims, in an opinion by Judge Patricia E.

Campbell-Smith, reversed this decision. The court held that jurisdictional requirements cannot be waived and that Mr.

Ling's petition should have been dismissed for lack of jurisdiction because he had a pending civil action when he filed the Vaccine Act petition, citing Flowers v. Secretary of Health & Human Services.

The court found that the special master erred by not dismissing the petition on jurisdictional grounds and therefore did not review the merits of the case. The petition was dismissed for lack of jurisdiction.

Mr. Ling was represented pro se.

Respondent was represented by Lara Englund in the Special Master's decision and by Amy P. Kokot, Joseph H.

Hunt, C. Salvatore D’Alessio, Catharine E.

Reeves, and Heather L. Pearlman in the Court of Federal Claims decision.