Paul Giaccio v. HHS - Influenza, Sepsis [d]ue to . . . Group A Streptococcal Necrotizing Myositis (2023)

Paul Giaccio received an influenza vaccine on November 13, 2018. He presented with left shoulder pain prior to vaccination and right shoulder pain, fatigue, and headache three days later.

He was found unresponsive on November 18, 2018, and pronounced deceased on November 19, 2018. An autopsy revealed sepsis due to Group A Streptococcal Necrotizing Myositis as the cause of death.

His estate filed a petition for compensation on March 18, 2021, approximately 119 days after the statute of limitations deadline of November 19, 2020. The petitioner argued for equitable tolling due to extraordinary circumstances, including counsel's personal health issues, family matters, and office staff illnesses, compounded by the COVID-19 pandemic.

The court denied the motion for review, finding that the petitioner failed to demonstrate both diligence and extraordinary circumstances sufficient to justify equitable tolling. The court noted that the alleged circumstances did not account for the full 119-day delay and that counsel's prioritization of other cases and delay in filing without a necessary expert report constituted excusable neglect rather than extraordinary circumstances.

Consequently, the petition was dismissed as untimely.