VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-01965
Package ID: USCOURTS-cofc-1_21-vv-01965
Petitioner: Katherine Huntoon
Filed: 2021-10-05
Decided: 2023-08-14
Vaccine: influenza
Vaccination date: 2018-10-02
Condition: post-viral syndrome and cerebellar ataxia
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
On October 5, 2021, Katherine Huntoon filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging that an influenza vaccine she received on October 2, 2018, caused her to develop post-viral syndrome and cerebellar ataxia. Ms. Huntoon, who was 67 years old at the time of vaccination, had a pre-existing history of multiple sclerosis, diabetes, hearing loss, muscle spasticity, episodes of dizziness, and mild ataxia. She reported feeling "somewhat dizzy but otherwise alright" on the drive home after her vaccination on October 2, 2018. Two days later, on October 4, 2018, during a routine appointment with her neurologist, Dr. Bharathy Sundaram, she reported experiencing excessive fatigue for the past three weeks and "excessive dizziness" since the vaccination. Dr. Sundaram noted an acute onset of vertigo, gait changes, headache, fever, and extreme fatigue, diagnosing her with acute cerebellar ataxia and directing her to the emergency room. She was admitted to Texoma Medical Center, where she was diagnosed by Dr. Meena Betha with ataxia associated with dizziness, though the possibility of it being secondary to her multiple sclerosis was questioned. A CT scan of her brain showed no acute abnormalities. On October 5, 2018, Dr. Shyama Satyan, a neurologist at the hospital, noted that Ms. Huntoon's ataxia started on the evening of October 2, 2018, and was suspected to be secondary to the vaccine, while also considering an exacerbation of MS. Ms. Huntoon was treated with Solu-Medrol. MRIs of her spine and brain were performed, showing mild age-related atrophy and a chronic white-matter ischemic pattern, but no enhancement of MS-related lesions. Nurse practitioner Emmy Kirui-Modi assessed her with "Acute cerebellar ataxia-suspect secondary to recent flu vaccine" on October 11, 2018. Ms. Huntoon was discharged to rehabilitation hospital and continued to have medical follow-ups for various conditions unrelated to her cerebellar ataxia until June 2021. Respondent filed a motion to dismiss, arguing the case was untimely filed under the Vaccine Act's three-year statute of limitations. Respondent contended that Ms. Huntoon's symptoms manifested between October 2 and October 4, 2018, meaning the petition should have been filed by October 4, 2021. The petition was formally received by the Clerk of Court on October 5, 2021. Ms. Huntoon argued for equitable tolling, citing alleged malfunctions in the Public Access to Court Electronic Records (PACER) system and her own mental incapacity due to her numerous medical conditions. Chief Special Master Brian H. Corcoran granted the motion to dismiss, finding the claim untimely. He determined that Ms. Huntoon's symptoms, including dizziness, began on or around October 2, 2018, making the October 5, 2021 filing late. He found that neither the alleged PACER system failure nor her medical conditions constituted extraordinary circumstances sufficient for equitable tolling. Ms. Huntoon moved for review of this decision. On August 14, 2023, Judge Ryan T. Holte issued an opinion and order denying the motion for review and sustaining the Chief Special Master's decision. The court found that the medical records reasonably supported the conclusion that dizziness was a symptom of cerebellar ataxia and that Ms. Huntoon's report of dizziness on October 2, 2018, triggered the statute of limitations. The court affirmed that the petition was filed untimely and that equitable tolling was not warranted, upholding the dismissal of the case. Petitioner counsel was Sean Franks Greenwood. Respondent counsel was Benjamin Patrick Warder. The Special Master was Brian H. Corcoran. The Judge was Ryan T. Holte.

Theory of causation field:
Petitioner Katherine Huntoon, age 67, received an influenza vaccine on October 2, 2018. She alleged this vaccine caused post-viral syndrome and cerebellar ataxia. The petition was filed on October 5, 2021. The Special Master and the reviewing court determined that Ms. Huntoon's symptoms, specifically dizziness, began on October 2, 2018, the date of vaccination. This onset date triggered the three-year statute of limitations, requiring the petition to be filed by October 4, 2021. As the petition was filed on October 5, 2021, it was deemed untimely. The court found that dizziness was a symptom of cerebellar ataxia, supported by medical records from treating physicians and, to a lesser extent, external medical information. Arguments for equitable tolling based on alleged PACER system malfunctions and mental incapacity due to Ms. Huntoon's extensive medical history were rejected, as the circumstances were not deemed extraordinary enough to warrant tolling. The case was dismissed as untimely. Petitioner counsel was Sean Franks Greenwood, respondent counsel was Benjamin Patrick Warder, Special Master was Brian H. Corcoran, and Judge was Ryan T. Holte.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_21-vv-01965-0
Date issued/filed: 2023-02-27
Pages: 7
Docket text: PUBLIC DECISION (Originally filed: 01/31/2023) regarding 26 DECISION of Special Master. Signed by Chief Special Master Brian H. Corcoran. (saj) Service on parties made.
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Case 1:21-vv-01965-RTH Document 27 Filed 02/27/23 Page 1 of 7
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-1965V
(not to be published)
* * * * * * * * * * * * * * * * * * * * * * * * *
KATHERINE HUNTOON, * Chief Special Master Corcoran
*
Petitioner, * Dated: January 31, 2023
*
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * * *
Sean Franks Greenwood, The Greenwood Law Firm, Houston, TX, Petitioner.
Benjamin Patrick Warder, U.S. Dep’t of Justice, Washington, DC, Respondent.
DECISION GRANTING MOTION TO DISMISS1
On October 5, 2021, Katherine Huntoon filed a petition for compensation under the
National Vaccine Injury Compensation Program (“Vaccine Program”)2 (ECF No. 1) (“Petition”).
Petitioner alleges that an influenza (“flu”) vaccine she received on October 2, 2018, caused her to
incur post-viral syndrome and cerebellar ataxia. Id.
Respondent filed a Rule 4(c) Report and a Motion to Dismiss in August 2022, arguing that
the case was untimely under the Act’s three-year limitations period (Section 16 (a)(2)). ECF No.
1 This Decision will be posted on the United States Court of Federal Claims’ website in accordance with the E-
Government Act of 2002, 44 U.S.C. § 3501 (2012). This means the Decision 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 published
Ruling’s inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has
fourteen (14) 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 entire Decision will be available to the public in its current form. Id.
2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa-10–34 (2012)) (hereinafter “Vaccine Act” or “the Act”).
All subsequent references to sections of the Vaccine Act shall be to the pertinent subparagraph of 42 U.S.C. § 300aa.

Case 1:21-vv-01965-RTH Document 27 Filed 02/27/23 Page 2 of 7
22 (“Mot.”). Petitioner opposed the motion on September 23, 2022. ECF No. 24 (“Opp”).
Subsequently, Respondent filed a Reply on October 7, 2022 (ECF No. 25) (“Reply”). Having
reviewed the parties’ submissions, I hereby determine (as discussed below) that Petitioner's claim
is untimely, and also that she has not established a basis for equitable tolling of the limitations
period.
RELEVANT FACTUAL BACKGROUND3
Ms. Huntoon’s pre-vaccination medical history included diagnosed multiple sclerosis
(“MS”), diabetes, bilateral sensorineural hearing loss, muscle spasticity, mild ataxia, temporal
arteritis, and episodes of dizziness and difficulty balancing, among other ailments. Ex. 1 at 15–17,
27; Ex. 2 at 146–62, 164, 198, 201–04; Ex. 14 at 2–4. On October 2, 2018, Petitioner (then 67
years old) received a flu vaccine during her annual physical examination. Ex. 1 at 15–17.
Two days later, on October 4, 2018, Petitioner had an appointment with her neurologist,
Bharathy Sundaram, M.D. for treatment of her MS. Ex. 2 at 187–93. Petitioner reported on this
date that for the prior three weeks, she had been experiencing excessive fatigue. Id. at 187.
Petitioner also noted that two days earlier, she had received a vaccination and had since been
experiencing “excessive dizziness” that had not subsided. Id. (In her affidavit, Petitioner pinpoints
the onset of this dizziness, stating that on the drive home after receiving the vaccination, she felt
“somewhat dizzy but otherwise alright.” Ex. 20 at 1. By the day of her visit to Dr. Sundaram,
however, she felt “extremely dizzy and off-balance” when she woke up. Id.) And Petitioner
reported during the October 4th treatment visit that she felt a “room spinning sensation when she
lays flat and then gets up.” Ex. 2 at 187.
Upon examination, Dr. Sundaram noted that Petitioner had acute onset of vertigo, gait
changes, headache, fever, and extreme fatigue. Ex. 2 at 192. Petitioner was thus diagnosed with
acute cerebellar ataxia and directed to visit the emergency room (“ER”).4 Id. Petitioner went to the
ER at Texoma Medical Center and was admitted to the hospital, remaining until October 11, 2018.
Ex. 3 at 355. Meena Betha, M.D., performed Petitioner’s admission evaluation. Id. at 355–60. Dr.
Betha noted that Petitioner received a vaccination two days earlier, and since then had been
experiencing dizziness. Id. at 355. Dr. Betha diagnosed Petitioner with ataxia associated with
dizziness—although she questioned whether the ataxia was secondary to an exacerbation of her
MS. Id. at 357. Petitioner’s brain CT scan (performed on the same day) did not reveal evidence of
an acute intracranial abnormality. Ex. 2 at 323.
3 The medical records are summarily addressed to focus on the relevant records impacting the motion to dismiss.
4 Dr. Sundaram added that she spoke with a treater at Texoma Medical Center’s Emergency Department regarding
“the cerebellar inflammation, post vaccination related changes.” Ex. 2 at 192.
2

Case 1:21-vv-01965-RTH Document 27 Filed 02/27/23 Page 3 of 7
On October 5, 2018, Petitioner had a neurology consultation with Shyama Satyan, M.D.,
(while she was admitted at Texoma Medical Center). Ex. 3 at 370–72. Dr. Satyan noted that
Petitioner received the flu vaccine on the previous Tuesday (October 2, 2018), and that she did not
feel well after receiving it. Id. at 370. Dr. Satyan added that Dr. Sundaram suspected that Petitioner
had “acute cerebellar ataxia due to flu injection.” Id. Dr. Satyan stated that Petitioner had ataxia,
and that it “started on Tuesday night” (October 2, 2018). Id. at 371. Dr. Satyan added that Petitioner
was also suspected to have acute cerebellar ataxia that was “secondary to both post vaccine” and
Petitioner’s ataxic symptoms “started after a flu vaccine.” Id. Dr. Satyan noted that another
possible cause of Petitioner’s ataxia was exacerbation of her MS. Id. Dr. Satyan started Petitioner
on Solu-Medrol. Id.
An MRI of Petitioner’s cervical spine performed on the same day did not reveal
enhancement of MS-related lesions. Ex. 2 at 327. An MRI of Petitioner’s brain, also performed on
October 5, 2018, revealed very mild age-related atrophy with a mild, chronic white-matter
ischemic pattern bilaterally. Id. at 325. An MRI of Petitioner’s lumbar spine, performed on October
7, 2018, revealed degenerative changes and diffuse suppression of the marrow signal. Id. at 330.
Regarding the finding of diffuse suppression of the marrow signal, Paul Wheeler, M.D., the
radiologist who read the MRI of Petitioner’s lumbar spine, recommended clinical correlation. Id.
An MRI of Petitioner’s thoracic spine, also performed on October 7, 2018, revealed degenerative
changes, heterogenous appearance of marrow signal within the sternum, and diffuse suppression
of marrow signal in the thoracic spine. Id. at 331–32.
On October 11, 2018, nurse practitioner (“NP”) Emmy Kirui-Modi performed a
neurological examination on Petitioner. Ex. 3 at 408–12. NP Kirui-Modi’s assessment included
“[a]cute cerebellar ataxia-suspect secondary to recent flu vaccine.” Id. at 412. That same day,
Petitioner was discharged from Texoma Medical Center and was transferred to Carrus
Rehabilitation Hospital (“CRH”) for inpatient rehabilitation from October 11, 2018 to October 16,
2018. Id. at 345–52; Ex. 4 at 39.
Petitioner continued to have follow-up appointments with neurology and undergo testing
along with other ailments that required physician visits and even hospitalization (unrelated to her
cerebellar ataxia)5 throughout October 2016 until June 2021.
PROCEDURAL HISTORY
As noted above, the case was initiated in October 2021. Petitioner’s counsel claims to have
filed the Petition on October 4, 2021, around 9:00 p.m. (CST)—and indeed, he dated the Petition
for October 4, 2021—using the Public Access to Court Electronic Records (“PACER”) system.
5 Petitioner was not diagnosed with post-viral syndrome (another claimed injury in this case) until November 2018.
Pet. at 5.
3

Case 1:21-vv-01965-RTH Document 27 Filed 02/27/23 Page 4 of 7
Opp. at 5. The Petition was thereafter formally received and marked as filed by the Clerk of Court
for the following day—October 5, 2021. Id. at 5–6. The case was later assigned to me, and I held
a status conference ordering Respondent to file a Rule 4(c) Report. Scheduling Order, dated April
21, 2022. The parties thereafter submitted briefs on the issues of onset, timeliness, and equitable
tolling. ECF Nos. 22, 24–25.
RELEVANT LEGAL STANDARDS
The Vaccine Act’s statute of limitations is three years/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 Federal Circuit has held that the doctrine of equitable tolling can apply to Vaccine Act
claims. See Cloer v. Sec'y of Health & Human Servs., 654 F.3d 1322, 1340-41 (Fed. Cir. 2011).
However, in keeping with applicable U.S. Supreme Court precedent, equitable tolling of a
limitations period is to be permitted “sparingly.” Irwin v. Dep't of Veterans Affairs, 498 U.S. 89,
96, (1990). The appropriateness of equitable tolling is ultimately to be determined on a case-by-
case basis, without rigid application of any relevant overarching guidelines. 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).
Initially, the Federal Circuit primarily enumerated fraud and duress—but not, for example,
lack of awareness on a petitioner's part that she might have an actionable claim—as bases for
tolling. Cloer, 654 F.3d at 1344–45 (noting 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”). But after Cloer, some special masters reasoned that mental incapacity might also
be appropriate grounds for tolling. See, e.g., Gray v. Sec'y of Health & Human Servs., No, 15-
146V, 2016 WL 6818884, at *7 (Fed. Cl. Spec. Mstr. Oct. 17, 2016) (deeming mental incapacity
“an extraordinary circumstance beyond the control of the petitioner”); J.H. v. Sec'y of Health &
Human Servs., 123 Fed. Cl. 206 (2015), on remand, No. 09-453V, 2015 WL 9685916, at *7 (Fed.
Cl. Spec. Mstr. Dec. 21, 2015) (finding that “petitioners in the Vaccine Program may invoke
equitable tolling based upon mental illness”).6 Then, in K.G. v. Sec'y of Health & Hum. Servs., 951
6 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.
4

Case 1:21-vv-01965-RTH Document 27 Filed 02/27/23 Page 5 of 7
F.3d 1374, 1380–82 (Fed. Cir. 2020), the Circuit more explicitly endorsed the proposition that
mental incapacity is a basis for equitable tolling in the Program.
ANALYSIS
I. Petitioner’s Date of Onset Occurred Before October 4, 2018
Petitioner proposes an onset date occurring after October 5, 2018, relying on previous cases
finding that symptoms for cerebellar ataxia can begin within four to seven days after vaccination.
Opp. at 8–9; Stewart v. Sec'y of Health & Hum. Servs., No. 06-287V, 2007 WL 1032377, at *16
(Fed. Cl. Spec. Mstr. Mar. 19, 2007). Respondent, by contrast, maintains that Petitioner’s onset
occurred between October 2nd and 4th at the latest (with the possibility that Petitioner’s symptoms
actually began pre-vaccination), and therefore that the claim was filed in an untimely manner. Mot.
at 15–19; Reply at 7–10.
The evidence found in the medical record preponderantly supports an onset date prior to
October 4, 2018. First, as she stated to multiple treaters (and as reiterated in Petitioner’s affidavit),
Ms. Huntoon became dizzy on the day she received her flu vaccine—October 2nd. Ex. at 187; Ex.
3 at 355, 370–71; Ex. 20 at 1. Second, Petitioner’s treaters first diagnosed her with acute cerebellar
ataxia on October 4th (meaning her symptoms had to have manifested by that time), and she was
subsequently admitted to the ER that same day. Ex 2 at 192. Ataxia can present medically with
dizziness (vertigo), and it appears on this record that treaters considered Petitioner’s complains of
dizziness to represent ataxia. See Ataxia, Mayo Clinic, https://www.mayoclinic.org/diseases-
conditions/ataxia/symptoms-causes/syc-20355652 (last visited on Jan. 31, 2023). Indeed, there is
evidence in this record of dizziness preceding the date of vaccination. Ex. 2 at 162.
Thus, this record does not permit the conclusion that Petitioner’s onset occurred on October
4, 2018. In Program cases, onset is measured from first manifestation of symptom, regardless of
whether it is understood in that manner—or whether additional symptoms progression confirming
the diagnosis occur later in sequence. See Section 16(a)(2); see also Cloer, 654 F.3d at 1335, 1340.
Though Petitioner points to timeframes for cerebellar ataxia that have been deemed
medically acceptable in previous cases, they do not determine Petitioner’s onset date in this case.
Rather, they merely stand as potentially-reliable timeframes in which a comparable condition
could occur post-vaccination. But the relevant contemporaneous medical records clearly indicate
that Petitioner’s symptoms began before October 4th. See Burns v. Sec'y of Health & Human Servs.,
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.
5

Case 1:21-vv-01965-RTH Document 27 Filed 02/27/23 Page 6 of 7
3 F.3d 415, 417 (Fed. Cir. 1993) (finding that it is within the special master's discretion to
determine whether to afford greater weight to contemporaneous medical records than to other
evidence provided that such determination is evidenced by a rational basis for the decision). And
in this case, there is no inconsistency between witness statements and the records to be resolved—
since all point to an earlier onset.
II. Petitioner's Claim is Untimely and Not Subject to Equitable Tolling
To comply with the statute of limitations, this Petition must have been filed within 36
months of the first occurrence or manifestation of Ms. Huntoon’s cerebellar ataxia. Based on my
determination above, her symptoms most likely began sometime between October 2 and October
4, 2018, so the Petition needed to be filed before October 4, 2021. But it was filed no sooner than
October 5th, as evidenced by the Court’s CM/ECF system. And even if I were to credit the October
4th filing date argument made by Petitioner (which relies on somewhat unsubstantiated contentions
about malfunctions in the filing system), the claim would still be untimely. Spohn, 1996 WL
532610.
Petitioner argues that equitable tolling should apply, due to the extraordinary circumstances
of the alleged PACER system failure. Opp. at 3, 5–7; see also Mojica v. Sec'y of Health & Hum.
Servs., 102 Fed. Cl. 96, 101 (2011) (permitting tolling due to a delivery error by a courier service
“upon which courts and attorneys routinely rely”). But not only do the present circumstances not
involve a comparable error beyond the Petitioner’s control, but (as noted above) even an October
4th filing date would have been untimely—since the alleged filing system failure would have
occurred after the running of the limitations period.
Petitioner’s argument that mental incapacity (attributable to her demonstrated medical
issues, which are admittedly considerable)7 provides a basis for equitable tolling is also unavailing.
Opp. at 3–4. Petitioner has simply not demonstrated that the burdens imposed on her by her health
issues resulted in outright mental incapacity at any time during the three-year period after October
2-4, 2018, such that she was incapable of “rational thought or deliberate decision making,” or
“incapable of handling [her] own affairs or unable to function [in] society.” Barrett v. Principi,
363 F.3d 1316, 1321 (Fed. Cir. 2004). The unquestionable impact of her medical suffering has not
7 In her Response, Petitioner lists the following illnesses and conditions that she had previously and/or developed the
two years following her vaccination—MS, cerebellar ataxia, intractable migraine, diabetes, acute blood loss anemia,
acute lower GI bleeding, GI hemorrhage, a history of temporal arteritis, post-vaccine polyneuritis, acute inflammatory
demyelinating polyneuropathy, myasthenia gravis, chronic spastic paraplegia, idiopathic progressive neuropathy, iron
deficiency anemia, post-vial syndrome also known as chronic fatigue syndrome or myalgic encephalomyelitis
(“ME/CFS”), giant cell arteritis (“GCA”), polymyalgia rheumatica (“PMR”), muscle weakness, fatigue, GCA,
osteopenia, generalized osteoarthritis of the wrist, ischemic colitis, hyperkalemia, muscle spasticity, abnormality of
gait and mobility, rheumatoid factor positive, mononeuropathy, neuropathy of the right peroneal nerve, neuropathy of
the left sciatic nerve, mild diverticulosis in the sigmoid colon, stable angina, hypertension, coronary artery disease,
and lumbar spondylosis. Opp. at 4.
6

Case 1:21-vv-01965-RTH Document 27 Filed 02/27/23 Page 7 of 7
been shown to rise to the level of the kind of mental capacity observed in other cases as a basis for
tolling. See, e.g., K.G., 951 F.3d at 1376 (finding that after an alleged vaccine injury, the petitioner
had succumbed to alcoholism, spent months in the hospital, and developed amnesia, such that she
was later declared by an Iowa state court to be incapable of caring for herself and appointed a
guardian); Gray, 2016 WL 787166, at *1, 3–4 (contending that petitioner was “unable to engage
in rational thought” which prevented her from “managing her affairs and thus from understanding
her legal rights and acting upon them” and provided numerous records from her providers that she
need assistance from her daughter or son-in-law during her treater visits); J.H., 2015 WL 9685916,
at *21, 24 (noting that petitioner experienced severe mental illness, which included delusions,
suicidal ideation, and severe obsessional rituals).
Petitioner correctly observes that when interpreting doctrines like equitable tolling, the
Circuit counsels special masters to be mindful of the fact that the Program embodies a “pro-
claimant regime meant to allow injured individuals a fair and fast path to compensation.” Opp. at
2; K.G., 951 F.3d at 1380 (citing Cloer, 654 F.3d at 1325). But the U.S. Supreme Court has also
noted that equitable tolling is to be used sparingly. Irwin, 498 U.S. at 96. And here, the
circumstances supporting its application are absent. Thus, although it is regrettable to have to
dismiss a claim that falls just outside the defined limitations period, the Act obligates me to do so.
CONCLUSION
For the reasons set forth above, Petitioner’s claim is untimely and not subject to equitable
tolling. Respondent’s Motion to Dismiss is therefore GRANTED. In the absence of a timely-filed
motion for review (see Appendix B to the Rules of the Court), the Clerk of Court shall enter
judgment in accord with this Decision.8
IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
8 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their
right to seek review.
7

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DOCUMENT 2: USCOURTS-cofc-1_21-vv-01965-1
Date issued/filed: 2023-08-14
Pages: 16
Docket text: JUDGE VACCINE REPORTED OPINION AND ORDER: Public version of 34 Opinion and Order on Motion for Review. Signed by Judge Ryan T. Holte. (jf) Service on parties made. Modified on 8/16/2023 to correct PDF (tjk).
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Case 1:21-vv-01965-RTH Document 36 Filed 08/14/23 Page 1 of 16
CORRECTED
In the United States Court of Federal Claims
No. 21-1965
(Filed: 14 August 2023*)
***************************************
KATHERINE HUNTOON, *
*
Petitioner, *
*
v. *
*
THE UNITED STATES, *
*
Respondent. *
*
***************************************
Sean Franks Greenwood, The Greenwood Law Firm, of Houston, TX, for petitioner.
Benjamin Patrick Warder, Trial Attorney, with whom were Gabrielle M. Fielding,
Assistant Direction, Heather L. Pearlman, Deputy Director, C. Salvatore D’Alessio, Director,
Brian M. Boynton, Principal Deputy Assistant Attorney General, Torts Branch, Civil Division,
U.S. Department of Justice, of Washington, DC, for respondent.
OPINION AND ORDER
HOLTE, Judge.
Katherine Huntoon, a petitioner with pre-existing multiple sclerosis, received the
influenza (“flu”) vaccine on 2 October 2018. The same day she received the shot, Ms. Huntoon
began feeling dizzy. Two days later, on 4 October 2018, at a routine visit for her multiple
sclerosis, she was diagnosed with cerebellar ataxia, a sudden inability to coordinate muscle
movement due to injury to the cerebellum. Ms. Huntoon filed a petition alleging her cerebellar
ataxia was caused by the flu vaccine. Pursuant to § 16(a)(2) of the National Childhood Vaccine
Injury Act of 1986 (“Vaccine Act”), 42 U.S.C. §§ 300aa-1 to -34, the three-year statute of
limitations begins to run from the “first symptom or manifestation of onset.”1 On 31 January
2023, Chief Special Master Brian H. Corcoran dismissed the petition as untimely, finding
“relevant contemporaneous medical records clearly indicate that petitioner’s symptoms began
before [4 October 2018],” so petitioner filed at least a day late. Huntoon v. Sec’y of Health &
Hum. Servs., No. 21-1965V, 2023 WL 2231842 at *4 (Fed. Cl. Special Mstr. Feb. 27, 2023).
*This Opinion and Order was initially filed under seal on 28 July 2023 pursuant to Vaccine Rule 18(b) of the Rules
of the Court of Federal Claims (“VRCFC”). The Court provided the parties 14 days to submit proposed redactions,
if any, before the Opinion and Order was released for publication. Neither party proposed redactions nor indicated
there were redactions by 11 August 2023, the 14-day deadline. This Opinion and Order is now reissued for
publication in its original form.
1 42 U.S.C. § 300aa-16(a)(2).

Case 1:21-vv-01965-RTH Document 36 Filed 08/14/23 Page 2 of 16
Petitioner moved for review of Chief Special Master’s 31 January 2023 decision contending the
Chief Special Master’s decision was arbitrary and capricious because the decision ignored
medical evidence in the record. Petitioner further argued the Chief Special Master erred in not
allowing equitable tolling. While the outcome of a day-late deadline is harsh, the Vaccine Act’s
mandate for symptom onset timing allows no other option—verbis legis tenaciter inhaerendum.
See ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: INTERPRETATIONS OF LEGAL TEXTS,
at v (2012) (translating the Latin phrase to read “Hold tight to the words of the law”) (fittingly
the lead epigraph to Reading Law, capturing the paramount task of judges when interpreting
legal texts: giving enacted language its soundest meaning); see also Lamie v. United States Tr.,
540 U.S. 526, 538 (2004) (“Our unwillingness to soften the import of Congress’ chosen words
even if we believe the words to lead to a harm outcome is longstanding.”). For the following
reasons, the Court denies petitioner’s Motion for Review and sustains the decision of the Chief
Special Master.
I. Petitioner’s Medical History and Vaccination
As the facts have not changed since the beginning of the year, the Court’s recitation of
the factual history draws from the Chief Special Master’s 31 January 2023 Decision Granting
Respondent’s Motion to Dismiss, ECF No. 26 (“Decision Granting Resp’t Mot. to Dismiss”);
petitioner’s 1 March 2023 Motion for Review, ECF No. 28 (“Pet’r Mot. for Review”); and
respondent’s 31 March 2023 Response to Motion for Review, ECF No. 30 (“Resp’t Resp. to
Pet’r Mot. for Review”). Petitioner’s pre-vaccination history included multiple sclerosis (“MS”).
Decision Granting Resp’t Mot. to Dismiss at 2. Initial screening from 2017 revealed Ms.
Huntoon experienced balance problems and dizziness prior to her MS diagnosis (from
approximately 1991 to 2000), and during multiple visits to her neurologist in 2017 (14 February
2017; 17 March 2017; 20 April 2017; 16 May 2017; and 20 June 2017), and, on 2 August 2018,
petitioner exhibited a mildly ataxic gait upon examination. Resp’t Resp. to Pet’r Mot. for
Review at 2 (citing Pet’r Ex. 2 at 146–65, 201–04).
On 2 October 2018, petitioner received a flu vaccination during her annual physical
examination. Decision Granting Resp’t Mot. to Dismiss at 2. On the car ride home following
her examination, petitioner felt “somewhat dizzy but otherwise alright.” Id. (citing Pet’r Ex. 20
at 1). On 4 October 2018, petitioner underwent a routine MS appointment with her neurologist,
Dr. Bharathy Sundaram, and reported experiencing “excessive fatigue” the past three weeks and
“excessive dizziness” after receiving the flu vaccination two days earlier. Id. (citing Pet’r Ex. 2
at 187). Dr. Sundaram noted petitioner had acute onset of vertigo, gait changes, headache, fever,
and extreme fatigue and subsequently diagnosed her with cerebellar ataxia on 4 October 2018.
Id. (citing Pet’r Ex. 2 at 192). Ms. Huntoon was directed to the emergency room (“ER”)
following the cerebellar ataxia diagnosis. Id. (citing Pet’r Ex. 2 at 192). Petitioner was
subsequently admitted to Texoma Medical Center (“TMC”) from 4 October 2018 to 11 October
2018 under the care of Dr. Meena Betha who diagnosed petitioner with ataxia associated with
dizziness. Id. (citing Pet’r Ex. 3 at 355).
On 5 October 2018, while admitted at TMC, petitioner had a neurology consultation with
Dr. Shyama Satyan. Decision Granting Resp’t Mot. to Dismiss at 3 (citing Pet’r Ex. 3 at 370–
72). Dr. Satyan stated petitioner’s ataxia started on Tuesday night, 2 October 2018, and was
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secondary to post vaccine and a possible cause of the exacerbation of Ms. Huntoon’s MS. Id.
(citing Pet’r Ex. 3 at 371). A magnetic resonance imaging of the cervical spine performed on 4
October 2018 did not reveal enhancement of MS-related lesions. Id. (citing Pet’r Ex. 2 at 327).
On 11 October 2018, nurse practitioner Emmy Kirui-Modi conducted a neurological
examination on petitioner and included “[a]cute cerebellar ataxia-suspect secondary to recent flu
vaccine.” Id. (citing Pet’r Ex. 3 at 412). Petitioner was discharged from the ER and transferred
to Carrus Rehabilitation Hospital for inpatient rehabilitation from 11 October 2018 to 16 October
2018. Id. (citing Pet’r Ex 3 at 345–52; Pet’r Ex. 4 at 39). Petitioner attended subsequent medical
appointments for imaging and hospitalizations unrelated to her cerebellar ataxia throughout
October 2016 and until June 2021. Id.
II. Petitioner and Procedural History
The petition was formally received by the Clerk of Court on 5 October 2021. See Pet.,
ECF No. 1. Petitioner’s counsel claims to have filed the petition on 4 October 2021, around 9:00
pm (CST) using the Public Access to Court Electronic Records (“PACER”) system. Decision
Granting Resp’t Mot. to Dismiss at 3. Respondent filed a Rule 4(e) Report and a motion to
dismiss on 12 August 2022, claiming the case is untimely because “[p]etitioner filed her claim
after the expiration of the statutorily prescribed limitations period set forth in Section 16(a)(2) of
the Vaccine Act” and “has not demonstrated the extraordinary circumstances necessary to
equitable toll the Vaccine Act’s statute of limitations.” Resp’t Mot. to Dismiss & Rule 4(c)
Report at 4 (citing 42 U.S.C. § 300aa-16(a)(2)), ECF No. 22. Petitioner responded on 23
September 2022. Pet’r Resp. to Resp’t Mot. to Dismiss, ECF No. 24. Respondent replied on 7
October 2022, ECF No. 25. On 31 January 2023, the Chief Special Master granted respondent’s
Motion to Dismiss. Decision Granting Resp’t Mot. to Dismiss at 7. Pursuant to Rule 23 of the
Vaccine Rules of the Court of Federal Claims (“VRCFC”), petitioner filed a Motion for Review
of the Chief Special Master’s decision on 1 March 2023. Pet’r Mot. for Review. Respondent
responded on 31 March 2023. Resp’t Resp. to Pet’r Mot. for Review. The Court held oral
argument on 14 July 2023. See Order Setting Oral Argument, ECF No. 31; Oral Argument Tr.
(“Tr.”), ECF No. 33.
III. Applicable Law
The Vaccine Act provides this Court jurisdiction to review a special master’s decision
upon timely motion of either party. See 42 U.S.C. § 300aa-12(e)(1)–(2). In reviewing the record
of the proceedings before the special master, the Court may: (1) “uphold the findings of fact and
conclusions of law of the special master and sustain the special master’s decision”; (2) “set aside
any findings of fact or conclusion of law of the special master 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.” Id. § 300aa-12(e)(2). “Fact findings are reviewed . . .
under the arbitrary and capricious standard; legal questions under the ‘not in accordance with
law’ standard; and discretionary rulings under the abuse of discretion standard.” Saunders v.
Sec’y of Dept. of Health & Hum. Servs., 25 F.3d 1031, 1033 (Fed. Cir. 1994) (quoting Munn v.
Sec’y of Dept. of Health & Hum. Servs., 970 F.2d 863, 870 n.10 (Fed. Cir. 1992)).
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It is not the Court’s role “to reweigh the factual evidence, or to assess whether the special
master correctly evaluated the evidence.” Lampe v. Sec’y of Health & Hum. Servs., 219 F.3d
1357, 1360 (Fed. Cir. 2000) (quoting Munn, 970 F.2d at 871). The Court also does “not examine
the probative value of the evidence or the credibility of the witnesses. These are all matters
within the purview of the fact finder.” Id. (quoting Munn, 970 F.2d at 871). “Reversal is
appropriate only when the special master’s decision is arbitrary, capricious, an abuse of
discretion, or not in accordance with the law.” Snyder ex rel. Snyder v. Sec’y of Dept. of Health
& Hum. Servs., 88 Fed. Cl. 706, 718 (2009). The arbitrary and capricious standard “is a highly
deferential standard of review”: “[i]f the special master has considered the relevant evidence of
record, drawn plausible inferences and articulated a rational basis for the decision, reversible
error will be extremely difficult to demonstrate.” Hines ex rel. Sevier v. Sec’y of Dept. of Health
& Hum. Servs., 940 F.2d 1518, 1528 (Fed. Cir. 1991).
IV. Review of the Special Master’s Decision
A. The Chief Special Master’s Determination of Petitioner’s Onset
In his 31 January 2023 decision, the Chief Special Master reiterated, “[O]nset is
measured from first manifestation of symptom, regardless of whether it is understood in that
manner—or whether additional symptoms[’] progression confirming the diagnosis occur later in
sequence.” Decision Granting Resp’t Mot. to Dismiss at 5 (citing 42 U.S.C. § 300aa-16(a)(2);
Cloer v. Sec’y of Health & Hum. Servs., 654 F.3d 1322, 1335, 1340 (Fed. Cir. 2011)). In
determining petitioner’s onset of cerebellar ataxia occurred prior to 4 October 2018, the Chief
Special Master credited the medical records and Ms. Huntoon’s affidavit statements
documenting petitioner’s dizziness on the day she received the vaccine to deduce an onset date
prior to 4 October 2018. Id. (citing Pet’r Ex. 2 at 187, 192; Pet’r Ex. 3 at 355, 370–71; Pet’r Ex.
20 at 1). The Chief Special Master used information on ataxia from the Mayo Clinic to support
dizziness as a symptom of cerebellar ataxia. Id. (citing Ataxia: Symptoms & causes, MAYO
CLINIC (Apr. 9, 2022), https://www.mayoclinic.org/diseases-conditions/ataxia/symptoms-
causes/syc-20355652) (“Ataxia: Symptoms & causes”). The Chief Special Master also noted
the “treaters considered [p]etitioner’s complains [sic] of dizziness to represent ataxia.” Id.
Additionally, the Chief Special Master looked at the date of Ms. Huntoon’s first diagnosis of
acute cerebellar ataxia on 4 October 2018 to deduce petitioner’s “symptoms had to have
manifested” by the time petitioner was diagnosed on 4 October 2018. Id. (citing Pet’r Ex. 2 at
192).
The Chief Special Master rejected petitioner’s argument on the timeframes for cerebellar
ataxia being medically acceptable in previous cases. See id. (citing Stewart v. Sec’y of Health &
Hum. Servs., No. 06-287V, 2007 WL 1032377 at *16 (Fed. Cl. Special Mstr. Mar. 19, 2007)).
The Chief Special Master reasoned “though petitioner points to timeframes for cerebellar ataxia
that have been deemed medically acceptable in previous cases, they do not determine petitioner’s
onset date in this case.” Decision Granting Resp’t Mot. to Dismiss at 5. The Chief Special
Master determined the medical records “clearly indicate that [p]etitioner’s symptoms began
before [4 October 2018].” Id. The Chief Special Master found the record showed no
inconsistencies between witness statements and the record warranting a different onset. Id. at 6.
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The Chief Special Master concluded the evidence in the record preponderantly supported an
onset date prior to 4 October 2018. Id. at 5–6.
B. The Chief Special Master Rejection of Equitable Tolling Applicability
After determining Ms. Huntoon’s symptoms likely began on 2 October 2018 or 3 October
2018, the Chief Special Master determined Ms. Huntoon needed to file the petition before 4
October 2021; petitioner filed no sooner than 5 October 2021 according to the Court’s “Case
Management/Electronic Case Files” docket entry. Id. at 6. The Chief Special Master then
analyzed whether equitable tolling was appropriate. Id. The Chief Special Master reasoned “not
only do the present circumstances not involve a comparable error beyond petitioner’s control, but
even a [4 October 2018] filing date would have been untimely—since the alleged filing system
failure would have occurred after the running of the limitations period.” Decision Granting
Resp’t Mot. to Dismiss at 6.
The Chief Special Master rejected petitioner’s argument for mental incapacity providing
a basis for equitable tolling. Id. While petitioner referenced her medical history to support her
general mental incapacity, the Chief Special Master, analyzed other cases permitting equitable
tolling and found the “impact of her medical suffering [did] not . . . rise to the level of kind of
mental capacity” warranting equitable tolling. Id. at 6–7. The Chief Special Master found
petitioner did not demonstrate she was incapable of “rational thought or deliberate decision
making,” or “incapable of handling [her] own affairs or unable to function [in] society” during a
three-year period after 2 October 2018 or 4 October 2018. Id. at 6 (citing Barrett v. Principi, 363
F.3d 1316, 1321 (Fed. Cir. 2004)).
The Chief Special Master acknowledged the Vaccine Program embodies a “pro-claimant
regime meant to allow injured individuals a fair and fast path to compensation.” Id. at 7 (citing
Cloer, 654 F.3d at 1325). The Chief Special Master clarified the doctrine of equitable tolling is
to be used sparingly. Id. (citing Irwin, 498 U.S. at 96). As petitioner failed to demonstrate both
diligence and extraordinary circumstances, the Chief Special Master concluded equitable tolling
was not warranted and dismissed petitioner’s claim as untimely. Decision Granting Resp’t Mot.
to Dismiss at 7.
V. Party Arguments
On 1 March 2023, petitioner moved for review of the Chief Special Master’s 31 January
2023 Decision Granting Motion to Dismiss. See Pet’r Mot. for Review . In the accompanying
memorandum in support of petitioner’s Motion for Review, petitioner makes two objections: (1)
“The Chief Special Master committed error when determining Petitioner’s onset of Cerebella[r]
Ataxia before 4 October 2018”; and (2) “The Chief Special Master committed error when
determining that Petitioner did not meet the requirements to allow for equitable tolling.” Pet’r
Mem. in Supp. of Mot. for Review at 1, ECF No. 28-1. The Court summarizes the parties’
arguments for each objection in turn.
A. Petitioner’s Onset of Cerebellar Ataxia before 4 October 2018
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Petitioner first objects to the Chief Special Master’s determination of petitioner’s onset of
cerebellar ataxia occurring before 4 October 2018. Id. at 6. Petitioner argues a symptom and a
manifestation of onset are distinguishable. Id. at 6–7 (citing Markovich v. Dep’t of Health and
Hum. Servs., 477 F.3d 1353 (Fed. Cir. 2007)). Petitioner contends the Chief Special Master’s
reliance on a single symptom of dizziness to support his finding of manifestation, which
ultimately triggered the limitations period, was erroneous. Id. at 7. Petitioner also points to two
occasions in the record to suggest the Chief Special Master conceded the injury could have
occurred before the vaccination by noting some dizziness in the medical record. Id. at 9 (citing
Pet’r Ex. 3 at 361-64, 455-63, 846). Petitioner contends the history of dizziness only solidifies
the symptom is not indicative of onset because it “may be associated with more than one
condition.” Id. at 6. Focusing on the symptom itself, petitioner asserts dizziness is vague and
can be associated with a myriad of issues, therefore the Chief Special Master erred in applying
dizziness exclusively with ataxia. Pet’r Mem. in Supp. of Mot. for Review at 7.
Petitioner further underlines the Chief Special Master’s error in relying on one article
listing “poor coordination, loss of balance, and difficulty walking,” when other articles do “not
mention dizziness as a symptom.” Id. (internal quotation marks omitted). The diagnostic criteria
described in the articles presented by petitioner depict mobility and gait issues; they do not
mention dizziness as a symptom of cerebellar ataxia. Id. at 7. Petitioner maintains experiencing
dizziness on the day of the vaccination is “not evidence of anything.” Id. at 7.
Citing White v. Secretary of Health and Human Services, petitioner also asserts the Chief
Special Master should have looked at a “significant shift of symptomology . . . beyond simple
dizziness/lightheadedness” as the trigger for the statute of limitations. Id. at 7-8 (citing White v.
Sec’y of Health & Hum. Servs., No. 04-337V, 2011 WL 6176064, at *33-34 (Fed. Cl. Nov. 22,
2011). According to petitioner, symptoms on 4 October 2018 worsened and “went beyond
simple dizziness/lightheadedness,” so the onset should have been later than what the Chief
Special Master determined. Id. Petitioner proposes the onset occurred after 5 October 2018
because it marks the start of severe headaches, numbness/tingling in her extremities, and
abnormal electrocardiogram readings. Pet’r Mem. in Supp. of Mot. for Review at 9 (citing Pet’r
Ex. 3 at 361-64, 846).
Petitioner also argues the Chief Special Master’s finding the injury occurred on the date
of the vaccination flies “in the face of so much evidence to the contrary,” and petitioner “should
have been allowed to litigate onset, testify, and provide expert testimony.” Id. at 8. Cerebellar
ataxia symptoms and findings would verify petitioner’s argument for an onset date of 5 October
2018, but the Chief Special Master did not hear evidence relating to the higher pain levels and
loss of reflex as symptoms. Id. at 9. If the Chief Special Master heard such evidence, according
to petitioner, she would not need to argue equitable tolling at all. Id.
Pointing to the Federal Circuit, respondent highlights “[t]he statute of limitations in the
Vaccine Act begins to run on the date of occurrence of the first symptom or manifestation of
onset of the vaccine-related injury for which compensation is sought, and the symptom or
manifestation of onset must be recognized as such by the medical profession at large.” Resp’t
Resp. to Pet’r Mot. for Review at 6 (citing Cloer v. Sec’y of Health & Hum. Servs., 654 F.3d
1322, 1335 (Fed. Cir. 2011)). Moreover, respondent asserts the Chief Special Master was
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correct in holding the statute of limitations can be triggered either by a ‘symptom’ or a
‘manifestation of onset,’ whichever comes first. See id. (citing 42 U.S.C. § 300aa-16(a)(2)).
Respondent highlights the Chief Special Master’s explanation: “onset is measured from first
manifestation of symptom, regardless of whether it is understood in that manner.” Id. (citing §42
U.S.C. § 300aa-16(a)(2); Cloer, 654 F.3d at 1335, 1340). Respondent cites “Ataxia: Diagnosis
& treatment” from Mayo Clinic’s website, which lists dizziness as a symptom, and the Chief
Special Master agreed it could be a symptom of ataxia. Id. at 10 (citing Ataxia: Diagnosis &
treatment, MAYO CLINIC (Apr. 9, 2022), https://www.mayoclinic.org/diseases-
conditions/ataxia/diagnosis-treatment/drc-20355655).
Respondent further asserts the Chief Special Master’s determination of an onset prior to 4
October 2018 was supported by the record. Id. at 6. Respondent asserts the record demonstrates
petitioner met with Dr. Satyan, at TMC, who noted petitioner’s dizziness “started on Tuesday
night,” 2 October 2018. Id. at 7 (citing Pet’r Ex. 3 at 371). Respondent also highlights Ms.
Huntoon stated to multiple medical professionals she became dizzy on the day she received the
flu vaccination, 2 October 2018, and reiterated her position in her affidavit dated 20 October
2021. Resp’t Resp. to Pet’r Mot. for Review at 7. Respondent contends Ms. Huntoon’s
symptoms had to have manifested by 4 October 2018 to have been diagnosed by 4 October 2018.
Id. at 8. Respondent further defends the Chief Special Master’s decision by highlighting the
absence of inconsistencies between medical records or witness statements. Id. at 10–11 (citing
Kirby v. Sec’y of Health & Hum. Servs., 997 F.3d 1378 (Fed. Cir. 2021)). Based on the record,
respondent asserts the Chief Special Master is correct in determining petitioner’s onset began
before 4 October 2018.
Respondent explains the Chief Special Master “may decide a case on the basis of written
submissions without conducting evidentiary hearing,” but is not required to do so as petitioner
contends. Id. at 11 (citing VRCFC 8(d); Kreizenbeck v. Sec’y of Health & Hum. Servs., 945 F.3d
1362, 1366 (Fed. Cir. 2020)). Further, respondent argues petitioner did not request a hearing.
Id. Respondent asserts the Chief Special Master did not act in an arbitrary manner as the
determination of onset is “overwhelmingly supported by the weight of the record evidence.” Id.
at 12.
B. Applicability of Equitable Tolling
Petitioner asserts the Chief Special Master erred in determining petitioner did not meet
the requirements for equitable tolling. Pet’r Mem. in Supp. of Mot. for Review at 10. Petitioner
argues equitable tolling should be broadly construed to allow injured individuals a fast and fair
path to compensation. Id. at 11 (citing K.G. v. Sec’y of Health & Hum. Servs., 951 F.3d 1374,
1380 (Fed. Cir. 2020)). Petitioner highlights the two elements required for equitable tolling: (1)
diligent pursuit of her rights; and (2) extraordinary circumstances prevented timely filing. Id. at
10-11 (citing K.G., 951 F.3d at 1381).
For the first element—diligence—petitioner asserts she pursued her rights since being
vaccinated in October 2018. Id. at 12. Petitioner explains for two years following the
vaccination, petitioner was diagnosed with a myriad of medical ailments, which affected her
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general mental capacity. Id. Petitioner contends she exercised as much diligence as can be
expected from a reasonable person with her conditions. Id. at 13.
For the second element—extraordinary circumstances—petitioner cites various cases to
assert a court filing system failure warrants equitable tolling. See Pet’r Mem. in Supp. of Mot.
for Review at 11–12 (citing Capital Tracing, Inc. v. United States, 63 F.3d 869, 862-63 (9th Cir.
1995) (lack of clarity in law); Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 239 (3rd
Cir. 1999) (attorney affirmatively lied to diligent client); Pliler v. Ford, 542 U.S. 225 (2004)
(O’Connor, J., concurring) (judicial and governmental interference); Sherwood v. Prelesnik, 579
F.3d 581 (6th Cir. 2009) (reasonable reliance on then-binding circuit precedent)). Petitioner
contends she filed her case on 4 October 2018, but the PACER system malfunctioned, so the
filing date indicates 5 October 2018. Id. at 13–14. Petitioner emphasizes attorney, Anna
Carruth, has extensive experience filing all manner of documents, did not receive confirmation
for the filing fee. Id. Petitioner adds Ms. Carruth conversed with the Court’s information
technology help desk to inquire about a possible outage; the desk “could not confirm or deny an
outage.” Id. at 14. Petitioner argues the court’s decision in Mojica v. Secretary of Health and
Human Services, which found the failure of a commercial overnight delivery service was an
extraordinary circumstance, is similar to petitioner’s circumstances. Id. at 15 (citing Mojica v.
Sec’y of Health & Hum. Servs., 102 Fed. Cl. 96, 100 (2011)). Petitioner maintains “a breakdown
of the court’s filing system is no different” than a failure of a commercial overnight delivery
service, and “[i]t presented an insurmountable obstacle to getting the case timely filed.” Id. at
12. Highlighting Mojica, petitioner explains “preventing a petitioner from pursuing a case
because the court-mandated electronic filing system failed would not further this [equitable
tolling] aim.” Pet’r Mem. in Supp. of Mot. for Review at 11, 15-16 (citing Mojica, 102 Fed. at
101). Due to the PACER error, petitioner contends the Chief Special Master erred in finding the
system failure was not an extraordinary circumstance. Id. at 16.
Respondent argues petitioner’s claim was untimely and not subject to equitable tolling.
See Resp’t Resp. to Pet’r Mot. for Review at 12. Respondent first explains to comply with the
statute of limitations, petitioner must have filed the claim by 4 October 2018 and because the
claim was filed “no sooner than [5 October 2021],” the claim is untimely. Id. Despite
petitioner’s assertion the Chief Special Master erred in determining the claim is not subject to
equitable tolling, respondent contends the Federal Circuit has held equitable tolling is “to be used
‘sparingly’ and only in ‘extraordinary circumstance[s].’” Id. at 13 (quoting Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005)). Respondent argues the circumstances here do not
support the application of equitable tolling. See id. at 17.
Respondent rejects petitioner’s argument for equitable tolling based on mental incapacity.
See id. at 16. Respondent asserts petitioner provided no evidence she was “incapable of handling
[her] own affairs or unable to function [in] society at any point during the three-year limitation
period. Id. (internal quotation marks omitted) (citing Decision Granting Resp’t Mot. to Dismiss
at 6). Respondent argues petitioner retained counsel one-and-a-half years before the statute’s
deadline, supporting her mental competency. Resp’t Resp. to Pet’r Mot. for Review at 17. As
there is no evidence petitioner suffered from a mental incapacity necessary to overcome her
burden for equitable tolling, respondent argues the Chief Special Master did not err in finding
petitioner did not meet the first element. Id.
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Respondent further argues petitioner does not meet the extraordinary circumstances
element. See id. at 14–15. Respondent argues Mojica is factually distinguishable because here
petitioner has not established the Court’s filing system malfunctioned, petitioner waited to file
until three hours before the deadline, and counsel failed to act diligently. Id. at 13–16 (citing
Mojica, 102 Fed. Cl. at 100–01). Respondent additionally rejects the Mojica comparison by a
“possible” PACER outage, stating petitioner relies on a speculative theory rather than clearly
distinguished errors from Mojica. Id. at 15 (citing Mojica, 102 Fed. Cl. at 100–01). In sum,
respondent asserts petitioner did not establish equitable tolling was warranted and therefore the
Chief Special Master did not err in rejecting the use of equitable tolling. Id. at 17.
VI. Whether Petitioner’s Onset Occurred before 4 October 2018
The parties dispute whether the Chief Special Master correctly determined when the
manifestation of onset or symptoms started, triggering the running of the statute of limitations.
In a related argument, the parties disagree whether the Chief Special Master should have heard
evidence on the issue. Regarding the parties’ disagreement over the date of petitioner’s onset,
the Court examines whether the Chief Special Master erred in determining the onset occurred
before 4 October 2018. Next, the Court determines if the Chief Special Master erred in not
conducting an evidentiary hearing or allowing additional evidence about the onset date.
A. Whether the Chief Special Master Erred in Determining the Date of Onset
The primary dispute is whether the Chief Special Master erred in determining the onset
occurred before 4 October 2018. At oral argument, the parties further defined the dispute:
whether dizziness is a symptom of cerebellar ataxia. Tr. at 70:20–21 (“[PETITIONER]: [W]e
argued that dizziness was not a symptom of ataxia.”). Related to dizziness as a symptom of
cerebellar ataxia, petitioner argues the medical records are ambiguous and the Chief Special
Master misinterpreted the medical records. Tr. at 25:13–24 (“THE COURT: So, . . . there
. . . might be some confusion in the medical records . . . . [PETITIONER]: Correct. And all the
evidence in the medical records comes from the plaintiff telling them that, I felt a little dizzy on
the ride home, and that’s in her . . . affidavit . . . . THE COURT: So, the Chief Special Master’s
interpretation of the medical records might be just confusing then? [PETITIONER]: Correct.”),
38:25–39:7 (“THE COURT: So, [petitioner], is it your position that Dr. Satyan is
mischaracterizing what Dr. Sundaram had previously said? [PETITIONER]: Correct. And that
[Dr. Satyan] may be attributing [the dizziness] to her MS more than the ataxia. THE COURT:
Ongoing MS symptoms versus acute ataxia? [PETITIONER]: Yes.”). Petitioner alternatively
argued if dizziness was a symptom, the dizziness on 2 October 2018 would not trigger the statute
of limitations because it lacked the necessary severity. Tr. at 17:3–14 (“THE COURT: So, you
disagree then that if dizziness is a symptom of [cerebellar ataxia], it does not trigger the statute of
limitations? [PETITIONER]: Correct. THE COURT: Okay. Well, what does trigger then?
[PETITIONER]: A more substantial [and] unique symptom. THE COURT: So, the distinction
then is a substantial symptom versus any symptom? [PETITIONER]: A unique and more
substantial symptom, yes . . . .”). The government maintained the medical records indicate Ms.
Huntoon’s treating physicians considered dizziness a symptom of cerebellar ataxia and the
manifestation of dizziness on 2 October 2018 triggered the start of the statute of limitations. See
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Tr. at 56–57:21–1 (“[RESPONDENT]: . . . Respondent’s position is that the dizziness was a
symptom of the [cerebellar ataxia]. THE COURT: Because of the medical records?
[RESPONDENT]: Yes.”). The Court first addresses whether the Special Master erred in finding
dizziness was a symptom of cerebellar ataxia. Then, the Court examines if dizziness on 2
October 2018 would have triggered the statute of limitations.
1. Whether Dizziness Is a Symptom of Cerebellar Ataxia
Section 16(a)(2) of the Vaccine Act, states “no petition may be filed for compensation
under the Program for such injury after the expiration of 36 months after the date of 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) (emphasis added). The Federal Circuit has explained “[a]
symptom may be indicative of a variety of conditions or ailments, and it may be difficult for lay
persons to appreciate the medical significance of a symptom regarding a particular injury. A
manifestation of onset is more self-evident of an injury and may include significant symptoms
that clearly evidence an injury.” Markovich v. Dep’t of Health and Hum. Servs., 477 F.3d 1353,
1357 (Fed. Cir. 2007).
In the Chief Special Master’s decision, he stated, “it appears on this record that treaters
considered Petitioner’s complains [sic] of dizziness to represent ataxia.” Decision Granting
Resp’t Mot. to Dismiss at 5. In support of the inference, the Chief Special Master looked to the
medical records and a website from the Mayo Clinic. Id. (citing Pet’r Ex. 2 at 187, 192; Pet’r
Ex. 3 at 355, 370–71; Pet’r Ex. 20 at 1; Ataxia: Symptoms & causes, supra. Petitioner at oral
argument alleged the Chief Special Master’s interpretation of the medical records was confusing.
Tr. at 25:21–24 (“THE COURT: So, the Chief Special Master’s interpretation of the medical
records might be just confusing then? [PETITIONER]: Correct.”). Respondent argued the
medical records support dizziness as a symptom of cerebellar ataxia and the Chief Special
Master need only rely on the medical records. See Tr. at 26:6–28:21 (describing the medical
records from 4 October 2018), 56:21–25 (“[RESPONDENT]: . . . Respondent’s position is that
the dizziness was a symptom of the [cerebellar ataxia]. THE COURT: Because of the medical
records? [RESPONDENT]: Yes.”).
Ms. Huntoon’s medical records, like many medical records, could use more precision. At
oral argument, petitioner argued the medical records from Dr. Sundaram incorrectly characterize
the dizziness as ongoing from 2 October 2018. See Tr. at 25:13–24. Further, petitioner asserted
Ms. Huntoon “testified in her affidavit and would testify at a hearing that her excessive dizziness
started on [4 October 2018].” Tr. at 30:10–12. Under the heading “Multiple Sclerosis,” Dr.
Sundaram’s progress notes from Ms. Huntoon’s 4 October 2018 neurology visit to state: “On
Tuesday[,] she got the flu shot and has been having excessive dizziness which has not subsided.”
Pet’r Ex. 2 at 187. Petitioner’s affidavit states, “On October 4, 2018, I felt extremely dizzy and
off-balance when I woke up. I had an appointment with my neurologist, Dr. Bharathy
Sundaram, at Texoma Neurology Associates . . . to treat my multiple sclerosis . . . , which was in
remission at the time. I told Dr. Sundaram that I had felt very dizzy all morning . . . .” Huntoon
Aff. ⁋ 3, ECF No. 12-1. Ms. Huntoon’s affidavit also states, “On October 2, 2018, I received the
flu vaccine . . . . On the way home from the doctor’s office, I felt somewhat dizzy but otherwise
alright.” Id. ⁋ 2. While petitioner’s affidavit does not detail whether her dizziness was ongoing
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after the flu vaccination, petitioner’s affidavit and the medical records from Dr. Sundaram both
refer to dizziness occurring on at least 2 October 2018 and 4 October 2018 and therefore are not
in conflict. See Pet’r Ex. 2 at 187; Huntoon Aff. ⁋ 3.
The Chief Special Master relied on the medical records to infer the treating physicians
categorized dizziness as a symptom of cerebellar ataxia. Decision Granting Resp’t Mot. to
Dismiss at 5 (citing Pet’r Ex. 2 at 192; Pet’r Ex. 3 at 355, 357, 370). Petitioner at oral argument
contended dizziness is not a symptom of ataxia. Tr. at 70:20–21 (“[PETITIONER]: [W]e
argued that dizziness was not a symptom of ataxia.”). Under the heading “Acute cerebellar
ataxia,” petitioner’s neurologist, Dr. Sundaram, states, “Patient was seen [on 4 October 2018]
and examined in detail. She has acute onset of vertigo, gait changes, headache, fever[,] and also
extreme fatigue. The exam is showing cerebellar findings. Hence, I . . . sent her to the ER[—
]after talking to the ER[—]for the cerebellar inflammation post vaccination related changes.”
Pet’r Ex. 2 at 192. The medical notes from Dr. Betha, petitioner’s admission evaluator at TMC,
indicate petitioner came to the ER on 4 October 2018 for “dizz[iness] [and] generalized
weakness.” Pet’r Ex. 3 at 355. Dr. Betha noted, “Patient received [a] flu shot 2 days ago [on 2
October 2018,] and[,] since then[,] she has been having dizziness. She denies dizziness at rest
but when she gets up from the bed or . . . the bathroom commode[,] she feels extremely dizzy.”
Id. Dr. Betha diagnosed Ms. Huntoon with “Ataxia . . . [a]ssociated with dizziness.” Id. at 357.
The following day, during an inpatient neurology consultation, Dr. Satyan, TMC’s neurologist,
noted:
The patient got [the] flu injection on Tuesday [, 2 October 2018—]4 days ago[—
]and after that, the patient did not feel well. . . . After coming home[,] she started
feeling dizzy[—]on the way also she was dizzy. She went to bed. The next thing
when she got up to go to the bathroom, she had to hold onto something[,] and she
was very dizzy . . . . With all these symptoms, the patient did see [neurologist] Dr.
B. Sundaram in [his] office yesterday[,] and Dr. B. Sundaram suspected that the
patient was having acute cerebellar ataxia due to [the] flu injection and . . . sent
[her] to the emergency room for further evaluation.
Id. at 370 (emphasis added). The three medical records from 4 October 2018 and 5 October
2018 corroborate the three physicians’ opinions dizziness was indicative of cerebellar ataxia.
See Pet’r Ex. 2 at 192; Pet’r Ex. 3 at 355, 357, 370. It is not the Court’s role “to reweigh the
factual evidence, or to assess whether the special master correctly evaluated the evidence.”
Lampe v. Sec’y of Health & Hum. Servs., 219 F.3d 1357, 1360 (Fed. Cir. 2000) (quoting Munn v.
Sec’y of Dept. of Health & Hum. Servs., 970 F.2d 863, 871 (Fed. Cir. 1992)). As the medical
records reasonably support finding dizziness as a symptom of cerebellar ataxia, the Chief Special
Master did not err in using the start of dizziness on 2 October 2018 as the trigger for the statute
of limitations. Kirby v. Sec’y of Health & Hum. Servs., 997 F.3d 1378, 1382 (Fed. Cir. 2021)
(quoting Cucuras v. Sec’y of Health & Hum. Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993))
(“Medical records are generally ‘trustworthy’ because they ‘contain information supplied to or
by health professionals to facilitate diagnosis and treatment of medical conditions.’”); Lampe,
219 F.3d at 1360 (quoting Munn, 970 F.2d at 871).
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In addition to relying on the medical records and the physicians’ treatment of dizziness as
a symptom of cerebellar ataxia, the Chief Special Master referenced an informational website
from the Mayo Clinic about ataxia. Decision Granting Resp’t Mot. to Dismiss at 5 (citing
Ataxia: Symptoms & causes, supra. Petitioner objects to the Chief Special Master’s use of the
Mayo Clinic website to support dizziness as a symptom of cerebellar ataxia. Pet’r Mem. in
Supp. of Mot. for Review at 8. The Court finds Ms. Huntoon’s medical records alone were a
sufficient basis for the Chief Special Master’s determination dizziness was a symptom of
cerebellar ataxia. Kirby, 997 F.3d at 1382; Lampe, 219 F.3d at 1360 (quoting Munn, 970 F.2d at
871). Therefore, the Chief Special Master did not need to examine external content from the
Mayo Clinic.2 See Tr. at 56:21–57:1 (“[RESPONDENT]: . . . Respondent’s position is that the
dizziness was a symptom of the [cerebellar ataxia]. THE COURT: Because of the medical
records? [RESPONDENT]: Yes.”).
2. Whether the Statute of Limitations Was Triggered Before 4 October
2018
Throughout oral argument, petitioner argued different positions on what triggers the
statute of limitations. See Tr. at 17:3–14, 61:24–62:1. Initially, petitioner stressed the severity of
the dizziness on 4 October 2018 because petitioner suggests a “more substantial [and] unique
symptom” is needed to trigger the statute of limitations. See Tr. at 17:3–14. On the other hand,
2 The parties dispute the use of the Mayo Clinic website to support dizziness as a symptom of cerebellar ataxia.
Petitioner asserted dizziness is not a listed symptom on the website. Pet’r Mem. in Supp. of Mot. for Review at 8.
Respondent argued a line from a connecting page to the Mayo Clinic website—albeit a distinct Uniform Resource
Locator (“URL”)—supports dizziness as a symptom of cerebellar ataxia: “Other symptoms such as stiffness, tremor
and dizziness might improve with treatments.” Resp’t Resp. to Pet’r Mot. for Review at 9–10 (citing Ataxia:
Symptoms & causes, supra). The URL cited by the Chief Special Master does not list dizziness as a symptom of
general cerebellar ataxia. Decision Granting Resp’t Mot. to Dismiss at 5 (citing Ataxia: Symptoms & causes,
supra). Respondent could not confirm whether the website had changed since the time the Chief Special Master
cited it. Tr. at 64:9–11 (“THE COURT: So, you’re not sure if the website changed or if the citation was wrong or
what? [RESPONDENT]: I’m not sure, no.”). Therefore, the Court is skeptical of the Chief Special Master’s
reliance on the Mayo Clinic website. In Campbell v. Secretary of Health and Human Services, this court addressed
a similar issue. 69 Fed. Cl. 775, 780 (2006). In Campbell, petitioners alleged the Special Master abused her
discretion by “adding, sua sponte, to the record, three weeks before her decision, a number of articles taken from the
Internet without providing petitioners an adequate opportunity to respond to those documents.” Id. at 779. The
court questioned the reliability of the websites, especially when being used to preponderantly prove causation. Id. at
781. The court ultimately found “not only the Special Master’s initial reliance on the articles in questions, but also
the half steps she purportedly took after introducing those articles into the record” were “patently unfair.” Id. at 782.
As in Campbell, the Chief Special Master’s citation to the Mayo Clinic general website is precarious because the
website (1) attributes the publication to “Mayo Clinic Staff” rather than a medical professional by name; and (2)
does not provide link specific medical literature with paragraphs or sentences, but rather generally references
medical literature and other websites. Campbell, 69 Fed. Cl. at 779–82; Ataxia: Symptoms & causes, MAYO CLINIC
(Apr. 9, 2022), https://wwwmayoclinic.org/diseases-conditions/ataxia/symptoms-causes/syc-20355652; see also
Chhaya Divecha, Milind S Tullu & Sunil Karande, The art of referencing: Well begun is half done!, 69 J. OF
POSTGRADUATE MED. 1 (2023) (noting The British Standards Institution defines reference as “a set of data
describing a document, sufficiently precise and detailed to identify it and enable it to be located”). Indeed,
respondent agreed the website was suspect. Tr. at 51:8–12 (“THE COURT: But you agree that there’s a difference
between citing a generic website versus citing a published medical article that has an attributable author?
[RESPONDENT]: Absolutely.”), 64:12–14 (“THE COURT: Is that one reason why we shouldn’t cite websites?
[RESPONDENT]: I wouldn’t personally.”). Nevertheless, the Chief Special Master’s citations to the Mayo Clinic
website does not change the outcome because the medical records and the physicians’ treatment of dizziness
sufficiently support the notion dizziness is a symptom of cerebellar ataxia. See supra Section VI.A.1
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petitioner confirmed a significant shift in symptom severity “doesn’t matter.” Tr. at 61:24–62:1
(“THE COURT: So, a significant shift in symptoms . . . that doesn’t matter? [PETITIONER]:
No, it does not.”). Respondent maintained any symptom associated with the alleged injury, even
if subtle, is a triggering symptom under that Vaccine Act. Tr. at 18–19:24–2 (“THE COURT:
[A] subtle symptom is a symptom, [and] a symptom triggers the statute of limitations?
[RESPONDENT]: Exactly.”).
Case law confirms any symptom associated with the alleged injury, even if subtle, is a
triggering symptom under the Vaccine Act. The Federal Circuit has held “it is the first symptom
or manifestation of an alleged vaccine injury, not first date when diagnosis would be possible,
that triggers the statute of limitations under [42 U.S.C.] § 300aa–16(a)(2).” Carson ex rel.
Carson v. Sec’y of Health & Hum. Servs., 727 F.3d 1365, 1369 (Fed. Cir. 2013). The Federal
Circuit held Congress “chose to trigger the statute of limitations from the date of the occurrence
of the first symptom or manifestation of onset of an injury, not from the date of the injury itself.”
Cloer v. Sec’y of Health & Hum. Servs., 654 F.3d 1322, 1326 (Fed. Cir. 2011). Accordingly,
“the statute of limitations begins to run on a specific statutory date: the date of occurrence of the
first symptom or manifestation of onset of the vaccine-related injury recognized as such by the
medical profession at large.” Id. at 1340 (emphasis added).
The Court, at oral argument, used a hypothetical to illustrate the rigidity of the law:
The petitioner receives a vaccine on 1 January 2000 and starts experiencing tingling
in her hands. In the three years following the vaccination, the tingling progresses,
and the petitioner notices frequent runny noses. Doctors are confounded until the
petitioner visits a neurologist on 1 January 2004 when this doctor associates the
tingling sensation and the runny nose with the vaccine. In the hypothetical, the
vaccine injury is Guillain-Barré syndrome (“GBS”), a rare neurological disorder
leading to quadriplegia. A runny nose and drooling are also associated with the
hypothetical type of severe GBS.
See Tr. at 19:15–21:21, 59:4–61:4. The hypothetical illustrated two points. First, despite the
differences in severity and subtly in the two symptoms—a runny nose and paralysis—the
manifestation of any of the symptoms triggers the statute of limitations. Cloer, 654 F.3d at 1335,
1340; Tr. at 60:14–16 (“[RESPONDENT]: [I]f the runny nose is seen as a symptom of GBS,
that statute would have started to run when that symptom started.”). The parties agree. Tr. at
60:14–16 (respondent agreeing), 61:3–18 (petitioner agreeing). In the hypothetical, once the
petitioner experienced a runny nose, the statute of limitations started. Second, the injury does
not have to be a confirmed vaccine-caused injury for a symptom of the vaccine injury to trigger
the statute of limitations. Cloer, 654 F.3d at 1335, 1340. The parties agree. Tr. at 61:4–14
(“[PETITIONER]: That’s what Cloer says, Your Honor, I agree. THE COURT: You agree
that’s what the law says? [PETITIONER]: Yes, sir. THE COURT: [T]he first basic symptom
of an injury, even if not properly diagnosed or rising to the level of significant for treatment, [at
that point] the statute of limitations has started ticking? [PETITIONER]: Yes, as long as it’s a
symptom that led to that condition.”), 24:2–22 (“THE COURT: [W]ell . . . , if we’re within the
statute of limitations, that there was no vaccine injury . . . is what it would be argued for later.
But the point [respondent is] making, I think, is that the dizziness experienced on 2 October 2018
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and discussed on 4 October 2018 was part of the diagnosis for [cerebellar ataxia] which makes it
part of the symptoms of [cerebellar ataxia], which makes it trigger the statute of limitations.
[RESPONDENT]: Correct, yes.”). A petitioner could think hand tingling was due to falling
asleep wrong, but the statute of limitations would still run if the hand tingling was associated
with GBS. While the contours of the law create harsh consequences—in this case a common,
subtle symptom starting the statute of limitations clock—it is not the role of the courts to redraw
the boundaries of the law. See ANTONIN SCALIA & BRYAN A. GARNER, READING LAW:
INTERPRETATIONS OF LEGAL TEXTS, at v (2012) (including the medieval legal maxim translated
to “[h]old tight to the words of the law”); see also Lamie v. United States Tr., 540 U.S. 526, 538
(2004) (“Our unwillingness to soften the import of Congress’ chosen words even if we believe
the words to lead to a harm outcome is longstanding.”).
Applying the principles of the hypothetical and Cloer to the case here, dizziness as a
symptom of cerebellar ataxia would have triggered the statute of limitations. Cloer, 654 F.3d at
1335, 1340; see supra Section VI.A.1. As the Chief Special Master noted, petitioner stated to
“multiple treaters []and . . . reiterated in [her] affidavit,” petitioner’s dizziness, a symptom of
cerebellar ataxia, started on 2 October 2018, the day she received the flu vaccine. Decision
Granting Mot. to Dismiss at 5. The Chief Special Master also cited the first diagnosis of
cerebellar ataxia on 4 October 2018 and concluded “petitioner’s symptoms had to of manifested
by [4 October 2018].” Id. (citing Pet’r Ex. 2 at 187, 192; Pet’r Ex. 3 at 355, 370–71; Pet’r Ex. 20
at 1). In other words, if petitioner was diagnosed with cerebellar ataxia on 4 October 2018, as
medical records indicate, onset occurred before 4 October 2018; therefore, the statute of
limitations triggered on 2 October 2018 or before 4 October 2018. See Decision Granting Resp’t
Mot. to Dismiss at 5 (citing Pet’r Ex. 2 at 187, 192; Pet’r Ex. 3 at 355, 370–71; Pet’r Ex. 20 at 1).
The medical records support the Chief Special Master’s factual determinations, and it is not the
Court’s role to reweigh evidence on appeal. Burns v. Sec’y of Dep’t of Health & Hum. Servs., 3
F.3d 415, 417 (Fed. Cir. 1993) (finding it is the special master’s discretion in weighing
contemporaneous medical records to other evidence for a rational decision); Kirby, 997 F.3d at
1382. Accordingly, the Court finds no error in the Special Master’s factual finding of
petitioner’s onset before 4 October 2018. 42 U.S.C. § 300aa-16(a)(2); Cloer, 654 F.3d at 1340.
B. Whether the Chief Special Master Erred by Not Conducting a Hearing
Petitioner at oral argument clarified the Chief Special Master erred in deciding on the
record, without a hearing. See Tr. at 75:6–14 (“[PETITIONER: The error was deciding the
motion on the papers without having a hearing.”). Petitioner argued the medical records were
inconsistent, so the Chief Special Master should have conducted an evidentiary hearing to
understand the medical records. Tr. at 37:10–12 (“[PETITIONER]: If anything, there’s a
conflict in the record in [what] [Dr. Satyan] is saying.”), 75:6–14 (“[PETITIONER: The error
was deciding the motion on the papers without having a hearing.”). Additionally, petitioner
argued an evidentiary hearing was needed to understand which symptoms of cerebellar ataxia
would trigger the statute of limitations. See Tr. at 52:1–7 (“[RESPONDENT]: It’s my position
that if [the Chief Special Master] heard experts testify, he would hear different experts probably
cite different articles, some of which might contain dizziness, some of which do not. . . . [H]e
would listen to those experts, judge their credibility, and then determine whether dizziness was
the first symptom.”).
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VRCFC Rule 8(f) states: “Any fact or argument not raised specifically in the record
before the special master will be considered waived and cannot be raised by either party in
proceedings on review of a special master’s decision.” As discussed supra Section VI.A.1, the
medical records could have been clarified; respondent agrees. Tr. at 39:18–40:11 (“THE
COURT: [I]f Dr. Sundaram testified, it could be cleared up pretty quickly, right?
[RESPONDENT]: I suppose, but I don’t think there’s enough conflict in the records that would
necessitate a deposition or a hearing. THE COURT: Well, let’s say Dr. Sundaram testifies that
. . . the notes under the heading “MS” were ongoing history notes, and the diagnosis five pages
later related to ataxia—the items that were listed there—were a closed list of what was used to
diagnose ataxia [related to] the symptoms for ataxia. . . . [W]ould [that] clarify things?
[RESPONDENT]: It might, but I think [the] Chief Special Master . . . used the information he
had, and his decision wasn’t arbitrary and capricious based on these records.”). Petitioner,
however, did not argue before the Chief Special Master the medical records were inconsistent or
request the treating physicians testify. See Pet’r Resp. to Resp’t Mot. to Dismiss. Further,
petitioner did not request a hearing. Tr. at 74:14–16 (“THE COURT: So, you agree that you do
not request a hearing, correct? [PETITIONER]: Yes.”). Petitioner asserted at oral argument the
first page of petitioner’s response to respondent’s Motion to Dismiss alludes to the need for
expert testimony and a hearing. Tr. at 65:24–66:3 (“[PETITIONER]: On the very first page of
my response, I say that ‘Petitioner will only address the first issue regarding statute of limitations
because the Special Master has not yet ordered the parties to obtain experts to speak on
causation.’”). Petitioner also agreed a hearing for expert testimony would not be helpful
because, as petitioner recognized, expert testimony would not be able to refute the medical
records, which evidence dizziness as a symptom. Tr. at 74:22–75:5 (“[PETITIONER]: [I]n
[paragraph] 23 [of the response to respondent’s Motion to Dismiss, ECF No. 24], I do talk about
needing an expert to talk about when ataxia could have arisen from a vaccination and that being
days after, but not related to the medical records, no sir. THE COURT: But mentioning . . . an
expert testifying about [cerebellar ataxia] is different than stating that petitioner’s testimony
would refute the characterization of the records. [PETITIONER]: That’s true.”); see supra
Section VI.A.1. In sum, petitioner did not request a hearing, did not argue inconsistencies in the
medical records warranting testimony from the treating physicians, and agreed expert testimony
would not refute the medical records. Pursuant to VRCFC 8(f), the Court cannot entertain
“arguments not raised specifically in the record before the [S]pecial [M]aster”; therefore,
petitioner’s objection to the Chief Special Master not holding an evidentiary hearing is waived.
Weddel v. Sec’y of Health & Hum. Servs., 23 F.3d 388, 290 n.2 (Fed. Cir. 1994) (“The
government correctly observes that the [petitioners] failed to raise before the Special Master the
substantive due process and equitable tolling arguments they now press. Congress has expressly
forbidden us to consider such arguments.”).
VII. Whether Petitioner’s Claim is Subject to Equitable Tolling
As the Chief Special Master found the onset occurred before 4 October 2018, Section
16(a)(2) of the Vaccine Act required petitioner to file before 4 October 2021 based on the
medical record. Decision Granting Resp’t Mot. to Dismiss at 5 (citing 42 U.S.C. § 300aa-
16(a)(2)); see supra Section VI.A. Petitioner asks for equitable tolling in order to accept the 5
October 2021 filing as filed on 4 October 2021. Tr. at 76:2–5 (“THE COURT: [B]ased on your
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request, equitable tolling would only credit the [4 October 2021] filing, correct?
[PETITIONER]: That’s correct.”). Petitioner agreed at oral argument if the Chief Special
Master’s findings are sustained, equitable tolling would not cure the late filing of the petition.3
Tr. at 75:20–76:1 (THE COURT: [I]f the Chief Special Master . . . found that onset was before 4
October 2018, then the last day that petitioner could file was 3 October 2021, correct?
[PETITIONER]: Or [2 October 2021] if the Chief Special Master found it was starting on [2
October 2018].”). As the Court has determined the Chief Special Master did not err in finding
the onset of the cerebellar ataxia was before 4 October 2018, the Court need not address the issue
of equitable tolling. See supra Section VI.A
VIII. Conclusion
For the reasons above, the Court DENIES petitioner’s Motion for Review, ECF No. 28,
and SUSTAINS the Chief Special Master’s 31 January 2023 Decision Granting Motion to
Dismiss, ECF No. 26. The Court DIRECTS the Clerk to enter judgment pursuant to the Chief
Special Master’s Decision Granting Motion to Dismiss, ECF No. 26.
IT IS SO ORDERED.
s/ Ryan T. Holte
RYAN T. HOLTE
Judge
3 The Court notes where a day-late filing can result in harsh consequences for an injured petitioner, it is best practice
to file weeks in advance; petitioner agreed. Tr. at 84:24–85:17 (“THE COURT: [W]hy not file a week early or a
couple days early or something? [PETITIONER]: We could have done that. THE COURT: So, there was no
immediate prohibition that was preventing it. . . . I guess, why were you concerned to file on [4 October 2021]?
[PETITIONER]: Because that’s when we believed the [cerebellar ataxia] was diagnosed and when the first
symptom arose, and it was on the calendar for that day to get it filed. . . . But I don’t believe the standard should be
why didn’t you file it a week earlier . . . . THE COURT: Well, best practice maybe. [PETITIONER]: Yes, sir, I
agree with that.”).
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