Rebecca J. Barger v. HHS - HPV, fatigue, severe afternoon headaches, anxiety, inability to focus, ear pain, tunnel vision, auditory impairment, and dizziness when standing (2024)

Rebecca J. Barger filed a petition on June 22, 2023, alleging injuries from three human papillomavirus (HPV) vaccinations received on June 10, 2009, September 10, 2009, and August 7, 2012.

At the time of these vaccinations, Ms. Barger was thirteen, fourteen, and seventeen years old, respectively.

She reported experiencing fatigue starting in October 2008. Following the second vaccination, she experienced severe afternoon headaches for approximately two years.

After the third vaccination, she reported fatigue, anxiety, inability to focus, and ear pain. In the subsequent years, she experienced fatigue, tunnel vision, auditory impairment, and dizziness when standing.

Ms. Barger stated she realized her chronic symptoms were caused by the HPV vaccinations in June 2020.

The petition was filed on February 20, 2024, which is nearly eleven years after her last HPV dose and over fourteen years from when her symptoms allegedly began or were aggravated. The Special Master ordered Ms.

Barger to show cause why the claim was not untimely filed. Ms.

Barger argued for equitable tolling, citing her minor status at the time of vaccination and her later awareness of her legal rights. She also alleged fraudulent conduct by the vaccine manufacturer and failure to provide Vaccine Information Statements (VIS).

The respondent argued for dismissal due to untimeliness. The Special Master found that Ms.

Barger failed to establish both elements of equitable tolling: diligent pursuit and extraordinary circumstances. The Special Master noted that claims are not subject to a discovery rule and that unawareness of the Vaccine Program does not support tolling.

It was also stated that the Act does not provide for tolling based solely on a minor's age, and that a parent or guardian's diligence would be relevant during her minority. The Special Master found no evidence of the parent or guardian's ineffectiveness.

Allegations of manufacturer misconduct were deemed speculative and not a basis for tolling. The public decision does not describe specific symptoms, medical tests, or treatments.

The Special Master also noted that the HPV vaccine was added to the Vaccine Injury Table in 2007, making the lookback provisions irrelevant to the timeliness of this claim. Ultimately, the Special Master dismissed the case as untimely filed.

Petitioner was represented by Robert M. Hatch of Bronster Fujichaku Robbins, and Respondent was represented by Julia M.

Collison of the U.S. Department of Justice.

The decision was issued by Chief Special Master Brian H. Corcoran.