Nicole Scammell v. HHS - Varicella, cerebellar ataxia (2024)

Nicole Scammell, acting pro se, filed a petition on March 27, 2024, on behalf of her minor daughter, V.S., alleging that V.S. developed cerebellar ataxia after receiving a varicella vaccine on May 19, 2020. The respondent moved to dismiss the claim as untimely.

The respondent asserted that V.S. experienced initial symptoms of ataxia in late May 2020, which meant the claim should have been filed within 36 months of that date, by late May 2023. Petitioner acknowledged that V.S. was diagnosed with cerebellar ataxia in May 2020 but argued that she filed the claim as soon as she learned of the Vaccine Program.

She also suggested that the COVID-19 pandemic might have tolled the limitations period, citing New York State's tolling of certain limitations periods. The court noted that the Vaccine Act has a strict 36-month statute of limitations from the first manifestation of objectively cognizable symptoms, and it does not include a discovery rule.

While the court acknowledged that equitable tolling can apply to Vaccine Act claims, it found that the petitioner had not demonstrated circumstances warranting it. The court stated that state law tolling related to the pandemic did not apply to the federal Vaccine Act, and that the fact that the petitioner was unaware of the Vaccine Program before June 2023 did not excuse the late filing.

The court, while commending Ms. Scammell for her care of her daughter and her professional representation, was compelled to dismiss the case as untimely.

Judgment was to be entered accordingly.