VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_23-vv-00974
Package ID: USCOURTS-cofc-1_23-vv-00974
Petitioner: Nicole Scammell
Filed: 2023-03-27
Decided: 2024-04-29
Vaccine: varicella
Vaccination date: 2020-05-19
Condition: cerebellar ataxia
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
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.

Theory of causation field:
Petitioner Nicole Scammell filed a petition on behalf of V.S. alleging cerebellar ataxia following a varicella vaccination on May 19, 2020. The respondent moved to dismiss, asserting the claim was untimely as V.S. manifested symptoms in late May 2020, making the filing deadline late May 2023. Petitioner acknowledged the May 2020 diagnosis and argued she filed upon learning of the Program and suggested pandemic-related tolling. The Special Master, Chief Special Master Brian H. Corcoran, noted the Vaccine Act's 36-month statute of limitations from the first symptom manifestation, without a discovery rule. Equitable tolling was considered but found inapplicable as Petitioner did not demonstrate sufficient grounds, and state tolling laws did not apply to the federal Act. The case was dismissed as untimely, with judgment to be entered. Petitioner was represented pro se, and respondent was represented by Mary Holmes. The public decision does not describe the specific mechanism of injury, expert testimony, or award details.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_23-vv-00974-0
Date issued/filed: 2024-04-29
Pages: 3
Docket text: first class on 4/29/24 (ypb).PUBLIC DECISION (Originally filed: 03/27/2024) regarding 20 DECISION of Special Master, Signed by Chief Special Master Brian H. Corcoran. (ppa) Service on parties made. Petitioner served via
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Case 1:23-vv-00974-UNJ Document 21 Filed 04/29/24 Page 1 of 3
Jfn tbe Wniteb ~tates Qtourt of jfeberal Qrlaims
OFFICE OF SPECIAL MASTERS
No. 23-974V
* * * * * * * * * * * * * * * * * * * * * * * * *
* Chief Special Master Corcoran
NICOLE SCAMMELL *
on beha/fofV.S., *
* Filed: March 27, 2024
Petitioner, *
*
v. *
*
SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
*
Respondent. *
*
Nicole Scammell, pro se petitioner.
Mary Holmes, U.S. Dep't of Justice, \Vashington, DC, for Respondent.
DECISION DISMISSING CASE1
On June 26, 2023, pro se Petitioner Nicole Scammell filed a petition for compensation
under the National Vaccine Injury Compensation Program (the "Program").2 Petition (ECF No. 1)
at 1. Petitioner alleged that her minor daughter, V.S., experienced cerebellar ataxia after receipt of
a varicella vaccine on May 19, 2020. Id.
Respondent has moved to dismiss the claim, arguing that it is untimely. See Respondent's
Brief, dated February 12, 2024 (ECF No. 77) ("Br."). In particular, Respondent agrees that V.S.
received the vaccination alleged on May 19, 2020, but observes that record evidence reveals that
she experienced a fever the day after, and then began manifesting initial symptoms of her ataxia
1 Under Vaccine Rule 18(b), each party has fourteen {14) days within which to request redaction "of any information
furnished by that party: (I) 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 whole Decision will be available to the public
in its present 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. 3758, codified as amended at 42 U.S.C. §§ 300aa-l O through 34(2012) [hereinafter "Vaccine Act'' or "the
Act"]. Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).

Case 1:23-vv-00974-UNJ Document 21 Filed 04/29/24 Page 2 of 3
that same month. Br. at 2-3. As a result, the claim accrued in late May 20~0-meaning (under the
Vaccine Act's 36-month limitations period) it should have been filed weeks before June 26, 2023.
Section 16(a)(2). Accordingly, the claim appears untimely.
In reaction, Petitioner acknowledges that V.S. was in fact diagnosed with cerebellar ataxia
in later May 2020, but notes that she attempted to file this claim as soon as she learned of the
Vaccine Program. See Petitioner's Opposition, dated March 5, 2024 (ECF No. 19) ("Opp."). She
also argues that the filing occurred in the midst of the COVID-19 Pandemic, and that New York
State tolled certain limitations periods at this time (suggesting that her claim, if similarly tolled,
would have been timely). Otherwise, Petitioner discusses the anguish of having to care for her
daughter during her illness, and stresses that her efforts to pinpoint a potential vaccine cause did
not reflect anti-vaccine sentiment. Opp. at 1-2. (She also suggests that V.S. has to some extent
recovered from this purported vaccine adverse event. Id. at 2).
The Vaccine Act's statute of limitations runs from the first manifestation of an objectively
cognizable symptom, whether or not that symptom is enough of a basis to diagnose an injured
party with a specific illness or condition. Carson v. Sec'y of Health & Human Servs., 727 F.3d
1365, 1369 (Fed. Cir. 2013). Cases can be dismissed for failure to file before the limitations cut
off - even by a 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 limitatj.ons period), mot. for review denied, slip. op. (Fed. Cl. Jan. 10, 1997), ajfd, 132
F.3d 52 (Fed. Cir. 1997). And the Act does not have a "discovery rule," under which claimants'
time to file runs from when they first learn of the possibility of a Vaccine Program claim. Cloer v.
Sec'y ofH ealth & Human Servs., 654 F.3d 1322, 1339 (Fed Cir. 2011).
The Federal Circuit has held that the doctrine of equitable tolling can apply to Vaccine Act
claims. Cloer, 654 F.3d at 1340-41. 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). Although fraud or duress were initially deemed bases for
tolling, since Cloer the doctrine has been somewhat enlarged, and now also allows tolling for
demonstrated mental incapacity. K. G. v. Sec'y ofH ealth & Hum. Servs., 951 F.3d 1374, 1380-82
(Fed. Cir. 2020).
Here, it is evident that Petitioner's claim was filed nearly a month after the tolling of the
Act's three-year limitations period, since the record preponderantly supports the conclusion that
(a) V.S.'s symptoms manifested within a few days of the May 19, 2020 vaccination, and (b) she
was diagnosed with cerebellar ataxia that same month. Moreover, Petitioner has not made out any
circumstances for equitable tolling consistent with what the Federal Circuit has previously
recognized. The fact that state law relevant to different causes of action was modified during the
Pandemic does not impact the manner in which the Act's limitations period is construed. And
2

Case 1:23-vv-00974-UNJ Document 21 Filed 04/29/24 Page 3 of 3
while it may be literally true that Petitioner was unaware of the availability of a Vaccine Act claim
before June 2023, that fact does not excuse the late filing.
Accordingly, I am compelled to dismiss this claim-although I do not personally fault
Petitioner for a lack of diligence. On the contrary, it appears Ms. Scammell acted quickly once she
was aware of the Program. And the record also reveals she at all times endeavored to assist her
daughter in the ways a loving and responsible parent would. Petitioner is to be commended for her
efforts, both for the care she has provided V.S., and also for the professional manner in which she
represented her daughter in this proceeding.
Conclusion
As discussed above, because this matter is untimely, it is hereby DISMISSED. In the
absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the Court SHALL
ENTER JUDGMENT in accordance with the terms of this Decision.3
IT IS SO ORDERED. J1
A-
'I-----..............
Brian H. Corcoran
Chief Special Master
3 Pursuant to Vaccine Rule I I (a), the parties may expedite entry ofj udgment by filing a joint notice renouncing their
right to seek review.
3