VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_23-vv-01192
Package ID: USCOURTS-cofc-1_23-vv-01192
Petitioner: E.S.
Filed: 2023-07-31
Decided: 2024-04-23
Vaccine: HPV
Vaccination date: 2019-03-15
Condition: premature ovarian failure
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
On July 31, 2023, Diane Sincoff, on behalf of her minor child E.S., filed a petition for compensation under the National Vaccine Injury Compensation Program. E.S., who was thirteen years old, received the first dose of the human papillomavirus (HPV) vaccine on March 15, 2019. The petition alleged that E.S. suffered premature ovarian failure, diagnosed on October 20, 2020, following symptoms of stomach pain, dizziness, nausea, and cessation of menstruation that began in 2019. The Special Master dismissed the case because the petition was filed outside the Vaccine Act's 36-month statute of limitations. Petitioner argued for equitable tolling, asserting that she was unaware of the Vaccine Program and that E.S.'s minor status should excuse the delay. The Special Master found that the statute of limitations is triggered by the manifestation of the first objectively cognizable symptom, not by the claimant's awareness of their rights or the program. The court also noted that the Vaccine Act does not provide for minority tolling. Arguments regarding manufacturer misconduct or failure to provide a Vaccine Information Statement (VIS) were also rejected as grounds for tolling. The Special Master pointed out that the HPV vaccine was added to the Vaccine Injury Table in 2007, and prior cases have not supported a link between the HPV vaccine and autonomic issues. The petition was dismissed as untimely filed. Petitioner was represented by Michelle Greene of The Lanier Law Firm, PLLC, 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.

Theory of causation field:
Petitioner Diane Sincoff, on behalf of minor E.S., filed a petition alleging that E.S. suffered premature ovarian failure following an HPV vaccination on March 15, 2019. Symptoms of stomach pain, dizziness, nausea, and cessation of menstruation began in 2019, with a diagnosis of premature ovarian failure on October 20, 2020. The petition was filed on July 31, 2023. The case was dismissed by Chief Special Master Brian H. Corcoran as untimely filed, as it exceeded the 36-month statute of limitations triggered by symptom onset in 2019. Petitioner sought equitable tolling, arguing lack of awareness of the Vaccine Program and E.S.'s minor status. The Special Master rejected these arguments, stating that the Vaccine Act does not provide for minority tolling and that unawareness of the program or a potential claim does not support tolling. Allegations of manufacturer misconduct and failure to provide a Vaccine Information Statement (VIS) were also deemed insufficient grounds for tolling. The HPV vaccine was added to the Vaccine Injury Table in 2007. Petitioner was represented by Michelle Greene, and Respondent by Julia M. Collison.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_23-vv-01192-0
Date issued/filed: 2024-04-23
Pages: 6
Docket text: PUBLIC DECISION (Originally filed: 3/26/2024) regarding 18 DECISION of Special Master. Signed by Chief Special Master Brian H. Corcoran. (abs) Service on parties made.
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Case 1:23-vv-01192-UNJ Document 19 Filed 04/23/24 Page 1 of 6
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 23-1192V
UNPUBLISHED
DIANE SINCOFF on behalf of her
minor child, E.S., Chief Special Master Corcoran
Petitioner,
v. Filed: March 26, 2024
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Michelle Greene, The Lanier Law Firm, PLLC, New York, NY, for Petitioner.
Julia M. Collison, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION1
On July 31, 2023, Diane Sincoff filed a petition for compensation on behalf of her
minor child, E.S., under the National Vaccine Injury Compensation Program, 42 U.S.C. §
300aa—10 through 34 (the “Vaccine Act”). Petitioner alleges that E.S. suffered various
injuries from a human papillomavirus (“HPV”) vaccination she received on March 15,
2019. ECF No. 1 at 2.
Because the petition was untimely filed, and Petitioner has failed to establish a
basis for equitable tolling, this case is DISMISSED.
Relevant Factual Background
On March 15, 2019, at the age of thirteen2, E.S. went with her mother, Petitioner,
to a well-child visit where E.S. received the first dose of the HPV vaccine. Exhibit 5 at 64.
At this appointment, the records state that the medical professional “[d]iscussed need for
vaccines, reviewed side effects and VIS.” Id. at 66.
1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made
publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or
at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government
Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government
Services). This means the Decision will be available to anyone with access to the internet. In
accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other
information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I
agree that the identified material fits within this definition, I will redact such material from public access.
2 Although the petition states that E.S.’s birth month is June, the medical records all indicate that her birth
month is February.

Case 1:23-vv-01192-UNJ Document 19 Filed 04/23/24 Page 2 of 6
On May 21, 2019, E.S. complained to a pediatrician of stomach pain, dizziness,
and nausea. ECF No. 1 ¶ 3. At a later appointment on October 8, 2019, E.S. complained
of stomachache, nausea, and gas. Id. ¶ 4. E.S. stopped menstruating in March 2020. Id.
¶ 5. E.S. was diagnosed the premature ovarian failure on October 20, 2020. Id. ¶ 6.
Facially, Petitioner’s claim herein was filed over four years after the HPV
vaccination, which was administered in March 2019, and over four years from the time
she began manifesting symptoms later in 2019. But Petitioner maintains her delay is
excusable. In the response to the order to show cause, Petitioner stated at the time this
vaccination occurred, no one discussed the possible adverse side effects of the HPV
vaccine, no Vaccine Information Statement (VIS) was provided, and no information was
relayed about the Vaccine Program. ECF No. 12 at 2. None of these statements were
included in Petitioner’s affidavit. Exhibit 1. Petitioner did not learn about the Vaccine
Program until April 2023, but then immediately contacted an attorney thereafter. ECF No.
12 at 3. Again, Petitioner did not attest to this statement in her affidavit and only stated it
in the response to the order to show cause. Exhibit 1.
Relevant Procedural History
Given that the timeliness of the claim was legitimately called into question merely
by the face of the actual Petition, while the case was still in the initial “pre-assignment
review” (a process utilized by the Office of Special Masters to assess whether a claim’s
primary evidentiary documentation has been filed), I ordered Petitioner to show cause
why the claim had not been filed outside the Act’s 36-month statute of limitations. Sec.
16(a)(2); ECF No. 6.
On October 13, 2023, Petitioner filed a response. ECF No. 12. Petitioner did not
dispute the onset of symptoms in 2019, or that the petition was filed in July 2023 (and not
sooner than 2022), but instead argued that the limitations period should be equitably
tolled. Petitioner asserted that she had diligently pursued a vaccine claim once she
became aware of E.S.’s legal rights. Petitioner also made allegations not relevant to a
Vaccine Act claim, about the perfidious conduct of the vaccine manufacturer in
fraudulently concealing the HPV vaccine’s harmful character from the public. ECF No. 12
at 18. Relatedly, Petitioner argued that the failure of a healthcare professional to provide
her with a VIS at the time of vaccination can be attributed to the Department of Health
and Human Services’ failure to systematically ensure that VIS are explained and provided
to all vaccine recipients. Id. at 4.
On November 13, 2023, Respondent submitted a responsive brief of his own,
arguing for dismissal due to untimeliness. ECF No. 15. Respondent maintained that
Petitioner in fact had not diligently pursued E.S.’s rights before filing a vaccine claim in
2

Case 1:23-vv-01192-UNJ Document 19 Filed 04/23/24 Page 3 of 6
2023 but did not address Petitioner’s argument that Petitioner’s status as a minor was
relevant to the diligence inquiry. Respondent also disputed the veracity of contentions
about the manufacturer’s conduct, and whether it could in any event constitute an
extraordinary circumstance that would serve as a basis for tolling of the statute.
On December 26, 2023, Petitioner filed a reply to Respondent’s arguments. ECF
No. 17. For the first time, Petitioner raised the argument about the importance of E.S.’s
status as a minor when E.S. received the HPV vaccination and that she could not bring a
vaccine claim on her own behalf.3
Legal Standards
The Vaccine Act's statute of limitations is thirty-six months. Sec. 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 & Hum. Servs., 727 F.3d 1365, 1369 (Fed.
Cir. 2013).
The Federal Circuit has held that the doctrine of equitable tolling can apply to
Vaccine Act’s statute of limitations. See Cloer v. Sec'y of Health & Hum. 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).
Petitioners must prove two elements to establish equitable tolling: (1) that
petitioner diligently pursued her rights, and (2) an extraordinary circumstance prevented
her from timely filing the claim. K.G. v. Sec'y of Health & Hum. Servs., 951 F.3d 1374,
1379 (Fed. Cir. 2020) (citing Menominee Indian Tribe v. United States, 577 U.S. 250, 255
(2016)).
When first articulating this limited exception to equitable tolling, the Federal Circuit
primarily enumerated fraud and duress as a basis for equitable tolling—but not, for
example, lack of awareness on a petitioner's part that she might have an actionable claim.
3 Although the argument about Petitioner’s minor status is newly raised in the reply, in many cases with
virtually identical legal issues, Respondent has declined to address this argument even when it is raised
in the petitioner’s initial response to the order to show cause. See Needham v. Sec'y of Health & Hum.
Servs., No. 23-630V, 2023 WL 9287882 (Fed. Cl. Spec. Mstr. Dec. 20, 2023); Roman v. Sec'y of Health &
Hum. Servs., No. 23-705V, 2024 WL 470570, at *1 (Fed. Cl. Spec. Mstr. Jan. 5, 2024). Allowing
Respondent the opportunity to address (and most likely oppose) this argument would not change the
result of this decision.
3

Case 1:23-vv-01192-UNJ Document 19 Filed 04/23/24 Page 4 of 6
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”). In K.G., 951 F.3d at 1380–82 (Fed. Cir. 2020), the Circuit
more explicitly endorsed the proposition that an individual’s demonstrated mental
incapacity could be a basis for equitable tolling in the Program. For a mentally
incapacitated individual, the Circuit instructed that the details of the individual’s
relationship with her legal guardian would affect whether there was reasonable diligence
or extraordinary circumstances. K.G., 951 F.3d at 1382 (Fed. Cir. 2020). More recently,
the Circuit concluded that a parent acting as a legal guardian did not have extraordinary
circumstances preventing the filing of a petition where the parent: (1) routinely made
medical decisions on behalf of the legally incapacitated individual during the relevant time
period, (2) had no documented strained relationship with the individual, and (3) had no
conflicts of interest dissuading the parent from filing a petition. W.J. v. Sec'y of Health &
Hum. Servs., 93 F.4th 1228, 1241 (Fed. Cir. 2024).
Analysis
The untimeliness of this filing is acknowledged by Petitioner, so the only question
to be resolved is whether equitable tolling should save the claim. But Petitioner has failed
to establish both elements of equitable tolling – diligent pursuit and extraordinary
circumstances.
A) Diligent pursuit
Petitioner stated that she diligently began to pursue E.S.’s claim after she learned
about the Vaccine Program in April 2023.4 Petitioner argues that her diligent pursuit of
E.S.’s vaccine claim was impeded by E.S.’s minor status since the vaccine was
administered.5
These arguments are wholly unpersuasive. It is beyond question that claims
asserted in the Vaccine Program are not subject to a “discovery rule,” accruing only when
a claimant learns he or she might possess a cause of action. Rather, the statute of
limitations period is triggered by the onset of Petitioner’s symptoms – whether or not onset
was understood to be the start of the claimed injurious illness or condition. Cloer v. Sec'y
4 As noted above, Petitioner has not attested to when she learned about the Vaccine Program or began to
diligently pursue E.S.’s vaccine claim. Exhibit 1 (affidavit). Petitioner has only made these statements in
the response to the order to show cause. ECF No. 12.
5 Although E.S. recently turned eighteen in 2024, E.S. was a minor through all the briefing on the order to
show cause and all other relevant periods of the vaccine case. E.S. required her mother to file and
prosecute the vaccine claim on her behalf. Thus, no diligent pursuit undertaken by E.S. since she
reached the age of majority would affect the analysis of equitable tolling in these circumstances.
4

Case 1:23-vv-01192-UNJ Document 19 Filed 04/23/24 Page 5 of 6
of Health & Hum. Servs., 654 F.3d 1322, 1340 (Fed. Cir. 2011) (en banc). And the failure
to be advised of the Vaccine Program or the Act does not support equitable tolling of the
statute of limitations period for an otherwise-untimely filed petition. Speights v. Sec'y of
Health & Hum. Servs., No. 03-2619V, 2013 WL 5944084, at *13 (Fed. Cl. Spec. Mstr.
Oct. 17, 2013). Thus, a petitioner cannot generally shield an untimely claim from dismissal
by asserting, even in good faith, that she literally was unaware of her Vaccine Act “rights.”
Petitioner attempts to leverage her minor status at the time of vaccination into an
exception to the above. The Federal Circuit has conclusively stated that Vaccine Act does
not contain a provision for minority tolling and that Congress did not intend to allow
minority tolling. W.J., 93 F.4th at 1241. The only savings clause in the Act is for revisions
to the Vaccine Injury Table, which allow an otherwise untimely claim for newly added
vaccines to be filed. Sec. 16(b). And there is no argument here that a Table claim
specifically involving the HPV vaccine was added that would cover Petitioner’s delayed
filing.6
B) Extraordinary Circumstances
Petitioner’s arguments about the purported fraudulent conduct of the vaccine’s
manufacturer, in hiding proof of the vaccine’s dangers, deserve even less consideration.
ECF No. 12 at 18. As a threshold matter, these contentions are speculative and not
evidentiarily-supported. And regardless of their actual truth, the fact remains that the
Government has approved the HPV vaccine for administration to minors, rendering it
“covered” under the Act. The only issue to be resolved in a Program case is whether
(assuming, as here, the claim is not a Table claim) the claim meets the standards for
causation – and those standards have nothing to do with a manufacturer’s alleged
misconduct in preparation or promotion of the underlying vaccine.
These allegations also are not a basis for tolling under the circumstances.
Petitioner simply has not shown that contentions of corporate misconduct not specific to,
or directed at, her personally could rise to the level of the kind of “fraud” that might excuse
failing to file a Program claim in a timely manner. Nor has she persuasively established
that the vaccine administrator’s “failure to warn,” or provide a VIS in 2019, is an
extraordinary circumstance. Even assuming the factual accuracy of that allegation,7 it
6 In fact, the HPV vaccine was added to the Table in 2007 – twelve years before onset is alleged herein to
have occurred. 42 C.F.R. § 100.3 (Vaccine Injury Table); National Vaccine Injury Compensation Program:
Addition of Meningococcal and Human Papillomavirus (HPV) Vaccines to the Vaccine Injury Table, 72
Fed. Reg. 19937 (Apr. 20, 2007). The Act’s lookback provisions have no relevance at all to the timeliness
of this claim.
7 Petitioner has only stated in the response to the order to show cause, not attested in an affidavit, that she
did not receive a VIS or any information about the Vaccine Program during E.S.’s HPV vaccination
appointment. ECF No. 12 at 3. But the contemporaneous medical records for the HPV vaccination actually
5

Case 1:23-vv-01192-UNJ Document 19 Filed 04/23/24 Page 6 of 6
remains the case (as the Circuit recognized in Cloer) that vaccine claims accrue upon
onset – and that the failure to be advised of the Vaccine Program does not support
equitable tolling. Cloer, 654 F.3d at 1340; see also Speights, 2013 WL 5944084, at *13.
And arguments about governmental agency knowledge of a failure to warn reflect
overheated, almost-conspiratorial allegations that do not come close to excusing the
claim’s untimely nature.
Finally, Petitioner also asserts that the safety of the HPV vaccine is “heavily
disputed and should not be resolved on these papers alone.” ECF No. 17 at 7. But this
argument willfully ignores the extent to which I have personally ruled in numerous prior
cases that medical science does not preponderantly support the contention that the HPV
vaccine can cause various autonomic issues. See, e.g., Hughes v. Sec'y of Health & Hum.
Servs., No. 16-930V, 2021 WL 839092, at *31 (Fed. Cl. Spec. Mstr. Jan. 4, 2021), mot.
for review denied, 154 Fed. Cl. 640 (2021); E.S. v. Sec'y of Health & Hum. Servs., No.
17-480V, 2020 WL 9076620, at *40, 43 (Fed. Cl. Spec. Mstr. Nov. 13, 2020), mot. for
review denied, 154 Fed. Cl. 149 (2021); McKown v. Sec'y of Health & Hum. Servs., No.
15-1451V, 2019 WL 4072113, at *44–45 (Fed. Cl. Spec. Mstr. July 15, 2019). Indeed –
present counsel litigated many of these claims himself. The Act does not require that the
same theory rejected so many times before must be relitigated by the Program ad
infinitum (especially in the absence of new compelling evidence). Rather, special masters
are expressly empowered to rely on their expertise, earned in adjudicating Program
cases, in subsequent similar matters. To suggest that they should ignore what they have
learned in that process reveals a complete miscomprehension of the Program’s
underlying goals and purposes.
Conclusion
Thus, Petitioner has failed to establish equitable tolling. This case is dismissed
for being untimely filed. The Clerk of Court shall enter judgment accordingly.8
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
support the conclusion that Petitioner received guidance about the HPV vaccine and a VIS on E.S.’s behalf.
Exhibit 5 at 66.
8 If Petitioner wishes to bring a civil action, she must file a notice of election rejecting the judgment pursuant
to § 21(a) “not later than 90 days after the date of the court’s final judgment.”
6