VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_23-vv-01209
Package ID: USCOURTS-cofc-1_23-vv-01209
Petitioner: Skylar Allen
Filed: 2024-03-27
Decided: 2024-04-23
Vaccine: HPV
Vaccination date: 2020-01-02
Condition: postural orthostatic tachycardia syndrome (POTS)
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Skylar Allen, who was between 21 and 22 years old at the time of vaccination, received three doses of the HPV vaccine on May 31, 2019, July 31, 2019, and January 2, 2020. Following the third dose, Allen began experiencing symptoms of postural orthostatic tachycardia syndrome (POTS) in February 2020, with an emergency room visit for lightheadedness and palpitations on January 27, 2020, leading to a POTS diagnosis. Allen filed a petition for compensation on March 27, 2024, alleging injury from the HPV vaccinations. The respondent moved to dismiss the case, arguing it was filed outside the Vaccine Act's 36-month statute of limitations, which begins to run from the manifestation of the first objectively cognizable symptom. Allen argued for equitable tolling, claiming she was not informed about the Vaccine Program or potential side effects at the time of vaccination and only learned about the program in June 2023. The court found that Allen failed to establish both elements required for equitable tolling: diligent pursuit of her rights and an extraordinary circumstance preventing timely filing. The court noted that the statute of limitations is triggered by symptom onset, not by the claimant's awareness of a potential claim, and that failure to be advised of the Vaccine Program does not support equitable tolling. Allegations of manufacturer misconduct were also deemed insufficient to warrant tolling. Consequently, the court granted the respondent's motion to dismiss, finding the petition untimely filed. No award was made as the case was dismissed on procedural grounds.

Theory of causation field:
unclear

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_23-vv-01209-0
Date issued/filed: 2024-04-23
Pages: 5
Docket text: PUBLIC DECISION (Originally filed: 3/27/2024) regarding 15 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-01209-UNJ Document 16 Filed 04/23/24 Page 1 of 5
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 23-1209V
UNPUBLISHED
SKYLAR ALLEN,
Chief Special Master Corcoran
Petitioner,
v.
Filed: March 27, 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 August 1, 2023, Skylar Allen filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa—10 through 34 (the
“Vaccine Act”). Petitioner alleges that she suffered various injuries from human
papillomavirus (“HPV”) vaccinations she received on May 31, 2019, July 31, 20192, and
January 2, 2020. ECF No. 1 at 2.
Because the petition was untimely filed, and Petitioner has failed to establish a
basis for equitable tolling, Respondent’s motion to dismiss is GRANTED and this case is
DISMISSED.
Relevant Factual Background
From age twenty-one to twenty-two, Petitioner received the three HPV
vaccinations at Virtua Women’s Primary Care and Wellness Center. Exhibit 2 at 156, 262-
64, 271. After the third vaccination on January 2, 2020, Petitioner stated that she was
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 In the petition and affidavit (exhibit 1), Petitioner stated that the second HPV vaccination was
administered on July 7, 2019, but the medical records support a vaccination date of July 31, 2019. Exhibit
2 at 271.

Case 1:23-vv-01209-UNJ Document 16 Filed 04/23/24 Page 2 of 5
experiencing symptoms of postural orthostatic tachycardia syndrome (“POTS”) in
February 2020. Exhibit 1 ¶ 3. At a March 4, 2020 cardiology appointment, Petitioner
reported going to the emergency room for lightheadedness and palpitations on January
27, 2020.3 Exhibit 3 at 8. Petitioner was later diagnosed with POTS. Exhibit 1 ¶ 4.
Petitioner alleged the preceding medical history in the petition and repeated the
history in her response to the order to show cause. Facially, Petitioner’s claim herein was
filed over three and a half years after her last HPV dose, which was administered in
January 2020, and around three and a half years from the time she began manifesting
symptoms later in January 2020. But Petitioner maintains her delay is excusable. In the
response to the motion to dismiss, 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. 13 at 2. Although Petitioner asserts that she “testified” about
these statements, none of these statements were included in Petitioner’s affidavit. Exhibit
1. Petitioner stated that she did not learn about the Vaccine Program until June 2023, but
she filed a vaccine claim soon after. ECF No. 13 at 15. Again, Petitioner did not attest to
this statement in her affidavit and only stated it in the response to the motion to dismiss.
Exhibit 1.
Relevant Procedural History
On November 7, 2023, Respondent filed a motion to dismiss arguing that the claim
had been filed outside the Vaccine Act’s 36-month statute of limitations, Sec. 16(a)(2).
ECF No. 11. Respondent maintained that Petitioner had not diligently pursued her rights
before filing a vaccine claim in 2023. 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 the statute of limitations.
On December 19, 2023, Petitioner filed a response. ECF No. 13. Petitioner did not
dispute the onset of symptoms in January/February 2020, or that her petition was filed in
August 2023 (and not sooner than January/February 2023, the statute of limitations
deadline), but instead argued that the limitations period should be equitably tolled.
Petitioner asserted that she had diligently pursued her rights once she realized the
connection between her injuries and the HPV vaccine and became aware of the Vaccine
Program. 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. 13 at 15. Relatedly, Petitioner
argued that the failure of a healthcare professional to provide her with a Vaccine
Information Statement at the time of vaccination can be attributed to the Department of
3 Petitioner does not appear to have filed the medical records from the emergency department.
2

Case 1:23-vv-01209-UNJ Document 16 Filed 04/23/24 Page 3 of 5
Health and Human Services’ failure to systematically ensure that VIS are provided and
explained to all vaccine recipients. Id. at 3.
Respondent did not file a reply to Petitioner’s response.
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—but not, for example, lack of awareness
on a petitioner's part that she might have an actionable claim. 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”).
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.
3

Case 1:23-vv-01209-UNJ Document 16 Filed 04/23/24 Page 4 of 5
A) Diligent pursuit
Petitioner was twenty-one years old when she received the May 31, 2019
vaccination and was twenty-two years old when she received the July 31, 2019 and
January 2, 2020 HPV vaccinations. Petitioner argues that she was impeded by the failure
of the vaccine administrators to provide her with a VIS or any other information about the
Vaccine Program at the vaccination appointments. Petitioner only began to diligently
pursue a vaccine claim in June 2023 through an attorney soon after she learned that the
HPV vaccine had potential adverse effects and that she had a remedy in the Vaccine
Program.
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
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.”
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. 13 at 15. 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.4 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
4 The HPV vaccine was first added to the Table in 2007. 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).
4

Case 1:23-vv-01209-UNJ Document 16 Filed 04/23/24 Page 5 of 5
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 or 2020, is an
extraordinary circumstance. Even assuming the factual accuracy of that allegation,5 it
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.
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.6
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
5 Petitioner has only stated in the response to the motion to dismiss, not attested in an affidavit, that she
did not receive vaccine counseling, a VIS, or any information about the Vaccine Program during the HPV
vaccination appointments. ECF No. 13 at 12, 15. At the May 31, 2019 HPV vaccination appointment,
Petitioner stated that she was interested in receiving the HPV vaccine due to a prior HPV infection. Exhibit
2 at 152. This interest in the vaccine would support Petitioner having some prior knowledge or
understanding of the risks of the vaccine. The records for this appointment also contain a vaccine consent
form signed by Petitioner which supports Petitioner having received some vaccine counseling before the
vaccine was administered. Id. at 155. The records do not contain the July 31, 2019 and January 2, 2020
vaccination appointments and only contain billing statements for the related vaccinations. Id. at 262-64,
271.
6 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.”
5