VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_23-vv-01493
Package ID: USCOURTS-cofc-1_23-vv-01493
Petitioner: Kristen Dempsey
Filed: 2024-04-19
Decided: 2024-05-14
Vaccine: HPV
Vaccination date: 2006-11-15
Condition: tachycardia, migraines, fatigue, postural orthostatic tachycardia syndrome (POTS), lupus, polycystic ovary syndrome
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Kristen Dempsey filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging that she suffered various injuries, including tachycardia, migraines, fatigue, postural orthostatic tachycardia syndrome (POTS), lupus, and polycystic ovary syndrome, due to the human papillomavirus (HPV) vaccines she received on November 15, 2006, January 15, 2007, and May 10, 2007. At the time of vaccination, Ms. Dempsey was eighteen years old. She reported experiencing tachycardia symptoms since she was fifteen and stated that after the second HPV vaccination, she experienced migraines, fatigue, and symptoms consistent with POTS, which continued after the third dose. In the subsequent years, she developed lupus and polycystic ovary syndrome. The petition was filed on April 19, 2024, over sixteen years after her last HPV dose and symptom onset. The court ordered Ms. Dempsey to show cause why the claim had not been filed outside the 36-month statute of limitations. Ms. Dempsey argued for equitable tolling, asserting that she was not provided with Vaccine Information Statements (VIS) and only learned of potential adverse effects in September 2020. She also alleged fraudulent concealment by the vaccine manufacturer. The respondent argued for dismissal due to untimeliness. The court found that Ms. Dempsey failed to establish both elements of equitable tolling: diligent pursuit and extraordinary circumstances. The court noted that the Vaccine Act does not have a discovery rule and that the failure to be advised of the Vaccine Program does not support equitable tolling. The court also dismissed her claims regarding manufacturer misconduct as speculative and not a basis for tolling. Consequently, the case was dismissed for being untimely filed.

Theory of causation field:
unclear

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_23-vv-01493-0
Date issued/filed: 2024-05-14
Pages: 6
Docket text: PUBLIC DECISION (Originally filed: 4/19/2024) regarding 16 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-01493-UNJ Document 17 Filed 05/14/24 Page 1 of 6
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 23-1493V
UNPUBLISHED
KRISTEN EDWARDS DEMPSEY,
Chief Special Master Corcoran
Petitioner,
v.
Filed: April 19, 2024
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Robert M. Hatch, Bronster Fujichaku Robbins, Honolulu, HI, for Petitioner.
Julia M. Collison, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION1
On August 29, 2023, Kristen Dempsey filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa—10 through 342 (the
“Vaccine Act”). Petitioner alleges that she suffered various injuries due to human
papillomavirus (“HPV”) vaccines she received on November 15, 2006, January 15, 2007,
and May 10, 2007. ECF No. 9 at 2 (amended petition3).
Because the petition was untimely filed, and Petitioner has failed to establish a
basis for equitable tolling, this case is DISMISSED.
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 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all “Sec.” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
3 The original petition stated that Petitioner received the three doses of HPV vaccine in 2009. ECF No. 1
at 1-2. The amended petition was filed to correct the vaccination dates and the onset of symptoms. ECF
No. 9 at 1 n.1. This correction of the vaccination dates and onset does not change the untimeliness of the
petition.

Case 1:23-vv-01493-UNJ Document 17 Filed 05/14/24 Page 2 of 6
Relevant Factual Background
Petitioner reported that she had experienced tachycardia symptoms since she
was fifteen (i.e., in 2005 or 2006). Exhibit 1 at 23 (March 6, 2017 cardiology
appointment). Petitioner stated she received HPV vaccinations on November 15, 2006,
January 15, 2007, and May 10, 2007, all when she was eighteen years old. ECF No. 9.
Petitioner has not submitted the administration records for any of these vaccines. The
oldest medical records submitted by Petitioner are an initial appointment in November
2008 at Physicians East. Exhibit 2 at 252. These records note that Petitioner previously
treated with Greenville Pediatrics, making it likely, based on the timing, that the HPV
vaccinations were administered at that facility. However, Petitioner has not filed any
records from Greenville Pediatrics. The only documentation supporting any of the
vaccinations is a vaccination history notation for the third HPV dose that first appears in
Physicians East’s records in 2015. Exhibit 2 at 142.
After the second HPV vaccination in January 2007, Petitioner stated that she
experienced migraines, fatigue, and “symptoms consistent with [postural orthostatic
tachycardia syndrome (POTS)].” ECF No. 9 ¶ 4. After the third HPV vaccination in May
2007, Petitioner continued to experience the same symptoms. Id. ¶ 5. In the
“subsequent years,” Petitioner developed lupus, POTS, and polycystic ovary syndrome.
Id. ¶ 7.
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 sixteen years after her last HPV dose, which was administered in 2007, and
over sixteen years from the time she began manifesting symptoms. But Petitioner
maintains her delay is excusable. Thus, in an affidavit dated November 17, 2023,
Petitioner has attested that, at the time these vaccinations occurred, no Vaccine
Information Statements (VIS) were provided and no information was relayed about the
Vaccine Program. ECF No. 12 at 22, ¶ 6. Petitioner only learned that the HPV vaccine
might be capable of causing adverse effects in September 2020. Exhibit 12 ¶ 6.
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.
2

Case 1:23-vv-01493-UNJ Document 17 Filed 05/14/24 Page 3 of 6
On November 20, 2023, Petitioner filed a response. ECF No. 12. Petitioner did not
dispute the onset of symptoms in 2007, or that her petition was filed in 2023 (and not
sooner than 2010, 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.
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 provided and
explained to all vaccine recipients. Id. at 4.
On January 9, 2024, Respondent submitted a responsive brief of his own, arguing
for dismissal due to untimeliness. ECF No. 14. Respondent maintained that Petitioner in
fact 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 of the statute.
On January 23, 2024, Petitioner filed a reply to Respondent’s arguments. ECF No.
15. The reply generally reiterates Petitioner’s prior arguments.
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
3

Case 1:23-vv-01493-UNJ Document 17 Filed 05/14/24 Page 4 of 6
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.
A) Diligent pursuit
Petitioner was eighteen years old when she received the three HPV vaccinations
in 2006 and 2007. Petitioner argues that she was impeded by the repeated failure of the
vaccine administrators to provide her with a VIS or any other information about the
Vaccine Program. Petitioner only began to diligently pursue a vaccine claim after she
learned that the HPV vaccine had potential adverse effects in September 2020.
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. 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
4

Case 1:23-vv-01493-UNJ Document 17 Filed 05/14/24 Page 5 of 6
“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 2006 or 2007, is an
extraordinary circumstance. Even assuming the factual accuracy of that allegation,4 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.
Finally, Petitioner also asserts that the safety of the HPV vaccine is “in dispute
[and] the Court should not simply accept the assertions of the Respondent over those of
the Petitioner without further proceedings including expert testimony on the subject.” No.
15 at 2. 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
4 Vaccine administration records typically state whether VIS are provided to patients and/or whether
patients have been counseled about the vaccine. Petitioner has not submitted vaccine administration
records for any of the HPV vaccinations. Petitioner only filed a vaccination history from Physicians East
(exhibit 2 at 142) that notes the third HPV dose, but, as stated above, it does not appear that any of the
HPV vaccine doses were administered at this facility. Thus, Petitioner has not submitted any
contemporaneous medical records of the vaccinations to determine whether any VIS were provided to her.
Petitioner’s only evidence that no VIS or information about the Vaccine Program was provided is her
affidavit dated November 17, 2023, in which she attested about events that occurred over sixteen years
earlier. ECF No. 12 at 22, ¶ 6.
5

Case 1:23-vv-01493-UNJ Document 17 Filed 05/14/24 Page 6 of 6
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.5
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
5 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