Gavin Sherman v. HHS - HPV, postural orthostatic tachycardia syndrome (“POTS”), anemia, tachycardia, and chronic colitis (2024)

Gavin Sherman, a 37-year-old adult, filed a petition for compensation under the National Vaccine Injury Compensation Program alleging injuries from three Human Papillomavirus (HPV) vaccines received on July 9, 2019, September 12, 2019, and January 16, 2020. He claimed to have experienced daily essential tremors, high heart rate, and heart palpitations by March 2020, and was later diagnosed with postural orthostatic tachycardia syndrome (POTS), anemia, tachycardia, and chronic colitis.

The petition was filed on September 5, 2023, over three and a half years after his last vaccination and symptom onset. The court ordered Mr.

Sherman to show cause why the claim was not untimely filed, as the statute of limitations is 36 months from the manifestation of the first symptom. Mr.

Sherman argued for equitable tolling, asserting that he was not provided with a Vaccine Information Statement (VIS) or informed about the Vaccine Program at the time of vaccination and only learned of potential adverse effects in June 2023. He also alleged fraudulent concealment by the vaccine manufacturer.

The respondent argued against equitable tolling, stating that the claim was untimely and that Mr. Sherman had not diligently pursued his rights.

The court found that Mr. Sherman failed to establish both elements required for equitable tolling: diligent pursuit and extraordinary circumstances.

The court noted that the Vaccine Act does not have a discovery rule and that unawareness of the Vaccine Program or a potential cause of action does not support equitable tolling. Furthermore, allegations of manufacturer misconduct were deemed speculative and not a basis for tolling.

Consequently, the court dismissed the case as untimely filed.