VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_23-vv-01529
Package ID: USCOURTS-cofc-1_23-vv-01529
Petitioner: Gavin Sherman
Filed: 2023-09-05
Decided: 2024-05-28
Vaccine: HPV
Vaccination date: 2019-07-09
Condition: postural orthostatic tachycardia syndrome (“POTS”), anemia, tachycardia, and chronic colitis
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
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.

Theory of causation field:
unclear

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_23-vv-01529-0
Date issued/filed: 2024-05-28
Pages: 6
Docket text: PUBLIC DECISION (Originally filed: 5/1/2024) regarding 14 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-01529-UNJ Document 15 Filed 05/28/24 Page 1 of 6
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 23-1529V
UNPUBLISHED
GAVIN SHERMAN,
Chief Special Master Corcoran
Petitioner,
v.
Filed: May 1, 2024
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Bijan Esfandiari, Wisner Baum LLP, Los Angeles, CA, for Petitioner.
Julia M. Collison, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION1
On September 5, 2023, Gavin Sherman 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 he suffered various injuries due to human
papillomavirus (“HPV”) vaccines he received on July 9, 2019, September 12, 2019, and
January 16, 2020. 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
Petitioner stated he received HPV vaccinations on July 9, 2019, September 12,
2019, and January 16, 2020. ECF No. 1. However, Petitioner has not submitted the
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).

Case 1:23-vv-01529-UNJ Document 15 Filed 05/28/24 Page 2 of 6
administration records to establish these vaccinations, a vaccination history, or even
identified the medical facility where the vaccines were administered.
After the third HPV vaccination, Petitioner stated that he experienced daily
essential tremors, high heartrate, and heart palpitations by March 2020. ECF No. 1 ¶ 5.
Petitioner was later diagnosed with postural orthostatic tachycardia syndrome (“POTS”),
anemia, tachycardia, and chronic colitis. Id. ¶ 6.
Petitioner alleged the preceding medical history in the petition and repeated the
history in his response to the order to show cause. Facially, Petitioner’s claim herein was
filed over three and a half years after his last HPV dose, which was administered in
January 2020, and three and a half years after he began manifesting symptoms in March
2020. But Petitioner maintains his 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. Exhibit 2 ¶¶ 3, 4. Petitioner only learned that the HPV vaccine
might be capable of causing adverse effects in June 2023. Id. ¶ 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.
On November 21, 2023, Petitioner filed a response. ECF No. 7. Petitioner did not
dispute that the onset of symptoms occurred more than three years before the petition
was filed in 2023, but instead argued that the limitations period should be equitably tolled.
Petitioner asserted that he had diligently pursued his rights once he realized the
connection between his 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. 7 at 19. Relatedly, Petitioner argued
that the failure of a healthcare professional to provide him 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
5.
On January 10, 2024, Respondent submitted a responsive brief of his own, arguing
for dismissal due to untimeliness. ECF No. 10. Respondent maintained that Petitioner in
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Case 1:23-vv-01529-UNJ Document 15 Filed 05/28/24 Page 3 of 6
fact had not diligently pursued his 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 24, 2024, Petitioner filed a reply to Respondent’s arguments. ECF No.
11. The reply generally reiterates Petitioner’s prior arguments. Petitioner later filed some
medical records. ECF Nos. 12, 13.
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.
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Case 1:23-vv-01529-UNJ Document 15 Filed 05/28/24 Page 4 of 6
A) Diligent pursuit
Petitioner was thirty-seven years old when he received the first HPV vaccination
in 2019 and thirty-eight years old when the received the second and third doses. Petitioner
argues that he was impeded by the failure of the vaccine administrator to provide him with
a VIS or any other information about the Vaccine Program. Petitioner only began to
diligently pursue a vaccine claim after he learned that the HPV vaccine had potential
adverse effects in June 2023.
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. 7 at 19. 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, him 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 he persuasively established
that the vaccine administrator’s “failure to warn,” or provide a VIS in 2019 or 2020, is an
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Case 1:23-vv-01529-UNJ Document 15 Filed 05/28/24 Page 5 of 6
extraordinary circumstance. Even assuming the factual accuracy of that allegation,3 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.
11 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 POTS or other autonomic issues. See, e.g.,
J.S. v. Sec'y of Health & Hum. Servs., No. 16-1083V, 2022 WL 20213038, at *20 (Fed.
Cl. Spec. Mstr. July 15, 2022), mot. for review denied, 164 Fed. Cl. 314 (2023), appeal
docketed, No. 23-1644 (Fed. Cir. Mar. 22, 2023); 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). 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.4
3 Vaccine administration records typically state whether VIS are provided to patients and/or whether
patients have been counseled about the vaccine. As noted above, Petitioner has not submitted any vaccine
administration records, a vaccination history, or even identified the vaccine administrators to establish the
HPV vaccinations. Thus, Petitioner has not submitted any contemporaneous medical records of the
vaccination to determine whether a VIS was provided to him. Petitioner’s only evidence that no VIS or
information about the Vaccine Program was provided is his affidavit dated November 17, 2023, in which he
attested about events that occurred over three years earlier. Exhibit 2 ¶¶ 3, 4.
4 If Petitioner wishes to bring a civil action, he 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.”
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Case 1:23-vv-01529-UNJ Document 15 Filed 05/28/24 Page 6 of 6
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
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