VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_23-vv-01926
Package ID: USCOURTS-cofc-1_23-vv-01926
Petitioner: Katherine M. Helton
Filed: 2023-06-26
Decided: 2024-07-23
Vaccine: HPV
Vaccination date: 2016-05-03
Condition: major depressive disorder, anxiety disorder, panic attacks, eating disorder, syncope, chronic constipation, dissociative seizures, chronic ovarian cysts, postural orthostatic tachycardia syndrome (POTS), gastroparesis, chronic urinary tract infections, cholecystectomy, hematochezia, attention-deficit/hyperactivity disorder, mononucleosis, and possible left atrial enlargement
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Katherine M. Helton filed a petition for compensation under the National Vaccine Injury Compensation Program on October 31, 2023, alleging injuries from two human papillomavirus (HPV) vaccinations received on May 3, 2016, and June 21, 2018. At the time of the first vaccination, Ms. Helton was fifteen years old, and she was seventeen at the time of the second. Within seven days of the first vaccination, she reported experiencing seizures, and subsequently developed a range of other conditions including major depressive disorder, anxiety disorder, panic attacks, eating disorder, syncope, chronic constipation, dissociative seizures, chronic ovarian cysts, postural orthostatic tachycardia syndrome (POTS), gastroparesis, chronic urinary tract infections, cholecystectomy, hematochezia, attention-deficit/hyperactivity disorder, mononucleosis, and possible left atrial enlargement. The petition was filed over five years after the last vaccination and over seven years after the onset of symptoms. Petitioner argued for equitable tolling of the 36-month statute of limitations, citing her minor status at the time of vaccination and the alleged failure of vaccine administrators to provide a Vaccine Information Statement (VIS) or information about the Vaccine Program. Respondent moved to dismiss the case as untimely filed. Chief Special Master Brian H. Corcoran issued a decision on July 23, 2024. The court found that the Vaccine Act does not provide for minority tolling and that the failure to provide a VIS or information about the program does not constitute an extraordinary circumstance for equitable tolling. The court noted that the HPV vaccine was added to the Vaccine Injury Table in 2007, but the primary issue was the untimeliness of the filing. Petitioner's arguments regarding the manufacturer's alleged fraudulent conduct were also found unpersuasive and not a basis for tolling. The court concluded that Petitioner failed to establish both diligent pursuit of her rights and extraordinary circumstances to justify equitable tolling. Consequently, the case was dismissed as untimely filed. Petitioner was represented by Bijan Esfandiari of Wisner Baum LLP, and Respondent was represented by Julia M. Collison of the U.S. Department of Justice.

Theory of causation field:
Petitioner Katherine M. Helton, age 15 at first vaccination on May 3, 2016, and 17 at second vaccination on June 21, 2018, with HPV vaccine, alleged onset of seizures within seven days of the first dose, followed by major depressive disorder, anxiety disorder, panic attacks, eating disorder, syncope, chronic constipation, dissociative seizures, chronic ovarian cysts, POTS, gastroparesis, chronic urinary tract infections, cholecystectomy, hematochezia, ADHD, mononucleosis, and possible left atrial enlargement. The petition was filed on October 31, 2023, outside the 36-month statute of limitations which began to run from the 2016 symptom onset. Petitioner sought equitable tolling, arguing minority status and lack of VIS/Vaccine Program information at vaccination. The HPV vaccine was added to the Vaccine Injury Table in 2007. The court, per Chief Special Master Brian H. Corcoran, found no basis for equitable tolling, as minority status does not toll the statute, and failure to provide a VIS or information about the program is not an extraordinary circumstance. Petitioner's allegations of manufacturer misconduct were also deemed insufficient for tolling. The case was dismissed as untimely filed. Petitioner was represented by Bijan Esfandiari (Wisner Baum LLP) and Respondent by Julia M. Collison (DOJ). Decision date: July 23, 2024.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_23-vv-01926-0
Date issued/filed: 2024-07-23
Pages: 6
Docket text: PUBLIC DECISION (Originally filed: 6/26/2024) regarding 17 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-01926-UNJ Document 18 Filed 07/23/24 Page 1 of 6
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 23-1926V
UNPUBLISHED
KATHERINE M. HELTON,
Chief Special Master Corcoran
Petitioner,
v.
Filed: June 26, 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 October 31, 2023, Katherine Helton 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 3, 2016, and June 21, 2018.
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
At appointments accompanied by her mother, Petitioner received the first HPV
vaccination on May 3, 2016, when she was fifteen years old, and the second HPV
vaccination on June 21, 2018, when she was seventeen years old. Exhibit 18 at 31-37
and 82-87. The contemporaneous medical records for each vaccination appointment
state that “[c]ounseling performed on side effects, risks and benefits of immunization per
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.

Case 1:23-vv-01926-UNJ Document 18 Filed 07/23/24 Page 2 of 6
component. Consent given” and “[a]ppropriate CDC [Vaccine Information Statement
(VIS)] given for each vaccine given.” Id.
Within seven days of the first HPV vaccination in May 2016, Petitioner stated she
began having seizures and developed other symptoms. ECF No. 1 ¶ 5. Over the next few
years, Petitioner was diagnosed with various issues, including major depressive disorder,
anxiety disorder, panic attacks, eating disorder, syncope, chronic constipation,
dissociative seizures, chronic ovarian cysts, postural orthostatic tachycardia syndrome
(POTS), gastroparesis, chronic urinary tract infections, cholecystectomy, hematochezia,
attention-deficit/hyperactivity disorder, mononucleosis, and possible left atrial
enlargement. Id. ¶¶ 7-17.
Petitioner alleged the preceding medical history in the petition. Facially, Petitioner’s
claim herein was filed over five after her last HPV dose, which was administered in June
2018, and over seven years from the time she began manifesting symptoms in 2016. But
Petitioner maintains her delay is excusable. Petitioner stated at the time these
vaccinations 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. Exhibit 12 ¶ 4. Petitioner stated that she only learned
about the Vaccine Program in April 2023. Id. ¶ 5. Although Petitioner’s mother
accompanied her to both vaccination appointments, Petitioner did not submit an affidavit
from her mother about whether any counseling or information was provided about the
HPV vaccine or the Vaccine Program.
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. 7. 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 12, 2023, Petitioner filed a response. ECF No. 14. Petitioner did not
dispute the onset of symptoms in 2016, or that her petition was filed in 2023 (and not
sooner than 2019, 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.
14 at 11. Relatedly, Petitioner argued that the failure of a healthcare professional to
2

Case 1:23-vv-01926-UNJ Document 18 Filed 07/23/24 Page 3 of 6
provide her with a Vaccine Information Statement 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 2. Petitioner
also argued that her minor status when receiving the vaccinations impeded her ability to
bring a vaccine claim. Id.
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”).
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
3

Case 1:23-vv-01926-UNJ Document 18 Filed 07/23/24 Page 4 of 6
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 was a minor when she received the HPV vaccinations in 2016 and 2018.
Until she turned eighteen in 2019, Petitioner argues that her diligent pursuit of her vaccine
claim was impeded by her minor status when the vaccinations were administered. After
turning eighteen, 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 admits that she only learned of the
Vaccine Program in 2023 and then began to diligently pursue her vaccine claim.
First, Petitioner incorrectly attempts to leverage her minor status at the time of the
vaccinations into an exception to diligent pursuit. 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.2
At best, the Federal Circuit has noted that a guardian’s effectiveness in acting on
behalf of a legally incapacitated individual should be assessed on a case-by-case basis,
and there thus could be circumstances where the adequacy of a guardian’s performance
of their duties bears on tolling. K.G, 951 F.3d at 1382 (Fed. Cir. 2020). However, Petitioner
2 In fact, the HPV vaccine was added to the Table in 2007 – nine 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.
4

Case 1:23-vv-01926-UNJ Document 18 Filed 07/23/24 Page 5 of 6
has not alleged that her parents or legal guardians were ineffective at managing her
medical or legal affairs. I do not find any evidence that Petitioner’s parents or legal
guardians were ineffective and, thus, I do not find any grounds to toll the statute of
limitations while Petitioner was a minor.
Second, turning to Petitioner once she turned eighteen in 2019, the argument
about the vaccine administrators’ failure to provide a VIS or any other information about
the Vaccine Program is 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. 14 at 11. 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.3 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 2016 or 2018, is an
3 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).
5

Case 1:23-vv-01926-UNJ Document 18 Filed 07/23/24 Page 6 of 6
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.
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
4 As noted above, contrary to Petitioner’s claims, the contemporaneous vaccine administration records
state that Petitioner and her mother were counseled about the risks of vaccination and provided with VIS
at both appointments. Exhibit 18 at 31-37 and 82-87. The only evidence that no VIS or information about
the Vaccine Program was provided is Petitioner’s affidavit dated December 12, 2023, in which she attested
about events that occurred five and seven years earlier, when she was a teenager. Exhibit 12 ¶ 4. Petitioner
has not submitted an affidavit from her mother, the only adult present with her at the vaccination
appointments.
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