VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_23-vv-02060
Package ID: USCOURTS-cofc-1_23-vv-02060
Petitioner: Christian Robertson
Filed: 2023-12-01
Decided: 2024-07-30
Vaccine: HPV
Vaccination date: 2016-03-17
Condition: non-epileptic seizures
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Christian Robertson, a minor at the time of vaccination, filed a petition for compensation under the National Vaccine Injury Compensation Program on December 1, 2023. She alleged that she suffered various injuries, including non-epileptic seizures, headaches, rapid heart rate, instability, stomach pains, loss of bladder control, dizziness, migraines, and fainting, within two days of receiving an HPV vaccination on March 17, 2016. She also received an HPV vaccination on September 17, 2014. Petitioner argued that the petition, filed over seven years after the most recent vaccination and symptom onset, should be excused due to equitable tolling. She contended that 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 prevented timely filing. The Respondent moved to dismiss the case for being untimely filed. The Special Master 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 Special Master also dismissed arguments about alleged fraudulent conduct by the vaccine manufacturer, noting these contentions were speculative and not evidentiarily supported. Because Petitioner failed to establish both diligent pursuit of her rights and an extraordinary circumstance preventing timely filing, the Special Master granted Respondent's motion to dismiss. The case was dismissed for being 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. The decision was issued by Chief Special Master Brian H. Corcoran.

Theory of causation field:
Petitioner Christian Robertson, vaccinated with HPV on September 17, 2014 (age 10) and March 17, 2016 (age 11), alleged onset of symptoms including non-epileptic seizures, headaches, rapid heart rate, instability, stomach pains, loss of bladder control, dizziness, migraines, and fainting within two days of the March 17, 2016 vaccination. The petition was filed on December 1, 2023, over seven years after the last vaccination and symptom onset. Petitioner sought equitable tolling, arguing her minor status at vaccination and the alleged failure to provide a Vaccine Information Statement (VIS) or information about the Vaccine Program constituted extraordinary circumstances preventing timely filing. Respondent moved to dismiss for untimeliness. Chief Special Master Brian H. Corcoran granted the motion, finding that the Vaccine Act does not provide for minority tolling and that the failure to provide a VIS or program information does not constitute an extraordinary circumstance. Allegations of manufacturer misconduct were deemed speculative and not a basis for tolling. Petitioner failed to establish both diligent pursuit and extraordinary circumstances, leading to dismissal for untimeliness. Petitioner was represented by Bijan Esfandiari (Wisner Baum LLP) and Respondent by Julia M. Collison (U.S. Department of Justice).

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_23-vv-02060-0
Date issued/filed: 2024-07-30
Pages: 6
Docket text: PUBLIC DECISION (Originally filed: 7/3/2024) regarding 10 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-02060-UNJ Document 11 Filed 07/30/24 Page 1 of 6
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 23-2060V
UNPUBLISHED
CHRISTIAN ROBERTSON,
Chief Special Master Corcoran
Petitioner,
v.
Filed: July 3, 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 December 1, 2023, Christian Robertson 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 September 17, 2014, and March 17,
2016. 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
When she was ten years old, Petitioner stated she received an HPV vaccination
on September 17, 2014, and was accompanied by her mother. Exhibit 1 (Petitioner’s
affidavit) ¶¶ 2, 3; exhibit 4 (Petitioner’s mother’s affidavit) ¶ 2. For this vaccination, the
vaccine administrator was not identified in the petition, Petitioner’s affidavits, or her
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-02060-UNJ Document 11 Filed 07/30/24 Page 2 of 6
mother’s affidavit. Moreover, Petitioner has not submitted any vaccine administration
records, vaccine appointment records, or vaccination history to establish this vaccination.
When she was eleven years old, Petitioner received an HPV vaccination on March
17, 2016, accompanied by her mother at McDonough Adult and Pediatric Medicine Clinic.
Exhibit 9 at 7. The records state that “Patient Decision Aids/Education Materials Given.”
Id. The records for the HPV vaccination only note the lot number of the vaccine but do
not indicate which dose of the vaccine (i.e., first or second dose) it was. Id. The
McDonough records are certified as complete and do not contain any documentation for
the September 17, 2014 HPV vaccination.
Within two days of the March 16, 2016 HPV vaccination, Petitioner stated she
experienced the sudden onset of headaches, speeding heart rate, instability, inability to
eat, seizing, stomach pains, loss of bladder control, dizziness, ticking, migraines, fainting,
and loss of appetite. Exhibit 1 ¶ 5. Petitioner stated she was later diagnosed with non-
epileptic seizures. Exhibit 3 ¶ 7.
Petitioner alleged the preceding medical history in the petition and her affidavits.
Facially, Petitioner’s claim herein was filed over seven after the most recent HPV dose,
which was administered in 2016, and over seven years from the time she began
manifesting symptoms in 2016. But Petitioner maintains her delay is excusable. Petitioner
and her mother 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 1 ¶ 4;
exhibit 4 ¶¶ 4, 5. Petitioner stated that she only learned about the Vaccine Program in
December 2022. Exhibit 3 ¶ 8.
Relevant Procedural History
On December 6, 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. 6. 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 January 19, 2024, Petitioner filed a response. ECF No. 8. Petitioner did not
dispute the onset of symptoms in 2016, or that her petition was filed in 2023 (beyond 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
2

Case 1:23-vv-02060-UNJ Document 11 Filed 07/30/24 Page 3 of 6
claim, about the perfidious conduct of the vaccine manufacturer in fraudulently concealing
the HPV vaccine’s harmful character from the public. ECF No. 8 at 18. 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
Health and Human Services’ failure to systematically ensure that VIS are provided and
explained to all vaccine recipients. Id. at 3. Petitioner also argued that her minor status
when receiving the vaccinations impeded her ability to bring a vaccine claim. Id. at 2.
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
3

Case 1:23-vv-02060-UNJ Document 11 Filed 07/30/24 Page 4 of 6
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
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 ten years old when she received the first HPV vaccination in 2014
and was eleven years old when she received the second HPV vaccination in 2016.2 Until
she turned eighteen in 2022, 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 December 2022 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.3
2 Although Petitioner has not submitted any evidence to establish the 2014 HPV vaccination beyond
affidavits dated nine years after the fact, I will analyze the equitable tolling issue assuming that both
vaccinations have been established.
3 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
4

Case 1:23-vv-02060-UNJ Document 11 Filed 07/30/24 Page 5 of 6
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. However, Petitioner 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 2022, 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. 8 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
“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.
Fed. Reg. 19937 (Apr. 20, 2007). The Act’s lookback provisions have no relevance at all to the timeliness
of this claim.
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).
5

Case 1:23-vv-02060-UNJ Document 11 Filed 07/30/24 Page 6 of 6
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 2014 or 2016, 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 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 or any other contemporaneous medical records for the September 17, 2014 HPV vaccination.
Petitioner’s only evidence that no VIS or information about the Vaccine Program was provided for the
September 17, 2014 vaccination is her affidavits, about what she remembers as a ten-year-old, and her
mother’s affidavit for events that happened nine years earlier. Exhibit 1 ¶ 4; exhibit 4 ¶¶ 4, 5. For the March
17, 2016 HPV vaccination, contrary to Petitioner’s and her mother’s statements, the contemporaneous
medical records state that “Patient Decision Aids/Education Materials Given.” Exhibit 9 at 7.
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.”
6