VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_24-vv-01692
Package ID: USCOURTS-cofc-1_24-vv-01692
Petitioner: J.M.
Filed: 2024-05-30
Decided: 2025-06-24
Vaccine: HPV
Vaccination date: 2020-10-20
Condition: postural orthostatic tachycardia syndrome (POTS)
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
On October 3, 2024, Catherine Mistele filed a petition on behalf of her minor child, J.M., alleging that J.M. suffered injuries from a human papillomavirus (HPV) vaccination received on October 20, 2020. The petition stated that J.M. experienced severe fatigue and syncope after the vaccination and was later diagnosed with postural orthostatic tachycardia syndrome (POTS). The respondent was the Secretary of Health and Human Services. The case was dismissed because the petition was filed outside the Vaccine Act's 36-month statute of limitations. Petitioner argued for equitable tolling, claiming she was unaware of the Vaccine Program and that the vaccine manufacturer engaged in fraudulent conduct. The court found that the statute of limitations begins to run from the manifestation of symptoms, not from when the claimant learns of a potential cause of action or legal remedy. The court also determined that the petitioner failed to demonstrate diligent pursuit of her rights or the existence of extraordinary circumstances that would justify equitable tolling. Allegations of manufacturer misconduct and the failure to provide a Vaccine Information Statement (VIS) were deemed insufficient to toll the statute of limitations. The public decision does not describe the specific clinical story beyond the initial symptoms and diagnosis, nor does it name petitioner's counsel or respondent's counsel beyond their affiliations. Chief Special Master Brian H. Corcoran issued the decision. The case was dismissed as untimely filed.

Theory of causation field:
Petitioner alleged that J.M. received an HPV vaccination on October 20, 2020, and subsequently experienced severe fatigue and syncope, leading to a diagnosis of postural orthostatic tachycardia syndrome (POTS). The petition was filed on October 3, 2024, which was over four years after the vaccination and the manifestation of symptoms. Petitioner sought equitable tolling, arguing she was unaware of the Vaccine Program and that the vaccine manufacturer engaged in fraudulent conduct, and that a VIS was not provided. The Special Master found that the statute of limitations begins to run from the manifestation of symptoms, not from the claimant's awareness of a cause of action or legal remedy. The court determined that the petitioner did not diligently pursue her rights and that no extraordinary circumstances existed to justify tolling. Allegations of manufacturer misconduct and failure to provide a VIS were found insufficient to toll the statute. The public decision does not detail the specific mechanism of injury or name any experts. The case was dismissed as untimely filed by Chief Special Master Brian H. Corcoran on June 24, 2025. Petitioner's counsel was Bijan Esfandiari of Wisner Baum LLP, and respondent's counsel was Heather L. Pearlman of the U.S. Department of Justice.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_24-vv-01692-0
Date issued/filed: 2025-06-24
Pages: 5
Docket text: PUBLIC ORDER/RULING (Originally filed: 5/30/2025) regarding 9 DECISION of Special Master. Signed by Chief Special Master Brian H. Corcoran. (abs) Service on parties made.
--------------------------------------------------------------------------------
Case 1:24-vv-01692-UNJ Document 10 Filed 06/24/25 Page 1 of 5
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 24-1692V
UNPUBLISHED
CATHRINE MISTELE on behalf of her
minor child, J.M., Chief Special Master Corcoran
Petitioner,
v. Filed: May 30, 2025
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Bijan Esfandiari, Wisner Baum LLP, Los Angeles, CA, for Petitioner.
Heather L. Pearlman, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION1
On October 3, 2024, Catherine Mistele filed a petition for compensation on behalf
of her minor child, J.M., under the National Vaccine Injury Compensation Program, 42
U.S.C. § 300aa—10 through 342 (the “Vaccine Act”). Petitioner alleged that J.M.
suffered various injuries from a human papillomavirus (“HPV”) vaccination J.M. received
on October 20, 2020. ECF No. 1.
Because the petition was untimely filed, and Petitioner has failed to establish a
basis for equitable tolling, this case is DISMISSED.
Relevant Factual Background
As alleged in the petition3, after the October 20, 2020 HPV vaccination, Petitioner
stated J.M. began to experience severe fatigue and syncope. ECF No. 1 ¶ 3. J.M. was
later diagnosed with postural orthostatic tachycardia syndrome (POTS). Id. ¶ 4.
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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
3 Petitioner has not filed any medical records to establish the vaccination or J.M.’s injuries. I will assume
the accuracy of the facts in the petition to resolve the statute of limitations issue.

Case 1:24-vv-01692-UNJ Document 10 Filed 06/24/25 Page 2 of 5
Facially, Petitioner’s claim herein was filed over four years after J.M.’s October
2020 HPV vaccination and over four years from the time J.M. began manifesting
symptoms after the vaccination. But Petitioner maintains her delay is excusable. Thus, in
an affidavit dated January 2, 2025, Petitioner has attested that, at the time this vaccination
occurred, no Vaccine Information Statements (VIS) was provided and no information was
relayed about the Vaccine Program. Exhibit 2 ¶¶ 2, 3. Petitioner only learned that the
HPV vaccine might be capable of causing adverse effects or that she had a legal remedy
in October 2022. Id. ¶¶ 5, 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 October 28, 2024, Respondent submitted a brief arguing for dismissal due to
untimeliness.4 ECF No. 7. Respondent maintained that Petitioner in fact had not diligently
pursued her rights before filing a vaccine claim in 2024. 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 2, 2025, Petitioner filed a response. ECF No. 8. Petitioner did not
dispute the onset of symptoms in 2020, or that the petition was filed in October 2024 (and
not sooner than the statute of limitations deadline in 2023), but instead argued that the
limitations period should be equitably tolled. Petitioner asserted that she had diligently
pursued a vaccine claim once she became aware of J.M.’s legal rights. 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. 8 at 2. 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 explained and provided to all vaccine recipients. Id. at 9.
4 In other similarly situated cases, Respondent has also preemptively filed his arguments in favor of
dismissal without waiting to see what Petitioner would argue. As noted in those cases, I understand
Respondent to be waiving the right to respond by filing preemptively.
2

Case 1:24-vv-01692-UNJ Document 10 Filed 06/24/25 Page 3 of 5
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 as a basis for equitable tolling—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 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).
3

Case 1:24-vv-01692-UNJ Document 10 Filed 06/24/25 Page 4 of 5
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 argues that she was impeded by the failure of the vaccine administrator
to provide her with a VIS or any other information about the Vaccine Program. Petitioner
stated that she diligently began to pursue J.M.’s claim after she learned about the Vaccine
Program in October 2022.
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. 8 at 2. 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, 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 2020, is an
4

Case 1:24-vv-01692-UNJ Document 10 Filed 06/24/25 Page 5 of 5
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.
Finally, Petitioner also asserts that the safety of the HPV vaccine is “heavily
disputed and should not be resolved on these papers alone.” ECF No. 8 at 25. 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). 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.6
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
5 Petitioner has not filed any medical records, let alone the vaccination records, that would permit a factual
evaluation of whether a VIS was provided to Petitioner at J.M.’s vaccination appointment.
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.”
5

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_24-vv-01692-1
Date issued/filed: 2025-06-30
Pages: 5
Docket text: PUBLIC DECISION (Originally filed: 05/30/2025) regarding 9 DECISION of Special Master Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made.
--------------------------------------------------------------------------------
Case 1:24-vv-01692-UNJ Document 11 Filed 06/30/25 Page 1 of 5
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 24-1692V
UNPUBLISHED
CATHRINE MISTELE on behalf of her
minor child, J.M., Chief Special Master Corcoran
Petitioner,
v. Filed: May 30, 2025
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Bijan Esfandiari, Wisner Baum LLP, Los Angeles, CA, for Petitioner.
Heather L. Pearlman, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION1
On October 3, 2024, Catherine Mistele filed a petition for compensation on behalf
of her minor child, J.M., under the National Vaccine Injury Compensation Program, 42
U.S.C. § 300aa—10 through 342 (the “Vaccine Act”). Petitioner alleged that J.M.
suffered various injuries from a human papillomavirus (“HPV”) vaccination J.M. received
on October 20, 2020. ECF No. 1.
Because the petition was untimely filed, and Petitioner has failed to establish a
basis for equitable tolling, this case is DISMISSED.
Relevant Factual Background
As alleged in the petition3, after the October 20, 2020 HPV vaccination, Petitioner
stated J.M. began to experience severe fatigue and syncope. ECF No. 1 ¶ 3. J.M. was
later diagnosed with postural orthostatic tachycardia syndrome (POTS). Id. ¶ 4.
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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
3 Petitioner has not filed any medical records to establish the vaccination or J.M.’s injuries. I will assume
the accuracy of the facts in the petition to resolve the motion to dismiss.

Case 1:24-vv-01692-UNJ Document 11 Filed 06/30/25 Page 2 of 5
Facially, Petitioner’s claim herein was filed over four years after J.M.’s October
2020 HPV vaccination and over four years from the time J.M. began manifesting
symptoms after the vaccination. But Petitioner maintains her delay is excusable. Thus, in
an affidavit dated January 2, 2025, Petitioner has attested that, at the time this vaccination
occurred, no Vaccine Information Statements (VIS) was provided and no information was
relayed about the Vaccine Program. Exhibit 2 ¶¶ 2, 3. Petitioner only learned that the
HPV vaccine might be capable of causing adverse effects or that she had a legal remedy
in October 2022. Id. ¶¶ 5, 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 October 28, 2024, Respondent submitted a brief arguing for dismissal due to
untimeliness.4 ECF No. 7. Respondent maintained that Petitioner in fact had not diligently
pursued her rights before filing a vaccine claim in 2024. 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 2, 2025, Petitioner filed a response. ECF No. 8. Petitioner did not
dispute the onset of symptoms in 2020, or that the petition was filed in October 2024 (and
not sooner than the statute of limitations deadline in 2023), but instead argued that the
limitations period should be equitably tolled. Petitioner asserted that she had diligently
pursued a vaccine claim once she became aware of J.M.’s legal rights. 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. 8 at 2. 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 explained and provided to all vaccine recipients. Id. at 9.
4 In other similarly situated cases, Respondent has also preemptively filed his arguments in favor of
dismissal without waiting to see what Petitioner would argue. As noted in those cases, I understand
Respondent to be waiving the right to respond by filing preemptively.
2

Case 1:24-vv-01692-UNJ Document 11 Filed 06/30/25 Page 3 of 5
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 as a basis for equitable tolling—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 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).
3

Case 1:24-vv-01692-UNJ Document 11 Filed 06/30/25 Page 4 of 5
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 argues that she was impeded by the failure of the vaccine administrator
to provide her with a VIS or any other information about the Vaccine Program. Petitioner
stated that she diligently began to pursue J.M.’s claim after she learned about the Vaccine
Program in October 2022.
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. 8 at 2. 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, 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 2020, is an
4

Case 1:24-vv-01692-UNJ Document 11 Filed 06/30/25 Page 5 of 5
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.
Finally, Petitioner also asserts that the safety of the HPV vaccine is “heavily
disputed and should not be resolved on these papers alone.” ECF No. 8 at 25. 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). 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.6
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
5 Petitioner has not filed any medical records, let alone the vaccination records, that would permit a factual
evaluation of whether a VIS was provided to Petitioner at J.M.’s vaccination appointment.
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.”
5