Pha Her and Tang Tao v. HHS - MMR, death (1995)

Pha Her and Tang Tao, as petitioners, sought compensation under the National Childhood Vaccine Injury Act for the death of their son, Bee Her, alleging that an MMR vaccination administered on April 18, 1990, caused the death. The Special Master dismissed the petition on January 23, 1995.

The petitioners filed a motion for review of this decision with the United States Court of Federal Claims, but the motion did not reach the clerk's office until February 23, 1995, one day after the 30-day statutory deadline. The respondent moved to dismiss the case for lack of jurisdiction due to the untimely filing.

The court considered whether the 30-day period was subject to equitable tolling, referencing prior case law including Raspberry v. Secretary, HHS and Irwin v.

Dep’t of Veterans Affairs. The court found that while the 30-day period is generally subject to equitable tolling, the petitioners failed to demonstrate due diligence in their efforts to meet the deadline.

Specifically, the court noted that the petitioners did not pay for and request expedited delivery of the transcript of the special master's proceedings until February 13, 1995, resulting in receipt of the transcript on February 20, 1995, only two days before the deadline. Furthermore, the court found that the petitioners' actions in arranging for same-day delivery on the final day of the statutory period were not sufficiently diligent, creating a foreseeable risk of delay.

The court granted the respondent's motion to dismiss for lack of jurisdiction. The public decision does not describe the specific clinical details of the child's death, the symptoms, any medical tests performed, or treatments administered.

No expert witnesses were named in the public decision. The attorneys involved were not named in the public decision.