VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_94-vv-00524
Package ID: USCOURTS-cofc-1_94-vv-00524
Petitioner: Cassie Ann Weddel
Filed: 1990-09-12
Decided: 1995-11-28
Vaccine: DPT
Vaccination date: 1986-08-04
Condition: 
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Petitioners Jerry L. Weddel and Lea Ann Weddel filed a claim for compensation under the National Vaccine Injury Compensation Program on behalf of their daughter, Cassie Ann Weddel, alleging injury from a Diphtheria, Pertussis, and Tetanus (DPT) vaccine administered on August 4, 1986. The initial petition was filed on September 12, 1990. This first petition was dismissed because the petitioners had a civil suit pending in Texas state court at the time of filing, as per 42 U.S.C. § 300aa-11(a)(5)(B). Seven days after filing the federal claim, the petitioners had their state court suit dismissed without prejudice. The petitioners subsequently refiled their claim in the Court of Federal Claims on August 11, 1994. Special Master Elizabeth E. Wright granted the respondent's motion to dismiss this second petition, finding it was filed after the statutory deadline of February 1, 1991, for pre-Act injuries, as established by 42 U.S.C. § 300aa-16(a)(1). The petitioners argued that the statute of limitations should be equitably tolled due to their initial filing. The respondent contended that the statute, being a statute of repose, was not subject to equitable tolling and, alternatively, that the petitioners' own neglect would prevent them from benefiting from equitable tolling even if it were applicable. The special master agreed with the respondent, concluding that the statute is not subject to equitable tolling and that, in any event, the petitioners failed to demonstrate due diligence. The Court of Federal Claims reviewed the special master's decision, which involved questions of law reviewed de novo. The court affirmed the special master's conclusion that 42 U.S.C. § 300aa-16(a)(1) is a statute of repose and is not subject to equitable tolling. The court also upheld the special master's alternative finding that the petitioners failed to exercise due diligence in prosecuting their claim. Consequently, the court affirmed the dismissal of the petition for untimeliness. The public decision does not describe the specific injury alleged, the onset of symptoms, any medical tests performed, treatments received, or the specific mechanism of injury. The attorneys involved were not named in the public decision.

Theory of causation field:
The petitioners, Jerry L. Weddel and Lea Ann Weddel, filed a claim alleging their daughter, Cassie Ann Weddel, suffered injury from a DPT vaccine received on August 4, 1986. They initially filed on September 12, 1990, but this was dismissed due to a pending state court suit. After the state suit was dismissed, they refiled on August 11, 1994. The special master dismissed the second petition as untimely, finding that 42 U.S.C. § 300aa-16(a)(1) is a statute of repose for pre-Act injuries (vaccine administered before October 1, 1988) with a filing deadline of February 1, 1991 (28 months after the subpart's effective date), and that statutes of repose are not subject to equitable tolling. The Court of Federal Claims reviewed this legal conclusion de novo and affirmed that § 300aa-16(a)(1) is a statute of repose not subject to equitable tolling. The court also affirmed the special master's alternative finding that even if equitable tolling applied, the petitioners failed to demonstrate due diligence in prosecuting their claim. The case was dismissed for untimeliness. The public text does not specify the alleged injury, the mechanism of causation, or name any experts.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_94-vv-00524-cl6645676
Date issued/filed: 1995-11-28
Pages: 1
Docket text: lead-opinion
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ORDER

MARGOLIS, Judge.
This case is before the court on petitioners’ motion to review the special master’s decision to dismiss petitioners’ claim for compensation under the National Vaccine Injury Compensation Program (the Vaccine Act). The special master found that the claim was not filed within the deadline set forth in 42 U.S.C. § 300aa-16(a)(l) (“section 16(a)(1)”).

After carefully reviewing the record and after hearing oral argument, the court finds that the special master did not err in finding that section 16(a)(1) is a statute of repose not subject to equitable tolling. Therefore, petitioners did not file their claim within the time limit specified within this section.

FACTS

Petitioners, Jerry L. Weddel and Lea Ann Weddel, claim that their daughter, Cassie Ann Weddel, suffered injury due to the DPT (Diphtheria, Pertussis and Tetanus) vaccine she received on August 4, 1986. Petitioners filed a claim against the United States Secretary of Health and Human Services on September 12, 1990 in the Court of Federal Claims seeking compensation for this injury under the Vaccine Act. This petition was dismissed pursuant to 42 U.S.C. § 300aa-11(a)(5)(B)1 because at the time of filing, petitioners had a civil suit pending in a Texas state court. Weddel v. Secretary of DHHS, 1993 WL 42852, No. 90-0947V (Fed.Cl.Spec. Mstr. Jan. 13, 1993), affd, 23 F.3d 388 (Fed. Cir.1994). On their motion, petitioners’ state court suit was dismissed without prejudice seven days after they filed their September 12, 1990 petition in the Court of Federal Claims.

Petitioners filed their claim again in this court on August 11, 1994. In her decision of June 29, 1995, Special Master Elizabeth E. Wright granted respondent’s motion to dismiss the Weddels’ August 11, 1994 petition *463on the ground that they failed to file it by the deadline provided for in section 16(a)(1) of the Vaccine Act. Weddel v. Secretary of DHHS, 1995 WL 413925 (Fed.Cl.Spec.Mstr. June 29, 1995).

Petitioners argued that their claim should not be dismissed for untimeliness because the statute was equitably tolled when they filed their first petition. Respondent asserted that the doctrine of equitable tolling was not applicable because section 16(a)(1) is a statute of repose, which was intended to provide a strict cut-off date. Furthermore, respondent contended that even if section 16(a)(1) were subject to equitable tolling, petitioners’ own neglect would preclude them from taking advantage of this doctrine.

The special master agreed with respondent that section 16(a)(1) is not subject to equitable tolling and concluded that even if equitable tolling were applicable, petitioners could not take advantage of it because they failed to use due diligence in prosecuting their claim.

DISCUSSION

The United States Court of Federal Claims may only set aside a finding of fact or a conclusion of law of a special master that is “found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law ...” 42 U.S.C. § 300aa-12(e)(2)(B).

Questions of law are reviewed de novo under the “not in accordance with law” standard. McGowan v. Secretary of DHHS, 31 Fed.Cl. 734, 737 (1994) (holding that “[i]n reviewing legal questions, the standard test is whether the ruling is ‘not in accordance with law,’ and a de novo analysis is undertaken.”); see also Munn v. Secretary of DHHS, 970 F.2d 863, 870 (Fed.Cir.1992) (holding that the court would review legal issues de novo after concluding that the “Claims Court’s judgment is entitled to at least the same deference by us as that accorded the special master by the Claims Court.”); Massard v. Secretary of DHHS, 25 Cl.Ct. 421, 423 (1992) (explaining that the “not in accordance with law” standard is based on the Administrative Procedure Act standards under which legal questions are reviewed de novo).

Interpretation of section 16(a)(1) is a question of law, which will be reviewed de novo. Section 16(a)(1) provides in pertinent part that for “a vaccine set forth in the Vaccine Injury Table which is administered before the effective date of this subpart [October 1, 1988], if a vaccine-related injury or death occurred as a result of the administration of such vaccine, no petition may be filed for compensation under the Program for such injury or death after the expiration of 28 months [February 1,1991] after the effective date of this subpart.” The vaccine at issue here was administered before October 1, 1988. Petitioners’ August 11, 1994 claim was filed after the February 1,1991 deadline provided in section 16(a)(1) for claims for pre-Act injuries.

The Court of Federal Claims has previously held that section 16(a)(1) is a statute of repose which is not subject to the doctrine of equitable tolling. Smith v. Secretary of DHHS, 26 Cl.Ct. 116, 119, affd without op., 983 F.2d 1088 (Fed.Cir.1992); see also Massard v. Secretary of DHHS, 25 Cl.Ct. at 425 (holding that the four month extension of the original 24r-month limitations period provided for in section 16(a)(1) was a statute of repose to which equitable tolling was not applicable).

In Smith, the court upheld the special master’s finding that “Congress intended the twenty-eight month limitations period to serve as a cut off for filing; therefore equitable tolling does not apply.” 26 Cl.Ct. at 119. (iSee also the special master’s discussion of the legislative history of section 16(a)(1). 26 Cl.Ct. at 119 n. 4). This court agrees with that reasoning. Section 16(a)(1) is a statute of repose not subject to equitable tolling.

This court also upholds the special master’s finding that even if the doctrine of equitable tolling were applicable, petitioners failed to use due diligence in filing their claim for compensation.

CONCLUSION

Because this court finds that 42 U.S.C. § 300aa-16(a)(l) is a statute of repose not subject to the doctrine of equitable tolling, *464the special master’s dismissal of the petition, based on her well-written opinion, is affirmed. The clerk shall enter judgment in accordance with the special master’s decision. No costs.

. Section 300aa-l 1(a)(5)(B) provides in pertinent part that ‘‘[i]f a plaintiff has pending a civil action for damages for a vaccine-related injury or death, such person may not file a petition under subsection (b) for such injury or death.”