James Lombardo v. HHS - DPT, residual seizure disorder (1995)

James Lombardo, on behalf of his minor son Thomas "Zach" Lombardo, filed a petition for compensation under the National Vaccine Injury Compensation Program on April 7, 1995. The petition alleged that Zach received a diphtheria-pertussis-tetanus (DPT) vaccination on May 1, 1987, and within three days, developed a residual seizure disorder, an injury listed on the Vaccine Injury Table.

Lombardo averred that healthcare professionals repeatedly informed him that the DPT vaccine was not a possible cause of Zach's injuries. The Special Master, John F.

Edwards, dismissed the petition on May 18, 1995, finding it was time-barred pursuant to 42 U.S.C. § 300aa-16(a)(1). The Special Master determined that this statute is a statute of repose and therefore not subject to equitable tolling.

Lombardo filed a Motion for Review on June 15, 1995, arguing that the dismissal was not in accordance with law because, on his unique facts, the time-bar should have been equitably tolled. The Court of Federal Claims, in an opinion by Judge Reginald W.

Gibson, reviewed the Special Master's decision under the "not in accordance with law" standard. The court analyzed whether the statutory deadline in § 300aa-16(a)(1) is subject to equitable tolling.

The court concluded that § 300aa-16(a)(1) is a statute of repose, meaning equitable tolling is inapplicable. The court based this conclusion on several factors, including the plain language of the statute indicating a cut-off date, the fact that the 28-month period began to run from an independent date (October 1, 1988) rather than the accrual of the claim, the length of the filing period, that the limitation applies to the initial filing of a petition, and the legislative history of the provision.

The court noted that an earlier version of the Vaccine Act contained a provision allowing late filings under certain circumstances, which was omitted in the final enactment, and that Congress extended the deadline in 1990 rather than allowing for tolling. Therefore, the court held that the filing deadline could not be equitably tolled and that the petitioner's claim was unquestionably time-barred.

The court sustained the Special Master's order of dismissal and denied Lombardo's Motion for Review. The petition was dismissed.

The public decision does not describe the specific symptoms, medical tests, or treatments for Zach's condition, nor does it name petitioner's counsel or respondent's counsel.