Harley D. Brown v. HHS - Influenza, post-vaccination illness and Sudden Infant Death Syndrome; dismissed as untimely (1996)

On September 26, 1995, Arthur and Bonnie Brown filed a petition under the National Vaccine Injury Compensation Program on behalf of their deceased infant son, Harley D. Brown, and their minor daughter, Ashlee R.

Brown. Harley was two months old and Ashlee was two years old when they received diphtheria-pertussis-tetanus (DPT), Haemophilus influenzae type b (Hib), and oral polio (OPV) vaccines on May 7, 1991, during well-baby examinations at Minot Air Force Base Hospital.

Harley reportedly developed an elevated temperature, redness and swelling at the inoculation site, trembling, leg spasms, severe cramping, and prolonged screaming later that day. His condition persisted with recurrent screaming and cramping from May 7 to May 16, 1991, with rest only achieved through exhaustion.

On May 17, 1991, Harley was found deceased during his nap. An autopsy concluded the cause of death was Sudden Infant Death Syndrome (SIDS).

The parents alleged they became aware in August 1992 that medical facilities were required to maintain vaccine manufacturer and lot number records, which they believed were necessary for a Vaccine Act claim. After the hospital stated it had no such records, the Browns filed an administrative claim under the Federal Tort Claims Act (FTCA) on February 7, 1993, asserting negligence in record-keeping.

This claim was denied by the Air Force on May 27, 1993, which also informed them of the Vaccine Act filing deadlines. The Browns then filed an FTCA lawsuit in the U.S.

District Court for the Southern District of Indiana on August 4, 1993. The district court dismissed counts alleging the Air Force's failure to keep records prejudiced their Vaccine Act claims, holding that manufacturer and lot number information was not required.

It also dismissed counts seeking compensation for vaccine-related injuries for lack of jurisdiction, stating that the Vaccine Act claims belonged in the Court of Federal Claims and that the district court filing date could serve as the Vaccine Act filing date for limitations purposes. The Seventh Circuit affirmed this decision on June 29, 1995.

Special Master Laura D. Millman French severed the claims and allowed Ashlee's injury claim to proceed as timely.

However, she dismissed Harley's death claim as untimely, noting that even the district court filing date of August 4, 1993, was more than twenty-four months after Harley's death on May 17, 1991. The Special Master rejected the Browns' argument that their February 7, 1993, FTCA administrative claim should count as the initiating civil action for the Vaccine Act's saving provision, or that equitable tolling should apply.

Judge Eric G. Bruggink of the Court of Federal Claims affirmed the Special Master's dismissal on August 28, 1996.

The court held that the saving provision of 42 U.S.C. § 300aa-11(a)(2)(B) applies only to civil actions filed in state or federal court, not to administrative claims filed with an agency, and that the FTCA administrative claim filing did not qualify as a "civil action" under the Federal Rules of Civil Procedure. The court also found that equitable tolling did not apply because the Browns' error in misreading the Vaccine Act's filing requirements was not due to fraud or misconduct by the government, and they had pursued the wrong statute and forum.

The court did not decide whether the vaccines caused Harley's symptoms or death, affirming only the dismissal of the death claim as untimely, with no compensation awarded. Petitioner counsel and respondent counsel were not stated in the public text.