               In the United States Court of Federal Claims
                                     OFFICE OF SPECIAL MASTERS
                                             No. 14-1047V
                                          (Not to be Published)


*************************
CONNIE GRAHAM, as guardian of *
K.S., a minor,                *                                  Filed: September 10, 2015
                              *
               Petitioner,    *
        v.                    *                                  Statute of Limitations;
                              *                                  Entitlement; Denial Without Hearing;
SECRETARY OF HEALTH           *                                  Onset of Symptoms
AND HUMAN SERVICES,           *
                              *
               Respondent.    *
                              *
*************************

Connie Graham, pro se claimant.

Debra Begley, U.S. Dep’t of Justice, Washington, D.C.

                                      DECISION DISMISSING CASE1

       On October 27, 2014, Connie Graham filed a petition as guardian of K.S., a minor, seeking
compensation under the National Vaccine Injury Compensation Program (the “Vaccine
Program”),2 based upon the allegations that the Measles-Mumps-Rubella (“MMR”) vaccine that
K.S. received on June 21, 2007, caused him to develop both a number of immediate symptoms as
well as developmental disabilities that only became evident years later, when K.S. began his
schooling years. See Pet. at 1-2 (ECF No. 1); Supplemental Statement dated July 9, 2015, at 1

1
  Because this decision contains a reasoned explanation for my actions in this case, I will post it on the United States
Court of Federal Claims website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116
Stat. 2899, 2913 (Dec. 17, 2002) (current version at 44 U.S.C. § 3501 (2014)). As provided by 42 U.S.C. § 300aa-
12(d)(4)(B), however, the parties may object to the decision’s inclusion of certain kinds of confidential information.
Specifically, under Vaccine Rule 18(b), each party has fourteen days within which to request redaction “of any
information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged
or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly
unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole decision will be available to the public.
Id.
2
 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) [hereinafter “Vaccine Act” or “the
Act”]. Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).
(ECF No. 25) [“Supplemental Statement”]. Respondent has now moved to dismiss the petition,
arguing that the claim is barred by the Vaccine Act’s statute of limitations. Section 16(a)(2). For
the reasons stated below, the motion is granted.

                                               Background

         This action was initiated by Ms. Graham as a pro se petitioner in October of 2014. In it,
she alleged that K.S. (born June 19, 2006), received the MMR vaccine around the time of his first
birthday, in June of 2007. Pet. at 2-3. By July of 2007, K.S. “developed sudden onset fever, seizure-
like symptoms, and cyanosis,” for which he received medical treatment. Id. at 2. By the time K.S.
began kindergarten in 2012 (when he was six years old), school-conducted evaluations revealed
motor skill impairment and learning and developmental disabilities. Id. Ms. Graham thus alleged
that all of the above were the result of a reaction to K.S.’s receipt of the MMR vaccine.
Accompanying the petition were a number of medical records, including a September 10, 2008
letter from one of K.S.’s treaters, Dr. Louay Nassri, M.D., confirming the fact of K.S.’s July 2007
MMR reaction. Id. at 3.

        In the subsequent months, Petitioner attempted to gather and file relevant medical records.
At a status conference held in May of this year, Respondent’s counsel expressed the belief that the
petition was likely time-barred, given the fact that the existing record clearly indicated onset of
K.S.’s vaccine-related symptoms had occurred as early as 2007. However, Respondent also
proposed that subpoenaing some additional records from K.S.’s schools might shed light on the
allegations pertaining to his alleged developmental problems, and I agreed to grant any requests
for issuance of subpoenas to that end. See Order, dated May 1, 2015 (ECF No. 18).

         Thereafter, Respondent moved for issuance of subpoenas as discussed at the May 2015
status conference. After I granted the motion (ECF No. 20), Respondent obtained additional
records, filing them on June 15, 2015 (ECF No. 21). Included among the filed materials were
documents from K.S.’s preschool establishing that deficiencies in K.S.’s development had been
noted as early as the spring of 2010, during his evaluation by the Department of Special Education
prior to his entry into preschool. Resp. Ex. D (ECF No. 21) at 58-62. In addition, at my request
Ms. Graham filed a supplemental statement to the petition on July 9, 2015 (ECF No. 25). The
statement confirmed that Ms. Graham first personally noticed K.S.’s developmental problems
“some months after K.S. received the MMR vaccination,” and detailed a few of her observations
to that end. Supplemental Statement at 1. She also stated that when K.S. was three years old (which
would have been in 2009), she pursued her options for getting K.S. speech and coordination
therapy, ultimately enrolling him in a private school for that purpose. Id.

       On July 27, 2015, Respondent filed her Rule 4(c) Report along with a Motion to Dismiss.
Resp.’s Rule 4(c) Report and Mot. to Dismiss (ECF No. 26) [hereinafter “Mot.”]. In the motion,


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Respondent argues that as an initial matter, Petitioner’s claim is barred by the statute of limitations
for both alleged injuries. Mot. at 6. Petitioner never filed anything in opposition to Respondent’s
motion, and the matter is therefore now ripe for adjudication.

                                              Analysis

        To receive compensation under the Vaccine Program, a petitioner must prove either (1)
that he suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table –
corresponding to one of his vaccinations, or (2) that he suffered an injury that was actually caused
by a vaccine. See §§13(a)(1)(A) and 11(c)(1). Regardless of the nature of the claim, however, it
must still be timely made. For injuries resulting from a vaccine administered after October 1, 1988,
a Vaccine Program petition may not be filed “after the expiration of 36 months after the date of
the occurrence of the first symptom or manifestation of onset . . .” Section 16(a)(2). The statute of
limitations begins to run from the manifestation of the first objectively cognizable symptom,
whether or not that symptom is sufficient for diagnosis. Carson v. Sec’y of Health & Human Servs.,
727 F.3d 1365, 1369 (Fed. Cir. 2013).

        Whatever the basis for Petitioner’s claim herein, the claim is time-barred under the Vaccine
Act’s statute of limitations. As the record reveals, K.S.’s alleged reactions to the MMR vaccine
manifested as early as July 7, 2007. Calculating from that date, this matter would be timely only
had it been filed on or before July 7, 2010 – a date over four years earlier than when the claim was
actually filed.

        I reach the same conclusion even if I limit my analysis to the alleged onset of K.S.’s
learning and other developmental disabilities. Although the petition itself states that K.S.’s
developmental issues were first observed when he went to school in 2012 (Pet. at 2), as noted
above Ms. Graham admits she was aware of his developmental problems in 2007. Supplemental
Statement at 1. Deficiencies in K.S.’s development were also noted in the spring of 2010, as the
records subpoenaed by Respondent indicate. Resp. Ex. D at 58-62. And Ms. Graham has also
acknowledged that she began to attempt to address K.S.’s developmental problems when he was
three (and thus in 2009). Supplemental Statement at 1. Assuming onset was as late as 2010, the
matter would still be time-barred since it was filed only in 2014.

        There are no grounds upon which this late-filed petition could be saved. The petition
alleges that Ms. Graham had “no ideal [sic] that [K.S.] had a learning and motor disability until he
started to [sic] to school” in August of 2012. Pet. at 2. In so doing, she (in effect) invokes the
“discovery rule,” under which a “statute of limitations does not begin to run until an injured person
knew or should have known that a vaccine had the ability to cause the injury from which she
suffered.” Johnston v. Sec’y of Health & Human Servs., No. 11-796, 2013 WL 664709, at *4 (Fed.
Cl. Spec. Mstr. Jan. 31, 2013) (emphasis added). But as the Federal Circuit has made clear, the


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discovery rule does not apply to Vaccine Act cases. Cloer v. Sec’y of Health & Human Servs., 654
F.3d 1322, 1339 (Fed Cir. 2011).3 While I am sympathetic to the fact that Ms. Graham may well
have been unaware of the extent of K.S.’s injuries, and may have attempted to assert this claim as
quickly as possible once she learned of the remedies provided in the Vaccine Program, it remains
the law that the Vaccine Act statute of limitations runs from the first symptom or onset – regardless
of whether the symptom is recognized as such. Carson, 727 F.3d at 1369.

        The Federal Circuit has held that the doctrine of equitable tolling can apply to Vaccine Act
claims in limited circumstances. Cloer, 654 F.3d at 1340-41. These limited circumstances have
been enumerated to include fraud and duress, but not to include a lack of awareness on a
petitioner’s part that she might have an actionable claim. Id. at 1344-45 (unawareness of a causal
link between the injury and vaccination was insufficient to justify invocation of equitable tolling).
Given that Petitioner in fact claims unawareness as explaining her delay in filing this petition, the
present circumstances do not constitute one of the rare instances in which equitable tolling would
apply.

        Thus, this case is dismissed as untimely. The Clerk shall enter judgment accordingly.


        IT IS SO ORDERED.

                                                                      ______________________
                                                                      Brian H. Corcoran
                                                                      Special Master




3
 Federal Circuit decisions are binding on special masters. Guillory v. Sec’y of Health & Human Servs., 59 Fed. Cl.
121, 124 (2003), aff’d, 104 Fed. App’x 712 (Fed. Cir. 2004).

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