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                                                                          OFFICE OF SPECIAL MASTERS                                      ril „
                                                                                                                                         FILED
                                                                                                                                         JUL 13 2015
CARMEN RAMIREZ,
                                                                                                           *   No. 15-36IV             U.S. COURT OF
                                                          Petitioner,                                      *   Special Master Christian J.Moran
                                                                                                           *


v.                                                                                                         *   Filed: July 13,2015
                                                                                                           *


SECRETARY OF HEALTH                                                                                        *   Dismissal; Meningococcal vaccine;
AND HUMAN SERVICES,                                                                                        *   statute of limitations.

                                                          Respondent.                                      *

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Carmen Ramirez, pro se, Rancho Cucamonga, CA, for petitioner;
Ryan D. Pyles, United States Dep't of Justice, Washington, DC, for respondent.

                              UNPUBLISHED DECISION DENYING COMPENSATION1

       Carmen Ramirez filed a petition on behalf of her son, Luis Arroyo-Ramirez,
("Luis") under the National Childhood Vaccine Injury Act, 42 U.S.C. § 300aa-l to
300aa-34, on April 9, 2015. Her petition alleged that Luis suffered from postural
orthostatic tachycardia syndrome ("POTS"), resulting from the receipt of the
meningococcal vaccine administered to him on July 30, 2010. The undersigned
dismisses the current petition because the statute of limitations has run and
petitioner's claim is not subject to equitable tolling.

                            I.            Procedural History

      In another case, Ms. Ramirez filed a petition alleging that her son suffered
from POTS as a result of receiving an HlNl vaccine. Because this vaccine is not

                       1The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17,
2002), requires that the Court postthis decision on its website. Pursuant to Vaccine Rule 18(b),
the parties have 14 days to file a motion proposing redaction of medical information or other
information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special
master will appear in the document posted on the website.
listed on the Vaccine Table, and because the petition was not filed within the time
permitted by the statute of limitations, the undersigned dismissed Ms. Ramirez's
September 17, 2014 petition. No. 14-866 (Feb. 13, 2015).

      On April 9, 2015, Ms. Ramirez filed the current petition alleging that Luis
suffers from POTS as a result of the meningococcal vaccine received on July 30,
2010, rather than the HlNl vaccine as previously alleged. She filed three pages of
medical records with her petition. These records outline the date of the
vaccination, a syncopal episode which occurred in December 2013, and a 2014
second opinion regarding the POTS diagnosis noting that Luis "exhibited a number
of symptoms over the last three years." Pet. at 4-6.

      An initial status conference was held on May 11, 2015. During the status
conference, it was noted that Ms. Ramirez had previously filed a case. Respondent
indicated that she intended to file a motion to dismiss based on the statute of
limitations. After the status conference, respondent was ordered to file her motion
to dismiss by June 10, 2015, and petitioner a response by July 10, 2015. Order,
issued May 12,2015.

      On June 4, 2015, respondent filed her motion to dismiss. In her motion to
dismiss, respondent stated that the statute of limitations bars petitioner's claim.
Resp't's Mot. to Dismiss at 1. Luis received the vaccination on July 30, 2010. Id
The petition stated that Luis suffered the onset of POTS "shortly after" receiving
the vaccination. Pet. at 1. If correct, the cause of action accrued in August 2010,
and time for filing a claim elapsed in the late summer of 2013. 42 U.S.C. § 300aa-
16(a)(2).

      On June 23, 2015, petitioner's response to the motion to dismiss was filed.
Petitioner noted that she understood she was late in filing her claim, but reiterated
that without the POTS diagnosis she could not raise a claim. Pet'r's Resp. at 1.
She continued that before the vaccine she observed that her son's health was good.
Id. Ms. Ramirez stated that Luis's POTS condition has taken a significant toll on
both Luis and herself, indicating that she has been diagnosed with depression. Id.

       II.   Analysis

      Under the Vaccine Act, the petition is required to be filed prior to the
expiration of 36 months after the first symptom or manifestation of onset of the
alleged vaccine injury. 42 U.S.C. §300aa-16(a)(2). The statute of limitations
begins to run on the date of occurrence of the first symptom of onset. Id.; Cloer v.
Sec'v of Health & Human Servs., 654 F.3d 1322, 1334 (Fed. Cir. 2011) (en banc).
According to petitioner's medical records, the doctor's evaluations on December
10, 2013 and June 3, 2014 noted that his symptoms have been ongoing for at least
three years. Pet. at 5, 6.

       Petitioner explained that the delay in filing her petition resulted from the
difficulty in diagnosis. Id. at 1-2. Yet, the first symptom or manifestation of onset
is not always the date of diagnosis. Carson v. Sec'y of Health & Human Servs.,
727 F.3d 1365, 1369 (Fed. Cir. 2013). If Luis's condition began shortly after his
meningococcal vaccine on July 30 2010, the statute of limitations required this
case to be filed no later than August, 2013. The petition should be dismissed
because it is not timely filed.

       Ms. Ramirez did not directly claim equitable tolling. However, Ms. Ramirez
did note the difficulty in diagnosing her son's condition as well as the significant
impact Luis's condition can have on him in the long term. Pet. at 2. An equitable
tolling claim will, therefore, be considered with respect to the facts outlined in the
petition. Ultimately, as equitable tolling is reserved for severe cases, often those
with deception or misconduct, the tolling of the statute of limitations would be
inappropriate in this case.

      The equitable tolling of a statute of limitations has been allowed "where the
claimant has actively pursued his judicial remedies by filing a defective pleading
during the statutory period or where the complainanthas been induced or tricked
by his adversary's misconduct into allowing the filing deadline to pass." Irwin v.
Dep't of Veteran Affairs, 498 U.S. 89, 96 (1990). There is no indication that Ms.
Ramirez made any attempt at filing a claim pursuant to the Vaccine act during the
relevant statute of limitations. Additionally, there has been no claim of any
misconduct that prohibited Ms. Ramirez from filing a timely claim. In Cloer v.
Sec'y of Health & Human Servs., the Federal Circuit held that equitable tolling
may not be used to circumvent the statute of limitations in order simply to prevent
the depravation of a claim, even when the depravation may be unfair. 654 F.3d
1322, 1344 (Fed. Cir. 2011).

       Petitioner acknowledges that she was late in filing her claim, but argues that
because Luis had not yet been diagnosed she was unable to file a timely claim
when the symptoms began shortly after July 30, 2010. Pet. at 2; Pet'r's Resp. at 1.
The facts and arguments in Cloer are very similar to petitioner's case. The
petitioner in Cloer argued that she was unable to file a timely claim because she
was not be aware of a link between her vaccination and injury, therefore she should
not be subject to the 36 month statute of limitations until she became aware of the
link. Cloer, 654 F.3d at 1344. The Federal Circuit ruled that the statute of
limitations for the Vaccine Act was consciously designed by Congress to begin at
"the occurrence of the first symptom or manifestation of onset," rather than when
the petitioner discovers they can file a claim. § 300aa-16(a)(2). This ruling
established that the statute of limitations strictly begins to run at the onset of the
injury, no matter whether the petitioner is fully aware of a causal link between a
vaccination and injury. Cloer, 654 F.3d at 1345. As none of the relevant situations
for equitable tolling are present, petitioner's claim is barred by the statute of
limitations.

       Thus, this case is dismissed due to the statute of limitations. The Clerk
shall enter judgment accordingly.

     The Clerk's Office is instructed to mail a courtesy copy of this order to Ms.
Ramirez return receipt requested.

        Any questions may be directed to my law clerk, Mary Holmes, at (202) 357-
6360.


IT IS SO ORDERED.




                                                Christian /. Moran
                                                Special Master
