             In the United States Court of Federal Claims
                                               No. 18-120V
                                         (Filed: March 6, 2019)1


 *********************** *
                                        *
 K.G.,                                  *                          National Childhood Vaccination
              Petitioner,               *                          Injury Act of 1986, 42 U.S.C.
                                        *                          §§ 300aa-1 et seq.; Statute of
              v.                        *                          Limitations; Equitable Tolling;
                                        *                          Mental     Incapacity; Savings
 SECRETARY OF HEALTH AND                *                          Clause; Appointment of Legal
 HUMAN SERVICES,                        *                          Guardian.
              Respondent.               *
                                        *
 *********************** *
       Zachary James Hermsen, Whitfield & Eddy Law, 699            Walnut Street, Suite 2000, Des
Moines, IA 50309, for Petitioner.

       Joseph H. Hunt, C. Salvatore D’Alessio, Catharine E. Reeves, Heather L. Pearlman, and
Voris Edward Johnson, U. S. Department of Justice, Torts Branch, Civil Division, P.O. Box 146,
Benjamin Franklin Station, Washington, DC 20044-0146, for Respondent.
            _________________________________________________________

                               OPINION AND ORDER
             _________________________________________________________

WILLIAMS, Senior Judge.

        This Vaccine Act case presents a novel issue of statutory interpretation: whether the statute
of limitations may be tolled during the timeframe when a petitioner who lacks mental capacity,
has a legal guardian. The Special Master determined that there was no basis to toll the statute of
limitations, finding that while Petitioner herself may have been unable to file suit, Petitioner’s
guardian had the capacity to sue on her behalf. This Court sustains the Special Master’s decision.




1
        Pursuant to Vaccine Rule 18 of the Rules of the United States Court of Federal Claims, the
Court issued its Opinion under seal to provide the parties an opportunity to submit redactions. The
parties did not propose any redactions. Accordingly, the Court publishes this Opinion.
                                           Background2
         On October 12, 2011, Petitioner, a 48-year old woman, received the flu vaccine in
preparation for a knee replacement at Mercy Medical Clinic in Johnston, Iowa. After the surgery
on November 21, 2011, Petitioner reported tingling sensations in her toes as well as pain, which
her medical providers attributed to the recent procedure. Dec. *3-4. In December 2011,
Petitioner’s primary physician observed no other symptoms, but in the months following,
Petitioner reported “decreased sensations” in her lower extremities, instability in her left knee and
difficulty walking.       Dec. *5.     In February 2012, Petitioner’s physician ordered an
electromyography test (EMG) to “rule out something like a neuropathy or some other sort of nerve
injury . . . .” Dec. *6. The EMG was performed on May 7, 2012, and produced abnormal findings
of “prolonged distal latency” in her left tibial nerves. Id. (citing Ex. 16, at 39).
        In mid-May, after reporting hypersensitivity and lack of sensation at the bottom of both
feet, burning sensations in her legs, and abnormal sensations in her fingers, Petitioner was referred
to a neurology specialist, whose findings suggested a possible “peripheral nerve disease.” Dec.
*6-7 (citing Ex. 7F, at 3232). Over the summer of 2012, these symptoms worsened, and others
appeared – slurred speech and depression as well as impaired judgment due to “the enormous
amounts of alcohol and prescription medications she was consuming.” Pet’r’s Mot. 5; Ex. 2, at
118, 132, 169.
        On November 9, 2012, Petitioner fell in her home and was transported to the hospital. Ex.
2, at 113. Records of her commitment indicate that Petitioner was unable to speak and was
hallucinating, which required her providers to use wrist restraints, a ventilator, and a feeding tube.
At discharge on January 11, 2013, Petitioner’s diagnosis included Chronic Inflammatory
Demyelinating Polyneuropathy (“CIDP”). Upon returning home, Petitioner continued to struggle
with substance abuse, and while Petitioner’s mental health generally deteriorated over the next
four months, the record of a February 11, 2013 follow-up appointment with her neurologist noted
that Petitioner was alert and that her “[j]udgment and insight were intact and appropriate.” Ex. 18,
at 61-62.
        On May 26, 2013, Petitioner was again hospitalized after being found unconscious on the
floor of her home. On June 21, 2013, she was transferred to an in-patient facility, where she
remained against her will and “under constant medical supervision for the next three and a half
years, during which time she continued exhibiting significant mental incapacity.” Pet’r’s Mot. 8.
In the Fall of 2013, Petitioner was diagnosed with Korsakoff’s Amnesia, “a syndrome of
anterograde and retrograde amnesia with confabulation associated with alcoholic or nonalcoholic
polyneuritis.” Dec. *11 & n.5.
        On July 17, 2013, shortly after Petitioner moved into the in-patient facility, Petitioner’s
sister was granted a power of attorney over Petitioner’s health care decisions by an Iowa state
court. Ex. 3, at 780-83. On March 24, 2014, with the entire family’s agreement, Petitioner’s sister
was appointed her guardian and conservator by the Iowa District Court for Poweshiek County.

2
       These facts are derived from the Special Master’s decision dismissing Petitioner’s case,
K.G. v. Sec’y of Health & Human Servs., No. 18-120V, 2018 U.S. Claims LEXIS 1523 (Fed. Cl.
Aug. 17, 2018) (“Dec.”), as well as the Appendix to Petitioner’s Motion for Review.



                                                  2
Dec. *11; Ex. 4, at 16-17; Ex. 21 ¶ 23; Ex. 22 ¶ 10; Ex. 23 ¶ 12. According to the “Notice of Your
Rights” given to Petitioner when her sister became her guardian and conservator, these
designations gave Petitioner’s sister the authority to make decisions with respect to Petitioner’s
physical wellbeing and otherwise and “to sue and defend any claim by or against [Petitioner] . . . .”
Ex. 4, at 17, 3. The order granting guardianship and conservatorship to Petitioner’s sister stated
that there was “clear and convincing evidence and good cause for the appointment of a guardian
and conservator of the proposed ward, all without limitations.” Ex. 4, at 16.
        During assessments at the in-patient facility, Petitioner consistently blamed her sister “for
all her problems and sadness,” for making “[her] room [her] prison,” and for telling her sons that
“she [had] brain problems from drinking so much.” Ex. 13D, at 1398; Ex. 17, at 4, 10, 21.
Petitioner’s sister testified in her declaration that her appointment as guardian caused a strain on
their relationship that ultimately caused her to stop “acting as [Petitioner’s] guardian and
conservator [because it] became too much . . . to personally handle.” Ex. 21 ¶ 24. Nevertheless,
Petitioner’s sister continued to act as her guardian and conservator. See also, Ex. 4, at 134-36;
139-42. In an assessment on May 10, 2016, Petitioner “finally showed medical evidence of
cognitive improvement.” Pet’r’s Mot. 11. On August 29, 2016, the Iowa District Court terminated
Petitioner’s sister’s guardianship and conservatorship, and by November 2016, Petitioner had
returned home.
                                        Procedural History
        On January 24, 2018, Petitioner, who no longer had a guardian, filed a claim for
compensation under the National Vaccine Injury Compensation Program, alleging that she
developed Guillain-Barre Syndrome (“GBS”) and/or Chronic Inflammatory Demyelinating
Polyneuropathy (“CIDP”) as a result of the influenza vaccine she received on October 12, 2011.
Petitioner admitted that her claim, filed more than six years after onset of her symptoms, was
untimely under the Vaccine Act’s three-year statute of limitations. However, Petitioner argued
that because she was mentally incapacitated from November 9, 2012, to May 10, 2016, the statute
of limitations should have been equitably tolled for that time period – some three and one-half
years.
        The Special Master determined that the statute of limitations began to run “no later than
February 2012,” when Petitioner first experienced leg numbness, a symptom consistent with CIDP,
a slowly progressive autoimmune disease. Dec. *23 (“Thus, all things being equal, this case should
have been filed by mid-February 2015 . . . .”); see Dorland’s at 1491. The Special Master further
determined that Petitioner was “sufficiently mentally impaired so as to stop the running of the
limitations period” on May 26, 2013, when Petitioner was hospitalized after being found
unresponsive at home. Dec. *24-25. The Special Master rejected Petitioner’s argument that she
became mentally incapacitated on November 9, 2012, finding that, while Petitioner’s mental health
was a concern by that date, her release from the hospital and positive mental health assessment at
the February 2013 follow-up appointment demonstrated that her mental health had not yet declined
to the point where she was fully incapacitated. Id.
        The Special Master then determined that the limitations period resumed on March 24, 2014,
when an Iowa state court appointed Petitioner’s sister as her legal guardian and conservator,
because these appointments gave Petitioner’s sister the authority “‘to sue and defend any claim by
or against [Petitioner] . . . .’” Dec. *26 (quoting Ex. 4, at 3). The Special Master cited the “Notice


                                                  3
of Your Rights” Petitioner received and relied upon language in that Notice that mirrored Iowa
Code § 633.646, the statute setting forth the powers of a conservator. This Iowa Code provision
stated that “[the] conservator shall have the full power, without prior order of the court, with
relation to the estate of the ward . . . to sue on and defend claims in favor of, or against, the ward
or the conservator.” Iowa Code § 633.646 (2018). The Special Master determined that, despite
Petitioner’s continued mental incapacity, tolling was no longer appropriate once her guardian was
appointed, because she “did have a legal representative for a substantial period,” who “had full
authority to bring a legal claim on her behalf.” Dec. *28. The Special Master concluded that the
petition filed on January 24, 2018, was untimely, as the three-year statute of limitations expired in
December 2015, even tolling for the period from May 26, 2013 until March 24, 2014, when
Petitioner was mentally incapacitated without a guardian. Id.3
        In her Motion for Review, Petitioner argues that the statute of limitations should be tolled
for the entire period that she was mentally incapacitated - - even when she had a guardian - - and
that the Special Master erred by restarting the limitations clock when Petitioner’s sister became
her court-appointed legal guardian. Petitioner submits that, even if tolling generally ends once a
guardian is appointed, tolling should nevertheless continue in this case, because Petitioner’s
guardian could not effectively communicate with Petitioner or “identify the need to file a Vaccine
Act claim . . . .” Pet’r’s Mot. 20. Petitioner cites Petitioner’s “severe psychological decline,
including impaired memory, impaired logical reasoning abilities, communication difficulties, and
a paranoid distrust toward her guardian.” Id.
                                             Discussion
        In Vaccine Act cases, the Court of Federal Claims may: (1) uphold the findings of fact and
conclusions of law and sustain the special master’s decision; (2) set aside any of the findings of
fact or conclusions of law “found to be arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law and issue its own findings of fact and conclusions of law” or (3)
“remand the petition to the special master for further action in accordance with the court’s
direction.” 42 U.S.C. § 300aa-12(e)(2)(A)-(C) (2012); Althen v. Sec’y of Health & Human Servs.,
418 F.3d 1274, 1277 (Fed. Cir. 2005); Saunders v. Sec’y of Dep’t of Health & Human Servs., 25
F.3d 1031, 1033 (Fed. Cir. 1994).
       Section 11(b)(1)(A) of the Vaccine Act provides that:
       any person who has sustained a vaccine-related injury, the legal representative of
       such person if such person is a minor or is disabled, or the legal representative of
       any person who died as the result of the administration of a vaccine set forth in the
       Vaccine Injury Table may. . . file a petition for compensation under the Program.
42 U.S.C. § 300aa-11(b)(1)(A). The Vaccine Act defines “legal representative” as “a parent or an
individual who qualifies as a legal guardian under State law.” Id. § 300aa-33(2).




3
        There is no dispute that Petitioner was no longer mentally incapacitated on May 10, 2016,
the date of her first medical test demonstrating cognitive improvement. Pet’r’s Mot. 2.



                                                  4
         Section 16(a)(2) of the Act establishes the limitations period within which the person “who
has sustained a vaccine-related injury” or that person’s legal representative must file a claim,
stating:
       [I]f a vaccine-related injury occurred as a result of the administration of such
       vaccine, no petition may be filed for compensation under the Program for such
       injury after the expiration of 36 months after the date of the occurrence of the first
       symptom or manifestation of onset or of the significant aggravation of such injury.

Id. § 300aa-16(a)(2).
        This statute of limitations is subject to equitable tolling. Cloer v. Sec’y of Health & Human
Servs., 654 F.3d 1322, 1343-44 (Fed. Cir. 2011) (en banc). As the United States Court of Appeals
for the Federal Circuit recognized in Cloer, the Vaccine Act’s limitations period may be tolled
where “extraordinary circumstance[s],” such as fraud or duress, block a claimant from filing on
time. Id. at 1344-45 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
        In his decision dismissing the petition as untimely, the Special Master did not reach the
issue of whether Petitioner’s claimed mental incapacity constituted the type of extraordinary
circumstance under Cloer that would warrant equitable tolling of the Vaccine Act’s statute of
limitations. The Special Master, instead, determined that assuming arguendo that tolling was
available due to Petitioner’s mental incapacity, the petition was still time-barred because once
Petitioner’s guardian was appointed, Petitioner had a legal representative who “had full authority
to bring a legal claim on her behalf.” Dec. *28.
        Petitioner argues that the Special Master erred by not continuing the tolling period for the
duration of her mental incapacity after the appointment of her legal guardian. This Court disagrees.
Assuming, as the Special Master did, that Petitioner had a mental illness that constituted an
extraordinary circumstance that prevented her from pursuing her claim herself, the appointment of
Petitioner’s sister as her legal guardian removed that obstacle.4
        The Vaccine Act expressly grants the statutory right to bring a claim to the legal
representative of a disabled person who allegedly has sustained a vaccine-related injury. 42 U.S.C.
§ 300aa-11(b)(1)(A). The Act defines a “legal representative” as “a parent or an individual who
qualifies as a legal guardian under State law.” Id. § 300aa-33(2). Here, Petitioner’s sister was duly
appointed as Petitioner’s legal guardian by the Iowa District Court for Poweshiek County and was
granted the power to sue and defend actions. Ex. 4, at 16-17; Iowa Code § 633.646. As such,
Petitioner’s sister qualified as her legal representative under the Vaccine Act.
        Under the Act’s statute of limitations, a disabled person’s legal representative must file a
petition before “the expiration of 36 months after the date of the occurrence of the first symptom
or manifestation of onset or of the significant aggravation of such injury.” 42 U.S.C. § 300aa-
16(a)(2). Once Petitioner’s sister became her legal guardian, she possessed a statutory right to file

4
       The Special Master assumed arguendo that Petitioner had demonstrated the requisite
mental incapacity to trigger tolling. Such mental incapacity would have rendered Petitioner
“disabled” within the meaning of the Vaccine Act.



                                                 5
suit on Petitioner’s behalf, and there was no longer any impediment preventing Petitioner from
suing or any “extraordinary circumstance” warranting equitable tolling. As such, the Special
Master correctly determined to end the tolling period once Petitioner’s sister became her legal
guardian on March 24, 2014.
         Petitioner urges this Court to follow what she characterizes as the “overwhelming majority
of jurisdictions” that have decided that tolling based on mental incapacity should continue even
after the appointment of a legal guardian. Pet’r’s Mot. 16-17. The cases Petitioner cites are
distinguishable however, as the statutes of limitations in those cases contain savings clauses. By
its terms, a savings clause tolls or suspends the statute of limitations for certain classes of
incompetent individuals - - typically minors and mentally incapacitated persons - - until the
incompetency is removed. See, e.g., Whalen v. Certain-Teed Prods. Corp., 134 S.E.2d 528, 529-
30 (Ga. Ct. App. 1963) (where the savings clause, Ga. Code Ann. § 3-801, provided that “[i]nfants,
idiots, or insane persons, or persons imprisoned, who are such when the cause of action shall have
accrued, shall be entitled to the same time, after the disability shall have been removed, to bring
an action, as is prescribed for other persons”); Tzolov v. Int’l Jet Leasing, Inc., 283 Cal. Rptr. 314,
316-17 (Cal. Dist. Ct. App. 1991) (where the savings clause, Cal. Civ. Proc. § 352, provided that
for persons lacking legal capacity at the time of accrual of the claim, “the time of the disability is
not part of the time limited for the commencement of the action”); Talley by Talley v. Portland
Residence, Inc., 582 N.W.2d 590, 591 (Minn. Ct. App. 1998) (where the statute of limitations,
Minn. Stat. § 541.15(a), provided that insanity “existing at the time when a cause of action accrued
or arising anytime during the period of limitation, shall suspend the running of the period of
limitation until the same is removed; provided that such period . . . , shall not be extended for more
than five years, nor in any case for more than one year after the disability ceases”). Or a savings
clause may provide a different limitations period for a person with a legal disability, which is
triggered after the disability is removed. See, e.g., Freeman v. Alex Brown & Sons, Inc., 73 F.3d
279, 281 (10th Cir. 1996) (where the savings clause, Okla. Stat. tit. 12, § 96, provided that if “a
person entitled to bring an action . . . be, at the time the cause of action accrued, under any legal
disability, every such person shall be entitled to bring such action within one (1) year after such
disability shall be removed”).
        In the cases cited by Petitioner, the courts relied on the express text of the savings clauses
in holding that the appointment of a legal guardian did not end tolling but that a different statutorily
prescribed circumstance did - - the removal of the incapacity. Those courts did not rely upon
traditional notions of equity that would be implicated in tolling the Vaccine Act’s limitations
period here, but instead relied on principles of law - - the express language of the savings clauses
themselves - - in suspending the running of the statute of limitations until the claimants regained
mental capacity.5



5
        Two of the cases Petitioner cites, recognizing that the savings clause only covered persons
who were incompetent at the time the cause of action accrued, relied on equitable principles to toll
the limitations period for persons who allegedly became incompetent after accrual and were not
covered by the savings clause. See, e.g., Pardy v. United States, 548 F. Supp. 682, 683 (S.D. Ill.
1982); Unkert v. Gen. Motors Corp., 694 A.2d 306, 309 (N.J. Super. Ct. App. Div. 1997).



                                                   6
        In stark contrast to the statutes Petitioner cites in which savings clauses dictate the
operation or suspension of the limitations period, the Vaccine Act’s statute of limitations lacks a
savings clause. The Vaccine Act does not provide a statutory mechanism for suspending the
limitations period for a disabled person and restarting the limitations period once his disability is
removed, or for a minor until he comes of age. Instead, the Act empowers a legal representative
to sue on behalf of a disabled person or a minor as of the accrual of the cause of action or once a
disability is demonstrated.
        Equitable tolling is not appropriate in instances where a statutory limitations bar is
structured to either encompass or withhold the relief tolling would otherwise effect. In Cloer, the
Federal Circuit declined to apply equitable tolling where the petitioner was unaware of the causal
link between her injury and the administration of a vaccine until after the limitations period had
run. As the Cloer majority found, a Vaccine Act claim accrues, and the limitations period begins,
upon the “occurrence of the first symptom or manifestation of onset of a vaccine-related injury”
and not upon awareness of the causal link between an injury and administration of a vaccine.
Cloer, 654 F.3d at 1338-40. In Cloer, the Court declined to apply equitable tolling recognizing
that doing so would have granted “the same relief as a matter of equity that Congress has withheld
from all petitioners as a matter of law.” Id. at 1344. Here, in a similar vein, equitable tolling is
unavailable as the language of the Vaccine Act itself addresses the circumstance for which tolling
is sought; the Act accommodates a disabled person’s inability to file suit within the statutory period
by giving the guardian the right to sue on his behalf.
        Finally, Petitioner argues that even if equitable tolling is generally not available under the
Vaccine Act once a guardian is appointed, the doctrine should be applied here because Petitioner’s
guardian could not effectively communicate with Petitioner and identify the need to file a Vaccine
Act claim. Petitioner cites her “severe psychological decline, including impaired memory,
impaired logical reasoning abilities, communication difficulties, and a paranoid distrust toward her
guardian.” Pet’r’s Mot. 19. Petitioner continues that to end tolling “‘would ignore the fact that so
long as the injured party remains incompetent, he is unable to assist in the preparation and
presentation of his case.’” Id. at 17 (quoting Unkert v. Gen. Motors Corp., 694 A.2d 306, 310 (N.J.
Super. Ct. App. Div. 1997)). However, the language of the Vaccine Act presumes that the legal
representative, unassisted by the injured person, will file the petition and pursue the case for the
minor (often an infant), disabled person or deceased person. By granting a legal guardian the
statutory right to file a claim on a disabled person’s behalf, the Vaccine Act envisions that the
injured party may not be able to assist his or her legal guardian, as the status of injured claimants
for whom guardians may sue - - minors, disabled, and deceased individuals - - would as a practical
matter foreclose such assistance. 42 U.S.C. § 300aa-11(b)(1)(A).
        According to the Act’s legislative history, Congress anticipated that “legal representatives
will be parties in the filing and processing of most petitions for compensation” because most
individuals injured by vaccines are children, who are unable to assist their parent or legal guardian
in bringing their own Vaccine Act claim. H.R. Rep. No. 99-908, at 31 (1986); accord Somosot on
behalf of R.D.S. v. Sec’y of Health & Human Servs., 118 Fed. Cl. 687, 693-94 (2014) (affirming
Special Master’s dismissal of claim filed by parents on behalf of seven-year-old child as time-
barred because onset of first symptom occurred six years prior to filing).




                                                  7
       In sum, the circumstances of this case and Petitioner’s inability to communicate with her
guardian do not constitute grounds to toll the statute of limitations.6
                                             Conclusion
       The Court denies Petitioner’s Motion for Review and sustains the decision of the Special
Master.
                                               s/Mary Ellen Coster Williams
                                               MARY ELLEN COSTER WILLIAMS
                                               Senior Judge




6
        The Iowa court found that Petitioner’s sister was fully qualified to serve as Petitioner’s
guardian and conservator. Petitioner stated that the deterioration of her relationship with her sister
“should not be interpreted as a criticism of [her sister’s] work on [her] behalf.” Pet’r’s Suppl. Resp.
Br. 12 n.3. Further, Petitioner represented that “[m]edical records and affidavits filed in this case
largely depict [Petitioner’s sister] as a concerned and dedicated sister who struggled with
[Petitioner’s] mental deterioration, just as [Petitioner’s] husband and children did.” Id.



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