                                              ORIGINAL

          3n tfje ©ntteb States? Court of jfeberal Claims;
                               OFFICE OF SPECIAL MASTERS
                                            No. 12-354V
                                       Filed: August 6, 2013                                FILED
                                                                                           AUG 0S 2013
 DOROTA VON MAACK,                             *
                                                                                                   OSM
                                               *                                            U.S. COURT OF
                                                       TO BE PUBLISHED                     FEDERAL CLAIMS
          Petitioner,                          *

                                               *
                                                       Special Master Zane
                                               *


                                               *
                                                       Influenza vaccine; hearing loss;
 SECRETARY OF HEALTH                           *
                                                       dismissal; untimely petition;
AND HUMAN SERVICES,                            *
                                                       equitable tolling
                                               *


          Respondent.                          *

                                               *

*************************************


Dorota Von Maack, Petitioner, pro se, Ridgewood, NY;
Ann D. Martin, United States Dep't of Justice, Washington, DC, for Respondent.


                               DECISION DISMISSING CASE1

       This matter is before the special master on Respondent's Motion to Dismiss
("Motion to Dismiss"). Petitioner, Dorota Von Maack, filed her petition on June 4, 2012,
seeking compensation under the National Childhood Vaccine Injury Act ("Vaccine Act"), as
amended, 42 U.S.C. §§ 300aa-l, etseq; Petition at l.2 Petitioner filed her petition, pro se, in

1Because this decision contains a reasoned explanation for the special master's action in this
case, the special master intends to post it on the website of the United States Court of Federal
Claims, in accordance with the E-Government Act of 2002, § 205, 44 U.S.C. § 3501 (2006).
The decisions of the special master will be made available to the public with the exception of
those portions that contain trade secret or commercial or financial information that is privileged
and confidential, or medical or similar information whose disclosure would clearly be an
unwarranted invasion of privacy. As provided by Vaccine Rule 18(b), each party has 14 days to
file a motion requesting the redaction from this decision of any such alleged material. In the
absence of a timely request, which includes a proposed redacted decision, the entire document
will be made publicly available. If the special master, upon review of a timely filed motion to
redact, agrees that the identified material fits within the categories listed above, the special
master shall redact such material from the decision made available to the public. 42 U.S.C. §
300aa-12(d)(4); Vaccine Rule 18(b).

2Part 2 of the Vaccine Act established the National Vaccine Injury Compensation
Program, 42 U.S.C. § 300aa-10 through § 300aa-34 (2006) ("Vaccine Program").
                                                   1
 May 2012, claiming that the influenza ("flu") vaccine she received in October 2008 caused her
 adverse effects on (1) her respiratory system, her suffering from bronchietasis two years later in
 September 2010 and chronic obstructive pulmonary disease ("COPD") nearly four years later in
 February 2012; (2) her gastrointestinal system, having suffered from an idiopathic ulcerative
 colitis nearly eight months later in June 2009; and (3) her hearing, having suffered from the
 destruction of stapes implants six months later in May 2009. Petition at 1. In September 2012,
 in a submission to the record, Petitioner stated that although after the vaccine she suffered
 respiratory and gastrointestinal problems, her "main contention" was that her hearing loss in her
 left ear was caused by the vaccine. Medical Records [DE #6].3

         Respondent moved to dismiss Petitioner's action as untimely based on the Vaccine Act's
 applicable statute of limitations. 42 U.S.C. § 300aa-16(a)(2). Respondent argues that
 Petitioner's claim is untimely because her petition was filed more than 36 months after the date
 of occurrence of her three types of symptoms. Motion to Dismiss at 2.

         In her response to the motion to dismiss, Petitioner raised and discussed only her hearing
 loss injury. She did not mention her other alleged illnesses, her gastrointestinal or respiratory
 complications. Petitioner points to her note where she indicated she contacted the vaccine
 manufacturer in January 2012, DE #6 and 7, and argues that this contact evidences she was
diligent. Petitioner argues that her contact with GlaxoSmithKline in January 2012 was only 32
months after her ear injury in May 2009, so that her claim is actually within the statute of
limitations. P's Response at 2. Alternatively, Petitioner argues that based on that contact within
the statute of limitations, equitable tolling should apply and, thus, her action should not be
dismissed. P's Response at 1.

        Respondent replied that Petitioner did not exercise due diligence in pursuing her claim
and that Petitioner's circumstances do not constitute extraordinary circumstances. Respondent's
Reply to Petitioner's Response to Respondent's Motion to Dismiss ("R's Reply") at 2-3). Thus,
Petitioner should not be excused from failing to file a timely claim, Id. (citing Baldwin County
Welcome Or. v. Brown, 466 U.S. 147, 151 (1984); Irwin v. Dep't of VeteransAffairs, 498 U.S.
89, 96 (1990); Cloer v. Sec'y ofHealth & Human Servs., 654 F.3d 1322, 1344-45 (Fed. Cir.
2011), cert, denied, 132 S. Ct. 1908 (2012).

        Based on review of the record as a whole and as explained in detail below, Petitioner's
claim is untimely, and equitable tolling of the statute of limitations is not warranted. As such,
Petitioner's action is hereby DISMISSED.




3The medical records Petitioner filed were submitted on September 21, 2012 [DE #6]. They are
labeled as Exhibit A-1 in the docket entry. But, review of the actual document reveals that it is a
narrative of events by Petitioner with attachments of Exhibits labeled A-J. Thus, the reference
to Petitioner's Exhibits A-J in this decision refers to those exhibits filed in DE #6, labeled with
letters.
    I.      BACKGROUND


         Petitioner's medical problems began approximately five years prior to receipt of her
 vaccination. See Petitioner's Exhibit B; [DE #6]. In 2003, years before receiving the vaccine,
 Petitioner underwent a stapedectomy procedure in her left ear as she was suffering from
otosclerosis.4 Petitioner's Exhibit B. Petitioner claims that following the procedure, the
"hearing in [her] left ear was fine." Petitioner's Medical Records [DE #6] at 1. Three years later,
in June of 2006, Petitioner visited the New York Eye & Ear Infirmary Hospital for a follow-up
visit, at which she complained of post-surgery episodes of tinnitus, hearing loss, and imbalance
in her left ear. Petitioner's Exhibit C at 1-3.


         On October 22, 2008, Petitioner received a flu vaccination. See Petitioner's Exhibit D.
About a month after receipt of the vaccine, Petitioner began to experience gastrointestinal
problems. Petitioner's Exhibit E at 1 [DE #6]. Approximately six months after her vaccination,
Petitioner returned to the New York Eye & Ear Infirmary Hospital with concerns about her
hearing abilities. Petitioner's Exhibit H at 1-2 [DE #6]. At that time, it was noted that Petitioner
had a history of "decreased hearing." Petitioner's Exhibit H at 2 [DE #6].

       Over three years after receipt of the vaccination in January 2012, Petitioner claims to
have contacted GlaxoSmithKline explaining "the impact the flu vaccine had on [her] hearing."
Note of Petitioner to File, DE #8.5 OnJanuary 23, 2012, the company responded to Petitioner,
mailing her an "Authorization to Contact Physician" form, which she claims to have executed
and returned. P's Response at 3.6 On May 29, 2012, GlaxoSmithKline mailed a second letter to
Petitioner, denying all allegations against the company7 and informing Petitioner ofher potential
claim under the Vaccine Act as well as providing her with pertinent information about the
program. P's Response, Attachment at 4. Subsequently, on June 4, 2012, Petitioner filed a
petition seeking compensation under the Vaccine Act. Petition at 1.




4Otosclerosis is defined as "otospongiosis of the bony labyrinth, especially adjacent to the
footplate of the stapes; it may cause bony ankylosis of the stapes, resulting in conductive hearing
loss." Dorland's Illustrated Medical Dictionary 1351 (32nd ed. 2012).
5Petitioner has not provided copies of any of her correspondence with GlaxoSmithKline, only
the company's responses.
5Petitioner did not submit a copy of her correspondence.
7Petitioner's claims that she was told by a company representative that GlaxoSmithKline would
"like to compensate damages to [her] health"; that "if [her] case would not go through the
program the company would take full responsibility for compensation"; and that the company
requested that Petitioner "write what compensation [she] would like to receive." Those
statements on their face appear inconsistent with the plain language in the letters from
GlaxoSmithKline that Petitioner provided. Compare P's Response at 1 with P's Response,
Attachments at 3-4.
    II.       APPLICABLE LEGAL STANDARDS


        The Vaccine Act specifies that "no petition may be filed for compensation under the
Vaccine Program for such injury after the expiration of 36 months after the dates of the
occurrence of the first symptom or manifestation of onset or of the significant aggravation of
such injury...." 42 U.S.C. § 300aa-l6(a)(2). The Federal Circuit has held that this thirty-six-
month statute of limitations "begins to run on the date of occurrence of the first symptom or
manifestation of onset of the vaccine-related injury for which compensation is sought, and the
symptom or manifestation of onset recognized as such by the medical profession at large." Cloer,
654 F.3d at 1340. The Court reasoned that "an objective standard that focuses on the recognized
standards of the medical profession at large treats petitioners equally, without regard to their
individual medical awareness." Id. at 1335 (quoting Markovich v. Sec 'y ofHealth & Human
Servs., All F.3d 1353, 1360 (Fed. Cir. 2007)).

        The Circuit has also held that equitable tolling applies to the Vaccine Act. Cloer, 654
F.3d at 1340, overruling Brice v. Sec 'y ofHealth & Human Servs., 240 F.3d 1367 (Fed. Cir.),
cert, denied, 534 U.S. 1040 (2001). Nevertheless, the Circuit acknowledged that the doctrine of
equitable tolling was to be used "sparingly" and that it would apply only in exceptional
circumstances. Cloer, 654 F.3d at 1344-45 (citing Irwin, 498 U.S. at 96).

        A petitioner requesting equitable tolling must establish "two elements: (1) that he has
been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his
way." Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005), citing Irwin v. Dep't of Veterans Affairs,
498 U.S. at 96. Equitable tolling of a federal statute of limitations is "appropriate only when the
circumstances that cause a plaintiff to miss a filing deadline are out of his hands." Heideman v.
PFL, Inc., 904 F.2d 1262, 1266 (8th Cir. 1990), cert, denied, 498 U.S. 1026 (1991); Lockwoodv.
UnitedStates, 90 Fed. CI. 210, 218 (2008). As a result, "[o]ne who fails to act diligently cannot
invoke equitable principles to excuse that lack of diligence." Baldwin County Welcome Ctr., 466
U.S. at 151. Thus, "the principles of equitable tolling ... do not extend to what is at best a garden
variety claim of excusable neglect." Irwin, 498 U.S. at 96.

          "Extraordinary circumstances" have been found where the petitioner has pursued his
judicial remedies in a diligent manner, but has filed a defective pleading during the statutory
period, or where the petitioner has been tricked or induced by his adversary's misconduct into
allowing the filing deadline to pass. Irwin, 498 U.S. at 96; see also Cloer, 654 F.3d at 1344-45.
When a petitioner files an untimely petition, and he has not "exercise[d] due diligence in
preserving his legal rights ..." a courtis unlikely to find a basis for tolling the limitations period.
Leonard v. Gober, 223 F.3d 1374, 1376 (Fed. Cir. 2000), cert, denied, 531 U.S. 1130 (2001),
quoting Irwin, 498 U.S. at 95-96. Courts will not apply equitable tolling where a petitioner could
have discovered the existence of a cause of action before the expiration of the statute of
limitations. Roth v. UnitedStates, 73 Fed. CI. 144, 153 (2006). Therefore, plain excusable
neglect will not assist a petitioner in providing a basis for equitable tolling. Martinez v. United
States, 333 F.3d 1295, 1318 (Fed. Cir. 2003), cert, denied, 540 U.S. 1177 (2004).
 III. DISCUSSION


     A. Petitioner's Filing of Her Claim Was Untimely.

         Petitioner's claim is untimely. For Petitioner's claim to be timely, she must have filed
 her petition within 36 months of the onset of her symptoms. 42 U.S.C. § 300aa-l 6(a)(2);
 Petition at 1. Petitioner received the vaccination in October 2008. Petition. The medical records
provided indicate that it was in May 2009 that it was confirmed that the stapes implant in her left
ear had been displaced and that Petitioner had "maximum hearing loss on the left." Petitioner's
Exhibit I at 1. As such, May 2009 is the time at the latest when Petitioner's symptoms became
apparent. Thus, Petitioner had 36 months from May 2009, until May 2012 to file a timely
petition. Her petition, filed on June 4, 2012, was filed more than 36 months after the onset of
symptoms in May 2009. Because it was filed more than 36 months after the onset of symptoms,
Petitioner's claim is untimely. Petition at 1.

         Petitioner's argument that her claim of hearing loss is timely because she notified the
vaccine's manufacturer of her hearing loss within thirty-two (32) months of the occurrence of her
symptoms is not supported by the Vaccine Act. P's Response at 2. The Act provides that "[a]
proceeding for compensation under the Program for a vaccine related injury or death shall be
initiated by service upon the Secretary and the filing of a petition containing the matter
prescribed by subsection (c) of this section with the United States Court of Federal Claims." 42
U.S.C. § 300aa-l 1(a)(1). The plain language of the statute clearly provides that filing means
filing in the Court of Federal Claims. Petitioner's efforts to inform GlaxoSmithKline of the
occurrence of her symptoms are insufficient to satisfy the formal filing process under the
Vaccine Act.


        Because Petitioner did not file her claim within 36 months of the onset of her symptoms,
her petition is untimely. Absent establishing that equitable tolling is warranted, Petitioner's
action must be dismissed.


8In her October 2012 filing, Petitioner indicated that she was not pursuing claims relating to any
respiratory and gastrointestinal problems. [DE #6-7]. She did not mention them in her response
to the motion to dismiss. P's Response. And, at the status conference held after briefing was
complete, Petitioner focused only on her hearing problem. As such, any claims relating to those
problems are deemed waived.
   Nonetheless, even if those claims were to be considered, they are untimely. As to Petitioner's
claimed gastrointestinal complications, those symptoms began to occur shortly after receipt of
the flu vaccination in November 2008. See Petitioner's Exhibit E [DE #6]. Because Petitioner
filed her petition approximately forty-four months after her gastrointestinal symptoms began,
that filing relating to any claim based on this symptom is untimely.
         Similarly, Petitioner's claim pertaining to her respiratory symptoms is also untimely. One
day following the receipt of her vaccination, on October 23, 2008, Petitioner experienced
occurrences of wheezing. Petitioner's Filing at 1. Her petition, having been filed over forty-four
months later, is therefore untimely. See Petition at 1.
    B. Equitable Tolling Does Not Apply to Petitioner's Claim.

        To avoid dismissal, Petitioner argues that equitable tolling should apply. The
circumstances that have been recognized as "extraordinary" are those in which a petitioner has
pursued her claims diligently although the filing was defective or where she was prevented by
fraud or trickery from doing so. Irwin, 498 U.S. at 96; Cloer, 654 F.3d at 1344-45. Petitioner
claims that she pursued her rights diligently. Based on the record, it is clear that Petitioner did
not pursueher rights diligently. Once she began to experience her hearing problems six months
after receipt of the vaccine, Petitioner had an obligation to pursue and file her claim within
thirty-six months. Petitioner certainly had time over the next several months and years to contact
her doctors or others and perform the appropriate research and determine that she had a claim
and file it. Petitioner's waiting an extended period of time, apparently nearly thirty-one months
to contact the manufacturer of the vaccine, GlaxoSmithKline, shows a lack of diligence on her
part. Rather than wait such a long time, if Petitioner had pursued her rights diligently, she
certainly would have contacted the company much sooner, been informed of the program sooner
and filed her claim sooner.

        Petitioner's arguments that equitable tolling is warranted based on extraordinary
circumstances are not supported by the record. Petitioner claims that the three circumstances
that existedthat prevented her from filing a timely petition constitute"extraordinary"
circumstnaces, i.e., (I) that she was unaware of a potential claim under the Vaccine Program
until a representative of GlaxoSmithKline instructed her to the National Vaccine Compensation
Program inMay 20129; (2) that she filed a defective petition when she notified GlaxoSmithKline
of her hearing loss; and (3) that GlaxoSmithKline attempted to trick her into filing an untimely
petition. Petitioner's Response at 1-2; June 4, 2013 Status Conference. P's Response at 1

       Considering Petitioner's three claimed circumstances, the special master finds that none
of them constitute extraordinary circumstances. First, with regard to Petitioner's lack of
knowledge of her potential claim under the Vaccine Act, that she did not become aware of her
potential claim until after the expiration of the 36-month statute of limitations is not a basis for
applying equitable tolling. A petitioner's lack of knowledge of the law does not constitute an
extraordinary circumstance permitting equitable tolling of the statute of limitations. See Cloer,
654 F.3d at 1344-45 (rejecting application of equitable tolling when petitioner did not discover a
potential claim until three years after herdiagnosis of MS, while conducting research).

       Second, the contact that Petitioner had with GlaxoSmithKline does not qualify as a
defective pleading. Petitioner argues that the filing of herpetition was defective because she
notified the vaccine's manufacturer of her hearing loss within thirty-two (32) months of the
occurrence of her symptoms. The Act is unambiguous in requiring a petition to be filed in a
timely manner with the Court. 42 U.S.C. § 300aa-l 1(a)(1). Although there are situations of
defective filings in which a Petitioner may have misunderstood the Act's requirements, this is


9Petitioner states that prior to communicating with GlaxoSmithKline "[she] never thought that
[her] hearing issues were the result ofthe government's fault... [she] did not even think about
any compensation for loss of hearing . .." Petitioner's Response at 2.
                                                  6
not one of those situations. See, e.g., Askew v. Sec'y ofHealth & Human Servs., 2012 WL
2061804, at *6 (Fed. CI. Spec. Mstr. May 17, 2012) (a defective filing occurred when a copy of
the petition was provided to the Secretary, but Petitioner failed to also file a copy of the petition
with the Court). A defective filing still means that there was some claim made albeit defective.
Petitioner's correspondence with the vaccine manufacturer is not a pleading. As such, it cannot
be considered a defective pleading.

        Third, Petitioner's claim that the company lulled her into inaction is also without support.
Petitioner claims that she was told by a company representative that GlaxoSmithKline would
"like to compensate damages to [her] health"; that "if [her] case would not go through the
program the company would take full responsibility for compensation"; and that the company
requested that Petitioner "write what compensation [she] would like to receive." Petitioner's
Response at 1. Those statements are contrary to the clear statements in the letters from
GlaxoSmithKline that Petitioner is referencing. At no place in either of the letters Petitioner
provided were there any statements thatthe manufacturer would compensate her for damages to
her health and would take full responsibility for compensation. Petitioner's Response,
Attachments 1 and 2.

       There is no indication from the statements made by GlaxoSmithKline that they were
intending to trick Petitioner into missing the filing deadline for her claim. Irwin v. Dep't of
Veterans Affairs, 498 U.S. at 96 (equitable tolling may be applied when the petitioner has been
tricked or induced by his adversary's misconduct).10 Given the statutory scheme under which the
vaccine manufacturer, GlaxoSmithKline, is not liable for any damages under the Vaccine Act,
the manufacturer has no incentive to induce such misconduct. Rather than hide the existence of
the Vaccine Program, GlaxoSmithKline actually advised Petitioner of the existence of the
program. Petitioner's Response, Attachment 2.

       Certainly, had Petitioner diligently pursued her inquiry and made it earlier, she would
have been given the same advice earlier, potentially in time to file her claim within the statute of
limitations. Petitioner was not prevented from pursuing her claims due to circumstances that
were beyond her control. Irwin, 498 U.S. at 96; Cloer, 654 F.3d at 1344-45. Her failure to do so
does not excuse her or provide a basis for applying equitable tolling.

       Petitioner has failed to satisfy her burden of demonstrating that the statute of limitations
should be equitably tolled. Because her petition was filed after the lapse of the statute of
limitations, her petition should be dismissed.




10 As Petitioner has not provided the letters that she sent to GlaxoSmithKline, the special master
has no way ofknowing what Petitioner requested ofthe company orwhen those requests were
made. Seegenerally Petitioner's Exhibits A-J.
                                         CONCLUSION


       Accordingly, this action is hereby DISMISSED as untimely filed. In the absence of a
motion for review pursuant to RCFC, Appendix B, the clerk is directed to enter judgment
accordingly.''



IT IS SO ORDERED.



                                                             Daria J. Zani
                                                             Special Master




11 This document constitutes a final "decision" in this case pursuant to 42 U.S.C. § 300aa-
12(d)(3)(A). Unless a motion for review of this decision is filed within 30 days, the Clerk of the
Court shall enter judgment in accordance with this decision. Pursuant to Vaccine Rule 11(a), the
parties can expedite entry ofjudgment byeach party filing a notice renouncing the right to seek
review by a United States Court of Federal Claimsjudge.
