                                                                               REISSUED FOR PUBLICATION
                                                                                               APR 19 2018

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                                                                                    U.S. COURT OF FEDERAL CLAIMS



                                   OFFICE OF SPECIAL MASTERS
                                           No.17-509V                                                         FILED
                                            Filed: March 19, 2018
                                                                                                           MAR 19 2018
 * * * * * * * * * * * * * * *                                                                             U.S. COU RT OF
 CYNTHIA LOWERY GRADY,       *                                PUBLISHED                                  FEDERAL Cl_,t..Jt;.S

                             *
          Petitioner,        *
 v.                          *                                Decision Dismissing Petition; Acute
                             *                                Poliomyelitis ("Polio"); Post-Polio
 SECRETARY OF H EALTH        *                                Syndrome;§ 16(a)(l); § 16(a)(2);
 AND HUMAN SERVICES ,        *                                Equitable Tolling; Statute of Repose;
                             *                                Statute of Limitations
          Respondent.        *
 * * * * * * * * * * * * * * *
Cynthia Lowery Grady, prose.
Alexis B. Babcock, Esq., U.S. Department of Justice, Washington, DC, for respondent.

                                DECISION DISMISSING PETITION 1

Roth , Special Master:

         On April 6, 2017, Cynthia Lowery Grady ("petitioner"), acting pro se, filed a petition
pursuant to the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 et seq. 2
("Vaccine Act" or "the Program"). Petitioner alleges that she developed acute poliomyelitis
("polio") in 1960 and post-polio syndrome in or around 2000 as a result of an oral polio vaccination
she received in or around 1959. See Petition, ECF No. I at 3; ECF No. 12 at 13. For the reasons
set forth below, petitioner's claim must be dismissed.




        1  Because this Decision has been formally designated " Published," it will be posted on the Court
of Federal Claim's website in accordance with the £-Government Act of 2002, 44 U.S .C. § 3501 (2012).
This means the Decision will be available to anyone with access to the internet. As provided by 42
U.S.C. § 300aa-12(d)(4)(8), however, the parties may object to the Decision's inclusion of certain kinds of
confidential information. Specifically, under Vaccine Rule l 8(b), each party has fourteen days within which
to request redaction "of any information furni shed by that party: (I) that is a trade secret or commercial or
financial in substance and is privileged or confidential; or (2) that includes medical files or simi lar files, the
disclosure of which would constitute a clearly unwarranted invasion of privacy." Vaccine Rule 18(b).
Otherwise, the Decision in its present form will be available to the public. Id.
        2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (1986).
Hereinafter, for ease of citation, all "§" references to the Vaccine Act will be to the pertinent subparagraph
of 42 U.S.C. § 300aa.




                                                                                        7016 3010 0000 4308 4461
                                  I. Medical and Procedural History

A.      Medical History

        Petitioner was born on September 22 , 1954. The medical records petitioner was able to
secure reveal the following facts: 3

        Petitioner received a polio vaccine in July of 1959 while living in Florida. In early 1960,
she and her family moved from Florida to South Carolina. ECF No. 12 at 13. The records state
that they lived within a half-mile from a child that had contracted and died from polio. Shortly
thereafter, on July 9, 1960, petitioner developed a fever and vomited. She was taken to a local
hospital where she was diagnosed with possible polio. On July 11 , 1960, she was transferred to a
hospital in Spartanburg, South Carolina with a diagnosis of acute poliomyelitis. According to the
record, her condition worsened and she progressed to an iron lung. Petitioner remained in the
hospital until August 4, 1960. She was discharged with a description of minimal weakness in her
legs and left shoulder girdle. See ECF No. 12 at 12-13.

        The next medical record submitted by petitioner was a doctor' s visit on November 20,
2001, which states that at some point previously, petitioner had been diagnosed with
hemochromatosis,4 fibromyalgia ("status post polio"), bilateral carpal tunnel syndrome, and
bipolar disorder. ECF No. 12 at 15. Petitioner also submitted several medical records that
document a series of doctors ' visits from 2007 to 2017, for a variety of health issues, all noting
petitioner' s medical history of fibromyalgia, polio, and hemochromatosis. See ECF No. 12 .5

        Petitioner alleges in her petition that she only recently learned of the existence of the
Vaccine Program and that the government failed to notify her of her ability to file a claim upon
enactment of the Vaccine Program. Petitioner further documents her attempts to secure her
medical records from South Carolina for several years while being told by hospital staff that the
medical records were unavailable. Only after a helpful hospital employee searched for two weeks
through microfiche records was she able to finally obtain the medical records she needed to file
her petition. She states that for these reasons her case qualifies for equitable tolling. ECF No. 12
at 6-7.




        3
          Petitioner advised that she was unable to secure records showing proof of vaccination ; the records
contain only references to the vaccine. Although her medical records are not clear (they were printed from
microfiche), petitioner alleges in her petition that she received this vaccine orally and that this may have
been the second polio vaccine she received. See ECF No. 12. Petitioner's medical history is gleaned from
the records that Petitioner was able to secure.
        4 Hemochromatosis is the abnormal deposition of hemosiderin in the parenchymal liver cells,
causing tissue damage and dysfunction of the liver, pancreas, heart, and pituitary. See Dorland's
Illustrated Medical Dictionary 849 (Saunders eds., 31st ed . 2007) ("Dorland's") .
        5 Petitioner also submitted copies of documents associated with her communication to and
assistance from her congressional representative for the filing of her vaccine claim . See ECF No. 12.

                                                      2
B.     Procedural History

        Petitioner filed her petition and supporting medical records on April 6, 2017. ECF No. 1.
The initial audio taped status conference was held on June 8, 2017. Petitioner spoke about her
medical conditions, her difficulty securing her medical records, and her diagnosis of post-polio
syndrome in or around the year 2000. Petitioner was given the opportunity to file an affidavit, and
any additional medical records she wanted the court to consider in support of her claim. ECF No.
10. On July 11, 2017, petitioner filed her affidavit and additional documentation regarding her
alleged injuries. See ECF No . 12.

        A second audio taped status conference was held on September 28, 2017. The time
limitations for filing a petition in the Program were explained at length to petitioner as well as
other requirements of the program. Petitioner was permitted the opportunity to tell the Court all
that she wanted us to know. In so doing, she expressed her frustration with being unable to secure
her medical records from when she was a child and her failure to learn about the Program until
recently. Respondent's counsel expressed her intention to file a Rule 4 Report and Motion to
Dismiss. Petitioner was provided with a full explanation of what respondent was going to do,
that she would be afforded the opportunity to respond to respondent's filing in writing and file all
of the information she wanted the Court to consider. ECF No. 14.

        On November 9, 2017, respondent filed a Rule 4 Report and Motion to Dismiss, see ECF
No. 15-16, arguing that the petition was filed beyond the time limitations in § 16(a)(l). On
November 20, 2017, petitioner filed a response, reiterating most of the allegations contained in her
petition and arguing that equitable tolling should be applied. ECF No. 17. Petitioner filed a
supplement to her response on December 12, 2017, responding to the factual assertions made by
respondent. See ECF Nos. 19-20. This matter is now ripe for decision.

                                      II. Legal Framework

        Section 16(a)(l) addresses the issue of limitations of actions for petitions involving
vaccines which were administered prior to the effective date of the Program, October 1, 1988. The
statute states:

       In the case of-

       (1) a vaccine set forth in the Vaccine Injury table which is administered before
       October 1, 1988, if a vaccine-related injury or death occurred as a result of the
       administration of such vaccine, no petition may be filed for compensation under the
       Program for such injury or death after the expiration of28 months after October 1,
       1988, and no such petition may be filed if the first symptom or manifestation of
       onset or of the significant aggravation of such injury occurred more than 36 months
       after the date of administration of the vaccine.

§ l 6(a)(l ). Petitions involving vaccines that were administered after October 1, 1988, are
governed by§ 16(a)(2). Because petitioner received the allegedly causal vaccination in 1959, her
claim is subject to the provisions contained in§ l 6(a)(l ).


                                                 3
        The Vaccine Program was enacted to provide relief to individuals whose injuries or death
qualified them or their estate for compensation under the terms of the Program. Wiley v. United
States, 69 Fed. Cl. 733 , 736 (2006). However, the financial appropriation could not possibly be
large enough to ensure that all potential retrospective victims whose injuries had occurred prior to
the enactment of the Vaccine Program could be compensated. Id. Therefore, Congress specified
a cutoff date. Any claim based upon a vaccination that occurred before the Program ' s enactment
date (October 1, 1988) had to be filed within 28 months of the enactment date, i.e., before February
I, 1991. With this understanding, the United States Court of Appeals for the Federal Circuit has
ruled that § I 6(a)( I) is a statute of repose. See Weddel v. Sec '.Y of Health & Human Servs. , 100
F.3d 929, 932 (Fed. Cir. 1996). 6

         A statute ofrepose is distinguishable from a statute of limitations in that a statute of repose
runs from a determined date unrelated to the injury and does not consider the date of injury as a
factor when determining the deadline for filed claims. Wiley, 69 Fed. Cl. at 736; Lombardo, 34
Fed. Cl. 21 , 26. As opposed to a statute of limitations, for which the main purpose is "the
prevention of stale claims, a statute of repose is designed to provide immunity to the defendant
and ' relieve potential defendants from anxiety over liability for acts committed long ago. "' Wiley,
69 Fed. Cl. at 373 (citation omitted).

         In Wiley, the court looked to Lombardo' s analysis of the various factors used to conclude
that§ 16(a)(l) of the Vaccine Act was a statute of repose. 69 Fed. Cl. at 737. Both courts stated
that the most significant factor was the plain language of§ 16(a)(I), which provides valuable
insight into the deadline' s classification and "suggests that Congress sought to extend relief to
those vaccinated before the Act went into effect, but also wanted to provide the government with
a definite date after which it would no longer have to defend against any such retroactive suits."
Id. (quoting Lombardo, 34 Fed. Cl. at 27). Specifically, the statute states that "no petition may be
filed" after the deadline. Additionally, while there is no provision in the Vaccine Act that suggests
tolling of the statutory filing deadlines, the unambiguous mandatory language in§ 16(a)(l) shows
that it is a statute of repose.

       Congress was keenly aware that some meritorious claims might not be filed before the
deadline established in the Act. Congress initially provided a filing period of 24 months for
outstanding claims under§ 16(a)(l). After it became clearthat the Secretary of Health and Human
Services was not advertising the Program as Congress had anticipated, this period was later
extended to 28 months. 136 Cong. Rec. SI 5, 198-99 (daily ed., Oct. 12, 1990) (remarks of Sen.
Kennedy). Congress feared that individuals who had only just heard of or had not yet heard of the
Program would not have sufficient time to collect the necessary materials to file a petition for
compensation. Id. To address this issue, Congress added four months to the deadline date

        6
           The Federal Circuit has held that § I6(a)(2)- which governs claims resulting from vaccines
administered after October I, 1988-is subject to equitable tolling. Cloer v. Secy of Health & Human
Servs., 654 F.3d 1322, 1340 (Fed. Cir. 2011) (en bane). Although some statements in Cloer may be read
to apply to all Vaccine Act claims, see, e.g., id. ("We . . . hold that equitable tolling applies to the Vaccine
Act."), the court did not purport to overrule Weddel' s holding that equitable tolling does not apply to the
time limitations set forth in§ 16(a)( I). The lower courts thus remain bound by Weddel as binding precedent.
See Coltec Indus., Inc. v. United Slates, 454 F.3d 1340, 1353 (Fed . Cir. 2006).

                                                       4
(February 1, 1991) in order to file a claim in pre-Act cases. Congress was thus aware of the
problem identified by petitioner in the instant case and chose to address it. Unfortunately for
petitioner, their amendment to the deadline was not generous enough to encompass her claim, filed
approximately 29 years too late.

         Finally, the legislative history of § l 6(a)(l) reinforces the conclusion that Congress
intended the provision to be a statute of repose. When introduced in the Senate, the Vaccine Act
contained a statute of limitations provision which allowed a petition to be filed after the statutory
deadline "if the petitioner demonstrates that he or she was not informed [of the vaccine
compensation program] , or did not know that the injury was compensable." Lombardo, 34 Fed.
Cl. at 28 (quoting S. 2 117, 98th Cong., lst Sess. § 2115(b) (1983)). However, when the Vaccine
Act was finally enacted by Congress, it did not contain this provision, nor did it permit the filing
of petitions after the deadline. § 16(a)(I). Congress was aware of how "to expressly provide for
the filing of untimely petitions for compensation when a petitioner was unaware that his injury
was compensable, but chose not to do so in the eventual enactment." Lombardo, 34 Fed. Cl. at
28. This history indicates that Congress had no intention of allowing petitions based on pre-Act
vaccinations to be filed after the Febrnary 1, 1991 deadline and, therefore, did not want § 16(a)( l)
to be equitably tolled. All of these factors demonstrate clear congressional intent to make
§ 16(a)(I) a statute of repose. Wiley, 69 Fed. Cl. at 737. The statutory time deadline associated
with petitioner's 1959 polio vaccination is subject to § l 6(a)(l ), and is therefore not subject to
equitable tolling.

      Section 16(a)(2) governs claims resulting from vaccines administered after October l ,
1988. The statute of limitations contained in the Act reads:

       (2) a vaccine set forth in the Vaccine Injury Table which is administered after
       October 1, 1988, if 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 or such injury.

§ l 6(a)(2). The Federal Circuit has recently held that § l 6(a)(2) is a statute of limitations, and is
subject to equitable tolling under very limited circumstances. Cloer v. Sec '.Y of Health & Human
Servs., 654 F.3d 1322, 1340 (Fed. Cir. 2011) (en bane). In other words, § 16(a)(2) allows courts
to forgive untimely claims in "extraordinary circumstances" Cloer, 654 F .3d at 1344 (quoting
Pace v. DiGuglielmo, 544 U.S. 408 , 418 (2005)). This equitable relief has been granted only
sparingly in the federal courts. The Court has already held that a lack of knowledge of the existence
of the Vaccine Program, and/or the inability to obtain all the medical records necessary to support
a claim, fails to constitute an extraordinary circumstance permitting equitable tolling of the statute
of limitations. See e.g., Phillips v. Secy of Health & Human Servs. , No. 16-1045V, 2017 WL
1293445, at *4 (Fed. Cl. Apr. 6, 2017) (citation omitted)); see also Brice v. Sec'y of Health &
Human Servs., 44 Fed. Cl. 673 , 677-78 (1999).




                                                   5
                                               III. Analysis

A.      Time Limits for Petitioner's Injuries from her Polio Vaccine

         Petitioner's medical records indicate an onset of polio in or around July of 1960 though it
appears that her polio vaccine was administered a year prior in 1959. She was subsequently
diagnosed with post-polio syndrome in around the year 2000. She claims that both ailments were
a result of the polio vaccination she received in or around 1959.

        Petitioner's medical records support a finding that the vaccine in question was administered
approximately 29 years prior to the Vaccine Program's effective date on October 1, 1988. For a
pre-Act vaccination to be timely, according to§ 16(a)(l ), petitioner's petition for her polio vaccine
would have had to have been filed within the 28-month deadline following October 1, 1988, or
prior to February 1, 1991. Here, petitioner filed her petition on April 6, 2017, more than 26 years
after the deadline. Her claim arising from her polio vaccination is therefore time-barred by
§ 16(a)(l).

B.      Time Limits for Petitioner's Subsequent Development of Post-Polio Syndrome

        The medical records filed in this matter do not indicate when the onset of petitioner's post-
polio syndrome occurred but it appears that petitioner was diagnosed with post-polio syndrome in
or around 2000. 7 Section l 6(a)(2), which governs the filings of all post-Act cases states that "no
petition may be filed for compensation under the [Vaccine Act] 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." § 16(a)(2). The fact remains that petitioner received
her polio vaccine(s) in or around 1959, making this case a pre-Act case subject to § 16(a)(l).
However, even if petitioner's post-polio syndrome could be subject to the post-Act statute of
limitations under § 16(a)(2), her claim would still be untimely. Petitioner alleges that she was
diagnosed with post-polio syndrome in or around the year 2000. ECF No. 1 at 3; see also ECF
No. 12 at 6. Petitioner' s petition would have been due 36 months after the first symptom or
manifestation of post-polio syndrome, which would have been in or around 2003. Petitioner filed
her petition in 2017. Accordingly, petitioner's claim is untimely under§ 16(a)(2).

C.      Availability of Equitable Tolling

       Petitioner argues that equitable tolling must be applied because she was unaware of the
Program and then was unable to obtain her medical records for several years after she learned of
the Program. While equitable tolling can apply to post-Act vaccination claims, the Federal Circuit
has clarified that equitable tolling is only available to post-Act claims in very limited
circumstances in which "some extraordinary circumstance stood in [petitioner' s] way." Cloer,
654 F.3d at 1344 (quoting Pace, 544 U.S. 408 at 418). This equitable relief has been granted only
sparingly in federal courts.

        7 Petitioner was afforded the opportunity to file any and all records associated with her diagnosis
of post-polio syndrome.

                                                     6
        Her argument for the application of equitable tolling in her case is duly noted. However,
the issue of the failure to learn of the Program was considered by the Court previously and found
not to constitute grounds for tolling of the statute of limitations. See Phillips, 2017 WL 1293445
at *4. Additionally, the failure to obtain the medical records necessary to support the petition has
also been addressed by the Court and found not to be sufficient for equitable tolling to be applied.
See Brice, 44 Fed. Cl. at 677-78.

                                         III. Conclusion

        I appreciate the frustration petitioner expressed to the Court during the status conferences
related to her inability to secure her medical records from her childhood, and not knowing of the
existence of the Vaccine Program until sometime around 2001. Petitioner went to great lengths to
secure the medical records filed in this matter and to finally file her petition in 2017. However,
constrained by the law that governs these claims, petitioner' s claims are time-barred by both the
statute of repose, § 16(a)(l), for the claims arising from her polio vaccine in 1959, and by the
statute oflimitations, § 16(a)(2), for her development of post-polio syndrome in or around the year
2000. Therefore, the Court must grant respondent' s motion to dismiss the claim as untimely filed.
Respondent's motion to dismiss is hereby GRANTED. The petition is therefore dismissed. The
clerk shall enter judgment accordingly.

       IT IS SO ORDERED.



       Date:   a// 1/;Y
                I    j




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