"Discovery Rule" for vaccine injuries does not apply to the statute of limitations

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Probably the hardest thing for a vaccine injury attorney to tell a client is that they have missed the statute of limitations and their claim for benefits in the Program is time-barred. One of the most frequently criticized elements of the Vaccine Injury Compensation Program is its overly restrictive statute of limitations, requiring an injured person to file his or her claim no later than 36 months from first symptom of illness, whether or not the victim or the parent is able to attribute the injury to a vaccine during those three years. For injured parties who may be unable to connect the dots in that short period of time, the courthouse doors slam shut, and compensation is barred.

The Court of Appeals for the Federal Circuit recently considered a case as to whether that short limitations period could be extended by either the discovery rule – extending the time by which a party can file a legal claim until he discovers or should reasonably have discovered the suspected cause of his injury – or the doctrine of equitable tolling – which modifies the statute of limitations in cases of fraud, duress or similar circumstances. In Cloer v. Secretary of Health and Human Services, the Court, in an 8-4 decision, answered those questions, rejecting any application of the discovery rule to VICP claims and, overruling Brice v. Secretary of Health and Human Services, 240 F.3d 1367 (Fed. Cir. 2001), finding that equitable tolling could be applied only in certain extraordinary circumstances such as fraud or duress. Dr. Cloer was claiming development of multiple sclerosis from a reaction to the Hepatitis B vaccine. In the case before the Court, they refused to apply equitable tolling to Dr. Cloer’s claim, foreclosing her ability to obtain compensation for her vaccine-related injuries.

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