Carson v. Secretary of Health & Human Services
2013 U.S. App. LEXIS 17932
| Fed. Cir. | 2013Background
- Kit Carson received routine childhood vaccinations and displayed progressive speech delay noted by pediatricians beginning at 18 months, with "severe language delay" recorded on May 25, 1999.
- School IEP evaluations in September 1999 observed language delays and some social concerns; autism spectrum disorder was not diagnosed until April 26, 2001.
- Petitioners filed a Vaccine Act petition on July 22, 2002 seeking compensation for vaccine-related autism.
- Respondent moved to dismiss as untimely under the Vaccine Act's 36-month limitations provision (42 U.S.C. § 300aa‑16(a)(2)), arguing the first symptom occurred by May 1999.
- The Chief Special Master found May 25, 1999 (severe language delay) was the first symptom objectively recognizable by the medical profession; the Court of Federal Claims affirmed and this Court affirmed.
- Dissent argued speech delay alone was not objectively recognizable as autism by medical professionals, urged equitable tolling, and contended the statute should not run before the injury was medically recognized.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When does the Vaccine Act's 36‑month limitations period begin? | Limitations should start when symptoms would allow medical professionals to recognize autism (petitioners point to Sept. 1999 IEP signs). | It begins at the first event objectively recognizable by the medical profession as a sign of the injury; speech delay in May 1999 sufficed. | Held: The first symptom was May 25, 1999 (severe language delay); petition filed July 2002 was untimely. |
| Whether retrospective recognition (hindsight) may trigger the limitations period | Petitioners: retrospective reclassification that speech delay was part of autism should not start the period absent contemporaneous medical recognition. | Respondent: Symptom need not be contemporaneously diagnosed; it suffices that it was objectively recognizable by the medical profession (even if later recognized). | Held: No requirement of contemporaneous diagnosis; symptom need not have been actually diagnosed at the time. |
| Whether speech delay alone can be the "first symptom" of autism for limitations purposes | Petitioners: Speech delay is common and too nonspecific to be the first objectively recognizable symptom of autism. | Respondent: Speech delay can be a symptom of autism and here was the first objectively recognizable sign. | Held: The Special Master's factual finding that speech delay was the first objectively recognizable symptom was not arbitrary or capricious and is upheld. |
| Whether equitable tolling should apply | Petitioners (dissent): Tolling is appropriate because medical community did not recognize injury during the early period. | Respondent: No extraordinary circumstances shown to justify equitable tolling. | Held: Majority: no equitable tolling applied; dissent would toll. |
Key Cases Cited
- Markovich v. Sec’y of Health & Human Servs., 477 F.3d 1353 (Fed. Cir. 2007) (adopts objective standard: first symptom is first event objectively recognizable by medical profession)
- Broekelschen v. Sec’y of Health & Human Servs., 618 F.3d 1339 (Fed. Cir. 2010) (standard of review for Vaccine Act appeals: de novo review; factual findings upheld unless arbitrary or capricious)
- Cloer v. Sec’y of Health & Human Servs., 654 F.3d 1322 (Fed. Cir. 2011) (en banc) (confirms availability of equitable tolling in limited circumstances for Vaccine Act limitations)
- Wilkerson v. Sec’y of Health & Human Servs., 593 F.3d 1343 (Fed. Cir. 2010) (retrospective medical recognition can support finding a symptom objectively recognizable)
- Pace v. DiGuglielmo, 544 U.S. 408 (2005) (equitable tolling requires extraordinary circumstances beyond a petitioner’s control)