Cloer v. Secretary of Health and Human Services
654 F.3d 1322
| Fed. Cir. | 2011Background
- Dr. Cloer received three Hepatitis-B vaccines in 1996-1997 with an initial neurological symptom in 1997 (Lhermitte sign).
- She later developed MS diagnosed in the early 2000s, with treating physicians recognizing possible MS by 1998-2003.
- She filed a Vaccine Program petition on September 16, 2005, seeking compensation for vaccine-related MS.
- The Chief Special Master and Court of Federal Claims dismissed as untimely; a panel initially ruled in Cloer’s favor before en banc reversal.
- The en banc court held the Vaccine Act statute of limitations runs from the first medically recognized symptom, rejected a default discovery rule, overruled Brice on equitable tolling, and ultimately affirmed dismissal as time-barred; it also addressed discovery-rule questions and equitable tolling.
- The opinion analyzes the Vaccine Act’s text, structure, and legislative history to determine accrual and tolling rules for vaccine-related injuries.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When does the Vaccine Act's 36-month limit begin? | Cloer argues discovery or recognition of causation should toll accrual. | Government argues accrual begins at first symptom of the vaccine-related injury, regardless of discovery. | Statute begins at first symptom; no implied discovery rule. |
| Should Brice permit equitable tolling? | Cloer seeks equitable tolling due to late awareness of causation. | Government argues Brice bars tolling. | Equitable tolling is available; Brice overruled. |
| Is a discovery rule implied in the statute? | Discovery rule should apply to toll accrual. | No implied discovery rule; text and structure foreclose. | No implied discovery rule; accrual at first symptom. |
| Does the 6-month petition residual-effects requirement affect the statute of limitations? | Six-month residual-effects requirement should toll timing. | Petition requirements are separate from limitations. | 6-month requirement is a petition content prerequisite, not tolling. |
Key Cases Cited
- Markovich v. Sec'y of Health & Human Servs., 477 F.3d 1353 (Fed. Cir. 2007) (first symptom is objectively recognizable by the medical profession)
- Brice v. Sec'y of Health & Human Servs., 240 F.3d 1367 (Fed. Cir. 2001) (equitable tolling not available under Vaccine Act (overruled))
- Kubrick v. United States, 444 U.S. 111 (Sup. Ct. 1979) (accrual standards and discovery principles)
- TRW Inc. v. Andrews, 534 U.S. 19 (Sup. Ct. 2001) (discovery rule implications for federal statutes)
- Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89 (Sup. Ct. 1990) (presumption of equitable tolling for federal statutes of limitations)
- Holland v. Florida, 560 U.S. 631 (Sup. Ct. 2010) (exceptional circumstances for tolling in context of statute timing)
- Markovich v. Sec’y of Health & Human Servs., 477 F.3d 1353 (Fed. Cir. 2007) (reaffirmed objective first-symptom trigger)
- Bruesewitz v. Wyeth LLC, 131 S. Ct. 1068 (Sup. Ct. 2011) (preemption and Vaccine Act context (related authority))