Dorota Von Maack v. Secretary of Health and Human Services

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.