Hodge v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

*************************

JEREMY HODGE, *

* No. 09-453V

Petitioner, * Special Master Christian J. Moran

*

* Filed: December 21, 2015

v. *

* Statute of limitations; equitable

SECRETARY OF HEALTH AND * tolling; mental illness;

HUMAN SERVICES, * obsessive-compulsive disorder

* (“OCD”); remand.

Respondent. *

*************************

Clifford J. Shoemaker, Shoemaker, Gentry & Knickelbein, Vienna, VA, for

petitioner;

Althea Walker Davis, United States Dep’t of Justice, Washington, DC, for

respondent.

PUBLISHED RULING FINDING EQUITABLE TOLLING1

In this case under the National Vaccine Injury Compensation Program (“the

Vaccine Program”), Jeremy Hodge seeks compensation for injuries he alleges were

caused by hepatitis A and B vaccinations administered on March 17, 2006, and

April 15, 2006. The Secretary of Health and Human Services filed a motion to

dismiss based on the Vaccine Act’s statute of limitations, 42 U.S.C. § 300aa-

16(a)(2). At this stage, there is no dispute that Mr. Hodge did not file his petition

within the time permitted by the statute of limitations.

1

The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17,

2002), requires that the Court post this decision on its website. Pursuant to Vaccine Rule 18(b),

the parties have 14 days to file a motion proposing redaction of medical information or other

information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special

master will appear in the document posted on the website.

To avoid the consequence of filing outside of the statute of limitations, Mr.

Hodge argues that the running of the statute should be equitably tolled. In a March

23, 2015 decision, the undersigned rejected that argument. However, in an

Opinion and Order issued on September 9, 2015, the Court vacated that decision

and remanded for additional consideration.

After additional consideration and additional evidentiary development, the

undersigned concludes that Mr. Hodge has established that equitable tolling is

appropriate. As discussed below, this conclusion is premised upon an analysis of

several legal issues that are novel to the Vaccine Program.

Procedural History

Before describing events in Mr. Hodge’s case, it is important to set forth the

background law regarding the time for filing petitions in the Vaccine Program

because this law has influenced the actions taken by Mr. Hodge’s attorney, Mr.

Clifford Shoemaker. The Vaccine Act provides the starting point for analyzing the

timeliness of petitions. In 2009 (and now), the Vaccine Act stated that “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 the significant aggravation of such injury.” 42 U.S.C.

§ 300aa−16(a)(2).

Before 2009, petitioners in other Vaccine Program cases had attempted to

ameliorate the consequence of the 36-month statute of limitations by relying upon

two closely related doctrines: the discovery rule and equitable tolling. As later

explained by the Federal Circuit, “discovery rules look to the knowledge of a

plaintiff to determine the date upon which the statute of limitations begins to run.”

Cloer v. Sec’y of Health & Human Servs., 654 F.3d 1322, 1338 (Fed. Cir. 2011)

(en banc). When petitioners invoked the discovery rule to explain that they did not

file their petition within 36 months of an injury because they did not know about

their potential claim, courts did not grant them relief. E.g., Goetz v. Sec’y of

Health & Human Servs., 45 Fed. Cl. 340, 341 (1999).

Unlike the discovery rule, which would modify when a cause of action

accrues, equitable tolling extends the time for filing a petition. In 2001, the

2

Federal Circuit held that the Vaccine Act was not compatible with equitable

tolling. Brice v. Sec’y of Health & Human Servs., 240 F.3d 1367, 1372 (Fed. Cir.

2001). As discussed below, the en banc Federal Circuit overruled this aspect of

Brice while Mr. Hodge’s case was pending.

Against this backdrop, Mr. Hodge’s mother, Erika Elson, conferred with Mr.

Shoemaker on July 13, 2009. She informed Mr. Shoemaker that Mr. Hodge

received a dose of the hepatitis A vaccine on March 17, 2006, and doses of the

hepatitis B vaccine on March 17, 2006, and April 25, 2006. She apparently also

told Mr. Shoemaker that after these vaccinations, Mr. Hodge “experienced various

symptoms.” Pet., filed July 15, 2009, at ¶¶ 5-7.

Two days after speaking with Ms. Elson, Mr. Shoemaker filed the petition

without collecting medical records. He filed the petition “immediately because of

potential statute of limitations problems.” Pet. ¶ 7. The petition was, thus, not

very specific about the injury that the vaccinations allegedly caused, and merely

asserted that a May 18, 2009 MRI2 suggested that Mr. Hodge suffered from a

demyelinating disease. Pet. ¶ 9.

At the first status conference, the parties discussed the potential statute of

limitations problem, which Mr. Shoemaker had disclosed in the petition.

Nevertheless, Mr. Shoemaker wanted to continue the case, suggesting that this case

might be an appropriate vehicle to modify Brice.3

2

The petition states an MRI date of May 19, 2009, which is the date that the evaluating

physician reviewed the results of the MRI. The accurate date is May 18, 2009, the date the MRI

was performed on Mr. Hodge. For consistency, this ruling refers to the MRI as performed on

May 18, 2009.

3

Mr. Shoemaker’s decision to represent Mr. Hodge was admirable. Mr. Shoemaker

knew that Mr. Hodge’s case could be barred by the statute of limitations and that attempts to

avoid the consequences of the statute of limitations had been rejected by the Federal Circuit.

Thus, the task confronting Mr. Hodge to establish that the merits of his claim should be

adjudicated were considerable.

In addition, when Mr. Shoemaker decided to undertake this challenge, he knew that the

Federal Circuit had held that special masters lacked the authority to award attorneys’ fees to

petitioners whose cases were filed outside the statute of limitations. This ruling came in a

3

The parties agreed that Mr. Shoemaker should file medical records and he

spent more than two years gathering them. In this phase of collecting records, the

Federal Circuit issued its en banc opinion in Cloer. Two aspects of Cloer affect

Mr. Hodge’s case. First, the Federal Circuit confirmed that the Vaccine Act does

not include a discovery rule. Cloer, 654 F.3d at 1336-40. Second, overruling

Brice, the Federal Circuit determined that the Vaccine Act permits equitable

tolling. Id. at 1340-44.

After Mr. Hodge’s medical records were filed, the Secretary evaluated them

in her report. The Secretary premised her analysis on the idea that Mr. Hodge’s

petition alleged that the vaccinations caused him a demyelinating disease. Resp’t’s

Rep., filed April 30, 2012, at 13. The Secretary’s report also argued that the case

should be dismissed due to untimeliness. Id. at 17-19.

The next significant event was Mr. Hodge’s filing a report from a

neurologist, Carlo Tornatore. This report had two purposes: (1) to define the injury

for which Mr. Hodge was seeking compensation, and (2) to determine when the

first sign or symptom of that injury arose. After reviewing the medical records, Dr.

Tornatore determined that “the diagnosis of neuroborreliosis would not be

unreasonable.” 4 He stated that the onset of this disease was in 2005. Dr. Tornatore

also added that after Mr. Hodge received the vaccinations, his neuroborreliosis

second opinion from the Federal Circuit in the Brice case. Brice v. Sec’y of Health & Human

Servs., 358 F.3d 865, 869 (Fed. Cir. 2004). In a second en banc decision in Cloer, the Federal

Circuit overruled this Brice decision as well. Cloer v. Sec’y of Health & Human Servs., 675

F.3d 1358 (Fed. Cir. 2012) (en banc).

Thus, as the law stood in 2009, Mr. Shoemaker agreed to take on a case that would

require a significant amount of work (possibly an en banc appeal), for which it was possible, if

not likely, he would not receive attorneys’ fees. Mr. Shoemaker’s willingness to put his client’s

interests ahead of his own upholds the best traditions of the legal profession.

4

Dr. Tornatore’s diagnosis of neuroborreliosis means that Mr. Hodge is suffering from a

manifestation of Lyme’s disease. See Dorland’s Illus. Med. Dictionary at 241, 1263 (32d ed.

2012). Dr. Tornatore’s diagnosis is consistent with the opinions of some treating doctors’

opinions that he suffered from Lyme’s disease. E.g., Exhibit 7 at 22, 28, 44; exhibit 14 at 3;

exhibit 20 at 16.

4

became worse by June 2, 2006, when he experienced dizziness and eye movement

disorders. Exhibit 18 at 2, citing exhibit 6 at 7.

In the ensuing status conference, the parties discussed the significance of Dr.

Tornatore’s report. Mr. Hodge recognized that Dr. Tornatore’s reliance on the

June 2, 2006 dizziness and eye movement disorders placed the first manifestation

of a vaccine-induced significant aggravation outside the statute of limitations. But,

Mr. Hodge wanted to argue that equitable tolling should save his claim. Order,

issued August 29, 2013.

Mr. Hodge filed his brief approximately five months later. His primary

argument was that doctors did not recognize his symptoms as manifestations of an

injury caused by a vaccine. Pet’r’s Br., filed Jan. 30, 2014, at 1-2, 4. In passing,

Mr. Hodge also mentioned that mental disability could serve as a basis for

equitable tolling. Id. at 8.

The Secretary did not agree with Mr. Hodge’s invocation of equitable

tolling. With respect to mental disability, the Secretary argued that Mr. Hodge had

not shown how his mental illness prevented him from filing a timely petition.

Resp’t’s Resp., filed May 9, 2014, at 17.

Mr. Hodge was permitted to have the last word as to the availability of

equitable tolling. In his sur-reply, Mr. Hodge emphasized the extraordinary

circumstances that prevented him from filing earlier and his diligence in pursuing

his rights. Pet’r’s Sur-Reply, filed Oct. 1, 2014.

A decision was issued on March 23, 2015. The decision found that based

upon Dr. Tornatore’s report, Mr. Hodge had not filed his petition within the time

permitted by the statute of limitations. In addition, the decision found that Mr.

Hodge had not established that he was entitled to equitable tolling. 2015 WL

1779274.

After Mr. Hodge filed a motion for review, the Court vacated the March 23,

2015 decision. The Court did not modify the finding that Mr. Hodge filed the case

outside the statute of limitations. 123 Fed. Cl. 206, 216. However, the Court

remanded for a more detailed assessment of the medical records especially with

respect to Mr. Hodge’s mental status. Id. at 219.

5

The time for remand is set forth in the Vaccine Act: “The court may allow

not more than 90 days for remands.” 42 U.S.C. § 300aa−12(e)(2). This provision

is carried over into Vaccine Rule 28(b). Because the Court remanded the case on

September 9, 2015, the time for remand was set to expire on December 9, 2015.

After the remand, the parties were ordered to file briefs addressing legal and

factual questions. Order, issued Sept. 14, 2015. The parties presented their

arguments in a series of briefs that are discussed in the context of specific issues

below.

On October 16, 2015, Mr. Hodge filed more medical records. He also filed

a report from Robert Dasher, a psychiatrist who treated him. Exhibit 22.

The October 8, 2015 scheduling order required the Secretary to file a

response to Dr. Dasher’s report on Friday, November 6, 2015. On that date, the

Secretary filed two motions for enlargement of time. Mr. Hodge did not oppose

either motion. The first (ECF entry 127) was directed to the Court, requesting an

extension of time for the remand proceedings. The second (ECF entry 128) was

directed to the special master, requesting an extension of time for the expert’s

report.

On Monday, November 9, 2015, the Court denied the Secretary’s motion to

enlarge the time for remand. The Court reasoned that it cannot change a deadline

set by statute. Order, issued Nov. 9, 2015, at 1, citing 1 James Wm. Moore,

Moore’s Federal Practice ¶ 6.06[1][a] (3d ed. 2012). However, citing Paluck v.

Sec’y of Health & Human Servs., 111 Fed. Cl. 160, 165-66 (2013), the Court

added that “the Vaccine Act does not identify any consequence for a failure to act

within the ninety-day remand period.” The Court concluded that “if both parties

and the special master agree that additional time is necessary for the special master

to comply with the court’s remand order, the court will fully support that common-

sense agreement in the interest of justice.” Order, issued Nov. 9, 2015, at 2.

The following day, a status conference was held to discuss the implications

of the Court’s November 9, 2015 order. Mr. Hodge continued to consent for

additional time for the Secretary to file a response to Dr. Dasher. Thus, the

Secretary’s deadline was extended to November 20, 2015. Order, issued Nov. 10,

2015.

6

On November 20, 2015, the Secretary filed reports from Elizabeth LaRusso,

a psychiatrist, and John Dunn, a neuropsychologist. These reports provided

information about obsessive-compulsive disorder and opinions about Mr. Hodge’s

mental health.

On December 4, 2015, Mr. Hodge filed a reply. With the reply, he filed an

additional affidavit from his mother, exhibit 26, contesting some of the factual

assertions made by Dr. LaRusso and Dr. Dunn.

With that submission, the matter is again ready for adjudication.

Analysis

The analysis follows the following structure. The first two sections are

devoted to resolving questions of law: (1) whether petitioners in the Vaccine

Program may invoke the doctrine of equitable tolling on the basis of mental

incapacity, and (2) what petitioners relying upon a mental disability must establish

to receive the benefits of equitable tolling. The following section considers the

pleadings and facts of Mr. Hodge’s case and concludes that Mr. Hodge is entitled

to equitable tolling. Based upon the finding that Mr. Hodge’s claim that he is

mentally incapacitated, the final section requests briefs regarding Mr. Hodge’s

ability to continue to function as the petitioner in his case.

I. Availability of Equitable Tolling for Mental Illness

There is no question that, as a general matter, the Vaccine Act permits

equitable tolling. Cloer, 654 F.3d at 1340-44. Although the Secretary concedes

this general point, the Secretary contends that “equitable tolling for mental illness

is not available in Vaccine Program cases.” Resp’t’s Mem., filed Sept. 30, 2015 at

7. 5

Cloer itself does not directly address this question. The petitioner, Dr.

Melissa Cloer, sought equitable tolling “on the ground that she first became aware

5

After remand, the Secretary’s legal argument has matured into a prominent argument

compared to the relatively tangential argument made earlier. See Resp’t’s Resp. to Pet’r’s Mot.

for Rev., filed July 22, 2015, at 8 n.5.

7

of the causal link between her [multiple sclerosis] and the [hepatitis B] vaccine”

after the statute of limitations had run. Cloer, 654 F.3d at 1344. The en banc

Federal Circuit held that “unawareness of a causal link between an injury and

administration of a vaccine” is not a basis for equitable tolling. Id. at 1345. Unlike

Mr. Hodge, Dr. Cloer did not invoke mental illness as a reason for tolling the

statute of limitations.

In determining whether equitable tolling is available, the starting point is

Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95-96 (1990), in which the

Supreme Court “established a presumption that all federal statutes of limitations

are amenable to equitable tolling absent provision by Congress to the contrary.”

Cloer, 654 F.3d at 1342. In a case the Federal Circuit cited involving equitable

tolling, Barrett v. Principi, 363 F.3d 1316, 1319 (Fed. Cir. 2004), the Sixth Circuit

stated “time limitations may be tolled on equitable grounds not inconsistent with

the legislative purpose.” Cantrell v. Knoxville Community Development Corp., 60

F.3d 1177, 1179 (6th Cir. 1995).

Citing the Vaccine Act, the Secretary argues that Congress did not intend for

mental illness to be a basis for equitable tolling in the Vaccine Program. The

Vaccine Act identifies three groups of people who may be petitioners in the

Vaccine Program: “[(1)] any person who has sustained a vaccine-related injury,

[(2)] the legal representative of such person if such person is a minor or is disabled,

or [(3)] the legal representative of any person who died as the result of the

administration of a vaccine set forth in the Vaccine Injury Table.” 42 U.S.C.

§ 300aa–11(b)(1)(A); but see Figueroa v. Secʼy of Health & Human Servs., 715

F.3d 1314, 1322-25 (Fed. Cir. 2013) (authorizing the legal representative of a

person who died from non-vaccine related causes to file a petition for a vaccine-

related injury). The Secretary’s argument regarding equitable tolling is based upon

the second class: “the legal representative” of a vaccine-injured person who is

“disabled.” The Secretary essentially argues that because Congress authorized the

legal representative of a disabled person to file a petition, Congress did not want

the disabled person to have the benefit of equitable tolling. In the Secretary’s

words, the Vaccine Act “empowers the legal representative of a disabled person

with the right and obligation to advance [a] Vaccine Act claim.” Resp’t’s Mem.

at 9; accord Resp’t’s Br., filed Nov. 20, 2015, at 8 n.6, 10.

8

Mr. Hodge did not directly respond to the Secretary’s citation to the Vaccine

Act. See Pet’r’s Mem., filed Oct. 16, 2015. This omission is unfortunate because

the Secretary’s argument carries some force. Despite the lack of response from

Mr. Hodge, the Secretary’s argument is not persuasive.

The Secretary argument leaves unaddressed two questions. First, who is the

“legal representative”? The Vaccine Act defines “legal representative” as “a

parent or individual who qualifies as a legal guardian under State law.” 42 U.S.C.

§ 300aa–33(2). The Court of Federal Claims construed the term “legal

representative” to mean that “parents are always viewed as the legal guardian of a

son or daughter, whether or not they also qualify as such under state law.”

Kennedy v. Secʼy of Health & Human Servs., 99 Fed. Cl. 535, 542 (2011), aff’d

without op., 485 F. App’x 435 (Fed. Cir. 2012); cf. Bernhardt v. Sec'y of Health &

Human Servs., 82 Fed. Cl. 290, 291 (2005) (determining only that a non-custodial

parent possessed the right to sue on behalf of the child under Maryland law and

refraining from determining the right apart from state law). Notably, Kennedy’s

interpretation of “legal representative” came in the context of a case in which the

parents of Michael Kennedy filed a petition while their son was a minor. Kennedy,

99 Fed. Cl. at 538. The question was whether Michael’s parents could continue to

prosecuting Michael’s Vaccine Program claim after he turned 18 as “next friend.”

The Court said that the parents could continue to act as petitioners because, in part,

Michael was disabled. Id. at 542.

Thus, Kennedy supplies some support for an argument that Mr. Hodge’s

mother (Ms. Elson) could act as the “legal representative” of Mr. Hodge due to his

disability. (In contrast, Ms. Elson could not have initiated the lawsuit in her

capacity as Mr. Hodge’s “parent” because the Vaccine Act authorizes the parent of

a minor to file suit and Mr. Hodge was not a minor when he was vaccinated.)

However, it is not absolutely clear whether a person — even a mother — may file

a Vaccine Program petition for a disabled person without first establishing his or

her status as a “legal representative” under the pertinent state law. Spates v. Secʼy

of Health & Human Servs., 76 Fed. Cl. 678, 681 n.1 (2007) (recognizing an

ambiguity in “whether a parent is a legal representative per se, irrespective of state

law, or whether a parent must simultaneously qualify as a legal guardian under

state law to be a legal representative under the Act”).

9

If, for the sake of argument, it is assumed that Ms. Elson qualifies as Mr.

Hodge’s “legal representative” without ever actually having been appointed as a

legal representative, that answer only leads to the second question, which is even

more difficult. The Secretary’s argument is that the Vaccine Act “empowers the

legal representative of a disabled person with the right and the obligation to

advance [a] Vaccine Act claim.” Resp’t’s Mem. at 9. The critical word is

“obligation.” The Vaccine Act grants the “legal representative” a “right” to file a

petition. But, saying there is a “right” to do something is not the same as saying

there is an “obligation” to do it.

On this point, Mr. Hodge cited two cases that address responsibility for

initiating litigation when the injured person is an incapacitated adult for whom a

legal guardian has not been appointed. The older case is Clifford ex rel. Clifford v.

United States, 738 F.2d 977 (8th Cir. 1984).

In October 1976, Allen Clifford was 24 years old and suffering from

depression with suicidal tendencies. Physicians from the Veteran Administration

prescribed a medication and Allen Clifford overdosed on that medication, leading

to a coma. In January 1979, Mr. Clifford’s father, Dewey Clifford, was appointed

as his son’s guardian. Shortly less than two years later, Mr. Clifford filed an

administrative claim. The issue in litigation was whether the claim was timely

filed.

Reversing the district court, the Eighth Circuit held that the cause of action

did not accrue in October 1976, when the alleged negligence took place. Instead,

the Court of Appeals held that the cause of action accrued when the guardian was

appointed for two reasons. First, the circuit court found significant that the

complaint alleged that the defendant’s negligence prevented Allen Clifford from

knowing he was harmed and from filing the lawsuit. The circuit court did not want

to let the United States benefit from an alleged wrong. Second, “Allen was an

emancipated adult, and neither his girlfriend nor his family had a legal duty to act

on his behalf.” Id. at 979.

Clifford was a basis for the second case Mr. Hodge cited: Miller v.

Philadelphia Geriatric Center, 463 F.3d 266 (3d Cir. 2006). Henry Miller suffered

from developmental delay throughout his life. “Despite this severe impairment, no

one was ever appointed his legal guardian.” Id. at 268. In 1988, one of Henry’s

10

doctors prescribed medications. In October 1995, an attending physician at

another hospital told Henry’s sister, Vicki Miller, that these medications were

harming Henry. After Henry died in 1997, Ms. Miller initiated legal actions

against various entities, including the United States. Id. at 269.

The question on appeal was whether the two-year statute of limitations

found in the Federal Tort Claims Act barred the causes of action. The government

argued that the survivor claim accrued in October 1995 when Ms. Miller became

aware of the injury. Ms. Miller argued for September 24, 1997, the date Henry

Miller died. Id. at 272-73. A divided panel of the Third Circuit held that the later

date was the date of accrual for the survivor claim. The Third Circuit explained:

Miller argues that the District Court erred by

looking to her rather than to the decedent as the proper

person to whom the reasonable person standard of the

FTCA discovery rule applies. We agree.

The record is quite clear that, although Miller

closely monitored her brother’s health and treatment, she

was not his legal guardian. Even though she was not his

legal guardian, the District Court nonetheless looked to

Miller to determine when any lawsuit should have been

filed. This was error. Miller would not have had the

authority to file a suit on the decedent’s behalf while he

was alive unless she was appointed his guardian.

Id. at 273.

Procedurally, neither Clifford nor Miller is entirely on all fours with Mr.

Hodge’s case because both Clifford and Miller were concerned with when the

cause of action should have been discovered pursuant to the Supreme Court’s

decision in United States v. Kubrick, 444 U.S. 111 (1979). Because the discovery

rule does not delay the start of the accrual of the statute of limitations for the

Vaccine Act, Cloer, 654 F.3d at 1340, Mr. Hodge is not pursuing an argument

based on when he discovered that the vaccines injured him. Nonetheless, Clifford

and Miller illustrate the point that Ms. Elson lacked the authority to file a petition

11

for Mr. Hodge until she was appointed guardian.6 The Secretary did not address

either Clifford or Miller. See Resp’t’s Br., filed Nov. 20, 2015.

The Secretary’s interpretation of the Vaccine Act would create an

unworkable system. An unappointed “legal representative” would be required to

file a lawsuit on behalf of a disabled person whom he or she did not know he or

she was representing. The text of the Vaccine Act does not suggest that Congress

intended to limit the opportunities for disabled people to bring claims on their own

behalf. The Secretary’s legal argument is not consistent with general principle of

equity that underlie the equitable tolling doctrine.

Consequently, petitioners in the Vaccine Program may invoke equitable

tolling based upon mental illness. Whether Mr. Hodge’s request for equitable

tolling fulfills the requirement of extraordinary circumstances must be analyzed

according to the facts and evidence.

II. Legal Standard

The second legal question is: in cases involving a claim for equitable tolling

due to mental incapacity, what must the claimant show? The parties agree that the

starting point, at least, is Barrett.

In Barrett, the Federal Circuit interpreted 38 U.S.C. § 7266(a), which

establishes a 120-day deadline for an appeal from the Board of Veterans’ Appeals

to the Court of Appeals for Veterans Claims, to allow for claims of equitable

tolling based on mental illness. 363 F.3d at 1318. The Federal Circuit stated that

to gain the benefit of equitable tolling, “a veteran must show that the failure to file

was the direct result of mental illness that rendered him incapable of ‘rational

thought or deliberate decision making,’ . . . or ‘incapable of handling [his] own

affairs or unable to function [in] society.’” Id. at 1321 (citations omitted).

6

For additional views on whether the appointment of a guardian for a mentally

incompetent adult should toll the running of the statute of limitations, see William M. Schrier,

The Guardian or the Ward: For Whom Does the Statute Toll?, 71 B.U. L. Rev. 575 (1991).

12

The Secretary stated that Barrett “does establish the test for determining

whether mental illness may toll the statute of limitations.” Resp’t’s Mem., filed

Sept. 30, 2015, at 10 (capitalization changed without notation).7 Mr. Hodge

describes Barrett as “instructive,” but believes that there should be a “totality of the

circumstances” test. Pet’r’s Mem., filed Sept. 30, 2015, at 2.

Mr. Hodge’s argument to add to the test set forth in Barrett is not necessary.

The various factors that Mr. Hodge identifies, such as a lack of ability to

communicate and lack of ability to complete life’s activities, are simply aspects of

being “incapable of handling his own affairs.”

When a claimant establishes that he is “incapable of handling his own

affairs,” the claimant is entitled to equitable tolling. Significantly, a mentally ill

person is not required under Barrett to demonstrate due diligence in pursuing legal

remedies. The Federal Circuit was certainly aware that “due diligence” was a

factor in claims for equitable tolling as the government had argued that equitable

tolling was limited to two situations, including when the claimant has “actively

pursued his judicial remedies.” Barrett, 363 F.3d at 1318, quoting Irwin, 498 U.S.

at 96. However, the Federal Circuit did not incorporate any diligence requirement

in defining what a person with a mental illness must show to gain the benefit of

equitable tolling.

Requiring mentally ill claimants to show both that they were not capable of

rational decision-making and that they were diligent in pursuing their legal rights

would be like attempting to fit a square peg into a round hole. A person whose

mental illness is so debilitating that he (or she) cannot function in society is highly

unlikely to be capable of filing any sort of petition. Conversely, any steps to

advance the legal claim would likely be considered evidence that the person could

handle his (or her) affairs. For these reasons, claimants for equitable tolling based

7

In the context of arguing whether equitable tolling for mental illness is consistent with

the Vaccine Act, the Secretary attempted to distinguish Barrett, a case arising in the veterans’

context, from the present Vaccine Program case. This decision does not address Barrett in that

context because the Vaccine Act answers the question. See section I above.

13

upon mental illness are not required to show diligence. They must fulfill only the

standard set forth in Barrett.8

III. Facts

The previous two sections addressed issues of law — whether the Vaccine

Act permits equitable tolling based upon a disability and whether petitioners with a

disability are required to show diligence in pursuing their legal rights. The

remainder of the decision places these rulings in the context of Mr. Hodge’s case,

both in terms of the pleadings and the evidence.

A. Pleadings

Before addressing the evidence related to whether Mr. Hodge lacked the

capacity to manage his own affairs, the undersigned considers first the Secretary’s

argument that would obviate this examination. The Secretary contends that Mr.

Hodge has admitted that the reason he did not file his petition sooner was that he

did not know that a vaccine injured him until July 2009.

The legal basis for the Secretary’s argument is the declaration that “equitable

tolling under the Vaccine Act due to unawareness of a causal link between an

injury and administration of a vaccine is unavailable.” Cloer, 654 F.3d at 1345.

8

Mr. Hodge argues that he met any requirement for diligence. See Pet’r’s Mem., filed

Oct. 20, 2015, at 6-9. He asserts that: “In the vaccine injury context, pursuing one’s rights means

visiting health care facilities that are available to that particular petitioner.” Id. at 7. However, it

is far from clear that for purposes of qualifying for equitable tolling, diligence in seeking medical

attention qualifies as diligence in pursuing legal remedies. See Resp’t’s Br., filed Nov. 20, 2015,

at 3 (“There is no basis to equate the pursuit of medical care with the pursuit of legal rights

through reasonably diligent efforts to timely file a claim”). For one example of diligence in

pursuing legal remedies that qualified for equitable tolling, see Mojica v. Sec’y of Health &

Human Servs., 102 Fed. Cl. 96 (2011) (recognizing equitable tolling when petitioner’s attorney

delivered the petition to an express mail service that lost the petition).

14

Both parties recognize this restriction for equitable tolling. See Pet’r’s Br., filed

Dec. 4, 2015, at 1-2, Resp’t’s Br., filed Nov. 20, 2015, at 7.

The factual basis for the Secretary’s argument is a series of statements Mr.

Hodge made early in the litigation. See Resp’t’s Mem., filed October 1, 2014, at

3-7, Resp’t’s Br., filed Nov. 20, 2015, at 7. These statements begin with the

petition: “Up until now [July 2009], doctors have told Jeremy and his mother that

the symptoms he has been describing were probably due to mental issues, so they

have had absolutely no reason to suspect that he has had a vaccine related injury.”

Pet., filed July 15, 2009, at ¶ 9. The petition also explains that the event that

alerted Ms. Elson to the possibility that a vaccine injured her son was an MRI

conducted on May 18, 2009. Id. 9; accord Pet’r’s Mem., filed Jan. 31, 2015, at 10

(the “MRI was crucial to the doctor’s determination that [Mr.] Hodge had an injury

rather than a mere psychosis”).

Three years after his petition was filed, Mr. Hodge continued to make

statements that suggested his failure to file within the time the statute of limitations

permitted was due to an unawareness that a vaccine caused his injury. When Mr.

Hodge responded to the Secretary’s argument that his case should be dismissed

due to an untimely filing, Mr. Hodge asserted that “none of the medical

professionals who treated Jeremy objectively recognized his complaints of rapid

eye-movement, numbness, dizziness, joint and back pain, headache, or behavior

changes as a first symptom, onset, or sign of vaccine injury nor did they recognize

a vaccine-induced aggravation of a pre-existing condition.” Pet’r’s Mem., filed

9

Medical records, which were collected after the petition was filed, show that there was

suspicion that a vaccine caused an injury much earlier. In August 2006, Dr. Baca, at Encino-

Tarzano Regional Medical Center, recorded that Mr. Hodge said his “symptoms have been

evident intermittently since receiving hepatitis vaccine earlier this year.” Exhibit 4 at 13.

Approximately one year later, in September 2007, a medical record again reflects that “The

mother is concerned about possible side effects from previous hepatitis vaccinations.” Exhibit

8.5 at 72.

Mr. Hodge used these statements to argue that “Ms. Elson was duly diligent in

advocating for her son’s rights because she consistently expressed during each doctor visit that

[Mr.] Hodge experienced severe health problems following the Hepatitis vaccinations.” Pet’r’s

Mem., filed Jan. 15, 2015, at 9-10.

15

Jan. 30, 2014, at 1-2. Mr. Hodge repeated this later in his brief: none of Mr.

Hodge’s various symptoms

were indicative of a vaccine-related aggravation of a pre-

existing condition to the medical profession at large

because - despite Mrs. Elson’s efforts to emphasize to

doctors that Hodge’s condition worsened following these

vaccinations - Hodge’s various doctors continued to find

unrelated diagnoses. . . . Only after Hodge’s MRI in

2009, three years after he received the vaccinations in

2006, did the doctors responsible for treating Hodge

determine he even had an injury

Id. at 6-7. Mr. Hodge again emphasized his lack of knowledge when he argued

that before the 2009 MRI, he “was unaware and lacked evidence of his underlying

neuroborreliosis to conclude the Hepatitis B vaccine caused a sequela of that

condition.” Id. at 12.

Thus, the clear thrust of Mr. Hodge’s initial response to the motion to

dismiss was to argue for something like the discovery rule. 10 He changed tack in

his sur-reply. There, he argued for equitable tolling based upon his “due diligence

in attempting to file his claim in spite of extraordinary circumstances.” Pet’r’s

Reply, filed Oct. 1, 2014, at 4 (capitalization changed without notation).

On remand, the Secretary, as noted above, cites some of these assertions as a

basis for arguing that Mr. Hodge “admits that his petition was filed late because he

was unaware that he may have suffered a vaccine-related injury.” Resp’t’s Mem.,

filed Oct. 1, 2015, at 5. If it were correct that Mr. Hodge’s lack of awareness

caused him to miss the deadline for filing within the statute of limitations, then

equitable tolling could not save his action. Cloer, 654 F.3d at 1345.

In juxtaposition, Mr. Hodge argues that his “mental illness caused his

untimely filing, not his lack of awareness of his injury.” Pet’r’s Mem., filed Oct.

10

In a single sentence of his brief, Mr. Hodge mentioned mental disability and cited

Barrett. See Pet’r’s Mem., filed Jan. 31, 2014, at 8.

16

16, 2015, at 14 (capitalization changed without notation). However, the remainder

of the section below this heading does not develop this argument very

significantly. Mr. Hodge’s response to the Secretary’s arguments regarding

statements in his petition is found later on pages 22-26. In that section, Mr. Hodge

argued that the precedent controlling the interpretation of the statute of limitations

that was effective on July 15, 2009, recognized a discovery rule. See id. at 22-26,

citing Markovich v. Sec’y of Health & Human Servs., 477 F.3d 1353 (Fed. Cir.

2007). Markovich, however, did not endorse the discovery rule. In linking

Markovich and the discovery rule, Mr. Hodge, as the Secretary stated,

“misunderstands the holding.” Resp’t’s Br., filed Nov. 20, 2015, at 8 n.5.

The parties’ arguments demonstrate a conundrum in the interplay between

the discovery rule and equitable tolling for mental illness. See Garcia v.

Brockway, 526 F.3d 456, 465 (9th Cir. 2008) (en banc) (differentiating discovery

rule and equitable tolling but recognizing they are frequently confused); Oshiver v.

Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1388 (3d Cir. 1994) (application

of the discovery rule and equitable tolling “invite confusion”); cf. Martinez v.

United States, 333 F.3d 1295, 1319 (Fed. Cir. 2003) (en banc) (discussing

equitable tolling and accrual rule). When Mr. Hodge thought that the discovery

rule would delay the accrual of the statute of limitations, he made assertions that

suggested that he did not know about his vaccine injury. See Pet. ¶ 9. After the en

banc Federal Circuit held that the Vaccine Act was not consistent with the

discovery rule in Cloer, the Secretary argues that Mr. Hodge is still trying to assert

the discovery rule based upon initial pleadings. Resp’t’s Mem., filed Sept. 30,

2015, at 5.

Mr. Hodge’s pleadings from before the motion for review can be seen as

inconsistent with his current position. In his petition and in his argument against

the motion to dismiss, he seems to have admitted that his lack of knowledge that a

vaccine injured him caused him to delay filing his petition until after the May 2009

MRI. Pet. ¶ 9, Pet’r’s Mem., filed Jan. 30, 2014, at 1-2, 6-7, 12.11 However, not

11

Mr. Hodge attempted to explain the statements appearing in his 2009 petition by

arguing that they were consistent with Markovich. While there are some questions about the

soundness of this argument, Mr. Hodge can use Markovich to excuse only the statements made

in 2009. Mr. Hodge has not attempted to explain why his arguments in his 2014 brief continued

17

all admissions constitute binding admissions. See Paice LLC v. Toyota Motor

Corp. 504 F.3d 1293, 1312 (Fed. Cir. 2007) (finding that in a patent infringement

case, the district court did not err in treating “the statement as merely an evidential

admission — as opposed to a conclusive admission”).

Rather than finding that Mr. Hodge’s claim for equitable tolling fails simply

because his pleadings focused on the wrong legal theory, the undersigned will

consider all the evidence. See 42 U.S.C. § 300aa−13.

B. Medical Records and Expert Commentary on Them

On remand, the parties have presented thorough accounts of Mr. Hodge’s

medical history, emphasizing his mental condition. In addition, the parties retained

individuals to offer opinions about Mr. Hodge’s competency. Before authoring

their reports, Dr. Dunn and Dr. LaRusso reviewed Mr. Hodge’s medical records.

Exhibit A at 1, exhibit C at 2-4. Their reports provide helpful information about

Mr. Hodge’s mental status during the critical time from 2006 through July 2009.

In contrast, Dr. Dasher did not identify what records he reviewed and did not cite

any medical records. 12 This lack of specificity limits the usefulness of Dr.

Dasher’s report, although Dr. Dasher apparently treated Mr. Hodge at Olive View

in mid-2008.13

The undersigned has reviewed the reports of Dr. Dasher, Dr. Dunn, and Dr.

LaRusso. Their commentary upon Mr. Hodge’s symptoms are provided in the

context of the following chronology. The recitation of Mr. Hodge’s history begins

before his vaccination to provide context for later events. The review of the

to be based upon his lack of knowledge, an argument that the en banc Federal Circuit rejected in

Cloer in 2011.

12

Dr. Dasher states that Mr. Hodge has had a limited ability to perform daily activities

and “[t]his process has been going on for years prior to seeing me by my review of his records.”

Exhibit 22 at 1.

13

Dr. Dasher has explained the lack of records from his treatment of Mr. Hodge in mid-

2008 by noting that a fire destroyed medical records at Olive View. Exhibit 27. The

undersigned has confirmed that in November 2008, the Sayre Fire destroyed a building at Olive

View that housed medical records. Exhibits 1000-01.

18

medical history stops shortly after the petition was filed in July 2009, because

events temporally distant from the date the petition was filed are not likely to

provide information relevant to Mr. Hodge’s mental capacity in the time covered

by the statute of limitations.

1. From Birth through Vaccinations

Mr. Hodge was born on May 17, 1987. Exhibit 3. According to a record

created in 2007, Mr. Hodge’s family had a “strong family [history of] mental

illness.” Exhibit 11 at 3. This record states that Mr. Hodge’s father suffered from

bipolar disorder and attention deficit disorder (ADD). Id.; see also exhibit 5 at 2.

A grandmother was a “hoarder.” Exhibit 11 at 3; see also exhibit 5 at 2 (indicating

a grandparent possibly had obsessive-compulsive disorder (OCD)). Another

record states Mr. Hodge’s great-grandfather and grandfather were both diagnosed

with bipolar disorder. Exhibit 10 at 2; see also exhibit 10 at 69 (slightly different

family history of mental illness), exhibit 14 at 442.

The medical records from Mr. Hodge’s pediatrician dating back to his early

years recount relatively routine illnesses associated with childhood. See exhibit 3,

passim. On September 28, 2004, when Mr. Hodge was 17 years old, Ms. Elson

called the pediatrician to report that her son “was put on Adderall per psych.”

Exhibit 3 at 4. The specific reason for Adderall was not given in the pediatrician’s

record.

According to records created years later, in December 2009, Mr. Hodge was

bitten by a tick while hiking in Big Sur. Exhibit 7 at 22. The tick bite was not

treated. Id. at 34. Later records tend to associate a decline in Mr. Hodge’s

functioning with the tick bite. Id. at 22, 45-46; exhibit 13 at 15.

At the age of 18, Mr. Hodge appeared at Noble Community Choice Provider

Medical Group for an adolescent health maintenance exam. Exhibit 5 at 2. It

appears that Mr. Hodge completed a “‘STAYING HEALTHY’ ASSESSMENT.”

Id. at 5. 14 In response to the question do you “[o]ften feel sad, down, or hopeless,”

14

The assessment consists of a series of questions to which one completing the

assessment answers the question by placing a check in the box “no,” “yes,” or “skip.”

19

Mr. Hodge checked the box marked “yes.” Id. The doctor’s handwritten notes,

which are difficult to read, indicate that Mr. Hodge was positive for OCD, which

started at age 17 years. Id. at 2. The plan included vaccinations against hepatitis A

and hepatitis B. Id. at 2, 7.

On April 25, 2006, Mr. Hodge returned to Noble Community. Exhibit 5 at

3. The intake portion of the form indicates that Mr. Hodge was returning for

follow-up. Id. The remainder of the form is difficult to understand. However, the

plan for a second dose of the hepatitis B vaccination is clear. Id. at 3, 7.

Dr. Dunn’s opinion is that Mr. Hodge did not lack capacity to function

before he was vaccinated. Although Mr. Hodge had already been diagnosed with

OCD, “this diagnosis does not equate to a lack of capacity.” Exhibit C at 6.

2. Alleged Initial Adverse Reaction to Vaccinations –

June 2006

On June 2, 2006, Mr. Hodge and Ms. Elson appeared at the emergency

department at Valley Presbyterian Hospital. Exhibit 6 at 1-12. Mr. Hodge’s chief

complaint was “dizzy/eye movement disturbances.” Id. at 7. In addition to these

problems, the history of present illnesses stated that Mr. Hodge had “back pain,

joint + muscle aches and fatigue since receiving Hep B + A vaccinations 4 mos

ago.” Id. Ms. Elson also reported that blood tests were done and they were

normal. Id. The review of symptoms showed that Mr. Hodge was having frontal

headaches and dizziness. Id. For the physical examination, Mr. Hodge was

oriented x 3 with an intact memory. Id. However his affect was “flat,” not normal.

Id. The doctor ordered a CT scan of the brain without contrast. Id. at 10. The

result was normal. Id.

At discharge, which occurred a few hours after admission, Mr. Hodge’s

condition was reported as “improving” and “good.” Id. at 6. The doctor indicated

that discharge instructions were given for Mr. Hodge to follow-up with his

“PMD,” which may stand for “primary medical doctor.” Id. In addition, the

doctor indicated that with respect to the continuity of care, “[significant other]

demonstrates understanding.” Id. Additionally, the doctor noted in the end of visit

summation that the “mother verbalyzed [sic] understanding.” Id. The diagnosis

20

was “1: Dizziness 2: Arthralgias – Myalgias [status post] Hepatitis Vaccination.”

Exhibit 6 at 6.

In this litigation, the doctor whom Mr. Hodge retained, Carlo Tornatore,

opined that the dizziness and abnormal eye movements that were reported on June

2, 2006, constituted an aggravation of Mr. Hodges “underlying autoimmune

demyelinating disorder.” Exhibit 18 at 2. 15 Because these symptoms triggered the

accrual of the statute of limitations, Mr. Hodge should have filed his petition by

June 2, 2009. However, he did not file his petition until approximately six weeks

later, on July 15, 2009. Thus, the statute of limitations bars his action unless Mr.

Hodge can establish that he is entitled to equitable tolling due to his mental illness.

As to Mr. Hodge’s mental capacity in June 2006, Dr. Dunn stated that

“[t]here was no indication of significant cognitive or mental impairment that would

indicate a lack of capacity.” Exhibit C at 6. Dr. LaRusso also opined that the

record from this visit showed “no evident deficits in orientation or memory.”

Exhibit A at 7.

3. Emergency Room Visit – August 2006

The next medical record reporting some information about Mr. Hodge’s

mental status was created in August 2006. On August 23, 2006, accompanied by

his mother, Mr. Hodge went to the emergency department at Encino-Tarzana

Regional Medical Center. Exhibit 4. Mr. Hodge reported that he was feeling weak

and tired. Id. at 4. Mr. Hodge also stated “‘it’s hard to feel my skin.’” Id. Ms.

Elson stated that his problems “all started [after] Hepatitis vaccine.” Id. The

intake nurse recorded that Mr. Hodge was “oriented x 3,” and “alert.” Id. His

speech was “appropriate.” Id. Under psychological, the nurse checked “lethargic.”

Id. Mr. Hodge had a score of 15 on the Glasgow Coma Scale. Id. at 5. The

Glasgow Coma Scale assesses the response to stimuli in neurologically impaired

people. Dorland’s at 1672.

15

Although Dr. Tornatore has opined that Mr. Hodge suffers from an "autoimmune

demyelinating disorder," Mr. Hodge's treating doctors have not settled upon a diagnosis for him.

21

At Encino-Tarzana, Dr. Ralph M. Baca evaluated Mr. Hodge. Id. at 12-13.

In addition to receiving a history from Mr. Hodge and his mother that was

consistent with the history created by the intake nurse, Dr. Baca conducted a

review of systems. Id. at 12. For psychiatric symptoms, Dr. Baca stated that Mr.

Hodge “denies any depression, anxiety or hallucinations.” Id. After receiving

results from laboratory studies, Dr. Baca discharged Mr. Hodge with an impression

that he suffered from a “neuropathy, etiology uncertain.” Id. at 13. Dr. Baca

recommended that Mr. Hodge follow-up with a private physician. Id.

Dr. Dunn interpreted this record as indicating “an absence of severe

impairment and show[ing] he had capacity.” Exhibit C at 7. This report was

based, in part, on the Glasgow Coma Scale assessment that showed Mr. Hodge did

not have altered or diminished consciousness at that time. Id. Dr. LaRusso stated

Mr. Hodge’s mental capacity in this visit was reasonably similar to his capacity in

the prior visit on June 2, 2006. Exhibit A at 7.

There are no medical records created after Mr. Hodge’s discharge from

Encino-Tarzana until July 10, 2007. See exhibit A at 2 (Dr. LaRusso’s assertion of

no records), exhibit C at 8 (Dr. Dunn’s assertion of no records). However, Mr.

Hodge’s attorney asserts that during this period, Mr. Hodge’s condition “declined

rapidly.” Pet’r’s Mem., filed Sept. 30, 2015, at 16.

4. West Valley Mental Health Center – July 2007

On July 10, 2007, C. Collins, RN, completed a multipage “adult initial

assessment” for West Valley Mental Health Center. Exhibit 11 at 3-8. Nurse

Collins provided information that is helpful in determining Mr. Hodge’s mental

state approximately one year after receiving the vaccinations.

Mr. Hodge completed schooling through only the 10th grade. Id. at 3. He

has no history of working. Id. at 6. He was living with his mother and

grandmother. Id. His mother and father were separated with his father living in a

nearby town. Id.; see also exhibit 10 at 59 (describing Mr. Hodge’s upbringing,

education, and work history).

22

Mr. Hodge was being seen by a private psychiatrist, Dr. John Nasse. Exhibit

11 at 3. Dr. Nasse prescribed Xanax. Id. 16 A family friend referred Mr. Hodge to

West Valley Mental Health Center. Id.

Nurse Collins recorded that Mr. Hodge’s presenting problem was a two-year

history of OCD that presented as “taping, cutting, [and] counting.” Exhibit 11 at 3.

The remainder of Nurse Collins’s notes provides additional details.

[History] of depression. Took Zoloft (4wks) made

him worse, Prozac made him feel suicidal, Racing

thoughts [with] counting. No current SI [suicidal

ideation]. Not sleeping, argumentative at times. No

good sleeping, naps during day, sometimes sleeps too

much. Very pale (+), psychosis, seeing [illegible]. “It’s

bad air, environmental.”

Id.

Nurse Collins completed a mental status evaluation in which she described

him as “not stable.” Exhibit 11 at 7. The form for the mental status evaluation is

divided into 3 columns with different components and an associated list of words.

The following words are circled:

General Description

Grooming and Hygiene: Disheveled

Eye Contact: Erratic

Motor Activity: Restless

Speech: Soft, Slowed, Poverty of Content

Interactional Style: Guarded / Suspicious

Orientation: Disoriented: Time

Intellectual Functioning: Impaired

Memory: Impaired, Remote

Fund of Knowledge: Average

16

Mr. Hodge was not successful in attempting to obtain records from Dr. Nasse. Pet’r’s

Status Rep., filed Nov. 12, 2015.

23

Mood and Affect

Mood: Irritable, Anxious, Known stressor

Affect: Constricted, Blunted, Flat

Perceptual Disturbances

Hallucinations: Visual, Auditory, other

Self-Perceptions: Ideas of reference

Perceptual Disturbances

Hallucinations: Visual, Auditory, other

Self-Perceptions: Ideas of reference

Thought Process Disturbances

Associations: Loose

Concentration: Impaired, Thought blocking, Clouding of

Consciousness, Fragmented

Abstractions: Concrete

Judgements: Impaired between moderate and severe

Insight: Impaired between moderate and severe

Serial 7’s: Poor

Thought Content Disturbance

Delusions: Persecutory, Paranoid

Ideations: Suspicious, Magical thinking

Behavioral Disturbances: Display of anger, Antisocial

Suicidal / Homicidal: Denies Ideation only

Passive: Isolated, Withdrawn

Other: No words circled

Id.

Nurse Collins diagnosed him with “psychosis NOS” and “OCD.” Id. at 8.

Mr. Hodge’s Global Assessment of Functioning (“GAF”) was 30. Id. She

recommended him for a medical evaluation and case management. Id.

As part of this process, a physician reviewed Mr. Hodge’s chart. Dr. Shanthi

Kesham also diagnosed Mr. Hodge with a psychotic disorder NOS and OCD. Id.

at 14. She prescribed Xanax and Seroquel. Id. at 15.

24

Although the intake information from West Valley Mental Health Center

was very thorough, information about actual treatment seems sparse. There is a

single page of progress notes, indicating that Mr. Hodge had not returned for

further services and the case was closed on January 8, 2008. Exhibit 11 at 13.

Dr. Dunn indicated that the visit to West Valley “was in response to a recent

escalation of symptoms and a psychotic break Mr. Hodge experienced.” Exhibit C

at 8. Dr. Dunn noted that Mr. Hodge was prescribed an antipsychotic medication

and an anti-anxiety medication that he had not taken previously. Id. In Dr. Dunn’s

opinion, around July 10, 2007, “Mr. Hodge became severely impaired and lacked

capacity.” Id.

Dr. LaRusso explained that a GAF of 30 meant that “Behavior is

considerably influenced by delusions or hallucinations OR serious impairment in

communication or judgment OR inability to function in almost all areas.” Exhibit

A at 7. Dr. LaRusso stated that by July 2007, Mr. Hodge “is experiencing a

significant psychiatric decompensation.” Id.

5. Emergency Department Visit at West Hills Hospital –

September 2007

On September 9, 2007, Mr. Hodge went to the emergency department at

West Hills Hospital and Medical Center. Exhibit 8 at 53-78. He was complaining

about pain in his chest that was radiating to his left arm and a sore throat. Id. at 57.

His past medical history included OCD and depression. Id.

The typed report authored by the emergency room physician, Alan Kuban,

indicates that the chest pain was not particularly significant. Exhibit 8 at 76-77.

However, Dr. Kuban also comments on Mr. Hodge’s mental health. Dr. Kuban

indicated that:

The patient is [an] extremely vague historian. The

mother almost controls the situation and provides the

history. The patient really is less than forthcoming as far

as descriptions and appears to be unable to make a cogent

history as far as quality of his discomfort, or length of

time.

25

The mother says the patient has a long-standing

history of OCD and that his brain is moving so quickly

that he is almost paralyzed as far as being able to

respond. He has had psychiatric intervention in the past.

He was recently started on dextrostat for possible

ADHD.[ 17] He has noted palpitations however since that

time.

***

The mother also relates the child has had a

significant change in his personality over the last 18

months. She believes this may be related to previous

hepatitis vaccinations. . . . No primary physician.

Id. With respect to medical decision-making, Dr. Kuban stated that Mr. Hodge

“clearly has significant impairment due to his OCD.” Id. at 77. Dr. Kuban

recommended follow-up with a neurologist, possibly at Olive View Medical

Center. He provided instructions and documents to Ms. Elson. Id. at 75, 78.

Dr. Dunn provided relatively little analysis of the record from West Hills.

Dr. Dunn stated: “While he presented as significantly impaired on 9/9/07, and

required assistance from his mother with respect to providing a history of his

condition, he was assessed as alert, fully oriented, and with

‘cognitive/safety/judgment’ intact.” Exhibit C at 10. On the other hand, Dr.

LaRusso stated that Dr. Kuban’s note does not reflect a “mental status/cognitive

exam.” Exhibit A at 8.

6. San Fernando Transitional Youth – November 2007

through February 2008

Approximately two months later, Mr. Hodge and his mother met with

Theresa Kieldgaard, a program manager at the transitional youth outpatient service

of San Fernando Valley Community Mental Health Center (“Transitional Youth”).

17

Through his attorney, Mr. Hodge stated that Dr. Nasse prescribed dextrostat. But,

again, Dr. Nasse’s records have not been obtained. Pet’r’s Status Rep., filed Nov. 12, 2015.

26

Exhibit 10. The form for “adult initial assessment” matched the form used at West

Valley Mental Health Center and the information contained on both forms is

similar. Compare exhibit 11 at 3-8 with exhibit 10 at 2-7. Ms. Kieldgaard stated:

“It is reported that there has been some improvement in client condition since

beginning to take anti-psychotic medications, even though his symptoms persist.

Client’s mother states that he has been much worse in the past.” Exhibit 10 at 2.

Ms. Kieldgaard’s initial assessment, which occurred on November 16, 2007,

provided the following information about Mr. Hodge’s current status.

Client reports that he “counts everything,” to include

words spoken, letters in words, scenes from TV. It is

reported that anything “associated with a bad number, is

contaminated.” Client will not touch anything metal due

to “contamination,” and will not speak about his

medications, past or present, as this contaminates them.

Client engages in repetitive actions, which include his

walking back and forth without purpose, and touching

things numerous times, tapping out rhythms in number

sequences. Client further chants things in order, and

engages in ritualized behaviors around mundane acts, just

brushing teeth, and getting into bed. Client reports

intrusive thoughts, which take the form of violent

thoughts and images, of “weapons in the air,” violence

happening to self or family, and “enemies” in his head. It

is reported that client is “scared of everything.”

Id.

Consistent with the conclusions that other mental health professionals had

reached, Ms. Kieldgaard diagnosed Mr. Hodge as suffering from obsessive-

compulsive disorder. Id. at 7. She also wanted to rule out schizophrenia (paranoid

type) and psychotic disorder NOS. Id. At intake, Mr. Hodge’s GAF was 27. Id.

The plan was for Mr. Hodge to be seen on an outpatient basis in therapy two

or three times per week. Id. at 7, 59. A psychiatrist would also see Mr. Hodge in

the next three to four weeks. Id. at 7.

27

In accord with the plan, Mr. Hodge started to see a therapist, Jennifer West,

on November 20, 2007. Exhibit 10 at 57. Ms. West saw Mr. Hodge multiple times

each week between November 20, 2007 and February 28, 2008. See exhibit 10,

passim.

Also as part of the plan, Mr. Hodge saw a psychiatrist on December 7, 2007.

Id. at 70. Dr. Jones obtained a history that is basically in accord with the records

summarized above. Like Ms. Kieldgaard, Dr. Jones stated that Ms. Elson told Dr.

Jones that Mr. Hodge “feels that if we say the name of his medication, he thinks

the medication will become contaminated.” Id. Apparently, Dr. Jones asked Mr.

Hodge why there was a prolonged latency in answering questions and Mr. Hodge

“admitted to ‘doing rituals in my head.’” Id. at 70. Dr. Jones assigned Mr. Hodge

a score of 41-50 on the GAF. Id. at 69. Dr. Jones prescribed various medications,

although there was a disagreement among Dr. Jones, Mr. Hodge, and his mother

about the best course of medication. Exhibit 10 at 69-70.

Mr. Hodge continued to see Dr. Jones during December 2007. Dr. Jones

eventually increased the dose of Luvox to100 mg every morning and 50 mg at

bedtime as treatment for the OCD and depressive symptoms. Id. at 67. Dr. Jones

also noted that Ms. Elson required “much education [regarding Mr. Hodge’s]

illness and treatment.” Id. at 68. By the end of December, Dr. Jones stated that

Mr. Hodge “[s]tates that he is for the most part great” and that “the rituals have

decreased, the mood has improved and even the psychotic stuff has decreased.” Id.

at 67. Dr. Jones also noted that Mr. Hodge’s mood was “better,” he was well

groomed, and had good eye contact. Id.

In January 2008, Mr. Hodge seemed to be having trouble. At the January 3,

2008 visit, Dr. Jones was unable to see Mr. Hodge and spoke only with Ms. Elson.

Id. at 66. Dr. Jones stated that Ms. Elson told Dr. Jones that Mr. Hodge “was

doing okay on the SSRI, but then all of the sudden he just plummeted.” Id. Ms.

Elson reduced the dosage of Luvox to 25 mg per morning. Id. Ms. Elson spoke to

Dr. Jones alone about concerns with program manager and left without bringing

Mr. Hodge in to see Dr. Jones. Id. Ms. Elson later called stating she no longer

wanted Mr. Hodge to receive care at the facility. Dr. Jones expressed willingness

to continue care and urged Ms. Elson to continue with medication and therapy. Id.

28

Until January 25, 2008, Dr. Jones had noted compliance as “full.” However,

during this visit, he noted “MOTHER SELF-ADJUSTS all meds.” Id. at 65. Dr.

Jones states that Ms. Elson had discontinued Luvox “[n]ow OCD has gotten

worse.” Id. Dr. Jones discontinued Lithium due to Ms. Elson “self-adjusting this

med which could be dangerous.” Id. Dr. Jones stated that Mr. Hodge “cont[inues]

to have depressive, psychotic and obsessive-compulsive [symptoms] in context of

mother self-adjusting doses & starting/stopping meds on own.” Id.

By February 2008, Dr. Jones was recommending that Mr. Hodge be

admitted to an inpatient service at UCLA. See exhibit 10 at 22, 61, 64. On

February 28, 2008, Ms. Elson, Ms. West, and senior people at Transitional Youth

met to discuss “issues that have arisen between client’s mother and staff at

Transitions.” Ms. Elson stated that she intended for her son to start treatment at

UCLA next week. Exhibit 10 at 18. However, Ms. Elson informed Ms. West on

April 23, 2008, that Mr. Hodge had not started at UCLA. Id. at 17.

Again, Dr. LaRusso translated Mr. Hodge’s numeric GAF scores into words.

The GAF of 27 from November 16, 2007 meant that “Behavior is considerably

influenced by delusions or hallucinations OR serious impairment in

communication or judgment OR inability to function in almost all areas.” Exhibit

A at 2; accord exhibit C at 13. The GAF rating from Dr. Jones on December 7,

2007 meant that Mr. Hodge had “Serious symptoms (e.g. suicidal ideation, severe

obsessional rituals, frequent shoplifting) OR any serious impairment in social,

occupational, or school functioning (e.g. no friends, unable to keep a job).” Id.

Dr. LaRusso commented that both “suggest significant impairment.” Id.

However, Dr. LaRusso also noted that while in Transitional Youth, Mr.

Hodge’s “team had the capacity to determine [potentially missing word] even

when his psychiatric symptoms caused impairment.” Exhibit A at 2. Examples of

Mr. Hodge displaying the ability to make decisions included signing forms

consenting to treatment and permitting his mother to participate, attending and

acting appropriately at a holiday party, and declining to being admitted to the

hospital on February 15, 2008. Id. at 2-3.

Dr. Dunn’s analysis was similar to Dr. LaRusso’s analysis. Like Dr.

LaRusso, Dr. Dunn began with the GAF score from November 16, 2007. Dr.

Dunn, then, opined that treatment in the following year, which extended beyond

29

the services provided at Transitional Youth, “was effective and resulted in

significant improvement.” Exhibit C at 13.

7. Miscellaneous Visits – March 2008 through February 2009

Mr. Hodge went to the emergency department on March 8, 2008, at West

Hills Hospital & Medical Center because he felt faint while eating dinner. Exhibit

8 at 47. As part of the doctor’s neurologic examination, the doctor recorded that

Mr. Hodge “answers all my questions appropriately.” Id. at 48. “He obeys my

command appropriately.” Id. The doctor believed the fainting was related to

medications that Mr. Hodge was taking for his OCD. Id.

Although Dr. Dunn quoted from this report, he did not separately analyze it.

See exhibit C at 21. Dr. LaRusso mentioned that during this visit, Mr. Hodge was

asked to authorize a release of medical records from another facility. Exhibit A at

3.

In May 2008, Ms. Elson returned to Transitional Youth to discuss whether

Mr. Hodge should continue to receive services. Exhibit 10 at 14-15. Mr. Hodge

did meet with Ms. West four times in June. Id. at 9-10, 12-13. In the last session,

Ms. West recorded that Mr. Hodge “resisted answering certain questions,

reluctantly explaining that responding specifically about some things ‘triggers’

‘panic,’ and that this is because it ‘taints’ or ‘contaminates’ certain places/things.

[Mr. Hodge] has limited insight as to the nature and reality of these obsessions and

delusions.” Exhibit 10 at 9. This June 23, 2008 appointment was the last time that

Ms. West saw Mr. Hodge. Id. at 8.

On December 4, 2008, Mr. Hodge again went to the emergency department

at West Hill. Exhibit 8 at 1-26. He had a rash on his left thigh and a lesion on his

left eyelid, neither of which required medical intervention. Id. at 26.

Dr. LaRusso noted that Mr. Hodge “was able to sign in to accept treatment

and to decline an Advanced Directive.” Exhibit A at 4. Dr. Dunn remarked that

his overall care level was “1” meaning the person “typically has their full mental

capacities.” Exhibit C at 23, citing exhibit 8 at 13.

30

8. Olive View - UCLA Medical Center – February 2009 and

May 2009

Mr. Hodge went to a different emergency department, this time the one

associated with Olive View - UCLA Medical Center, on February 13, 2009.

Exhibit 14 at 372-78; exhibit 7 at 5-8, 213. Mr. Hodge was complaining about

headaches for one year and also seizure-like activity for six months. Id. at 372.

On this date, blood was drawn for laboratory tests. Exhibit 7 at 213. A note from

the triage nurse states that Mr. Hodge was referred for an MRI. Exhibit 14 at 376;

see also exhibit 7 at 8 (indicating that Mr. Hodge’s mother requested a neurology

follow-up and an MRI). Although the records are not entirely clear, it appears that

Mr. Hodge was discharged with “ACI” (presumably, after care instructions) and

referred to follow up with the next available appointment in the neurology clinic.

Id. at 371.

However, it appears that an MRI was not performed in February 2009. Ms.

Elson’s September 29, 2014 affidavit describes that MediCal – Medicaid refused to

cover an MRI, although Ms. Elson is not specific about when the denial happened.

Exhibit 19 at 2.

Eventually, Mr. Hodge underwent an MRI on May 18, 2009. Exhibit 2.18

The MRI was performed in the absence of any clinical history. The interpreting

doctor, Thu-Anh Hoang, detected multiple lesions in Mr. Hodge’s brain. Id. at 1.

Dr. Hoang “suspect[ed] the presence of demyelinating disease, in the absence of

adequate clinical history.” Id. at 2.19

18

When Mr. Hodge had a repeat MRI done on August 11, 2009, the doctor compared the

results to the May 18, 2009 MRI. Exhibit 7 at 65. The use of the May 18, 2009 MRI as a basis

for comparison supports a finding that the May 18, 2009 MRI was the first MRI performed on

Mr. Hodge.

19

The version of the May 18, 2009 MRI that appears in exhibit 2 was printed on July 8,

2009, and states that Mr. Hodge was admitted on 02/14/09. The report of the May 18, 2009 MRI

also appears as pages 210-11 of exhibit 7. The version in exhibit 7 was printed on July 2, 2010,

and indicates Mr. Hodge was admitted on 06/17/10.

31

These records received little attention from Dr. Dunn and Dr. LaRusso. See

exhibit A at 4, exhibit C at 24.

9. Filing the Petition – July 15, 2009

The May 18, 2009 MRI prompted the filing of the pending petition. See

Pet., filed July 15, 2009. According to the petition, Ms. Elson received the results

shortly before July 13, 2009. Id. ¶¶ 7, 9. Then, on July 13, 2009, Ms. Elson

contacted Mr. Hodge’s attorney, who submitted the petition two days later. Id. ¶ 7.

The petition also asserts that until they received the results of the May 18, 2009

MRI, Mr. Hodge and Ms. Elson “had absolutely no reason to suspect that he has

had a vaccine related injury.” Id. ¶ 9.

10. Post-Petition Medical Records

After May 18, 2009, it appears that the next significant encounter with

medical personnel occurred on August 1, 2009, when Mr. Hodge returned to the

emergency department at Olive View. Exhibit 14 at 369-70.20 Mr. Hodge was

complaining of chest pain on his left side, which Mr. Hodge’s mother reported he

was experiencing on and off for two years. Id. at 369. The triage nurse also

recorded that Mr. Hodge was seeing a “neurologist for headaches, dizziness,

muscle aches, numbness to arms and [abnormal] MRI.” Id. (capitalization changed

without notation).

Mr. Hodge went to the neurology clinic a few days later. Exhibit 7 at 45-46.

The chief complaint was recorded as:

22 [year old] [male] referred for headaches from

Midvalley – Dr. Munoz. Pt. was normal prior to age of

20

The Secretary asserted that Mr. Hodge was at Olive View on June 3, 2009. Resp’t’s

Rep. at 8, citing exhibit 7 at 81. The problem is that although the laboratory studies presented on

this page do say “Adm: 06/03/09,” the reports also indicate that the blood was collected about

one year later on 06/24/2010. Id.

On the other hand, there is a negative test for antibodies for Borrelia burgdorferi, the

causative agent for Lyme disease, that was drawn on June 18, 2009. Id. at 204. Other laboratory

tests were conducted on blood drawn on July 23, 2009. Id. at 194.

32

17, abrupt onset of OCD-like behavior (counting,

checking, etc) over 1 month, then onset of a mental

“fogginess” / “detachment from reality” of insidious

onset that has since waxed and waned with periods of

“normalcy.” By the age 19, mother states he has never

been back to baseline psych level always somewhat

detached/ wierd [sic]. At age 18½ had routine hep B

vaccine, then that night had stabbing spinal back pain

[with] neg CT head. Age 19, pt [complained of]

“arm/neck/back” muscle and skin “tightness” [with]

spams of gradual onset (intermittent). Also has a

numbness of mainly arm that is somewhat persistent but

is intermittently exacerbated. + tick exposure in North

Cal [with] neighbor [with] Lyme [disease]. Mother

convinced [symptoms] [secondary to] hep vaccine.

Id. at 46.

The report also contains a summary of the results from a mental status

examination. “Mr. Hodge was oriented to person, place, time, and situation. His

mood was normal, but his affect was blunted. He had difficulty with serial 7’s, and

he displayed slight perseverations.” Id. at 46. The author (probably Dr. Mishra)

was aware of an MRI and testing for Lyme disease. The author ordered various

tests including another MRI. Id.

Both Dr. Dunn and Dr. LaRusso included information from this appointment

in their reports, but neither provided any opinion about Mr. Hodge’s ability to

function in early August 2009. See exhibit A at 4, exhibit C at 25.

A more significant record came from Dr. Dasher on October 22, 2009. The

chief complaint included “‘Fog in head, memory issues, joint pains throughout

body’ [for] 4-5 years” and “some new onset OCD [symptoms] – incredible urge to

touch, count.” Exhibit 14 at 441.

Dr. Dasher also completed a mental status exam. For most categories, Mr.

Hodge was normal. His mood was anxious and angry, but he denied being

depressed. His obsessions were touching and counting. He denied delusions and

33

auditory hallucinations. There was a question about visual hallucinations. Id. at

446.

Dr. Dasher determined that Mr. Hodge’s GAF was currently 45 and 60

within the past year. Dr. Dasher recommended neurocognitive / personality

testing. Id. at 447.

According to Dr. Dunn,21 a GAF score of 60 does not indicate severe

impairment or lack of capacity. Dr. Dunn concludes that for approximately one

year before Dr. Dasher’s assessment, which was on October 22, 2009, Mr. Hodge

was competent. Exhibit C at 25.

In contrast, Dr. Dasher’s report in this litigation indicates that when Dr.

Dasher has been able to observe Mr. Hodge, Mr. Hodge has not been capable of

handling his own affairs. Exhibit 22 at 2 (point 3). Dr. Dasher’s October 22, 2009

report is the most recent contemporaneously created record that bears upon Mr.

Hodge’s capacity from 2006 to July 2009.

11. Evaluation

The expert reports, which the parties did not submit until after the Court

remanded the case, were very helpful in understanding Mr. Hodge’s capacity. Dr.

Dasher’s opinion is that Mr. Hodge was generally not capable of managing his

affairs, at least in the time that Dr. Dasher was treating Mr. Hodge. Exhibit 22.

Dr. LaRusso opined that “Mr. Hodge suffered a period of significant psychiatric

decompensation beginning on July 7, 2007. . . . There was some improvement in

his condition with therapeutic treatment, and his records show he had a level of

impairment but retained a level of capacity to make decisions.” Exhibit A at 6.

Dr. Dunn concluded that just before July 10, 2007, “Mr. Hodge became severely

impaired and lacked capacity. This period of incompetency lasted for

approximately one year, until the middle of 2008.” Exhibit C at 27.

The opinions of Dr. LaRusso and Dr. Dunn that Mr. Hodge lacked capacity

for approximately one year is sufficient to find that Mr. Hodge is entitled to

21

Dr. LaRusso did not address Dr. Dasher’s GAF score of 60.

34

equitable tolling. Thus, the undersigned refrains from making any factual findings

regarding Mr. Hodge’s capacity from April 2006, when he received the first

vaccinations, through the end of June 2007, which is shortly before he was

evaluated at West Valley. The undersigned also refrains from making any factual

findings regarding Mr. Hodge’s capacity after September 2008, which corresponds

to the approximate date at which Dr. Dasher scored Mr. Hodge’s GAF as 60.

The determination that approximately one year of impaired capacity suffices

to entitle Mr. Hodge to equitable tolling is based, in part, on the amount of time by

which Mr. Hodge filed late. Based upon Mr. Hodge’s visit to Valley Presbyterian

Hospital (exhibit 6 at 1-12), Dr. Tornatore opined that Mr. Hodge’s mental

condition was substantially worse on June 2, 2006. Exhibit 18. Thus, Mr. Hodge

should have filed his petition by June 3, 2009. 42 U.S.C. § 300aa−16(a)(2). He

actually filed on July 15, 2009, which is 42 days later.

The parties largely overlooked the significance of the duration of

impairment. Mr. Hodge simply argued that he lacked capacity throughout the time

from April 2006 through July 2009. Pet’r’s Br., filed Oct. 16, 2015, at 16.

Consistent with her argument that equitable tolling for mental illness is not

compatible with the Vaccine Act (see section I above), the Secretary stated that

during this one-year period, an unappointed guardian could have filed a petition for

Mr. Hodge. Resp’t’s Br., filed Nov. 20, 2015, at 10 n.7.

Stronger guidance comes from the Federal Circuit’s opinion in Checo v.

Shinseki, 748 F.3d 1373 (Fed. Cir. 2014), a case that the Secretary cited. There,

Ms. Checo sought veterans’ benefits. However, on July 6, 2011, the Board of

Veterans’ Appeals denied her request. On this date, Ms. Checo was homeless, and

apparently remained homeless until September 27, 2011, when she communicated

a new address to the Department of Veterans Affairs. She received a copy of the

Board’s adverse decision on October 6, 2011, which was within the time permitted

to file an appeal. However, she did not file the appeal until December 7, 2011, 33

days later. Checo, 748 F.3d at 1375.

The Federal Circuit accepted the parties’ contention that the period of

equitable tolling should be measured with a “‘stop-clock’ approach.” Id. at 1380.

Under the stop-clock approach, “the clock measuring the 120-day appeal period is

35

‘stopped’ during the extraordinary circumstance period and starts ticking only

when the period is over.” Id. at 1379.

As a case arising from a claim for veterans benefits, Checo has different

factual underpinnings than a case from the Vaccine Program. Nevertheless, Checo

is a case from the Federal Circuit. Moreover, the reasoning of the “stop-clock

approach” is persuasive. 22 Thus, the undersigned will also use the stop-clock

approach to Mr. Hodge’s case. 23

Therefore, the essential chronology should be restated as follows:

On June 2, 2006, Mr. Hodge’s claim accrued and the clock

representing the 36-month statute of limitations started ticking.

By July 2007, approximately 13 months of time on the statute of

limitations clock had expired and approximately 23 months of time

remained. On July 10, 2007, this clock was stopped because Mr. Hodge was

unable to manage his own affairs.

In September 2008, the statute of limitations clock began ticking

again.

By July 2009, 10 more months had elapsed, but 13 months remained.

Therefore, Mr. Hodge filed his petition within the time permitted by the

statute of limitations as adjusted for equitable tolling.

22

This approach is also consistent with 28 U.S.C. § 2501, stating that a petition may be

filed within three years after the disability ends if the person was under legal disability at the

time the claim accrued.

23

An alternative approach would be to require people lacking mental capacity to manage

their affairs to establish that the incapacity lasted the entire period covered by the statute of

limitations. See Checo, 748 F.3d at 1379-80; MacLennan v. Provident Life & Acc. Ins. Co., 676

F. Supp. 2d 57, 63 (D. Conn. 2009). The Secretary has not made this argument and, therefore, it

is not considered.

36

Consequently, Mr. Hodge’s case will proceed to the merits of evaluating

whether the hepatitis A and hepatitis B vaccinations caused him any harm.

IV. Issues Implicated by Mr. Hodge’s Status as the Petitioner

Mr. Hodge’s claim for equitable tolling based upon a lack of capacity differs

from other claims for equitable tolling based upon an isolated problem. Mojica,

102 Fed. Cl. 96, illustrates a more traditional example of equitable tolling. There,

the petitioners’ attorney sent a petition through an overnight delivery service that

lost the petition. After an unusual series of procedural events (id. at 97-98), the

Court of Federal Claims recognized that the petitioners’ case qualified as an

“extraordinary circumstance” for which equitable tolling was appropriate. Id. at

101. Significantly, after the case was allowed to proceed, the reason for the late

filing and extraordinary circumstance justifying equitable tolling was no longer an

issue.

Mr. Hodge’s case is different in the sense that according to him, his mental

illness has lasted throughout this case.24 This leads to two questions about Mr.

Hodge’s status as the petitioner when the case was originally filed and his

continued ability to act as the petitioner.

As discussed earlier, the Vaccine Act identifies three people who qualify as

petitioners. 42 U.S.C. § 300aa−11(b)(1)(A). In filing his petition, Mr. Hodge

appears to have represented himself as a “person who has sustained a vaccine-

related injury,” which is listed first.

Notably, Mr. Hodge did not take advantage of the statute’s second category

of people who qualify as petitioners: “the legal representative of such person if

such person is a minor or is disabled.” When the petition is brought by the legal

representative of a disabled person, “the petition must also be accompanied by

documents establishing the authority to file the petition in a representative capacity

or a statement explaining when such documentation will be available.” Vaccine

24

Mr. Hodge recognized that before receiving the vaccinations in 2006, he had been

prescribed Adderall and diagnosed with obsessive compulsive disorder. Pet’r’s Mem., filed Oct.

16, 2015, at 15. Mr. Hodge implies that before the vaccinations, he could function as Mr. Hodge

asserts that “Following the second vaccination, he became incapable of rational thought.” Id.

37

Rule 2(c)(2)(C). According to the Rules of the Court of Federal Claims, “an

incompetent person who does not have a duly appointed representative may sue by

a next friend or by a guardian ad litem.” Rule 17(c)(2) of the Rules of the Court of

Federal Claims.

In advancing his claim for equitable tolling, Mr. Hodge seems to admit that

he was disabled. Mr. Hodge states he “was not capable of rational thought,

deliberate decision [making], and unable to function in society when the petition

was filed in July of 2009.” Pet’r’s Mem., filed Oct. 16, 2015, at 15-16. Petitioner

further admits that this disability runs through the present day “render[ing] him

incapable of rational thought, deliberate decision-making and unable to function in

society.” Pet’r’s Mem., filed Dec. 4, 2015, at 12. The petitioner’s characterization

of himself as unable to function in society is consistent with Dr. Dasher’s most

recent report. Exhibit 27. Thus, it would appear that Mr. Hodge’s petition should

have been brought on his behalf by a next friend or guardian ad litem.

A remedy for this potential problem is found in RCFC 17.25 When an

incompetent person does not have a representative (meaning a general guardian or

conservator), a “court must appoint a guardian ad litem — or issue another

appropriate order — to protect” the incompetent person. RCFC 17(c)(2). The

Court of Federal Claims found that a special master’s orders to the parents of an

incompetent (but unrepresented) adult constituted “an appropriate order.”

Kennedy, 99 Fed. Cl. at 543.

Here, the undersigned proposes that Mr. Hodge should have a general

guardian or conservator appointed for him through the California Probate Court.

The reasons for this proposal are several. Mr. Hodge’s claim for equitable tolling

is premised on his lack of ability to manage his own affairs. Thus, someone must

watch out for him. A potential choice in this litigation is to assume that Mr.

Shoemaker, who represents Mr. Hodge as an attorney, is advancing Mr. Hodge’s

best interests. However, the duties of an attorney differ from the duties of a

25

Special masters in the Vaccine Program may use RCFC 17. Kennedy v. Sec’y of

Health & Human Servs., 99 Fed. Cl. 535, 542 (2011), subsequent decision aff’d, 485 F. App’x

435 (Fed. Cir. 2012).

38

guardian ad litem. McCaslin v. Radcliff, 168 F.R.D. 249, 256 (D. Neb. 1996),

aff'd without opinion, 141 F.3d 1169 (8th Cir. 1998).

In addition, although Kennedy states “the Special Master could have

appointed the parents as ‘next friends’ or guardians ad litem,” 99 Fed. Cl. at 542,

the Federal Circuit has not confirmed the extent of a special master’s authority.

Special masters must heed the limits to their authority. See Patton v. Sec’y of

Health & Human Servs., 25 F.3d 1021, 1026 (Fed. Cir. 1994) (“the Office of

Special Masters owes its existence to and derives its powers from the Vaccine

Act”).

This caution seems especially appropriate here because the California

Probate Court is a tribunal whose duties include appointing guardians or

conservators. The California Probate Court, therefore, has extensive experience

with determining who should act as an incompetent person’s guardian or

conservator. The California Probate Court also has a system to oversee the

performance of the guardian or conservator. These features make the California

Probate Court a better forum to determine who should act for Mr. Hodge.

Finally, the California Probate Court’s appointment of an appropriate

representative for Mr. Hodge may expedite resolution of this matter. Assuming

that the special master could and did appoint a next friend, the next friend probably

could not receive the compensation. See Neilson v. Colgate-Palmolive Co., 199

F.3d 642, 656 (2d Cir. 1999) (noting that after district court appointed a guardian

ad litem, the district court did not have to delay approving a settlement for

appointment of general guardian); Noe v. True, 507 F.2d 9, 12 (6th Cir. 1974)

(describing duties of guardian ad litem). In the Vaccine Program, the Secretary

universally (or nearly universally) conditions payments to a minor’s parents on the

parents’ status as guardians appointed by the local probate court. See, e.g., Sucher

v. Secʼy of Health & Human Servs., No. 07-58V, 2012 WL 1030028 (Fed. Cl.

Spec. Mstr. March 2, 2012) (awarding cost for surety bond required for

appointment of conservator); Stewart v. Secʼy of Health & Human Servs., No.

06-287V, 2011 WL 5330388 (Fed. Cl. Spec. Mstr. Oct. 17, 2011) (awarding

compensation for establishing guardianship).

Thus, if Mr. Hodge succeeds in his goal of receiving compensation through

the Vaccine Program, he will, in all likelihood, be required to have a general

39

guardian or conservator appointed for him. 26 Under these circumstances, involving

the California Probate Court earlier, rather than later, may be a more efficient path.

Both parties ARE ORDERED to file briefs addressing the advisability of an

order requiring Mr. Hodge to request an appropriate action by the California

Probate Court. Needless to say, Mr. Shoemaker should present the views of his

client, Mr. Hodge, which may (or may not) align with the views of his mother.

The parties shall file supplemental briefs on this issue in 30 days.

Conclusion

As developed on remand, Mr. Hodge’s argument for equitable tolling

presents several complicated legal issues. These include:

1. Whether the Vaccine Act permits equitable tolling for mental disability or

does the Vaccine Act’s provision that a legal representative of a disabled

person may file a petition preclude the use of equitable tolling for disability?

2. Must petitioners who are claiming equitable tolling for mental disability

establish diligence in pursuing their legal rights to file a claim?

3. For claims of mental disability, must petitioners establish that the disability

impaired their functioning for the entire period covered by the statute of

limitations?

These are questions of law for which there is little (or no) appellate

guidance. As the case law around equitable tolling develops, the conclusions

reached in this decision may need to be revisited.

In addition to these challenging issues of law, Mr. Hodge’s case involves

questions of fact. The primary factual determination is that Mr. Hodge was not

capable of managing his affairs from July 2007 through September 2008. Pursuant

26

Due to the issues involving the statute of limitations and equitable tolling, the parties

have not presented any expert reports addressing whether the hepatitis vaccinations in 2006

harmed Mr. Hodge in some way. Thus, this ruling should not be interpreted as providing any

guidance as to whether Mr. Hodge will be found entitled to compensation.

40

to a “stop-clock” approach to equitable tolling, this period of disability is sufficient

to find that Mr. Hodge is entitled to equitable tolling.

Finally, because Mr. Hodge has stated that he is disabled, the California

Probate Court may wish to appoint a guardian for him. The parties are instructed

to file briefs within 30 days on this topic.

This ruling is intended to answer the Court’s remand. As such, the Clerk’s

Office is instructed to transmit it to the presiding judge. See Vaccine Rule 28.1(a).

However, this ruling does not constitute a “decision” as that term of art is used in

the Vaccine Program. See Currie v. Secʼy of Health & Human Servs., No. 02-

838V, 2003 WL 23218074 (Fed. Cl. Spec. Mstr. Nov. 26, 2003).

IT IS SO ORDERED.

s/ Christian J. Moran

Christian J. Moran

Special Master

41