Chicos v. Secretary of Health and Human Services ( 2020 )

In the Anited States Court of Federal Clauns
OFFICE OF SPECIAL MASTERS
No. 19-778v
Filed: August 23, 2019
(Unpublished)
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INES CHICOS, on behalf of LC,
Petitioner, pro se, Special Master Oler
Pediarix vaccination; seizure disorder;
SECRETARY OF HEALTH AND statute of limitations
HUMAN SERVICES,
Respondent.
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Ines Chicos, pro se, Sunnyside, NY, for Petitioner.
Heather L. Pearlman, U.S. Dep’t of Justice, Washington, DC, for Respondent.
DISMISSAL DECISION!
On May 24, 2019, Ines Chicos (‘Petitioner’) filed a petition for compensation with the
National Vaccine Injury Compensation Program,” alleging that her minor daughter, L.C.,
developed a seizure disorder as a result of her Pediarix vaccinations received on February 9, 2008,
April 5, 2008, and June 9, 2008. Petition (“Pet.”), ECF No. 1.
I. Summary of Medical Records
In conjunction with her petition, Petitioner filed medical records and several articles. Ex.
1-31, ECF No. 1. A birth certificate and vaccination record for L.C. were also included. Ex. 1, 2.
' Although this Decision has been formally designated “not to be published,” it will nevertheless be posted
on the Court of Federal Claims’s website in accordance with the E-Government Act of 2002, 44 U.S.C. §
3501 (2012). This means the ruling will be available to anyone with access to the internet. As provided
by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the decision’s inclusion of certain
kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen days
within which to request redaction “of any information furnished by that party: (1) that is a trade secret or
commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or
similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine
Rule 18(b). Otherwise, the Decision in its present form will be available. Id.
2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L.
No. 99-660, 100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine
Act” or “the Act”). Individual section references hereafter will be to § 300aa of the Act (but will omit that
statutory prefix).
L.C. was born on December 4, 2007 by caesarian section. Ex. 3 at 2. On February 9, 2008,
April 5, 2008, and June 13, 2008, L.C. received three separate doses of Pediarix, along with other
regularly administered vaccinations provided to newborns and infants. Ex. 2 at 1. No medical
records for these visits have been filed.
Petitioner states that in October 2008, L.C. presented to Dr. Basson, a neurologist, for
muscle jerks on the right side of her body. Pet. at 2. On December 2, 2008, L.C. presented with
“h/o jerks and head drops” to New York Presbyterian Hospital, where she was evaluated by Dr.
Murray Engel. Ex. 13 at 6. L.C. underwent video electroencephalography as well as an MRI. Jd.
at 5-6. L.C.’s symptom onset was recorded as October 2008, and she was diagnosed with benign
myoclonic epilepsy. Jd. at 1.
Petitioner states that in February 2009, L.C. was hospitalized at New York University
Langone Center and evaluated by Dr. Daniel Miles. Pet. at 2. She adds that L.C. was admitted in
May 2009 to Montefiore Hospital Center and evaluated by Dr. Sholomo Shinar. /d. Petitioner
recalls that Dr. Shinar diagnosed L.C. with Infantile Spasms. Jd. The records for these
appointments were not filed, although laboratory results ordered by Dr. Shinar in August 2009
were included. See Ex. 14.
On June 7, 2010, L.C. was evaluated by Dr. Joseph Maytal at North Shore LIJ Hospital.
Ex. 15. She was noted as having “spasm-like repetitive movements” from 10 months of age. Id.
at 4. Her EEG results from that visit were normal. Jd.
Petitioner states that on June 20, 2015, L.C. was seen by Dr. John Salerno, who she
described as a “functional doctor.” Pet. at 2. She recalls that Dr. Salerno indicated “[L.C.’s]
clinical course of seizures could be side effect of immunizations.” Jd. No notes from this visit
have been included; however, laboratory results ordered by Dr. Salerno were filed. See generally
Ex. 16.
On April 18, 2017, Petitioner presented to Dr. Steven Wolf at Mount Sinai Beth Israel. Ex.
19. Dr. Wolf diagnosed L.C. with “intractable generalized idiopathic epilepsy without status
epilepticus.” Jd, 1. In his notes, Dr. Wolf noted the medical history provided by L.C.’s parents,
including L.C.’s numerous food sensitivities and the heavy metal testing conducted by Dr. Salerno.
Dr. Wolf further recorded that “mom feels that it is the additives in the vaccinations that caused
the seizures — particularly aluminum.” Ex. 19 at 1-5.
Il. Procedural History
On June 17, 2019, I held a status conference via telephone with the parties to discuss the
issue of the statute of limitations. Following the conference, I issued an Order to Show Cause on
June 20, 2019, directing Petitioner to file a brief explaining why her claim should not be dismissed
as time-barred. ECF No. 7.
3 Dr, Basson’s medical records have not been filed.
2
On August 12, 2019, Petitioner filed a response to my Order to Show Cause, dated August
8, 2019. ECF No. 11. In her brief, Petitioner stated that the Court should apply equitable tolling
and extend the statute of limitations imposed on her petition. Specifically, Petitioner asserts the
following:
1. Petitioner does not believe that she was properly informed of the risks of vaccination
when L.C. received her vaccinations, in part because she states she was not provided
with information regarding all of the possible side effects or the “Vaccine Injury Court
rules.” Jd. at 1. Petitioner argues that “the right to informed consent to any medical
intervention... is a human right” and that “due to the fact that [her] rights to information
were waived, [she] could not exercise [her] rights to apply on time.” Jd, at 1-2.
2. Petitioner does not believe that informed consent was given at the time of vaccination.
According to Petitioner, the Pediarix insert states that data regarding the safety of
administering four doses of Hepatitis B vaccine are limited, and, therefore, “[L.C.] was
subject to unsafe medical procedures without informed consent similar with
Nuremberg and Tuskegee cases.” /d. at 2.
3. Petitioner believes that L.C. was administered aluminum at a much higher quantity than
the “FDA’s upper limit of 5/meg/kg/day.” Jd. at 4.
Petitioner concludes that she was not able to file within the three-year statutory limit “due to a
consistent lack of information about side effects of vaccination, as well as [she] had no idea of
Vaccine Court Injury existence.” Jd. at 6.
I provided Petitioner and Respondent an opportunity to supplement the record and submit
any additional documents. The parties indicated that they had nothing further to add. Respondent
waived his right to brief the issue.
III. Legal Standard
The statute of limitations, or the timeframe within which a person who has sustained a
“vaccine-related injury” must file a claim, is outlined in § 16(a)(2) of the Vaccine Act:
[I]f 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 of the significant aggravation of such
injury.
Id. § 300aa-16(a)(2) (emphasis added). The statute begins to run from the manifestation of the
first objectively cognizable symptom, whether or not that symptom is sufficient for diagnosis.
Carson v. Sec’y of Health & Human Servs., 727 F.3d 1365, 1369 (Fed. Cir. 2013). Whether a
petitioner knows the cause of his injury is not significant for purposes of the statute of limitations.
See Cloer v. Sec'y of Health & Human Servs., 654 F.3d 1322 (Fed. Cir. 2011).
In Cloer, the United States Court of Appeals for the Federal Circuit reiterated the Vaccine
Program’s 36-month statute of limitations. Jd. In doing so, the court recognized that equitable
tolling, an extension of the three-year limit, can be applied in vaccine cases under very rare and
extraordinary circumstances, for example, those involving fraud or duress. Jd. The court cites
Pace vy. DiGuglielmo for the proposition that “equitable tolling requires a litigant to have diligently
pursued his rights, but that ‘some extraordinary circumstances stood in his way.’” /d. at 1344,
quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S. Ct. 1807, 161 L. Ed. 2d 669 (2005). The
statute of limitations and the higher courts’ rulings are binding on my decision.
IV. Discussion
L.C. received her first Pediarix vaccination on February 9, 2008, her second Pediarix
vaccination on April 5, 2008, and her third Pediarix vaccination on June 13, 2008. Ex. 2 at 1.
According to Petitioner, L.C. developed a “severe skin rash on the body” after the first vaccination.
Pet. at 3. In September 2008, L.C. developed “jerks” and presented to Dr. Basson the following
month. Jd. at 1-3. Soon after, L.C. was diagnosed with benign myoclonic epilepsy. Ex. 13 at 1.
The record in this case indicates that “the first symptom or manifestation of onset” occurred
between September and October of 2008. Under the Vaccine Act, Petitioner was required to file
her petition by October 2011. 42 U.S.C. § 300aa-16(a)(2). The petition in this case was filed on
May 24, 2019, more than ten years after symptom onset and more than seven years out of time.
In reviewing Petitioner’s submissions and considering Petitioner’s representations during
the status conference and in her response to the Order to Show Cause, I can find no basis to toll
the statute of limitations. Petitioner does not claim to be the victim of fraud or duress, within the
applicable legal boundaries of those concepts. Because no “extraordinary circumstances”
prevented Petitioner from filing her petition, the statute of limitations in this case is not subject to
equitable tolling. In fact, on June 20, 2015, Dr. Salerno told Petitioner that L.C.’s “clinical course
of seizures could be [the] side effect of immunizations.’ Pet. at 2. While a lack of knowledge
regarding a possible causative link does not warrant tolling of the statute, even after Petitioner was
informed of a purported connection between L.C.’s seizures and her vaccinations, Petitioner still
waited more than three years to file her petition.
Accordingly, I find that Petitioner’s claim is barred by the statute of limitations. I do
recognize and appreciate Petitioner’s concern for L.C. and her medical condition. This Court
simply does not have the jurisdiction to entertain her petition.
Thus, this case is DISMISSED as untimely. The Clerk shall enter judgment
accordingly.
A copy of this decision shall be sent to Petitioner by regular first-class mail as well as
certified mail at the following address:
Ines Chicos
47-20 42" Street, Apt. 2H
Sunnyside, NY 11104
4 As indicated previously, no records from Dr. Salerno, “a functional doctor,” were ever filed. Pet. at 2.
4
Any questions regarding this Order may be directed to my law clerk, Devarati Das, at 202-
357-6347 or by email at devarati_das@cfc.uscourts.gov.
IT IS SO ORDERED.
Aux 2 Oay.
Katherine E. Oler
Special Master