Brice v. Secretary of Health and Human Services

• Decision Date: 23 February 2001
• Docket Number: No. 99-5144,V,PETITIONERS-APPELLANT,RESPONDENT-APPELLEE,99-5144
• Citation: 240 F.3d 1367
• Parties: (Fed. Cir. 2001) JOSEPH OSLER BRICE AND LAURAJEAN COUNCILL BRICE, ON BEHALF OF THEIR SON, JOSEPH TILGHMAN BRICE,SECRETARY OF HEALTH AND HUMAN SERVICES,
• Court: U.S. Court of Appeals — Federal Circuit

Page 1367

240 F.3d 1367 (Fed. Cir. 2001)

JOSEPH OSLER BRICE AND LAURAJEAN COUNCILL BRICE, ON BEHALF OF THEIR SON, JOSEPH TILGHMAN BRICE, PETITIONERS-APPELLANTS,

V.

SECRETARY OF HEALTH AND HUMAN SERVICES, RESPONDENT-APPELLEE.

No. 99-5144

U.S. Court of Appeals, Federal Circuit

February 23, 2001

Appealed from: United States Court of Federal Claims

Peter Harwood Meyers, George Washington University Law School, of Washington, Dc, argued for petitioners-appellants.

Mark W. Rogers, Attorney, Torts Branch, Civil Division, Department of Justice of Washington, Dc, argued for respondent-appellee. With him on the brief were Helene M. Goldberg, Director; and John Lodge Euler, Deputy Director.

Before Newman, Clevenger, and Dyk, Circuit Judges.

Opinion for the court filed by Circuit Judge DYK. Dissenting Opinion filed by Circuit Judge NEWMAN.

DECISION

DYK, Circuit Judge.

In Weddel v. Secretary of Health and Human Services, 100 F.3d 929 (Fed. Cir. 1996), this court held that equitable tolling of the limitations period was not available for claims arising under section 16(a)(1) of the National Childhood Vaccine Injury Act of 1986 ("Act"), 42 U.S.C. 300aa-1 et seq., which applies to vaccines administered prior to the effective date of the Act ("pre-Act cases"). This case presents the question whether equitable tolling is available for claims arising under section 16(a)(2) of the Act, which applies to vaccines administered after the effective date of the Act ("post-Act cases"). We hold that equitable tolling is not available in such cases.

I.

Congress established the National Vaccine Program in 1986 "to achieve optimal prevention of human infectious diseases through immunization and to achieve optimal prevention against adverse reactions to vaccines." 42 U.S.C. 300aa-1. As part of this program, Congress established the National Vaccine Injury Compensation Program ("Program") to provide compensation for vaccine-related injuries and deaths. See 42 U.S.C. 300aa-10.

The Act creates a federal no-fault system for compensating injuries causally connected to vaccines. The Act establishes a claims procedure involving the United States Court of Federal Claims and special masters, see 42 U.S.C. 300aa-12, and it provides two separate mechanisms through which a party seeking compensation may establish that an injury was caused by a vaccine. First, a causal connection between vaccine and injury is rebuttably presumed if the administration of the vaccine and the particular injury are related in time as specified in the Vaccine Injury Table of 42 U.S.C. 300aa-14. See 42 U.S.C. 300aa-11(c)(1)(C)(i), 300aa-13(a)(1). If the injury is not listed in the Table, or if its symptoms are not evident within the time frame specified by the Table, an injured claimant faces a more demanding evidentiary burden. Such a claimant must prove that the vaccine was the actual cause of the injury. See 42 U.S.C. 300aa-11(c)(1)(C)(ii). As this court has noted, "[g]iven the vagaries of human illnesses, particularly in young children, that is not always an easy burden to carry." Munn v. of Dep't of Health and Human Servs., 970 F.2d 863, 865 (Fed. Cir. 1992).

The Act does not entirely preclude traditional tort remedies. However, before an individual may bring an action seeking more than $1,000 in damages in state or federal court, he must first file a petition under the Program. See 42 U.S.C. 300aa-11(a)(2)(A). The filing of a petition under the Program stays the running of state statutes of limitations. See 42 U.S.C. 300aa-16(c). The Act then gives a petitioner the choice to accept the judgment obtained under the Program and surrender his tort rights or to reject that judgment and pursue a civil action for damages. See 42 U.S.C. 300aa-21(a). We need not decide in this case whether a petitioner who fails to file a timely petition under the Program may still pursue traditional tort remedies.

In establishing the Vaccine Program, two concerns motivated Congress. First, it was concerned that tort liability would make production of vaccines economically unattractive, potentially discouraging vaccine manufacturers from remaining in the market. See H.R. Rep. No. 99-908, at 6-7 (1986), reprinted in 1986 U.S.C.C.A.N. 6344, 6347-48. Congress thus included in the Act certain federal modifications of state tort law, including limits on punitive damage awards and a rule that a vaccine manufacturer shall not be held liable in post-Act cases if an injury resulted from unavoidable side effects provided the vaccine was properly prepared and accompanied by proper directions and warnings. See 42 U.S.C. 300aa-22(b)(1), 300aa-23(d). Second, Congress was concerned that the traditional tort system was inadequate to compensate many who were injured by vaccines. Congress noted that the opportunities of those injured by vaccines to seek redress under the traditional tort system were "limited, time-consuming, [and] expensive," and that for the injured, "mounting expenses must be met." H.R. Rep. No. 99-908, at 6, reprinted in 1986 U.S.C.C.A.N. at 6347. Congress intended awards under the Act to be made "quickly, easily, and with certainty and generosity." H.R. Rep. No. 99-908, at 3, reprinted in 1986 U.S.C.C.A.N. at 6344. Congress also emphasized the importance of speed and the quick resolution of petitions: "The entire proceeding -- from date of filing through Special Master proceedings and court review -- is to take place as expeditiously as possible . . . . [M]uch of the equity in limiting compensation and limiting other remedies arises from the speed and reliability with which the petitioner can expect judgment; without such quick and certain conclusion of proceedings, the compensation system would work an injustice upon the petitioner." H.R. Rep. No. 99-908, at 17, reprinted in 1986 U.S.C.C.A.N. at 6358.

II.

Joseph Tilghman Brice ("Tilghman") and his parents, Dr. Laurajean Councill Brice and Dr. Joseph Osler Brice, seek compensation under the Act for injuries that Tilghman allegedly suffered from a Measles, Mumps, and Rubella ("MMR") vaccination he received on April 30, 1992. Nine days later, on May 9, 1992, Tilghman suffered a seizure, which petitioners contend constituted the first manifestation of a vaccine-related injury. Section 16(a)(2) of the Act specifies that for a post-Act vaccine such as Tilghman's MMR vaccine, "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 of the significant aggravation of such injury." 42 U.S.C. 300aa-16(a)(2). Thus, absent any tolling, the limitations period for the Brices' petition expired on May 9, 1995, over seven months before they filed their petition on December 19, 1995. ¹

Following his vaccination, Tilghman experienced delays in meeting his developmental milestones. On March 30, 1995, Dr. Eileen Vining, a neurologist, diagnosed Tilghman with a residual seizure disorder. Dr. Vining told Tilghman's mother that Tilghman had suffered an MMR reaction and suggested that the Brices file a claim under the Vaccine Program. At this point, the Brices had approximately five weeks left before the end of the limitations period. The Brices sought information on the Vaccine Program. They also began compiling Tilghman's medical records, which they say they believed were required to file their petition. However, Tilghman's mother did not send out requests for Tilghman's medical records until June 19, 1995. The Brices also unsuccessfully sought counsel to assist them in filing their petition, at least in some instances after the statutory deadline had passed. The Brices filed their Vaccine Act petition pro se on December 19, 1995.

On March 27, 1996, a special master dismissed the Brices' petition for lack of jurisdiction due to its untimely filing. The special master did not address the possibility of equitable tolling. The Brices petitioned for review, and on September 6, 1996, the Court of Federal Claims held that equitable tolling applies to post-Act cases and remanded to the special master to determine whether equitable tolling was appropriate under the circumstances. See Brice v. Dep't of Health and Human Servs., 36 Fed. Cl. 474, 481-82 (1996). On November 1, 1996, the special master held an evidentiary hearing on the circumstances of Tilghman's vaccination, seizure, and the actions of the Brices in the years following the seizure. On November 26, 1996, the special master concluded that the Brices had "failed to exercise reasonable diligence in discovering essential information bearing on their son's claim" and therefore that equitable tolling was not appropriate. On February 13, 1998, the Court of Federal Claims again remanded to the special master, this time to make findings regarding whether the Brices exercised due diligence after they learned on March 30, 1995 that Tilghman suffered from residual seizure disorder. On remand, the special master concluded that between March 1995 and December 19, 1995, the Brices exercised "no diligence in this case, much less due diligence." On August 11, 1999, the Court of Federal Claims affirmed the special master's decision, holding that the special master's determination that the Brices had not acted with due diligence was not arbitrary or capricious. See Brice v. Dep't of Health and Human Servs., 44 Fed. Cl. 673, 678 (1999). The Brices then appealed to this court.

III.

We have jurisdiction over this appeal pursuant to 28 U.S.C. 1295(a)(3). Whether equitable tolling is permitted under the Vaccine Act is a question of law which we review de novo. See Weddel, 100 F.3d at 931. We note that a "statute of limitations is a condition on the waiver of sovereign immunity by the United States," and courts should be "careful not to interpret [a waiver] in a manner that would extend the...