Cloer v. Sec'y of Health

• Decision Date: 05 August 2011
• Docket Number: No. 2009–5052.,2009–5052.
• Citation: 654 F.3d 1322
• Parties: Melissa CLOER, M.D., Petitioner–Appellant,v.SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent–Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

654 F.3d 1322

Melissa CLOER, M.D., Petitioner–Appellant,

v.SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent–Appellee.

No. 2009–5052.

United States Court of Appeals, Federal Circuit.

Aug. 5, 2011.

Robert T. Fishman, of Denver, CO, argued for petitioner-appellant on rehearing en banc. With him on the brief was Mari C. Bush, Kaye and Bush, LLC, of Denver, CO. Of counsel on the brief was Robert T. Moxley, Robert T. Moxley, P.C., of Cheyenne, WY.Anisha S. Dasgupta, Attorney, Appellate Staff, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee on rehearing en banc. With her on the brief were Tony West, Assistant Attorney General, Timothy P. Garren, Director, Mark W. Rogers, Deputy Director, Gabrielle M. Fielding, Assistant Director. Of counsel on the brief were Thomas M. Bondy, Attorney, and Lynn E. Ricciardella, Trial Attorney.Martin James Martinez, Martinez Law Office, of Napa, CA, amicus curiae on rehearing en banc.Thomas Neville, Ogborn Summerlin & Ogborn, LLC, of Denver, CO, for amicus curiae Colorado Trial Lawyers Association on rehearing en banc.Clifford J. Shoemaker, Shoemaker & Associates, of Vienna, VA, for amicus curiae National Vaccine Information Center on rehearing en banc.Kevin P. Conway, Conway, Homer & Chin–Caplan, P.C., of Boston, MA for amici curiae the Vaccine Injured Petitioners' Bar Association, et al. on rehearing en banc.Before RADER, Chief Judge, NEWMAN, LOURIE, CLEVENGER, BRYSON, GAJARSA,^* LINN, DYK, PROST, MOORE, O'MALLEY, and REYNA, Circuit Judges.Opinion for the court filed by Circuit Judge CLEVENGER, in which Chief Judge RADER and Circuit Judges LOURIE, BRYSON, GAJARSA, PROST, MOORE, and O'MALLEY join. Dissenting opinion filed by Circuit Judge DYK, in which Circuit Judges NEWMAN, LINN, and REYNA join.CLEVENGER, Circuit Judge.

This case involves the interpretation and application of the statute of limitations in the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa–1 to –34 (“Vaccine Act”). The statute of limitations provides that if a vaccine-related injury occurred as a result of the administration of a vaccine, “no petition may be filed for compensation under the Program for [a vaccine-related] injury after the expiration of 36 months after the date of the occurrence of the first symptom or manifestation of onset ... of such [vaccine-related] injury.” 42 U.S.C. § 300aa–16(a)(2).

Dr. Melissa Cloer received three Hepatitis–B (“Hep–B”) vaccinations in 1996 and 1997. Years later, in 2005, Dr. Cloer filed a claim under the National Vaccine Injury Compensation Program (“Vaccine Program”), established by the Vaccine Act, seeking compensation for a multiple sclerosis (“MS”) injury she alleged was caused by the administration of the vaccine. The Chief Special Master and Court of Federal Claims dismissed Dr. Cloer's claim as untimely because it was filed more then 36 months after her first symptom of MS occurred in 1997. Cloer v. Sec'y of Health & Human Servs., 85 Fed.Cl. 141 (2008). Dr. Cloer appealed the decision and a panel of this court reversed, ruling in her favor. Cloer v. Sec'y of Health & Human Servs., 603 F.3d 1341 (Fed.Cir.2010), vacated, 399 Fed.Appx. 577 (Fed.Cir.2010). Subsequently, we granted the petition of respondent and appellee Secretary of Health and Human Services (“the government”) to rehear the case en banc, vacated the panel opinion, Cloer, 399 Fed.Appx. at 577, and requested additional briefs from the parties.

Consistent with the plain meaning of the statute, we hold that the statute of limitations of the Vaccine Act begins to run on the calendar date of the occurrence of the first medically recognized symptom or manifestation of onset of the injury claimed by the petitioner. Because Dr. Cloer's first symptom of MS, recognized as such at the time she suffered the symptom, occurred more than 36 months before the filing of her petition for compensation, her claim is time-barred. We today also reverse our previous holding in Brice v. Secretary of Health & Human Services, 240 F.3d 1367 (Fed.Cir.2001) (“ Brice ”), which precluded application of the doctrine of equitable tolling in Vaccine Act cases, but reject the ground upon which Dr. Cloer seeks the benefit of equitable tolling in this case. We thus affirm the judgment of the Court of Federal Claims dismissing Dr. Cloer's claim as untimely.

In Part I below, we briefly address the background against which Congress enacted the Vaccine Act and in particular the statute of limitations chosen by Congress. Part II sets forth the essential facts of the case. In Part III, we discuss the proceedings before the Chief Special Master and the Court of Federal Claims. Part IV states our standard of review. In Part V, we set forth and respond to the three arguments Dr. Cloer presented to the court in her initial briefs and at the initial panel hearing of the case. In Part VI, we address and answer the three specific questions on which we requested additional briefing to the en banc court. Our en banc hearing focused on these questions.

I

In 1986, Congress established the Vaccine Program to provide compensation for vaccine-related injuries and deaths. See 42 U.S.C. § 300aa–10. The Vaccine Act creates a “no-fault” Federal program for compensating injuries that are either presumed or proven to be causally connected to vaccines. The Vaccine Act arose because “the Nation's efforts to protect its children by preventing disease have been [ ] a success,” but “[w]hile most of the Nation's children enjoy greater benefit from immunization programs, a small but significant number have been gravely injured.” H.R.Rep. No. 99–908, at 4 (1986), reprinted in 1986 U.S.C.C.A.N. 6344, 6345. However, “at least in part as a result of [the] increase in litigation, the prices of vaccines [ ] jumped enormously.” Id. Congress created the Vaccine Program to balance these two primary concerns that the tort system was failing to adequately compensate persons injured from vaccinations that were undergone for the public good and that excessive tort liability was unsustainably raising prices and discouraging vaccine manufacturers from remaining in the market. See id. at 3–7, reprinted in 1986 U.S.C.C.A.N. at 6344–48.

Congress noted “for the relatively few who are injured by vaccines—through no fault of their own—the opportunities for redress and restitution [were] limited, time-consuming, expensive, and often unanswered.” Id. at 6, reprinted in 1986 U.S.C.C.A.N. at 6347. In response, Congress created the Vaccine Program to be “simple, and easy to administer” while also being “expeditious and fair.” Id. at 7, 12, reprinted in 1986 U.S.C.C.A.N. at 6348, 6353. To compensate injured persons quickly and fairly, the Vaccine Act exempted petitioners from the tort requirements of demonstrating that a manufacturer was negligent or that a vaccine was defective. Id. at 12–13, reprinted in 1986 U.S.C.C.A.N. at 6353–54. For some injuries which the medical profession at large recognized as especially likely to be caused by vaccine administration, Congress exempted petitioners from the burden of proving causation. Id. In sum, while the Vaccine Act does not prohibit a petitioner from going to state court after completion or unfair delay of the compensation proceedings, the Vaccine Program was intended to “lessen the number of lawsuits against manufacturers” and “provide[ ] relative certainty and generosity” of compensation awards in order to satisfy petitioners in a fair, expeditious, and generous manner.¹Id.

The legislative history shows that Congress considered alternative statutes of limitation for claims filed in the Vaccine Program. The House of Representatives version, H.R. 1780, introduced on March 27, 1985, provided that “any claim under this title that is filed more than two years after the first manifestation of a vaccine-related injury shall be barred.” National Childhood Vaccine–Injury Compensation Act of 1985, H.R. 1780, 99th Congress § 2112(a) (1985). A subsequent Senate bill, S. 827, introduced on April 2, 1985, took a different approach. Unlike H.R. 1780, S. 827 did not trigger the statute of limitations upon the occurrence of the first manifestation of an injury. Instead, it provided that actions for compensation “shall be barred if the petitioner fails to file the action ... within 5 years after the occurrence of the compensable complication or residual effect of the illness, disability [or] injury.” National Childhood Vaccine Injury Compensation Act of 1985, S. 827, 99th Congress § 2106(a) (1985). In addition, the 5 year statute did not apply at all if a petitioner could demonstrate that she either (a) did not receive the parent information about vaccines required under the bill, or (b) did not know the complication or effect of her injury was compensable under the program. Id. § 2106(b). S. 827 set forth a Vaccine Table, listing specific vaccines, specific injuries, and specific time periods for the first symptom or manifestation of onset of a listed injury after administration of a vaccine. Compensation was required if a petitioner could meet the specified time periods for a listed vaccine and injury. But if a petitioner could not meet the time period requirements, the petitioner could still prevail if “the petitioner demonstrates on the basis of credible evidence” that the injury “suffered by petitioner was caused by a vaccine listed in the Vaccine Injury Table.” Id. § 2105(a)(2). The Senate bill thus incorporated both strict liability and causation in fact liability.

Ultimately, Congress settled on the former of the two approaches. H.R. 5546 (September 18, 1986) followed the approach of H.R. 1780, and provided that if a vaccine-related injury occurred as a result of the administration of a vaccine listed on the Vaccine Injury Table, “no petition may be filed for compensation under the Program after the expiration of 36 months after the date of the occurrence of the...