K. G. v. Sec'y of Health & Human Servs.

• Decision Date: 06 March 2020
• Docket Number: 2019-1690
• Citation: 951 F.3d 1374
• Parties: K. G., Petitioner-Appellant v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent-Appellee
• Court: U.S. Court of Appeals — Federal Circuit

951 F.3d 1374

K. G., Petitioner-Appellant

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

2019-1690

United States Court of Appeals, Federal Circuit.

Decided: March 6, 2020

Zachary J. Hermsen, Whitfield & Eddy, PLC, Des Moines, IA, argued for petitioner-appellant.

Voris Edward Johnson, Jr., Vaccine/Torts Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by Joseph H. Hunt, C. Salvatore D'Aessio, Heather Lynn Pearlman, Catharine E. Reeves.

Before Dyk, O’Malley, and Stoll, Circuit Judges.

O’Malley, Circuit Judge.

In Fall 2011, K.G. received a seasonal influenza vaccination in advance of a total knee replacement surgery. Over the next several months, she experienced increasingly severe nerve pain in her hands, arms, feet, and legs. During the same period, K.G. succumbed to alcoholism, spent months in the hospital, and developed amnesia. In Spring 2014, an Iowa state court declared K.G. incapable of caring for herself and, against K.G.’s will, appointed K.G.’s sister as her guardian.

K.G. made a slow recovery and regained her mental faculties by May 2016. Shortly thereafter, she retained an attorney who filed a claim on her behalf pursuant to the National Childhood Vaccine Injury Act of 1986 ("Vaccine Act"), 42 U.S.C. § 300aa-1 et seq. Without reaching the merits of K.G.’s claim, the Special Master held that equitable tolling was not available during the period that K.G.’s sister was appointed as K.G.’s guardian and dismissed K.G.’s claim as not timely filed within the three-year statute of limitations. See K.G. v. Sec’y of Health & Human Servs. , No. 18-120V, 2018 WL 5795834 (Fed. Cl. Aug. 17, 2018). The Court of Federal Claims ("Claims Court") affirmed. K.G. v. Sec’y of Health & Human Servs. , 142 Fed. Cl. 240 (2019).

Arguing that she should not be barred from the benefit of equitable tolling merely because she was involuntarily placed under guardianship, K.G. appeals. For the reasons stated below, we hold that equitable tolling is available in Vaccine Act cases and that the appointment of a legal guardian is only one factor a court should consider when deciding whether equitable tolling is appropriate in a particular case. We therefore vacate and remand.

I

K.G. was forty-eight years old when she received an influenza vaccination in October 2011, as a precautionary measure in advance of a bilateral total knee replacement. She was a licensed accountant and the sole income-earner for her family of four.

After the knee replacement surgery, which occurred in November 2011, K.G. began noticing numbness in her right leg. In February 2012, K.G.’s doctor proposed testing to determine if she had neuropathy or nerve injury. By May 2012, K.G. was experiencing numbness, tingling, and burning in her legs and feet, as well as abnormal sensation in her fingers. These symptoms worsened over the next several months. Concurrently, K.G.’s mental health began to decline. She began taking pain medication and drinking heavily.

Beginning in November 2012, K.G. was hospitalized for two months after a fall. She was released to her home in January 2013. Her discharge papers indicated a diagnosis of Chronic Inflammatory Demyelinating Polyneuropathy ("CIDP").

K.G. remained at home for about five months. During that time, she would regularly isolate herself from family and drink substantial amounts of alcohol. In May 2013, K.G.’s son found K.G. unresponsive at her home. She was taken to the hospital for a second time. On admission, K.G.’s memory and ability to follow commands were highly impaired. Over the next month, K.G. remained confused about where she was—at various points thinking she was on a cruise, in Las Vegas, or at home. K.G. was discharged to an in-patient facility in June 2013, where she remained for over three years.

In October 2013, a psychiatrist diagnosed K.G. with Korsakoff’s amnesia,¹ anxiety, and depression. Given K.G.’s lack of capacity, K.G.’s family eventually decided the best course was to place K.G. under guardianship and conservatorship. An Iowa district court appointed K.G.’s sister as K.G.’s guardian and conservator in March 2014.

During the course of the guardianship, K.G. blamed her sister for many of her problems and the sisters’ relationship deteriorated. At various points, K.G. told her therapist that she felt like a "prisoner" because her sister would never let her leave the nursing facility, that her sister was alienating K.G. from her children, and that her sister was responsible for all of her issues. J.A. at 338, 340. In a sworn statement, K.G.’s sister explained the difficulty of the situation:

My appointment as guardian and conservator strained my relationship with K.G. K.G. believed that I was solely responsible for K.G. living at a nursing home, among other things. We did our best to make K.G.’s life tolerable. ... However, K.G. was still upset with me, and she still refuses to talk to me today. This strain on our relationship is why I eventually stopped acting as K.G.’s guardian and conservator. It became too much for me to personally handle.

Id. at 385, ¶ 24.

In May 2016, K.G. began to show cognitive improvement. The Iowa court terminated K.G.’s guardianship and conservatorship in August 2016. K.G. thereafter returned home to live with her husband.

K.G. consulted with counsel in late 2017 who filed a Petition for Vaccine Compensation in January 2018. She alleged that her October 2011 flu shot caused her to develop neuropathy.

In March 2018, the Special Master questioned the timeliness of the Petition and allowed the parties to brief the issue of equitable tolling. The Vaccine Act’s statute of limitations is three years. 42 U.S.C. § 300aa-16(a)(2). K.G. argued that she was mentally incapacitated from November 9, 2012, the date her first post-surgery hospital stay began, to May 10, 2016, when she began showing signs of cognitive improvement. According to K.G., this period of incapacity should not count in calculating whether her claim is timely filed. The Secretary of Health and Human Services ("the government") responded with three counter-arguments: (1) equitable tolling based on mental incapacity is not available under the Vaccine Act at all; (2) K.G.’s proposed period was too long and a reasonable period, considering only time when K.G. was not under guardianship, would render K.G.’s claim untimely; and (3) tolling was improper because late-filing was not a direct result of K.G.’s mental incapacity.

The Special Master dismissed the case as untimely on August 17, 2018. K.G. , 2018 WL 5795834 at *12. He declined to resolve or comment on whether it was appropriate to equitably toll in the Vaccine Act context based on mental incapacity. Instead, he found that K.G.’s claim was untimely even assuming equitable tolling was available. Id. at *8.

The Special Master found that K.G. suffered from CIDP. Id. He further found that the onset of K.G.’s condition, the date on which the statute of limitations began to run, was in mid-February 2012 when her doctors first suggested testing for neuropathy. Id. He then rejected K.G.’s argument that equitable tolling, if available, began in November 2012, when K.G. was first admitted to the hospital. Id. at *9. The Special Master found that K.G.’s second hospital trip, which began in May 2013, marked the beginning of her mental incapacity and the start of the tolling period. Id. He reasoned that the record evidence established only that K.G.’s mental health was a concern in November 2012, not that she was fully incapacitated. Id.

The Special Master next determined that the appointment of K.G.’s sister as guardian in March 2014 restarted the clock. Id. He reasoned that K.G.’s sister was empowered to act on K.G.’s behalf under Iowa law. Id. With the clock restarting in March 2014, the Vaccine Act’s three-year statute of limitations would have expired in December 2015. Id. at *10. Since the claim was not filed until January 2018, the Special Master found it was untimely. Id.

The Special Master further found that broad equitable considerations did not favor tolling in K.G.’s case. Id. at *10–11. He found, "Petitioner and/or her legal representative did not act diligently in exercising her legal rights." Id. at *10. He then explained that K.G. had capacity to bring a claim for over a year prior to the onset of her mental disability and for over a year after the mental disability resolved. Id. He found that K.G.’s inaction during those periods did not constitute diligence and weighed against equitable tolling. Id.

K.G. appealed the Special Master’s decision to the Claims Court. On March 6, 2019, the Claims Court sustained the Special Master’s decision. K.G. , 142 Fed. Cl. at 246.

The Claims Court explained that the Vaccine Act grants a legal representative the statutory right to bring a claim on behalf of a disabled person who suffered a vaccine-related injury. Id. at 244 (citing 42 U.S.C. § 300aa-11(b)(1)(A) ). Thus, the Claims Court reasoned that, under the Act, a disabled person’s legal representative must file a claim within the 36-month limitations period. Id. at 245–46. Given this scheme, the Claims Court concluded that the appointment of K.G.’s sister as a legal guardian alleviated any "extraordinary circumstance" that would warrant equitable tolling. Id.

Finally, the Claims Court rejected K.G.’s argument that her deteriorated relationship with her sister presented a separate extraordinary circumstance warranting tolling. Id. at 246. It reasoned that the Vaccine Act anticipates that many injured claimants will be unable to assist with their claims, as most claimants are children. Id.

K.G. appeals. We have jurisdiction pursuant to 42 U.S.C. § 300aa-12(f).

II

In Vaccine Act cases, we review an appeal from the Claims Court de novo , applying the same standard of review that the Claims Court applied to the special master’s decision. Moberly v. Sec’y of Health & Human Servs. , 592 F.3d 1315, 1321 (Fed....