Markovich v. Secretary of Health and Human Services , 75 Fed. Cl. 1353 ( 2007 )

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United States Court of Appeals for the Federal Circuit
06-5039
MICHAEL and MELISSA MARKOVICH,
Parents of Ashlyn M. Markovich,
Petitioners-Appellants,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Respondent-Appellee.
Mark L. Krueger, Greenhalgh Krueger & Hernandez, SC, of Baraboo, Wisconsin,
argued for petitioners-appellants.
Lynn E. Ricciardella, Trial Attorney, Torts Branch, Civil Division, United States
Department of Justice, of Washington, DC, argued for respondent-appellee. With her
on the brief were Peter D. Keisler, Assistant Attorney General, Timothy P. Garren,
Director, Vincent J. Matanoski, Acting Deputy Director, and Catharine E. Reeves, Acting
Assistant Director.
Appealed from: United States Court of Federal Claims
Judge Susan G. Braden
United States Court of Appeals for the Federal Circuit
06-5039
MICHAEL and MELISSA MARKOVICH,
Parents of Ashlyn M. Markovich,
Petitioners-Appellants,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Respondent-Appellee.
__________________________
DECIDED: February 20, 2007
__________________________
Before MICHEL, Chief Judge, RADER and LINN, Circuit Judges.
LINN, Circuit Judge.
Michael and Melissa Markovich (collectively the “Markoviches”) appeal from a
final decision of the United States Court of Federal Claims (“Court of Federal Claims”).
Markovich v. Sec’y of Health & Human Servs., 69 Fed. Cl. 327, 336 (Fed. Cl. 2005)
(“Final Decision”). That decision affirmed the Special Master’s report, which denied the
petition filed on behalf of the Markoviches’ daughter, Ashlyn M. Markovich (“Ashlyn”), for
compensation under the National Childhood Vaccine Injury Act (“the Vaccine Act”)
because it was time-barred. See Markovich v. Sec’y of Health & Human Servs., No. 03-
2015V (Fed. Cl. July 22, 2005) (“Special Master Report”). We affirm.
I. BACKGROUND
On July 10, 2000, when she was approximately two months old, Ashlyn received
a series of vaccinations, including vaccinations against diphtheria, tetanus (commonly
known as lockjaw), pertussis (commonly known as whooping cough), polio, and
haemophilus influenzae type B. That same day, the Markoviches observed that Ashlyn
began to rapidly blink her eyes, events that we refer to herein as the “eye blinking
episodes.” The Markoviches allege that, at that time, they were not concerned by the
eye blinking episodes because they thought the episodes were merely an indication that
Ashlyn was tired.
The eye-blinking episodes continued after July 10, 2000. On August 30, 2000,
Ashlyn became unresponsive for approximately twenty minutes, during which time all of
Ashlyn’s extremities jerked aggressively. The Markoviches immediately called 911.
Ashlyn was taken to the Fairview Ridge Emergency Room, where she was diagnosed
with having suffered a grand-mal seizure. Another seizure occurred about two weeks
later, on September 14, 2000. Ashlyn continued to suffer seizures almost daily,
sometimes experiencing three or more seizures a day, including seizures documented
on October 11, 14, 18, 20, 21, and 22, 2000; November 17, 2000; January 8 and 25,
2001; March 3 and 29, 2001; April 2, 3, and 17, 2001; June 8, 2001; July 10, 17, and
31, 2001; August 11 and 24, 2001; September 17, 2001; October 5 and 15, 2001;
November 8, 2001; and December 7, 2001. Final Decision, 69 Fed. Cl. at 328-29.
Ashlyn also experienced seizures that consisted of eye blinking episodes between 150
and 500 times per day. Melissa Markovich Aff. ¶ 7. Throughout this entire time,
beginning with her hospitalization at the Fairview Ridge Emergency Room, Ashlyn was
examined at several different hospitals by numerous doctors. Nevertheless, the
seizures persisted.
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On January 29, 2002, Ashlyn was admitted to the Mayo Clinic “to determine
whether a single focus of seizure onset is likely that would be susceptible to surgical
removal.” Final Decision, 69 Fed. Cl. at 329. During that evaluation, a neurologist
diagnosed Ashlyn as having experienced “four types of seizures: (1) repeated eye
blinking; (2) clonic movement of the face, arm, and leg; (3) generalized seizures with or
without focal onset; and (4) partial motor seizures.” Id. at 330 (emphasis added).
Following the evaluation, the neurologist discussed treatment options with Ms.
Markovich.
On August 29, 2003, the Markoviches filed a petition for compensation under the
Act, alleging that Ashlyn suffered the seizures as a result of her vaccination. On
January 27, 2004, the Special Master held a status conference, indicating that an
“Onset Hearing” was necessary in order to determine whether the Markoviches’ petition
was time-barred as having been filed more than three years after the date on which the
first symptom or manifestation of onset of the injury occurred. On November 5, 2004,
the Special Master held the Onset Hearing to determine whether the onset of the
seizures occurred on July 10, 2000, the date of Ashlyn’s initial eye blinking episode, or
on August 30, 2000, the date when Ashlyn was hospitalized and diagnosed with having
a seizure.
On July 22, 2005, the Special Master found that the date of the occurrence of the
first symptom or manifestation of onset of the seizures was July 10, 2000, and found
that the Markoviches’ petition was time-barred pursuant to 42 U.S.C. § 300aa-16(a)(2)
because the petition was filed on August 29, 2003, more than three years later. See
Special Master Report, slip op. at 24. Accordingly, the Special Master dismissed the
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petition for lack of jurisdiction. Id. The Court of Federal Claims affirmed the Special
Master’s decision on October 31, 2005. Final Decision, 69 Fed. Cl. at 335-36.
The Markoviches timely appealed to this court. We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(3).
II. DISCUSSION
A. Standard of Review
Under the Vaccine Act, the Court of Federal Claims reviews the Special Master’s
decision to determine if it is “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with the law.” 42 U.S.C. § 300aa-12(e)(2)(B). We effectively review
the Special Master’s decision under the same standard, since we review the trial court’s
legal determination de novo as to whether the Special Master acted in a manner not in
accordance with the law. Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274,
1277-78 (Fed. Cir. 2005) (citing Hines v. Sec’y of Health & Human Servs., 940 F.2d
1518, 1524 (Fed. Cir. 1991)). While we owe no deference to either the Special Master
or the trial court on questions of law, Whitecotton v. Sec’y of Health & Human Servs., 81
F.3d 1099, 1106 (Fed. Cir. 1996), we review factual findings for clear error, Hines, 940
F.2d at 1523.
B. Analysis
The Vaccine Act was established to increase the safety and availability of
vaccines. See 42 U.S.C. § 300aa-1. Under the Vaccine Act, Congress established a
Vaccine Injury Compensation Program through which claimants could petition to receive
compensation for vaccine-related injuries. See § 300aa-10(a). Congress included a
table in the Vaccine Act that lists injuries that may occur as a result of the administration
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of vaccines. See § 300aa-14 (“Vaccine Injury Table”). In relevant part, the Vaccine Act
sets forth:
In the case of . . . a vaccine set forth in the Vaccine Injury
Table which is administered after October 1, 1988, 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.
§ 300aa-16(a)(2).
It is not disputed that the vaccines that were administered to Ashlyn are listed in
the Vaccine Injury Table and that Ashlyn suffers from seizure disorders as a result of
the administration of such vaccines. The question in this case is what standard should
be applied in determining the date of “the occurrence of the first symptom or
manifestation of onset or of the significant aggravation of such injury,” id., and whether
the eye blinking episode that occurred on July 10, 2000 meets that standard. If so, the
Markoviches’ petition is time-barred, having been filed more than 36 months after the
July 10, 2000 episode.
The Markoviches argue that the standard for statute of limitations purposes
should be a subjective one, focusing on the particular view of a specific parent. The
Markoviches suggest that the limitations period was not triggered until they knew that
“any injury or symptom had occurred,” or “there [was] a reasonable basis of an injury
that [is] separate, distinct and apart from a normal activity.” Br. for Appellant 17-18.
The Markoviches assert that the eye blinking episode that pre-dated the seizure
diagnosis cannot be considered a triggering event because it was an everyday event,
which they thought meant only that Ashlyn was tired. The Markoviches argue that the
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triggering event for statute of limitations purposes should be August 30, 2000, when, for
the first time, the Markoviches became aware of an injury. The Markoviches also urge
that we follow the logic of Setnes v. United States, 57 Fed. Cl. 175 (2003), which,
according to the Markoviches, establishes that there must be a recognizable sign of a
vaccine injury before there is a manifestation of onset of injury that would trigger the
statute of limitations. The Markoviches argue that, pursuant to the logic of Setnes, the
first “manifestation of onset” (i.e., the grand-mal seizure suffered on August 30, 2000),
but not the first “symptom” (i.e., the eye blinking episode on July 10, 2000), should start
the statute of limitations because the eye blinking symptom could not reasonably alert
the Markoviches that anything was wrong with Ashlyn.
The government responds that the standard for statute of limitations purposes
should be objective, focusing not on a particular parent’s view but on recognized
standards of the medical community. The government argues that, using an objective
standard, the Court of Federal Claims correctly held that the July 10, 2000 eye blinking
episode constituted the first symptom of the seizure disorder, triggering the running of
the limitations period. The government points out that the Markoviches’ own expert
testimony proves that the eye blinking episode constituted the onset of the seizure
disorder. The government also asserts that the Markoviches’ reliance on the Setnes
decision, which is not binding on this court, is misplaced and distinguishable.
We begin our analysis with the language of the Vaccine Act, which expressly
bars a petition for compensation that is filed more than 36 months after the date of the
occurrence of the “first symptom or manifestation of onset” of injury. See 42 U.S.C.
§ 300aa-16(a)(2). Under the plain language of the Vaccine Act, the “first symptom or
06-5039 6
manifestation of onset” of injury means that either a “symptom” or a “manifestation of
onset” can trigger the running of the statute, whichever is first. Because Congress is
presumed to have intended a disjunctive meaning by using the disjunctive word “or,” we
interpret the words “first symptom” and “manifestation of onset” as referring to two
different forms of evidence of injury. See, e.g., Shalala v. Whitecotton, 514 U.S. 268,
274 (1995) (emphasizing that the Vaccine Act refers to either a “symptom” or a
“manifestation of onset” and that either form of evidence may show the onset of the
injury). This disjunctive interpretation is consistent with the use of the word “or” to
distinguish the dissimilar meaning of the words “symptom” and “manifestation of onset”
as used in the Vaccine Act. There is a difference between a “symptom” and
“manifestation of onset.” A symptom may be indicative of a variety of conditions or
ailments, and it may be difficult for lay persons to appreciate the medical significance of
a symptom with regard to a particular injury. A manifestation of onset is more self-
evident of an injury and may include significant symptoms that clearly evidence an
injury. For example, in this case, the eye-blinking episode was a symptom of a seizure
disorder without any diagnosis, while the grand-mal seizure of August 30, 2000 was a
manifestation of onset of a seizure disorder.
In Setnes, the Court of Federal Claims held that “where there is no clear start to
the injury, such as in cases involving autism, prudence mandates that a court
addressing the statute of limitations not hinge its decision on the occurrence of the first
symptom.” Setnes, 57 Fed. Cl. at 179 (internal quotation marks omitted). The Court of
Federal Claims concluded that, in cases where symptoms are hard to recognize, courts
should look instead to the manifestation prong. The court in Setnes was concerned with
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the very subtle symptoms attributed with autism that can be easily confused with typical
child behavior, and it distinguished the terms “symptom” and “manifestation,” construing
the latter as “synonymous with open, clear, visible, unmistakable, indubitable,
indisputable, evident, and self-evident.” Id. at 179-80. The Setnes court concluded that
in a situation such as that before the court, where the
symptoms of autism develop “insidiously over time” and the
child’s behavior cannot readily be connected to an injury or
disorder, the court may rely on the child’s medical or
psychological evaluations for guidance in ascertaining when
the “manifestation of onset” occurred.
Id. at 181.
A significant problem with the rationale of Setnes is that it effectively reads the
Vaccine Act as if the statute of limitations were not triggered until there was appreciable
evidence showing a symptom and manifestation of the injury. However, the Vaccine
Act states that the statute of limitations is triggered by the “first symptom or
manifestation of onset.” 42 U.S.C. § 300aa-16(a)(2) (emphasis added). The use of the
words “first” and “or” require that the statute of limitations commence with whichever
event (i.e., symptom or manifestation of onset) occurs first. The statute does not
require that both events occur before the running of the limitations period can
commence.
The Setnes construction also suggests that a subtle symptom or manifestation of
onset of the injury, such as a symptom that would be recognizable to the medical
profession at large but not to the parent, would not be sufficient to trigger the running of
the statute. Yet the Vaccine Act has consistently been interpreted as including subtle
symptoms or manifestations of onset of the injury within the ambit of evidence that
triggers the running of the statute:
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Turning to the issue of accrual of the statute of limitations in
Section 16(a)(2), the terms of the Vaccine Act demonstrate
that Congress intended the limitations period to commence
to run prior to the time a petitioner has actual knowledge that
the vaccine recipient suffered from an injury that could result
in a viable cause of action under the Vaccine Act. First, a
particular symptom or manifestation, such as a seizure, often
can result from a variety of different conditions. Hence, a
petitioner typically will recognize that a particular symptom
constitutes the first symptom or manifestation of the onset of
a certain injury only with the benefit of hindsight, after a
doctor makes a definitive diagnosis of the injury. By
commencing the running of the limitations period on the date
the first symptom or manifestation of the onset occurs,
Congress chose to start the running of the statute before
many petitioners would be able to identify, with reasonable
certainty, the nature of the injury.
Brice v. Sec’y of Health & Human Servs., 36 Fed. Cl. 474, 477 (1996), aff’d on other
grounds, 240 F.3d 1367 (Fed. Cir. 2001). In Brice, we held that equitable tolling is not
available for claims arising under § 300-16(a)(2), reasoning that “the statute of
limitations here begins to run upon the first symptom or manifestation of the onset of
injury, even if the petitioner reasonably would not have known at that time that the
vaccine had caused an injury.” 240 F.3d at 1373; see also Sharpnack v. Sec’y of
Health & Human Servs., No. 90-983V, 1992 WL 167255, at *2 (Cl. Ct. Special Master
June 29, 1992), aff’d, 27 Fed. Cl. 457 (1993), aff’d, 17 F.3d 1442 (Fed. Cir. 1994) (table)
(holding that “in many Vaccine Program cases the injuries are first manifested as subtle
signs and seizures of less complicated nature, e.g., seizures lasting less than 30
minutes or seizure activity so subtle as to be unrecognized at their onset”).
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The Supreme Court, in Whitecotton, interpreted the terms “first symptom or
manifestation of onset,” as that language is used in §§ 300aa-11(c)(1)(C)(i)1 and 300aa-
14(a)2 of the Act, to include subtle symptoms. Although these sections deal with
causation and the temporal relationship of the administration of the vaccine and
evidence of injury, the relevant language of those sections is virtually identical to the
relevant language of § 300aa-16(a)(2) at issue in this case. In Whitecotton, the Court
emphasized that the proper focus is on the first evidence of injury, emphasizing that any
observable “symptom or manifestation” may be the first evidence of injury. 514 U.S. at
274. The Supreme Court, unlike the Court of Federal Claims in Setnes, did not require
that a petitioner appreciate the significance of that evidence. Notably, while the
Markoviches contend that the July 10, 2000 eye blinking episode did not start the
running of the statute of limitations, they argue that it supports causation, reasoning that
“[a]lthough petitioners’ experts are using that event [eye blinking on July 10, 2000] to
1
§ 300aa-11(c)(1)(C)(i) provides:
A petition for compensation under the Program for a vaccine-related injury
or death shall contain . . . an affidavit, and supporting documentation,
demonstrating that the person who suffered such injury or who died
sustained, or had significantly aggravated, any illness, disability, injury, or
condition set forth in the Vaccine Injury Table in association with the
vaccine . . . and the first symptom or manifestation of the onset or of the
significant aggravation of any such illness, disability, injury, or condition or
the death occurred within the time period . . . in the Vaccine Injury Table.
42 U.S.C. § 300aa-11(c)(1)(C)(i) (emphasis added).
2
§ 300aa-14(a) provides:
The following is a table of vaccines, the injuries, disabilities, illnesses,
conditions, and deaths resulting from the administration of such vaccines,
and the time period in which the first symptom or manifestation of onset or
of the significant aggravation of such injuries, disabilities, illnesses,
conditions, and deaths is to occur after vaccine administration for
purposes of receiving compensation under the Program . . . .
42 U.S.C. § 300aa-14(a) (emphasis added).
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support their opinion that the seizure disorder that manifested itself on August 30, 2000,
was caused by the vaccination of July 10, 2000, it should not be used against
petitioners to support the respondent’s argument that the statute of limitations began to
run on July 10, 2000.” The statutory language of the causation provision is the same as
the statute of limitations provision. There is no principled basis to conclude that “first
symptom or manifestation of onset” should be construed one way for causation and
another way for the statue of limitations.
Setnes is also factually distinguishable from the Markoviches’ case. The eye
blinking episodes here were not so readily confused with typical child behavior over the
course of the limitations period as were the symptoms of autism in Setnes. The eye
blinking episodes in this case began promptly after the vaccination and were connected
to the injury of seizure disorder within ample time to have filed a timely claim. As
discussed above, the January 29, 2002 report from the Mayo Clinic established that
“repeated eye-blinking” was not only a symptom of seizure activity but also manifested
one type of seizure activity. The record also reflects that, as of September 20, 2001,
Ms. Markovich understood that Ashlyn’s eye blinking was seizure activity. See Special
Master Report, slip op. at 4. Moreover, the Markoviches’ own medical expert, Dr.
Corbier, testified at the Onset Hearing that:
[T]he eye blinking could have either been some small
seizures, subtle seizures if you will, or there is also the
possibility that it could have been some type of brain
dysfunction.
There is no question that [when the eye blinking episode
occurred] there was a mild seizure . . . .
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[T]here was some type of dysfunction of some sort that likely
started on July 10th, leading to a documented seizure on
August 30th.
Similarly, Dr. Corbier’s expert report states that “the patient’s onset of possible seizures
(paroxysms of rapid eye blinking) . . . occurred within 24 hours following a set of
immunizations . . . .” Thus, as distinguished from Setnes, the eye blinking episodes
were not normal child behavior, were part of the same injury that culminated on August
30, 2000 in a grand-mal seizure, and would have at the very least raised Dr. Corbier’s
suspicions.
We have previously explained that the Vaccine Act’s statute of limitations must
be strictly and narrowly construed because it 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 waiver beyond that which Congress intended.” Brice,
240 F.3d at 1370. A subjective standard that focuses on the parent’s view would result
in an uneven and perhaps overly broad application of the statute of limitations
dependent entirely on the subjective perceptions of lay persons having widely varying
degrees of medical awareness or training. On the other hand, an objective standard
that focuses on the recognized standards of the medical profession at large treats
petitioners equally, without regard to their individual degree of medical awareness. An
objective standard is consistent with the statutory requirement that the first symptom or
manifestation of onset of the injury begins the running of the statute of limitations, as
well as the cases discussed supra that have consistently construed the Vaccine Act to
include subtle symptoms that would be recognizable to the medical profession at large
but not necessarily to the parent. See generally Goetz v. Sec’y Health & Human Servs.,
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45 Fed. Cl. 340, 342 (1999) (following Brice and holding that a vaccine claim is based
on “the occurrence of an event recognizable as a sign of a vaccine injury by the medical
profession at large, not the diagnosis that actually confirms such an injury in a specific
case” (emphasis added)), aff’d, 4 Fed. Appx. 827 (Fed. Cir. 2001).
For all of the reasons discussed above, we hold that “the first symptom or
manifestation of onset,” for the purposes of § 300aa-16(a)(2), is the first event
objectively recognizable as a sign of a vaccine injury by the medical profession at large.
Because the testimony of Dr. Corbier and others confirms that Ashlyn’s eye blinking
episode on July 10, 2000 was objectively recognizable by the medical profession at
large as constituting the first evidence of vaccine injury onset, i.e., the first symptom of
injury, and because the Markoviches filed their petition on August 29, 2003, more than
36 months after the initial symptoms, the petition is time-barred under § 300aa-16(a)(2).
CONCLUSION
For the foregoing reasons, the Final Decision is
AFFIRMED.
COSTS
No costs.
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