Wilkerson v. Sec. of Health and Human Services

United States Court of Appeals for the Federal Circuit
2009-5090
MARY DARIN WILKERSON, as mother of her son,
OTTO WILKERSON,
Petitioner-Appellant,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Respondent-Appellee.
Kevin P. Conway, Conway, Homer & Chin-Caplan, P.C., of Boston,
Massachusetts, argued for petitioner-appellant. On the brief was Ronald C. Homer.
Traci R. Patton, Trial Attorney, Torts Branch, Civil Division, United States
Department of Justice, of Washington, DC, argued for respondent-appellee. With her
on the brief were Tony West, Assistant Attorney General, Timothy P. Garren, Director,
Mark W. Rogers, Deputy Director, and Gabrielle M. Fielding, Assistant Director.
Appealed from: United States Court of Federal Claims
Senior Judge Robert H. Hodges, Jr.
United States Court of Appeals for the Federal Circuit
2009-5090
MARY DARIN WILKERSON, as mother of her son,
OTTO WILKERSON,
Petitioner-Appellant,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Respondent-Appellee.
Appeal from a judgment of the United States Court of Federal Claims in Case No. 05-
VV-232, Senior Judge Robert H. Hodges, Jr.
______________________________
DECIDED: January 27, 2010
______________________________
Before MAYER, FRIEDMAN, and GAJARSA, Circuit Judges.
FRIEDMAN, Circuit Judge.
This appeal challenges the decision of the Court of Federal Claims that affirmed
its Special Master’s rejection of a petition for compensation under the National
Childhood Vaccine Injury Act (“Vaccine Act”) as untimely. We affirm.
I
Otto Wilkerson, the son of the appellant Mary Darin Wilkerson, was born on May
30, 1997. He received his first vaccination on that date and by September 1998 had
had multiple vaccinations.
By the end of 1999, Wilkerson had begun receiving complaints about Otto’s
misbehavior and his relationships with other people, including children. Otto reportedly
had difficulty playing well with other children, disturbed class and hurt classmates.
When Otto attended preschool in 2001, he reportedly disturbed class, refused to
respond to or obey his teachers’ instructions, sit still or listen.
By 2003, a physician treating Otto suspected that he may have Attention Deficit
Hyperactivity Disorder (“ADHD”) and referred him to a clinic for testing. A licensed
clinical social worker there concluded that he “clearly” met the diagnostic criteria for the
disorder. A pediatrician corroborated this diagnosis in January 2004.
On February 10, 2005, Wilkerson filed in the Court of Federal Claims a petition
for compensation under the Vaccine Act. She alleged that Otto suffered mercury
toxicity and ADHD as a result of the vaccinations he had received during his first six
months. The trial under a petition for compensation for vaccine-related injuries is held
before a Special Master of the Court of Federal Claims. 42 U.S.C. § 300aa-12(d). The
Secretary of Health and Human Services (“the Secretary”), who is the respondent in
such cases, § 300aa-12(b)(1), moved to dismiss the petition as untimely under the
statute, which bars such a petition if filed “after the expiration of 36 months after the
date of the occurrence of the first symptom or manifestation of onset” of a vaccine-
related injury. § 300aa-16(a)(2).
Each party submitted a physician’s expert report addressing the date of onset of
Otto’s ADHD symptoms. Both medical experts agreed that, more probably than not,
those symptoms first appeared on or before November 3, 2001. The Chief Special
Master dismissed the petition as untimely, because it was filed on February 17, 2005,
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more than thirty-six months after the occurrence of the first symptom or manifestation of
onset of Otto’s ADHD.
The Court of Federal Claims upheld the Chief Special Master’s ruling. The court
held that, in Markovich v. Secretary of Health and Human Services, 477 F.3d 1353(Fed. Cir. 2005), this court ruled that “the event that triggers the running of the statute of
limitations is either a symptom or manifestation of onset, whichever occurs first.” The
court’s “CONCLUSION” was: “The parties agreed that November 3, 2001 was the date
on which petitioner’s symptoms first appeared. Given petitioner’s concession, the Chief
Special Master had no choice, in light of Markovich, to rule that he lacked jurisdiction to
consider the case on the merits.” Wilkerson v. Sec’y of Health and Human Servs., 2009
WL 1583527, at *2 (Ct. Fed. Cl. Apr. 2, 2009).
II
A. We agree with the Court of Federal Claims and the Chief Special Master that
Markovich controls this case and that under it the Chief Special Master correctly
dismissed the petition as untimely.
The governing statutory time limit in this case states:
[I]f a vaccine-related injury occurred as the 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 . . . of such injury.
§ 300aa-16(a)(2).
In other words, for the Chief Special Master to have had jurisdiction in this case,
the petition for compensation must have been filed within thirty-six months of “the date
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of the occurrence of the first symptom or manifestation of onset” of “a vaccine-related
injury.”
In Markovich, the petitioner argued that the standard for determining when the
limitations period begins to run “should be a subjective one, focusing on the particular
view of a specific parent.” 477 F.3d at 1356. This court rejected that theory and instead
adopted “an objective standard that focuses on the recognized standards of the medical
profession at large,” which “treats petitioners equally, without regard to their individual
degree of medical awareness.” Id. We stated that “[u]nder the plain language of the
Vaccine Act, the ‘first symptom or 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.” Id. at 1357. The court “[h]eld 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.” Id. at 1360.
Under these standards, the Court of Federal Claims and the Chief Special
Master correctly held that Wilkerson’s petition for Vaccine Act injury compensation was
untimely because it was filed more than thirty-six months after “the date of the
occurrence of the first symptom . . . of such injury.” The parties’ medical experts agreed
that the first symptom of Otto’s ADHD occurred on or before November 3, 2001. The
petition for compensation was not filed until February 17, 2005, more than thirty-nine
months after that first symptom had occurred. On its face, the filing was untimely.
B. The grounds upon which Wilkerson seeks to distinguish or avoid Markovich
are unpersuasive.
2009-5090 4
Wilkerson contends that Otto’s “condition, ADHD, is a condition that requires a
‘manifestation of onset’ event to trigger the statute of limitations” and that its first
symptom is not sufficient. The argument is refuted by the ruling in Markovich that “the
‘first symptom or 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.” Id. at
1357. We discern nothing in the Vaccine Act that supports such a limitation on the Act’s
clear and broad language that “either” the occurrence of the first symptom “or”
manifestation of onset is sufficient.
Wilkerson repeats the argument by urging us to follow the ruling of the Court of
Federal Claims in Setnes v. United States, 57 Fed. Cl. 175, 179 (2003), that “where
there is no clear start to the injury . . . prudence mandates that a court addressing the
statute of limitations not hinge its decision on the occurrence of the first symptom.”
Markovich, however, discussed at length and rejected that Setnes ruling because:
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.
477 F.3d at 1358.
Wilkerson also argues that the reference in Markovich to “the first event
objectively recognizable as a sign of a vaccine injury by the medical profession at large”
requires that such recognition be contemporaneous with the “first event” itself, and that
hindsight recognition is impermissible. That statement in Markovich, however, was
2009-5090 5
made to explain the court’s rejection of a subjective standard for determining when the
limitations period began to run based on the parent’s perception of when that occurred,
and adopting instead an objective standard based on the medical profession’s
recognition of when that occurred. We do not read Markovich as requiring in each case
a showing of the date on which the medical profession at large had such a recognition.
Since both medical experts in the present case agreed on the date on which Otto’s
ADHD symptoms appeared, it was reasonable to conclude that that date reflected the
consensus of the medical profession at large about when those symptoms first were
recognizable. The fact that such recognition may have occurred some time after the
symptoms first occurred does not undermine the medical judgment upon which the
decision in this case was based. Moreover, the Act’s time for filing runs from “the date
of the occurrence of the first symptom or manifestation of onset,” not the date of its
recognition.
Finally, Wilkerson argues that the legislative history showing the underlying
policy objectives of the Vaccine Act support her position. Those considerations,
however, do not negate the clear statutory language that Markovich applied as written.
Wilkerson’s argument also ignores the court’s recognition in Markovich 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 wavier
beyond that which Congress intended.’” Id. at 1360 (citation omitted).
In sum, Markovich means exactly what it said: “the first symptom or manifestation
of onset . . . is the first event objectively recognizable as a sign of a vaccine injury by the
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medical profession at large.” Id. Markovich compels the conclusion that Wilkerson’s
petition under the Vaccine Act was untimely because it was filed more than thirty-six
months after the occurrence of the first symptom of Otto’s injury.
CONCLUSION
The judgment of the Court of Federal Claims sustaining the dismissal of the
petition as untimely is
AFFIRMED.
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