McSherry v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 14-154V
Filed: June 2, 2016
* * * * * * * * * * * * * * * * *
LYDIA MCSHERRY , by her parents, * TO BE PUBLISHED
GENE and KARI McSHERRY, *
As Legal Guardians, * Special Master Hamilton-Fieldman
*
Petitioners, *
v. * Gardasil; Human Papillomavirus (HPV)
* Vaccine; Statute of Limitations; First
SECRETARY OF HEALTH * Symptom or Manifestation of Onset;
AND HUMAN SERVICES, * Premature Ovarian Failure (POF);
* Primary Ovarian Insufficiency (POI);
Respondent. * Menstrual Cycle; Dismissal.
* * * * * * * * * * * * * * * * *
Mark Krueger, Krueger & Hernandez, SC, Baraboo, WI, for Petitioners.
Lara Englund, United States Department of Justice, Washington, DC, for Respondent.
DECISION 1
This is an action by Gene and Kari McSherry (“Petitioners”) seeking an award under the
National Vaccine Injury Compensation Program (hereinafter “Program”). 2 Respondent contends
that the petition was untimely filed, and as such should be dismissed. For the reasons set forth
below, the undersigned concludes that the petition was untimely filed, and it is therefore hereby
dismissed.
1
Because this decision contains a reasoned explanation for the undersigned’s action in this case,
the undersigned intends to post this decision on the website of the United States Court of Federal
Claims, in accordance with the purposes espoused in the E-Government Act of 2002. See 44
U.S.C. § 3501 (2012). Each party has 14 days to request redaction “of any information furnished
by that party: (1) that is a trade secret or commercial or financial in substance and is privileged
or confidential; or (2) that includes medical files or similar files, the disclosure of which would
constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b).
2
The National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (2012)
(hereinafter “Vaccine Act”), provides the statutory provisions governing the Program.
1
I. FACTUAL BACKGROUND
Lydia McSherry was born on May 7, 1990. Pet’r’s Ex. 1 at 2, ECF No. 12-2. Ms.
McSherry, who has Down syndrome, experienced menarche 3 in the fifth grade. Pet’r’s Ex. 4 at
5, ECF No. 12-5. In 2004, at a visit with her primary care physician, Ms. McSherry reported
regular menstruation for the preceding six months. Id. at 5. Two years later, Ms. McSherry
again reported “pretty regular” menstruation. Id. at 8.
On March 28, 2007, however, Ms. McSherry attested that she had experienced irregular
menstruation since menarche. Id. at 80-81. 4 She received the first dose of the HPV vaccine on
that date. Pet’r’s Ex. 2 at 2, ECF No. 12-3. She received two additional doses of the vaccine on
June 13, 2007, and September 10, 2008. Id. at 2. In September 2009, Ms. McSherry again noted
irregular menstruation. Pet’r’s Ex. 4 at 60-61.
Of particular note, on September 25, 2010, Ms. McSherry reported that her last period
had occurred over four months beforehand. Id. at 51. About one year later, she informed her
doctor that she had menstruated only once in the previous year. Id. at 47.
On March 28, 2012, Ms. McSherry again notified her physician that she had not
menstruated within the past year. Pet’r’s Ex. 3 at 32, ECF No. 12-4. The physician’s
“impression” was “secondary amenorrhea.” Id. at 32. Two days later, tests revealed that Ms.
McSherry had postmenopausal levels of Estradiol and FSH. Id. at 35-36.
On April 12, 2012, a physician, using the results of a Comprehensive Metabolic Panel,
diagnosed Ms. McSherry with primary ovarian insufficiency (“POI”). 5 Id. at 36. As a result, the
3 Menarche is “the establishment or beginning of menstruation.” Menarche, Dorland’s
Illustrated Medical Dictionary (32nd ed. 2012) (hereinafter “Dorland’s”). Menstruation is “the
cyclic, physiologic discharge through the vagina of blood and mucosal tissues from the
nonpregnant uterus; it is under hormonal control and normally recurs, usually at approximately
four-week intervals, in the absence of pregnancy during the reproductive period (puberty through
menopause of the female of the human.” Menstruation, Dorland’s.
4Although the medical records from the same visit also provide that her “menstrual periods
[were] normal in frequency and amount.” Id. at 82.
5Although the parties and the undersigned initially used the term, “premature ovarian failure” or
“POF” to define Petitioner’s injury— it became clear from the literature filed by the experts that
POI “is the preferred term for the condition that was previously referred to as [POF]. . . . The
condition is considered to be present when a woman who is less than 40 years old has had
2
physician prescribed Ms. McSherry hormonal contraceptive pills. Id. at 33. As of August 1,
2012, she had been regularly menstruating for three months. Id. at 33.
II. PROCEDURAL BACKGROUND
On February 27, 2014, Petitioners filed the present action alleging that the Human
Papillomavirus vaccinations (“Gardasil” or “HPV” vaccines) administered to Lydia McSherry on
March 28 and June 13, 2007, and September 10, 2008, caused her to suffer from POI. Pet., ECF
No. 1.
This case was identified for inclusion with other POI cases in an “omnibus proceeding”
established to address the question of what constitutes the first symptom or manifestation of POI.
See Pet’r’s Status Report (Oct. 1, 2014), Culligan, ECF No. 23. The answer to this question is
integral to the undersigned’s determination of whether each petitioner had filed her claim within
the statute of limitations. See 42 U.S.C. § 300aa-16(a)(2) (2012) (requiring that petitions be
filed prior to “the expiration of 36 months after the date of the occurrence of the first symptom or
manifestation of onset . . . of injury”).
The lead case in the proceeding was Culligan. 6 In Culligan, Respondent opposed
entitlement to compensation because the first symptom of the petitioner’s POI was
oligomenorrhea, 7 which she had experienced more than three years prior to the filing of her
claim, making it untimely under 42 U.S.C. § 300aa-16(a)(2). See Resp’t’s Rule 4(c) Report at 3-
4, Culligan, ECF No. 20.
At a Culligan status conference held on September 23, 2014, the undersigned discussed
with the parties the necessity of establishing the date that the statute of limitations began to run
amenorrhea for 4 months or more, with two serum FSH levels (obtained at least 1 month apart)
in the menopausal range.” See Pet’r’s Ex. 15, Tab 1 at 1, Culligan v. Sec’y of HHS, No. 14-
318V, ECF No. 53-2 (Lawrence Nelson, Primary Ovarian Insufficiency, 360 New Eng. J. Med.
606, 606 (2009)) (hereinafter “Nelson” with pincites to Petitioner’s pagination); see also
Resp’t’s Ex. A.29, ECF No. 67-1 (also providing Nelson). Therefore, the undersigned will refer
to the condition as POI.
6
Once Culligan had been designated as the lead case, all of the filings for the onset proceedings
were completed in the Culligan case, and not in the trailing cases. This section of the procedural
history is therefore derived from the Culligan case. Citations to the Culligan record are so noted.
7
Oligomenorrhea is defined as “menstrual flow happening less often than normal, defined as at
intervals of 35 days to 6 months; called also infrequent menstruation.” Oligomenorrhea,
Dorland’s.
3
in Culligan and other cases alleging an injury of POI caused by Gardasil in order to assess the
timeliness of the claims. See Scheduling Order (Sept. 25, 2014) at 1, Culligan, ECF No. 22. The
undersigned directed the petitioner in Culligan’s counsel, Mark Krueger, who is also counsel in
the instant case, to begin the process of identifying other POI claimants for inclusion in an
omnibus proceeding focused on the question of timeliness. 8 Id.
On October 1, 2014, Mr. Krueger filed a status report in which he identified eight POI
9
cases to be included in the undersigned’s assessment of timeliness. See Pet’r’s Status Report
(Oct. 1, 2014), Culligan. Petitioner subsequently named Culligan as the “test case” for
timeliness. See Pet’r’s Status Report (Nov. 5, 2014) at 1, ECF No. 25.
Another status conference was held on November 20, 2014, during which the parties
agreed that “in all pending [POI] cases . . . an expert hearing [would] be held to address the
question of what constitutes ‘the first symptom or manifestation of [POI] onset recognized as
such by the medical profession at large.’” Scheduling Order (Nov. 24, 2014) at 1, Culligan, ECF
No. 26 (citing Cloer v. Sec’y of HHS, 654 F.3d 1322, 1340 (Fed. Cir. 2011) (en banc)). The
undersigned explained that a timeliness determination would be made on the basis of the
evidence presented at the Culligan hearing; similar hearings would not be conducted in the other
POI cases, all of which would trail Culligan for purposes of timeliness determinations. Id. The
undersigned also added four additional POI cases 10 to the list of cases set to trail Culligan. Id.
The undersigned also ordered that all parties seeking to be joined in the omnibus proceeding
consent to share their medical records, see Scheduling Order (Nov. 24, 2014) at 2, Culligan, and
all parties later obliged.
The parties and the undersigned proceeded to identify questions for the experts (to be
researched and answered before the hearing) regarding the nature and timing of the first
symptom or manifestation of onset of POI in the aforementioned cases. See, e.g., Order (Feb.
18, 2015) at 1, Culligan, ECF No. 37; Scheduling Order (Jan. 30, 2015) at 1, Culligan, ECF No.
36; Pet’r’s Status Report (Dec. 29, 2014) at 1, Culligan, ECF No. 31; Scheduling Order (Nov.
8
Mr. Krueger is counsel for all but one of the petitioners in the omnibus proceeding.
9
Other than the instant case, Petitioner identified Culligan; Alexander v. Sec’y of HHS, 14-868V;
Tilley v. Sec’y of HHS, 14-818V; Fishkis v. Sec’y of HHS, 14-527V; Lee v. Sec’y of HHS, 14-
258V; Meghan McSherry v. Sec’y of HHS, 14-153V; Laughlin v. Sec’y of HHS, 13-289V.
Pet’r’s Status Report (Oct. 1, 2014) at 1, Culligan, ECF No. 23.
10
The four added cases were Chenowith v. Sec’y of HHS, 14-996V; Bello v. Sec’y of HHS, 13-
349V; Olivia Meylor v. Sec’y of HHS, 10-771V; Madelyne Meylor v. Sec’y of HHS, 10-770V.
Id. The petitioners in these cases were all represented by Mr. Krueger.
4
24, 2014) at 2, Culligan; Resp’t’s Status Report (Oct. 28, 2014) at 1, Culligan, ECF No. 24. The
parties and their experts ultimately agreed that, except in Culligan, in which the entire medical
record would be considered by the experts, the experts would “offer opinions regarding the onset
issues in the trailing cases by considering the facts of those cases as hypotheticals.” Joint Status
Report (Jan. 20, 2015) at 1, Culligan, ECF No. 33. To facilitate this process, Petitioner filed
summaries of the facts of all twelve POI cases. See Pet’r’s Ex. 9, Culligan, ECF No. 34-2. 11
Except in Culligan, the experts were to rely on the factual summaries, in lieu of the medical
records themselves, to articulate their opinions regarding timeliness. See Joint Status Report
(Jan. 20, 2015) at 1, Culligan.
At a status conference held on January 28, 2015, the undersigned set deadlines for the
parties’ expert reports regarding timeliness. See Order (Jan. 30, 2015) at 2, Culligan. The
experts were directed to address all of the identified timeliness questions separately, “on a
question-by-question basis.” Id. at 1.
On February 19 and March 3, 2015, three additional cases, 12 all filed by Mr. Krueger,
were added to the list of POI trailing cases. See Scheduling Order (Mar. 3, 2015) at 1, Culligan,
ECF No. 45; Scheduling Order (Feb. 19, 2015) at 1, Culligan, ECF No. 38. Mr. Krueger
subsequently filed factual summaries of the three new cases. See Pet’r’s Exs. 10, 11, 12,
Culligan, ECF Nos. 40-2, 41-2, 44-2.
On March 12, March 13, and April 29, 2015, Petitioner filed expert reports and
supporting medical literature, all of which were purportedly limited to the issue of timeliness.
See Pet’r’s Ex. 13, Culligan, ECF Nos. 47-2 to 51-6; Pet’r’s Ex. 15, Culligan, ECF Nos. 53-1 to
54-3; Pet’r’s Ex. 17, Culligan. 13 The expert reports were authored by Dr. Felice Gersh and Dr.
Orit Pinhas-Hamiel. See Pet’r’s Ex. 13, Tab 1, Culligan; Pet’r’s Ex. 15, Tab 1, Culligan. The
reports filed by Drs. Gersh and Hamiel reflected that they had reviewed the medical records
underlying all of the POI cases. See Pet’r’s Ex. 13, Tab 1 at 12-13, Culligan; Pet’r’s Ex. 15, Tab
1 at 17, Culligan.
11
A factual summary for another trailing POF case–Smith, 14-1107V –was also filed in
Culligan. See Order Appendix (Feb. 23, 2015) at 2-3, Culligan, ECF No. 39-1; see also Order
(Jan. 30, 2015) at 1-2, Culligan, ECF No. 36; Order (Jan. 26, 2015), Culligan, ECF No. 35. The
petitioner in Smith was represented by different counsel.
12
The cases were Brayboy v. Sec’y of HHS, 15-183V; Garner v. Sec’y of HHS, 15-143V; and
Vakalis v. Sec’y of HHS, 15-134V.
13
Petitioner filed Exhibit 17 via compact disc. See Notice of Intent to File on Compact Disc
(Apr. 29, 2015), Culligan, ECF No. 56.
5
The undersigned convened a status conference on April 1, 2015, after having reviewed
Petitioner’s expert reports. See Scheduling Order (Apr. 2, 2015) at 1, Culligan, ECF No. 55.
The undersigned noted that, “notwithstanding the fact that Petitioner’s onset experts have now
reviewed the medical records associated with every [POI] case, Respondent’s onset expert(s)
will review only the cases’ factual summaries, the Culligan record, and Respondent’s list of
hypothetical questions.” Id. Also, having expressed some concern about the extent to which
Petitioner’s expert reports reflected an understanding of the relevant question regarding
timeliness, the undersigned reiterated the following:
[T]he relevant date, for purposes of assessing onset under Cloer, is not the first
point in time at which a definitive diagnosis could have been made; rather, it is
the time at which the first symptom or manifestation of the allegedly vaccine-
caused injury occurred. The onset experts must make this assessment with the
benefit of hindsight, rather than placing themselves in the shoes of the treating,
diagnosing physicians. The parties are directed to address this issue as
specifically as possible in their pre-hearing briefs.
Id. (full citation omitted).
Respondent then filed an expert report regarding timeliness, as well as relevant medical
literature, on May 8, May 28, and June 1, 2015. Resp’t’s Ex. A to A.32, Culligan, ECF Nos. 57-
1 to 59-6, 63-1 to 63-3, 66-1 to 67-4. Respondent’s expert report was authored by Dr. David
Frankfurter. Resp’t’s Ex. A at 6, Culligan.
At a status conference held on May 14, 2015, Respondent confirmed that, in preparing
his expert report, Dr. Frankfurter had reviewed only the factual summaries submitted by
Petitioner (and the medical record from Culligan). See Order (May 15, 2015) at 1, Culligan,
ECF No. 61. Mr. Krueger agreed that, notwithstanding the fact that his experts had reviewed all
of the medical records in all of the POI cases, “his experts would be referring to the factual
summaries rather than to the medical records themselves” at the timeliness hearing. Id.
The parties filed their pre-hearing briefs simultaneously on June 1, 2015, see Pet’r’s
Prehearing Submissions, Culligan, ECF No. 65; Resp’t’s Prehearing Submissions, Culligan,
ECF No. 69; and the hearing took place on June 16 and 17, 2015, see Minute Entry (June 18,
2015), Culligan. Petitioner’s experts, Drs. Gersh and Hamiel, and Respondent’s expert, Dr.
Frankfurter, testified. Tr. at 4, 255, Culligan, ECF Nos. 81, 83.
6
On July 1, 2015, the undersigned issued an order identifying nine POI cases 14 “as
presumptively precluded under the applicable statute of limitations.” Order (July 1, 2015) at 1,
Culligan, ECF No. 79. Culligan was included among the presumptively precluded cases. Id.
The undersigned also identified six cases 15 that appeared to have been timely filed. Id. Having
apprised the parties of these preliminary conclusions, the undersigned granted them additional
time to file status reports identifying the cases in which they intended to contest this
determination, and explaining what they had identified as the first symptom or manifestation of
onset in each of those cases. Id. at 2.
On August 28, 2015, Respondent filed a status report in which she stated that she did not
intend to contest the undersigned’s preliminary findings in any of the presumptively timely cases
filed by Mr. Krueger. Resp’t’s Status Report (Aug. 28, 2015) at 1, Culligan, ECF No. 84. In
status reports filed on September 2 and 30, 2015, Petitioner argued that all of the preliminarily
precluded cases were, in fact, timely. See Pet’r’s Status Report (Sept. 2, 2015) at 2-7, Culligan,
ECF No. 85 (addressing Culligan, Chenowith, Garner, Lee, Lydia McSherry, and Madelyne
Meylor); Pet’r’s Status Report (Sept. 30, 2015) at 1-2, Culligan, ECF No. 87 (addressing Fishkis,
Meghan McSherry, Stone).
At a status conference held on October 13, 2015, the undersigned “informed the parties
that, for purposes of an onset determination, the [POI] cases [would] be divided [into] two
groups: petitioners who never menstruated . . . and the rest of the [POI] petitioners.” See
Scheduling Order (Oct. 14, 2015) at 1, Culligan, ECF No. 88.
Relevant post-hearing briefing 16 concluded on January 20, 2016. See Pet’r’s Post Hr’g
Br., Culligan, ECF No. 91; Resp’t’s Post Hr’g Brs., Culligan, ECF No. 94; Pet’r’s Post Hr’g
Reply Br., Culligan, ECF No. 95. Petitioner’s claim is now ready for a determination of the first
symptom or manifestation of onset of the alleged vaccine-related injury; and, relatedly, whether
the Vaccine Act’s statute of limitations bars the claim.
14
The instant case, as well as Culligan, Chenowith, Fishkis, Garner, Lee, Meghan McSherry,
Madelyne Meylor, and Laughlin. Order (July 1, 2015) at 1.
15
Alexander, Bello, Brayboy, Olivia Meylor, and Vakalis. Id. The undersigned also identified as
timely Smith, a trailing POF case that had been filed by a different attorney. Id. In Tilley, the
undersigned directed the parties to file additional briefs regarding timeliness. Id.
16
Briefing addressing Petitioner’s request for interim attorneys’ fees is not relevant to the
timeliness issue and is therefore not included in this discussion.
7
III. ANALYSIS
A. Applicable Legal Standard
Section 300aa-16(a)(2) of the Vaccine Act provides that, regarding
a vaccine set forth in the Vaccine Injury Table which is administered after
[October 1, 1998], 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 . . . of such injury.
42 U.S.C. § 300aa-16(a)(2).
This statute of limitations is not triggered by the administration of the vaccine, but
“begins to run on the date of occurrence of the first symptom or manifestation of onset of the
vaccine-related injury for which compensation is sought.” Cloer, 654 F.3d at 1335. “[E]ither a
‘symptom’ or a ‘manifestation of onset’ can trigger the running of the statute [of limitations],
whichever is first.” Markovich v. Sec’y of HHS, 477 F.3d 1353, 1357 (Fed. Cir. 2007).
“[I]t is the first symptom or manifestation of an alleged vaccine injury, not first date
when diagnosis would be possible, that triggers the statute of limitations.” Carson ex rel.
Carson v. Sec’y of HHS, 727 F.3d 1365, 1369 (Fed. Cir. 2013), reh’g & reh’g en banc denied,
2013 WL 4528833 at *1. “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.” Markovich, 477 F.3d at 1357. While the
symptom of an injury must be recognized as such “by the medical profession at large,” Cloer,
654 F.3d at 1335, even subtle symptoms that a petitioner would recognize “‘only with the
benefit of hindsight, after a doctor makes a definitive diagnosis of injury,’” trigger the running
of the statute of limitations, whether or not the petitioner or even multiple medical providers
understood their significance at the time. Carson, 727 F.3d at 1369-70 (quoting Markovich,
477 F.3d at 1358). 17
17
Petitioner argues that “POI is a latent injury” and that “the first symptom of onset, in terms of
the applications [sic] of the statute of limitations, can be subtle and can precede manifestation of
onset by months or even years.” Pet’r’s Post Hr’g. Br. at 9. This argument has been made
before: the Court of Federal Claims, in Setnes v. United States, 57 Fed. Cl. 175 (2003), “was
concerned with the very subtle symptoms attributed with autism that can be easily confused with
typical child behavior, and it distinguished the terms ‘symptom’ and ‘manifestation.’”
Markovitch, 477 F.3d at 1357-58. The Setnes court’s interpretation of the “first symptom or
8
There is no explicit or implied discovery rule under the Vaccine Act. Cloer, 654 F.3d
at 1337. The date of the occurrence of the first symptom or manifestation of onset of the
alleged vaccine-related injury “does not depend on when a petitioner knew or reasonably
should have known anything adverse about her condition.” Id. at 1339. Nor does it depend
on when a petitioner knew or should have known of a potential connection between an injury
and a vaccine. Id. at 1338 (“Congress made the deliberate choice to trigger the Vaccine Act
statute of limitations from the date of occurrence of the first symptom or manifestation of the
injury for which relief is sought, an event that does not depend on the knowledge of a
petitioner as to the cause of an injury.”); see Markovich, 477 F.3d at 1358 (“Congress
intended the limitation 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.” (internal quotation marks omitted)).
B. Symptoms of POI Onset, Including Criteria for Distinguishing “Symptom” from
“Normal”
Primary ovarian insufficiency can begin abruptly, see Tr. at 69; see also Nelson at 2-3;
but it may also develop over several years, see Tr. at 70, 198-99, 398; see also Nelson at 2-3;
Pet’r’s Ex. 17, Tab 50 at 2 (Paolo Beck-Peccaz & Luca Persam, Premature Ovarian Failure, 1
Orphanet J. Rare Diseases, at 2 (Apr. 2006)) (hereinafter “Beck-Peccaz”). Thus, a woman could
have symptoms of POI for several years before actually ceasing menstruation or being diagnosed
with POI. See Tr. at 70, 198-99, 398; see also Tr. at 319; Nelson at 2-3; Beck-Peccaz at 2. The
experts agreed that the symptoms of primary ovarian insufficiency include menstrual
irregularities, including primary and secondary amenorrhea, 18 cycle and frequency irregularity,
and excessive or prolonged bleeding; delayed menarche; lack of breast development and poor
growth velocity; night sweats; hot flashes; sleep disturbances; mood changes; recurring ovarian
cysts; arrested puberty; and marked hirsutism. Tr. at 38, 57, 68-69, 319, 366. Most of these
symptoms are not “normal” for a woman under the age of 40. Petitioner therefore does not
dispute that they can constitute the “first symptom or manifestation of onset” of POI for purposes
of the Act’s statute of limitations, and there was little discussion of the symptoms beyond their
inclusion on the list of symptoms. As to menstrual irregularities and delayed menarche,
however, Petitioner and Petitioner’s experts dispute that these two conditions should be
considered symptoms at all, because many young women experience these conditions at the
manifestation of onset” language of the statute was rejected by Markovich, a ruling that has since
been reaffirmed by the Federal Circuit en banc in Cloer. 654 F.3d at 1334-1335.
18
Amenorrhea is “absence or abnormal stoppage of the menses.” Amenorrhea, Dorland’s.
Primary amenorrhea is “failure of menstruation to occur at puberty.” Primary Amenorrhea,
Dorland’s. Secondary amenorrhea is “cessation of menstruation after it has once been
established at puberty.” Secondary Amenorrhea, Dorland’s.
9
beginning of their reproductive lives, such that these conditions are considered “normal.” See,
e.g., Pet’r’s Post Hr’g Br. at 2, 4-8; Tr. at 32, 58, 61, 72-73, 170-71; see also Tr. at 380
(Respondent’s expert, Dr. Frankfurter, explaining that it is normal for a teenager to have
irregularity, albeit within a range). As a result, Petitioner and her experts claim, menstrual
irregularity only constitutes a symptom or manifestation of onset of POI when that irregularity is
effectively considered secondary amenorrhea. Pet’r’s Post Hr’g Br. at 4-5; Pet’r’s Post Hr’g
Rep. Br. at 3.
By instead finding that “normal” menstrual irregularity is a symptom for purposes of the
Act’s statute of limitations, Petitioner argues, the undersigned will somehow increase
Petitioner’s burden of proof. See Pet’r’s Post Hr’g Reply Br. at 1-2. The undersigned does not
agree. The undersigned does agree, however, that to qualify as the first symptom or
manifestation of onset under the Act, a condition must be a symptom of something amiss,
however subtle; it cannot be “normal”: a symptom is “[a]ny morbid phenomenon or departure
from the normal in structure, function, or sensation, experienced by the patient and indicative of
disease.” Symptom, Stedman’s Medical Dictionary (28th Ed. 2013) (hereinafter “Stedman’s”)
(emphasis added); accord Markovich, 477 F.3d at 1360 (observing that eye blinking episodes
constituting first symptom of child’s seizure disorder “were not normal child behavior”). In
order to determine the date of the first symptom or manifestation of onset of the vaccine-related
injury, therefore, a method for separating “normal” menstrual irregularities from abnormal
symptoms of POI is necessary. 19
Fortunately, medical literature provided by the parties provides a solution, both simple
and elegant. See Resp’t’s Ex. A.2, ECF No. 57-4 (Comm. on Adolescent Health Care, Am. Coll.
of Obstetricians & Gynecologists, Menstruation in Girls and Adolescents: Using the Menstrual
Cycle as a Vital Sign, Comm. Op. No. 349 (Nov. 2006)) (hereinafter “ACOG Opinion” or
“ACOG Op.”); see also Pet’r’s Ex. 15, Tab 4. In Cloer and Markovich, the Federal Circuit
directed that “the symptom or manifestation of onset must be recognized as such by the medical
19
Petitioner also argues that irregular menstruation should not be considered the first symptom
of POI because it “can be explained by other causes.” Pet’r’s Post Hr’g Reply Br. at 2-3. This
argument has been repeatedly rejected by the Federal Circuit, and is equally as unpersuasive
here. A symptom need not be exclusive to the particular injury alleged in order to be “the first
symptom” of that injury for purposes of the Act. See Markovich, 477 F.3d at 1357 (“A symptom
may be indicative of a variety of conditions or ailments, and it may be difficult for lay persons to
appreciate the significance of a symptom with regard to a particular injury.”); see also Carson,
727 F.3d at 1370 (holding that even where “[t]here is no question that speech delay can be
indicative of several conditions, and in some circumstances may even be normal . . . it was not
arbitrary and capricious for the Chief Special Master to find that the severe speech delay . . . was
the first objectively recognizable symptom of autism, the alleged vaccine injury.”)
10
profession at large.” Cloer, 654 F.3d at 1335; Markovich, 477 F.3d at 1360. The ACOG
Opinion is an opinion from the Committee on Adolescent Healthcare at the American College of
Obstetricians and Gynecologists, together with the American Academy of Pediatrics, entitled
“Menstruation in Girls and Adolescents: Using the Menstrual Cycle as a Vital Sign.” See ACOG
Op. It was issued in November 2006, and “Reaffirmed” in 2009. ACOG Op. at 1. The abstract
of the ACOG Opinion provides:
It is . . . important for clinicians to have an understanding of bleeding patterns in
girls and adolescents, the ability to differentiate between normal and abnormal
menstruation, and the skill to know how to evaluate young patients’ conditions
appropriately. Using the menstrual cycle as an additional vital sign adds a
powerful tool to the assessment of normal development and the exclusion of
serious pathologic conditions.
Id. The article goes on to discuss a number of articles and robust epidemiological studies
concerning what constitutes “normal menstrual cycles in young females,” including age at
menarche, and “cycle length and ovulation,” id. at 2-3; “abnormal menstrual cycles,” including
“prolonged interval[s],” id. at 3-4; and “excessive menstrual flow,” id. at 4. The article
concludes with a chart, reproduced below, that together with one difference applicable to women
older than 18, provides comprehensive guidance to the “medical profession at large” about when
menstrual irregularities have exceeded “normal” variation to become symptoms of a potential
problem. Id. at 4-5. The chart is as follows:
Menstrual Conditions That May Require Evaluation
Menstrual periods that:
• Have not started within 3 years of thelarche[20]
• Have not started by 13 years of age with no signs of pubertal development[21]
20
Thelarche is “the beginning of development of breasts in the female.” Thelarche, Stedman’s.
21
Pubertal development is measured by assessing an individual’s stages of puberty using the
Tanner growth chart, which is “based on pubic hair growth, development of genitalia in boys,
and breast development in girls.” Tanner stage, Stedman’s. For purposes of the ACOG criteria,
the undersigned considers Tanner stages I (child) and II (prepubertal) as showing “no signs of
pubertal development,” and Tanner stags III (early pubescent) and IV (late pubescent) as
showing such signs. Dr. Frankfurter testified that a young woman who has never menstruated
and who has no signs of secondary sexual development by age 13 should be evaluated. Tr. at
377.
11
• Have not started by 14 years of age with signs of hirsutism[22]
• Have not started by 14 years of age with a history or examination suggestive of
excessive exercise or eating disorder
• Have not started by 14 years of age with concerns about genital outflow tract
obstruction or anomaly
• Have not started by 15 years of age[23]
• Are regular, occurring monthly, and then become markedly irregular[24]
• Occur more frequently than every 21 days or less frequently than every 45 days[25]
• Occur 90 days apart even for one cycle[26]
• Last more than 7 days
• Require frequent pad or tampon changes (soaking more than one every 1-2 hours)
Id. at 5.
22
Hirsutism is the “presence of excessive bodily and facial hair, usually in a male pattern,
especially in women.” Hirsutism, Stedman’s.
23
At the hearing, Doctors Hamiel and Gersh opined that an adolescent who has not reached
menarche by age 16 should be evaluated for primary amenorrhea. Tr. at 92, 238. Dr.
Frankfurter opined that the age of evaluation should be 15 years. Tr. at 365. Both the ACOG
Opinion and Dr. Hillard, author of medical literature introduced by Petitioner, acknowledge that
the traditional definition of primary amenorrhea has been no menarche by age 16. ACOG Op. at
2; Pet’r’s Ex. 15, Tab 4, at 5, ECF No. 53-5 (Hillard, Paula, Menstruation in Adolescents: What
Do We Know? and What Do We Do with the Information?, 27 J. Pediatric Adolescent
Gynecology 309 (2014)) (hereinafter “Hillard” with pincites to Petitioner’s pagination).
However, both articles note that 95-98% of females will have experienced menarche by age 15,
and that delays in evaluating these young women can result in delays in detection and treatment
of significant disorders, including POI. ACOG Op. at 2; Hillard at 6.
24
At the hearing, Dr. Hamiel testified that she would recommend further evaluation of a non-
adolescent woman whose cycle had been regular (21-35 days) and then became irregular (less
frequent than every 35 days). Tr. at 67.
25
For women over the age of 18, this criterion is more frequently than every 21 days or less
frequently than every 34 days. See ACOG Op. at 3; see also Tr. at 39 (documenting Dr.
Hamiel’s testimony normal menstrual frequency for a woman in her twenties is 21-35 days).
The undersigned interprets this criterion to apply to frequency over two or more cycles.
26
At the hearing, Dr. Hamiel testified that no menstruation for 90 days is not “normal.” Tr. at
79.
12
Hillard reproduces this chart, accompanied with this caution:
Failure to evaluate teens who meet the criteria cited in the [ACOG] Opinion can
be a significant disservice to young women, leading to unnecessary discomfort,
embarrassment, poorer quality of life, adverse self esteem, and current or future
health risks such as anemia and low bone mineral density, as well as potential
metabolic and cardiovascular risks. . . . [J]ust as with other vital signs like pulse
and respiration, [menstrual cycle] values outside of statistically derived normal
parameters may signal disease or derangements in normal health.
Hillard at 8 (emphasis added).
There cannot be a better vehicle for the undersigned to use to sort out “normal” from
“symptom” than one designed for that purpose by members of the medical profession
themselves. Thus, the undersigned finds that for petitioners who were eighteen years old or
younger at the time the condition arose, if the condition qualifies for evaluation on the ACOG
chart, it constitutes a symptom for purposes of the Vaccine Act. For petitioners who were over
eighteen years old at the time the condition arose, the chart also applies, except that periods that
should be evaluated include those that occur more frequently than every 21 days or less
frequently than every 34 days. See ACOG Op. at 3. 27
Finally, as to contraceptives’ impact on this analysis, Hillard specifically limited her
discussion “only to bleeding on young women who are not taking any hormonal therapy such as
birth control.” Hillard at 6. All of the experts at the hearing agreed that hormonal therapy would
mask POI symptoms. Tr. at 115, 161, 387-88. The ACOG Opinion recommends blood
collection for screening before hormonal treatment is begun, ACOG Op. at 4, as did Doctors
Hamiel, Tr. at 95-97, and Frankfurter, Tr. at 377, at the hearing; although, both experts
27
To the extent Petitioner argues that this interpretation of the Vaccine Act’s statute of
limitations violates the Fifth Amendment on Equal Protection and Due Process Grounds, see
Pet’r’s Post Hr’g Br. at 11-13, the undersigned concurs with the reasoning articulated in
numerous decisions to the contrary, all of which hold that the Act’s statute of limitations does
not violate the Constitution merely because it bars certain petitioners from bringing a claim
before they knew, or even could have known, that their injuries were vaccine-related. See, e.g.,
Cloer v. Sec’y of HHS, 85 Fed. Cl. 141, 150-51 (2008), rev’d on other grounds, 603 F.3d 1341,
aff’d en banc, 654 F.3d 1322 (Fed. Cir. 2011); Leuz v. Sec’y of HHS, 63 Fed. Cl. 602, 607-12
(2005); Wax v. Sec’y of HHS, No. 03-2830V, 2012 WL 3867161, at *6-8 (Fed. Cl. Spec. Mstr.
Aug. 7, 2012); Blackmon v. Am. Home Prods. Corp., 328 F. Supp. 2d 647, 655-57 (S.D. Tex.
2004); Reilly ex rel. Reilly v. Wyeth, 876 N.E.2d 740, 753-54 (Ill. App. Ct. 2007).
13
acknowledged that such testing is often not performed before hormonal treatment is started. Tr.
at 95-97, 112-13, 387-92.
Based on that information, the undersigned makes the following findings regarding how
contraceptive use will inform the undersigned’s findings on onset for purposes of the statute of
limitations: 28
1. If the form of contraceptive used was non-hormonal, i.e., a copper IUD without
hormones, 29 condom/diaphragm, spermicide, the ACOG criteria apply as discussed
above, without changes;
2. By definition, a contraceptive is “an agent that diminishes the likelihood of or prevents
conception.” Contraceptive, Dorland’s. Therefore, if the medical records show that a
hormonal contraceptive was prescribed for its primary purpose, that is, for contraception,
rather than as treatment for menstrual irregularities; or if the medical records are silent as
to the purpose of the prescription and the contraceptive use spanned the date on which the
statute of limitations would have begun to run; the statute of limitations will not preclude
the claim;
3. If the medical records indicate that the hormonal contraceptive was prescribed to treat
menstrual irregularities, or if menstrual irregularities were a reason for the medical visit
that resulted in the prescription of the contraceptive, then the undersigned will find that
the menstrual irregularities were not “normal,” but resulted in treatment, and therefore
constituted a symptom for purposes of the statute of limitations.
C. Application of the Onset Symptom Criteria to the Present Case
Petitioners filed their petition on February 27, 2014. By extension, the petition is time-
barred if “the first symptom or manifestation of onset” of her alleged vaccine injury, POI,
occurred before February 27, 2011. Drs. Hersh and Hamiel argue that the irregularity of Ms.
McSherry’s menstruation alone is not a reliable means to determine the first symptom of POI.
Pet’r’s Ex. 13 at 8, Culligan, ECF No. 47-1; Pet’r’s Ex. 15 at 10, Culligan, ECF No. 53-1.
Instead, they posit that the statute of limitations did not begin to run until Ms. McSherry’s
irregularity reached the level of amenorrhea. Pet’r’s Ex. 13 at 8, Culligan; Pet’r’s Ex. 15 at 10,
Culligan. Neither expert cites medical literature in support of this conclusory assertion, which is
directly refuted by the findings of the ACOG Opinion.
28
This decision expresses no opinion concerning the effect, if any, of contraceptive use on the
question of causation in a POI case.
29
Dr. Frankfurther indicated that non-hormonal copper IUDs may affect the volume of flow but
do not influence the cycle length or frequency. Tr. at 422.
14
The undersigned finds that the first symptom of Ms. McSherry’s POI occurred no later
than September 25, 2010, when she reported that she had not menstruated in over four months.
See Pet’r’s Ex. 4 at 51. 30 At that point, Ms. McSherry’s menstrual cycle vital sign was not
normal pursuant to the ACOG criteria, as more than 90 days had passed between her menstrual
periods. See ACOG Op. at 5. Dr. Hamiel, Petitioners’ expert, twice admitted at the hearing that
the passing of greater than 90 days between menstrual cycles was an indicator of POI. Tr. at 55,
79.
In addition, a diagnosis of POI can be obtained after four months of amenorrhea—a fact
on which both experts agree; and here, the undersigned finds that the four month lack of
menstruation that Ms. McSherry reported constituted the first symptom of POI. That Ms.
McSherry was not officially diagnosed with amenorrhea after four months is irrelevant. Even
accepting Petitioners’ claim that only amenorrhea can constitute a symptom of POI, Petitioners’
claim would still be barred by the statute of limitations, as amenorrhea occurred in 2010 when
Ms. McSherry reported four months without menstruation.
In sum, the undersigned finds that the gap between menstrual periods noted in Ms.
McSherry’s September 25, 2010 medical visit constituted symptomatic menstrual irregularity.
Accordingly, the gap was the first symptom of her allegedly vaccine-caused injury, POI.
IV. CONCLUSION
Based on the foregoing analysis, the undersigned finds that the first symptom of Ms.
McSherry’s injury was September 2010. Because that date precedes the statute of limitations
deadline by five months, the undersigned concludes that Petitioners’ claim is time-barred. Their
petition therefore must be, and is hereby, DISMISSED.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court is directed to enter judgment herewith. 31
/s/ Lisa D. Hamilton-Fieldman
Lisa D. Hamilton-Fieldman
Special Master
30
Ms. McSherry reaffirmed that such irregularity met the ACOG Opinion’s definition of
irregularity beginning in 2010 when she reported to her doctor on September 28, 2011 that she
only menstruated once in the previous year. Pet’r’s Ex. 4 at 46.
31
Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgment by filing a notice
renouncing the right to seek review by a United States Court of Federal Claims judge.
15