Thomann v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 15-1199V
Filed: February 25, 2016
(Not to be published)
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MARK THOMANN, * Special Master Gowen
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Petitioner, * Dismissal; Section 16(a)(2); Statute
v. * of Limitations
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SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
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Respondent. *
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Mark Thomann, Chicago, IL, pro se.
Ann D. Martin, United States Department of Justice, Washington, DC for respondent.
DECISION DISMISSING PETITION1
On October 14, 2015, Mark Thomann (“petitioner”) filed a petition pro se for
compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10,
et seq.2 [the “Vaccine Act” or “Program”]. The petition alleged that he received an influenza
vaccine on September 18, 2012, and was diagnosed with Guillain Barré Syndrome (“GBS”) on
October 14, 2012. Petition at 1. Medical records filed with the petition suggest that petitioner
presented to the emergency department (“ED”) on or about October 10, 2012, reporting “a week
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Because this decision contains a reasoned explanation for the undersigned’s action in this case, the
undersigned intends to post this ruling on the website of the United States Court of Federal Claims, in
accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services). As provided by Vaccine Rule 18(b), each party has 14
days within which 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
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
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of feeling progressively unbalanced, unsteady gait, having numbness/tingling in his feet and
numbness in his hands.” Resp. Motion at 1-2 (citing Petition, Attached Documentation at 53).
An initial telephonic status conference was held on December 1, 2015 to discuss
petitioner’s claim. During the status conference, the undersigned and the parties discussed the
potential statute of limitations issue in this case. Respondent filed a motion to dismiss on
January 29, 2016, pursuant to the Vaccine Act’s statute of limitations. Petitioner did not file a
response. This matter is now ripe for a decision.
I. Legal Standard
Pursuant to 42 U.S.C. § 300aa-16(a)(2), the Vaccine Act provides that “no petition may
be filed for compensation . . . after the expiration of thirty-six months after the date of the
occurrence of the first symptom or manifestation of onset or of the significant aggravation of
such injury.” The Federal Circuit has held that there is no explicit or implied discovery rule
under the Vaccine Act. Cloer v. Sec’y of Health & Human Servs., 654 F.3d 1322, 1338-40 (Fed.
Cir. 2011). The date of the occurrence of the first symptom or manifestation of onset “does not
depend on when a petitioner knew or reasonably should have known anything adverse about
[his] condition.” Id. at 1339. 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 [a vaccine] injury in a specific case.” Goetz v. Sec’y of Health & Human
Servs., 45 Fed. Cl 340, 342 (Fed. Cl. 1999), aff’d, 4 Fed. Appx. 827 (Fed. Cir. 2001).
II. Analysis
The petition in this case was filed on October 14, 2015. Accordingly, petitioner would be
in compliance with the statute of limitations only if the onset of petitioner’s GBS occurred on or
after October 14, 2012. Respondent contends that the history provided in the October 18, 2012,
discharge summary supports a finding that onset of petitioner’s GBS symptoms occurred about
one week prior to the October 10, 2012, ED visit. Resp. Motion at 2 (referencing Petition,
Attached Documentation at 5). An October 18, 2012, discharge summary suggests that
petitioner presented to the emergency department (“ED”) on or about October 10, 2012,
reporting “a week of feeling progressively unbalanced, unsteady gait, having numbness/tingling
in his feet and numbness in his hands.” Id. at 1-2 (citing Petition, Attached Documentation at 5).
In addition, respondent notes that records of email correspondence between petitioner and one of
his physicians, Leo I. Gordon, M.D., dated October 8, 2012, states: “Over the last few days, my
legs have becomes increasingly weak to a point where I cannot run and walk with discomfort.”
Id. (citing Petition, Attached Documentation at 31). These symptoms are consistent with early
GBS, and in light of the ultimate diagnosis of GBS, are highly likely to have been the initial
manifestation of the disorder.
The evidence filed to date establishes that symptoms of petitioner’s GBS began prior to
October 14, 2012. The petitioner has not filed anything to dispute this conclusion. Accordingly,
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Medical records were filed as part of the same PDF document as the petition, and are not individually
paginated. Therefore, records are cited by the CM/ECF generated page number.
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this case is DISMISSED on the grounds that the claim is barred under section 300aa-
16(a)(2) of the Vaccine Act. The Clerk of the Court shall enter judgement accordingly.
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
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