Soprano v. Secretary of Health and Human Services

REISSUED FOR PUBLICATION
MAR 7 2017
OSM
U.S. COURT OF FEDERAL CLAIMS
3Jn tbe mlniteb ~tates ~ourt of jfeberal ~lai1ns
OFFICE OF SPECIAL MASTERS
February 9, 20 17
No. 17-74v
* * * * * * * * * * * * * * * FILED
MARKA. SOPRANO, * FEB -9 2017
* UNPUBLISHED
OSM
Petitioner, * U.S. COURT OF
* FEDERAL ClAlll8
V. * Special Master Gowen
*
SECRETARY OF HEALTH * Dismissal Decision; Statute of Limitations;
AND HUMAN SERVICES, * 42 U.S.C. § 300aa-16(a)(2)
*
Respondent. *
* * * * * * * * * * * * * * *
Mark A. Soprano, Cmtland, NY, prose.
Douglas Ross, United States Depa1tment of Justice, Washington, DC for respondent.
DECISION DISMISSING PETITION 1
On January 17, 2017, Mark A. Soprano ("petitioner"), acting prose, filed a petition 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 suffered a significant
aggravation of underlying psoriasis and dermatitis, as the result of an influenza vaccine
administered on October 10, 2013. Petition at 1. The petition was not accompanied by any
medical records.
On February 8, 2017, the undersigned held an initial status conference to discuss
petitioner's claim. Petitioner appeared prose and Mr. Douglas Ross appeared on behalf of
respondent. The status conference was digitally recorded. Dming the status conference, the
1
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. § 350 1 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
Nationa l 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 pe1tinent subparagraph of 42 U.S.C. §
300aa (2012).
J ~
undersigned and the parties discussed the statute of limitations issue in this case. For the reasons
set forth below, this case is DISMISSED because it was filed outside of the statute of limitations
of the Vaccine Act.
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 thi1ty-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 13 39. 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), affd. 4 Fed. Appx. 827 (Fed. Cir. 2001).
II. Analysis
During the status conference, the undersigned listened to petitioner's account of his
medical history. Petitioner stated that he had a history of dermatitis and psoriasis, which were
treated with topical steroids. Petitioner's claim stems from an influenza vaccine administered on
October 10, 2013. The first symptom attributed to the vaccine was blistering on his hands,
which occurred within about one month of the vaccine, which was approximately November 10,
2013. Petitioner stated that this symptom persisted for several months and that he experienced
further symptoms beginning in mid-2014. However, petitioner acknowledged that the Vaccine
Act's statute of limitations is thirty-six months from the occurrence of the first symptom
attributed to the vaccine. In this case, his first symptom occmTed on or before November 10,
2013. More than thiity-eight months passed between this first symptom and the filing of his
claim on January 17, 2017. Therefore, the claim was filed outside of the appropriate limitations
period. The undersigned stated that the facts of this case were clear, and that there was no
applicable exception to the statute of limitations.
Accordingly, this claim is DISMISSED on the grounds that it 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.
~
Dated: ~t; Z,Of/
Special Master