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The Doctrine of Equitable Tolling and Vaccine Claims
The limitations period for the filing of claims under the “Vaccine Act” has kept many from recovering for vaccine-related injuries. The National Childhood Vaccine Injury Act of 1986, 42 U.S.C. ” 300aa-1 to -34 (Vaccine Act), allows a 36-month window from the time a vaccine-related injury manifests itself to the time of filing. Any claim made after that is barred by the relevant statute of limitations. 42 U.S.C. ' 300aa-16(a)(2).
Still, claimants try to stretch the boundaries, offering varying reasons for why their cases should not be time-barred. Recently, in one such case, Cloer v. Secretary of Health and Human Services, 2011 U.S. App. LEXIS 16449 (Fed. Cir. 9/5/11), the U.S. Court of Appeals for the Federal Circuit reversed a Federal Circuit panel decision and found against a woman who had won the right to pursue her claim. That case, while foreclosing the claimant's right to seek redress, also contained the reversal of a precedent set 10 years earlier in Brice v. Secretary of Health & Human Services, 240 F.3d 1367 (Fed. Cir. 2001). The Brice holding had precluded application of the doctrine of equitable tolling in Vaccine Act cases. Going forward, that rule is not necessarily a bar to late filing, though access to the courts for tardy claimants will remain very limited.
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