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Vaccine Claims: Equitable Tolling May Sometimes Now Apply

BY Janice G. Inman
December 28, 2011

Last month, we discussed the fact that the limitations period for the filing of claims under the “Vaccine Act” has kept many from recovering for vaccine-related injuries. We went on to discuss one case wherein the claimant tried to stretch the boundaries, saying her case should not be time-barred. In 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 discussion continues herein.

Cloer

The U.S. Court of Appeals for the Federal Circuit concluded in the first part of its opinion in Cloer that Congress did not write an explicit discovery rule into the statute. The question next became whether Congress had conveyed its refusal to permit an implied discovery rule that would equitably toll the statute of limitations until discovery of an injury.

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