The Cloer Decision - When Does the Statute of Limitations Begin to Run for Vaccine-Induced Autism?
Posted Jun 10 2010 12:00am
By Kent Heckenlively, Esq.
It's a question my wife has often asked in the past. Could we ever bring a case for the injuries our daughter sustained in early December of 1998 when her six-month series of shots caused her seizures and autism?
In the past my answer was no. The reason was we'd missed the statute of limitations. I first became aware that vaccines may have caused my daughter's autism in January of 2002 when my son had a negative reaction to his eighteen-month series of shots and I read Karyn Serrousi's book Unraveling the Mystery of Autism and PDD.
The reason I gave her was that National Childhood Vaccine Injury Act of 1986 specifies a claim must be filed within three years of the first manifestation of symptoms. We were beyond the statute of limitations and this was confirmed when I contacted some vaccine-injury lawyers to explain my circumstances.
"That's not fair," my wife would say. I agreed with her. The only consolation I could give was that if we were ever able to prove that vaccines caused autism Congress would probably establish some sort of fund to which we could apply.
Then came Cloer v. Secretary of Health and Human Services, (2010 WL 1791422 (C.A.Fed.)), decided on May 6, 2010 and I have to say my wife's fairness argument is beginning to get some support in the United States Court of Appeals, Federal Circuit.
In Cloer the claimant was diagnosed with multiple sclerosis (MS) after a series of hepatitis B shots. The problem is that no medical authorities linked the hepatitis B shots with MS until after the statute of limitations had passed.
The court in Cloer seemed to think it was unreasonable to ask a claimant to bring an action for a vaccine injury if the injury was one which the medical community did not believe was linked to a vaccine. As the majority in Cloer stated, "Thus, we hold that, in general, for the purposes of section 300aa-16(a)(2), to be 'vaccine-related' the 'first symptom or manifestation of onset or of the significant aggravation of such injury' cannot occur until the medical community at large objectively realizes a link between the vaccine and the injury."
In commenting on the dissenting opinion the Cloer majority noted, "The dissenting opinion would require that the statute of limitations begin running even if there was no known medical association between a vaccine and an injury. A petitioner who suffered a hypothetical injury in Year 1 would be required to file a petition within three years even if no one in the medical community knew of the association between the vaccine and the injury until Year 5." (P. 6)
To put the matter in plain English, Cloer is saying that the statute of limitations cannot begin to run on a claimed vaccine injury until the medical community at large accepts that a certain vaccine can cause that particular injury. Perhaps the statute of limitations has not begun to run on any of our claims of vaccine-induced autism. The medical authorities continue to claim there is no link between vaccines and autism. If there turns out to be a link, why should their denial and outright obstruction of meaningful research prevent us from bringing an action?
In what I think was the penultimate statement of reason the court held, "The general purpose of a statute of limitations is that a person should be diligent in pursuing her claim but, in this situation, it would be impossible for a petitioner-even if perfectly diligent-to know that she needed to file a claim. And if such petitioner did bring a claim for her injury, it would probably be denied as she likely would be unable to prove causation-in-fact. Thus, the statute of limitations cannot begin to run when there is no medically recognized link between the vaccine and the injury." (P. 8)
The Cloer decision is working its way through the appeals process and it may be some time before we have a clear picture of whether this opinion will become settled law.
However, the abundant common sense displayed in this decision gives me hope that we may one day be able to face the pharmaceutical companies in open court for vaccine-induced autism, regardless of how many years ago it took place.
Kent Heckenlively is Legal Editor of Age of Autism
It's a question my wife has often asked in the past. Could we ever bring a case for the injuries our daughter sustained in early December of 1998 when her six-month series of shots caused her seizures and autism?
In the past my answer was no. The reason was we'd missed the statute of limitations. I first became aware that vaccines may have caused my daughter's autism in January of 2002 when my son had a negative reaction to his eighteen-month series of shots and I read Karyn Serrousi's book Unraveling the Mystery of Autism and PDD.
The reason I gave her was that National Childhood Vaccine Injury Act of 1986 specifies a claim must be filed within three years of the first manifestation of symptoms. We were beyond the statute of limitations and this was confirmed when I contacted some vaccine-injury lawyers to explain my circumstances.
"That's not fair," my wife would say. I agreed with her. The only consolation I could give was that if we were ever able to prove that vaccines caused autism Congress would probably establish some sort of fund to which we could apply.
Then came Cloer v. Secretary of Health and Human Services, (2010 WL 1791422 (C.A.Fed.)), decided on May 6, 2010 and I have to say my wife's fairness argument is beginning to get some support in the United States Court of Appeals, Federal Circuit.
In Cloer the claimant was diagnosed with multiple sclerosis (MS) after a series of hepatitis B shots. The problem is that no medical authorities linked the hepatitis B shots with MS until after the statute of limitations had passed.
The court in Cloer seemed to think it was unreasonable to ask a claimant to bring an action for a vaccine injury if the injury was one which the medical community did not believe was linked to a vaccine. As the majority in Cloer stated, "Thus, we hold that, in general, for the purposes of section 300aa-16(a)(2), to be 'vaccine-related' the 'first symptom or manifestation of onset or of the significant aggravation of such injury' cannot occur until the medical community at large objectively realizes a link between the vaccine and the injury."
In commenting on the dissenting opinion the Cloer majority noted, "The dissenting opinion would require that the statute of limitations begin running even if there was no known medical association between a vaccine and an injury. A petitioner who suffered a hypothetical injury in Year 1 would be required to file a petition within three years even if no one in the medical community knew of the association between the vaccine and the injury until Year 5." (P. 6)
To put the matter in plain English, Cloer is saying that the statute of limitations cannot begin to run on a claimed vaccine injury until the medical community at large accepts that a certain vaccine can cause that particular injury. Perhaps the statute of limitations has not begun to run on any of our claims of vaccine-induced autism. The medical authorities continue to claim there is no link between vaccines and autism. If there turns out to be a link, why should their denial and outright obstruction of meaningful research prevent us from bringing an action?
In what I think was the penultimate statement of reason the court held, "The general purpose of a statute of limitations is that a person should be diligent in pursuing her claim but, in this situation, it would be impossible for a petitioner-even if perfectly diligent-to know that she needed to file a claim. And if such petitioner did bring a claim for her injury, it would probably be denied as she likely would be unable to prove causation-in-fact. Thus, the statute of limitations cannot begin to run when there is no medically recognized link between the vaccine and the injury." (P. 8)
The Cloer decision is working its way through the appeals process and it may be some time before we have a clear picture of whether this opinion will become settled law.
However, the abundant common sense displayed in this decision gives me hope that we may one day be able to face the pharmaceutical companies in open court for vaccine-induced autism, regardless of how many years ago it took place.
Kent Heckenlively is Legal Editor of Age of Autism