Cloer v. Secretary of Health and Human Services

603 F.3d 1341, 2010 U.S. App. LEXIS 9268, 2010 WL 1791422
CourtCourt of Appeals for the Federal Circuit
DecidedMay 6, 2010
Docket2009-5052
StatusPublished
Cited by29 cases

This text of 603 F.3d 1341 (Cloer v. Secretary of Health and Human Services) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cloer v. Secretary of Health and Human Services, 603 F.3d 1341, 2010 U.S. App. LEXIS 9268, 2010 WL 1791422 (Fed. Cir. 2010).

Opinions

MICHEL, Chief Judge.

Petitioner-appellant Melissa Cloer, M.D., appeals the decision of the United States Court of Federal Claims. Cloer v. Sec’y of Health & Human Servs., 85 Fed.Cl. 141 (2008). The decision affirmed the Chief Special Master’s report, which denied Dr. Cloer’s petition for compensation under the Vaccine Injury Compensation Program (“Vaccine Program”) established by the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (“Vaccine Act”), because it was time-barred. See Cloer v. Sec’y of Dep’t of Health & Human Servs., No. 05-1002V (Fed.Cl. May 15, 2008).

This case presents the question of whether the Vaccine Act’s statute of limitations, 42 U.S.C. § 300aa-16(a)(2), begins running where a claimant experiences a symptom of injury, but where the medical community at large does not recognize that the symptom is related to a vaccine and the claimant has not received medical information suggesting a connection. We hold that the statute of limitations does not begin running in such cases. Thus, we reverse and remand.

[1343]*1343I. BACKGROUND

Plaintiff-appellant Melissa Cloer is a physician who is disabled due to multiple sclerosis (“MS”). She had no significant medical issues prior to exhibiting symptoms of demyelinating disease. Dr. Cloer received three Hepatitis B (“Hep-B”) immunizations at the University of Missouri Student Health Center. After her first two vaccinations on September 3, 1996 and November 11, 1996, Dr. Cloer experienced some numbness and tingling. Dr. Cloer received her third Hep-B vaccination on April 3, 1997.

About a month after her final vaccination, Dr. Cloer began to experience an electric-like shock sensation in her spine. Medical professionals call this sensation a Lhermitte sign, a common symptom of MS. In September and October 1997, petitioner also lost sensation in her left arm and left hand. Dr. Cloer consulted with her primary care physician, Dr. Pereira, who prescribed Motrin. The symptoms resolved over a short period of time.

When Dr. Cloer experienced additional problems in 1998, she returned to Dr. Per-eira. Dr. Cloer underwent further testing, including a magnetic resonance imaging (MRI) scan on May 12, 1998. The MRI scan indicated that possible diagnoses for Dr. Cloer included MS, lyme disease, acute disseminating encephalomyelitis, or other demyelinating processes. A May 15, 1998 medical record specifically noted, “Probable early inactive non-progressive CNS [central nervous system] demylination/MS.... ”

In 1998, Dr. Cloer was referred to a neurologist, Dr. Meyer, with a specialty in the diagnosis and treatment of MS. Dr. Meyer treated appellant in 1998 for “singular sclerosis” or “early inactive non-progressive CNS demyelinating disease.” Dr. Cloer was given a “provisional” diagnosis of MS on November 26, 2003 by her treating neurologist Dr. Wood subsequent to his obtaining Dr. Cloer’s medical history and the results of an MRI examination.

In May 2004, Dr. Cloer applied for and was awarded monthly Social Security disability benefits due to her medical condition. As part of her eligibility for benefits, James P. Metcalf, M.D., conducted a comprehensive medical examination and noted that appellant “first beg[a]n to have some symptoms consistent with MS in 1997,” although her “symptoms waxed and waned until the fall of 2003 when she beg[a]n to have manifestations of the full blown disease.”

Dr. Cloer first became aware of an association between MS and the Hep-B vaccine when she read an editorial and prospective French study in the September 2004 issue of Neurology. Dr. Cloer reported to the Vaccine Adverse Event Reporting System (VAERS) on October 11, 2004 that she experienced numbness and tingling after her first two Hep-B vaccinations.

On September 16, 2005, Dr. Cloer filed a claim for compensation under the Vaccine Act, alleging that her Hep-B vaccinations caused or significantly aggravated her latent MS condition. On December 1, 2005, respondent-appellee Health and Human Services (“HHS”) moved to dismiss the petition because it was filed after the expiration of the statutorily prescribed limitations period.

Dr. Cloer relied upon affidavits and testimony from Dr. Meyer, a recognized expert in MS. Dr. Meyer explained that when he evaluated Dr. Cloer in 1998 her symptoms were consistent with but not independently diagnostic for clinically definite MS. He noted that symptoms of MS could occur well before a diagnosis of MS is made. Dr. Meyer testified that, in retrospect, the first sign of MS was the Lher-mitte sign that the appellant experienced in 1997.

[1344]*1344Dr. Meyer did not believe, or even consider, that Dr. Cloer had suffered a vaccine injury when he evaluated her in 1998. Dr. Meyer did not become aware of the association between MS and Hep-B immunization until he was contacted by Dr. Cloer’s counsel in late 2005. Dr. Meyer testified that a member of the medical community at large would not have recognized or believed Dr. Cloer had a vaccine injury as of 1999. Having reviewed Dr. Cloer’s prior medical records, Dr. Meyer found no indication of a link between her MS and the Hep-B immunizations before 2004. Dr. Meyer’s testimony was not rebutted by any expert.

In 2007, the Chief Special Master conducted a telephonic hearing to take Dr. Meyer’s testimony. The Chief Special Master issued his decision on May 15, 2008, determining that the first symptom, manifestation of onset, or significant aggravation of Dr. Cloer’s MS was the Lhermitte’s sign she experienced in 1997. Because Dr. Cloer filed her Vaccine Act petition on September 16, 2005, more than 36 months later, the Chief Special Master dismissed the petition as untimely. The Court of Federal Claims affirmed the Chief Special Master’s decision.

Dr. Cloer timely appealed to the Federal Circuit. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).

II. DISCUSSION

A.

Under the Vaccine Act, the Court of Federal Claims reviews the decision of the special master to determine if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]” 42 U.S.C. § 300aa-12(e)(2)(B); Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274, 1277 (Fed.Cir.2005). We review legal determinations of the Court of Federal Claims de novo. Althen, 418 F.3d at 1278. To the extent that the Court of Federal Claims adopts factual findings made by the special master, we accord them the same deference as the Court of Federal Claims and review them under the arbitrary and capricious standard as provided in the statute. Munn v. Sec’y of the Dep’t of Health & Human Servs. 970 F.2d 863, 870 (Fed.Cir.1992). While we owe no deference to either the special master or the trial court on questions of law, Whitecotton v. Sec’y of Health & Human Servs.,

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603 F.3d 1341, 2010 U.S. App. LEXIS 9268, 2010 WL 1791422, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cloer-v-secretary-of-health-and-human-services-cafc-2010.