The Cloer Decision - When Does the Statute of Limitations Begin to Run for Vaccine-Induced Autism?
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
@ Benedetta
Yes, I was referring to Vanderbilt. I was under the same impression when we started going there. It may be a great facility for other things, but that hasn't been my experience. A friend of mine whose daughter has Down's (and several other issues) has had similar problems.
In her case, her daughter was hospitalized 3 times in 2 months for "asthma" attacks that didn't seem to respond to treatment. The docs chalked it up to her underlying heart issues and sent her home. At Christmas, they were visiting relatives in another state and she got really sick and ended up in the PICU at that state's big children's hospital. The doctors there discovered that the poor girl was aspirating everything she drank and THAT was what was causing her breathing/lung issues. She, too, felt that the docs she had been seeing at Vandy just looked at her daughter's medical record and made assumptions rather than looking at each problem in depth.
I think the docs are probably very well educated and reasonably intelligent. But, I also think that if you don't fit neatly into a little category, they are too busy to be bothered with actually trying to think outside the box. I actually had a developmental pedi tell me, after observing my son, "this kid takes everything we think we know about autism and developmental delay and tosses it out the window. He could really mess up a study."
Posted by: E.T.'s Mom | June 12, 2010 at 11:50 PM
Media Scholar;
They seem to having trouble even deciding if MS is an auto immune diseaes. Then they say they can test for MS by looking for a sexual transmitted disease, and if they treat that disease then it helps MS?
Whew! Did not know it was a sexually transmitted thing. I am so relieved - that means my daughter then is probably bipolar after all from her Hep B. So I will stop whinning for an MRI.
E.T.'s Mom;
Vandy that is Vanderbilt? Vanderbilt is suppose to be a place were only the really, really, really smart people go to learn! Living in KY there have been a lot of people that have gone there for cancer, lupus and other autoimmine disease. Frustrating that those Vandys are not all that smart or perhaps just honest?
Posted by: Benedetta | June 11, 2010 at 06:11 AM
@ Media Scholar
I'm not surprised. While my son was born elsewhere, Vandy is the hospital I was referring to in my post (See below). The hospital where the doctors first refused to diagnose my son, then diagnosed him, but wouldn't look at the other problems he had as possible separate issues. So far, we have seen a GI specialist, behavioral consultant, 3 different developmental pediatricians, a neuro-geneticist, an orthopaedic specialist--all at Vandy, all with conflicting reports/diagnoses. One even managed to mistake my son with another patient and sent us a report that was completely wrong, then told me he couldn't retract the incorrect report, only revise it. Needless to say, we will never go back. I've given them enough chances to get it right. Yeah....not impressed....
E.T.'s Mom
Posted by: E.T.'s Mom | June 10, 2010 at 11:45 PM
What about all the people who have failed to file a claim because the vaccine industry and their plants inside the media have confused them into believing that there isn't a causal relationship between vaccines and neurological degeneration/Autism/Autistic-Like Disorder/Encelophanepathy?
If folks read this stuff being cranked out like sausage it gives the false perception that there's some kind of Autism fairy.
Also, since vaccine court has been settling Autism cases for many years and likely to continue for as long as the vaccine makers keep inventing excuses to further inject American children with more Thimerosal shots why hasn't a court issued a gag order preventing the vaccine industry from using their advertising clout to saturate the public with their PR?
Posted by: Deke Flabbergast | June 10, 2010 at 07:35 PM
AnaB,
You wrote, "Hmmmn, interested. MS is an acknowledged side effect of Hep B vaccine in some cases."
Check out this link....
http://xrl.in/5kvf 6710033
Vanderbilt University, the same university that sent so called experts to vigorously fight Thimerosal-ban legislation in the state of Tennessee, holds patents involving treating MS with heavy metal chelator DMSA.
You can search these if you want...
US Patent 6890526
US Patent 6710033
I say good day to all the hecklers and scoffers. That's good day!
Posted by: Media Scholar | June 10, 2010 at 07:17 PM
This may change things for our kids' case. Govt. attorneys jumped on something in a medical document-- a typo really-- in order to argue that our son had missed the cut-off because a symptom that no medical authority at the time identified as autism had appeared 3 years and two months prior to the 3 year statute of limitations. It wouldn't matter that it was a typo to the feds and that the symptom had actually appeared within the 3 year limits-- they simply look for any excuse to toss cases. But regardless of whether the feds agree or not about the timing of the symptom now, it still stands that no medical authority at the time conceded that this symptom was linked to autism.
So thank you for the break down. Let's see how it applies in the "real world"-- that is to say, the unreal world of vaccine court where 2+2 appears to be 5.
Posted by: Gatogorra | June 10, 2010 at 03:28 PM
I was diagnosed with ms in 2002. After 11 years in the military and being shot up with every vaccine imaginable, including five anthrax shots (at 35mcg thimerosal each!). My fourth anthrax shot was given in conjunction with a flu shot (throw in another 25mch of thimerosal). I had Hep B also (probably at multiple times but shot records are filed away right now and I can't verify but I had at least two of those during the 11 years).
All I got out of that besides ms was a perfect reason to not vax my kids.
Posted by: Becky | June 10, 2010 at 02:50 PM
Hmmmn, interested. MS is an acknowledged side effect of Hep B vaccine in some cases. Was it the Univ. of Ky/ Univ. of Pitt. infant primate study that censored from the Journal Neurotoxicology that show demylenation from the Hep B. shot or was that the study out of NY Stoney Brook. One of them associated Demyelenation w/the birth dose of Hep B. I find this intruiging because my son got the Hep B and was completely completely yellow within an hour. He also tests with anti-bodies to his own myelin.
Posted by: AnaB | June 10, 2010 at 01:54 PM
I wrote a blog entry on this subject a while ago.
http://kerboblog.blogspot.com/2010/05/fed-appeals-court-clockwork-strange.html
I did not note in the blog that the Appeals Court opened up an unusual can or worms.
For one, justice has officially been turned over to the lynch mob which is a very large violation of civil rights.
The missing thing that almost none of the people get is the concept of non-fault.
Posted by: kerboblog | June 10, 2010 at 12:50 PM
ONE SIZE FITS ALL rules the thinking on everything pertaining to vaccinations including adverse reactions.
Reactions within 72 hours of the DPT, a vaccine reaction. 72 hours 15minutes, not a vaccine reaction.
Vaccine science, an oxymoron.
Vaccine scientists, oxymorons.
Everything related to vaccines, the thinking, the laws, statutes, legal concepts is for the benefit of industry and the perpetuation of the believe in vaccinations and ONE SIZE FITS ALL.
Posted by: michael framson | June 10, 2010 at 12:34 PM
E.T.'s Mom, my heart goes out to you! Damn those doctors!
I just got a call from a mom with a 4 year old. She was telling me that her child was getting the testing for MR, and that she was getting some speech services weekly because her child was not talking. I asked her if anyone had mentioned a diagnosis of autism. She said "well, he does have some autistic traits, like not talking, or understanding, and he doesn't play right with toys, but he smiles and has good eye contact, so they don't think he is autistic and he is only 4, so they don't want to diagnose him."
She had no knowledge of ABA and not even heard of PDD...
The Statue of limitations in the case of vaccines is unjust, and I hope that the courts decide this is so.
Kent, thanks for sharing the case about Cloer. My sister in law has MS, and she is a PT. I would be curious to find out if she had the Hep B vaccine before she was diagnosed.
Posted by: Judith | June 10, 2010 at 12:27 PM
Pamela;
"Dig their 'heals' in". That is so right! If autism is dignosed there is no attempt to heal.
Posted by: Benedetta | June 10, 2010 at 11:25 AM
Ismom2-
So sorry for your injury. I am curious as to- what name was given to your injury? did the flu vaccine contain thimerosal? what were your symptoms? and how you are doing now? God speed.
Posted by: Teresa Conrick | June 10, 2010 at 11:13 AM
Werid you have an article on this this week, because of last week, I found the aha moment. My kids will never have their day in court, and I know it. Born in 81 and 87 they no longer have their records, and I only have one typed out chain of events from their office, that eleven days after a DPT my son had an office visit with a febrile fever and convulsion. The thing is, when you look at mice and rat studies, they know reaction delay, sometimes up to thirty days, however, the most telling for me, was the fact, that on day eleven, the mice typically reacted the worse, sometimes with death. Well, well, well...that's excatly the timing of my son, day eleven, he had high pitch screaming convulsions fever acted blind unconsollable. This is the only proof I have. The other child, was day ten on MMR, with an office visit with complaint of not eating, diahrreah and an unusual rash. Within months of those dates, I had complaints of not progressing, losing speech and eye contact, and numerous immune system problems. Will I ever get justice, probably not...because I don't fit the VAERS windows, and something deep in side me feels this conspiracy of silence, the delay in diagnosis, the hem hawing, is on purpose, to sway the parent away from etiology or the tipping point dates and correlations.
Posted by: kathy blanco | June 10, 2010 at 10:46 AM
I, too, feel the statute of limitations on vaccine injury is unfair for exactly the reasons you mentioned. I also feel that there are doctors out there who are purposely delaying diagnosis to allow the statute of limitations to run out.
My son received the hep B at 28 minutes old. He had an immediate reaction and spent time in NICU. We were told he had pneumonia from aspirating amniotic fluid, but he displayed symptoms of encephalopathy while in NICU--swollen head, arching back, screaming for hours, literally. The problem was they didn't ask permission to give the shot until he was released from the hospital, 8 days later. I didn't discover the discrepancy until over 2 years later. By this time, we knew our son had a problem, but we didn't know what it was or what caused it. Despite (I say this in retrospect--I didn't really know what autism was back then)the obvious symptoms of autism, doctors would refused to diagnose him until he was 3yrs3mo.
The reason they refused? Because he couldn't walk, either. He dragged himself around with his arms. He couldn't manage utensils to feed himself. He fell over while sitting. Despite being an ignorant first-time mother, I knew this wasn't right, but the docs kept telling me he was lazy, just big, boys develop later, etc.
Once he got the autism dx, I thought he would finally get the services he needed. Not so. We couldn't get help for his physical issues because we were told that "autistic kids can walk, feed themselves, etc.", so I continued badgering doctors to find out why he couldn't walk.
A doctor in the same hospital that had at first refused to diagnosis autism because my son couldn't walk, then subsequently DID diagnose autism (just past the statute of limitations and just out of the age range for Early Intervention)told me they didn't look for additional diagnoses once an autism diagnosis had been reached. That my son couldn't walk because he has autism--precisely the reason they gave for not diagnosing the autism sooner! Eventually, he was diagnosed with a rather rare form of cerebral palsy (ataxic) at 4yrs3mo.
I have spoken with several attorneys to pursue the cerebral palsy case, but they refuse because of the connection to the vaccine. Because CP was not ever indicated in his newborn testing (done before the shot), I believe they, too, know his problems stem from that vaccine.
I also feel that it is wrong that a child who has autism, but isn't "labeled" with autism can get compensation. Parents often have to have that diagnosis to get services for their child, yet if they get it, they can't get vaccine injury compensation?!
The whole system is designed to avoid fixing what they broke and the ones who suffer are the children and their families.
Posted by: E.T.'s Mom | June 10, 2010 at 10:26 AM
Thanks for the encouragement. I am happy you have some financial relief.
Our daughter was born in 1990. We never heard about vax injury autism/seizures or adverse reaction reporting until 1999.
Posted by: A Mom to lsmom2 | June 10, 2010 at 10:00 AM
This case absolutely sets the right precisdent for those who have suffered vaccine induced autism but unforutnately I fear that in the minds of "the medical establishment" it will cement their determentation to dig their heals in to do everything in their power to insure the connection between autism and vaccines is never established. It will also fuel pharma to fight even harder to use legislation to keep claimants out of civil court.
Posted by: Pamela | June 10, 2010 at 09:54 AM
"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."
Isn't that kinda like saying anybody who commits a crime must ADMIT they committed the crime before they can be convicted. Maybe the prison community should decide who gets in. I mean really, the medical community has to admit they that they've been poisoning us with vaccines for over 200 years. I don't think I'll hold my breath.
Posted by: Mary | June 10, 2010 at 09:28 AM
I could not find a lawyer back in 1987. No one wanted to touch the case even though he had three reactions each time, and a stroke with in hours after the third.
In my daughter's case - the statue has not run out but how do you prove the hep B finally brought on a psychosis and bipolar.
It took time for this to happen, from the time she took the shot and then a week later stiffness - then months later a rhuematologist says high sed rates to almost a year and half to a psychois epidsode and full blown bipolar. It takes the men in white coats linking the vaccines to injuries.
Kent that sounds fair and very safe for the medical community, manufactures of vaccines, and the federal agencies resposible for all this mess because it is never going to be proved. All three of the above will make sure it is not studied.
Posted by: Benedetta | June 10, 2010 at 09:17 AM
to A Mom have hope I received my vaccine settlement check last week. Nothing will ever give me back the things I lost but I do have paperwork that shows the vaccine court ruled all my damage is from the flu shot.
Posted by: lsmom2 | June 10, 2010 at 09:05 AM
Kent I have always hoped that when the truth comes out the statute would become null and void. There in lies the problem! We probably all have better odds winning the Powerball sadly!
Posted by: Tracy McDermott | June 10, 2010 at 09:04 AM
Bob, In 1996 my now 16 yr old was dx. with ITP shortly after his MMR vaccine. The leading HIV hematologist at Joe DeMaggio's Children's Center in Miami said that he was then seeing about one case of ITP a month in toddlers, though of course a vaccine connection was never brought up, just that "it happens". I wonder what those figures would look like today?
My son didn't have to have his spleen removed, though with a platelet count of 20,000 (normal was 400,000 for a 2 yr old) he ironically rcvd IVIG in the hospital. What I would give to get IVIG for my PANDAS affected 7 yr old!
Posted by: Tracy McDermott | June 10, 2010 at 08:59 AM
Thank you KH. Our geneticist told us how much we could expect in a settlement, based on our daughter's injuries and the vaccines she received, but I don't dare to hope anymore. Things have been so grim for so long...
Posted by: A Mom | June 10, 2010 at 07:51 AM
Approximately 40 years ago .. my then 4 year old daughter .. had a nose-bleed that we couldn't stop. We bundled her into our car .. rushed her to the hospital .. where upon admission .. we were told she may have Lukemia. Needless to say, we didn't get much sleep that night.
To make a long, dramatic story .. short .. she was eventually diagnosed with Idiopathic thrombocytopenic purpura (ITP) that required the surgical removal of her spleen. The ONLY explanation we received, after extensive tests over an extended period .. was the single word "bizarre".
We were in the process of moving when we heard that a neighbor's child about the same age had just been diagnosed with ITP .. and .. as I was pulling away from the curb for the last time in that neighborhood .. I was thinking "Maybe it's something in the water?"
In those days .. there was no internet .. and .. young parents in our twenties .. we considered the man in the white coat as close to a God as we would meet on earth.
That was then .. this is now .. and .. having since learned thrombocytopenic purpura is among the myriad of maladies affecting Gulf War veterans .. I no longer consider the guy in the white coat a God .. and .. I have come to suspect the word BIZARRE was just their way of saying they didn't know why my daughter reacted as she did to a VACCINE.
Posted by: Bob Moffitt | June 10, 2010 at 07:28 AM
I have long thought that the statute of limitations for filing a vaccine injury is unfair to our minor children. For other issues of liability, the child has the right to file his/her own claim for recovery until some time after they reach the age of majority. Not so here. Why were our children's legal rights stripped from them? Why should we allow this to continue? Congress really needs to change this in order to protect our children.
Posted by: Not an MD | June 10, 2010 at 07:25 AM