Price v HHS – statute of limitations, tolling, vaccines and autism

On Thursday May 9, 2014 the United States Court of Appeals for the Federal Circuit ruled that Christopher Wynn (pdf), in the case of Price v HHS (US Department of Health and Human Services), could not be compensated through the National Vaccine Injury Compensation Program (NVICP) – even if he proved a vaccine injury – because his mother, Chandra Price, waited too long to pursue his claim. The court ruled against Ms. Price and Christopher on jurisdictional grounds, but also decided that there was no reason to use equitable tolling, a legal doctrine that allows the court to set aside a technical objection for reasons of fairness.

Price vs HHS case

Christopher T. Wynn was born on June 26, 1991. Three years later he was diagnosed with autism spectrum disorder (ASD), on June 29, 1994. On February 2008 his mother, Chandra Price, represented by a lawyer, filed a petition in his name with NVICP, claiming that his vaccines caused his ASD. Specifically, “she believed the ASD was caused by the vaccinations ‘being given in back to back increments, and by mercury toxicity.’” (There is no scientific evidence that vaccines are related to autism.)The petition filed in 2008 was not complete, but was complete by April 2009.

The government responded that the claim was past the time period for filing suit. If Christopher’s injury is dated to June 1994, when he was diagnosed (although the first symptoms of ASD manifested in June 1993 the government did not use that as the determining period), 2008 is long past the deadline of the statute of limitations of 36 months. Proceedings continued, and in 2012 Ms. Price’s lawyer filed a motion to dismiss the claim, apparently concluding she is bound to lose because she filed too late. The Special Master entered judgment accordingly – but apparently Ms. Price then fired her lawyer and filed exception – objected – to the judgment. The Special Master denied her exception.

Thirty five days later Ms. Price sent a letter to the Court of Federal Claims opposing the Special Master’s decision. The Court treated the letter as a motion for review, but went on to dismiss the motion for lack of jurisdiction. Ms. Price appealed to the Federal Circuit.

This decision was decided completely on procedural grounds; at no point did the court reach Ms. Price’s claims on the merits. Judging by Ms. Price’s claim, the case would and should have lost on the merits: studies examined whether thimerosal in vaccines or the number of vaccines are linked to autism, and found no link. But the case never got to that stage.

Jurisdiction

The Federal Circuit’s Court of Appeals upheld the decision of the Court of Federal Claims (CoFC) saying that since Ms. Price filed her letter late, the CoFC has no jurisdiction over the matter. Under the National Childhood Vaccine Injury Act, an appeal against a Special Master’s decision must be brought to the Court of Federal Claims within 30 days.

As explained in Price, the courts interpret this clause to mean that unless a motion is brought within 30 days, the Court doesn’t have jurisdiction. If the statute conditions the jurisdiction of the Court on filing within the time, the Federal Court of Claims is prohibited from hearing a case filing after the thirty days are up. This is what the Court of Appeals for the Federal Circuit concluded.

Highlighting the fact that Ms. Price was now unrepresented the court did, however, consider whether there were unusual circumstances that support an exception to this rule (see below for the discussion of equitable tolling). It found that the Court of Federal Claims did not abuse its discretion – the court pointed out that unrepresented plaintiffs get more leeway and gave Ms. Price the chance to explain. But the court was not convinced by Ms. Price’s explanation – it found several problems with it – and thus it refused to hear her claim.

As part of its discussion, the Court also pointed out that the result was not unfair to Ms. Price, because she was very unlikely to succeed on the merits – because she was past the statute of limitations. Let’s examine that.

Statutes of limitations and tolling

Statutes of limitations mean, in the context of personal injury, that if the plaintiff did not bring her case within the time period in the statute, she can’t bring it at all. They protect defendants against having to litigate a claim after a long time, when evidence might be hard to get – witness’s memories less reliable, evidence lost – and they also prevent the cruelty of a sudden claim long after the fact. They incentivize plaintiffs to be diligent in pursuing their interests. In other words, statutes of limitations aim at preventing delays that may undermine the ability to do justice in the adjudication process.

Ms. Price brought her claim in 2008, fourteen years after Christopher was diagnosed with ASD. The statute of limitations for NVICP is three years. On its face, there is no justification for such a long delay.

There are, however, two wrinkles, one that the court considered, one that it did not. First, there is a doctrine that allows plaintiffs, in unusual circumstances, to bring a case outside the statute of limitations period. The doctrine is called equitable tolling, and it applies in extraordinary circumstances beyond the plaintiff’s control.

The Price court agreed with the lower court that given the lack of any special circumstances, there would be no grounds for equitable tolling of Ms. Price’s claim. That makes sense: if the statute of limitations requires filing within three years, and Ms. Price had no special justification for delaying for eleven additional years, there is no reason to treat her any different than other plaintiffs who did not file within the period – it would be unfair to those plaintiffs, and eleven years is a really long time to sit on a claim. The passage of time can make discovering the truth difficult – and is something Ms. Price controls, not the government.

The other problem, however, is beyond the decision in Price. The decision in Price followed the rules of the game; but maybe the rules of the game should be changed. The question is should we stop the clock of limitations – “toll” the statute – because Christopher is a minor. Unlike Ms. Price, Christopher did not have control over the timing of the suit. And while Ms. Price is the one who ultimately takes care of her son, it’s his interests that are at issue. Generally, in the courts, statutes of limitations are tolled while a minor is legally unable to protect her own interests: the passage of time does not count against the minor until she reaches the age of eighteen. Shouldn’t Christopher’s right to sue be preserved during his minority?

But suits against the government often don’t stop the clock of limitations. Because the government is not just any plaintiff, minors are subject to the regular statutes of limitations when suing them. And the NVICP is administrated by the government. In addition, NVICP is a procedural compromise. It offers plaintiffs substantial benefits, including lawyer fees. An argument can be made that since plaintiffs benefit from the many breaks in the program, it’s fair to hold them to the rules of the game and require that they file within the time determined.

Two goals of NVICP conflict here. On one hand, the program was designed to provide generous compensation. On the other hand, it was designed to be efficient. A short statute of limitation that is not tolled should help efficiency because it requires plaintiff to act quickly and when the evidence is most available. But it means that otherwise deserving plaintiffs (and to be clear – on the claim above, Ms. Price’s claim is probably not valid, but since it was never actually adjudicated, it’s impossible to conclusively say that) will not be compensated.

I think we should prefer generosity over efficiency here, for two reasons. First, NVICP transforms a common law claim into an administrative scheme. There are good reasons for that choice, but when government makes it, it has an ethical obligation not to penalize individuals for it. In other words, the scheme should benefit people, not hurt them. If the clock of limitation stops for children in the regular courts, it should stop here, too.

Second, vaccines have two goals: protect the vaccinated individuals, and protect the community via herd immunity. Since there is also a social good, the costs of rare vaccine injuries should be borne by society. Plaintiffs should be compensated generously. We should not bar children – who do not have control over the process – from compensation because their parents delayed filing.

I would recommend tolling the statute of limitations in these circumstances.

What’s the take-home?

The plaintiffs in Price v HHS  delayed filing National Vaccine Injury Compensation Program claim at their own risk. While the courts will consider special circumstances, unexplained delays – especially very long delays, as Ms. Price’s was – will bar a claim.

We should, however, consider tolling the statute of limitations – to protect the interests of the child plaintiff.

Editor’s note – This article was originally published in May 2014. It has been updated to fix formatting and replace broken links.



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Dorit Rubinstein Reiss
This article is by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy and the law. 

Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease.