June 10, 2010
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.”