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Dismissal of Petition – No Equitable Tolling

Smith v. HHS, (Fed. Cl. Spec. Mstr. Apr. 8, 2016) (Hamilton-Fieldman, SM)

Petitioners argued that equitable tolling should be applied because the child’s doctors had failed to recognize that her injuries might be vaccine related, and that this failure should be considered an extraordinary circumstance that warranted equitable tolling.  More specifically, the argument focused on the fact that the child’s lack of majority precluded her from determining that the information being provided to her or her mother was incorrect.  The special master noted that the Federal Circuit had already declined to create a discovery rule for Vaccine Act cases.  The fact that the child was minor did not change the analysis, where Congress failed to include a minority tolling provision.

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