Remand Decision – Equitable Tolling Established


Hodge v. HHS, (Fed. Cl. Spec. Mstr. Dec. 21, 2015) (Moran, SM)

Decision on Remand – Equitable Tolling Established

Respondent had moved to dismiss Petitioner’s claim as untimely. The Special Master initially had rejected the argument that the statute of limitations should be equitably tolled, but Petitioner appealed.  The reviewing judge had vacated the original decision and remanded for reconsideration and a more detailed assessment of the medical records relating to mental disability.

On remand, briefing ensued and further medical records were filed in addition to the expert reports of psychiatrists and fact affidavits.

The Special Master reviewed the pertinent case law on the statute of limitations in Vaccine Act cases, noting that the “discovery rule” was held not to apply by the Federal Circuit in Cloer, although equitable tolling was held to apply generally, although not in that case specifically.  The Special Master then decided that equitable tolling based on mental illness was available under the Vaccine Act.  In order to invoke equitable tolling, a mentally ill person must show that he or she is “incapable of handling his [or her] own affairs.”  Contrary to Respondent’s suggestion, a mentally ill person need not establish due diligence in pursuing legal rights.

The special master held that Petitioner suffered from approximately one year of impaired capacity during which time the “clock was stopped” and the SOL was equitably tolled.  This made the otherwise time-barred petition, (42 days late), timely.

The special master also ordered the parties to brief the advisability of involving the local probate court to address the need for a guardianship.

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