Remand Statute of Limitations Dismissal to Reassess Equitable Tolling


J.H. v. HHS, (Fed. Cl. Sep. 9, 2015) (Sweeney, J)

Petitioner suffered from severe OCD, other mental illness, and cognitive disturbances prior to his vaccine injury.  At age 18, he developed a demyelinating brain injury post-Hepatitis B vaccination, however, the brain MRI confirming this was done only 2 months prior to the expiration of the SOL.

The Petition was filed a month after the SOL expired; a medical theory of “significant aggravation of his neuroborreliosis” was advanced by an expert.  Petitioner argued that the statute of limitations should be equitably tolled due to his mental illness.  The special master dismissed the petition as untimely filed and held that the Petitioner had not established equitable tolling.

The reviewing court agreed with Petitioner that “the special master substantially mischaracterized his mental health condition in his decision . . .his medical records reflect a much more serious and complex condition than the OCD diagnosis noted by the special master.”  Specifically, “the special master failed to discuss a number of relevant medical records and gave short shrift to many of the medical records he did address.”  This was an abuse of discretion, warranting remand for revaluation of the equitable tolling argument “based on the entire universe of medical records and the other evidence before him.”  The court encouraged the special master “to seek additional fact evidence if he deems it necessary to determine petitioner’s mental health condition” during the relevant time period.  Notably, Respondent conceded at oral argument that the case should be remanded on this issue, which the reviewing judge appreciated.

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