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# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 15

- 1199 V

Filed: February 25 , 2016

(Not to be published)

* * * * * * * * * * * * * * * * * * * * * * * * *

MARK THOMANN

, * Special Master Gowen

*

Petitioner, * D ismissal; Section 16(a)(2 ) ; Statute

v. * of Limitations

*

SECRETARY OF HEALTH *

AND HUMAN SERVICES, *

*

Respondent. *

*

* * * * * * * * * * * * * * * * * * * * * * * * *

Mark Thomann

, Chicago, IL

, pro se

. Ann D. Martin , United States Department of Justice, Washington, DC for respondent.

DECISION DISMISSING PETITION 1

On October 14 , 2015

, Mark Thomann (“petitioner”) filed a petition pro se for

compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa

- 10,

et seq

. 2 [the “Vaccine Act” or “Program”]. The petition alleged that he received a n in flu enza

vaccine on September 18, 2012 , and was diagnosed with Guillain Barr é S yndrome (“GBS”) on

October 14, 2012

. Petition at 1. Medical records filed with the petition suggest that petitioner

presented to the emergency department (“ED”) on or about October 10, 2012, reporting “a week

1 Because this decision contains a reasoned explanation for the undersigned’s action in this case, the

undersigned intends to post this ruling on the website of the United States Court of Federal Claims, in

accordance with the E

- Government Act of 2002, 44 U .S.C. § 3501 note (2012) (Federal Management and

Promotion of Electronic Government Services)

. As provided by Vaccine Rule 18(b), each party has 14

days within which to request redaction “of any information furnished by that party: (1) that is a trade se cret

or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files

or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.”

Vaccine Rule 18(b).

2 National Child hood Vaccine Injury Act of 1986, Pub. L. No. 99

- 660, 100 Stat. 3755. Hereinafter, for ease

of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa

(20 12 ).2

of feeling progressively unbalanced, unste ady gait, having numbness/tingling in his feet and

numbness in his hands.” Resp. Motion at 1

- 2 (citing Petition, Attached Documentation at 5 3 ).

An initial telephonic status conference was held on December 1, 2015 to discuss

petitioner’s claim. During the status conference, the undersigned and the parties discussed the

potential statute of limitations issue in this case. Respondent filed a motion to dismiss on

January 29, 2016

, pursuant to the Vaccine Act’s statute of limitations. Petitioner did not file a response. This matter is now ripe for a decision.

I. Legal Standard

Pursuant to 42 U.S.C. § 300aa

- 16(a)(2), the Vaccine Act provides that “no petition may

be filed for compensation . . . after the expiration of thirty

- six months after the date of the

occurrence of the first symptom or manifestation of onset or of the significant aggravation of

such injury.” The Federal Circuit has held that there is no explicit or implied discovery rule

under the Vaccine Act. Cloer v. Sec’y of Health & Human Servs. , 654 F.3d 1322, 1338

- 40 (Fed.

Cir. 2011). The date of the occurrence of the first symptom or manifestation of onset “does not

depend on when a petitioner knew or reasonably should have known anything adverse about

[his] condition.” Id. at 1339 . A vaccine claim is based on “the occurrence of an event

recognizable as a sign of a vaccine injury by the medical profession at large, not the diagnosis

that actually confirms [a vaccine] injury in a specific case.” Goetz v. Sec’y of Health & Human

Servs. , 45 Fed. Cl 340, 342 (Fed. Cl. 1999), aff’d

, 4 Fed. Appx. 827 (Fed. Cir. 2001)

.

II. Analysis

The petition in this case was filed on October 14, 2015. Accordingl y, petitioner would be

in compliance with the statute of limitations only if the onset of petitioner’s GBS occurred on or

after October 14, 2012. Respondent contends that t he history provided in the October 18, 2012,

discharge summary supports a finding that onset of petitioner’s GBS symptoms occurr ed about

one week prior to the October 10, 2012, ED visit

. Resp. Motion at 2 (referencing Petition,

Attached Documentation at 5). An October 18, 2012, discharge summary suggest s that

petitioner presented to the emergency department (“ED”) on or about October 10, 2012,

reporting “a week of feeling progressively unbalanced, unsteady gait, having numbness/tingling

in his feet and numbness in his hands.” Id. at 1

- 2 (citing Petition, Attached Documentation at 5).

In addition, respondent notes that records of email correspondence between petitioner and one of

his physicians, Leo I. Gordon, M.D., dated October 8, 2012, states: “Over the last few days, my

legs have becomes increasingly weak to a point where I cannot run and walk with discomfort.”

Id. (citing Petition, Attached Documentation at 31). These symptoms are consistent with early

GBS, and in light of the ultimate diagnosis of GBS, are highly likely to have been the initial

man ifestation of the disorder.

The evidence filed to date establishes that symptoms of petitioner’s GBS began prior to

October 1 4 , 2012. The petitioner has not filed anything to dispute this conclusion. Accordingly,

3 Medical records were filed as part of the same PDF document as the petition, and are not individually

paginated. T herefore, records are cited by the CM/ECF generated page number.3

th is case is DISMISSED on the grounds that the claim is barred under section 300aa

16(a)(2) of the Vaccine Act. The Clerk of the Court shall enter judgement accordingly

.

IT IS SO ORDERED.

s/Thomas L. Gowen

Thomas L. Gowen

Special Master