FW: Press Release - Court Resets Filing Time for ‘Non-Table’ Vaccine-Injury Cases Like ‘Autism’

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Court Resets Filing Time for

‘Non-Table’ Vaccine-Injury Cases Like ‘Autism’

PRESS RELEASE CONTACTS:

For Immediate Release CoMeD President [Rev. K. Sykes (Richmond, VA) ]

May 28, 2010 CoMeD Science Advisor [Dr. G. King (Lake Hiawatha, NJ) ]

Washington, DC – Parents who think their child’s diagnosed autism is vaccine-related, but were previously barred from seeking compensation due to “timeliness†issues, may now be entitled to their day in court, thanks to a recent US Appeals Court decision. Those who may now be entitled to file a vaccine-injury petition should do so as soon as possible, as it is highly likely that DHHS will try to overturn this ruling in the future. There are currently 5000+ petitioners claiming a vaccine-caused autism injury. The autism community would make an undeniable statement and probably force Congressional action on this issue if this number became hundreds of thousands.

The necessary form and instructions for filing a short-form autism petition are available on line at:

http://www.shoemakerassociates.com/index.php?option=com_content & view=article & id=69:filing-a-pro-se-short-form-autism-petition & Itemid=29

Until this May ruling by the Appeals Court, the Department of Health and Human Services (DHHS) and its Department of Justice (DoJ) lawyers have hindered litigation seeking compensation for autism as a vaccine injury, by severely limiting the time permitted to file a claim. Previous interpretation of the law provided only 3 years from the onset of a first symptom to file a claim, thereby creating a strict, if not impossible, filing window for autism as a vaccine injury. Because autism often takes years to be medically diagnosed after a child first exhibits any of the symptoms used to diagnose it, this 3-year window effectively limited the number of cases filed and heard due to this issue of “timelinessâ€.

On May 6, 2010, in the United States Court of Appeals for the Federal Circuit, in a case called “MELISSA CLOER, M.D., Petitioner-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent-Appellee†(Cloer), Chief Judge Michel, writing for the majority, held:

“This case presents the question of whether the Vaccine Act’s statute of limitations, 42 U.S.C. § 300aa-16(a)(2), begins running where a claimant experiences a symptom of injury, but where the medical community at large does not recognize that the symptom is related to a vaccine and the claimant has not received medical information suggesting a connection. We hold that the statute of limitations does not begin running in such cases. Thus, we reverse and remandâ€. [Emphasis added.]

Therefore, under Cloer, parents who claim their child’s autism is vaccine-related are now no longer barred from filing with the Vaccine Program just because the child’s first symptom of what would eventually be diagnosed “autism†occurred more than three years before the diagnosis. According to this decision, the legal ‘clock’ for filing begins running not from the child’s first symptom, but rather from the first time the petitioner/parent “…has received medical information suggesting a connectionâ€.

Given Cloer, for injuries such as autism that are, as yet, neither defined in the NVICP’s “Vaccine Injury Table†nor “recognized in the medical community at largeâ€, it would seem that:

¨ May 6, 2010 would be the earliest date that the statute of limitations could start for any as of yet unheard petitions seeking compensation for vaccine-caused autism, including claims of autism caused by Thimerosal, or other similar “unrecognized†vaccine-related injury, and

¨ Petitioners whose petitions have been dismissed, or otherwise denied, under the previous, now invalidated, government interpretation of the time-to-file limitation may have grounds to have their cases reinstated.

Finally, petitioners asserting “autism†claims are eligible to file with the Vaccine Program by just filing a short form and paying a $250 filing fee. No attorney is necessary to file and it appears that those asserting “autism†claims who file a short form petition cannot be dismissed due to lack of timeliness solely based on the date of onset for the first symptom that ultimately led to a medical diagnosis of “autismâ€.

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