BARNES v. SECRETARY OF HEALTH AND HUMAN SERVICES

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 25-1466V
UNPUBLISHED
EMMA BARNES,
Petitioner,
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Chief Special Master Corcoran
Filed: December 3, 2025
Bijan Esfandiari, Wisner Baum, LLP, Los Angeles, CA, for Petitioner.
Heather L. Pearlman, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION1
On September 3, 2025, Emma Barnes filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa—10 through 342
(the “Vaccine Act”). Petitioner alleges that she suffered various injuries from human
papillomavirus (“HPV”) vaccinations she received on August 9, 2019, October 24, 2019,
and February 26, 2020. ECF No. 1 at 2.
Because the petition was untimely filed, and Petitioner has failed to establish a
basis for equitable tolling, this case is DISMISSED.
Relevant Factual Background
As alleged in the petition3, Petitioner received the first HPV vaccination on
August 9, 2019 (at sixteen years old), the second on October 24, 2019 (at seventeen
1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made
publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or
at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government
Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government
Services). This means the Decision will be available to anyone with access to the internet. In
accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other
information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I
agree that the identified material fits within this definition, I will redact such material from public access.
2 National Childhood 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
(2012).
3 Petitioner has not filed any medical records to establish the vaccinations or her injuries. I will assume
the accuracy of the facts in the petition to resolve the statute of limitations issue.
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years old), and the third on February 26, 2020 (at seventeen years old). ECF No. 1 ¶ 2.
Petitioner stated that her mother was present with her during each of the vaccinations.
Exhibit 2 (affidavit) ¶ 3. Petitioner experienced headaches, terrible fatigue, skin rashes,
vision trouble, and a bump at the injection site within thirty days of the February 26,
2020 vaccination. ECF No. 1 ¶ 5. Petitioner later developed gastrointestinal symptoms
and was eventually diagnosed with Crohn’s disease. Id. ¶ 6.
Petitioner alleged the preceding medical history in the petition and repeated the
history in her response to the order to show cause. Facially, Petitioner’s claim herein was
filed over five years after the HPV vaccinations, the most recent one being administered
in 2020, and over five years from the time she began manifesting symptoms in 2020. But
Petitioner maintains her delay is excusable. Petitioner has stated that, at the time these
vaccinations occurred, no Vaccine Information Statements (VIS) were provided and no
information was relayed about the Vaccine Program. Petitioner stated that she became
aware of the Vaccine Program in July 2023.
Relevant Procedural History
Given that the timeliness of the claim was legitimately called into question merely
by the face of the actual Petition, while the case was still in the initial “pre-assignment
review,”4 I ordered Petitioner to show cause why the claim had not been filed outside the
Act’s 36-month statute of limitations. Sec. 16(a)(2); ECF No. 6.
On November 3, 2025, Petitioner filed a response. ECF No. 8. Petitioner did not
dispute that her symptoms begin in 2020, or that her petition was filed in 2025 (and not
sooner than the statute of limitations deadline in 2023), but instead argued that the
limitations period should be equitably tolled. Petitioner asserted that she had diligently
pursued her rights once she became aware of her legal rights. Petitioner also made
allegations not relevant to a Vaccine Act claim, about the perfidious conduct of the vaccine
manufacturer in fraudulently concealing the HPV vaccine’s harmful character from the
public. ECF No. 8 at 3, 18. Relatedly, Petitioner argued that the failure of a healthcare
professional to provide him with a VIS at the time of vaccination can be attributed to the
Department of Health and Human Services’ failure to systematically ensure that VIS are
explained and provided to all vaccine recipients. Id. at 4.
On November 6, 2025, Respondent submitted a brief of his own, arguing for
dismissal due to untimeliness. ECF No. 9. Respondent maintained that Petitioner in fact
had not diligently pursued his rights before filing a vaccine claim in 2025. Respondent
4 Pre-Assignment Review, or PAR, is a process utilized by the Office of Special Masters to assess
whether a claim’s primary evidentiary documentation has been filed. See notice at
http://www.uscfc.uscourts.gov/vaccine-programoffice-special-masters.
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also disputed the veracity of contentions about the manufacturer’s conduct, and whether
it could in any event constitute an extraordinary circumstance that would serve as a basis
for tolling of the statute.
Legal Standards
The Vaccine Act's statute of limitations is thirty-six months. Sec. 16(a)(2). The
statute begins to run from the manifestation of the first objectively cognizable symptom,
whether or not that symptom is sufficient for diagnosis (or even recognized by a claimant
as significant). Id.; Carson v. Sec'y of Health & Hum. Servs., 727 F.3d 1365, 1369 (Fed.
Cir. 2013).
The Federal Circuit has held that the doctrine of equitable tolling can apply to
Vaccine Act’s statute of limitations. See Cloer v. Sec'y of Health & Hum. Servs., 654 F.3d
1322, 1340-41 (Fed. Cir. 2011). However, in keeping with applicable U.S. Supreme Court
precedent, equitable tolling of a limitations period is to be permitted “sparingly.” Irwin v.
Dep't of Veterans Affairs, 498 U.S. 89, 96, (1990). The appropriateness of equitable tolling
is ultimately to be determined on a case-by-case basis, without rigid application of any
relevant overarching guidelines. Holland v. Florida, 560 U.S. 631, 649–50 (2010); accord
Arctic Slope Native Ass'n v. Sebelius, 699 F.3d 1289, 1295 (Fed. Cir. 2012).
Petitioners must prove two elements to establish equitable tolling: (1) that
petitioner diligently pursued her rights, and (2) an extraordinary circumstance prevented
her from timely filing the claim. K.G. v. Sec'y of Health & Hum. Servs., 951 F.3d 1374,
1379 (Fed. Cir. 2020) (citing Menominee Indian Tribe v. United States, 577 U.S. 250, 255
(2016)).
When first articulating this limited exception to equitable tolling, the Federal Circuit
primarily enumerated fraud and duress as a basis for equitable tolling—but not, for
example, lack of awareness on a petitioner's part that she might have an actionable claim.
Cloer, 654 F.3d at 1344–45 (noting that tolling of the Vaccine Act's statute of limitations
period is not triggered “due to unawareness of a causal link between an injury and
administration of a vaccine”). In K.G., 951 F.3d at 1380–82 (Fed. Cir. 2020), the Circuit
more explicitly endorsed the proposition that an individual’s demonstrated mental
incapacity could be a basis for equitable tolling in the Program. For a mentally
incapacitated individual, the Circuit instructed that the details of the individual’s
relationship with her legal guardian would affect whether there was reasonable diligence
or extraordinary circumstances. K.G., 951 F.3d at 1382 (Fed. Cir. 2020). More recently,
the Circuit concluded that a parent acting as a legal guardian did not have extraordinary
circumstances preventing the filing of a petition where the parent: (1) routinely made
medical decisions on behalf of the legally incapacitated individual during the relevant time
period, (2) had no documented strained relationship with the individual, and (3) had no
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conflicts of interest dissuading the parent from filing a petition. W.J. v. Sec'y of Health &
Hum. Servs., 93 F.4th 1228, 1241 (Fed. Cir. 2024).
Analysis
The untimeliness of this filing is acknowledged by Petitioner, so the only question
to be resolved is whether equitable tolling should save the claim. But Petitioner has failed
to establish both elements of equitable tolling – diligent pursuit and extraordinary
circumstances.
A) Diligent pursuit
Petitioner argues that she began to diligently pursue her claim when she learned
of the Vaccine Program in July 2023.5
These arguments are wholly unpersuasive. It is beyond question that claims
asserted in the Vaccine Program are not subject to a “discovery rule,” accruing only when
a claimant learns he or she might possess a cause of action. Rather, the statute of
limitations period is triggered by the onset of Petitioner’s symptoms – whether or not onset
was understood to be the start of the claimed injurious illness or condition. Cloer v. Sec'y
of Health & Hum. Servs., 654 F.3d 1322, 1340 (Fed. Cir. 2011) (en banc). And the failure
to be advised of the Vaccine Program or the Act does not support equitable tolling of the
statute of limitations period for an otherwise-untimely filed petition. Speights v. Sec'y of
Health & Hum. Servs., No. 03-2619V, 2013 WL 5944084, at *13 (Fed. Cl. Spec. Mstr.
Oct. 17, 2013). Thus, a petitioner cannot generally shield an untimely claim from dismissal
by asserting, even in good faith, that she literally was unaware of her Vaccine Act “rights.”
B) Extraordinary Circumstances
Petitioner’s arguments about the purported fraudulent conduct of the vaccine’s
manufacturer, in hiding proof of the vaccine’s dangers, deserve even less consideration.
ECF No. 8 at 3, 18. As a threshold matter, these contentions are speculative and not
evidentiarily-supported. And regardless of their actual truth, the fact remains that the
Government has approved the HPV vaccine for administration to minors, rendering it
5 Petitioner has failed to discuss, in any of her filings, the relevance of the onset of her symptoms
occurring while she was still a minor and the concurrent beginning of the statute of limitations period.
While this time period was only a few months, Petitioner’s parents would have had the legal authority and
responsibility to bring any cases on behalf of Petitioner during this period. It would have been relevant for
Petitioner to establish that her parent(s) also diligently pursued a claim during this time period and
encountered extraordinary circumstances. Moreover, regarding the factual record, Petitioner has also
failed to submit an affidavit from her mother, who she states was with her at all the vaccination
appointments and would be the only legal adult present who was responsible for Petitioner. An affidavit
from Petitioner’s mother would need to address what occurred during the vaccination appointments and
what efforts were made to pursue a vaccine claim.
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“covered” under the Act. The only issue to be resolved in a Program case is whether
(assuming, as here, the claim is not a Table claim) the claim meets the standards for
causation – and those standards have nothing to do with a manufacturer’s alleged
misconduct in preparation or promotion of the underlying vaccine.
These allegations also are not a basis for tolling under the circumstances.
Petitioner simply has not shown that contentions of corporate misconduct not specific to,
or directed at, him personally could rise to the level of the kind of “fraud” that might excuse
failing to file a Program claim in a timely manner. Nor has she persuasively established
that the vaccine administrator’s “failure to warn,” or provide a VIS in 2019 or 2020, is an
extraordinary circumstance. Even assuming the factual accuracy of that allegation,6 it
remains the case (as the Circuit recognized in Cloer) that vaccine claims accrue upon
onset – and that the failure to be advised of the Vaccine Program does not support
equitable tolling. Cloer, 654 F.3d at 1340; see also Speights, 2013 WL 5944084, at *13.
And arguments about governmental agency knowledge of a failure to warn reflect
overheated, almost-conspiratorial allegations that do not come close to excusing the
claim’s untimely nature.
Conclusion
Thus, Petitioner has failed to establish equitable tolling. This case is dismissed
for being untimely filed. The Clerk of Court shall enter judgment accordingly.7
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
6 As noted above, Petitioner has not filed any medical records, let alone the vaccination records, that would
permit a factual evaluation of whether a VIS was provided to Petitioner at any of the vaccination
appointments.
7 If Petitioner wishes to bring a civil action, she must file a notice of election rejecting the judgment pursuant
to § 21(a) “not later than 90 days after the date of the court’s final judgment.”
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