CHRISTIAN J. MORAN, Special Master.
In this case under the National Vaccine Injury Compensation Program ("the Vaccine Program"), Jeremy Hodge seeks compensation for injuries he alleges were caused by hepatitis A and B vaccinations administered on March 17, 2006, and April 15, 2006. The Secretary of Health and Human Services filed a motion to dismiss based on the Vaccine Act's statute of limitations, 42 U.S.C. § 300aa-16(a)(2). At this stage, there is no dispute that Mr. Hodge did not file his petition within the time permitted by the statute of limitations.
To avoid the consequence of filing outside of the statute of limitations, Mr. Hodge argues that the running of the statute should be equitably tolled. In a March 23, 2015 decision, the undersigned rejected that argument. However, in an Opinion and Order issued on September 9, 2015, the Court vacated that decision and remanded for additional consideration.
After additional consideration and additional evidentiary development, the undersigned concludes that Mr. Hodge has established that equitable tolling is appropriate. As discussed below, this conclusion is premised upon an analysis of several legal issues that are novel to the Vaccine Program.
Before describing events in Mr. Hodge's case, it is important to set forth the background law regarding the time for filing petitions in the Vaccine Program because this law has influenced the actions taken by Mr. Hodge's attorney, Mr. Clifford Shoemaker. The Vaccine Act provides the starting point for analyzing the timeliness of petitions. In 2009 (and now), the Vaccine Act stated that "if a vaccine-related injury occurred as a result of the administration of such vaccine, no petition may be filed for compensation under the Program for such injury after the expiration of 36 months after the date of the occurrence of the first symptom or manifestation of onset or the significant aggravation of such injury." 42 U.S.C. § 300aa-16(a)(2).
Before 2009, petitioners in other Vaccine Program cases had attempted to ameliorate the consequence of the 36-month statute of limitations by relying upon two closely related doctrines: the discovery rule and equitable tolling. As later explained by the Federal Circuit, "discovery rules look to the knowledge of a plaintiff to determine the date upon which the statute of limitations begins to run."
Unlike the discovery rule, which would modify when a cause of action accrues, equitable tolling extends the time for filing a petition. In 2001, the Federal Circuit held that the Vaccine Act was not compatible with equitable tolling.
Against this backdrop, Mr. Hodge's mother, Erika Elson, conferred with Mr. Shoemaker on July 13, 2009. She informed Mr. Shoemaker that Mr. Hodge received a dose of the hepatitis A vaccine on March 17, 2006, and doses of the hepatitis B vaccine on March 17, 2006, and April 25, 2006. She apparently also told Mr. Shoemaker that after these vaccinations, Mr. Hodge "experienced various symptoms." Pet., filed July 15, 2009, at ¶¶ 5-7.
Two days after speaking with Ms. Elson, Mr. Shoemaker filed the petition without collecting medical records. He filed the petition "immediately because of potential statute of limitations problems." Pet. ¶ 7. The petition was, thus, not very specific about the injury that the vaccinations allegedly caused, and merely asserted that a May 18, 2009 MRI
At the first status conference, the parties discussed the potential statute of limitations problem, which Mr. Shoemaker had disclosed in the petition. Nevertheless, Mr. Shoemaker wanted to continue the case, suggesting that this case might be an appropriate vehicle to modify
The parties agreed that Mr. Shoemaker should file medical records and he spent more than two years gathering them. In this phase of collecting records, the Federal Circuit issued its en banc opinion in
After Mr. Hodge's medical records were filed, the Secretary evaluated them in her report. The Secretary premised her analysis on the idea that Mr. Hodge's petition alleged that the vaccinations caused him a demyelinating disease. Resp't's Rep., filed April 30, 2012, at 13. The Secretary's report also argued that the case should be dismissed due to untimeliness.
The next significant event was Mr. Hodge's filing a report from a neurologist, Carlo Tornatore. This report had two purposes: (1) to define the injury for which Mr. Hodge was seeking compensation, and (2) to determine when the first sign or symptom of that injury arose. After reviewing the medical records, Dr. Tornatore determined that "the diagnosis of neuroborreliosis would not be unreasonable."
In the ensuing status conference, the parties discussed the significance of Dr. Tornatore's report. Mr. Hodge recognized that Dr. Tornatore's reliance on the June 2, 2006 dizziness and eye movement disorders placed the first manifestation of a vaccine-induced significant aggravation outside the statute of limitations. But, Mr. Hodge wanted to argue that equitable tolling should save his claim. Order, issued August 29, 2013.
Mr. Hodge filed his brief approximately five months later. His primary argument was that doctors did not recognize his symptoms as manifestations of an injury caused by a vaccine. Pet'r's Br., filed Jan. 30, 2014, at 1-2, 4. In passing, Mr. Hodge also mentioned that mental disability could serve as a basis for equitable tolling.
The Secretary did not agree with Mr. Hodge's invocation of equitable tolling. With respect to mental disability, the Secretary argued that Mr. Hodge had not shown how his mental illness prevented him from filing a timely petition. Resp't's Resp., filed May 9, 2014, at 17.
Mr. Hodge was permitted to have the last word as to the availability of equitable tolling. In his sur-reply, Mr. Hodge emphasized the extraordinary circumstances that prevented him from filing earlier and his diligence in pursuing his rights. Pet'r's Sur-Reply, filed Oct. 1, 2014.
A decision was issued on March 23, 2015. The decision found that based upon Dr. Tornatore's report, Mr. Hodge had not filed his petition within the time permitted by the statute of limitations. In addition, the decision found that Mr. Hodge had not established that he was entitled to equitable tolling. 2015 WL 1779274.
After Mr. Hodge filed a motion for review, the Court vacated the March 23, 2015 decision. The Court did not modify the finding that Mr. Hodge filed the case outside the statute of limitations. 123 Fed. Cl. 206, 216. However, the Court remanded for a more detailed assessment of the medical records especially with respect to Mr. Hodge's mental status.
The time for remand is set forth in the Vaccine Act: "The court may allow not more than 90 days for remands." 42 U.S.C. § 300aa-12(e)(2). This provision is carried over into Vaccine Rule 28(b). Because the Court remanded the case on September 9, 2015, the time for remand was set to expire on December 9, 2015.
After the remand, the parties were ordered to file briefs addressing legal and factual questions. Order, issued Sept. 14, 2015. The parties presented their arguments in a series of briefs that are discussed in the context of specific issues below.
On October 16, 2015, Mr. Hodge filed more medical records. He also filed a report from Robert Dasher, a psychiatrist who treated him. Exhibit 22.
The October 8, 2015 scheduling order required the Secretary to file a response to Dr. Dasher's report on Friday, November 6, 2015. On that date, the Secretary filed two motions for enlargement of time. Mr. Hodge did not oppose either motion. The first (ECF entry 127) was directed to the Court, requesting an extension of time for the remand proceedings. The second (ECF entry 128) was directed to the special master, requesting an extension of time for the expert's report.
On Monday, November 9, 2015, the Court denied the Secretary's motion to enlarge the time for remand. The Court reasoned that it cannot change a deadline set by statute.
The following day, a status conference was held to discuss the implications of the Court's November 9, 2015 order. Mr. Hodge continued to consent for additional time for the Secretary to file a response to Dr. Dasher. Thus, the Secretary's deadline was extended to November 20, 2015. Order, issued Nov. 10, 2015.
On November 20, 2015, the Secretary filed reports from Elizabeth LaRusso, a psychiatrist, and John Dunn, a neuropsychologist. These reports provided information about obsessive-compulsive disorder and opinions about Mr. Hodge's mental health.
On December 4, 2015, Mr. Hodge filed a reply. With the reply, he filed an additional affidavit from his mother, exhibit 26, contesting some of the factual assertions made by Dr. LaRusso and Dr. Dunn.
With that submission, the matter is again ready for adjudication.
The analysis follows the following structure. The first two sections are devoted to resolving questions of law: (1) whether petitioners in the Vaccine Program may invoke the doctrine of equitable tolling on the basis of mental incapacity, and (2) what petitioners relying upon a mental disability must establish to receive the benefits of equitable tolling. The following section considers the pleadings and facts of Mr. Hodge's case and concludes that Mr. Hodge is entitled to equitable tolling. Based upon the finding that Mr. Hodge's claim that he is mentally incapacitated, the final section requests briefs regarding Mr. Hodge's ability to continue to function as the petitioner in his case.
There is no question that, as a general matter, the Vaccine Act permits equitable tolling.
In determining whether equitable tolling is available, the starting point is
Citing the Vaccine Act, the Secretary argues that Congress did not intend for mental illness to be a basis for equitable tolling in the Vaccine Program. The Vaccine Act identifies three groups of people who may be petitioners in the Vaccine Program: "[(1)] any person who has sustained a vaccine-related injury, [(2)] the legal representative of such person if such person is a minor or is disabled, or [(3)] the legal representative of any person who died as the result of the administration of a vaccine set forth in the Vaccine Injury Table." 42 U.S.C. § 300aa-11(b)(1)(A);
Mr. Hodge did not directly respond to the Secretary's citation to the Vaccine Act.
The Secretary argument leaves unaddressed two questions. First, who is the "legal representative"? The Vaccine Act defines "legal representative" as "a parent or individual who qualifies as a legal guardian under State law." 42 U.S.C. § 300aa-33(2). The Court of Federal Claims construed the term "legal representative" to mean that "parents are always viewed as the legal guardian of a son or daughter, whether or not they also qualify as such under state law."
Thus,
If, for the sake of argument, it is assumed that Ms. Elson qualifies as Mr. Hodge's "legal representative" without ever actually having been appointed as a legal representative, that answer only leads to the second question, which is even more difficult. The Secretary's argument is that the Vaccine Act "empowers the legal representative of a disabled person with the right and the obligation to advance [a] Vaccine Act claim." Resp't's Mem. at 9. The critical word is "obligation." The Vaccine Act grants the "legal representative" a "right" to file a petition. But, saying there is a "right" to do something is not the same as saying there is an "obligation" to do it.
On this point, Mr. Hodge cited two cases that address responsibility for initiating litigation when the injured person is an incapacitated adult for whom a legal guardian has not been appointed. The older case is
In October 1976, Allen Clifford was 24 years old and suffering from depression with suicidal tendencies. Physicians from the Veteran Administration prescribed a medication and Allen Clifford overdosed on that medication, leading to a coma. In January 1979, Mr. Clifford's father, Dewey Clifford, was appointed as his son's guardian. Shortly less than two years later, Mr. Clifford filed an administrative claim. The issue in litigation was whether the claim was timely filed.
Reversing the district court, the Eighth Circuit held that the cause of action did not accrue in October 1976, when the alleged negligence took place. Instead, the Court of Appeals held that the cause of action accrued when the guardian was appointed for two reasons. First, the circuit court found significant that the complaint alleged that the defendant's negligence prevented Allen Clifford from knowing he was harmed and from filing the lawsuit. The circuit court did not want to let the United States benefit from an alleged wrong. Second, "Allen was an emancipated adult, and neither his girlfriend nor his family had a legal duty to act on his behalf."
The question on appeal was whether the two-year statute of limitations found in the Federal Tort Claims Act barred the causes of action. The government argued that the survivor claim accrued in October 1995 when Ms. Miller became aware of the injury. Ms. Miller argued for September 24, 1997, the date Henry Miller died.
Procedurally, neither
The Secretary's interpretation of the Vaccine Act would create an unworkable system. An unappointed "legal representative" would be required to file a lawsuit on behalf of a disabled person whom he or she did not know he or she was representing. The text of the Vaccine Act does not suggest that Congress intended to limit the opportunities for disabled people to bring claims on their own behalf. The Secretary's legal argument is not consistent with general principle of equity that underlie the equitable tolling doctrine.
Consequently, petitioners in the Vaccine Program may invoke equitable tolling based upon mental illness. Whether Mr. Hodge's request for equitable tolling fulfills the requirement of extraordinary circumstances must be analyzed according to the facts and evidence.
The second legal question is: in cases involving a claim for equitable tolling due to mental incapacity, what must the claimant show? The parties agree that the starting point, at least, is
In
The Secretary stated that
Mr. Hodge's argument to add to the test set forth in
When a claimant establishes that he is "incapable of handling his own affairs," the claimant is entitled to equitable tolling. Significantly, a mentally ill person is not required under
Requiring mentally ill claimants to show both that they were not capable of rational decision-making and that they were diligent in pursuing their legal rights would be like attempting to fit a square peg into a round hole. A person whose mental illness is so debilitating that he (or she) cannot function in society is highly unlikely to be capable of filing any sort of petition. Conversely, any steps to advance the legal claim would likely be considered evidence that the person could handle his (or her) affairs. For these reasons, claimants for equitable tolling based upon mental illness are not required to show diligence. They must fulfill only the standard set forth in
The previous two sections addressed issues of law — whether the Vaccine Act permits equitable tolling based upon a disability and whether petitioners with a disability are required to show diligence in pursuing their legal rights. The remainder of the decision places these rulings in the context of Mr. Hodge's case, both in terms of the pleadings and the evidence.
Before addressing the evidence related to whether Mr. Hodge lacked the capacity to manage his own affairs, the undersigned considers first the Secretary's argument that would obviate this examination. The Secretary contends that Mr. Hodge has admitted that the reason he did not file his petition sooner was that he did not know that a vaccine injured him until July 2009.
The legal basis for the Secretary's argument is the declaration that "equitable tolling under the Vaccine Act due to unawareness of a causal link between an injury and administration of a vaccine is unavailable."
The factual basis for the Secretary's argument is a series of statements Mr. Hodge made early in the litigation.
Three years after his petition was filed, Mr. Hodge continued to make statements that suggested his failure to file within the time the statute of limitations permitted was due to an unawareness that a vaccine caused his injury. When Mr. Hodge responded to the Secretary's argument that his case should be dismissed due to an untimely filing, Mr. Hodge asserted that "none of the medical professionals who treated Jeremy objectively recognized his complaints of rapid eye-movement, numbness, dizziness, joint and back pain, headache, or behavior changes as a first symptom, onset, or sign of vaccine injury nor did they recognize a vaccine-induced aggravation of a pre-existing condition." Pet'r's Mem., filed Jan. 30, 2014, at 1-2. Mr. Hodge repeated this later in his brief: none of Mr. Hodge's various symptoms
Thus, the clear thrust of Mr. Hodge's initial response to the motion to dismiss was to argue for something like the discovery rule.
On remand, the Secretary, as noted above, cites some of these assertions as a basis for arguing that Mr. Hodge "admits that his petition was filed late because he was unaware that he may have suffered a vaccine-related injury." Resp't's Mem., filed Oct. 1, 2015, at 5. If it were correct that Mr. Hodge's lack of awareness caused him to miss the deadline for filing within the statute of limitations, then equitable tolling could not save his action.
In juxtaposition, Mr. Hodge argues that his "mental illness caused his untimely filing, not his lack of awareness of his injury." Pet'r's Mem., filed Oct. 16, 2015, at 14 (capitalization changed without notation). However, the remainder of the section below this heading does not develop this argument very significantly. Mr. Hodge's response to the Secretary's arguments regarding statements in his petition is found later on pages 22-26. In that section, Mr. Hodge argued that the precedent controlling the interpretation of the statute of limitations that was effective on July 15, 2009, recognized a discovery rule.
The parties' arguments demonstrate a conundrum in the interplay between the discovery rule and equitable tolling for mental illness.
Mr. Hodge's pleadings from before the motion for review can be seen as inconsistent with his current position. In his petition and in his argument against the motion to dismiss, he seems to have admitted that his lack of knowledge that a vaccine injured him caused him to delay filing his petition until after the May 2009 MRI. Pet. ¶ 9, Pet'r's Mem., filed Jan. 30, 2014, at 1-2, 6-7, 12.
Rather than finding that Mr. Hodge's claim for equitable tolling fails simply because his pleadings focused on the wrong legal theory, the undersigned will consider all the evidence.
On remand, the parties have presented thorough accounts of Mr. Hodge's medical history, emphasizing his mental condition. In addition, the parties retained individuals to offer opinions about Mr. Hodge's competency. Before authoring their reports, Dr. Dunn and Dr. LaRusso reviewed Mr. Hodge's medical records. Exhibit A at 1, exhibit C at 2-4. Their reports provide helpful information about Mr. Hodge's mental status during the critical time from 2006 through July 2009. In contrast, Dr. Dasher did not identify what records he reviewed and did not cite any medical records.
The undersigned has reviewed the reports of Dr. Dasher, Dr. Dunn, and Dr. LaRusso. Their commentary upon Mr. Hodge's symptoms are provided in the context of the following chronology. The recitation of Mr. Hodge's history begins before his vaccination to provide context for later events. The review of the medical history stops shortly after the petition was filed in July 2009, because events temporally distant from the date the petition was filed are not likely to provide information relevant to Mr. Hodge's mental capacity in the time covered by the statute of limitations.
Mr. Hodge was born on May 17, 1987. Exhibit 3. According to a record created in 2007, Mr. Hodge's family had a "strong family [history of] mental illness." Exhibit 11 at 3. This record states that Mr. Hodge's father suffered from bipolar disorder and attention deficit disorder (ADD).
The medical records from Mr. Hodge's pediatrician dating back to his early years recount relatively routine illnesses associated with childhood.
According to records created years later, in December 2009, Mr. Hodge was bitten by a tick while hiking in Big Sur. Exhibit 7 at 22. The tick bite was not treated.
At the age of 18, Mr. Hodge appeared at Noble Community Choice Provider Medical Group for an adolescent health maintenance exam. Exhibit 5 at 2. It appears that Mr. Hodge completed a "`STAYING HEALTHY' ASSESSMENT."
On April 25, 2006, Mr. Hodge returned to Noble Community. Exhibit 5 at 3. The intake portion of the form indicates that Mr. Hodge was returning for follow-up.
Dr. Dunn's opinion is that Mr. Hodge did not lack capacity to function before he was vaccinated. Although Mr. Hodge had already been diagnosed with OCD, "this diagnosis does not equate to a lack of capacity." Exhibit C at 6.
On June 2, 2006, Mr. Hodge and Ms. Elson appeared at the emergency department at Valley Presbyterian Hospital. Exhibit 6 at 1-12. Mr. Hodge's chief complaint was "dizzy/eye movement disturbances."
At discharge, which occurred a few hours after admission, Mr. Hodge's condition was reported as "improving" and "good."
In this litigation, the doctor whom Mr. Hodge retained, Carlo Tornatore, opined that the dizziness and abnormal eye movements that were reported on June 2, 2006, constituted an aggravation of Mr. Hodges "underlying autoimmune demyelinating disorder." Exhibit 18 at 2.
As to Mr. Hodge's mental capacity in June 2006, Dr. Dunn stated that "[t]here was no indication of significant cognitive or mental impairment that would indicate a lack of capacity." Exhibit C at 6. Dr. LaRusso also opined that the record from this visit showed "no evident deficits in orientation or memory." Exhibit A at 7.
The next medical record reporting some information about Mr. Hodge's mental status was created in August 2006. On August 23, 2006, accompanied by his mother, Mr. Hodge went to the emergency department at Encino-Tarzana Regional Medical Center. Exhibit 4. Mr. Hodge reported that he was feeling weak and tired.
At Encino-Tarzana, Dr. Ralph M. Baca evaluated Mr. Hodge.
Dr. Dunn interpreted this record as indicating "an absence of severe impairment and show[ing] he had capacity." Exhibit C at 7. This report was based, in part, on the Glasgow Coma Scale assessment that showed Mr. Hodge did not have altered or diminished consciousness at that time.
There are no medical records created after Mr. Hodge's discharge from Encino-Tarzana until July 10, 2007.
On July 10, 2007, C. Collins, RN, completed a multipage "adult initial assessment" for West Valley Mental Health Center. Exhibit 11 at 3-8. Nurse Collins provided information that is helpful in determining Mr. Hodge's mental state approximately one year after receiving the vaccinations.
Mr. Hodge completed schooling through only the 10th grade.
Mr. Hodge was being seen by a private psychiatrist, Dr. John Nasse. Exhibit 11 at 3. Dr. Nasse prescribed Xanax.
Nurse Collins recorded that Mr. Hodge's presenting problem was a two-year history of OCD that presented as "taping, cutting, [and] counting." Exhibit 11 at 3. The remainder of Nurse Collins's notes provides additional details.
Nurse Collins completed a mental status evaluation in which she described him as "not stable." Exhibit 11 at 7. The form for the mental status evaluation is divided into 3 columns with different components and an associated list of words. The following words are circled:
Nurse Collins diagnosed him with "psychosis NOS" and "OCD."
As part of this process, a physician reviewed Mr. Hodge's chart. Dr. Shanthi Kesham also diagnosed Mr. Hodge with a psychotic disorder NOS and OCD.
Although the intake information from West Valley Mental Health Center was very thorough, information about actual treatment seems sparse. There is a single page of progress notes, indicating that Mr. Hodge had not returned for further services and the case was closed on January 8, 2008. Exhibit 11 at 13.
Dr. Dunn indicated that the visit to West Valley "was in response to a recent escalation of symptoms and a psychotic break Mr. Hodge experienced." Exhibit C at 8. Dr. Dunn noted that Mr. Hodge was prescribed an antipsychotic medication and an anti-anxiety medication that he had not taken previously.
Dr. LaRusso explained that a GAF of 30 meant that "Behavior is considerably influenced by delusions or hallucinations OR serious impairment in communication or judgment OR inability to function in almost all areas." Exhibit A at 7. Dr. LaRusso stated that by July 2007, Mr. Hodge "is experiencing a significant psychiatric decompensation."
On September 9, 2007, Mr. Hodge went to the emergency department at West Hills Hospital and Medical Center. Exhibit 8 at 53-78. He was complaining about pain in his chest that was radiating to his left arm and a sore throat.
The typed report authored by the emergency room physician, Alan Kuban, indicates that the chest pain was not particularly significant. Exhibit 8 at 76-77. However, Dr. Kuban also comments on Mr. Hodge's mental health. Dr. Kuban indicated that:
Dr. Dunn provided relatively little analysis of the record from West Hills. Dr. Dunn stated: "While he presented as significantly impaired on 9/9/07, and required assistance from his mother with respect to providing a history of his condition, he was assessed as alert, fully oriented, and with `cognitive/safety/judgment' intact." Exhibit C at 10. On the other hand, Dr. LaRusso stated that Dr. Kuban's note does not reflect a "mental status/cognitive exam." Exhibit A at 8.
Approximately two months later, Mr. Hodge and his mother met with Theresa Kieldgaard, a program manager at the transitional youth outpatient service of San Fernando Valley Community Mental Health Center ("Transitional Youth"). Exhibit 10. The form for "adult initial assessment" matched the form used at West Valley Mental Health Center and the information contained on both forms is similar.
Ms. Kieldgaard's initial assessment, which occurred on November 16, 2007, provided the following information about Mr. Hodge's current status.
Consistent with the conclusions that other mental health professionals had reached, Ms. Kieldgaard diagnosed Mr. Hodge as suffering from obsessive-compulsive disorder.
The plan was for Mr. Hodge to be seen on an outpatient basis in therapy two or three times per week.
In accord with the plan, Mr. Hodge started to see a therapist, Jennifer West, on November 20, 2007. Exhibit 10 at 57. Ms. West saw Mr. Hodge multiple times each week between November 20, 2007 and February 28, 2008.
Also as part of the plan, Mr. Hodge saw a psychiatrist on December 7, 2007.
Mr. Hodge continued to see Dr. Jones during December 2007. Dr. Jones eventually increased the dose of Luvox to 100 mg every morning and 50 mg at bedtime as treatment for the OCD and depressive symptoms.
In January 2008, Mr. Hodge seemed to be having trouble. At the January 3, 2008 visit, Dr. Jones was unable to see Mr. Hodge and spoke only with Ms. Elson.
Until January 25, 2008, Dr. Jones had noted compliance as "full." However, during this visit, he noted "MOTHER SELF-ADJUSTS all meds."
By February 2008, Dr. Jones was recommending that Mr. Hodge be admitted to an inpatient service at UCLA.
Again, Dr. LaRusso translated Mr. Hodge's numeric GAF scores into words. The GAF of 27 from November 16, 2007 meant that "Behavior is considerably influenced by delusions or hallucinations OR serious impairment in communication or judgment OR inability to function in almost all areas." Exhibit A at 2;
However, Dr. LaRusso also noted that while in Transitional Youth, Mr. Hodge's "team had the capacity to determine [potentially missing word] even when his psychiatric symptoms caused impairment." Exhibit A at 2. Examples of Mr. Hodge displaying the ability to make decisions included signing forms consenting to treatment and permitting his mother to participate, attending and acting appropriately at a holiday party, and declining to being admitted to the hospital on February 15, 2008.
Dr. Dunn's analysis was similar to Dr. LaRusso's analysis. Like Dr. LaRusso, Dr. Dunn began with the GAF score from November 16, 2007. Dr. Dunn, then, opined that treatment in the following year, which extended beyond the services provided at Transitional Youth, "was effective and resulted in significant improvement." Exhibit C at 13.
Mr. Hodge went to the emergency department on March 8, 2008, at West Hills Hospital & Medical Center because he felt faint while eating dinner. Exhibit 8 at 47. As part of the doctor's neurologic examination, the doctor recorded that Mr. Hodge "answers all my questions appropriately."
Although Dr. Dunn quoted from this report, he did not separately analyze it. See exhibit C at 21. Dr. LaRusso mentioned that during this visit, Mr. Hodge was asked to authorize a release of medical records from another facility. Exhibit A at 3.
In May 2008, Ms. Elson returned to Transitional Youth to discuss whether Mr. Hodge should continue to receive services. Exhibit 10 at 14-15. Mr. Hodge did meet with Ms. West four times in June.
On December 4, 2008, Mr. Hodge again went to the emergency department at West Hill. Exhibit 8 at 1-26. He had a rash on his left thigh and a lesion on his left eyelid, neither of which required medical intervention.
Dr. LaRusso noted that Mr. Hodge "was able to sign in to accept treatment and to decline an Advanced Directive." Exhibit A at 4. Dr. Dunn remarked that his overall care level was "1" meaning the person "typically has their full mental capacities." Exhibit C at 23, citing exhibit 8 at 13.
Mr. Hodge went to a different emergency department, this time the one associated with Olive View — UCLA Medical Center, on February 13, 2009. Exhibit 14 at 372-78; exhibit 7 at 5-8, 213. Mr. Hodge was complaining about headaches for one year and also seizure-like activity for six months.
However, it appears that an MRI was not performed in February 2009. Ms. Elson's September 29, 2014 affidavit describes that MediCal — Medicaid refused to cover an MRI, although Ms. Elson is not specific about when the denial happened. Exhibit 19 at 2.
Eventually, Mr. Hodge underwent an MRI on May 18, 2009. Exhibit 2.
These records received little attention from Dr. Dunn and Dr. LaRusso. See exhibit A at 4, exhibit C at 24.
The May 18, 2009 MRI prompted the filing of the pending petition.
After May 18, 2009, it appears that the next significant encounter with medical personnel occurred on August 1, 2009, when Mr. Hodge returned to the emergency department at Olive View. Exhibit 14 at 369-70.
Mr. Hodge went to the neurology clinic a few days later. Exhibit 7 at 45-46. The chief complaint was recorded as:
The report also contains a summary of the results from a mental status examination. "Mr. Hodge was oriented to person, place, time, and situation. His mood was normal, but his affect was blunted. He had difficulty with serial 7's, and he displayed slight perseverations."
Both Dr. Dunn and Dr. LaRusso included information from this appointment in their reports, but neither provided any opinion about Mr. Hodge's ability to function in early August 2009. See exhibit A at 4, exhibit C at 25.
A more significant record came from Dr. Dasher on October 22, 2009. The chief complaint included "`Fog in head, memory issues, joint pains throughout body' [for] 4-5 years" and "some new onset OCD [symptoms] — incredible urge to touch, count." Exhibit 14 at 441.
Dr. Dasher also completed a mental status exam. For most categories, Mr. Hodge was normal. His mood was anxious and angry, but he denied being depressed. His obsessions were touching and counting. He denied delusions and auditory hallucinations. There was a question about visual hallucinations.
Dr. Dasher determined that Mr. Hodge's GAF was currently 45 and 60 within the past year. Dr. Dasher recommended neurocognitive/personality testing.
According to Dr. Dunn,
In contrast, Dr. Dasher's report in this litigation indicates that when Dr. Dasher has been able to observe Mr. Hodge, Mr. Hodge has not been capable of handling his own affairs. Exhibit 22 at 2 (point 3). Dr. Dasher's October 22, 2009 report is the most recent contemporaneously created record that bears upon Mr. Hodge's capacity from 2006 to July 2009.
The expert reports, which the parties did not submit until after the Court remanded the case, were very helpful in understanding Mr. Hodge's capacity. Dr. Dasher's opinion is that Mr. Hodge was generally not capable of managing his affairs, at least in the time that Dr. Dasher was treating Mr. Hodge. Exhibit 22. Dr. LaRusso opined that "Mr. Hodge suffered a period of significant psychiatric decompensation beginning on July 7, 2007. . . . There was some improvement in his condition with therapeutic treatment, and his records show he had a level of impairment but retained a level of capacity to make decisions." Exhibit A at 6. Dr. Dunn concluded that just before July 10, 2007, "Mr. Hodge became severely impaired and lacked capacity. This period of incompetency lasted for approximately one year, until the middle of 2008." Exhibit C at 27.
The opinions of Dr. LaRusso and Dr. Dunn that Mr. Hodge lacked capacity for approximately one year is sufficient to find that Mr. Hodge is entitled to equitable tolling. Thus, the undersigned refrains from making any factual findings regarding Mr. Hodge's capacity from April 2006, when he received the first vaccinations, through the end of June 2007, which is shortly before he was evaluated at West Valley. The undersigned also refrains from making any factual findings regarding Mr. Hodge's capacity after September 2008, which corresponds to the approximate date at which Dr. Dasher scored Mr. Hodge's GAF as 60.
The determination that approximately one year of impaired capacity suffices to entitle Mr. Hodge to equitable tolling is based, in part, on the amount of time by which Mr. Hodge filed late. Based upon Mr. Hodge's visit to Valley Presbyterian Hospital (exhibit 6 at 1-12), Dr. Tornatore opined that Mr. Hodge's mental condition was substantially worse on June 2, 2006. Exhibit 18. Thus, Mr. Hodge should have filed his petition by June 3, 2009. 42 U.S.C. § 300aa-16(a)(2). He actually filed on July 15, 2009, which is 42 days later.
The parties largely overlooked the significance of the duration of impairment. Mr. Hodge simply argued that he lacked capacity throughout the time from April 2006 through July 2009. Pet'r's Br., filed Oct. 16, 2015, at 16. Consistent with her argument that equitable tolling for mental illness is not compatible with the Vaccine Act (
Stronger guidance comes from the Federal Circuit's opinion in
The Federal Circuit accepted the parties' contention that the period of equitable tolling should be measured with a "`stop-clock' approach."
As a case arising from a claim for veterans benefits,
Therefore, the essential chronology should be restated as follows:
Consequently, Mr. Hodge's case will proceed to the merits of evaluating whether the hepatitis A and hepatitis B vaccinations caused him any harm.
Mr. Hodge's claim for equitable tolling based upon a lack of capacity differs from other claims for equitable tolling based upon an isolated problem.
Mr. Hodge's case is different in the sense that according to him, his mental illness has lasted throughout this case.
As discussed earlier, the Vaccine Act identifies three people who qualify as petitioners. 42 U.S.C. § 300aa-11(b)(1)(A). In filing his petition, Mr. Hodge appears to have represented himself as a "person who has sustained a vaccine-related injury," which is listed first.
Notably, Mr. Hodge did not take advantage of the statute's second category of people who qualify as petitioners: "the legal representative of such person if such person is a minor or is disabled." When the petition is brought by the legal representative of a disabled person, "the petition must also be accompanied by documents establishing the authority to file the petition in a representative capacity or a statement explaining when such documentation will be available." Vaccine Rule 2(c)(2)(C). According to the Rules of the Court of Federal Claims, "an incompetent person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem." Rule 17(c)(2) of the Rules of the Court of Federal Claims.
In advancing his claim for equitable tolling, Mr. Hodge seems to admit that he was disabled. Mr. Hodge states he "was not capable of rational thought, deliberate decision [making], and unable to function in society when the petition was filed in July of 2009." Pet'r's Mem., filed Oct. 16, 2015, at 15-16. Petitioner further admits that this disability runs through the present day "render[ing] him incapable of rational thought, deliberate decision-making and unable to function in society." Pet'r's Mem., filed Dec. 4, 2015, at 12. The petitioner's characterization of himself as unable to function in society is consistent with Dr. Dasher's most recent report. Exhibit 27. Thus, it would appear that Mr. Hodge's petition should have been brought on his behalf by a next friend or guardian ad litem.
A remedy for this potential problem is found in RCFC 17.
Here, the undersigned proposes that Mr. Hodge should have a general guardian or conservator appointed for him through the California Probate Court. The reasons for this proposal are several. Mr. Hodge's claim for equitable tolling is premised on his lack of ability to manage his own affairs. Thus, someone must watch out for him. A potential choice in this litigation is to assume that Mr. Shoemaker, who represents Mr. Hodge as an attorney, is advancing Mr. Hodge's best interests. However, the duties of an attorney differ from the duties of a guardian ad litem.
In addition, although Kennedy states "the Special Master could have appointed the parents as `next friends' or guardians ad litem," 99 Fed. Cl. at 542, the Federal Circuit has not confirmed the extent of a special master's authority. Special masters must heed the limits to their authority.
This caution seems especially appropriate here because the California Probate Court is a tribunal whose duties include appointing guardians or conservators. The California Probate Court, therefore, has extensive experience with determining who should act as an incompetent person's guardian or conservator. The California Probate Court also has a system to oversee the performance of the guardian or conservator. These features make the California Probate Court a better forum to determine who should act for Mr. Hodge.
Finally, the California Probate Court's appointment of an appropriate representative for Mr. Hodge may expedite resolution of this matter. Assuming that the special master could and did appoint a next friend, the next friend probably could not receive the compensation.
Thus, if Mr. Hodge succeeds in his goal of receiving compensation through the Vaccine Program, he will, in all likelihood, be required to have a general guardian or conservator appointed for him.
Both parties ARE ORDERED to file briefs addressing the advisability of an order requiring Mr. Hodge to request an appropriate action by the California Probate Court. Needless to say, Mr. Shoemaker should present the views of his client, Mr. Hodge, which may (or may not) align with the views of his mother. The parties shall file supplemental briefs on this issue in
As developed on remand, Mr. Hodge's argument for equitable tolling presents several complicated legal issues. These include:
These are questions of law for which there is little (or no) appellate guidance. As the case law around equitable tolling develops, the conclusions reached in this decision may need to be revisited.
In addition to these challenging issues of law, Mr. Hodge's case involves questions of fact. The primary factual determination is that Mr. Hodge was not capable of managing his affairs from July 2007 through September 2008. Pursuant to a "stop-clock" approach to equitable tolling, this period of disability is sufficient to find that Mr. Hodge is entitled to equitable tolling.
Finally, because Mr. Hodge has stated that he is disabled, the California Probate Court may wish to appoint a guardian for him. The parties are instructed to file briefs within 30 days on this topic.
This ruling is intended to answer the Court's remand. As such, the Clerk's Office is instructed to transmit it to the presiding judge.
In addition, when Mr. Shoemaker decided to undertake this challenge, he knew that the Federal Circuit had held that special masters lacked the authority to award attorneys' fees to petitioners whose cases were filed outside the statute of limitations. This ruling came in a second opinion from the Federal Circuit in the Brice case.
Thus, as the law stood in 2009, Mr. Shoemaker agreed to take on a case that would require a significant amount of work (possibly an en banc appeal), for which it was possible, if not likely, he would not receive attorneys' fees. Mr. Shoemaker's willingness to put his client's interests ahead of his own upholds the best traditions of the legal profession.
Mr. Hodge used these statements to argue that "Ms. Elson was duly diligent in advocating for her son's rights because she consistently expressed during each doctor visit that [Mr.] Hodge experienced severe health problems following the Hepatitis vaccinations." Pet'r's Mem., filed Jan. 15, 2015, at 9-10.
On the other hand, there is a negative test for antibodies for Borrelia burgdorferi, the causative agent for Lyme disease, that was drawn on June 18, 2009.
