Firm Obtains Landmark Vaccine Decision

7/16/2003

Sheila Bjorklund, a partner at Lommen Nelson, has obtained the first decision in the country on when the statute of limitations begins to run in cases alleging that childhood vaccines caused or triggered autism. In the landmark case of Setnes v. HHS, Judge Bohdan Futey, of the U.S. Court of Federal Claims, recognized that the onset of autism is insidious and may not become manifest until there is enough evidence for doctors to reach the diagnosis.

The Department of Justice had sought dismissal of the case arguing that the case was not timely as it was filed more than three years after the first symptom of autism. The Vaccine Injury Act provides that petitions for compensation must be filed within 36 months after 1) the occurrence of the first symptoms or 2) the manifestation of the onset of the vaccine related injury. The judge reasoned that Congress meant for the two prongs to have different meanings. He held that, with regard to autism, the statute of limitations begins to run upon the manifestation of onset of the injury; not with the occurrence of the first symptoms. The judge reasoned that the beginning stage of autism cannot be reduced to a single, identifiable symptom. The court held that:

Where there is no clear start to the injury, such as in cases involving autism, prudence mandates that a court addressing the statute of limitations not hinge its decision on the ‘occurrence of the first symptom.’

The judge further held that the Department of Justice’s construction of the statute -- that ‘first symptom’ and ‘manifestation of onset’ are the same -- would render the phrase ‘manifestation of onset’ meaningless and lead to a nonsensical result. The judge turned to the plain language of the Vaccine Act and defined ‘manifest’ as evident to the senses . . . obvious to understanding, evident to the mind, not obscure or hidden, and found it to be synonymous with clear, visible, unmistakable, indubitable, evident, and self-evident.

The court did point out that it was not holding that a medical diagnosis or psychological diagnosis or verification of the onset begins the running of the statute of limitations. Rather, in cases where the symptoms develop insidiously over time, as with autism, and the child’s behavior cannot be readily connected to an injury or disorder, the court may rely on the child’s medical or psychological evaluations for guidance in ascertaining when the "manifestation onset" occurred. Judge Futey has also denied the Department of Justice’s ensuing motion for reconsideration of his opinion.

This case creates favorable precedent for numerous other potential claims of vaccine injury resulting in autism that are filed more than three years after the first symptom but within three years of the manifestation of the onset of autism. Sheila Bjorklund is a member of the Autism Petitioners' Steering Committee which is composed of attorneys from across the country who have filed claims on behalf of children claiming injury due to receipt of childhood vaccines. The Petitioners’ Steering Committee is currently working with medical and scientific experts to prove legal causation between vaccine components such as thimerosal and autism. Ms. Bjorklund is a partner in the Lommen Nelson firm in Minneapolis, Minnesota and is admitted to practice law in both Minnesota and Wisconsin. She has been selected as a Rising Star in litigation by the Minnesota magazine, Law & Politics.

To view the decision in it's entirety, click here.

For more information on this issue, check out the Commentary, "Shoemaker on Vaccines," by Clifford Shoemaker in the June 2003 Mealey's Litigation Report Thimerosal & Vaccines. Additional information may be found at www.mealeys.com.

If you or someone you know may have sustained a vaccine-related injury and you would like more information about your legal rights, contact Sheila Bjorklund at 612-336-9312, 800-752-4297, or sheila@lommen.com.