Powell v. Hhs

OR\G\NAL

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 03-4l7V
Filed: May l9, 2014
******=l<**>l<*>l¢*****=l<**>l<*******
DORTHY OWEN POWELL, parent of MDP, * FEDERAL CLAll\/|S
a minor, *
* Autism; Statute of Limitations;
Petitioner, * Untimely Filed; Dismissal
v. *
*
SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
*
Respondent. *
*

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1
DECISION

On February 2l, 2003. Dorothy Owen Powell (“Petitioner"), on behalf of her son, MDP,
filed a claim for compensation pursuant to the National Vaccine injury Compensation Program
("Vaccine Program").z (Petition ("Pet.") at l-2.)

l Because this decision contains a reasoned explanation for the action in this case, I
intend to post this decision on the United States Court of Federal Claims' website, in accordance
with the E-G0vernment Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified
as amended at 44 U.S.C. § 3501 (2006)). In accordance with Vaccine Rule l8(b), a party has 14
days to identify and move to delete medical or other information that satisfies the criteria in 42
U.S.C. § 300aa-l2(d)(4)(B). Further, consistent with the rule requirement, a motion for
redaction must include a proposed redacted decision. If, upon review, I agree that the identified
material fits within the requirements of that provision, l will delete such material from public
access.
2 The National Vaccine lnj ury Compensation Program comprises Part 2 of the National
Childhood Vaccine lnjury Act of l986, Pub. L. No. 99-660, 100 Stat. 3755, codified as
amended, 42 U.S.C. § 300aa-l 0 el seq. (2006). Hereafter, for ease of citation, all "§" references
will be 42 U.S.C. § 300aa (2006). I will sometimes refer to the Act of Congress that created the

Vaccine Program as the "Vaccine Act."

Petitioner has the burden to demonstrate that her case was properly and timely filed under
the Vaccine Act’s statute of limitations. § l6(a)(2). Based on my analysis of the evidence,
Petitioner has not met her burden, and thus this case is dismissed as untimely f`iled.

I
BACKGROUND - -THE OMNIBUS AUTISM PROCEEDING

This case concerning MDP is one of more than 5,000 cases filed under the Program in
which it has been alleged that a child’s disorder known as "autism," or a similar disorder, was
caused by one or more vaccinations. A brief summary of one aspect of that history is relevant to

this Decision.

In anticipation of dealing with such a large group of cases involving a common factual
issue--i.e., whether vaccinations can cause autism--the Office of Special Masters ("OSM")
devised special procedures. On July 3, 2002, the Chief Special Master, acting on behalf of the
OSM, issued Autism General Ora’er #1, 3 which set up the OAP. In the OAP, a group of counsel
selected from attorneys representing petitioners in the autism cases, known as the Petitioners’
Steering Committee ("PSC"), was charged with obtaining and presenting evidence concerning
the general issue of whether those vaccines can cause autism, and, if so, in what circumstances.
The evidence obtained in that general inquiry was to be applied to the individual cases. (Autism
General Order # 1, 2002 WL 31696785, at *3.)

Ultimately, the PSC elected to present two different theories concerning the causation of
autism. The first theory alleged that the measles portion of the MMR vaccine can cause autism,
in situations in which it was alleged that thimerosal-containing vaccines previously weakened an
infant’s immune system. That theory was presented in three separate Program "test cases,"
during several weeks of trial in 2007. The second theory alleged that the mercury contained in
the thimerosal-containing vaccines can directly ajj‘"ezcr an infant’s brain, thereby substantially
contributing to the development of autism. The second theory was presented in three additional
"test cases" during several weeks oftrial in 2008.

On February 12, 2009, decisions were issued concerning the three "test cases" pertaining
to the PSC’sj?r.s't theory. In each of those three decisions, the petitioners’ causation theories were

3 The Autism General Order #1 is published at 2002 WL 31696785, 2002 U.S. Claims
LEXIS 365 (Fed. Cl. Spec. Mstr. July 3, 2002). l also note that the documents filed in the
Omnibus Autism Pr0ceeding are contained in a special file kept by the Clerk of this court,
known as the "Autism Master File." An electronic version of that File is maintained on this
court’s website. This electronic version contains a "docket sheet" listing all of the items in the
File, and also contains the complete text of most of the items in the File, with the exceptions of a
few documents that are withheld from the website due to copyright considerations or due to §
300aa-l2(d)(4)(A). To access this electronic version of the Austism Master File, visit this court’s
website at www.uscfc.uscourts.gov. Select the Vaccine Claims" page, then the "Austism

Proceedings" page.

rejected. l issued the decision in Cea’illo v. HHS, No. 98-916V, 2009 WL 331968 (Fed. Cl. Spec.
Mstr. Feb. 12, 2009). Special Master Patricia Campbell-Smith issued the decision in Hazlehurst
v. HHS, No. 03-654\/. 2009 WL 332306 (Fed. Cl. Spec. Mstr. Feb. 12, 2009). Special Master
Denise Vowell issued the decision in Snyder v. HHS, No. 01-162\/, 2009 WL 332044 (Fed. Cl.

Spec. Mstr. Feb. 12, 2009).

Each of those three decisions was later affirmed in three different rulings, by three
different judges of the U.S. Court of Federal Claims. Hazlehurst v. HHS, 88 Fed. Cl. 473 (2009);
Snyder v. HHS, 88 Fed. Cl. 706 (2009); Cea’z'llo v. HHS, 89 Fed. Cl. 158 (2009). Two ofthose
three rulings were then appealed to the U.S. Court of Appeals for the F ederal Circuit, again
resulting in affirmances of the decisions denying the petitioners’ claims. Hazlehurst v. HHS, 604
F. 3d 1343 (Fed. Cir. 2010); Cedz`llo v. HHS, 617 F. 3d 1328 (Fed. Cir. 2010).

On March 12, 2010, the same three special masters issued decisions concerning three
separate "test cases" pertaining to the petitioners PSC`S second causation theory. Again, the
petitioners’ causation theories were rejected in all three cases. Ki`ng 1-'. f~i’i'-I.S`, No. 03-
584V, 2010 WL 8922% (i~`cd,Cl.Spec..f\/lsir. Mar. 12, 2010); itt/lead v. HHS, No. 03-
215V, 2010 WL 892248 (Fed.Cl.Spec.Mstr. Mar. 12, 2010); Dwyer v. HHS, No. 03-
1202V, 2010 WL 892250 (Fed.Cl.Spec.Mstr. Mar.l2, 2010). None ofthe petitioners elected to
seek review any of those three decisions.

II
PROCEDURAL HISTORY OF THIS CASE

On February 21, 2003, Petitioner filed a "Short-Form Autism for Vaccine
Compensation," on behalf of her son, MDP, under the Vaccine Act. By filing a Short-Forni
Autism Petition for Vaccine Compensation, the Petitioner, in effect, alleged that as a result of
one or more vaccinations covered under the Program, MDP developed a neurological disorder,
consisting of an Autism Spectrum Disorder or similar disorder, and that such disorder was
caused by measles-niuinps-riibellzi (MMR) vaccination; by the "thimersoal" ingredient in certain
Diphtlieria-'l`eiaiieus~Pertiissis (D'I`I’), Dipheria~Tetanus-acellular Pertussis (DTaP), Hepatitis B,
and Hcniophilus liifluenzci 'l`ype B (l llB) vaccinations; or by some combination ofthe two.
(Au!ism Gerieraz' Or'a'er # I, 2002 WL 3169?85*8 (Fed. Cl. Spec. Mstr., July 3, 2002).) The
petition provided no specific details regarding the nature of the alleged vaccine-related injury to
MDP,

On May 19, 2003, Respondent filed a report indicating that the record to date was
deficient. After that, proceedings in this case were deferred pending the outcome of the OAP
"test cases." The proceedings in this case resumed in 2008 upon completion of the OAP test case

trials.

On November 14, 2008, l ordered Petitioner to file certain medical records, and directed

Respondent to file a statement regarding the appropriateness of further processing this claim in
the OAP. ln response, Petitioner filed various medical records on January 23, 2009.

On March 6, 2009, Respondent filed a Motion to Dismiss, contending that based on the
record, Petitioner’s claim was filed more than 15 months after the expiration of the statute of

limitations. ("R. Mot. to Dismiss")

On July 7, 2009, 1 ordered Petitioner to file a response to Respondent’s Motion to
Dismiss, On August 6, 2009, Petitioner filed a Response to Respondent’s Motion to Dismiss,
contending that the statute of limitations did not begin to run until MDP received a confirmed
diagnosis of autism. ("Pet. Resp. to Mot. To Dismiss,"p. 7.)

On Dccember 2. 2010, 1 ordered Petitioner to provide a statement identifying her theory
of how MDP’s vaccines caused his autism. Petitioner filed a "Response with Theory," describing
her theory of vaccine causation, on January 3, 2011. On February 17, 2011, Petitioner submitted
additional exhibits consisting of medical records and academic articles, as well as a "Response"
describing how those documents allegedly support vaccine causation in this case.

On March 10, 201 1, 1 filed an Order indicating that 1 would not rule on Respondent’s
Motion to Dismiss until after the resolution of the appeal in Cloer v. HHS, 654 F.3d 1322 (Fed.
Cir. 2011), concerning the Vaccine Act’s statute of limitations. On August 5, 2011 the U.S.
Court of Appeals for the Federal Circuit issued its en banc ruling on the timely filing issue.
Cloer, 654 F.3d 1322. On August 31, 2012, 1 issued an Order, indicating that in light ofthe en
banc decision in Cloer, petitioner would have 30 days to file any additional arguments
concerning the timeliness of her Petition. Petitioner did not offer any additional arguments.

III
FACTUAL HISTORY

MDP and his twin brother were born on August 22, 1996, (Ex.'l 39.) On October 24,
1996, both twins received the combination of DTP/ Hib vaccinations at Decatur General
Hospital. (Ex. 9.) Petitioner asserts that after MDP and his brother received those vaccinations,
both children began to cry and “continued to do so with high pitch screaming for several hours
thereaf`ter." (Pet. Resp. to Mot. to Dismiss at 2.) Petitioner avers that, as instructed by the post-
immunization handouts, she gave MDP and his brother Tylenol to sooth their discomfort, and
both children slept through the night. (Ex. 12 at 2; Pet. Resp. to Mot. to Dismiss at 2.) MDP
continued his routine childhood vaccinations, receiving combination DTP/Hib vaccinations on
Dccember 19, 1996, and February 27, 1996, followed by DTaP and MMR vaccinations on

September 4, 1997. (Ex. 11.)

The medical records also note that Matthew "stopped babbling at thirteen months of age
and engaged in no more expressive language." (Pet. Ex. 7 at 1.) At approximately fifteen
months of age Matthew began receiving early intervention services. (]d. at 2.) Matthew was
"not ta1king" at eighteen months of age, and was enrolled in speech, occupational, physical and

play therapies. (Pet. Ex, 16 at 7.)

4 1 will refer to Petitioner’s exhibits as "Ex." Petitioner filed medical records consisting of
Exhibits 1-39 on January 23, 2009. On August 6, 2009, Petitioner filed Exhibit 40, a home video.
Petitioner filed additional medical records as Exhibits 41 -78 on February 17, 2011.

Petitioner has stated that after attending a conference in Nashville in November 1999, she
realized that vaccines might be the cause of the symptoms exhibited by both MDP and his twin.
(Pet. Resp. to Mot. to Dismiss at 4.) Thereafter, Petitioner avers, she contacted an attorney who
informed her that she needed to obtain a formal diagnosis prior to filing a Petition for Vaccine

Compensation. ([d. at 5 .)

On November 4, 1999, Dr. Dukes referred MDP to child neurologist Dr. J an Mathisen
for evaluation of"[p]oss[ible]autism." (Ex. 3 at 5.) On January 27, 2000, Dr. Mathisen
concluded that MDP had "evidence of autistic features." (Ex. 3 at 1.) At Petitioner’s request, Dr.
Mathisen also conducted a follow-up MRI, Amino Acid testing, Fragile X testing, and
chromosome testing to confirm the autism finding (Ex. 4 at 1.) On March l, 2000, Dr. Mathisen
saw MDP "for follow-up of his autism." (Ex. 4 at 1.) Dr, Mathisen reported that MDP’s MRI and
Amino Acid Test results were negative, and “thal everything appears to bc going fairly well with
[MDP]." (Id.) Petitioner avers it was at this visit that she was also provided "a medical diagnosis
that confirmed my children suffered*** [from] autism." (Pet. Resp. to Mot. to Dismiss at 6 .)

IV
LEGAL STANDARD

The Vaccine Act provides that:

a vaccine set forth in the Vaccine injury 'l`able which is administered after October 1,
1988, 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 of the significant aggravation of such inj ury. ..

§ 300aa-16(a)(2) (emphasis added). 1n Cloer v. HHS, the Court of Appeals for the Federal
Circuit affirmed that the statute of limitations begins to run on a specific statutory date: the date
of occurrence of the first symptom or manifestation of onset of the vaccine-related injury
recognized as such by the medical profession at large." 654 F.3d at 1322, 1325 (Fed. Cir. 201l).
This date is dependent on when the first sign or symptom of injury appears, not when a petitioner
discovers a causal relationship between the vaccine and the injury. (Id. at 1335).

V
ANALYSIS OF THIS CASE

On February 21, 2003, Petitioner filed a Short-Form Autism Petition for Vaccine
Compensation on behalf` of MDP, Accordingly for this case to be timely filed within the Vaccine
Act’s statute of limitations, the first symptoms of MDP’s ASD must have occurred no earlier

than February 21, 2000.

After Petitioner filed MDP’s medical records, the Respondent filed Respondent’s Motion
to Dismiss, asserting that MDP was "formally diagnosed with autism by neurologist Jan E.
Mathisen, M.D., on January 27, 2000." (R. Mot. To Dismiss at 3.) 1n response, Petitioner
appeared to argue that the statute of limitations period should not begin until after MDP ha a

confirmed diagnosis of autism, because doctors were not able to confirm MDP’s condition until
March 1, 2000.5 (Pet. Resp. to Mot. to Dismiss at 7.)

The U.S. Court of Appeals for the Federal Circuit has repeatedly held that the statute of
limitations does not begin to accrue at the time ol` the diagnosis of the vaccine-related injury, but
at the time when the _/i`r'.s‘t syinprr):ii or rnrr)i{fe.s'.'at:`on of`on.re.' ocr.'urs.h See C`ar.s‘on ex rel. Carson
v. HHS, 727 F.3d 1365, 1369 (Fed. Cir. 2013); Cloei' v. HHS, 654 F. 3d 1322, 1329 (Fed. Cir.
2011); Markovz'ch v. HHS, 477 F.3d 1353, 1357 (Fed. Cir. 2007). ln this case, 1 find that on
January 27, 2000, Dr. Mathisen ciete:'miiied that MDP was suffering from ASD, when that
physician noted that "|_MIDP] |hadj evidence ofautistic feattires,“ and wrote "Irnpression:
Autism." (Ex. 3 at l,4.) Since MDP was stit`t`ering horn ASD on January 27, 2000, it follows
inevitably that MDP’s first symptom or manifestation of onset on his ASD occurred prior to his
visit with Dr. Mathisen on January 27, 2000.

In short, it is clear that MDP’s first symptoms of ASD appeared at some point before
January 27, 2000, the date on which he was diagnosed. Thus, MDP’s first symptoms and his
manifestation of onset occurred earlier than February 21, 2000. Accordingly, Petitioner’s claim

is time-barred.

VI
CONCLUSION

1 have great sympathy for the tragic disorder from which MDP suffers. Under the
applicable law, however, Petitioner has the burden to show timely filing. Petitioner has failed to
do so. There is preponderant evidence that this case was not filed within "36 months after the
date of occurrence of the first symptom or manifestation ot` onset or of the significant
aggravation of such injury" as required by Vaccine Act, § 16(a)(2). Therefore, this claim is
dismissed as untimely filed under the Vaccine Act’s statute of limitati0ns. § 16(a)(2). The

clerk is directed to enter judgment accordingly.

5 In her Response to the Motion to Dismiss, Petitioner indicated that MDP’s autism
diagnosis was confirmed on March 3, 2000, but Petitioner later clarified the date of MDP’s
diagnosis conlirintition to be March l, 2000 in her subsequent "Response with Theory." (Pet.
Resp. to Mot. to Dismiss, ECF No. 17 at 6; Response, ECF No. 21 at 15.) 1 accept that Petitioner
intended to zisseri that Ml)f"s diagnosis was confirmed on March 1, 2000, not March 3, 2000,
since the former date corresponds with the medical records. (Ex. 4.)

6 1 have sympathy for Petitioner that she may have received faulty legal advice as to when
to file a petition with this court, but under applicable law, this cannot negate Petitioner’s burden

to demonstrate timely fi1ing.

IT IS SO ORDERED.

_.

George L. Hastings
Special Master