Carson v. Secretary of Health & Human Services

United States Court of Appeals

for the Federal Circuit

______________________

STACY CARSON AND AMY CARSON,

as legal guardians for KIT CARSON,

Petitioners-Appellants,

v.

SECRETARY OF HEALTH AND HUMAN

SERVICES,

Respondent-Appellee.

______________________

2010-5089

______________________

Appeal from the United States Court of Federal

Claims in No. 02-VV-873, Judge Mary Ellen Coster Wil-

liams.

______________________

Decided: August 28, 2013

______________________

DAVID P. MATTHEWS, Matthews & Associates, of Hou-

ston, Texas, for petitioners-appellants.

HEATHER L. PEARLMAN, Senior Trial Attorney, Torts

Branch, Civil Division, United States Department of

Justice, Washington, DC, for respondent-appellee. With

her on the brief were STUART F. DELERY, Principal Deputy

Assistant Attorney General, RUPA BHATTACHARYYA,

2 STACY CARSON v. HHS

Director, VINCENT J. MATANOSKI, Deputy Director, and

CATHARINE E. REEVES, Assistant Director.

______________________

Before NEWMAN, CLEVENGER, and WALLACH, Circuit

Judges.

Opinion for the court filed by Circuit Judge WALLACH.

Dissenting opinion filed by Circuit Judge NEWMAN.

WALLACH, Circuit Judge.

Parents Amy and Stacy Carson (“Petitioners”) filed a

petition for compensation on behalf of their son, Kit

Carson, under the National Childhood Vaccine Injury Act,

42 U.S.C. §§ 300aa–1 to–34 (2006) (“Vaccine Act”). The

Chief Special Master dismissed the petition as untimely

filed. The United States Court of Federal Claims affirmed

and dismissed the Petitioners’ petition for review. See

Carson v. Sec’y of Health & Human Servs., 97 Fed. Cl.

620, 621 (2010). We affirm.

BACKGROUND

Kit Carson was born on May 22, 1996, and received

numerous vaccinations between his birth and June 4,

1997. 1 Kit’s pediatricians noted that he was “‘[b]ehind in

speech’” at his 18-month check-up, and “‘speech de-

lay[ed]’” at his 24-month check-up. Carson, 97 Fed. Cl. at

621 (quoting Carson v. Sec’y of Health & Human Servs.,

1 This background is drawn from the Court of Fed-

eral Claims’s opinion. A more detailed description of the

Petitioners’ history can be found in the Court of Federal

Claims’s opinion and in the Special Master’s Decision. See

Carson, 97 Fed. Cl. at 620; Carson v. Sec’y of Health &

Human Servs. No. 02-873V, 2009 U.S. Claims LEXIS 449

(Fed. Cl. Spec. Mstr. Aug. 26, 2009) (“Special Master’s

Decision”).

STACY CARSON v. HHS 3

No. 02-873V, 2009 U.S. Claims LEXIS 449, at *4 (Fed. Cl.

Spec. Mstr. Aug. 26, 2009) (“Special Master’s Decision”)).

On May 25, 1999, at Kit’s three-year check-up, Dr. Page,

Kit’s pediatrician, noted Kit’s “severe language delay,”

and referred him to the Developmental Evaluation Center

in Asheville, North Carolina. Special Master’s Decision at

*5. On September 13, 1999, Kit was evaluated by a

psychologist for placement in his school district, at which

time the psychologist again noted Kit’s language delays

(“IEP evaluations”). Kit was diagnosed with autism

spectrum disorder on April 26, 2001. Petitioners, on

behalf of their son, filed a petition for compensation under

the Vaccine Act on July 22, 2002.

After a deferral of proceedings, Respondent moved to

dismiss the petition under Rule 21(b) of the Vaccine Rules

of the United States Court of Federal Claims on the

ground that Petitioners filed their petition more than 36

months “after the date of the occurrence of the first symp-

tom or manifestation of onset or of the significant aggra-

vation of such injury.” See 42 U.S.C. § 300aa–16(a)(2).

The Chief Special Master relied upon the written reports

and oral testimony of Petitioners’ medical expert, Dr.

Mumper, to determine “the first event objectively recog-

nizable as a sign of a vaccine injury.” Special Master’s

Decision at *7. Relevant to the Chief Special Master’s

decision was Dr. Mumper’s testimony that: (i) Kit Carson

was “exhibiting speech delay” in May of 1999; (ii) speech

delay is one symptom of autism; and (iii) difficulty with

speech was “one of the ways [Kit Carson’s autism] mani-

fested itself.” Id. at *15. Based on this testimony, the

Chief Special Master concluded “that the first symptoms

of Kit’s autism spectrum disorder are recorded in May of

1999 . . . . Thus, the petition in this matter needed to be

filed in May of 2002 to be timely filed in accordance with

§ 16(a)(2).” Id. at *16–17.

Petitioners appealed the Chief Special Master’s deci-

sion to the Court of Federal Claims. The Court of Federal

4 STACY CARSON v. HHS

Claims found that the Chief Special Master properly

dismissed the petition as untimely and sustained the

decision. Carson, 97 Fed. Cl. at 625. Petitioners then filed

the present appeal. We have jurisdiction pursuant to 28

U.S.C. § 1295(a)(3) and 42 U.S.C. § 300aa–12(f).

DISCUSSION

The Vaccine Act established a program to increase the

safety and availability of vaccines, and through the Vac-

cine Injury Compensation Program claimants may get

compensation for vaccine-related injuries or death. See 42

U.S.C. §§ 300aa–1, 300aa–10(a). The program limits the

period during which a petitioner may file for compensa-

tion:

[(a)](2) . . . if a vaccine-related injury occurred as a

result of the administration of [a vaccine set forth

in the Vaccine Injury Table that was administered

after October 1, 1988], no petition may be filed for

compensation under the Program for such injury

after the expiration of 36 months after the date of

occurrence of the first symptom or manifestation of

onset or of the significant aggravation of such in-

jury . . . .

42 U.S.C. § 300aa–16(a)(2) (emphasis added). 2

2 The dissent states that “[a]t a minimum, equitable

tolling should be applied to this petition.” Dissenting Op.

at 10. Although this court held that equitable tolling is

available under the Vaccine Act in certain circumstances,

Cloer v. Sec’y of Health & Human Servs., 654 F.3d 1322,

1344–45 (Fed. Cir. 2011) (en banc), “we find no basis in

equity for doing so” in this case, see id. at 1344 (holding

the same). The court in Cloer held that the unfairness of

barring a claimant from asserting a diligently pursued

Vaccine Act claim was not, by itself, “the sort of circum-

stance that might merit equitable tolling.” Id. Rather,

STACY CARSON v. HHS 5

“We review an appeal from the Court of Federal

Claims in a Vaccine Act case de novo, applying the same

standard of review as the Court of Federal Claims applied

to its review of the special master’s decision.”

Broekelschen v. Sec’y of Health & Human Servs., 618 F.3d

1339, 1345 (Fed. Cir. 2010). We give no deference to the

Court of Federal Claims’s or Special Master’s determina-

tions of law, but uphold the Special Master’s findings of

fact unless they are arbitrary or capricious. Id.

In Markovich, this court established a standard to de-

termine when the “first symptom” occurred for purposes

of the Vaccine Program’s statute of limitations. See Mar-

kovich v. Sec’y of Health & Human Servs., 477 F.3d 1353,

1360 (Fed. Cir. 2007). The court rejected a subjective

standard that focused on the parent’s view as to when the

first symptom presented and instead adopted “an objec-

tive standard that focuses on the recognized standards of

the medical profession at large . . . .” Id. at 1360. The

court held that “‘the first symptom or manifestation of

onset,’ for the purposes of § 300aa–16(a)(2) is the first

event objectively recognizable as a sign of a vaccine injury

by the medical profession at large.” Id.

Petitioners do not dispute that Kit demonstrated

speech delay more than 36 months before they filed their

petition. Additionally, Petitioners’ expert medical witness

concurred that Kit’s speech delay was the first symptom

of his autism. At trial, Respondent’s counsel questioned

Dr. Mumper on the relationship between Kit’s speech

delay and his ultimate autism diagnosis:

“‘some extraordinary circumstance’” must also be present.

Id. (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418

(2005)). Petitioners have not argued that any such cir-

cumstance exists in this case.

6 STACY CARSON v. HHS

Q: Would you . . . agree with me . . . that prior to

July of 1999, Kit Carson was exhibiting speech de-

lay?

A: He was exhibiting speech delay, that’s correct.

Q: Okay. And I believe I heard you say that you

would agree that the speech delay can be a symp-

tom of autism; is that correct?

A: It can be one symptom of autism, that’s true.

Q: And would you agree that this child, Kit Car-

son, one of the ways his autism manifested itself

is in his difficulties with speech?

A: Correct.

Special Master’s Decision at *15–16. The Chief Special

Master observed that “Dr. Mumper essentially conceded

that Kit’s language delay, which was noted in May of

1999 by his treating pediatrician, was more likely than

not the first symptom or manifestation of his autism

spectrum disorder.” Id. at *15.

On appeal, Petitioners argue the medical community

at large would not recognize Kit Carson’s speech delay as

evidence of a vaccine injury. Pet’s Br. 11. Petitioners

posit that “[s]peech delay is too vague and common of an

occurrence to be considered the first objectively recog-

nizable symptom of the vaccine injury.” Id. at 18. Accord-

ing to Petitioners, “[t]he first objectively recognizable

symptoms of social impairments and lack of interest in

toys were observed during the IEP evaluations in Sep-

tember 1999; the petition was filed in July 2002, well

within the 36 month statute of limitations.” Id. at 19.

However, the Chief Special Master made a factual

finding to the contrary, stating: “[T]he first objectively

recognizable symptom or manifestation of onset of Kit’s

autism was exhibited no later than May 25, 1999 when

Kit was noted by his pediatrician Dr. Page to have ‘severe

STACY CARSON v. HHS 7

language delay’. . . .” 3 Special Master’s Decision at *19–

20. This finding was “based on the medical records and

Dr. Mumper’s testimony,” id. at *19, and was not arbi-

trary and capricious.

Petitioners effectively argue that speech delay cannot

be a “first symptom” because it is an insufficient basis for

a diagnosis of autism. See, e.g. Pet’s Br. 17 (arguing

speech delay “is too broad and common of a complaint for

a physician to know that this particular child had au-

tism”) (emphasis added). However, as explained at length

by this court in the past, it is the first symptom or mani-

festation of an alleged vaccine injury, not first date when

diagnosis would be possible, that triggers the statute of

limitations under § 300aa–16(a)(2). In Markovich, this

court concluded that “[b]ecause Congress is presumed to

have intended disjunctive meaning by using the disjunc-

tive word ‘or,’ we interpret the words ‘first symptom’ and

‘manifestation of onset’ as referring to two different forms

of evidence of injury.” Markovich, 477 F.3d at 1357. This

court explained that “[a] symptom may be indicative of a

variety of conditions or ailments, and it may be difficult

for lay persons to appreciate the medical significance of a

symptom with regard to a particular injury,” whereas “a

3 The dissent appears to disagree with the Chief

Special Master’s finding, stating instead that the medical

community would not recognize language delay alone as

indicative of autism. See Dissenting Op. at 6–7. It relies

on Dr. Mumper’s testimony and the Diagnostic and Sta-

tistical Manual of Mental Disorders, both of which show

that a diagnosis of autism requires more than a speech

delay. The date of possible diagnosis, however, is not the

controlling inquiry. Rather, as stated above, the perti-

nent question is whether the medical community would

recognize speech delay as a symptom of autism. The

Chief Special Master found that it would. See Special

Master’s Decision at *19–20.

8 STACY CARSON v. HHS

manifestation of onset is more self-evident of an injury

and may include significant symptoms that clearly evi-

dence an injury.” Id. We additionally noted that the first

symptom or manifestation of onset might include subtle

symptoms that a petitioner would recognize “only with

the benefit of hindsight, after a doctor makes a definitive

diagnosis of injury.” Id. at 1358 (internal quotation marks

and citation omitted). 4

Petitioners argue that “[t]he issue in the case at bar is

not the Petitioners’ appreciation of the significance but

that multiple medical providers did not appreciate the

significance.” Pet. Br. 17. There is no question that

speech delay can be indicative of several conditions, and

in some circumstances may even be normal. In the in-

stant case, however, it was not arbitrary and capricious

for the Chief Special Master to find that the severe speech

delay observed on May 25, 1999, was the first objectively

recognizable symptom of autism, the alleged vaccine

injury. That Kit’s doctors did not diagnose Kit with

4 To the extent the Court of Federal Claims af-

firmed on the basis that a “first symptom” need only be

recognizable by the medical community “with the benefit

of hindsight,” Carson, 97 Fed. Cl. at 625, this court de-

clines to decide whether hindsight is adequate, or instead

whether the “first symptom” must be recognizable by the

medical community as indicative of the alleged vaccine

injury at the time the symptom occurs. See Markovich,

477 F.3d at 1360 (stating the “first symptom” must be

“recognizable” by the medical profession at large). It is,

however, clear that there is no need for the symptom to be

contemporaneously recognized by the medical community.

See Wilkerson v. Sec’y of Health & Human Servs., 593

F.3d 1343, 1345–46 (Fed. Cir. 2010) (rejecting Petitioner’s

argument that the statute of limitations was not triggered

by a “first symptom” unless the medical community in

fact recognized it as such at the time it occurred).

STACY CARSON v. HHS 9

autism until some time later does not alter the fact that

this symptom was evident by May 1999. 5

CONCLUSION

The Chief Special Master’s dismissal of this claim and

the Court of Federal Claims’s affirmance were in accord

with law, were neither arbitrary nor capricious, nor was

there any abuse of discretion. The Court of Federal

Claims’s decision is therefore

AFFIRMED

5 In Markovich, the first symptom of petitioner’s

seizure disorder was a first episode of repeated eye blink-

ing; this court stated that “the testimony of Dr. Corbier

and others confirms that Ashlyn’s eye blinking episode on

July 10, 2000 was objectively recognizable by the medical

profession at large as constituting the first evidence of

vaccine injury onset.” Markovich, 477 F.3d at 1360. This

court later clarified, “[w]e do not read Markovich as

requiring in each case a showing of the date on which the

medical profession at large had such a recognition [of the

symptom],” explaining that “[t]he fact that such recogni-

tion may have occurred some time after the symptoms

first occurred does not undermine the medical judgment

upon which the decision in this case was based.” Wilker-

son, 593 F.3d at 1345–46.

United States Court of Appeals

for the Federal Circuit

______________________

STACY CARSON AND AMY CARSON,

as legal guardians for KIT CARSON,

Petitioners-Appellants,

v.

SECRETARY OF HEALTH AND HUMAN

SERVICES,

Respondent-Appellee.

______________________

2010-5089

______________________

Appeal from the United States Court of Federal

Claims in No. 02-VV-0873, Judge Mary Ellen Coster

Williams.

______________________

Decided: August 28, 2013

______________________

NEWMAN, Circuit Judge, dissenting.

The court today holds that the statute of limitations

starts to run before the fact or even the likelihood of

vaccine-related injury is recognizable by medical profes-

sionals. Thus the court holds that behavior that the

medical community did not associate with a vaccine-

related injury and “may even be normal” can qualify as a

“first symptom” of vaccine-related injury for purposes of

commencement of the three-year limitations period of the

2 STACY CARSON v. HHS

Vaccine Act. The result is that in the case of Kit Carson

the limitations period ended less than a year after the

evolving combination of symptoms was recognized as a

possible vaccine injury. The ostensibly tardy filing of Kit

Carson’s claim occurred only two months after the end of

the retrospectively-initiated three-year period. At a

minimum, even on the court’s theory that the limitations

period started before any injury was recognized, equitable

tolling should be available in such circumstances. Fair-

ness and common sense demand no less.

It cannot have been the legislative intent that Vaccine

Act compensation is available on the first appearance of a

“symptom” that “may even be normal.” Neither can it

have been the legislative intent that the period of limita-

tions starts to accrue during a period of normal behavior

or unresolved symptoms of unknown significance. Yet my

colleagues so hold, on their retrospective finding that Kit

Carson’s symptom of delay in speech indicated autism,

although that diagnosis was rejected by an impressive

number of professionals.

It cannot reasonably be argued that Kit could have

claimed vaccine injury compensation during that initial

period of delayed speech, which was viewed at the time as

reasonably-normal development. 1 A limitations period

cannot start to run before the existence of the cause of

action that it limits.

1 Fifteen percent of children between the ages of 24-

29 months experience language delay. Buschmann, Jooss,

et al, Children with Developmental Language Delay at 24

Months of Age, 50 Journal of Developmental Medicine &

Child Neurology, 223 (2008).

STACY CARSON v. HHS 3

I

The facts are not in dispute. By the age of twelve

months, Kit had received a schedule of vaccines that

included Hepatitis B, DTP-Hib, OPV, H-Flu B, DTaP,

MMR and Varicella vaccines. Kit’s developmental mile-

stones were within normal parameters for his four, six,

nine and twelve-month pediatric well-child visits. On

December 1, 1997, at the eighteen-month visit, the pedia-

trician recorded that Kit was “[b]ehind in speech.” At the

two-year visit on June 16, 1998 the pediatrician recorded

that Kit was “speech delayed.” At Kit’s three-year visit,

on May 25, 1999, the pediatrician observed Kit to have

“Severe language delay – Expressive.”

In September 1999 Kit was evaluated as part of an

Individualized Education Program, and the psychologist

observed that Kit “interacts with toys and uses imagina-

tive play with rolling toys, but does not attend to me or

interact with me unless it is to get him something he

wants.” The psychologist wrote that Kit “appears to have

well developed fine motor manipulative skills” but that

“language delays are considerable and pervasive.”

On May 3, 2000 Kit was examined again by his pedia-

trician, who concluded: “Expressive language delay, no

other dx appropriate.” On October 30, 2000 Kit under-

went a battery of neurological tests including an EEG,

MRI, and brainstem auditory test. All test results were

within normal parameters. The examining neurologist

wrote: “He is alert, very interactive and generally pleas-

ant, and spent much of the examination playing with

several plastic toys.” The neurologist concluded that Kit

was “best classified at this time as pervasive developmen-

tal delay affecting primarily speech and language. He

does not appear to meet criteria for autism.” The neurol-

ogist also stated that Kit “has had extensive laboratory

evaluation and little more is warranted at this time.” On

December 11, 2000 Kit underwent genetic testing, which

4 STACY CARSON v. HHS

concluded that “chromosome morphology appeared nor-

mal.”

From June 21 to July 21, 2000 Kit underwent a series

of evaluations at the University of North Carolina. The

evaluations included a behavioral rating scale designed to

identify children with autism, the Childhood Autism

Rating Scale, and a developmental test designed specifi-

cally for autistic and communication handicapped chil-

dren, the Psychoeducational Profile Revised. The clinic

determined that the tests were inconclusive, but indicated

a need for further assessment as “Kit demonstrated a

number of behaviors often observed in children with

autism spectrum disorder.” On April 23, 2001, the Clini-

cal Supervisor conducted a follow-up evaluation and

concluded, on April 26, 2001, that Kit “demonstrates a

pattern of behavior consistent with a diagnosis of mild

autism.” This Vaccine Act petition was filed on July 22,

2002.

II

The court rules that the three-year period of limita-

tions started to run by May 25, 1999, before possible

autism was mentioned by any medical professional—and

therefore that the petition became time-barred after May

25, 2002.

The first diagnosis of Kit Carson’s autism was in April

2001. Thus the court interprets the statute that provides

a three year limitation period for filing a claim for vaccine

injury, to include the period during which Kit’s autism

was not recognized or was rejected by a battery of medical

professionals.

My colleagues cite irrelevant precedent that the start

of the limitations period is unaffected by diagnostic delay

by “lay persons” who do not appreciate a symptom’s

medical significance. Here Kit received extensive and

continuing evaluations by specialists, yet the likelihood of

STACY CARSON v. HHS 5

autism was not diagnosed by any medical or pediatric

professional. Kit’s early speech delay was not recognized

as a manifestation of autism until after the occurrence of

additional symptoms.

The court holds that the relation of the date of a first

undiagnosed symptom to the date at which that symptom

could be recognized as a sign of autism is irrelevant to the

commencement of the limitations period, citing Markovich

v. Sec’y of Health & Human Servs., 477 F.3d 1353 (Fed.

Cir. 2007). In Markovich this court stated: “A symptom

may be indicative of a variety of conditions or ailments,

and it may be difficult for lay persons to appreciate the

medical significance of a symptom with regard to a par-

ticular injury.” Id. at 1357. The court stated that “a

petitioner typically will recognize that a particular symp-

tom constitutes the first symptom or manifestation of the

onset of a certain injury only with the benefit of hindsight,

after a doctor makes a definitive diagnosis of the injury.”

Id. at 1358.

The court held in Markovich that the failure of lay

persons (such as parents) to recognize a symptom of

vaccine injury does not avoid commencement of the limi-

tations period when the symptom is recognizable by

professionals as vaccine injury. The court held that “‘the

first symptom or manifestation of onset,’ for the purposes

of § 300aa–16(a)(2), is the first event objectively recog-

nizable as a sign of a vaccine injury by the medical profes-

sion at large.” Id. at 1360.

In Markovich the infant’s eye-blinking seizures that

occurred on the day the vaccines were administered were

“objectively recognizable by the medical profession at

large” as constituting evidence of vaccine injury. Marko-

vich did not hold, as does the panel majority herein, that

when medical professionals did not recognize vaccine-

related symptoms and rejected the diagnosis of the afflic-

tion, the parents are nonetheless charged with knowledge

6 STACY CARSON v. HHS

of existence of the affliction for statute of limitations

purposes.

In Cloer v. Sec’y of Health and Human Services, 654

F.3d 1322 (Fed. Cir. 2011) (en banc) this court held that

“the statute’s limitations period begins to run on the

calendar date of the occurrence of the first medically

recognized symptom or manifestation of onset of the

injury claimed by the petitioner.” Id. at 1324-25. The

court stated that the first symptom or manifestation for

limitations purposes must be of a “vaccine-related injury

recognized as such by the medical profession at large.” Id.

Such medical recognition did not exist with Kit Carson’s

early manifestation of speech delay.

The difficulty in recognizing autism’s “first symptom”

was acknowledged by the Court of Federal Claims in

Setnes v. United States, 57 Fed. Cl. 175 (Fed. Cl. 2003):

“As distinguished from other medical conditions . . . the

beginning stage of autism cannot be reduced to a single,

identifiable symptom. Many of the initial ‘symptoms’ are

subtle and can easily be confused with typical child be-

havior.” Id. at 179. All of the medical witnesses agreed

that delayed speech alone is not generally viewed or

recognized by the medical profession as indicative of

autism. Expert witness Dr. Mumper testified that autism

diagnosis requires more than speech delay:

Q. Okay. Does [expressive speech delay] match

the particular diagnosis for autism?

A. Well, that one criteria’s consistent with the

diagnosis of autism. But in order to have autism,

you can’t just have that one symptom. You have

to have impairment in social reciprocity as well as

repetitive and stereotype behaviors . . . .

Q. Would a particular physician or psychiatrist

or pediatrician know from an expressive speech

STACY CARSON v. HHS 7

delay symptom that this particular child had au-

tism?

A. No, I don’t think so. And I think this is a cru-

cial issue because speech delay has about a dozen

things that can be caused. And I mentioned that

it’s a very common complaint that we deal with.

Dr. Mumper Test. at 16-17 (June 2, 2009).

It is undisputed that speech delay alone is not objec-

tively recognizable by the medical community as a first

symptom of autism. The Diagnostic and Statistical Man-

ual of Mental Disorders, 4th Edition (2000) requires,

before a diagnosis of autism can be made, clinical criteria

across three domains of social development, i.e. (1) quali-

tative impairment in social interaction, (2) qualitative

impairment in communication, and (3) restricted repeti-

tive and stereotyped patterns of behavior, interests, and

activities.

Petitioners argue that since delayed speech is com-

mon, it can only be a “first symptom” of autism when

accompanied by some other behavior that would lead

medical professionals to consider autism as a possible

diagnosis. Petitioners argue that this accompanying

abnormal behavior occurred in September 1999 when

Kit’s Individualized Education Program evaluation

showed signs of social impairment, including a lack of

interest in toys.

Hindsight is not properly invoked to retrospectively

make “objectively recognizable” what the medical com-

munity did not recognize and could not recognize, other

than retrospectively. Such hindsight analysis does not

retrospectively start the period of limitations. Only after

Kit’s autism was diagnosed–after several years of pro-

gression–could the medical profession retrospectively

classify his early speech delay as a symptom of autism.

However, at the time that the court starts the limitations

8 STACY CARSON v. HHS

period for Kit Carson, the medical evidence was undisput-

ed that Kit’s autism was not objectively recognizable by

medical professionals.

The panel majority relies on Wilkerson v. Sec’y of

Health & Human Servs., 593 F.3d 1343 (Fed. Cir. 2010)

for the proposition that retrospective diagnosis can retro-

spectively start the limitations period. However, in that

case the medical experts agreed that the Attention Deficit

Hyperactivity Disorder symptoms were objectively recog-

nizable. In contrast, here the medical experts agreed that

delayed speech is often normal and is not objectively

recognizable as a sign of possible vaccine injury unless

accompanied by other abnormal behavior. There was no

testimony, by any of the medical experts, that Kit’s speech

delay alone was objectively recognizable as indicative of

autism.

The question is whether medical specialists could

have recognized that Kit was manifesting autism at the

time when the panel majority starts the period of limita-

tions. Dr. Mumper agreed that speech delay “can be a

symptom of autism” but she did not “concede,” as the

panel majority states, that Kit’s autism could have been

objectively recognized upon his manifestation of speech

delay. As discussed ante, Dr. Mumper, like all the expert

witnesses, testified that speech delay can be normal

development, and that autism requires additional im-

pairment.

The panel majority bases its determination of autism

on the “first symptom” that the medical community

rejected, and, having made this retrospective judicial

diagnosis, concludes that it was known from the start that

Kit was afflicted with autism. The Special Master did not

so hold. Rather, with hindsight knowledge that Kit was

eventually found to be afflicted with autism, the Special

Master recognized that Kit’s speech delay could have been

a symptom of this autism. However, but for the eventual

STACY CARSON v. HHS 9

diagnosis based on additional manifestations, neither the

medical experts nor this court could determine a “first

symptom” of autism for purposes of the Vaccine Act’s

statute of limitations. Unless accompanied by other

behaviors, speech delay is not objectively recognizable as

a vaccine injury. 2

The panel majority incorrectly states that “the medi-

cal community would recognize speech delay as a symp-

tom of autism.” Maj. Op. at 7 n.3. However, Kit was

studied by a barrage of medical specialists, none of whom

found that Kit’s delayed speech was indicative of autism,

and who did not modify that diagnosis until other mani-

festations of autism appeared. 3 The court’s holding that

delayed speech, without more, starts the statute of limita-

tions, would be tenable only if delayed speech, without

more, were a compensable vaccine injury. This is not the

government’s position.

2 For instance the “Einstein Syndrome” refers to

speech delay in children having high intelligence and

precocious analytical skills. See Thomas Sowell, The

Einstein Syndrome: Bright Children Who Talk Late (Basic

Books, 2001).

3 In an addendum to her Medical Expert Opinion,

filed February 17, 2009, Dr. Mumper responded to the

question “What is the first symptom, in retrospect, that

would have suggested the diagnosis of autism?” and

answered, “With the advantage of retrospective analysis

of the records, some observations from IEP assessments

conducted by Buncombe County School district in Sep-

tember and October 1999 may have indicated the first

symptoms of autism.” Dr. Mumper also stated that “Even

with a retrospective review of the medical records, it is

documented that the doctor suspected nothing but speech

delay as of May 2000.”

10 STACY CARSON v. HHS

At a minimum, equitable tolling should be applied to

this petition. Equitable tolling permits the petitioner to

present the claim; it does not decide the merits of the

claim. 4 The Court in Sebelius v. Cloer, 133 S. Ct. 1886,

1892 (2013) recognized that the limitations period of the

Vaccine Act is subject to equitable tolling. From the

ruling that Kit Carson’s claim started to accrue from a

date at which no vaccine-based injury was objectively

recognizable and no Vaccine Act claim could have been

filed, and the court’s refusal to toll the limitations period

on its view of that period, I respectfully dissent.

4 We recognize that controversy exists as to the re-

lation between vaccines and autism. See Cedillo v. Sec’y

of Health & Human Servs., 617 F.3d 1328 (Fed. Cir.

2010).