G.L.G., a Minor, by His Parents and Natural Guardians, Ernest Graves and Cheryl W. Graves v. Secretary of Health and Human Services 0

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 09-0080V

Filed: October 28, 2013

Reissued for Redaction: November 19, 2013

****************************

G.L.G., a minor, *

by his parents and natural guardians, *

ERNEST GRAVES and *

CHERYL W. GRAVES, *

* Autism; Statute of Limitations;

Petitioners, * Untimely Filing

v. *

*

SECRETARY OF HEALTH *

AND HUMAN SERVICES, *

*

Respondent. *

*

****************************

Ernest Graves and Cheryl W. Graves, Yulee, FL, pro se petitioners.

Ryan Pyles, Esq., U.S. Dept. of Justice, Washington, DC, for respondent.

DECISION1

Vowell, Chief Special Master:

On February 11, 2009, petitioners filed a claim for compensation pursuant to the

National Vaccine Injury Compensation Program [“Vaccine Program” or “the Program”]2

on behalf of their son, G.L.G. Petitioners filed the short-form petition authorized by

Autism General Order #1,3 thereby joining the Omnibus Autism Proceeding [“OAP”].4

1

When this decision was originally issued, the parties were notified that the decision would be posted in

accordance with the E–Government Act of 2002, Pub. L. No. 107–347, 116 Stat. 2899, 2913 (Dec. 17,

2002). The parties were also notified that they may seek redaction pursuant to 42 U.S.C. § 300aa–

12(d)(4)(B); Vaccine Rule 18(b). Petitioners made a timely request for redaction and this decision is being

reissued with the name of the minor child redacted to initials and the child’s birthdate redacted to the year

only. Except for those changes and this footnote, no other substantive changes have been made.

2

The National Vaccine Injury Compensation Program [“Vaccine Program” or “the Program”] is set forth in

Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified

as amended, 42 U.S.C. § 300aa-10 et seq. (2006) [“Vaccine Act” or “the Act”]. All citations in this

Decision to individual sections of the Vaccine Act are to 42 U.S.C. § 300aa.

3

Autism General Order #1 adopted the Master Autism Petition for Vaccine Compensation for use by

petitioners filing claims intended to be part of the OAP. By electing to file a Short-Form Autism Petition for

I. Procedural History.

While causation hearings in the OAP test cases were held and entitlement

decisions were issued,5 petitioners were ordered to file all medical records and a

“Statement Regarding Onset.” See Order, issued Mar. 4, 2009, at 7-8. Respondent was

ordered to file a statement, indicating whether the claim should continue in the OAP. Id.

at 8.

On April 21, 2009, petitioners filed some medical records and a second petition

signed by pro se petitioner, Cheryl Graves. See Petitioners’ Exhibits [“Pet. Exs.”] 1-10;

Petitioners’ Second Petition [“Pet. Second Petition”]. In response to petitioners’ filings,

respondent filed a statement indicating that, based on the record to date, she “cannot

determine whether petitioners have established . . . that [their] claim was filed within the

statutorily prescribed limitations period set forth in Section 16(a) of the [Vaccine Act].”

Respondent’s Statement, filed Jun. 29, 2009, at 1.

Following resolution of the OAP test cases,6 petitioners were ordered to inform

the court whether they wished to proceed with this claim or exit the Vaccine Program.

Vaccine Compensation petitioners alleged that:

[a]s a direct result of one or more vaccinations covered under the National Vaccine Injury

Compensation Program, the vaccinee in question has developed a neurodevelopmental

disorder, consisting of an Autism Spectrum Disorder or a similar disorder. This disorder

was caused by a measles-mumps-rubella (MMR) vaccination; by the Athimerosal@

ingredient in certain Diphtheria-Tetanus-Pertussis (DTP), Diphtheria-Tetanus-acellular

Pertussis (DTaP), Hepatitis B, and Hemophilus Influenza Type B (HIB) vaccinations; or

by some combination of the two.

Autism General Order # 1. The text of Autism General Order #1 can be found at

http://www.uscfc.gov/sites/default/files/autism/Autism. [“Autism Gen. Order # 1”], 2002 WL 31696785

(Fed.Cl.Spec.Mstr. July 3, 2002).

4

A detailed discussion of the OAP can be found at Dwyer v. Sec’y, HHS., No. 03-1202V, 2010 WL

892250, at *3 (Fed. Cl. Spec. Mstr. Mar. 12, 2010). By design, the evidence produced by the parties in

the OAP is available for use by either party in any other OAP case. Dwyer, 2010 WL 892250, at *2.

5

The Petitioners’ Steering Committee [“PSC”], an organization formed by attorneys representing

petitioners in the OAP, litigated six test cases presenting two different theories on the causation of Autism

Spectrum Disorders [“ASDs”].

6

The Theory 1 cases are Cedillo v. Sec’y, HHS., No. 98-916V, 2009 WL 331968 (Fed. Cl. Spec. Mstr.

Feb. 12, 2009), aff’d, 89 Fed. Cl. 158 (2009), aff’d, 617 F.3d 1328 (Fed. Cir. 2010); Hazlehurst v. Sec’y,

HHS., No. 03-654V, 2009 WL 332306 (Fed. Cl. Spec. Mstr. Feb. 12, 2009), aff’d, 88 Fed. Cl. 473 (2009),

aff’d, 604 F.3d 1343 (Fed. Cir. 2010); Snyder v. Sec’y, HHS., No. 01-162V, 2009 WL 332044 (Fed. Cl.

Spec. Mstr. Feb. 12, 2009), aff’d, 88 Fed. Cl. 706 (2009). Petitioners in Snyder did not appeal the

decision of the U.S. Court of Federal Claims. The Theory 2 cases are Dwyer, 2010 WL 892250; King v.

Sec’y, HHS., No. 03-584V, 2010 WL 892296 (Fed. Cl. Spec. Mstr. Mar. 12, 2010); Mead v. Sec’y, HHS.,

No. 03-215V, 2010 WL 892248 (Fed. Cl. Spec. Mstr. Mar. 12, 2010). The petitioners in each of the three

Theory 2 cases chose not to appeal.

2

See Order, issued Sept. 14, 2010, at 2-3. Petitioners indicated they wished to continue

with their claim.7 See Petitioners’ Response, filed Oct. 14, 2010.

On February 24, 2011, petitioners were ordered to provide a statement

explaining how the vaccines G.L.G. received caused his injuries and were warned that

their claim may not have been timely filed. See Order at 1-2. In response, Cheryl

Graves filed a statement, alleging that the combination of vaccines G.L.G. received on

October 14, 2004, when he was sick with cold symptoms caused his autism and

epilepsy. Petitioners’ Theory of Causation [“Pet. Theory”], filed Mar. 24, 2011, at 1.

The case was reassigned to me on August 15, 2012. On September 26, 2012, I

held a digitally-recorded telephonic status conference to discuss the next steps in this

case. Ryan Pyles appeared on behalf of the respondent, and pro se petitioner, Cheryl

Graves, was present on the call. During the call, Ms. Graves informed me she had

encountered difficulty obtaining G.L.G.’s medical records. I ordered petitioners to file a

list of all medical facilities visited so that subpoenas might be prepared to obtain any

missing medical records. Order, filed Sept. 27, 2012, at 2. I ordered respondent to

issue subpoenas and to collect and file all medical records within 60 days of the filing of

petitioners’ list. Id.

On October 31, 2012 petitioners filed a list of all medical facilities, and I thereafter

ordered respondent to issue subpoenas for each medical facility on petitioners’ list. See

Orders filed Nov. 7, 2012. Respondent filed all medical records by February 7, 2013.

See Respondent’s Exhibits [“Res. Exs.”] A-G.

After examining the medical records filed, I determined that petitioners had not

demonstrated by preponderant evidence that the case was timely filed or that

circumstances warranting equitable tolling existed. I ordered petitioners to show cause

why I should not dismiss their petition as untimely filed. See Show Cause Order, issued

June 20, 2013, at 6; § 16(a)(2) (the Vaccine Act’s statute of limitations).

On July 16, 2013, Ms. Graves filed petitioners’ response, arguing that her earlier

statements regarding the timing of G.L.G.’s speech delay were wrong and G.L.G.’s

speech delay did not occur until later than she originally indicated. Petitioners’

Response to Show Cause Order [“Pet. Response to SC Order”] at 1-2. Ms. Graves

further asserted that the requirement of G.L.G.’s pediatrician, Dr. Marrero, that she get

Medicaid “could be considered a form of ‘duress.’” Id. at 1.

I ordered respondent to file a reply. On August 20, 2013, respondent filed a

motion to dismiss and evidence from the OAP regarding the occurrence of the first

symptom of autism. See Res. Exs. H-L.8 Respondent argued that the medical records

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Like the statement filed on April 21, 2009, this statement was not signed by both petitioners but only by

G.L.G.’s mother, Cheryl Graves. In her response to my June 20, 2013 Show Cause Order, Ms. Graves

explained that G.L.G.’s father, Ernest Graves often did not sign the documents she filed because he was

traveling and that she and he divorced on May 17, 2011. Response, filed July 16, 2013, at 2.

8

At one point in her motion to dismiss, respondent erroneously referred to these exhibits as Res. Exs. A-

3

established that G.L.G.’s symptoms occurred prior to February 11, 2006, that the

Federal Circuit’s decision in Cloer9 rejected a discovery rule approach to the statute of

limitations, that doctrine of equitable tolling should not be applied to this case based on

the duress referred to by Ms. Graves. Respondent’s Motion to Dismiss [“Res. Motion to

Dismiss”] at 2-3. Respondent noted that the OAP evidence (Res. Exs. H-L) indicated

that in most children, the first symptoms of autism occur by 24 months of age,

supporting the histories Ms. Graves provided in G.L.G.’s medical records. Id. at 4.

I grant respondent’s motion to dismiss as I find the petition was not filed prior to

the expiration of the Vaccine Act’s statute of limitations, and petitioners have not

established an adequate basis for applying the doctrine of equitable tolling to G.L.G.’s

case.

II. Statute of Limitations.

The Vaccine Act provides that in the case of:

a vaccine set forth in the Vaccine Injury Table 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 injury . . . .

§ 16(a)(2) (emphasis added). In Cloer, the Court of Appeals for the Federal Circuit

affirmed that the statute of limitations begins to run on “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.” Cloer, 654 F.3d at 1325. The Federal Circuit

explained that this date is “a statutory date that does not depend on when a petitioner

knew or reasonably should have known anything adverse about her condition.” Id. at

1339. The 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.

Although the Federal Circuit held that doctrine of equitable tolling applies to

Vaccine Act claims, the Federal Circuit explained that it is only available in

“extraordinary circumstances,” such as when a petitioner is the victim of fraud or duress.

Cloer, 654 F.3d at 1344-45 (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). In

the Cloer case the petitioner did not know of a causal link between her injury and

vaccination until 2004, but the Federal Circuit declined to apply equitable tolling. 654

F.3d at 1344-45. The Federal Circuit specifically held “that equitable tolling under the

E but clearly labeled and filed them as Res. Exs. H-L.

9

Cloer v. Sec’y, HHS, 654 F.3d 1322 (Fed. Cir. 2011).

4

Vaccine Act due to unawareness of a causal link between an injury and administration

of a vaccine is unavailable.” Id. at 1345.

III. First Symptom or Manifestation of Onset of G.L.G.’s Autism.

To be timely filed under the Vaccine Act’s statute of limitations, this claim must

have been filed within 36 months from the date of the occurrence of “the first symptom

or manifestation of onset or of the significant aggravation” of G.L.G.’s autism.

§ 16(a)(2). Since the petition was filed on February 11, 2009, the claim is untimely filed

if G.L.G.’s first symptom of autism occurred prior to February 11, 2006.

A. G.L.G.’s Medical Records.

G.L.G. was born in 2003. Pet. Ex. 1, p. 1 The medical records reflect both well

and sick child visits in his first two years of life. Pet. Ex. 2, p. 6. He received routine

childhood vaccinations at his well child check-ups from two months to 18 months. Pet.

Exs. 4, pp. 4-5, 14, 15, 17; 8, p. 2. His last recorded vaccinations were received on

October 14, 2004. Pet. Exs. 4, p. 17; 8, p. 2.

Other than poor weight gain, the medical records from G.L.G.’s eighteen month

well child check-up on October 14, 2004, and his two year well child check-up on July

16, 2005, indicate only mild problems with G.L.G.’s development. At his eighteen

month well child check-up, G.L.G. had a cold, was teething, was “not eating the past

few weeks,” and had a history of bronchiolitis with sleep apnea in the past month. Pet.

Ex. 4, p. 17. Under growth and development, G.L.G. was noted to use “mature

jargoning,” to have a vocabulary of six words, to run, and to follow direction. Id. Only

“[p]oints to five body parts” and “kicks [a] ball” were not circled, indicating that these

skills had not been acquired. Id. On the record from his two year well child check-up in

July, 2005, when he was 28 months old. G.L.G. was noted to use two word phrases,

have a vocabulary of 50 words, kick a ball, put on clothes, name pictures, and jump.

Pet. Ex. 4, p. 22. The only skill not circled was use of “indiscriminate pronouns.” Id.

Apparently, after his two year well child check-up, G.L.G. was not seen by a

medical professional until more than a year later for a well child check-up on October

26, 2006.10 Pet. Ex. 4, p. 25. G.L.G. was 44 months of age at this visit. The record of

this visit reflects that G.L.G. was developmentally delayed, especially in speech.

The filed medical records do not contain concurrently recorded information

regarding his development from 28 to 44 months of age. However, a number of later

entries involving G.L.G.’s medical history as provided by Ms. Graves indicate that she

observed symptoms of autism between two and three years of age.

10

During the September 26, 2012 telephonic status conference, Ms. Graves informed me that G.L.G.’s

gap in medical care was due to a period of time during which she was attempting to qualify for Medicaid

but was denied coverage.

5

The first of these entries was made on May 9, 2007. During a psychological

evaluation, Ms. Graves “reported that G.L.G. was developing language and spoke in

sentences up until he was around two or three years old and then begin to regress.”

Pet. Ex. 8, p. 11. In the history portion of a July 3, 2008 initial evaluation at Heartland

Rehabilitation Services, Ms. Graves reported that she noticed symptoms of autism

when G.L.G. was 24 to 30 months old. Pet. Ex. 10, p. 7. In particular, she conveyed

that she had noticed G.L.G.’s “speech was declining and his fine and gross motor skills

were lacking.” Id. A notation contained in the history of present illness [“HPI”] section of

the record from a January 28, 2009 visit to G.L.G.’s pediatrician indicates “[p]atient is

autistic and mom wants him checked for lead. Duration: symptoms for autism started at

2 y.o.” Res. Ex. F, p. 57. An occupational therapy note dated September 16, 2009,

indicates that “[m]other reports she began to notice a decline in speech and fine motor

skills at age 2.5 [years], and after a long process he was diagnosed with autism.” Pet.

Ex. 10, p. 28.

In summary, subtle symptoms of autism are reflected in G.L.G.’s medical visit

records when he was 19 and 28 months old. G.L.G. was unable to point to five body

parts at 19 months of age, and he was not using pronouns properly at 28 months of

age. According to Ms. Graves’s own accounts as documented in G.L.G.’s medical

records, she noted sufficient symptoms of autism to cause her concern when G.L.G.

was between two and three years of age.

B. Petitioners’ Submissions Regarding G.L.G.’s First Symptom of Autism.

Petitioners assert that the vaccines G.L.G. received on October 14, 2004 caused

his autism but that he did not exhibit any symptom of autism until April 4, 2006.11 Pet.

Second Petition, filed Apr. 21, 2009, at 1. On that date, Ms. Graves maintains that

G.L.G. started to spin and experienced a decrease in his vocabulary. Id. at 2. In her

March 24, 2011 statement, Ms. Graves expanded on her assertion, indicating that “[i]t

wasn’t until G.L.G. started ‘spinning’ @ the age of 3 when I actually realized the onset of

[his] inury.” Pet. Theory at 1.

However, the Federal Circuit in Cloer ruled that the date of first symptom or onset

of injury does not on depend on whether a petitioner knew “anything adverse about her

condition” or that the condition was caused by a vaccine. 654 F.3d at 1339. Rather, the

test is when the first symptom or manifestation of onset would be “recognized as such

by the medical profession at large.” Cloer, 654 F.3d at 1325.

In her response to my show cause order, Ms. Graves claimed she was “off” when

she stated earlier that G.L.G.’s speech delay began when he was two years old. Pet.

Response to SC Order, filed Aug. 20, 2013, at 1; see, e.g., Pet. Ex. 10, p. 7. She now

11

As I explained to Ms. Graves during the September 26, 2012 telephonic status conference, she is in a

“Catch 22” situation with regard to the facts in this case. If, as Ms. Graves remembers, G.L.G. did not

exhibit his first symptom of autism until April 4, 2006, almost a year and a half after his October 14, 2004

vaccinations, it will be difficult for petitioners to prove that G.L.G.’s vaccinations caused his injuries.

6

asserts G.L.G.’s speech delay did not begin until shortly before their move to Yulee, FL

in March 2006, when G.L.G. was almost three years old. Pet. Response to SC Order at

2.

C. Respondent’s Evidence and Arguments.

During the OAP test cases, three pediatric neurologists with considerable

experience in diagnosing ASDs provided testimony regarding the commonly recognized

symptoms of autism. Respondent filed excerpts of that evidence in this case.12 See

Res. Exs. H-L (excerpts from the OAP testimony of three neurologists and two articles

regarding the development of language in children with ASD filed by respondent).

White v. Sec’y, HHS, 04-337V, 2011 WL 6176064 (Fed. Cl. Spec. Mstr. Nov. 22, 2011)

contains a detailed discussion of the same OAP testimony and the medical journal

articles filed by respondent in this case. As I noted in White, “[s]peech and language

delays are the symptoms most commonly reported by parents as a concern leading to a

diagnosis of ASD.” White, 2011 WL 6176064, at *11 (citing R. Luyster, et al., Language

Assessment and Development in Toddlers with Autism Spectrum Disorders, J. AUTISM

DEV. DISORD. 38: 1426-38, 1426 (2008), filed in this case as Res. Ex. H).

In the OAP test cases, Dr. Eric Fombonne testified that one of first concerns

noted by parents is a lack of language development, usually noticed when the child is

15 to 18 months old. Res. Ex. J at 50 (page 1284 in the original transcript). Doctor

Michael Rutter testified that problems in social and communication domains tend to be

observed much earlier than stereotyped behaviors such as the “spinning” noticed by

Ms. Graves on April 4, 2006. Res. Ex. L at 21 (page 3253 in the original transcript); see

Pet. Statement, filed Apr. 21, 2009, at 1. As noted by respondent, the authors in the

Landa article indicated most parents of children diagnosed with ASD had become

concerned about ASD symptoms by 18 months of age and 80% of parents have noticed

abnormalities by 24 months. Respondent’s Motion to Dismiss at 4 (citing R. Landa,

Diagnosis of autism spectrum disorders in the first 3 years of life, NATURE CLINICAL

PRACTICe Neurology, 4(3): 138-47 (2008), filed in this case as Res. Ex. I).

Respondent noted Ms. Graves own statements about onset recorded in G.L.G.’s

medical records “place the onset of G.L.G.’s symptoms between two and two and a half

years of age.” Res. Motion to Dismiss at 2. Respondent noted “these records are not

contemporaneous with the onset of symptoms (due to a gap in medical care)” but

argued “they are the best indicia of reliability available, because they were created in

the context of seeking medical care for G.L.G. and were created much closer in time

(2008 and 2009) to the onset of G.L.G.’s symptoms than petitioners’ 2013 Response.”

Id.

12

Although the testimony excerpts from the OAP cases were from witnesses called by respondent, it did

not appear that what constituted symptoms of autism was a matter in controversy in the OAP. Petitioners

in this (or any other OAP case) remain free to counter such evidence with contrary testimony, journal

articles, or other filings.

7

D. Analysis.

Special masters frequently accord more weight to contemporaneously recorded

medical symptoms than those recounted in later medical histories, affidavits, or trial

testimony. “It has generally been held that oral testimony which is in conflict with

contemporaneous documents is entitled to little evidentiary weight.” Murphy v. Sec’y,

HHS, 23 Cl. Ct. 726, 733 (1991) (citation omitted); see also Cucuras v. Sec’y, HHS, 993

F.2d 1525, 1528 (Fed. Cir. 1993) (medical records are generally trustworthy evidence).

Memories are generally better the closer in time to the occurrence reported and when

the motivation for accurate explication of symptoms is more immediate. Reusser v.

Sec’y, HHS, 28 Fed. Cl. 516, 523 (1993).

Ms. Graves’ more recent assertions in response to the motion to dismiss and the

show cause order are much like the oral testimony referred to in Murphy, 23 Cl.Ct. at

733. Although Ms. Graves’s earlier statements were made several years after the

events in question (between May 9, 2007 and September 16, 2009), they still were

made closer in time than her August 20, 2013 statement. Additionally, Ms. Graves was

providing the earlier information to G.L.G.’s treating physicians and thus, motivated only

by her desire to obtain care for G.L.G. I do not mean to imply that petitioner was not

honest when making her later assertions, simply that memories are less reliable as

more time passes and Ms. Graves may be influenced by her desire to show her claim

was timely filed when making her August 20, 2013 statement. Furthermore, Ms.

Graves’s earlier statements agree with the timeframe normally seen for the first

symptom of autism, and are consistent with progression of the subtle delays recorded in

G.L.G.’s records of his 18 and 24 month well child visits.

The Federal Circuit held recently in Carson that speech delay can be the first

objectively recognizable symptom of autism. Carson ex rel. Carson v. Sec’y, HHS, 727

F.3d 1365, 1370 (Fed. Cir. 2013). It does not matter that speech delay alone is not

sufficient for a diagnosis of autism, “may be indicative of a variety of conditions or

ailments,” or that a lay person may not “appreciate the medical significance” of the

speech delay. Carson, 727 F.3d at 1369 (quoting Markovich v. Sec’y, HHS, 477 F.3d

1353, 1357 (Fed. Cir. 2007)).

In the medical records, Ms. Graves consistently reported that G.L.G. began

displaying speech delay between 24 to 36 months of age. That time period is

somewhat later than that reported by most parents of children with autism. When Ms.

Graves’ reports are considered along with the specific delays noted in G.L.G.’s medical

records, they provide preponderant evidence that G.L.G. displayed symptoms of autism

more than 36 months before this claim was filed. Thus, the petition was filed after the

expiration of the Vaccine Act’s statute of limitations.

IV. Equitable Tolling.

There is no basis for applying the doctrine of equitable tolling in this case.

Although Ms. Graves claimed the continued statements of G.L.G.’s pediatrician, Dr.

8

Marrero, that she get Medicaid “could be considered a form of ‘duress’” (Response to

Show Cause Order, July 16, 2013, at 1), these statements do not constitute the duress

referenced to in Cloer, 654 F.3d at 1344-45.

To justify the application of equitable tolling, Ms. Graves must show she

experienced some type of fraud or duress which prevented her from filing her petition

before the expiration of the statute of limitations. The “duress” alleged by Ms. Graves

only prevented her from obtaining medical care for G.L.G. Since the Federal Circuit

specifically held that the Vaccine Act does not contain a discovery rule, G.L.G.’s level of

medical care is not relevant to the issue of timeliness. Petitioners were required to file

their petition within 36 months of G.L.G.’ first symptom or manifestation of onset, an

objective event which was not affected by the medical care G.L.G. was or was not

receiving.

V. Conclusion.

Petitioners have the burden to show timely filing. Petitioners have failed to do so.

There is preponderant evidence that this case was not filed within “36 months after the

date of the occurrence of the first symptom or manifestation of onset or of the significant

aggravation of such injury” as required by the Vaccine Act. § 16(a)(2). Furthermore,

petitioners have not demonstrated any extraordinary circumstances warranting

equitable tolling. Thus, this claim is dismissed as untimely filed under the Vaccine

Act’s statute of limitations. The clerk is directed to enter judgment accordingly.

IT IS SO ORDERED.

_____________________

Denise K. Vowell

Chief Special Master

9