J. v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: March 30, 2022

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

W.J., by his parents and legal guardians,

*

R.J. and A.J., * UNPUBLISHED

*

Petitioners, * No. 21-1342V

*

v. * Special Master Nora Beth Dorsey

*

SECRETARY OF HEALTH * Dismissal Decision; Measles, Mumps,

AND HUMAN SERVICES, * and Rubella (“MMR”) Vaccine;

* Encephalopathy; Statute of Limitations;

Respondent. * Equitable Tolling.

*

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

R.J. and A.J., pro se, Staten Island, NY, for petitioners.

Sarah B. Rifkin, U.S. Department of Justice, Washington, DC, for respondent.

DECISION1

I. INTRODUCTION

On May 7, 2021, R.J. and A.J. (“petitioners”) filed a petition, on behalf of their minor

child, W.J., pursuant to the National Vaccine Injury Compensation Program (“Vaccine Act” or

“the Program”), 42 U.S.C. § 300aa-10 et seq. (2012).2 Petitioners generally allege that their

minor child, W.J., suffered from a chronic encephalopathy Table claim and/or a cause-in-fact or

significant aggravation of pre-existing cerebral and immunological damage, including immune-

1

Because this Decision contains a reasoned explanation for the action in this case, the

undersigned is required to post it on the United States Court of Federal Claims’ website in

accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal

Management and Promotion of Electronic Government Services). This means the Decision will

be available to anyone with access to the Internet. In accordance with Vaccine Rule 18(b),

petitioners have 14 days to identify and move to redact medical or other information, the

disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, the

undersigned agrees that the identified material fits within this definition, the undersigned will

redact such material from public access.

2

The National Vaccine Injury Compensation 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 to -34 (2012). All citations in this Decision to individual sections of the

Vaccine Act are to 42 U.S.C. § 300aa.

1

related blood disorders, severe eczema, and many other allergies as a result of a measles, mumps,

and rubella (“MMR”) vaccination administered on February 24, 2005. Petition at 1 (ECF No. 1).

Respondent filed a Motion to Dismiss in conjunction with his Rule 4(c) Report on August

2, 2021, stating, “[t]he petition in this case was [] filed beyond the relevant statutory limitations

period, and petitioners have not provided a basis for the extraordinary remedy of equitable

tolling,” and therefore the petition should be dismissed. Respondent’s Rule 4(c) Report (“Resp.

Rept.”), filed Aug. 2, 2021, at 12 (ECF No. 15); Resp. Motion to Dismiss (“Resp. Mot.”), filed

Aug. 2, 2021 (ECF No. 16). The undersigned agrees. Petitioners have failed to provide

evidence to show why their case should not be dismissed.

Based on the reasons set forth below, the undersigned GRANTS respondent’s motion to

dismiss and DISMISSES petitioners’ case for failure to file a timely action pursuant to Section

16(a)(2) of the Vaccine Act.

II. PROCEDURAL HISTORY

Petitioners filed their claim on May 7, 2021, on behalf of their minor child, W.J. Petition

at 1. Petitioners alleged W.J. suffered from chronic encephalopathy and immunological issues as

a result of an MMR vaccination administered on February 24, 2005. Id. Petitioners filed a

compact disc of medical records along with the petition. Petitioners’ Exhibits (“Pet. Exs.”) 1-29.

On May 13, 2021, the case was assigned to the undersigned. Notice of Reassignment

dated May 13, 2021 (ECF No. 9). An initial status conference was held on June 3, 2021, and the

undersigned raised the threshold question of the statute of limitations. Order dated June 3, 2021,

at 1 (ECF No. 14). The undersigned ordered respondent to file a Rule 4(c) Report and Motion to

Dismiss, and to set a briefing schedule for petitioners to file a response. Id.

Respondent filed a Motion to Dismiss and Rule 4(c) Report on August 2, 2021. Resp.

Rept.; Resp. Mot. In September and October 2021, petitioners filed medical records, medical

literature, and a response to respondent’s motion to dismiss. Pet. Exs. 30-72; Pet. Response to

Resp. Mot. (“Pet. Response”), filed Sept. 30, 2021 (ECF No. 22). Respondent filed a reply to

petitioners’ response on October 28, 2021. Resp. Reply, filed Oct. 28, 2021 (ECF No. 27).

This matter is now ripe for adjudication.

III. PARTIES’ CONTENTIONS

A. Petitioners’ Contentions

Petitioners first allege that the MMR vaccine was inappropriately administered to W.J. in

contravention of the vaccine’s warnings due to W.J.’s Xq28 chromosomal duplication. Petition

at 3. Petitioners contend “[m]any chromosomal aberrations cause immunodeficiencies” and the

MMR vaccine was contraindicated for individuals with “[p]rimary and acquired

immunodeficiency states.” Id. The MMR vaccine insert also cautions against vaccination “to

persons with a history of cerebral injury.” Id. Petitioners state the MMR vaccine “significantly

2

aggravated [W.J.’s] pre-existing immunodeficiency, stemming from his Xq28 duplication.” Id.

Additionally, petitioners allege that W.J.’s “chronic encephalopathy and immunodeficiency

issues were either directly caused by the administration of the MMR vaccine, or that the MMR

vaccine significantly aggravated pre-existing cerebral and immunological damage caused by

[W.J.’s] chromosomal aberration.” Id. at 3-4, 11.

Second, petitioners allege W.J. suffered from thrombocytosis,3 lymphocytopenia,4

lymphocytosis,5 monocytosis,6 granulocytopenia,7 severe eczema, and “many other allergies”

that his “physicians offered no cause or diagnosis for.” Petition at 4-8. They state “[o]ver the

course of some seven years that followed the administration of [W.J.’s] MMR vaccine, [W.J.’s]

immune system struggled with no less than four immuno-related blood disorders . . . and a

several years long battle with severe eczema, and many other allergies.” Id. at 8. Petitioners

state that because W.J.’s physicians found no cause for his conditions, “in the absence of any

evidence to the contrary, [] the many immuno-related adverse events were caused by the MMR

vaccine administration to [W.J.] on February 24, 2005.” Id. at 20.

Third, petitioners allege W.J. had an extremely high mumps antibody count on April 18,

2014, which “may be indicative of an unusual and chronic allergic reaction to the MMR

vaccine.” Petition at 8.

Petitioners also allege that W.J. was admitted to the emergency room on June 22, 2007,

for a swollen jaw and face, and a high fever. Petition at 8. His blood test showed a high white

blood cell count and high lymphocyte, monocyte, and granulocyte counts. Id. at 9. Petitioners

state W.J.’s “symptoms during this hospitalization were very similar to mumps, which may point

to some adverse chronic reaction to the MMR vaccine.” Id.

3

Thrombocytosis is “an increase in the number of circulating platelets; called also

thrombocythemia.” Thrombocytosis, Dorland’s Online Med. Dictionary,

https://www.dorlandsonline.com/dorland/definition?id=49877 (last visited Feb. 3, 2022).

4

Lymphocytopenia is the “reduction in the number of lymphocytes in the blood.”

Lymphocytopenia, Dorland’s Online Med. Dictionary, https://www.dorlandsonline.com/

dorland/definition?id=29030 (last visited Feb. 3, 2022).

5

Lymphocytosis is the “excess of normal lymphocytes in the blood or in any effusion.”

Lymphocytosis, Dorland’s Online Med. Dictionary, https://www.dorlandsonline.com/dorland/

definition?id=29034 (last visited Feb. 3, 2022).

6

Monocytosis is the “increase in the proportion of monocytes in the blood.” Monocytosis,

Dorland’s Online Med. Dictionary, https://www.dorlandsonline.com/dorland/definition?

id=31969 (last visited Feb. 3, 2022).

7

Granulocytopenia is the “reduction in the number of granular leukocytes in the blood.”

Granulocytopenia, Dorland’s Online Med. Dictionary, https://www.dorlandsonline.com/dorland/

definition?id=20930 (last visited Feb. 3, 2022).

3

Fifth, petitioners contend W.J. suffered from an encephalopathy Table injury after MMR

vaccine administration. Petition at 10. “Prior to the administration of the MMR vaccine on

February 24, 2005, [W.J.’s] medical records indicate no developmental delays or any other

indication of mental incapacitation.” Id. Petitioners allege that “[a]fter the administration of the

MMR vaccine, [W.J.’s] developmental delays soon began to surface.” Id. “The table injury

timeframe for [W.J.’s] MMR injury is the fifteen days between February 24, 2005 and March 11,

2005.” Id. at 11.

Sixth, petitioners allege equitable tolling of the statute of limitations is warranted.

Petition at 12. Petitioners state W.J.’s encephalopathy is an “extraordinary circumstance” that

tolls the statute of limitations in cases under the Vaccine Act and cite K.G. v. Secretary of Health

& Human Services, 951 F.3d 1374 (Fed. Cir. 2020) for support. Petitioners contend the Federal

Circuit in K.G. held “that equitable tolling under the Vaccine Act applied to an adult who was

mentally incapacitated for some five years. . . . It stands to reason, then, that the same should

apply to a minor with permanent brain damage.” Id. at 13. Petitioners also state they exercised

reasonable diligence in bringing this matter. Id. at 14. W.J. was diagnosed with autism and they

“had no basis for questioning” his diagnosis. Id. at 15. However, petitioners state “that vaccines

do sometimes cause or enhance autism-like symptoms.” Id. at 16. Petitioners cite Paluck v.

Secretary of Health & Human Services, 786 F.3d 1373, 1379 (Fed. Cir. 2015) where “K.P. won a

favorable judgment based on his parents’ amply supported allegation that he was a child

‘suffering from both a mitochondrial disorder and autism who experienced developmental

regression following vaccination.’” Id.

Petitioners discovered W.J.’s genetic aberration on March 19, 2019 and “soon came to

the conclusion that because of the Xq28 duplication, [W.J.], in spite of his autism-like

symptoms, either might not be autistic at all or that the Xq28 duplication is a cause of his

autism.” Id. at 17. They allege that they realized in light of the genetic mutation, the MMR

vaccine should not have been administered, and that the MMR vaccine caused W.J.’s permanent

injury. Id. at 18. W.J.’s parents assert that they exercised reasonable diligence and “the statute

of limitations in this matter began to toll no earlier than March 19, 2019, when [W.J.’s] parents

were first informed of his Xq28 duplication.” Id.

Petitioners also allege “[t]o consider equitable tolling for K.G.’s drug and alcohol

induced mental incapacity, but not for [W.J.’s] congenital genetically-caused mental incapacity,

would be disability discrimination in violation of [W.J.’s] Fourteenth Amendment rights.”

Petition at 18. Petitioners cite Justice Marshall’s concurring in part opinion in City of Cleburne,

Tex. v. Cleburne Living Ctr., 473 U.S. 432 (1985) for support.

Finally, petitioners allege that the K.G. standard—“that the proper analysis of equitable

tolling based on mental incapacity in the Vaccine Act context must consider both extraordinary

circumstances and diligence”—applies in this matter. Petition at 19.

B. Respondent’s Contentions

Respondent contends petitioners filed their claim for compensation “after the expiration

of the statutorily prescribed limitations period set forth in Section 16(a)(2) of the Vaccine Act.”

4

Resp. Reply at 1. Further, respondent asserts that “petitioners have not demonstrated the

extraordinary circumstances necessary to equitably toll the Act’s statute of limitations.” Id.

Specifically, respondent states “[s]ymptoms of W.J.’s alleged injury began to manifest

before March 2006, when W.J. was diagnosed with a speech delay. Therefore, to comply with

Section 16(a)(2) of the Vaccine Act, petitioners needed to file a petition on W.J.’s behalf by

March 2009.” Resp. Reply at 2. Respondent states that petitioners argue for the application of

the discovery rule, “suggesting that the Act’s statute of limitations should not have begun

running until March 2019, when they conceived of a possible connection between W.J.’s autism

and the MMR vaccine. The Federal Circuit has held that there is no explicit or implied discovery

rule under the Vaccine Act.” Id. at 3. “Accordingly, [respondent contends that] the statutory

filing period began to run in 2006, when W.J. experienced the first symptoms of his autism

spectrum disorder—not in 2019, when petitioners devised a purported connection between

W.J.’s symptoms and the MMR vaccine.” Id.

Regarding equitable tolling, respondent states, “petitioners have not shown a diligent

pursuit of W.J.’s rights or extraordinary circumstances.” Resp. Reply at 4. “The Federal Circuit

has expressly held that equitable tolling is not a substitute for the discovery rule and is not

available simply because the application of the statute of limitations would otherwise deprive a

petitioner of his claim.” Id. “W.J.’s age and incapacity are not bases for equitable tolling.” Id.

Respondent claims K.G. does not support petitioners’ position. First, “K.G. was an incapacitated

adult.” Id. at 5. “Her relationship with her appointed guardian became strained and was later

terminated.” Id. “Accordingly, during the relevant time period, K.G. had no one to act on her

behalf and was incapable of filing a claim under the Vaccine Act; for this reason, the Court

found that equitable tolling was appropriate in her case.” Id. Respondent alleges, “[u]nlike

K.G., W.J. was an infant at the time of his vaccination, and his parents (the petitioners) were

entirely capable of filing a claim on his behalf.” Id. Respondent also argues that “[t]aken to its

logical conclusion, petitioners’ equitable tolling argument would essentially mean that the three-

year statute of limitations is irrelevant in all cases involving young children who cannot file

claims on their own behalf. This is not what the Vaccine Act contemplates.” Id.

Lastly, the respondent asserts that petitioners have not provided a procedural basis for

their assertions. “Procedurally, petitioners have not demonstrated a basis for equitable tolling,

and their claim should be dismissed as untimely.” Resp. Reply at 6. To the extent that

petitioners are asserting an injury based on their child’s condition of autism, the respondent

points out that “[s]ubstantively, it is important to note that the theory of MMR vaccines causing

autism has been thoroughly evaluated and repeatedly rejected by the courts.” Id.

IV. FACTUAL SUMMARY8

8

The factual summary is abbreviated to provide relevant information. Additionally, complete

medical records were not filed. The records that have been filed, however, are sufficient for the

purposes of this Decision.

5

W.J. was born on February 8, 2004. Pet. Ex. 1 at 1. He was a healthy, full-term infant,

with no significant neonatal problems apart from meconium which was suctioned at birth. Pet.

Ex. 5 at 1; Pet. Ex. 13.

W.J. received several childhood vaccinations, including influenza (“flu”) vaccines from

Dr. Stephen Borchman. Pet. Ex. 2 at 1. W.J. received his first hepatitis B vaccine on February

8, 2004, his second hepatitis B vaccine on May 12, 2004, and his third hepatitis B vaccine on

August 23, 2004. Id. He also received his diphtheria-tetanus-acellular pertussis (“DTaP”)

vaccinations in April, June, and August 2004, August 2005, and February 2009. Id. The

Haemophilus influenzae type B (“hib”) vaccines were given at the same time as DTaP in April,

June, and August 2004. Id. W.J. received his pediatric pneumococcal (“PCV7”) and polio

(“IPV”) vaccinations in 2004, 2005, and 2009. Id. MMR vaccinations were administered on

February 24, 2005 and March 15, 2008. Id. Flu vaccines were given in 2007, 2008, and 2010.

Id. No adverse reaction to any of the vaccines was noted in the medical records.

On March 7, 2006, Dr. Ann Marie Abbondante examined W.J. and diagnosed him with a

“speech delay.” Pet. Ex. 6 at 13. W.J. then underwent an audiology evaluation on June 26,

2006, which revealed adequate hearing. Pet. Ex. 8 at 1. Dr. Abbondante ordered a blood test

performed on March 9, 2006 that showed high platelet levels (424, normal range is 140-400) and

low lymphocyte levels (3,276, normal range is 4,400-10,500). Pet. Ex. 9 at 1. Dr. Abbondante

did not diagnose W.J. with encephalopathy or any immunodeficiencies.

On January 5, 2007, W.J. was diagnosed with Autism and Pervasive Developmental

Delay following a psychological evaluation at Words ‘N Motion Pediatric Multi-Disciplinary

Diagnostic Evaluation and Treatment Center by Psychologist D. Jeanne Romeo. Pet. Ex. 39 at

17.

W.J. presented to Dr. John Wells, pediatric neurologist, for a neurologic evaluation on

January 24, 2007. Pet. Ex. 13 at 1. Dr. Wells stated W.J.’s developmental delays and language

disorder required intensive therapeutic programs. Id. At that time, Dr. Wells considered

ordering an MRI and genetic testing depending on W.J.’s progress. Id. Dr. Wells did not

diagnosis W.J. with encephalopathy.

From June 22 to June 25, 2007, W.J. was hospitalized with a fever and swollen glands.

Pet. Ex. 12 at 11. W.J. presented in the emergency room with swelling in the jaw and neck,

runny nose, and a moderately-sore throat. Id. at 9. His white blood cell count was consistent

with a bacterial infection, and he was admitted to the hospital with a diagnosis of cervical

lymphadenitis.9 Id. at 11, 18. Three days later, he was discharged with antibiotics. Id. at 11.

Bloodwork performed on July 3, 2007, showed W.J. had an elevated white blood count (11.9,

normal range is 4.8-10.8), elevated platelet count (548), as well as high monocyte (0.6, normal

range is 0.11-0.59) and lymphocyte numbers (5.9, normal range is 1.2-3.4). Pet. Ex. 10 at 7.

9

Cervical lymphadenitis is the “enlarged, inflamed, and tender cervical lymph nodes, seen in

certain infectious diseases of children, such as acute infections of the throat.” Cervical

Lymphadenitis, Dorland’s Online Med. Dictionary, https://www.dorlandsonline.com/dorland/

definition?id=87515 (last visited Feb. 3, 2022).

6

W.J. was not diagnosed with encephalopathy at any time during this hospitalization.

Additionally, W.J. was not diagnosed with any immunodeficiencies.

W.J. attended yearly follow-up visits with Dr. Borchman from February 2009 to February

2014. Pet. Ex. 7 at 3-11. On February 21, 2011, W.J. presented to Dr. Borchman for a follow up

of strep throat. Id. at 5. Dr. Borchman noted W.J.’s moderate to severe autism diagnosis. Id.

W.J. also received his first hepatitis A vaccine. Id. No adverse reaction to the vaccine was

noted. During these years, W.J. was not diagnosed with encephalopathy or immunodeficiencies.

On February 20, 2012, W.J. returned to Dr. Borchman for atopic dermatitis. Pet. Ex. 7 at

7. Dr. Borchman again noted W.J.’s moderate to severe autism, and a past history of lead

poisoning. Id.; Pet. Ex. 10 at 9. Dr. Borchman assessed W.J. for “unstable atopic dermatitis”

and ordered heavy metal testing to rule out lead poisoning, plus allergy testing. Pet. Ex. 7 at 7.

Dr. Borchman explained to petitioners there was a lack of data associating autism spectrum

disorders with diet. Id. W.J.’s blood work showed he had numerous abnormal reactions to a

variety of allergens and had an elevated platelet count (496). Pet. Ex. 10 at 11.

On February 19, 2014, W.J. returned to Dr. Borchman for eczema and rhinitis. Pet. Ex. 7

at 10. W.J. had numerous environmental allergies, and Dr. Borchman documented that his

parents “refuse[] any steroid nasal sprays” and medications. Id. Dr. Borchman also expressed

his concern with W.J.’s mother’s refusal to use prescription steroid creams or any medications to

control W.J.’s allergies. Id. at 10-11. W.J.’s mother agreed to return to W.J.’s immunologist,

Dr. Russo, and to restart allergy and eczema medications. She refused the diphtheria, pertussis,

and tetanus (“DPT”) vaccine. Id. at 11.

On April 4, 2014, W.J. underwent a variety of lab tests, including genetic screening,

ordered by Dr. Maya Klein. Pet. Ex. 11 at 1-10. Testing showed a normal blood panel, normal

platelet count, and normal levels of heavy metals. Id. at 1-3. W.J. exhibited high antibodies to

the mumps virus (71.2, negative range <9.0), and the records noted that “[a] positive result

generally indicates past exposure to Mumps virus or previous vaccination.” Id. W.J. also had

elevated antibodies to the Streptococcus B virus (210, negative range 0-170), herpes virus

(17.66, negative range, <0.76), and pneumonia virus (118, indeterminate range 100-320), noting

“[v]alues >100 may indicate a recent infection . . . and need to be confirmed.” Id. at 4, 6, 8.

Genetic testing revealed a MTHFR homozygous A1298C mutation.10 Id. at 4, 6, 8.

W.J. presented to Dr. Maria Del Pilar Trelles-Thorne for a psychiatric evaluation on July

9, 2018. Pet. Ex. 71 at 59. Dr. Trelles-Thorne performed a comprehensive evaluation to help

10

MTHFR is “a common, autosomal recessive, inborn error of folate metabolism caused by

mutation in the MTHFR gene (locus: 1p36.3), which encodes the enzyme. The chief

biochemical finding is homocystinuria with normal levels of plasma methionine.” Methylene

Tetrahydrofolate Reductase (MTHFR) Deficiency, Dorland’s Online Med. Dictionary,

https://www.dorlandsonline.com/dorland/definition?id=30976 (last visited Jan. 21, 2022).

“Clinical manifestations, age of onset, and severity are highly variable; characteristics include

signs of neurologic damage ranging from psychiatric symptoms to fatal developmental delay,

microcephaly, ectopia lentis, and thrombosis.” Id.

7

petitioners manage W.J.’s irritability, mood swings, and poor sleep. Id. Dr. Trelles-Thorne

prescribed Risperdal.11 Id. at 60.

W.J. returned to Dr. Trelles-Thorne on January 30, 2019, for medication management of

irritability and disruptive behaviors. Pet. Ex. 71 at 32. Dr. Trelles-Thorne ordered a number of

medications for W.J. and noted his autism spectrum disorder diagnosis. Id. at 33-34.

On February 22, 2019, W.J. underwent genetic testing that revealed he had a duplication

on the Xq28 chromosome of “uncertain clinical significance—likely benign.” Pet. Ex. 14 at 1.

On February 11, 2021, Dr. Trelles-Thorne saw W.J. for psychopharmacology evaluation.

Pet. Ex. 71 at 2. W.J. was noted to have autism spectrum disorder and unspecified bipolar

disorder. Id. Dr. Trelles-Thorne changed W.J.’s dosage of lithium.12 Id. at 3. The records do

not indicate that Dr. Trelles-Throne ever diagnosed W.J. with encephalopathy or any

immunodeficiency disorder.

Although the petitioners allege that the MMR vaccination administered to W.J. on

February 24, 2005 caused encephalopathy as well as a number of immunodeficiencies, the

medical records do not include a diagnosis of encephalopathy or immunodeficiency disorder.

See Petition at 1.

V. LEGAL FRAMEWORK

A. Vaccine Act Statute of Limitations

Section 16(a)(2) of the Vaccine Act governs claims resulting from vaccines administered

after October 1, 1988, and reads,

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.

11

Risperdal is a trademark name for risperidone, “a benzisoxazole derivative used as an

antipsychotic agent.” Risperdal, Dorland’s Online Med. Dictionary,

https://www.dorlandsonline.com/dorland/definition?id=43964 (last visited Jan. 20, 2022);

Risperidone, Dorland’s Online Med. Dictionary, https://www.dorlandsonline.com/dorland/

definition?id=43965 (last visited Jan. 20, 2022).

12

Lithium carbonate, the carbonate salt of lithium, is “used as a mood stabilizer in treatment of

acute manic and hypomanic states in bipolar disorder and in maintenance therapy to reduce the

intensity and frequency of subsequent manic episodes.” Lithium Carbonate, Dorland’s Online

Med. Dictionary, https://www.dorlandsonline.com/dorland/definition?id=87087 (last visited Jan.

21, 2022).

8

§ 16(a)(2). Therefore, claims resulting from vaccines administered after October 1, 1988 must be

filed within 36 months of the first symptom or manifestation of onset of the alleged vaccine-related

injury. The statute of limitations begins to run from the onset of the first objectively cognizable

symptom, whether or not that symptom is sufficient for diagnosis. Carson v. Sec’y of Health &

Hum. Servs., 727 F.3d 1365, 1369 (Fed. Cir. 2013). Special masters have appropriately

dismissed cases that were filed outside the limitations period, even by a single day or two. See,

e.g., Spohn v. Sec’y of Health & Hum. Servs., No. 95-0460V, 1996 WL 532610 (Fed. Cl. Spec.

Mstr. Sept. 5, 1996) (dismissing case filed one day beyond the 36-month limitations period),

aff’d, 132 F.3d 52 (Fed. Cir. 1997); Cakir v. Sec’y of Health & Hum. Servs., No. 15-1474V,

2018 WL 4499835, at *4 (Fed. Cl. Spec. Mstr. July 12, 2018).

B. Motion to Dismiss

Although the Vaccine Act and the Vaccine Rules contemplate case dispositive motions,

the dismissal procedures included within the Vaccine Rules do not specifically include a

mechanism for a motion to dismiss. See §§ 12(d)(2)(C)-(D); Vaccine Rule 8(d); Vaccine Rule

21. However, Vaccine Rule 1 provides that for any matter not specifically addressed by the

Vaccine Rules, the special master may regulate applicable practice consistent with the rules and

the purpose of the Vaccine Act. Vaccine Rule 1(b). Vaccine Rule 1 also provides that the Rules

of the Court of Federal Claims (“RCFC”) may apply to the extent they are consistent with the

Vaccine Rules. Vaccine Rule 1(c).

Accordingly, there is a well-established practice of special masters entertaining motions

to dismiss in the context of RCFC 12(b)(6), which allows the defense of “failure to state a claim

upon which relief can be granted” to be presented via motion. See, e.g., Herren v. Sec’y of

Health & Hum. Servs., No. 13-1000V, 2014 WL 3889070 (Fed. Cl. Spec. Mstr. July 18, 2014);

Bass v. Sec’y of Health & Hum. Servs., No. 12-135V, 2012 WL 3031505 (Fed. Cl. Spec. Mstr.

June 22, 2012); Guilliams v. Sec’y of Health & Hum. Servs., No. 11-716V, 2012 WL 1145003

(Fed. Cl. Spec. Mstr. Mar. 14, 2012); Warfle v. Sec’y of Health & Hum. Servs., No. 05-1399V,

2007 WL 760508 (Fed. Cl. Spec. Mstr. Feb. 22, 2007).

Under RCFC 12(b)(6), a case should be dismissed “when the facts asserted by the

claimant do not entitle him to a legal remedy.” Extreme Coatings, Inc. v. United States, 109 Fed.

Cl. 450, 453 (2013) (quoting Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002)). In

considering a motion to dismiss under RCFC 12(b)(6), allegations must be construed favorably

to the pleader. Id. (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). However, the pleading

must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Golden v. United States, 137 Fed. Cl. 155, 169 (2018) (quoting Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009)); see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007).

“To determine whether a complaint states a plausible claim for relief, the court must

engage in a context-specific analysis and ‘draw on its judicial experience and common sense.’”

Golden, 137 Fed. Cl. at 169 (quoting Iqbal, 556 U.S. at 679). However, “Rule 12(b)(6) does not

countenance . . . dismissals based on a judge’s disbelief of a complaint’s factual allegations.”

Neitzke v. Williams, 490 U.S. 319, 327 (1989). Nonetheless, on a motion to dismiss, courts “are

9

not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v.

Allain, 478 U.S. 265, 286 (1986). In assessing motions to dismiss in the Vaccine Program,

special masters have concluded that they “need only assess whether the petitioner could meet the

Act’s requirements and prevail, drawing all inferences from the available evidence in petitioner’s

favor.” Herren, 2014 WL 3889070, at *2; see also Warfle, 2007 WL 760508, at *2.

C. Doctrine of Equitable Tolling

The Federal Circuit has held that the doctrine of equitable tolling can apply to Vaccine

Act claims in limited circumstances. See Cloer v. Sec’y of Health & Hum. Servs., 654 F.3d

1322, 1340-41 (Fed. Cir. 2011). The Federal Circuit determined equitable tolling on the basis of

mental incompetence is available in Vaccine Act cases. K.G., 951 F.3d at 1381. However, lack

of knowledge of an actionable claim is not a basis for equitable tolling. Id. at 1380 (citing Cloer,

654 F.3d at 1344-45).

To establish that equitable tolling of a statute of limitations is appropriate, a claimant

must prove (1) he pursued his rights diligently and (2) an extraordinary circumstance prevented

him from timely filing the claim. K.G., 951 F.3d at 1379 (citing Menominee Indian Tribe v.

United States, 136 S. Ct. 750, 755 (2016). In K.G., the Federal Circuit determined “the proper

analysis of equitable tolling based on mental incapacity in the Vaccine Act context must consider

both extraordinary circumstances and diligence.” Id. at 1381. All relevant facts and

circumstances must be considered when determining whether a claimant pursued his rights

diligently. Id. at 1382. “It is possible, for instance, that a reasonable amount of diligence for an

individual with memory loss or hallucinations would equate to no diligence for an able-minded

individual.” Id. Additionally, “[a] claimant need only establish diligence during the period of

extraordinary circumstances to meet this test.” Id. (citing Checo v. Shinseki, 748 F.3d 1373,

1380 (Fed. Cir. 2014)).

To show extraordinary circumstances, “a Vaccine Act claimant must show that [his]

failure to file was the direct result of a mental illness or disability that rendered [him] incapable

of rational thought, incapable of deliberate decision making, incapable of handling [his] own

affairs, or unable to function in society.” K.G., 951 F.3d at 1381. However, “[a] medical

diagnosis alone or vague assertions of mental problems are insufficient” to establish

extraordinary circumstances. Id. at 1381-82.

Under the provisions of the Vaccine Act, a petition seeking compensation on behalf of a

minor may only be filed by the minor’s “legal representative,” § 11(b)(1)(A), a term which the

Act defines as “a parent or an individual who qualifies as a legal guardian under State law.” §

33(2).

D. Equal Protection Under the Fourteenth Amendment

The Equal Protection Clause of the Fourteenth Amendment to the Constitution, and

through the Due Process Clause of the Fifth Amendment, implicitly forbids most discriminations

by the Federal Government against individuals. Bolling v. Sharpe, 347 U.S. 497 (1954). A

potential violation of equal protection arises whenever the Government treats one group

10

differently than it treats another while it pursues some social goal. Black v. Sec’y of Health &

Hum. Servs., 33 Fed. Cl. 546, 554 (1995), aff’d sub nom. Black v. Sec’y of Health & Hum.

Servs., 93 F.3d 781 (Fed. Cir. 1996). Legislation, which classifies people into favored and

nonfavored groups based upon race, is subject to “strict scrutiny.” Palmore v. Sidoti, 466 U.S.

429 (1984); Loving v. Virginia, 388 U.S. 1 (1967); Anderson v. Martin, 375 U.S. 399 (1964).

However, under the Vaccine Program, the Vaccine Act’s limitation period is rationally

related to the dual legitimate legislative purposes undergirding the Vaccine Act: (1) the settling

of claims quickly and easily, and (2) the protecting of manufacturers from uncertain liability

making “production of vaccines economically unattractive, potentially discouraging vaccine

manufacturers from remaining in the market.” Cloer v. Sec’y of Health & Hum. Servs., 85 Fed.

Cl. 141, 151-52 (2008) (quoting Brice v. Sec’y of Health & Hum. Servs., 240 F.3d 1367, 1368

(Fed. Cir. 2001)), rev’d on other grounds, 603 F.3d 1341 (Fed. Cir. 2010), aff’d on rehearing en

banc, 654 F.3d 1322 (Fed. Cir. 2011).

VI. DISCUSSION

A. Applicable Statute of Limitations in the Vaccine Program

1. Alleged Injuries in the Petition

Petitioners allege that W.J. sustained injuries, including “chronic encephalopathy and

immunodeficiency issues,” resulting from adverse effects of the MMR vaccination received on

February 24, 2005. Petition at 3. Petitioners allege that W.J.’s “chronic encephalopathy and

immunodeficiency issues were either directly caused by the administration of the MMR vaccine,

or that the MMR vaccine significantly aggravated pre-existing cerebral and immunological

damage caused by [W.J.’s] chromosomal aberration.” Id. at 4. Petitioners also alleged that W.J.

suffered from thrombocytosis, lymphocytopenia, lymphocytosis, monocytosis, granulocytopenia,

severe eczema, and “many other allergies” that his “physicians offered no cause or diagnosis

for;” an extremely high mumps antibody count on April 18, 2014, which “may be indicative of

an unusual and chronic allergic reaction to the MMR vaccine;” and an emergency room visit for

a swollen jaw and face and high fever, and “symptoms during this hospitalization were very

similar to mumps, which may point to some adverse chronic reaction to the MMR vaccine.”

Petition at 4-9. Finally, petitioners allege W.J. suffered a chronic encephalopathy Table Claim.

Id. at 11.

a. Petitioners’ Table Claim

The Vaccine Injury Table defines chronic encephalopathy as a condition that “occurs

when a change in mental or neurologic status, first manifested during the applicable Table time

period as an acute encephalopathy or encephalitis, persists for at least 6 months from the first

symptom or manifestation of onset or of significant aggravation of an acute encephalopathy or

encephalitis.” 42 C.F.R. § 100.3(d)(1)(i). Acute encephalopathy, for children less than 18

months of age, that presents without a seizure “is indicated by a significantly decreased level of

consciousness that lasts at least 24 hours.” 42 C.F.R. § 100.3(c)(2)(i)(A)(1). Typical symptoms

of encephalopathy include, but do not in themselves demonstrate an acute encephalopathy or a

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significant change in either mental status or level of consciousness, “[s]leepiness, irritability

(fussiness), high-pitched and unusual screaming, poor feeding, persistent inconsolable crying,

bulging fontanelle, or symptoms of dementia.” 42 C.F.R. § 100.3(c)(2)(i)(C). Exclusionary

criteria for encephalopathy include, “[a]n underlying condition or systemic disease shown to be

unrelated to the vaccine (such as malignancy, structural lesion, psychiatric illness, dementia,

genetic disorder, prenatal or perinatal central nervous system (CNS) injury).” 42 C.F.R. §

100.3(c)(2)(ii)(A). The time period for first symptom or manifestation of onset or of significant

aggravation of encephalopathy is between 5 and 15 days after MMR vaccine administration. 42

C.F.R. § 100.3(a)(III)(B).

Petitioners alleged, “[p]rior to the administration of the MMR vaccine on February 24,

2005, [W.J.’s] medical records indicate no developmental delays or any other indication of

mental incapacitation.” Petition at 10. “After the administration of the MMR vaccine, [W.J.’s]

developmental delays soon began to surface.” Id. Petitioners cited W.J.’s March 7, 2006

doctor’s appointment where he was diagnosed with speech delay as evidence of his

developmental delays.

Petitioners claim,

Given the before and after circumstantial evidence in the record, and based on the

record as a whole, the Special Master should find that “the first symptom or

manifestation of onset” of [W.J.’s] chronic encephalopathy, or the “significant

aggravation” of a pre-existing encephalopathy, occurred within the fifteen-day

time period described in the Vaccine Injury Table, “even though the occurrence of

such symptom or manifestation within the time period was not recorded.” 42

U.S.C. § 300aa-13(b)(2).

Petition at 11.

“The symptoms associated with an acute encephalopathy are neither subtle nor

insidious.” Blake v. Sec’y of Health & Hum. Servs., No. 03-31V, 2014 WL 2769979, at *6

(Fed. Cl. Spec. Mstr. May 21, 2014) (quoting Waddell v. Sec’y of Health & Hum. Servs., No.

10-316V, 2012 WL 4829291, at *6 (Fed. Cl. Spec. Mstr. Sept. 19, 2012)). Acute and chronic

encephalopathy is a serious injury that can necessitate hospitalization. Miller v. Sec’y of Health

& Hum. Servs., No. 02-235V, 2015 WL 5456093, at *37 (Fed. Cl. Spec. Mstr. Aug. 18, 2015).

W.J. has never been diagnosed with acute or chronic encephalopathy, nor have any of his

treating physicians suspected the condition or noted either conditions as a differential diagnosis

in the medical records. Therefore, in assessing all inferences from the available evidence in

petitioner’s favor, the undersigned finds that W.J. did not suffer from encephalopathy and does

not fulfill the criteria for an encephalopathy Table claim.

However, even if petitioners were able to establish W.J. suffered an encephalopathy

Table injury, petitioners filed their claim beyond the statute of limitations. W.J. received the

MMR vaccine on February 24, 2005. In order for the encephalopathy Table claim to apply,

W.J.’s injury would have to have manifested between 5 and 15 days after MMR vaccine

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administration, or by March 11, 2005. Therefore, petitioners had 36 months from March 11,

2005 to file a Table claim in the Vaccine Program, or by March 11, 2008. Petitioners did not file

their petition until May 7, 2021, and thus any Table claim is time-barred.

b. Cause-In-Fact Injuries

i. Chronic Encephalopathy

First, in regard to W.J.’s “chronic encephalopathy” claim, W.J. medical records do not

include a diagnosis of or reference to encephalopathy or chronic encephalopathy by his treating

physicians. W.J. was seen by multiple physicians to review his developmental progress,

including Dr. Abbondante on March 7, 2006 who diagnosed him with speech delay, psychologist

Romeo who diagnosed him with autism on January 5, 2007, and Dr. Wells who conducted a

neurologic evaluation on January 24, 2007. None of W.J.’s treating physicians diagnosed or

mentioned encephalopathy.

There is no evidence in W.J.’s medical records establishing that he was diagnosed with

chronic encephalopathy. Thus, the undersigned finds that petitioners have failed to provide

evidence with regard to the injury or condition of encephalopathy.

W.J. received the MMR vaccination at issue on February 24, 2005. W.J.’s medical

records show W.J. was diagnosed “speech delay” on March 7, 2006, and with autism spectrum

disorder on January 5, 2007. Pet. Ex. 6 at 13; Pet. Ex. 39 at 17. Even if petitioners were able to

establish W.J. suffered a chronic encephalopathy injury, petitioners filed their claim beyond the

statute of limitations. Assuming the date of diagnosis for either condition (speech delay or autism

spectrum disorder) was the first symptom or manifestation of the alleged vaccine-related injury,

petitioners would have been required to file their petition prior to March 7, 2009 or January 5,

2010. Petitioners did not file their petition until May 7, 2021, and thus their claim is time-barred.

ii. Immunodeficiency Issues

In regard to W.J.’s “immunodeficiency issues” claim, petitioners alleged that W.J.’s

blood tests on March 9, 2006, June 23, 2007, July 3, 2007, April 13, 2007, February 12, 2012,

and April 8, 2014 “demonstrate[d] that his immune system suffered from irregularities for

several years after the administration of the MMR vaccine.” Petition at 4. However, the blood

tests do not constitute evidence of a diagnosis of an immunodeficiency disorder. And the

medical records do not contain any evidence that W.J. was diagnosed with an immunodeficiency

disorder.

First, petitioners allege W.J. struggled with thrombocytosis. Petition at 4. Petitioners

state W.J.’s blood sample collected on March 9, 2006 showed a high platelet count at 424

(normal range 140-400). Id. They state lab results were “indicative of a blood disorder known

as thrombocytosis.” Id. Petitioners then point to a blood samples drawn on July 3, 2007 and

February 20, 2012, which again showed a high platelet counts (548 and 469, respectively).

However, on April 4, 2014, W.J. had a normal platelet count. W.J.’s abnormal platelet counts

13

occurred during periods when he was ill. Further, none of W.J.’s physicians diagnosed him with

thrombocytosis.

Similarly, from blood samples collected on March 9, 2006, April 13, 2007, and July 3,

2007, petitioners state these lab results showed an “indication” of blood disorders known as

“lymphocytopenia or lymphopenia,” “lymphocytosis,” “monocytosis,” and “granulocytopenia, a

form of immunosuppression.” Petition at 5-7. Again, these blood tests were drawn when W.J.

was ill with a viral or bacterial infection. Most importantly, W.J.’s treating physicians did not

diagnose W.J. with an abnormal immune illness due to these lab results.

Petitioners also alleged that W.J. suffered from eczema and “many other allergies,” and

stated “[t]here is research pointing to eczema as an autoimmune disease.” Petition at 8.

Additionally, petitioners stated W.J.’s April 2014 lab results indicated he had high mumps

antibodies that “may be indicative of an unusual and chronic allergic reaction to the MMR

vaccine.” Id. However, the lab results state that “[a] positive result generally indicates past

exposure to Mumps virus or previous vaccination.” Pet. Ex. 11 at 3.

Finally, petitioners stated W.J.’s hospitalization on June 22, 2007 showed a high white

blood count as well as high lymphocyte, monocyte, and granulocyte counts. Id. at 8-9.

Petitioners allege that W.J.’s “symptoms during this hospitalization were very similar to mumps,

which may point to some adverse chronic reaction to the MMR vaccine.” Id. at 9. However, the

petitioners provide no evidence to suggest that W.J. had any adverse reaction to the MMR

vaccine.

W.J. was never diagnosed with an immunodeficiency disorder and petitioners’ own

statements and beliefs are not evidence of a diagnosis of an immunodeficiency disease or

disorder. W.J.’s physicians did not associate his illnesses with an immunodeficiency disorder or

with the MMR vaccine, or any of W.J.’s vaccinations. During his hospitalization in June 2008,

his physicians noted his white blood cell count was consistent with a bacterial infection and he

was diagnosed of cervical lymphadenitis. However, W.J. was not diagnosed with an

immunodeficiency disease or disorder. Overall, there is no evidence in W.J.’s medical records

establishing that he was diagnosed with an immunodeficiency disorder.

Even if petitioners were able to establish W.J. suffered from an immunodeficiency

disorder, petitioners filed their claim beyond the statute of limitations. The records show W.J.

received a number of blood tests that showed, at various times, high platelet count (March 9,

2006), low absolute lymphocyte count (March 9, 2006), high lymphocyte count (April 13, 2007),

high monocyte count (April 13, 2007), and low granulocyte count (April 13, 2007). Dr.

Borchman diagnosed W.J. with unstable atopic dermatitis on February 20, 2012, and diagnosed

eczema and rhinitis on February 19, 2014. Thus, petitioners’ allegations that W.J.’s immune

system struggled with “no less than four immuno-related blood disorders: granulocytopenia,

lymphocytopenia, lymphocytosis, and monocytosis, and a several years long battle with severe

eczema, and many other allergies” is untimely.

In order to have filed a timely petition for thrombocytosis and lymphocytopenia,

petitioners would have needed to assert these alleged injuries before March 9, 2009, 36 months

14

after the 2006 blood test. For the lymphocytosis, granulocytopenia, and monocytosis allegations,

petitioners would have needed to assert these alleged injuries before April 13, 2010, 36 months

after the 2007 blood test. For the eczema and “many other allergies” claims, petitioners would

have needed to assert these alleged injuries before February 20, 2015, 36 months after Dr.

Borchman’s exam and allergy testing. Assessing all inferences from the available evidence in

petitioner’s favor, petitioners’ claims are time-barred.

Additionally, even if W.J.’s hospitalization on June 22-24, 2007 and high mumps count

on April 8, 2014, were caused by the MMR vaccination, petitioners were required to file their

petition prior to June 24, 2010 and April 8, 2017, respectively. Petitioners did not file their

petition until May 7, 2021. As filed, the onset of W.J.’s claim, in order to be timely under the

Vaccine Act, would have had to occur on or after May 7, 2018. Thus, their claim is time-barred.

c. Significant Aggravation Injuries

Petitioners argue W.J.’s “chronic encephalopathy and immunodeficiency issues were

either directly caused by the administration of the MMR vaccine, or the MMR vaccine caused

‘significant aggravation’ of pre-existing cerebral and immunological damage caused by [W.J.’s]

Xq28 duplication, a chromosomal aberration.” Petition at 2. As discussed above, petitioners

failed to provide evidence that the MMR vaccine caused-in-fact W.J.’s alleged injuries.

As set forth earlier, there is no factual support in the contemporaneous medical records to

support chronic encephalopathy or immunodeficiency disorder occurred after vaccination.

Because there is no evidence, petitioners’ significant aggravation claims fail as well.

Petitioners argue that the MMR vaccine caused significant aggravation of pre-existing

cerebral and immunological damage caused by W.J.’s Xq28 duplication. However, petitioners

have failed to provide any evidence to suggest vaccination or the Xq28 chromosomal duplication

significantly or was any way associated with W.J.’s alleged injuries. Genetic testing on February

22, 2019, revealed the Xq28 chromosome duplication was “of uncertain clinical significance—

likely benign.” Pet. Ex. 14 at 1. None of W.J.’s physicians have documented that W.J.’s

vaccinations or his genetic testing was associated with his alleged injuries.

Further, as discussed above, even if petitioners were able to establish the MMR vaccine

significantly aggravated W.J.’s pre-existing injuries, petitioners filed their claim beyond the

statute of limitations.

2. Equitable Tolling

The Vaccine Act required petitioners to file their claim on behalf of W.J. under the

Vaccine Act within 36 months of the onset of the earliest symptom or manifestation of an injury.

See Markovich v. Sec’y of Health & Hum. Servs., 447 F.3d 1353, 1357 (Fed. Cir. 2007) (holding

that “either a ‘symptom’ or a ‘manifestation’ of onset of a vaccine-related injury is the first event

objectively recognizable as a sign of a vaccine injury by the medical profession at large”).13

13

For cases that have been dismissed for failure to file within the prescribed statute of

15

The petition was filed on May 7, 2021. In order for petitioners’ vaccine claim to be

timely, W.J. would have had to experience the initial onset of his vaccine-related injuries, as pled

in the petition, on or after May 7, 2018. Any claims for injuries that manifested prior to May 7,

2018, are time-barred.

However, petitioners assert equitable tolling of the statute of limitations is warranted in

this matter. For equitable tolling to apply, petitioners must prove two elements: (1) they pursued

their rights diligently, and (2) an extraordinary circumstance prevented them from timely filing

the claim. K.G., 951 F.3d at 1379. In K.G., the court allowed equitable tolling for the period of

K.G.’s mental incapacity and held equitable tolling is available to mentally incapacitated

individuals under the Vaccine Act. Id. In that case, petitioner, an adult, alleged the flu vaccine

caused chronic inflammatory demyelinating polyneuropathy (“CIDP”) in 2011. Id. at 1376.

“During the same period, K.G. succumbed to alcoholism, spent months in the hospital, and

developed amnesia. In Spring 2014, an Iowa state court declared K.G. incapable of caring for

herself and, against K.G.’s will, appointed K.G.’s sister as her guardian.” Id. K.G. regained her

mental faculties by May 2016 and filed a claim in the Vaccine Program for her alleged vaccine

injury in January 2018. Id.

Unlike K.G., W.J. was an infant at the time of his vaccination, and the petitioners, W.J.’s

parents, were capable of filing a claim on his behalf. W.J.’s parents have not filed any evidence

to suggest that they were incapacitated in any way during any time frame relevant to their

petition. While the Court in K.G. confirmed an equitable tolling right for incapacitated

individuals, nothing in the decision negated a legal representative’s rights and responsibilities

under the Vaccine Act. A legal representative is “a parent or an individual who qualifies as a

legal guardian under State law.” § 33(2). The Vaccine Act expressly permits a legal

representative to file a petition for compensation on behalf of a minor. § 11(b)(1)(A).

Therefore, petitioners had the right and responsibility to bring a timely claim on W.J.’s behalf.

The decision in K.G. did not alter this provision.

W.J.’s “mental incapacity” does not serve as an “extraordinary circumstance.”

Petitioners, as W.J.’s legal representatives as his parents, had the ability to file a petition 36

months from the onset of the earliest symptom or manifestation of W.J.’s injury. The same is

true for all petitions brought on behalf of all minors. Parents or other legal representatives must

file the petition on behalf of a minor within the applicable statute of limitations.

3. The Discovery Rule

limitations, see Villalobos ex rel. A.D. v. Sec’y of Health & Hum. Servs., No. 20-96V, 2020 WL

5797865 (Fed. Cl. Spec. Mstr. Sept. 2, 2020); Palencia ex rel. C.A.P. v. Sec’y of Health & Hum.

Servs., No. 20-180V, 2020 WL 5798504 (Fed. Cl. Spec. Mstr. Sept. 2, 2020); Edoo v. Sec’y of

Health & Hum. Servs., No. 13-302V, 2014 WL 1381341 (Fed. Cl. Spec. Mstr. Mar. 19, 2014);

Boettcher v. Sec’y of Health & Hum. Servs., No. 17-1402V, 2018 WL 2925043 (Fed. Cl. Spec.

Mstr. May 2, 2018).

16

Petitioners argue that it was not until genetic testing on March 19, 2019 which revealed

that W.J. had a chromosomal aberration known as Xq28 duplication, that they believed that the

MMR vaccine should not have been administered to him. Petition at 17-18. The petitioners

assert “the statute of limitations in this matter began to toll no earlier than March 19, 2019, when

[W.J.’s] parents were first informed of his Xq28 duplication.” Id. at 18.

Essentially, petitioners argue for the application of a discovery rule, suggesting that the

Act’s statute of limitations should not have begun running until March 19, 2019. The Federal

Circuit has held that there is no explicit or implied discovery rule under the Vaccine Act. Cloer,

654 F.3d at 1337. The date of the occurrence of the first symptom or manifestation of onset

“does not depend on when a petitioner knew or reasonably should have known anything adverse

about [the] condition.” Id. at 1339. Nor does it depend on when a petitioner knew or should

have known of a connection between an injury and a vaccine. Id. at 1338 (“Congress made the

deliberate choice to trigger the Vaccine Act statute of limitations from the date of occurrence of

the first symptom or manifestation of the injury for which relief is sought, an event that does not

depend on the knowledge of a petitioner as to the cause of an injury.”); see also Markovich, 477

F.3d at 1358 (“Congress intended the limitations period to commence to run prior to the time a

petitioner has actual knowledge that the vaccine recipient suffered from an injury that could

result in a viable cause of action under the Vaccine Act.”). Accordingly, the statutory filing

period was not tolled until March 19, 2019, when petitioners learned of W.J.’s test results.

4. Fraud

Petitioners claim they were unable to file a claim on behalf of W.J. because the

government fraudulently concealed the connection between vaccines and autism. Petition at 17.

However, the petitioners did not file any evidence to suggest that the government was

fraudulently concealing the connection between vaccines and autism. Furthermore, petitioners

failed to show how respondent’s alleged concealment prevented them from filing a petition on

behalf of W.J. At the time W.J. was vaccinated and later diagnosed with autism the Vaccine

Program was conducting an Omnibus Autism Proceeding (“OAP”), which included more than

5,100 petitions filed under the Vaccine Act alleging that vaccines caused autism. See Snyder v.

Sec’y of Health & Hum. Servs., No. 01-162V, 2009 WL 332044, at *4 n.12 (Fed. Cl. Spec. Mstr.

Feb. 12, 2009), aff’d, 88 Fed. Cl. 706 (2009). Petitioners could have filed a petition during that

timeframe, but did not do so.

Petitioners also cite Paluck, 786 F.3d 1373 to emphasize that “that vaccines do

sometimes cause or enhance autism-like symptoms.” Petition at 16. The Court in Paluck held

that the parents of K.P. demonstrated “by preponderance of evidence that their son’s existing

mitochondrial disorder was significantly aggravated by his receipt of vaccines within medically

acceptable time, and thus he was entitled to compensation under National Childhood Vaccine

Injury Act.” 786 F.3d at 1373. K.P. demonstrated significant developmental delays when he

was nine months old and underwent evaluations that showed he had gross motor delays. Id. at

1375. K.P. received an MMR vaccine and pneumococcal vaccines at his one-year well baby

visit, and two days later had a high temperature. Id. at 1376. After a series of tests and a three

weeklong hospitalization, K.P. was subsequently diagnosed with an unspecified mitochondrial

disorder “most likely present from the time of K.P.’s birth.” Id. The petitioners in Paluck

17

showed by preponderant evidence, the first sign of neurodegeneration was within 23 days of

vaccines, and the findings of his pediatrician, neurologist, and speech therapist, as well as MRI

exams, showed K.P.’s rapid, progressive neurodegeneration as predicted by his expert’s medical

theory. Id. at 1379.

Here, petitioners did not show W.J. has a mitochondrial disorder. W.J. was assessed with

speech delay over a year after the MMR vaccine at issue was administered and was diagnosed

with autism two years later. Petitioners failed to provide any evidence linking W.J.’s speech

delay or autism diagnosis to the MMR vaccination, how the government contributed to

obstructing petitioner’s ability to file a petition on behalf of W.J., or how W.J.’s condition is

similar to that of K.P.’s in Paluck. Additionally, the Paluck case did not involve the issues of the

statute of limitations or equitable tolling.

Petitioners have the burden of establishing the timely filing of their claim, and they have

failed to provide evidence that their petition was filed within “36 months after the date of

occurrence of the first symptom or manifestation of onset . . . of such injury” as required by the

Vaccine Act. Because petitioners have alleged injury onset in 2006 (diagnosis of speech delay),

and at the latest, 2012 (eczema and allergies), the undersigned, in assessing all inferences from

the available evidence in petitioner’s favor, finds it appropriate to dismiss the case for failure to

establish that the petition was timely filed.

5. Petitioner’s Autism Diagnosis

In the OAP, three special masters conducted separate proceedings in test cases involving

the two theories of autism causation. All found petitioners had not provided preponderant

evidence of causation. See Hazlehurst v. Sec’y of Health & Hum. Servs., No. 03-654V, 2009

WL 332306 (Fed. Cl. Spec. Mstr. Feb. 12, 2009), aff’d sub nom. Hazlehurst ex rel. Hazlehurst v.

Sec’y of Health & Hum. Servs., 88 Fed. Cl. 473 (2009), aff’d sub nom. Hazlehurst v. Sec’y of

Health & Hum. Servs., 604 F.3d 1343 (Fed. Cir. 2010); Cedillo v. Sec’y of Health & Hum.

Servs., 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); Mead ex rel. Mead v. Sec’y of Health & Hum.

Servs., No. 03-215V, 2010 WL 892248 (Fed. Cl. Spec. Mstr. Mar. 12, 2010); King ex rel. King

v. Sec’y of Health & Hum. Servs., No. 03-584V, 2010 WL 892296 (Fed. Cl. Spec. Mstr. Mar.

12, 2010); Dwyer ex rel. Dwyer v. Sec’y of Health & Hum. Servs., No. 03-1202V, 2010 WL

892250 (Fed. Cl. Spec. Mstr. Mar. 12, 2010); Snyder, 2009 WL 332044.

Here, petitioners state, “[b]ased on his symptoms and behaviors, [W.J.] was diagnosed by

his physician as having autism. . . . Indeed, [W.J.] does have several autism-like symptoms.”

Petition at 15. Petitioners assert respondent’s denial “of any connection between vaccines and

autism can be misleading because they serve to obscure any connection between vaccines and

injuries resulting in autism-like symptoms, if not autism proper, in children.” Id. at 16. “Since

the cause of autism is unknown, the postulation that vaccines may sometimes cause autism-like

symptoms, rather than autism proper in children, cannot be ruled out.” Id.

Petitioners further state respondent’s “categorical denials have the effect of misleading

and discouraging parents with children who have autism-like symptoms from even thinking that

18

the symptoms might have been caused by a vaccine.” Petition at 16. Petitioners argue that

“[r]espondent’s assertions that hard science has ruled out any connection between vaccines and

autism-like symptoms can amount to a ‘fraudulent defense’ to any claims suggesting otherwise,

warranting equitable tolling in some cases. Holmberg v. Armbrecht, 327 U.S. 392, 397

(1946).”14 Id.

Equity will not lend itself to such fraud and historically has relieved from it. It

bars a defendant from setting up such a fraudulent defense, as it interposes against

other forms of fraud. And so this Court long ago adopted as its own the old

chancery rule that where a plaintiff has been injured by fraud and remains in

ignorance of it without any fault or want of diligence or care on his part, the bar of

the statute does not begin to run until the fraud is discovered, though there be no

special circumstances or efforts on the part of the party committing the fraud to

conceal it from the knowledge of the other party.

This equitable doctrine is read into every federal statute of limitation. Holmberg

v. Armbrecht, 327 U.S. 392, 396-397 (1946) (Internal citations and quotation

marks omitted).

Petition at 17.

Petitioners then assert that after genetic testing, a chromosomal aberration, Xq28

duplication, was discovered. Petition at 17. Petitioners believe the Xq28 duplication impaired

[W.J.’s] immune system and caused his mental incapacities, and he “might not be autistic at all

or that the Xq28 duplication is a cause of his autism.” Id. Finally, petitioners state, “because of

the Xq28 duplication, the MMR vaccine should not have been administered to [W.J.] at all, and

that it probably significantly aggravated his congenital chromosomal aberration.” Id. at 18.

Petitioners, however, do not provide any evidence to support their contentions that

respondent’s actions prevented them from filing a timely claim in the thirty-six months after W.J.

first began to show signs of autistic spectrum disorder or how the fraudulent defense pertains to

this case. Around the time of W.J.’s vaccination and autism diagnosis, more than 5,100 petitions

were filed under the Vaccine Act alleging that vaccines caused autism. See Snyder, 2009 WL

332044 at *4 n.12.

There is no evidence here to suggest that fraud or concealment prevented petitioners from

timely filing claims on behalf of W.J. for allegations of autism following vaccination. Thus, the

undersigned does not agree that respondent’s “categorical denials” had the “effect of misleading

and discouraging parents with children who have autism-like symptoms” from filing petitions, or

that this claim warrants “equitable tolling” based on any assertion of fraud. Petition at 16.

14

Petitioners cite Holmberg v. Armbrecht, an equity case where shareholders and creditors of the

Southern Minnesota Joint Stock Land Bank of Minneapolis sued the defendant for fraudulently

concealing his shareholder interest, which delayed petitioners from bringing suit. 327 U.S. 392,

393 (1946).

19

Therefore, in assessing all inferences from the available evidence in petitioner’s favor,

petitioners have failed to show respondent’s actions prevented them from filing a timely petition.

6. Petitioner’s Fourteenth Amendment Claim

Petitioners contend, “[t]o consider equitable tolling for K.G.’s drug and alcohol induced

mental incapacity, but not for [W.J.’s] congenital genetically-caused mental incapacity, would be

disability discrimination in violation of [W.J.’s] Fourteenth Amendment rights.” Petition at 18.

Petitioners cite City of Cleburne, 473 U.S. 432, stating disparate treatment between neuro-

normal and mentally incapacitated individuals violates the Fourteenth Amendment’s Equal

Protection clause. Id. “The equal protection clause of the Fourteenth Amendment dictates that

[W.J.] receive the same consideration for equitable tolling that was offered to K.G.” Id. at 19.

But petitioners fail to comprehend that they, as parents and legal representatives of W.J., had the

right and responsibility to timely file a petition. They have not asserted that they have any

disability or mental incapacity. Thus, their argument based on the Fourteenth Amendment fails.

Further, under the Vaccine Program, the Vaccine Act’s limitation period is rationally

related to the dual legitimate legislative purposes undergirding the Vaccine Act: (1) the settling

of claims quickly and easily, and (2) the protecting of manufacturers from uncertain liability

making “production of vaccines economically unattractive, potentially discouraging vaccine

manufacturers from remaining in the market.” See Cloer, 85 Fed. Cl. 141 (2008) (quoting Brice,

240 F.3d at 1368).

Highlighting in Cloer that the “neutral” nature of the 36-month statute of limitations

“treats all petitioners equally,” the Federal Circuit appears to have affirmed, without overt

discussion, the Court of Federal Claims’ use of rational basis review to conclude that the

statutorily prescribed limitations period is rationally related to the “legitimate legislative

purposes undergirding the Vaccine Act.” Cloer, 85 Fed. Cl. at 151-52 (quoting Brice, 240 F.3d

at 1368). See id. (“[T]here can be no question that applying the Vaccine Act’s limitation period

is rationally related to the dual legitimate legislative purposes undergirding the Vaccine Act: (1)

the settling of claims quickly and easily, and (2) the protecting of manufacturers from uncertain

liability [that makes the] ‘production of vaccines economically unattractive, [and] potentially

discourag[es] vaccine manufacturers from remaining in the market.’”) (internal footnote

omitted). The Court of Federal Claims further stated in Cloer that “Congress is not obligated to

extend the coverage of the Vaccine Act . . . to all person[s] suffering a vaccine-related injury.”

Id. at 150 (citing Leuz v. Sec’y of Health & Hum. Servs., 63 Fed. Cl. 602, 608 (2005)).

The petitioners have not shown that they fall within a protected class of persons. The

claims of all petitioners, regardless of the alleged injury, must be evaluated consistent with the

terms of the Vaccine Act, provided the claimants have met the threshold requirement of filing the

petition within the time limit prescribed by the statute. Here, petitioners have failed to file within

the appropriate time frames set forth under the statute.

VII CONCLUSION

It is clear from the medical records that W.J. has struggled with illness, and the

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undersigned has great sympathy for what he and his parents have endured due to his illness. The

undersigned’s decision, however, cannot be decided based upon sympathy, but rather on the

evidence and law.

Accordingly, for all the reasons stated above, in assessing all inferences from the

available evidence in petitioner’s favor, the undersigned GRANTS respondent’s motion to

dismiss and this case is dismissed for failure to timely file the petition within the statute of

limitations. In the absence of a timely filed motion for review pursuant to Vaccine Rule 23, the

Clerk of Court SHALL ENTER JUDGMENT in accordance with this Decision.

IT IS SO ORDERED.

s/Nora Beth Dorsey

Nora Beth Dorsey

Special Master

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