Phillips v. Secretary of Health and Human Services ( 2017 )

REISSUED FOR PUBLICATION
JAN 3 2017
OSM
U.S. COURT OF FEDERAL CLAIMS
I
APPLICABLE STATUTORY PROVISION
The statutory deadlines for filing Program petitions are provided at § 300aa-16.
With respect to vaccinations administered after October 1, 1988, as was the vaccine at
issue here,§ 300aa-16(a)(2) provides that a Program petition must be filed within 36
months of the onset of the first symptom of the injury alleged to have been vaccine-
caused.2
II
PROCEDURAL HISTORY AND
FACTUAL ALLEGATIONS
On August 23, 2016, Aprises Phillips and Ivan Phillips, Sr. ("Petitioners"), acting
prose, filed a Petition alleging that their daughter, Ivana Phillips, was injured by a
vaccine or vaccines listed on the Vaccine Injury Table. See § 14. This Petition (ECF No.
16-1044) was filed in association with two other claims (see ECF Nos. 16-1046 and
16-1045), which were filed on behalf oflvana's siblings (Ivan, and Ivanka). All tlu·ee of
these petitions present essentially the same facts, with each containing information
pertaining to all three siblings. Ivana's Petition (ECF. No. 16-1044) stated that Ivana's
"conesponding records" would be filed to supp01t this claim (Petition, p. 2); however, no
medical records have been filed.
Petitioners state that "[w]e are requesting compensation for our minor children, 9
year old Ivan Phillips, 7 year old Ivana Phillips, and 6 year old Ivanka Phillips, under the
National Vaccine Injury Compensation Program for injuries, including encephalopathy,
resulting from adverse effects of vaccinations, specifically, but not limited to the MMR
vaccination Ivan Phillips received on 8/25/2008 and the MMR vaccination Ivan Phillips
received on 12/31/2008." (Petition, p. 1.)3
Ivana Phillips was born on December 18, 2008. (Petition, p. 2.) Petitioners claim
that about two weeks later, when Ivana's brother, Ivan, received an MMR (measles-
mumps-rubella) vaccination on December 31, 2008, Ivan "became sick with measles
2 See§ 300aa-16(a)(2)("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.").
3 Ivan's vaccination on August 25, 2008, occurred almost four months before his
sister Ivana was born. Ivan's vaccination on December 31, 2008, occurred thirteen days
after Ivana was born.
2
symptoms," and then "Ivana became sick with measles symptoms" in January 2009,
"through exposure." (Id.) According to the Petition, on January 22, 2009, when Ivana
was about one month old, she was examined "by Dr. Ryan Walley, at Redmon\ Pediatric
Associates, P.C. in Birmingham, AL, and she was sick with measles symptoms." (Id.)
Ivana's mother alleges that Dr. Walley documented that Ivana "had a rash on her face
that day, and he told Ivan Sr. and I that what she had was viral." (Jd.)4
The Petition states that before these events, Ivana had been "developing
normally," but then Ivana "got sick due to an exposure," and Ivana stopped developing
normally. (Petition, p. I.) Based on these allegations, Petitioners argue that they are
eligible for compensation, on Ivana's behalf, "for injuries, including encephalopathy,
resulting from adverse effects of vaccinations." (Id.) The effects oflvana's alleged
encephalopathy "include problems with fine and gross motor skills/functioning, behavior
(psychological), and learning (cognitive)," as well as "reculTent infections." 5 (Jd.)
Fmther, Petitioners claim that Ivana's adverse symptoms persisted for more than six
months, and that she continues to have developmental problems. (Id., p. 2.)
Petitioners report that the treating pediatrician, Dr. James Womack, 6 informed
them that "the MMR vaccine couldn't have caused the problems listed above, nor autism
like behavior." (Petition, p. 2.) Fmther, Petitioners state that "[f]or a long time we were
led to believe that the MMR vaccinations weren't the cause for the children's injuries."
(Id.) Petitioners asse1t that as a result of these assurances, they did not file their Petition
until years later, when they were "surprised to find out" that compensation might be
available to them under the Vaccine Act. 7 (Id.) For this reason, and other delays related
4
As noted previously, neither Dr. Walley's medical records, nor any other records,
have been filed in this case.
5
The Petition states that "Prior to the exposure causing Ivana's sickness with
measles symptoms she was in good health, suffered no medical conditions with the
exception of dry skin also referred to as eczema, and did not have the above listed
problems, which we're seeking compensation for." (Petition, p. 2.)
6
Subsequently, Petitioners, in their letter filed on September 29, 2016, stated that
the doctor's name is Wamack, not Womack.
7
This Decision concerns the issue of whether or not the Petition was timely filed.
However, it should be noted that there have been many decisions that reject the claim that
the MMR vaccination can cause autism spectrum disorders or developmental delay. See,
e.g., Cedillo v. HHS, No. 98-916V, 2009 WL 331968 (Fed. Cl. Spec. Mstr. Feb. 12,
2009) ofj"d, 89 Fed. Cl. 158 (2009), ajj"d, 617 F.3d 1328 (Fed. Cir. 2010); Hazlehurst v.
HHS, No. 03-654V, 2009 WL 332306 (Fed. Cl. Spec. Mstr. Feb. 12, 2009), ajf'd, 88 Fed.
Cl. 473 (2009), ajf'd, 604 F.3d 1343 (Fed. Cir. 2010); Snyder v. HHS, No. Ol-162V, 2009
WL 332044 (Fed. Cl. Spec. Mstr. Feb. 12, 2009), ajf'd, 88 Fed. Cl. 706 (2009).
Therefore, even if the statute of limitations did not require dismissal of this case, it is
extremely unlikely that Petitioners would be entitled to receive compensation under the
Vaccine Act.
3
to obtaining medical records and scheduling medical appointments, the Petition was not
filed until August 23, 2016. (Id.)
On September 29, 2016, Petitioners filed a supplemental statement providing
further information concerning events that occurred in 2010 and later. (See Petitioners'
Letter, ECF No. 4, filed Sept. 29, 2016.)
Ill
DISCUSSION
Petitioners contend that "Ivana became sick with measles symptoms" in January
2009, "through exposure" to her brother Ivan while he was ill with measles symptoms
allegedly caused by his MMR vaccination on December 31, 2008. (Petition, p. 1.)
Petitioners also state that before "the exposure causing Ivana Phillips' sickness with
measles symptoms, she was in good health." (Id.) However, after Ivana "got sick due to
exposure," in January 2009, Ivana "stopped" developing normally. (Id.) Thus, according
to Petitioners' own representations, Ivana's symptoms, which Petitioners allege were
caused by vaccines, first became apparent in January of2009.
The Vaccine Act, at§ 300aa-16(a)(2), requires that a Program petition with
respect to a vaccination that was administered after October 1, 1988, must be filed within
36 months after the occurrence of the first symptom of the alleged injury. However, the
Petition under consideration here was filed on August 23, 2016, more than seven years
after the first appearance ofivana's symptoms. 8 Therefore, under a straightforward
application of§ 300aa-J 6(a)(2), this petition is clearly time-barred.
The Petition acknowledges that Ivana's symptoms appeared more than 36 months
before the Petition was filed, but requests that I "extend the deadline for filing this case." 9
(Petition, p. 2.) Further, Petitioners' Letter argues that they were unable to file their
Petition earlier because they "had no idea that the National Vaccine Injury Compensation
Program existed." (Petitioners' Letter, ECF No. 4, filed Sept. 29, 2016.)
The "extension" of the filing deadline that Petitioners desire could be considered a
request for "equitable tolling" of the statute of limitations set forth in the Vaccine Act.
Such tolling, however, is allowed only in very limited circumstances. Cloer v. HHS, 654
8
Other than alleging that Ivana manifested symptoms of measles in January of
2009, Petitioners do not propose a specific date when the alleged onset of symptoms of
an "encephalopathy" occurred, or when the other symptoms of developmental delay
became apparent.
9
Petitioners request that "considering all this along with their symptoms being
older than three years, Ivan Sr. and I are asking that you extend the deadline for filing this
case." (Petition, p. 2.)
4
F.3d 1322, 1344 (Fed. Cir. 2011). In Cloer, the U.S. Court of Appeals for the Federal
Circuit affirmed that the statute of limitations begins to run on the "date of occunence of
the first symptom or manifestation of onset of the vaccine-related injury." Id. at 1325.
This date is dependent on when the first sign or symptom of injury appears, not when a
petitioner discovers (or suspects) a causal relationship between the vaccine and the
injury. Id. at 1339. Nor is the filing deadline contingent on when a Petitioner becomes
aware of the existence of the Vaccine Program.
The Cloer opinion also states that equitable tolling of the statute of limitations
may possibly occur, but only in "extraordinary circumstances," such as when a petitioner
files a timely but defective pleading, or is the victim of fraud or duress. Id. at 1344-45
(citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); Irwin v. Dep 't of Veterans
Affairs, 498 U.S. 89, 96 (1990)). Equitable tolling may not apply simply because the
petitioner was unaware of a possible causal link between the vaccination and the
vaccinee's injury.
Petitioners' Letter, filed on September 29, 2016, does not include any information
demonstrating that lvana's Petition was timely filed , nor does it offer any explanation that
would suggest that equitable tolling is appropriate in this case. In fact, Petitioners' Letter
does not even mention Ivana or the onset of her alleged injury.
Accordingly, I conclude that Petitioners have failed to satisfy the requirements of
42 U.S.C. § 300aa-16(a)(2), and therefore the Petition must be dismissed as untimely
filed.
IV
CONCLUSION
It is, of course, very unfortunate that Ivana suffers from a debilitating chronic
condition. She is certainly deserving of sympathy for that condition. As the above
discussion indicates, however, I have no choice but to conclude that this petition must be
dismissed, because it was not timely filed. Absent a timely motion for review of this
Decision, the Clerk of this Court shall enter judgment accordingly.
IT IS SO ORDERED.
George L. Hastings, Jr.
Special Master
5