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-l 6.
With respect to vaccinations administered after October I, 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, Ivanka Phillips, was injured by a
vaccine or vaccines listed on the Vaccine Injury Table. See § 14. This Petition (ECF No.
16-1045) was filed in association with two other claims (see ECF Nos. 16-1046 and
16-1044), which were filed on behalfoflvanka's siblings (Ivan, and Ivana). All three of
these petitions present essentially the same facts, with each containing information
pertaining to all three siblings. Ivanka's Petition (ECF. No. 16-1045) stated that Ivanka's
"corresponding records" would be filed to support 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. I.)
Ivanka Phillips was born on March I, 2010. (Petition, p. 2.) Petitioners claim that
about two months after Ivanka's birth, her brother Ivan "became sick with measles
symptoms," and then "Ivanka became sick with measles symptoms" in May of2010,
"through exposure." 3 (Id.) According to the Petition, on May 21, 2010, when Ivanka was
2 See§ 300aa-16(a)(2)("In the case of* * *a vaccine set forth in the Vaccine Injury
Table which is administered after October I, 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 The Petition states that "[a]fter Ivan became sick with measles symptoms in 5/10
Ivanka became sick with measles symptoms in 5/10 through exposure." (Petition, p. 2.)
2
about eleven weeks old, she was examined "by medical personnel at Children's
Hospital/Children's of Alabama in Birmingham, AL, and she was sick with measles
symptoms." (Id.) Allegedly, the medical staff at Children's Hospital documented that
Ivanka "had a rash on her face that day as well as her measles symptoms." 4 (Id.)
The Petition states that before these events, Ivanka had been "developing
normally," but then Ivanka "got sick due to an exposure" to Ivan's illness, and Ivanka
stopped developing normally. (Petition, p. 1.) Based on these allegations, Petitioners
argue that they are eligible for compensation, on Ivanka's behalf, "for injuries, including
encephalopathy, resulting from adverse effects of vaccinations." (Id.) The effects of
Ivanka's alleged encephalopathy "include problems with fine and gross motor
skills/functioning, behavior (psychological), and learning (cognitive)," as well as
"recun-ent infections." 5 (Id.) Further, Petitioners claim that Ivanka's adverse symptoms
persisted for more than six months, and that she continues to have developmental
problems. (Id., p. 2.)
Petitioners report that 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.) Further, 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 assert 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 to
4
As noted previously, neither the Children's Hospital medical records, nor any
other records have been filed in this case.
5
The Petition states that "Prior to the exposure causing lvanka's sickness with
measles symptoms she was in good health, suffered no medical conditions with the
exception of dry skin also refe1Ted 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) aff'd, 89 Fed. Cl. 158 (2009), ajf'd, 617 F.3d 1328 (Fed. Cir. 2010); Hazlehurst v.
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. HHS, No. 01-162V, 2009
WL 332044 (Fed. Cl. Spec. Mstr. Feb. 12, 2009), ajf'd, 88 Fed. CL 706 (2009).
Therefore, even ifthe 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
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.)
III
DISCUSSION
Petitioners contend that Ivanka's brother Ivan suffered adverse effects from
vaccinations administered to him on August 25, 2008, and December 31, 2008. (Petition,
p. 1.) Petitioners also allege that Ivanka Phillips suffered injuries that were caused by
exposure to her brother Ivan, while he was suffering from those adverse effects caused by
vaccinations. (Id.) As an initial matter, it should be noted that Ivan's vaccinations on
August 25, 2008, occurred eighteen months before his sister Ivanka was born; and Ivan's
vaccinations on December 21, 2008, occurred fourteen months before Ivanka was born.
Thus, the vaccinations administered to Ivan, which are identified in the Petition as the
cause of Ivanka's injuries, do not have a proximate temporal relationship to Ivanka's
injuries. 8
The only pleading in the Petition that links Ivan's vaccinations to Ivanka's
condition is the tenuous claim that Ivanka was exposed to Ivan when he suffered a second
manifestation of measles symptoms more than fifteen months after his vaccinations.
(Petition, p. 2.) Specifically, Petitioners claim that in May of2010, Ivanka's brother Ivan
"became sick with measles symptoms" and then "lvanka became sick with measles
symptoms in 5/10 through exposure." (Id.) Petitioners also state that "[p]rior to the
exposure causing Ivanka Phillips' sickness with measles symptoms, she was in good
health" and did not have any of the problems related to the alleged encephalopathy. (Id.,
p. 2.) However, after Ivanka "got sick due to exposure," to Ivan's illness, Ivanka
"stopped" developing normally. (Id., p. 1.) Thus, according to Petitioners' own
representations, Ivanka's adverse symptoms, which Petitioners allege were caused by
vaccines, first became apparent sometime after May 2010. 9
8 Petitioners' burden is to show by preponderant evidence that a vaccination caused
Ivanka's injury by providing:"(!) a medical theory causally connecting the vaccination
and the injury; (2) a logical sequence of cause and effect showing that the vaccination
was the reason for the injury; and (3) a showing of a proximate temporal relationship
between vaccination and ifliury." A/then v. HHS, 418 F.3d 1274, 1278 (Fed. Cir. 2005)
(Emphasis added.). Based on the lack ofa proximate temporal relationship with Ivan's
vaccinations, it is clear that Petitioners have failed to link Ivanka's alleged symptoms of
measles and/or developmental delay to the MMR vaccine or any other vaccine.
9 Other than alleging that Ivanka manifested symptoms of measles in May of2010,
Petitioners do not propose a specific date when the alleged onset of symptoms of her
4
The Vaccine Act, at§ 300aa-16(a)(2), requires that a Program petition with
respect to a vaccination that was administered after October I, 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 six years after
the first appearance oflvanka's symptoms. Therefore, under a straightforward
application of§ 300aa-16(a)(2), this petition is clearly time-barred.
The Petition acknowledges that Ivanka's symptoms appeared more than 36
months before the Petition was filed, but requests that I "extend the deadline for filing
this case." 10 (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 Vaccine Act's statute of limitations. Such tolling,
however, is allowed only in very limited circumstances. Cloer v. HHS, 654 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 occurrence 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 'I 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 Ivanka's Petition was timely filed, nor does it offer any explanation
that would suggest that equitable tolling is appropriate in this case. (See Petitioners'
Letter, ECF No. 4, filed Sept. 29, 2016.)
alleged "encephalopathy" occurred, or when the other symptoms of developmental delay
became apparent.
10 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.)
5
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 Ivanka suffers from a debilitating chronic
condition. She is ce11ainly 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.
~r/I~
4Jeorge L. Hastings, Jr.
/
Special Master
6