W.J. v. Sec'y of Health & Human Servs.
| Decision Date | 30 March 2022 |
| Docket Number | 21-1342V |
| Parties | W.J., by his parents and legal guardians, R.J. and A.J., Petitioners, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. |
| Court | U.S. Claims Court |
W.J., by his parents and legal guardians, R.J. and A.J., Petitioners,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.
No. 21-1342V
United States Court of Federal Claims
March 30, 2022
UNPUBLISHED
Dismissal Decision; Measles, Mumps, and Rubella ("MMR") Vaccine; Encephalopathy; Statute of Limitations; 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.
DECISION [1]
Nora Beth Dorsey, Special Master.
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-
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
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
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."
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...
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