                                                 ORIGINAL                            REISSUED FOR PUBLICATION
                                                                                                      AUG 3 2018
                                                                                                      OSM
                                                                                          U.S. COURT OF FEDERAL CLAIMS
               3Jn tbe Wniteb ~tate5 q[:ourt of jfeberal q[:laiu1s
                                    OFFICE OF SPECIAL MASTERS                                          FI LED
                                                  No.17-1040V
                                               (not to be published)                                  JUL - 6 2018
                                                                                                    U.S. COURT OF
                                                                                                   FEDERAL CLAIMS
******* ** * ** ** ** ** * * * * * **                                    Special Master Corcoran
TIFFANY S. GAITER on behalfofD.S.G., *
a minor,                             *                                   Filed: July 6, 2018
                 Petitioner,         *
          V.                                           *
                                                       *
SECRETARY OF HEALTH                                    *
AND HUMAN SERVICES,                                    *
                                *
                Respondent.     *
                                *
**** ** ** *** ** ** **** *** ***

    T(ffany Gaiter, prose, Saginaw, MI, for Petitioner.

    Heather Pearlman, U.S. Dep't of Justice, Washington, DC, for Respondent.

                                 DECISION DISMISSING PETITION 1

           On August 2, 2017, Tiffany Gaiter, on behalf of her minor son, D.S.G., filed a prose
    petition seeking compensation under the National Vaccine Injury Compensation Program (the
    "Vaccine Program"). 2 In it, Petitioner alleged that (a) the measles-mumps-rubella ("MMR")
    vaccine D.S.G. received on May 22, 2002, caused him to develop an autism spectrum disorder
    ("ASD"); and (b) a second dose of the MMR vaccine he received in July 2014 significantly
    aggravated his existing developmental condition. Petit~on at 1. The Petition was accompanied

1
  Although I am not formally designating this Decision for publication, it will nevertheless be posted on the Court of
Federal Claims's website in accordance with the E-Government Act of2002, 44 U.S .C. § 3501 (2012). This means
the Decision will be available to anyone with access to the internet. As provided by 42 U.S.C. § 300aa-12(d)(4)(B),
however, the pa11ies may object to the Decision's inclusion of certain kinds of confidential information. Specifically,
under Vaccine Rule 18(b), each party has fourteen days within which to request redaction "of any information
furnished by that pa1fy: (1) that is a trade secret or commercial or financial in substance and is privileged or
confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly
unwaiTantec,I invasion of privacy." Vaccine Rule 18(b). Otherwise, the Decision in its present form will be available.
Id.

2The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended, 42 U.S.C. §§ 300aa-10 through 34 (2012) [hereinafter "Vaccine Act" or "the
Act"]. Individual section references hereafter will be to § 300aa of the Act.
    by some medical records.

           The month after the case's initiation, Respondent filed a motion to dismiss the claim,
    arguing that any claim based upon the 2002 vaccination was time-barred, and that Petitioner
    could not otherwise establish that the 2014 dose of MMR vaccine D.S.G. received had
    significantly aggravated his ASD. See Motion, filed September 20, 2017 (ECF No. 7). Petitioner
    responded to the motion on October 19, 2017, arguing that certain acts of federal governmental
    agencies (in pmiicular, the Centers for Disease Control ("CDC")) had intentionally obscured
    from public view the capacity of the MMR vaccine to cause autism in certain demographic
    groups, and that this (corroborated with her medical records and allegations) supported her
    claim. Opposition, dated October 19, 2017 (ECF No. 8).The matter was subsequently assigned
    tome.

           In February 2018, I held a status conference with the parties, at which time I outlined my
    concerns to Petitioner about her claim's reasonable basis. See Order, dated February 7, 2018
    (ECF No. 13). I specifically explained to Petitioner that any claim based on a vaccine received
    in 2002 was very likely time-barred, and that her arguments about government misconduct as
    justifying tolling of the three-year statute of limitations applicable to Vaccine Act claims had
    been unsuccessfully advanced by other petitioners before. Order at 1. I also informed her that,
    given the extensive prior review in the Vaccine Program of claims that the MMR vaccine was
    associated with autism and their overall lack of success, a significant aggravation claim was not
    likely to be successful. Id at 2. 3 I therefore ordered Petitioner to indicate to me by March 30,
    2018, how she wished to proceed with her claim. Id at 3. Petitioner responded to my Order on
    March 19, 2018, referring only to allegations contained in her Petition and prior response to the
    dismissal motion. See March 19, 2018 filing (ECF No. 15).

           I issued an Order on April 12, 2018, dismissing the pmi of Petitioner's claim pertaining
    to the 2002 vaccination as time-barred. Order, dated April 12, 2018 (ECF No. 19). I subsequently
    held a second status conference with the pmiies, at which time I reiterated to Petitioner my view
    that the remaining significant aggravation claim (based on the 2014 vaccination) was timely but
    lacked reasonable basis, for the reasons previously discussed. Order, dated May 2, 2018, at 1
    (ECF No. 21). I therefore ordered Petitioner to show cause why the remaining claim should not
    be dismissed. Id at 2. I specifically indicated that Petitioner needed to "cite all favorable law
    mid precedent suppo1iing her claim" in any such filing. Id

          Ms. Gaiter filed a response to my Order on June 11, 2018. See Response (ECF No. 23).

3The special masters presiding over the test cases in the Omnibus Autism Proceedings (the "OAP"), after extensive
research and testimony, rejected theories of causation connecting the MMR vaccine to autism. See e.g., Cedillo v.
Sec'y a/Health & Human Servs., No. 98-916V, 2009 WL 331968 (Fed. Cl. Spec. Mstr. Feb. 12, 2009), mot.for review
den 'd, 89 Fed. Cl. 158 (2009), ajf'd, 617 F.3d 1328 (Fed. Cir. 2010); Dwyer v. Sec'y of Health & Human Servs., No.
03-1202V, 2010 WL 892250 (Fed. Cl. Spec. Mstr. Mar. 12, 2010).


                                                         2
 In it, she expresses frustration with my reaction to her claim, and my refusal to allow its
 development despite the prior on-point decisions pertaining to autism and vaccines. She also
 reiterates her prior arguments about alleged CDC misconduct in hiding evidence pertaining to
 causation, alleging that my April dismissal of her 2002-based claim was unfair. Response at 1.
 Petitioner did not, however, cite any record evidence she maintained could support her claim,
 nor did she make any effort to distinguish the substantial body of case law that I had previously
 informed Petitioner made her claim unviable. 4

        Respondent filed a brief reacting to Petitioner's response on June 27, 2018. Reply (ECF
 No. 25). He observes that Petitioner's response did not comply with my earlier Show Cause
 Order, and therefore (in accordance with his September 2017 motion to dismiss) the remaining
 significant aggravation claim warranted dismissal. Reply at 1-2.

                                                    ANALYSIS

        To receive compensation under the Vaccine Program, a petitioner must prove either (1)
 that he suffered a "Table Injury" - i.e., an injury falling within the Vaccine Injury Table -
 corresponding to one of his vaccinations, or (2) that he suffered an injury that was actually
 caused by a vaccine. See§§ 13(a)(l)(A) and 1 l(c)(l). An examination of the record, however,
 does not uncover any evidence that D.S.G. suffered a "Table Injmy." Further, the record does
 not contain sufficient persuasive evidence establishing that D.S.G.'s autism or developmental
 problems were significantly aggravated by the vaccinations received. (see § 11 (c)(1 )(C)(i)-(ii)).

        After careful review of the medical records, and Petitioner's filings I conclude that
 Petitioner will not be able to establish preponderant evidence in favor of her significant
 aggravation claim, and therefore the matter should not proceed, even if expert reports have not
 yet been obtained. My decision is rooted in both the facts of this case as well as applicable
 decisions in previously-litigated matters involving causation theories highly similar to the
 present. See ECF Nos. 13 and 21. The theory that vaccines can cause autism or developmental
 injuries (in the absence of proof of encephalopathy) have rarely been successful; I find no
 compelling reason here to diverge from those holdings, as Petitioner has not offered evidence

4 Petitioner's responses to Respondent's Motion to Dismiss (ECF Nos. 8, 12) in the fall of 2017 (and early 2018) are

similarly devoid of any persuasive argument linking D.S.G.'s 2014 MMR vaccine to a significant aggravation of his
existing autism diagnosis, or differentiating the present matter from claims litigated under similar circu1nstances.
Rather, in both, Ms. Gaiter maintains that the alleged fraudulent withholding of information by the CDC (suggesting
a link between the MMR vaccine and autism in African American males under 36 months of age) supports an award
of co1npensation in the instant case. At most, Petitioner differentiates her claim from similar, unsuccessful autis1n
claims by arguing that past MMR cases did not take into account the alleged fraudulent withholding of information
by the CDC. She also attempts to address the A/then prongs by arguing that information excluded from the CDC study
supports entitlement via a causation-in-fact claim. However, allegations relating to fraudulent activity by a government
agency is not sufficient to satisfy the A/then three-prong test. And in any event, the document cited in support (ECF
No. 8-3) is a state1nent released by a law firm, and includes no medical or scientific discussion. Petitioner's responses
otherwise cite no supportive record evidence corroborating a vaccine-induced significant aggravation of D.S.G.'s
existing autis1n diagnosis.

                                                           3
    showing why D.S.G. 's case is different from those already decided, nor has she suggested a
    novel theory not previously considered. Moreover, there is a lack of record evidence (as well as
    treater statements) supporting the conclusion that D.S.G.'s autism was made worse by his 2014
    MMR vaccine. At best, the record suggests that Petitioner herself informed treaters that D.S.G.
    exhibited a worsening of symptoms following the MMR vaccine. See, e.g., Ex. 11 (7 /31/2003
    appointment noting a parental concern for speech delay and regression, but making no mention
    of any vaccination). 5 However, such evidence does not establish a causal link between an injury
    and a vaccination.

            Furthermore, the decision to deny compensation in claims alleging a significant
    aggravation of autism following the receipt of a vaccination is consistent with prior decisions of
    other special masters. See, e.g., Hooker v. Sec '.Y of Health & Human Servs., No. 02-4 72V, 2016
    WL 3456435, at *45 (Fed. CL Spec. Mstr. May 19, 2016) (causation theory relating to a
    significant aggravation of an existing autism diagnosis was "not at all persuasive"); Long v.
    Sec '.Y ofHealth & Human Servs., No. 08-792V, 2015 WL 1011740, at *18 (Fed. Cl. Spec. Mstr.
    Feb. 9, 2015) (petitioner did not suffer from a vaccine-induced significant aggravation of an
    existing autism diagnosis where "worsening [of symptoms] seem[ed] likely to have been the
    result of the normal course of autism"); Richard v. Sec '.Y of Health & Human Servs., No. 02-
    877V, 2010 WL 2766742, at *5 (Fed. Cl. Spec. Mstr. May 3, 2010) (petitioners "failed to present
    ... facts that plausibly suggest[ ed]" a worsening of an existing autism diagnosis) (internal
    quotation marks omitted)). As noted above, Petitioner has offered no evidence distinguishing
    the present matter from cases decided under similar circumstances, despite my allowing her the
    opportunity to do so.

           Given the above, the claim as alleged lacks reasonable basis, and is appropriately
    dismissed. In so doing, I am aware of Petitioner's disappointment, and her fervent desire
    (motivated by a reasonable wish to provide good care for D.S.G.) to proceed with the claim. But
    I must balance such concerns against the waste of judicial resources that will be occasioned by
    allowing this matter to go forward. My experience and reasoned judgment tells me (based on
    review of the record) that this claim will not succeed where countless others failed. Because
    Petitioner has not - despite due opportunity - shown otherwise, I must DISMISS her claim.

          In the absence of a timely-filed motion for review (see Appendix B to the Rules of the
    Court), the Clerk SHALL ENTER JUDGMENT in accordance with this decision. 6


5 Of note, Exhibit 11 appears to be the only medical record cited in Petitioner's briefs in support of her claim (including
the show cause response and the responses to Respondent's Motion to Dismiss filed in the fall of2017). See ECF No.
8 at 14. Moreover, Petitioner's assertion of a worsening of symptoms appears to be directed toward D.S.G. 's initial
MMR vaccination in 2002, and not the vaccination received in 2014 (as the record is from 2003). In any event, the
record is not supportive of any significant aggravation injury following the 2014 vaccination.

6 Pursuant to Vaccine Rule 1 l(a), the parties may expedite entry of judgment by filing a joint notice renouncing their

right to seek review.

                                                            4
IT IS SO ORDERED.



                        Brian . Corcoran
                        Special Master




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