In the United States Court of Federal Claims
                             OFFICE OF SPECIAL MASTERS

*********************
ANTHONY RAGUSA,          *
                         *                          No. 14-32V
             Petitioner, *                          Special Master Christian J. Moran
                         *
v.                       *
                         *                          Filed: September 7, 2017
SECRETARY OF HEALTH      *
AND HUMAN SERVICES,      *                          Dismissal decision;
                         *                          Statute of limitations;
             Respondent. *                          42 U.S.C. § 300 aa-16(a)(2).
*********************

           UNPUBLISHED DECISION DENYING COMPENSATION1

       Anthony Ragusa filed a petition under the National Childhood Vaccine
Injury Act, 42 U.S.C. §300a-10 through 34 (2012) on January 15, 2014. The
petition alleged that he suffered from transverse myelitis as a result of the influenza
(“flu”) vaccination he received on November 30, 2010. Mr. Ragusa cannot prevail
because he filed the petition outside of the statute of limitations of the Vaccine Act.

    I.   Procedural History

       Represented by an attorney, Mark Kreuger, Mr. Ragusa filed a petition on
January 15, 2014. Mr. Ragusa alleged that he suffered transverse myelitis caused-
in-fact by the flu vaccine he received on November 30, 2010. Petition at 1. Mr.
Ragusa stated that on January 22, 2011, he presented to the hospital with “shakes,
night sweats, barely able to walk, itchiness, tingling in waist, groin, legs,
headaches, side, back and leg pain, no balance and energy.” Petition. Mr. Ragusa
filed medical records over the next few months, as required by 42 U.S.C. § 300aa-

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  The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services), requires that the Court post this ruling on its website.
Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing redaction of
medical information or other information described in 42 U.S.C. § 300aa-12(d)(4). Any
redactions ordered by the special master will appear in the document posted on the website.
11(c). The respondent filed a status report requesting additional medical records to
support onset as well as to complete the record. Resp’t’s Status Rep., filed May
29, 2014. Petitioner amended his petition to state that his symptoms of transverse
myelitis began in mid-January 2011. See Am. Pet., filed Additional medical
records were obtained over the next several months and filed September 8, 2014,
completing the record.

       Respondent filed a combined Rule 4 report and motion to dismiss on
October 31, 2014. In this report, respondent did not dispute the diagnosis of
transverse myelitis but asserted that the medical records indicated that the claim
was barred as untimely filed. Resp’t’s Rep’t, filed Oct. 31, 2014, at 2. Respondent
argued that while the amended petition alleged symptoms of transverse myelitis
that began January 15, 2011, the medical records documented an earlier onset. Id.
8-9. A status conference was held on December 2, 2014, to discuss respondent’s
report and motion to dismiss. The resulting order required petitioner to file
affidavits regarding onset of symptoms and any additional affidavits. See order,
filed Dec. 2, 2014.

       Petitioner filed his affidavits. Exhibits 12, 13. During the ensuing status
conference, the parties agreed that an onset hearing was needed. Order, filed Jan.
22, 2015. An onset hearing was held on April 9, 2015. The primary issue was
when Mr. Ragusa first started to suffer symptoms associated with transverse
myelitis. Mr. Ragusa and an additional witness appeared via videoconference.
Following the hearing, petitioner filed additional fact evidence and medical records
to support his claim. Exhibits 23-37. The parties filed proposed findings of fact
over the next few months.

       The undersigned issued Findings of Fact. The undersigned found that Mr.
Ragusa’s painful urination, numbness, and pain in his legs began around January 4,
2011, around January 8, 2011, and on January 16, 2011 respectively. Ragusa v.
Sec’y of Health & Human Servs., No. 14-32V, 2015 WL 6150880, at *2-3 (Fed.
Cl. Spec. Mstr. Sept. 18, 2015). During the ensuing status conference to discuss
these findings, petitioner stated that a neurologist was being consulted regarding an
alternate cause for the symptoms and that an equitable tolling argument would be
considered if the painful urination was found to be due to transverse myelitis.
Order, filed Oct. 6, 2015.

      On November 4, 2015, petitioner filed a status report indicating that an
expert report would not be filed and next steps were being considered. Mr.
Kreuger then informed the undersigned that he would be withdrawing from the
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case and Mr. Ragusa wished to proceed with another attorney or pro se. Pet’r’s
Status Rep., filed Nov. 17, 2015. A status conference was held on December 2,
2015, during which Mr. Ragusa, Mr. Kreuger, and respondent participated. The
undersigned discussed Mr. Ragusa’s options in light of Mr. Kreuger’s intention to
withdraw. Mr. Ragusa expressed his intent to proceed pro se to which the
respondent stated he may challenge reasonable basis going forward. Order, filed
Dec. 4, 2015.

         On April 21, 2016, Mr. Kreuger filed his motion to withdraw indicating in
the certificate of service that the motion was provided to Mr. Ragusa. The
undersigned granted Mr. Krueger’s motion to withdraw and ordered Mr. Ragusa to
file a status report indicating whether he would be retaining a new attorney or
filing an expert report. Order, filed May 11, 2016.

       Over the next several months, Mr. Ragusa filed status reports stating that an
attorney had not been retained. The case did not progress. On January 12, 2017,
the undersigned ordered Mr. Ragusa to obtain a report from an expert presenting
the opinion that the influenza vaccine caused him to suffer transverse myelitis. Mr.
Ragusa filed the report of Dr. Herman Dick on April 4, 2017. Exhibit 20. This
report stated that the painful urination was not a manifestation of transverse
myelitis, but due to a prostate infection. Dr. Dick also stated that the transverse
myelitis could have been caused by the November 23, 2010 upper respiratory
infection or November 30, 2010 flu vaccination. Id.

      A status conference was held to discuss Dr. Dick’s report. The respondent
maintained his position that Mr. Ragusa’s petition is time-barred and that Dr. Dick
did not present a medical theory linking the flu vaccine to transverse myelitis. The
respondent proposed filing a motion to dismiss based on the statute of limitations.
Mr. Ragusa was urged to seek counsel and timely respond to the respondent’s
motion. Order, filed May 4, 2017.

       The respondent filed his second motion to dismiss on June 5, 2017, arguing
that the case was filed after the expiration of the statute of limitations. Citing the
undersigned’s Findings of Facts, the respondent stated that Mr. Ragusa filed his
petition outside of the time allotted by the Vaccine Act. The respondent further
stated that Dr. Dick’s report was insufficient to satisfy Mr. Ragusa’s burden under
Althen as it did not present a theory linking the flu vaccine to Mr. Ragusa’s injury.
Resp’t’s Mot. to Dismiss, filed June 5, 2017, at 7-8.

      Mr. Ragusa did not file a response making the matter ripe for adjudication.
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 II.   Legal Standard

       Pursuant to 42 U.S.C. § 300aa-16(a)(2), the Vaccine Act provides that “no
petition may be filed for compensation…after the expiration of thirty-six months
after the date of the occurrence of the first symptom or manifestation of onset or of
the significant aggravation of such injury.” The Federal Circuit has held that there
is no explicit or implied discovery rule under the Vaccine Act. Cloer v. Sec’y of
Health & Human Servs., 654 F.3d 1322, 1338-40 (Fed. Cir. 2011) (en banc). 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 [his] condition.” Id. at 1339.

III.   Analysis

      Mr. Ragusa alleged that the flu vaccine caused him to suffer transverse
myelitis. Mr. Ragusa received the flu vaccination on November 30, 2010. Exhibit
2.

      Mr. Ragusa’s numbness began around January 8, 2011. Ragusa, 2015 WL
6150880, at *2-3. Dr. Dick’s report states that the numbness, weakness, and pain
in Mr. Ragusa’s lower extremities as reported on January 22, 2011 were
manifestations of his transverse myelitis. Exhibit 20.

       Mr. Ragusa filed his petition on January 15, 2014. January 15, 2014 is more
than 36 months after January 8, 2011. Therefore the petition was filed out of time.
In addition, Mr. Ragusa has not presented any argument regarding equitable
tolling.

IV.    Conclusion

      It is clear from the record in this case that that there is no applicable
exception to the statute of limitations. Thus, this claim is DISMISSED on the
ground that it is barred pursuant to section 300 aa-16(a)(2) of the Vaccine
Act. The Clerk shall enter judgment accordingly.




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IT IS SO ORDERED.

                        ____________________
                        Christian J. Moran
                        Special Master




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