Austin J. Setnes v. HHS - MMR, autism spectrum disorder (2003)

On July 15, 2002, petitioners John and Elizabeth Setnes filed a petition for compensation under the National Childhood Vaccine Injury Act of 1986 on behalf of their son, Austin J. ("AJ") Setnes, who was born on June 10, 1997. AJ received MMR, DTaP-Hib, Varicella, and OPV vaccinations on September 11, 1998, at 15 months of age.

Following these vaccinations, AJ's parents observed significant behavioral changes, including constant humming, babbling with slow speech development, not responding when called by name, temper tantrums, running around the kitchen table, staring at edges of tables and counters, and eating cardboard boxes. By age two, AJ no longer made eye contact, his speech development had not continued, and his behavior deteriorated.

On July 16, 1999, AJ's pediatrician documented speech delay, lack of eye contact, and expressed concern for pervasive developmental disorder (PDD). An evaluation on January 7, 2000, used the terms "probable PDD/autism," and AJ was formally diagnosed with autism on March 3, 2000.

Respondent moved to dismiss the petition as untimely, arguing that the 36-month statute of limitations began to run by December 11, 1998, based on the affidavit of petitioners' expert, Dr. Donald H.

Marks. Special Master Millman dismissed the petition on January 31, 2003, finding it was filed seven months too late.

The petitioners sought review, arguing that the special master erred in determining the onset of autism by December 11, 1998, and that the petition was timely based on the July 16, 1999, pediatrician visit. The United States Court of Federal Claims, in an opinion by Judge Futey, reversed the special master's decision.

The court held that the special master erred by relying on a retrospective expert opinion about subtle pre-diagnostic behaviors to start the statute of limitations clock. The court found that contemporaneous medical records showed no professional concern for autism until the July 16, 1999, pediatrician visit and the January 7, 2000, evaluation.

On these benchmarks, the petition filed on July 15, 2002, was timely. The court affirmed that equitable tolling was unavailable for post-Vaccine Act effective date cases, as established in Brice v.

Sec’y of DHHS, but found it unnecessary in this instance. The case was remanded for further proceedings on the merits.

The court noted that its holding on the statute of limitations was later effectively overruled by Markovich v. HHS, which held that subtle symptoms recognizable by the medical profession at large, even before parents appreciate their significance, start the limitations clock.