Kit Carson v. HHS - autism spectrum disorder (2010)

Stacy and Amy Carson, on behalf of their son Kit Carson, filed a petition for vaccine compensation on July 22, 2002, alleging that Kit's autism spectrum disorder was caused by numerous childhood vaccinations he received between birth and June 4, 1997. Kit Carson was born on May 22, 1996.

His pediatricians noted speech delays at his 18-month and 24-month check-ups. On May 25, 1999, Kit's pediatrician, Dr.

Page, documented a "severe language delay" and referred him to a developmental evaluation center. A school district psychology evaluation on September 13, 1999, also noted language delays.

Kit was formally diagnosed with autism spectrum disorder on April 26, 2001. The respondent moved to dismiss the petition as untimely, arguing it was filed more than 36 months after the first symptom or manifestation of onset.

The respondent contended that the first symptom occurred in May 1999, when Kit was referred for evaluation due to speech/language and gross motor delays. The petitioners' expert, Dr.

Elizabeth Mumper, initially opined that the first symptoms occurred during IEP assessments in the fall of 1999. However, under questioning, Dr.

Mumper testified that the "severe language delay" noted on May 25, 1999, was part of the constellation of symptoms ultimately leading to the autism diagnosis. Chief Special Master Golkiewicz granted the respondent's motion to dismiss on August 26, 2009, finding that the May 25, 1999, severe language delay was the first symptom or manifestation of Kit Carson's autism, making the petition untimely filed.

The Court of Federal Claims, in an order and opinion by Judge Williams on January 7, 2010, sustained the dismissal. The court applied the objective standard from Markovich v.

Sec’y of Health & Human Serv., which holds that the first symptom or manifestation of onset is the first event objectively recognizable by the medical profession at large, even if the petitioner does not appreciate its significance. The court found that Dr.

Mumper's testimony supported the Special Master's conclusion that the severe language delay in May 1999 was the first objectively recognizable symptom. The court rejected the petitioners' argument that Markovich was distinguishable and that the earlier case of Setnes v.

United States, which suggested a petitioner must recognize the symptom's significance, still applied. The court concluded that Markovich overruled Setnes's reasoning regarding the petitioner's recognition of the symptom.

The petition was dismissed as time-barred.