Jackson Bono v. HHS - MMR, partial autistic syndrome (2009)

On August 29, 2002, Scott and Laura Bono filed a petition under the National Childhood Vaccine Injury Act (Vaccine Act) on behalf of their son, Jackson Bono, who was born on March 25, 1989. Between June 1, 1989, and August 9, 1990, Jackson received a standard infant vaccination series.

The petition alleged that one or more of these vaccinations caused a neurodevelopmental disorder, specifically an Autism Spectrum Disorder or similar disorder, due to the measles-mumps-rubella (MMR) vaccine or thimerosal in Diphtheria-Tetanus-Pertussis (DTP), Diphtheria-Tetanus-acellular Pertussis (DtaP), Hepatitis B, and Hemophilus Influenza Type B (Hib) vaccinations, or a combination thereof. Petitioners also raised an alternative argument concerning a diagnosis of heavy-metal poisoning.

The case was initially part of the Omnibus Autism Proceeding. On May 29, 2008, the respondent moved to dismiss the petition as untimely, asserting that it was filed more than 36 months after the first symptom or manifestation of injury.

Chief Special Master Gary J. Golkiewicz granted the motion to dismiss on January 16, 2009, finding the petition time-barred.

The Court of Federal Claims, with Judge Miller presiding, reviewed this decision. The court noted that the first symptom or manifestation of Jackson's condition was documented on October 20, 1990, when he was approximately 18 months old and his parents noted he had lost words and was not talking.

Jackson was later diagnosed with "partial autistic syndrome" on April 13, 1993, and subsequently with Childhood Idiopathic Language Deterioration and Landau-Kleffner Syndrome. In October 2000, Jackson underwent chelation treatment, which indicated toxic mercury levels, and August 2, 2004, urine testing showed significantly elevated lead levels.

Petitioners argued that the statute of limitations should not have started until the medical community recognized autism as a vaccine-related injury, citing Markovich v. Sec’y of Health & Human Servs.

They also contended that the heavy-metal poisoning diagnosis constituted a separate, timely claim. The respondent argued that the statute of limitations began to run on October 20, 1990, the date of the first symptom, regardless of whether the medical community recognized the injury as vaccine-related.

The Court of Federal Claims denied the petitioners' motion for review and sustained the Special Master's decision. Judge Miller applied the precedent set in Markovich and Brice v.

Sec’y of Health & Human Servs., holding that the statute of limitations commences upon the first symptom or manifestation of an injury that is objectively recognizable by the general medical community as a symptom or manifestation of an injury, not necessarily as a vaccine-related injury. The court found that Jackson's language regression on October 20, 1990, clearly met this standard.

The court rejected the heavy-metal poisoning argument, noting that petitioners failed to develop it meaningfully and that there was a plausible non-vaccine source for the lead (dirt-eating in a yard with a fuel line). The court also found that petitioners failed to establish that the mercury was vaccine-derived and constituted an injury distinct from the autism.

The court concluded that the Special Master did not act arbitrarily or capriciously in dismissing the petition as time-barred. Judgment was entered dismissing the petition.