P.A.L., III v. HHS - DTaP, encephalopathic injury, later manifesting as autism or an unspecified severe neurologic injury with developmental impact similar to autism (2017)

On February 19, 2003, Peter and Ramona Loutos, as parents and natural guardians of their minor son P.A.L., III, filed this action seeking compensation under the National Vaccine Injury Compensation Program. They alleged that P.A.L. incurred an encephalopathic injury as a result of vaccines he received in December 1999, which later manifested as autism or a severe neurologic injury with developmental impact similar to autism.

P.A.L. was born on September 3, 1998. The petition alleged that P.A.L. received DTaP and Hib vaccinations on December 17, 1999.

Petitioners alleged that P.A.L. experienced fever and rash within days of vaccination, and that his developmental regression and language loss became evident by late February or early March 2000. He was diagnosed with chronic encephalopathy by the fall of 2000 and later diagnosed as autistic.

The case was initially filed as part of the Omnibus Autism Proceeding (OAP), alleging that the MMR or thimerosal-containing vaccinations caused autism. The OAP concluded in 2010 after test cases rejected these causation theories.

Petitioners' counsel then indicated they would proceed with a different theory: that P.A.L. suffered from an underlying mitochondrial disorder that the vaccines aggravated. In 2016, the respondent moved to dismiss the claim as untimely under the Vaccine Act's three-year statute of limitations.

Special Master Brian H. Corcoran provided petitioners an opportunity to amend their claim and submit revised expert reports.

However, the new filings continued to allege onset of symptoms in December 1999 or January 2000, which placed the first symptom or manifestation of injury more than three years before the petition filing date of February 19, 2003. On December 9, 2016, the Special Master granted the respondent's motion to dismiss, finding that the documented onset of P.A.L.'s symptoms was the first objectively recognizable sign of a vaccine injury by the medical profession at large, and the petition was filed outside the 36-month limitations window.

The Special Master noted that even if the claim were not time-barred, the expert reports were unpersuasive and the contemporaneous medical records did not support causation. Petitioners filed a motion for review of this decision, which was denied by Judge Charles F.

Lettow on March 31, 2017, as untimely filed. The court found it lacked jurisdiction to address the motion for review because it was filed more than 30 days after the Special Master's decision.

The court remanded a pending motion for payment of expert fees to the Special Master.