Andrew Wax v. HHS - autistic disorder (2012)

On December 17, 2003, Mark and Melanie Wax filed a petition under the National Vaccine Injury Compensation Program on behalf of their son, Andrew Wax, who was born on October 23, 1992. Andrew received routine childhood vaccines between November 11, 1992, and March 18, 1997.

His parents reported that he exhibited long sleep patterns following vaccinations and developed a fever after receiving vaccines on February 14, 1994. Andrew was diagnosed with a speech delay on November 9, 1995, and with autistic disorder on August 25, 1998.

The petition alleged that Thimerosal in the vaccines caused Andrew's autism. The respondent, the Secretary of Health and Human Services, moved to dismiss the petition as untimely filed.

The Special Master found that the statute of limitations began to run on November 9, 1995, with the speech delay diagnosis, which is commonly the first symptom of autism spectrum disorder. The petition was filed on December 17, 2003, which was well outside the thirty-six-month limitations period that would have expired in November 1998.

The Special Master denied equitable tolling, finding that the petitioners had not pursued their rights diligently and that no extraordinary circumstances prevented them from filing on time. The petitioners sought review of this decision.

The Court of Appeals for the Federal Circuit had previously held that equitable tolling applies to claims under the Vaccine Act and that the statute of limitations begins to run on the date of the first symptom or manifestation of the vaccine-related injury, provided that symptom or manifestation is recognized by the medical profession at large. The petitioners argued that they diligently pursued their rights by filing suit in federal district court on April 3, 2002, before state tort statutes of limitations had run, as they believed at the time that the Vaccine Act did not cover claims based on Thimerosal, which they considered an adulterant.

They also argued that the district court's dismissal of their suit constituted an extraordinary circumstance. The respondent argued that the petitioners did not pursue their rights diligently because they filed suit more than six years after Andrew first manifested symptoms of autism and well after the statute of limitations had run.

The respondent also contended that statutory ambiguity is not an extraordinary circumstance. The court reviewed the Special Master's decision and upheld the denial of equitable tolling.

The court found that the petitioners had not demonstrated diligent pursuit of their claim, as they filed their district court suit more than thirty-six months after Andrew's speech delay diagnosis on November 9, 1995, and the record did not reflect any effort to seek legal recourse before the limitations period expired. The court also found that the district court's dismissal of their suit in December 2002 could not have affected their failure to file a claim before November 1998.

The court further addressed the petitioners' argument that the statute of limitations was unconstitutional due to the latent nature of autism. The court noted that even under this theory, the petitioners' claim would still be untimely, as they filed their district court suit more than thirty-six months after Andrew's autism diagnosis on August 25, 1998.

Therefore, the court sustained the Special Master's decision and entered judgment for the respondent. The public decision does not describe the specific vaccines administered, the exact dates of vaccination, the specific symptoms other than speech delay and autistic disorder, any medical tests performed, or the specific treatments received.

The public decision does not name the petitioner's counsel or the respondent's counsel.