JD v. HHS - Varicella, autism spectrum disorder (2015)

Diane and Andrew Davis, as parents of JD, filed a petition for vaccine compensation on January 19, 2007, alleging that their daughter's autism spectrum disorder was caused by vaccinations. JD and her twin brother were born on November 26, 2001.

JD received routine pediatric vaccinations throughout her first year, with neurological assessments consistently noted as within normal limits. On December 9, 2002, at twelve months old, JD received a varicella vaccine, but her mother declined the MMR vaccine.

Following this visit, there was an eighteen-month gap in JD's pediatric records. When JD was seen on July 20, 2004, at two and a half years old, her developmental milestones included a six-word vocabulary and an inability to be toilet trained, leading to a referral for possible speech delay.

Her mother continued to express concerns about vaccinations. By early 2005, JD had been evaluated by a neurodevelopmental pediatrician who identified communication and sensory integration disorders.

School district testing in May 2005 indicated borderline cognitive ability and severely delayed expressive language, concluding global delays. In August 2005, Dr.

Mary Megson diagnosed JD with high-functioning autism spectrum disorder. A 2012 evaluation by geneticist Dr.

Virginia Proud noted a complex I mitochondrial mutation and recorded that JD experienced fever, crying, and GI problems after vaccinations at six months but did not lose skills and continued to develop well. The initial petition was filed as a Short-Form Autism Petition, alleging MMR and/or thimerosal-containing vaccines caused ASD.

However, JD had not received the MMR vaccine, and the varicella vaccine she received does not contain thimerosal. The case was stayed pending the Omnibus Autism Proceeding (OAP).

After the OAP concluded in 2009-2010, Special Master Hastings ordered petitioners to file an amended petition detailing their specific causation theory. Petitioners failed to respond for an extended period.

In February 2012, their attorney, Herbert Waichman, filed a motion to withdraw, stating there was "no reasonable basis to proceed." Petitioners proceeded pro se, failing to file required medical records despite multiple orders. New counsel, Patricia Finn, entered the case in January 2014.

After further extensions, petitioners filed a status report in November 2014, clarifying that the varicella vaccine, administered on December 9, 2002, was the alleged cause of JD's injury, with the first symptoms appearing approximately eighteen months later, around July 2004. Special Master Hastings noted the eighteen-month gap as a significant issue and ordered petitioners to file an expert report within 90 days connecting the varicella vaccine to JD's autism.

Petitioners instead filed a Motion for Ruling on the Record. On April 20, 2015, Special Master Hastings denied the claim, finding no physician in the medical records opined that the varicella vaccine caused JD's autism, and no expert report was provided.

The decision noted that none of the three prongs of the Althen standard for actual causation were met: no medical theory connected varicella vaccination to autism, no logical cause-and-effect sequence was shown, and the eighteen-month interval did not constitute a proximal temporal relationship. Attorneys' fees totaling $5,157.37 and out-of-pocket costs of $250.00 were awarded, totaling $5,407.37, with Special Master Hastings finding the petition was filed and pursued in good faith with a reasonable basis.