S.H. v. HHS - DTaP, Autism spectrum disorder; mitochondrial disorder (2016)

On April 22, 2008, Hussein Hashi and Safia Weged filed a short-form autism petition on behalf of their minor daughter, S.H., alleging that one or more vaccines caused her autism spectrum disorder (ASD) and a diagnosed mitochondrial disorder, specifically a Complex I electron transport chain deficiency. The vaccines identified as the allegedly aggravating agents were the DTaP and inactivated polio virus vaccines administered on January 8, 2007.

This case was one of two companion petitions filed by the same parents for their children, with the sibling O.H. filing under case number 08-308V. Both cases were handled together by Chief Special Master Denise K.

Vowell and resulted in identical outcomes. Early in the proceedings, Chief Special Master Vowell noted that the petition appeared to be filed outside the Vaccine Act's thirty-six-month statute of limitations.

On August 26, 2013, the causation-in-fact claim was dismissed as untimely, as the respondent argued, and the special master agreed, that the first symptoms or manifestations of S.H.'s ASD occurred as early as November 2, 2004, making the filing deadline November 2, 2007, approximately five months before the petition was filed on April 22, 2008. Following the dismissal of the causation-in-fact claim, petitioners pursued a significant aggravation theory, asserting that the January 8, 2007 vaccines had significantly aggravated S.H.'s underlying mitochondrial disorder.

This theory was introduced in a December 2011 status report and formally raised in the second amended petition filed on September 25, 2013. To address discrepancies between petitioner Hussein Hashi's affidavit and contemporaneous medical records regarding S.H.'s condition before and after the January 2007 vaccinations, Chief Special Master Vowell held a fact-finding hearing on September 18, 2014.

She heard testimony from Mr. Hashi and his niece, Nimo Hashi, who frequently babysat for S.H.

The special master found the contemporaneous medical records, which included the parents' accounts closer in time to the events, to be more reliable than the hearing testimony. Mr.

Hashi insisted that conflicting medical records were inaccurate, but his assertions of post-vaccination worsening were not supported by the medical records. Dr.

Becker, S.H.'s treating physician around 2009, described her developmental history as showing "some loss of skills followed by a gain and then a loss again," indicating a fluctuating pattern rather than a distinct deterioration attributable to a specific event. On June 1, 2015, Chief Special Master Vowell issued a fact ruling concluding that petitioners failed to demonstrate that S.H.'s symptoms and behavior worsened within 18 months of the January 2007 vaccinations.

The special master noted that S.H.'s health remained consistent with her condition in the preceding months, characterized by few words spoken, teeth grinding, noise sensitivity, and profound developmental delay. She remarked that it appeared "unlikely that any reputable expert can opine that S.H.'s condition was significantly aggravated by the vaccinations administered in January 2007" and suggested it might be "unreasonable for petitioners to continue to pursue this case." Despite these findings, petitioners were granted a final sixty-day period, with a strict deadline of July 31, 2015, and a warning that no extensions would be granted, to identify an expert witness willing to opine that the vaccinations had significantly aggravated S.H.'s condition.

On August 1, 2015, one day past the deadline, petitioners' counsel filed a status report requesting further time, stating an inability to reach her clients to discuss how to proceed and not reporting any efforts to identify an expert. This was noted as the counsel's seventeenth request for an extension.

On March 14, 2016, Chief Special Master Vowell dismissed the petition for failure to comply with court orders under Vaccine Rule 21(b)(1), resulting in the denial of the case without compensation. Petitioners were represented by Elaine W.

Sharp, Esq., and the respondent was represented by Heather L. Pearlman, Esq.