O.H. v. HHS - MMR, autism spectrum disorder (2016)

Hussein Hashi and Safia Weged, parents of O.H., filed a petition for compensation under the National Vaccine Injury Compensation Program on behalf of their minor daughter, O.H., on April 22, 2008. They asserted that O.H. suffered from autism spectrum disorder and an underlying mitochondrial disorder, specifically a Complex I electron transport chain deficiency, and that vaccines caused or significantly aggravated these conditions.

The initial petition was a short-form autism petition. An amended petition filed on June 29, 2011, alleged that the MMR vaccine administered on July 1, 2002, caused an encephalopathy and sequelae, and that O.H. was diagnosed with a mitochondrial disorder.

Chief Special Master Vowell noted that the claim appeared to be filed after the statute of limitations expired. The respondent argued the petition should have been filed by December 31, 2005, based on the first symptoms of O.H.'s autism, but it was not filed until April 22, 2008, approximately two years and four months late.

The causation-in-fact claim was dismissed as untimely on August 26, 2013. The petitioners then shifted to a significant aggravation theory, asserting that DTaP, MMR, and inactivated polio virus vaccines administered on April 24, 2006, significantly aggravated O.H.'s pre-existing mitochondrial disorder.

These vaccinations occurred approximately a year after O.H.'s autism diagnosis. Medical records indicated no change in O.H.'s condition in the months following these April 2006 vaccines; she remained nonverbal, prone to stereotyped behaviors, and profoundly developmentally delayed, consistent with her condition in the preceding year.

Concerns about a second regression did not arise until the fall of 2007, about a year and a half after the vaccinations. To address discrepancies between petitioner Hussein Hashi's affidavit and the contemporaneous medical records regarding O.H.'s condition, Chief Special Master Vowell held a fact-finding hearing on September 18, 2014.

She heard testimony from Hussein Hashi and his niece, Nimo Hashi. The Special Master found that the contemporaneous medical records and histories provided by the parents closer in time to the events more accurately reflected O.H.'s condition than the hearing testimony.

On June 1, 2015, Chief Special Master Vowell issued a fact ruling concluding that the petitioners failed to demonstrate that O.H.'s symptoms and behavior worsened within 18 months of the April 2006 vaccinations, and stated it was highly unlikely that any reputable expert could opine that O.H.'s condition was significantly aggravated by those vaccinations. Petitioners were given a final sixty-day window, with a deadline of July 31, 2015, to identify an expert willing to opine on significant aggravation, with a warning that no extensions would be granted.

On August 1, 2015, petitioners' counsel filed a status report one day past the deadline, indicating she had not heard from her clients and did not state whether she had approached any expert witnesses. On March 14, 2016, Chief Special Master Vowell dismissed the petition for failure to comply with court orders under Vaccine Rule 21(b)(1), denying the case without compensation.

Petitioners were represented by Elaine W. Sharp, Esq., and respondent was represented by Traci R.

Patton, Esq. The public decision was issued on March 14, 2016.