A.H.R. v. HHS - DTaP, autism spectrum disorder (ASD), developmental delay, encephalopathy, mitochondrial disorder (2015)

On March 22, 2013, Howard Reddy and Hanan Tarabay, as parents and natural guardians of their minor child A.H.R., filed a petition for compensation under the National Vaccine Injury Compensation Program. The petition alleged that DTaP, Hib, influenza, and varicella vaccinations administered to A.H.R. on November 3, 2009, caused him to suffer from encephalopathy and developmental delays, later diagnosed as autism spectrum disorder (ASD) and a mitochondrial disorder.

The respondent, the Secretary of Health and Human Services, moved to dismiss the petition as untimely filed. A fact hearing was conducted to determine the precise nature and onset of A.H.R.'s symptoms.

Special Master Denise Kathryn Vowell found that A.H.R. first displayed symptoms of developmental delay, which was the first symptom of his ASD, more than 36 months prior to the petition's filing date. The petition was therefore dismissed as untimely.

The Special Master noted that while the child was diagnosed with a mitochondrial disorder, the ASD symptoms, which were part of that diagnosis, predated the statutory filing period. The public decision does not describe the specific clinical story leading up to the vaccination, nor does it detail the specific mechanism of injury alleged beyond the general claim that the vaccines caused the conditions.

The Special Master relied heavily on the testimony and reports of Dr. Judith Miller, a psychologist specializing in ASD, and found her opinions more persuasive than those of the petitioners' experts, Dr.

Randall Reese (pediatrician) and Dr. Dmitriy Niyazov (geneticist).

Dr. Miller reviewed video evidence and medical records, concluding that A.H.R. exhibited symptoms of ASD, including speech delay and repetitive behaviors, prior to November 3, 2009, and certainly before March 23, 2010, the date petitioners claimed as the onset of regression.

The Special Master found that contemporaneous medical records and video evidence were more reliable than later testimony and affidavits. Specifically, the Special Master found that A.H.R. had a speech delay at his 15-month checkup on November 3, 2009, and that parental concerns about possible autism were documented as early as December 16, 2009.

Further evidence of ASD symptoms, including abnormal play skills, repetitive behaviors, and fascination with specific objects, were documented in the Early Steps evaluation in mid-March 2010. The Special Master concluded that these symptoms, recognized by the medical community as indicative of ASD, occurred more than 36 months before the petition was filed, making the petition untimely under the National Childhood Vaccine Injury Act of 1986.

The petition was dismissed on August 26, 2015.