VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_13-vv-00710
Package ID: USCOURTS-cofc-1_13-vv-00710
Petitioner: R.D.S.
Filed: 2013-09-23
Decided: 2015-04-07
Vaccine: influenza
Vaccination date: 2007-12-19
Condition: cerebral palsy
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
On September 23, 2013, Raymond and Wanwilai Somosot filed a petition on behalf of their minor son, R.D.S., alleging that an influenza vaccine administered on December 19, 2007, caused R.D.S. to develop cerebral palsy (CP). R.D.S. was nine months old at the time of vaccination. The petitioners alleged that the first symptoms of R.D.S.'s CP occurred on May 12, 2011, the date of his diagnosis. However, the medical records indicated earlier symptoms, including poor feeding from birth, microcephaly at birth, gross motor delays by March 2008, global developmental delays and delayed speech by May 2008, failure to thrive and hypertonic muscles by August 2008, and inability to crawl or walk independently by October 2008. The Special Master, Laura D. Millman, dismissed the petition as untimely, finding that the first symptoms of R.D.S.'s condition indicative of cerebral palsy occurred in 2008, which was more than three years before the petition was filed. This decision was sustained by Judge Lynn J. Bush. The court affirmed the Special Master's decision, holding that the statute of limitations begins to run from the first symptom or manifestation of onset, not the date of diagnosis. The court also denied the petitioners' subsequent request for attorneys' fees and costs, finding that the petition lacked a reasonable basis due to its clear untimeliness based on the medical records and established case law. The public decision does not describe the specific mechanism of causation alleged by the petitioners or detail the specific clinical findings of the treating physicians beyond what is noted in the medical records.

Theory of causation field:
Petitioners alleged that an influenza vaccine administered on December 19, 2007, to R.D.S., then nine months old, caused cerebral palsy (CP). The petition was dismissed as untimely because the Special Master and the reviewing court found that the first symptoms or manifestations of CP occurred in 2008 or earlier, which was more than 36 months prior to the petition's filing date of September 23, 2013. Medical records documented symptoms such as microcephaly from birth, poor feeding, gross motor delays by March 2008, global developmental delays and delayed speech by May 2008, failure to thrive and hypertonic muscles by August 2008, and inability to crawl or walk independently by October 2008. Dr. Terry Dalle-Tezze opined that these symptoms were indicative of CP. Petitioners argued that the onset was not until the diagnosis in May 2011, but this was rejected based on case law establishing that the statute of limitations runs from the first symptom or manifestation of onset, not the date of diagnosis. The court affirmed the dismissal, finding no error in the Special Master's factual findings or legal conclusions. No specific mechanism of vaccine injury was detailed in the provided text. The petition was dismissed, and no award was made. Special Master Laura D. Millman issued the initial decision, which was sustained by Judge Lynn J. Bush. Petitioners' counsel was Lorraine J. Mansfield, and respondent's counsel was Lynn E. Ricciardella.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_13-vv-00710-0
Date issued/filed: 2014-05-15
Pages: 10
Docket text: PUBLIC DECISION (Originally filed: 04/24/2014) regarding 24 DECISION of Special Master Signed by Special Master Laura D Millman. (tlj) Copy to parties.
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Case 1:13-vv-00710-LJB Document 29 Filed 05/15/14 Page 1 of 10
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 13-710V
Filed: April 24, 2014
Not for Publication
***************************************
RAYMOND SOMOSOT and *
WANWILAI SOMOSOT, on *
Behalf of R.D.S., a Minor, *
* Dismissal; petition filed outside of
Petitioners, * statute of limitations; statute of
* limitations runs from first symptom
v. * or manifestation of onset, not date of
* diagnosis; influenza vaccine;
SECRETARY OF HEALTH * cerebral palsy
AND HUMAN SERVICES, *
*
Respondent. *
***************************************
Lorraine J. Mansfield, Las Vegas, NV, for petitioners.
Lynn E. Ricciardella, Washington, DC, for respondent.
MILLMAN, Special Master
DECISION 1
On September 23, 2013, petitioners filed a petition under the National Childhood Vaccine
Injury Act, 42 U.S.C. §§ 300aa-10–34 (2006), alleging that influenza vaccine administered on
December 19, 2007, caused their son R.D.S. to suffer from cerebral palsy (“CP”). According to
the petition, R.D.S. became ill three weeks after his vaccination and remained ill three months
1 Because this unpublished decision contains a reasoned explanation for the special master’s action in this
case, the special master intends to post this unpublished decision on the United States Court of Federal
Claims’s website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat.
2899, 2913 (Dec. 17, 2002). Vaccine Rule 18(b) states that all decisions of the special masters will be
made available to the public unless they contain trade secrets or commercial or financial information that
is privileged and confidential, or medical or similar information whose disclosure would constitute a
clearly unwarranted invasion of privacy. When such a decision is filed, petitioner has 14 days to identify
and move to redact such information prior to the document=s disclosure. If the special master, upon
review, agrees that the identified material fits within the banned categories listed above, the special
master shall redact such material from public access.

Case 1:13-vv-00710-LJB Document 29 Filed 05/15/14 Page 2 of 10
later. Pet. ¶ 8. By December 18, 2008, R.D.S. was diagnosed with microcephaly and
hypertonicity. Id. Although petitioners allege that the first symptoms of R.D.S.’s CP were on
May 12, 2011, the date he was diagnosed with CP, Id. ¶ 13, the first symptoms of his CP actually
occurred at least three years earlier.
The Vaccine Act provides:
In the case of . . . a vaccine set forth in the Vaccine Injury Table
. . . , if a vaccine-related injury occurred as a result of the
administration of such vaccine, no petition may be filed for
compensation under the Program for such injury after the
expiration of 36 months after the date of the occurrence of the first
symptom or manifestation of onset or of the significant aggravation
of such injury . . . .
42 U.S.C. § 300aa-16(a)(2) (2006) (emphasis added). The first symptoms of R.D.S.’s CP
occurred in 2008, more than three years before the petition was filed. Therefore, the petition
must be dismissed.
FACTS
During her pregnancy with R.D.S., Ms. Somosot tested positive for isolated group B
streptococci. Med. recs. Ex. 3, at 7. The results of her rubella screening were 8.6 IU/mL, which
falls within the borderline range. Id. at 12.
R.D.S. was born on March 15, 2007. Med. recs. Ex. 1, at 1. Ms. Somosot was treated
with penicillin for her positive beta streptococci. Med. recs. Ex. 4, at 4. There was heavy
meconium in the amniotic fluid, and “meconium” is listed as an infant complication at birth. Id.
R.D.S. was a “poor feeder.” Id. at 5. He had a head circumference of 32 centimeters, which is
below the second percentile for his age, meeting the definition of microcephaly. Id.; Ex. A, at 2.
On November 6, 2007, at almost eight months of age, R.D.S. saw his pediatrician with
the complaint of an intermittent rash since he was three months of age. Med. recs. Ex. 5, at 7.
The pediatrician diagnosed R.D.S. with eczema. Id. at 8.
On December 19, 2007, at the age of nine months, R.D.S. received flu vaccine. Med.
recs. Ex. 2, at 1.
On January 15, 2008, R.D.S. was taken to Southwest Medical Associates, Inc. Med. recs.
Ex. 5, at 20. He had been in the emergency room four days earlier with a cough and runny nose.
Id. He was diagnosed with an ear infection and given an antibiotic and medication to help him
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Case 1:13-vv-00710-LJB Document 29 Filed 05/15/14 Page 3 of 10
breathe. Id. The diagnosis was bronchiolitis. Id. He had previously had fever, but the fever
stopped. Id.
On March 18, 2008, R.D.S. returned to Southwest Medical Associates, Inc. Id. at 22. He
was on Albuterol Sulfate and Pulmicort. Id. He had an upper respiratory infection lasting one
week consisting of low-grade fever, runny nose, and cough. Id. He had some vomiting after
feeding. Id. He was diagnosed with gross motor delays. Id. at 23.
On April 3, 2008, R.D.S. returned to Southwest Medical Associates, Inc. Id. at 24. His
pediatrician noted that he appeared to have decreased axial skeleton tone. Id. His parents said
he was unable to sit independently very well. Id. He was assessed with reactive airway disease
and gross motor delays. Id. at 25.
On April 10, 2008, R.D.S. continued to be assessed with reactive airway disease. Id. at
26.
On May 27, 2008, R.D.S. was noted to have some global developmental delays and
delayed speech. Id. at 28.
On June 27, 2008, R.D.S. saw Dr. Ajaz Ahmad Sheikh, a pediatric gastroenterologist, for
a history of vomiting since he was a baby. Med. recs. Ex. 6, at 6. R.D.S.’s father said that in the
previous one and one-half months, there had been an increase in the frequency of R.D.S.’s
vomiting. Id. R.D.S. vomited after almost every feeding and, many times, he refused to eat
during the day. Id. R.D.S.’s mother said that he was losing weight. Id. He had difficulty with
feeding when he was born, and he was receiving early intervention services for developmental
delay. Id.
On August 1, 2008, R.D.S. returned to Dr. Sheikh. Id. at 2. Dr. Sheikh noted that R.D.S.
had a history of poor weight gain and vomiting but was doing well on Zantac. Id. On
examination, R.D.S. had increased muscle tone in his extremities and developmental delay. Id.
Dr. Sheikh’s assessment was that R.D.S. had a history of failure to thrive, poor weight gain, and
hypertonic muscles with developmental delay. Id. at 3.
On October 1, 2008, at one year and six months old, R.D.S. saw Dr. Donald W. Johns, a
neurologist, because he was not eating well and had delayed motor skills. Med. recs. Ex. 7, at
15. R.D.S. walked using a walker. Id. He could not crawl. Id. He did not point to indicate his
needs. Id. The parents thought R.D.S.’s language peaked in January 2008, and then he lost
some abilities. Id. R.D.S. had environmental allergies, a question of reactive airway disease,
eczema, and Mongolian spot. Id. R.D.S. did not sit without support. Id. at 14. His head
circumference was 44.4 centimeters, about four standard deviations below mean. Id. Dr. Johns’
impression was that R.D.S. had severe microcephaly. Id. Dr. Johns was concerned about a
possible degenerative condition. Id.
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Case 1:13-vv-00710-LJB Document 29 Filed 05/15/14 Page 4 of 10
On December 18, 2008, R.D.S. had a genetics consultation with Dr. Colleen A. Morris.
Med. recs. Ex. 5, at 29. The reason for the referral was microcephaly and developmental delay.
Id. R.D.S.’s mother reported that R.D.S. seemed to have normal development for his first four
months of life. Id. at 30. At the age of nine months, R.D.S. went with his family to California
for a visit, and he was ill when he came home. Id. He could not breathe well, had an ear
infection, and did not eat anything for four days. Id. He went to the emergency room, where he
was given IV fluids and breathing treatments. Id. R.D.S.’s mother reports that after this illness,
R.D.S. was not himself, was more irritable, and would cry much of the time. Id. She also said
she was concerned because his development seemed to stop. Id. At 17 months, he was noted to
have head lag, and at 19 months, he could tripod sit but was not yet walking. Id. His mother
noted he had bilateral cortical thumbs for quite some time before the visit with Dr. Morris. Id.
He had Mongolian spots over his skin, significant eczema, and gastroesophageal reflux disease
in the past. Id. Whenever his family tried to get him to bear weight, he would stand on his toes.
Id. He was receiving physical therapy once a week. Id.
At the December 18, 2008 visit with Dr. Morris, R.D.S.’s family reported that he had a
workup for failure to thrive because his length had been consistently at the third percentile, and
his weight at two months was at the tenth percentile, but by nine months was below the third
percentile. Id. His weight for height at the time of examination was just below the third
percentile. Id. His head circumference at birth was at the second percentile and was below the
second percentile at the age of four months. Id. His head circumference was growing but was
falling further away from the curve over time. Id. When Dr. Morris examined R.D.S., his height
was in the third percentile, and his weight and head circumference were below the third
percentile. Id. He had ridging of the anterior sagittal and metopic sutures and frontal narrowing
of the cranium. Id. He had hyperreflexia in his lower extremities. Id. at 31. His heel cords were
tight. Id. When attempting to get R.D.S. to bear weight, Dr. Morris found that he would stand
only on his toes. Id. Dr. Morris diagnosed R.D.S. with microcephaly and hypertonicity. Id. Dr.
Morris noted that based on her review of the records, he did not have microcephaly before
becoming ill at age nine months. Id.
On June 1, 2009, Sunshine Valley Pediatrics listed R.D.S. as having developmental
delay. Med. recs. Ex. 8, at 2.
On August 13, 2009, at the age of two years and five months, R.D.S. saw Dr. Johns again
for a pediatric neurological evaluation. Med. recs. Ex. 7, at 12. Dr. Johns noted that R.D.S. had
increased tone with gait, suggestive of white matter disease. Id. at 11. When placed in a
standing and supported position, R.D.S. walked on his toes, flexed his elbows, and pronated his
forearms. Id. Dr. Johns diagnosed R.D.S. with microcephaly and developmental delay of
unclear etiology and recommended a pediatric orthopedic evaluation. Id.
On August 31, 2009, R.D.S. saw Dr. Howard I. Baron, a pediatric gastroenterologist, for
failure to thrive. Med. recs. Ex. 6, at 21. Dr. Baron notes that R.D.S. was very behind verbally.
Id. He took fluids exclusively by bottle but was working on drinking through a straw. Id. His
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Case 1:13-vv-00710-LJB Document 29 Filed 05/15/14 Page 5 of 10
growth was satisfactory, although below the growth curve since his last visit. Id. He had
dysphagia, choking on solids or water. Id. Dr. Baron’s assessment was that R.D.S. was self-
limited in his ability to tolerate a variety of textures. Id. at 22. Dr. Baron suggested high-density
calories packed in purees and milks to help R.D.S. grow. Id.
On December 17, 2009, R.D.S. saw Dr. Roshan Raja, a pediatric neurologist, for
hypertonia and developmental delay. Med. recs. Ex. 7, at 1. R.D.S. was not walking and had not
been sitting even at nine months. Id. He was first noted to have a problem after a significant
viral infection when he was nine months old. Id. After this viral infection, R.D.S. regressed
further with some aspects, such as speech and weight. Id. At that time, he was also stiff and had
cortical thumbing. Id. He started therapy at fifteen months and began improving his fine motor
skills. Id. However, comprehension was difficult. Id. He wore braces and wrist splints, and he
drooled. Id. at 2. Dr. Raja’s impression was developmental delay, post-infectious worsening of
delays, microcephaly, and hypertonia. Id. at 3.
Cerebral palsy is first mentioned in the medical records on May 9, 2011. Med. recs. Ex.
8, at 18. On that date, R.D.S.’s pediatrician, Dr. Wesley J. Robertson at Sunshine Valley Health
Care, wrote on a prescription pad that R.D.S. had a severe fever two weeks after a flu
vaccination at nine months of age. Med. recs. Ex. 9, at 2. Dr. Robertson continues, saying
R.D.S. developed severe cerebral palsy afterward. Id. Dr. Robertson writes it is “possible” the
vaccine was the cause of the CP. Id.
On May 12, 2011, R.D.S. was seen for a follow up of a head injury at Sunshine Valley
Pediatrics. Med. recs. Ex. 8, at 18; Ex. 9, at 3. Dr. Robertson notes cerebral palsy as a diagnosis.
Id. The records thereafter mention CP as one of R.D.S.’s diagnoses. See, e.g., Ex. 8, at 2, 11, 15,
17.
PROCEDURAL HISTORY
Petitioners filed their petition on September 23, 2013.
On January 13, 2014, the undersigned issued an Order to Show Cause. The undersigned
noted that although R.D.S.’s CP was diagnosed on May 12, 2011, the first symptom or
manifestation of the onset of his CP occurred in 2008. The undersigned stated that the petition
was filed outside the three-year statute of limitations, 42 U.S.C. § 300aa-16(a)(2), and ordered
petitioners to show cause why the case should not be dismissed.
During a telephonic status conference on January 14, 2014, the undersigned discussed her
Order to Show Cause and the parties’ deadlines for their respective responses and replies.
On February 6, 2014, petitioners filed a Response to Order to Show Cause. Petitioners
argue that the onset of R.D.S.’s cerebral palsy was August 2011, the date that they assert cerebral
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Case 1:13-vv-00710-LJB Document 29 Filed 05/15/14 Page 6 of 10
palsy first appears in the medical records.2 Petitioners list symptoms of cerebral palsy, including
“muscles that are very tight and do not stretch,” “abnormal gait,” “floppy muscles,” “speech
problems,” and “difficulty sucking or feeding in infants.” Pet’rs’ Resp. at 6–7. Petitioners assert
that their argument is consistent with Cloer v. Sec’y of HHS, 654 F. 3d 1322 (Fed Cir. 2011),
because the board-certified pediatricians who examined R.D.S. did not diagnose him with CP
and would not have recognized his well-baby checkups as symptoms of CP until August 2011.3
Pet’rs’ Resp. at 10. Petitioners assert that the medical literature cited in the undersigned’s Order
to Show Cause should be rejected. Id. They cite page 14 of Judge Lettow’s slip opinion in
Paluck v. Sec’y of HHS, No. 07-889, 113 Fed. Cl. 201 (Fed. Cl. 2013), which refers to Judge
Lettow’s prior ruling in the same case, 104 Fed. Cl. 457, 483 (Fed. Cl. 2012), where he found
that the Special Master’s finding of the appropriate interval between vaccination and injury
(Althen prong 3) was arbitrary and capricious because it was not supported by the expert
testimony and medical records.4 Pet’rs’ Resp. at 10. They also assert that the undersigned must
seriously consider the opinions of the treating physicians and the medical records. Id. at 11.
Petitioners assert that R.D.S.’s hypertonicity, gross motor delays, not sitting well, and
developmental delay were symptoms of other conditions and that cerebral palsy is a separate
medical entity from these symptoms. Id. at 9–10, 12.
On March 7, 2014, respondent filed a Response to Petitioners’ Response to Order to
Show Cause. Respondent gives a recitation of the relevant facts and argues that the onset of
R.D.S.’s cerebral palsy began as early as January 2008 and as late as 2009. Resp’t’s Resp. at 2–
7, 9–10. Respondent discusses Cloer and Markovich, 477 F.3d 1353 (Fed. Cir. 2007), which
state that the statute of limitations begins to run at the first “symptom” or “manifestation of
onset,” neither of which require a doctor to diagnose the injury definitively. Id. at 10.
Respondent argues that the medical records and petitioners’ allegations show that the claim is
time-barred. Id. at 11–12. Respondent attaches a declaration from Terry Dalle-Tezze, M.D., a
medical officer employed with the Department of Health and Human Services, Division of
2 It is unclear why petitioners assert that the onset of R.D.S.’s CP occurred in August 2011. As noted by
respondent, petitioners refer to two different onsets in their response: August 24, 2011, Pet’rs’ Resp. at 6,
and August 12, 2011. Id. at 11. The medical records first refer to a diagnosis of CP on May 9, 2011.
Med. recs. Ex. 9, at 2. A diagnosis of cerebral palsy is also listed on August 24, 2011, Med. recs. Ex. 8,
at 2, 15; however, this is not the first reference.
3 There are several mistakes in petitioners’ response. Petitioners assert, “The medical community did not,
and would not, have recognized [R.D.S.’s] well-baby check-ups as including symptoms of multiple
sclerosis.” Pet’rs’ Resp. at 10 (second emphasis added). The undersigned assumes that petitioners mean
cerebral palsy rather than multiple sclerosis since there has been no allegation that R.D.S. developed
multiple sclerosis. Rather, petitioners seem to be confusing the facts in this case with the facts of Cloer,
as this error comes in the paragraph following petitioners’ discussion of Cloer.
4 This argument misconstrues the issue in this case. The issue here is the onset of R.D.S.’s CP as related
to the statute of limitations, not whether the timing interval between R.D.S.’s vaccination and the onset of
his CP is appropriate as related to causation in fact.
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Case 1:13-vv-00710-LJB Document 29 Filed 05/15/14 Page 7 of 10
Vaccine Injury Compensation, in which Dr. Dalle-Tezze opines that R.D.S. displayed symptoms
of cerebral palsy at birth, six months of age, and throughout 2008. Ex. A, at 2.
On March 17, 2014, petitioners filed a Sur-Response to Order to Show Cause.
Petitioners argue that Dr. Dalle-Tezze’s declaration is inadequate because his opinion contradicts
the opinions of the board-certified pediatricians and pediatric specialists who examined and
treated R.D.S. Pet’rs’ Sur-Resp. at 2. Petitioners argue that since none of these pediatricians or
specialists diagnosed R.D.S. with cerebral palsy or noted it as a differential diagnosis prior to
May 12, 2011, his onset could not have been prior to that date. Id. at 3.
A telephonic status conference was held on March 19, 2014. The undersigned discussed
that petitioners did not have a medical doctor opining that R.D.S. did not exhibit signs or
symptoms of CP prior to his diagnosis in May 2011. Petitioners’ counsel requested thirty days,
until April 18, 2014, to consult with doctors to see if any of them would offer an opinion that
R.D.S.’s symptoms prior to 2011 were not indicative of CP. On April 16, 2014, petitioners filed
a status report indicating that they had no additional material to file in this matter.
DISCUSSION
The United States is sovereign, and no one may sue it without the sovereign’s waiver of
immunity. United States v. Sherwood, 312 U.S. 584, 586 (1941). When Congress waives
sovereign immunity, courts strictly construe that waiver. Library of Congress v. Shaw, 478 U.S.
310, 311 (1986); McGowan v. Sec’y of HHS, 31 Fed. Cl. 734, 740 (Fed. Cl. 1994); Edgar v.
Sec’y of HHS, 29 Fed. Cl. 339, 345 (Fed. Cl. 1993); Patton v. Sec’y of HHS, 28 Fed. Cl. 532,
535 (Fed. Cl. 1993), aff’d 25 F.3d 1021 (Fed. Cir. 1994); Jessup v. Sec’y of HHS, 26 Cl. Ct. 350,
352–53 (Cl. Ct. 1992). A court may not expand on the waiver of sovereign immunity explicitly
stated in the statute. Broughton Lumber Co. v. Yeutter, 939 F.2d 1547, 1550 (Fed. Cir. 1991).
The Vaccine Act requires that a petition be filed within “36 months after the date of the
occurrence of the first symptom or manifestation of onset or of the significant aggravation of [the
alleged] injury.” 42 U.S.C. § 300aa-16(a)(2). The statute of limitations in the Vaccine Act for
personal injury starts to run on the day of “the first symptom or manifestation of onset,” not on
the day that the injury was diagnosed. Cloer, 654 F.3d at 1335. The Federal Circuit has held
that “the symptom or manifestation of onset must be recognized as such by the medical
profession at large.” Id. at 1335. The Federal Circuit discussed in Cloer that there is no
discovery rule under the Vaccine Act. Id at 1337. The date of the first symptom or
manifestation of onset “does not depend on when a petitioner knew or reasonably should have
known anything adverse about her condition,” nor does it depend on whether a petitioner knew
or should have known a connection between her injury and the vaccine. Id. at 1339.
In Cloer, a doctor’s petition was found untimely and dismissed because although she sued
within three years of her multiple sclerosis (“MS”) diagnosis, she did not sue within three years
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of the first symptom or manifestation of onset of her MS. Id. at 1329–30. The Federal Circuit
held that the statute of limitations does not start to run when a clinically definite diagnosis is
made but rather when the first symptom or manifestation of onset of the illness occurs. Id. at
1335. The Federal Circuit affirmed the lower court’s finding that the first symptom of Dr.
Cloer’s MS was the Lhermitte sign, an electric shock sensation that went down the center of her
back, which she experienced six years before her diagnosis and eight years before she filed her
petition. Id. at 1327–28, 1330.
In Markovich, the Federal Circuit elaborated on the meaning of the terms “symptom” or
“manifestation of onset.” 477 F.3d at 1357. “A symptom may be indicative of a variety of
conditions or ailments, and it may be difficult for lay persons to appreciate the medical
significance of a symptom with regard to a particular injury.” Id. In contrast, “a manifestation
of onset is more self-evident of an injury and may include significant symptoms that clearly
evidence an injury.” Id. Either a symptom or manifestation of injury can trigger the statute of
limitations, “whichever is first.” Id. A symptom or manifestation of injury may be subtle. Id. at
1358. For example, in Markovich, the Federal Circuit determined that the vaccinee’s eye
blinking episodes were the first symptom of a seizure disorder. Id. at 1357.
In order to satisfy the statute of limitations in this case, R.D.S.’s first symptom or
manifestation of onset would have had to occur on or after September 23, 2010. Although
R.D.S. was diagnosed with CP in May 2011, the first symptom or manifestation of onset
occurred in 2008 or earlier.
The most common signs of CP are spasticity and walking on the toes. NINDS Cerebral
Palsy Information Page, National Institute of Neurological Disorders and Stroke,
http://www.ninds.nih.gov/disorders/cerebral_ palsy/cerebral_palsy.htm (last updated Aug. 21,
2013). A person with CP might need to use special equipment to be able to walk. Id. Many
children with CP have problems with speech. Facts About Cerebral Palsy, Centers for Disease
Control and Prevention, http://www.cdc.gov/ncbddd/cp/facts.html (last updated Dec. 27, 2013).
Petitioners also list all of these symptoms as symptoms of cerebral palsy. 5 Pet’r’s Resp. at 7–8.
Other symptoms of cerebral palsy include difficulty with feeding. Id.
Petitioners assert in their affidavits that R.D.S. became ill after their visit to California in
January 2008, and he “was not himself” thereafter. Ex. 10, at 3. The medical records show that
R.D.S. was a poor feeder from birth. Med. recs. Ex. 4, at 5; Ex. 6, at 6. He was first diagnosed
with gross motor delays on March 18, 2008. Med. recs. Ex. 5, at 23. On April 3, 2008, he had
decreased skeletal tone and was unable to sit independently. Id. at 24. On May 27, 2008, he was
noted again to have global developmental delays and delayed speech. Id. at 28. On August 1,
2008, he was noted to have a history of failure to thrive, poor weight gain, hypertonic muscles,
5 Petitioners argue in their Response to reject this medical literature (which was also listed in the
undersigned’s previous Order to Show Cause), but the medical literature cited in their Response lists the
same symptoms. Pet’r’s Resp. at 7–8.
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and developmental delay. Med. recs. Ex. 6, at 3. On October 1, 2008, he was not crawling,
could walk only with a walker, and had a head circumference of four deviations below the mean.
Med. recs. Ex. 7, at 14–15. On December 18, 2008, R.D.S. was not walking, stood only on his
toes, was diagnosed with microcephaly, and had trouble feeding, head lag, bilateral cortical
thumbs, a head circumference below the third percentile, hyperreflexia in his lower extremities,
and tight heel cords. Med. recs. Ex. 5, at 29–31.
Dr. Dalle-Tezze opines that R.D.S. “had microcephaly from birth, failure to thrive from
six months of age, and demonstrated signs of persistent developmental delay and abnormal
muscle tone beginning in 2008, which were all signs and symptoms of what was subsequently
diagnosed as cerebral palsy in 2011.” Ex. A, at 2. She concludes that R.D.S. had microcephaly
because his head circumference was 32 centimeters at birth, which was below the second
percentile for his age, and microcephaly is defined as a head circumference that is below the fifth
percentile. Id. She also concludes that he had failure to thrive at six months, because his weight
was below the second percentile, meeting the failure to thrive definition of below the third
percentile. Id.
Petitioners’ argument that this petition was filed within the statute of limitations because
R.D.S. was not diagnosed with CP until 2011 misconstrues the law. It is clearly established law
that the statute of limitations begins to run at the first symptom or manifestation of onset. Cloer,
654 F.3d at 1335. The statute of limitations can and often does begin to run before a petitioner’s
condition is diagnosed definitively. The medical records as well as petitioners’ affidavits show
that R.D.S. exhibited numerous symptoms of CP before September 23, 2010, the date that would
be needed for the statute of limitations to be satisfied. Dr. Dalle-Tezze, a medical doctor, opined
that the onset of R.D.S.’s CP occurred in 2008 or earlier. Although given the opportunity to do
so, petitioners have not provided any medical opinion disputing Dr. Dalle-Tezze’s conclusions.
The undersigned finds that the first symptoms of R.D.S.’s CP occurred in 2008 or earlier, when
he showed symptoms of microcephaly, failure to thrive, poor feeding, hypertonicity,
developmental delays, speech delays, and difficulty sitting and walking. Petitioners filed their
petition outside of the three-year statute of limitations, and therefore the petition must be
dismissed.
CONCLUSION
The petition is DISMISSED. In the absence of a motion for review filed pursuant to
RCFC Appendix B, the clerk of the court is directed to enter judgment herewith.7
7 Pursuant to Vaccine Rule 11(a), the entry of judgment can be expedited by each party, either separately
or jointly, filing a notice renouncing the right to seek review.
9

Case 1:13-vv-00710-LJB Document 29 Filed 05/15/14 Page 10 of 10
IT IS SO ORDERED.
April 24, 2014 s/Laura D. Millman
DATE Laura D. Millman
Special Master
10

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_13-vv-00710-1
Date issued/filed: 2014-10-03
Pages: 12
Docket text: JUDGE VACCINE REPORTED OPINION re: 31 Sealed Order on Motion for Review, Judge Vaccine Order/Opinion. Signed by Judge Lynn J. Bush. (TQ) Copy to parties.
--------------------------------------------------------------------------------
Case 1:13-vv-00710-LJB Document 36 Filed 10/03/14 Page 1 of 12
In the United States Court of Federal Claims
No. 13-710 V
(Filed October 3, 2014)1
* * * * * * * * * * * * * * * * * * * * * * * *
RAYMOND SOMOSOT and *
WANWILAI SOMOSOT, on behalf of *
R.D.S., a minor, *
*
National Childhood Vaccine
Petitioners, *
Injury Act of 1986, 42 U.S.C.
*
§§ 300aa-1 to -34 (2012);
v. *
Untimely Petition under 42
*
U.S.C. § 300aa-16(a)(2).
SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * * * * * * * * * *
Lorraine J. Mansfield, Las Vegas, NV, for petitioners.
Lynn E. Ricciardella, United States Department of Justice, with whom were
Stuart F. Delery, Assistant Attorney General, Rupa Bhattacharyya, Director,
Vincent J. Matanoski, Deputy Director, and Gabrielle M. Fielding, Assistant
Director, Washington, DC, for respondent.
_________________________
OPINION
_________________________
BUSH, Senior Judge.
1/ Pursuant to Rule 18(b) of Appendix B of the Rules of the United States Court of Federal
Claims, this Opinion and Order was initially filed under seal on September 15, 2014. Pursuant
to ¶ 4 of the ordering language, the parties were to propose redactions of the information
contained therein on or before September 30, 2014. No proposed redactions were submitted to
the court.

Case 1:13-vv-00710-LJB Document 36 Filed 10/03/14 Page 2 of 12
Now pending before the court is petitioners’ motion for review of the special
master’s dismissal of petitioners’ petition for compensation under the National
Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (2012) (the
Vaccine Act). See Somosot ex rel. R.D.S. v. Sec’y of Health & Human Servs., No.
13-710V, 2014 WL 1926491 (Fed. Cl. Spec. Mstr. Apr. 24, 2014). Petitioners seek
compensation on behalf of their son R.D.S., who allegedly developed cerebral
palsy (CP) as a result of an influenza vaccination administered on December 19,
2007. The special master dismissed the petition as untimely under 42 U.S.C.
§ 300aa-16(a)(2), based on the special master’s finding that R.D.S. first displayed
symptoms of CP more than three years before the filing of the petition on
September 23, 2013. The court, finding no error in the special master’s findings of
fact or conclusions of law, sustains the dismissal.
BACKGROUND2
I. Factual Background
R.D.S. was born on March 15, 2007. Ex. 1. Within days of his delivery,
R.D.S. was observed to be a “poor feeder” and his head circumference was
measured to be below the second percentile for his age, which meets the definition
of microcephaly. Ex. 4 at 5; Ex. A at 2.3
R.D.S. received an influenza vaccination during his nine-month well-baby
visit on December 19, 2007. Ex. 2. Nearly one month later, on January 15, 2008,
R.D.S. visited his pediatrician after being seen in the emergency room four days
earlier with a cough, runny nose, wheezing, and fever. Ex. 5 at 20. The
pediatrician diagnosed bronchiolitis. Id. On March 18, 2008, R.D.S. returned to
2/ The facts recounted here are undisputed, although the parties dispute the significance of
certain well-established facts. The court relies on the record of underlying proceedings before
the special master, as well as petitioner’s motion for review (Pet’rs’ Mot.) and respondent’s
response to that motion (Resp’t’s Resp.). Petitioner’s exhibits before the special master were
numbered (Exs. 1-11), whereas respondent’s one exhibit was marked alphabetically (Ex. A).
3/ According to Dr. Terry Dalle-Tezze, a medical officer with the Department of Health and
Human Services, Division of Vaccine Injury Compensation, microcephaly is defined as “a head
circumference that is 3 standard deviations below the mean of the 50th percentile, [i.e.,] the 5th
percentile.” Ex. A at 2.
2

Case 1:13-vv-00710-LJB Document 36 Filed 10/03/14 Page 3 of 12
his pediatrician after experiencing one week of low-grade fever, runny nose, and
cough. Id. at 22. The pediatrician diagnosed an upper respiratory infection, and
also observed “gross motor delays.” Id. at 22-23.
R.D.S. visited his pediatrician again on April 3, 2008, at his one-year well-
baby visit, after having visited the emergency room a few days earlier with acute
wheezing and constant nasal discharge. Ex. 5 at 24. The pediatrician noted that
R.D.S. appeared to have “decreased axial skeletal tone” and that his parents stated
that he had difficulty sitting independently. Id. On May 27, 2008, at R.D.S.’s
fourteen-month well-baby visit, his pediatrician observed that R.D.S. had “global
developmental delays” and “delayed speech.” Id. at 28.
On June 27, 2008, R.D.S. was seen by Shadi Usefi-Moridani, a pediatric
gastroenterology nurse practitioner, for a “history of vomiting” which had
increased in frequency over time. Ex. 6 at 6. His parents reported that R.D.S. was
vomiting after almost every feeding, was refusing to eat, and was losing weight.
Id. The nurse practitioner noted that R.D.S. was receiving early intervention
services for his developmental delay. Id. At a follow-up visit on August 1, 2008,
R.D.S. was noted to have a “history of failure to thrive, poor weight gain and
hypertonic muscles with developmental delay.” Id. at 3.
On October 1, 2008, R.D.S. visited Dr. Donald Johns, a pediatric
neurologist, because he was “not eating well” and was “behind on [his] motor
skills.” Ex. 7 at 15. R.D.S.’s parents indicated that he could not crawl, walked
only with a walker, and did not point to indicate his needs. Id. Dr. Johns observed
that R.D.S. “[s]its only with support.” Id. at 14. Dr. Johns diagnosed “[s]evere
microcephaly,” and noted that he was “concerned about [a] possible degenerative
condition.” Id.
On December 18, 2008, R.D.S. had a genetics consultation with Dr. Colleen
Morris upon referral for microcephaly and developmental delay. Ex. 5 at 29.
R.D.S.’s mother reported to Dr. Morris that R.D.S.’s development, although
progressing normally for the first four months of his life, “seemed to stop” after he
became ill at age nine months. Id. at 30. R.D.S.’s mother also noted that R.D.S.
often “choke[d] and cough[ed] during feeding” and had “head lag” and “bilateral
cortical thumbs.” Id. By age nineteen months, R.D.S. was not walking
independently and was receiving physical therapy once per week. Id. Upon
3

Case 1:13-vv-00710-LJB Document 36 Filed 10/03/14 Page 4 of 12
examining R.D.S., Dr. Morris observed him to have a head circumference below
the third percentile for his age, as well as “ridging of the anterior sagittal and
metopic sutures” and “frontal narrowing of the cranium.” Id. R.D.S. was also
noted to have “hyperreflexia in the lower extremities” and tight heel cords. Id. at
31. In addition, R.D.S. stood only on his toes when made to stand and bear weight.
Id. Based on her examination, Dr. Morris diagnosed microcephaly and
hypertonicity. Id.
R.D.S. began with a new pediatric practice, Sunshine Valley Pediatrics
(Sunshine), in or about June 2009. Ex. 8. R.D.S.’s medical records from Sunshine
reveal that he was consistently assessed to have severe developmental delays from
June 2009 through the end of 2010. Id. at 2, 24-28.
On August 13, 2009, R.D.S. visited Dr. Johns for a second neurological
evaluation. Ex. 7 at 11-12. Dr. Johns observed that R.D.S. walked on his toes,
flexed his elbows, and pronated his forearms when supported in a standing
position. Id. at 11. Dr. Johns diagnosed microcephaly and developmental delay,
and recommended that R.D.S. receive a pediatric orthopedic evaluation. Id. at 11-
12.
On August 31, 2009, R.D.S. visited Dr. Howard Baron, a pediatric
gastroenterologist. Ex. 6 at 21-22. According to Dr. Baron’s notes, R.D.S. was
reported to be choking on water and solids, and was only able to eat pureed food.
Id. at 21. In addition, although R.D.S. was working on drinking through a straw,
he was still exclusively using a bottle to consume liquids. Id. Dr. Baron assessed
“[f]ailure to thrive” and noted that R.D.S. was “limited in [his] ability to take a
variety of [food] textures.” Id. at 22.
On December 17, 2009, R.D.S. had a neurology consultation with Dr.
Roshan Raja, another pediatric neurologist. Ex. 7 at 1-3. According to Dr. Raja’s
notes, R.D.S. was first noted to have developmental problems at nine months old,
when he experienced a “significant viral infection.” Id. at 1. After the infection,
R.D.S. “regressed further with some aspects, such as [his] speech and weight.” Id.
For example, R.D.S. was noted to be “stiff” and to have “cortical thumbing.” Id.
By the time of Dr. Raja’s examination, R.D.S. was still not walking independently,
wore braces and wrist splints, and had a tendency to “tiptoe” on his ride side when
standing. Id. at 1-2. Dr. Raja also noted that R.D.S.’s feeding had “only mildly
4

Case 1:13-vv-00710-LJB Document 36 Filed 10/03/14 Page 5 of 12
improved.” Id. at 1. Based upon his observations, Dr. Raja diagnosed
developmental delays, “post-infectious worsening of delays,” microcephaly, and
hypertonia. Id. at 3.
The first reference to CP in R.D.S.’s medical records occurred on May 12,
2011, when R.D.S. was examined by Dr. Wesley Robertson, a pediatrician at
Sunshine, following a head injury. Ex. 8 at 18. Dr. Robertson listed CP as a
diagnosis.4 Id. The pediatric records thereafter consistently listed CP as one of
R.D.S.’s diagnoses. E.g., Ex. 8 at 2, 6-8, 10-11, 15-17.
On May 9, 2013, Dr. Robertson wrote on a prescription pad that R.D.S. had
developed a “severe fever” two weeks after receiving an influenza vaccination at
nine months of age, and thereafter developed “severe” CP. Ex. 9 at 2. Dr.
Robertson noted that “it is possible the vaccine was the cause of the CP.” Id.
II. Procedural History
Petitioners filed their petition for compensation under the Vaccine Act on
September 23, 2013, alleging that R.D.S. developed CP as a result of the influenza
vaccination he received on December 19, 2007. On January 13, 2014, the special
master ordered petitioners to show cause why their claim should not be dismissed
as untimely pursuant to 42 U.S.C. § 300aa-16(a)(2). In her order, the special
master noted that R.D.S.’s medical records revealed that “the first symptom or
manifestation of onset [of R.D.S.’s CP] occurred early in 2008,” more than three
years before the filing of the petition. Order of Jan. 13, 2014, at 5.
Petitioners filed a response on February 6, 2014, alleging that the symptoms
of R.D.S.’s CP first manifested in August 2011. Respondent filed a response to
petitioners’ response on March 7, 2014, asserting that the petition was filed after
the expiration of the statutorily prescribed limitations period because R.D.S. began
showing symptoms of CP as early as 2008. Respondent attached to her response a
declaration prepared by Dr. Terry Dalle-Tezze, a medical officer with the
Department of Health and Human Services, Division of Vaccine Injury
4/ The special master incorrectly identified May 9, 2011 as the date on which R.D.S.’s treating
physicians first noted CP as a diagnosis. See Somosot, 2014 WL 1926491, at *3 (citing Ex. 8 at
18, Ex. 9 at 2).
5

Case 1:13-vv-00710-LJB Document 36 Filed 10/03/14 Page 6 of 12
Compensation. Ex. A. Upon reviewing R.D.S.’s medical records, Dr. Dalle-Tezze
concluded that R.D.S. “had microcephaly from birth, failure to thrive from six
months of age, and demonstrated signs of persistent developmental delay and
abnormal muscle tone beginning in 2008, which were all signs and symptoms of
what was subsequently diagnosed as cerebral palsy in 2011.” Id. at 2.
On March 19, 2014, the special master issued an order in which she noted
that petitioners had not submitted any statement by a medical doctor refuting Dr.
Dalle-Tezze’s opinion that R.D.S. had displayed symptoms of CP before 2011. On
April 16, 2014, petitioners filed a status report stating that they had no additional
information to file in this case.
On April 24, 2014, the special master issued her decision dismissing the
petition as untimely under 42 U.S.C. § 300aa-16(a)(2). Based upon her review of
R.D.S.’s medical records as well as the declaration submitted by Dr. Dalle-Tezze,
the special master found that “the first symptoms of R.D.S.’s CP occurred in 2008
or earlier,” more than three years before the filing of the petition on September 23,
2013. Somosot, 2014 WL 1926491, at *7. Since the Vaccine Act requires that all
petitions for vaccine-related injuries be filed within the three-year period from the
first symptom or manifestation of onset, the special master determined that
petitioners had filed their petition outside of the three-year statute of limitations.
Petitioners filed a timely motion for review of that decision on May 6, 2014,
asserting that the special master’s dismissal was arbitrary, capricious, an abuse of
discretion, and not in accordance with law.
DISCUSSION
I. Standards of Review
This court has jurisdiction to review the decision of a special master in a
Vaccine Act case. 42 U.S.C. § 300aa-12(e)(2). “Under the Vaccine Act, the Court
of Federal Claims reviews the decision of the special master to determine if it is
‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law[.]’” de Bazan v. Sec’y of Health & Human Servs., 539 F.3d 1347, 1350 (Fed.
Cir. 2008) (alteration in original) (quoting 42 U.S.C. § 300aa-12(e)(2)(B), and
citing Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274, 1277 (Fed. Cir.
6

Case 1:13-vv-00710-LJB Document 36 Filed 10/03/14 Page 7 of 12
2005)). The court may sustain the special master’s decision, set aside any findings
of fact or conclusion of law of the special master found to be arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law and issue its own
findings of fact and conclusions of law, or remand the petition to the special master
for further action in accordance with the court’s decision. 42 U.S.C. § 300aa-
12(e)(2).
This court uses three distinct standards of review in Vaccine Act cases,
depending upon which aspect of a special master’s judgment is under scrutiny:
These standards vary in application as well as degree of
deference. Each standard applies to a different aspect of
the judgment. Fact findings are reviewed . . . under the
arbitrary and capricious standard; legal questions under
the “not in accordance with law” standard; and
discretionary rulings under the abuse of discretion
standard.
Munn v. Sec’y of the Dep’t of Health & Human Servs., 970 F.2d 863, 870 n.10
(Fed. Cir. 1992).
The arbitrary and capricious standard of review, applied to the special
master’s factual findings, is limited in scope and is highly deferential. Lampe v.
Sec’y of Health & Human Servs., 219 F.3d 1357, 1360 (Fed. Cir. 2000); Burns v.
Sec’y of the Dep’t of Health & Human Servs., 3 F.3d 415, 416 (Fed. Cir. 1993);
Munn, 970 F.2d at 870 (noting that the arbitrary and capricious standard of review
is “well understood to be the most deferential possible”) (citations omitted). Under
this standard, “[i]f the special master has considered the relevant evidence of
record, drawn plausible inferences and articulated a rational basis for the decision,
reversible error will be extremely difficult to demonstrate.” Hines ex rel. Sevier v.
Sec’y of the Dep’t of Health & Human Servs., 940 F.2d 1518, 1528 (Fed. Cir.
1991).
When the court’s review of a special master’s decision involves statutory
construction or other legal issues, the “not in accordance with law” standard is
applied. Hines, 940 F.2d at 1527. Under that standard, the court reviews the
special master’s legal conclusions de novo, without deference. Avera v. Sec’y of
7

Case 1:13-vv-00710-LJB Document 36 Filed 10/03/14 Page 8 of 12
Health & Human Servs., 515 F.3d 1343, 1347 (Fed. Cir. 2008); Saunders v. Sec’y
of the Dep’t. of Health & Human Servs., 25 F.3d 1031, 1033 (Fed. Cir. 1994).
The third standard of review, abuse of discretion, is applicable when the
special master excludes evidence or otherwise limits the record upon which he
relies. See Munn, 970 F.2d at 870 n.10. This standard of review “will rarely come
into play except where the special master excludes evidence.” Id.
In this case, the court reviews the special master’s factual findings as to the
timing of R.D.S.’s first symptoms of CP under the deferential arbitrary and
capricious standard. E.g., Carson v. Sec’y of Health & Human Servs., 97 Fed. Cl.
620, 624-25 (2010) (Carson I), aff’d, 727 F.3d 1365 (Fed. Cir. 2013) (Carson II).
By contrast, the special master’s interpretation and application of the Vaccine
Act’s statute of limitations present questions of law which the court reviews de
novo. Goetz v. Sec’y of Health & Human Servs., 45 Fed. Cl. 340, 341 (1999),
aff’d, 4 F. App’x 827 (Fed. Cir. 2001).
II. The Special Master Did Not Err in Dismissing the Petition as Untimely
Petitioners argue that the special master erred in dismissing their claim as
untimely under the Vaccine Act’s three-year statute of limitations. Pursuant to that
statute, “no petition may be filed for compensation under the Program for [a
vaccine-related] injury after the expiration of 36 months after the date of the
occurrence of the first symptom or manifestation of onset or the significant
aggravation of such injury.” 42 U.S.C. § 300aa-16(a)(2).
Petitioners assert two objections to the special master’s decision. First,
petitioners dispute the special master’s factual finding that R.D.S. displayed
symptoms of CP “in 2008 or earlier.” Somosot, 2014 WL 1926491, at *7.
According to petitioners, “there is no medical evidence in the record that R.D.S.
suffered from cerebral palsy before August 24, 2011, the date cerebral palsy first
appears in the medical records.”5 Pet’rs’ Mot. at 10; see also id. at 7. In
5/ As noted by the special master and by respondent, petitioners incorrectly identify August
24, 2011 as the date on which CP is first mentioned in R.D.S.’s medical records. See Somosot,
2014 WL 1926491, at *4 & n.2; Resp’t’s Resp. at 6 & n.4, 10 & n.5. As previously discussed,
Dr. Robertson first noted CP as a diagnosis on May 12, 2011. Although CP was also listed as a
(continued...)
8

Case 1:13-vv-00710-LJB Document 36 Filed 10/03/14 Page 9 of 12
petitioners’ view, the special master erred in finding that R.D.S.’s pre-2011
symptoms were symptoms of CP because those symptoms were indicative of
conditions other than CP and were not sufficient to support a CP diagnosis. Id. at
13, 15.
Second, petitioners argue that the special master abused her discretion by
failing to give “proper weight” to the fact that R.D.S.’s treating physicians did not
diagnose CP until 2011. Pet’rs’ Mot. at 12 (stating that “[t]he special master erred
in granting little importance to the contemporaneous medical records”
demonstrating that CP was not diagnosed until 2011). Had the special master
afforded appropriate weight to this fact, petitioners contend, she would have found
petitioners’ claim to be within the statutory limitations period. Id. at 11-17.
Petitioners’ assertions of error reflect a misunderstanding of the applicable
legal standard. As the special master correctly noted, the Federal Circuit has held
that the Vaccine Act’s statute of limitations “begins to run on the calendar date of
the occurrence of the first medically recognized symptom or manifestation of onset
of the injury claimed by the petitioner.” Cloer v. Sec’y of Health & Human Servs.,
654 F.3d 1322, 1325 (Fed. Cir. 2011) (en banc); see also Markovich v. Sec’y of
Health and Human Servs., 477 F.3d 1353, 1360 (Fed. Cir. 2007) (holding that the
“first symptom or manifestation of onset” of a vaccine injury, for the purposes of
42 U.S.C. § 300aa-16(a)(2), “is the first event objectively recognizable as a sign of
a vaccine injury by the medical profession at large”). Contrary to petitioners’
argument, “it is the first symptom or manifestation of an alleged vaccine injury, not
first date when diagnosis would be possible,” that triggers the Vaccine Act’s
statute of limitations. Carson II, 727 F.3d at 1369 (citing Markovich, 477 F.3d at
1357-58).
In Markovich, the Federal Circuit noted the disjunctive nature of the phrase
“first symptom or manifestation of onset,” and concluded that “either a ‘symptom’
or a ‘manifestation of onset’ can trigger the running of the statute, whichever is
first.” 477 F.3d at 1357. A symptom, the court explained, may be subtle and
“indicative of a variety of conditions or ailments.” Id. at 1357. A manifestation of
onset, on the other hand, “is more self-evident of an injury and may include
significant symptoms that clearly evidence an injury.” Id. However, neither a
(...continued)
diagnosis on August 24, 2011, Ex. 8, at 2, 15, that is not the first reference.
9

Case 1:13-vv-00710-LJB Document 36 Filed 10/03/14 Page 10 of 12
symptom nor a manifestation of onset requires a definitive diagnosis of injury. Id.
at 1358.
Applying this legal standard, the special master reasonably concluded that
R.D.S. began experiencing symptoms of his later-diagnosed CP “in 2008 or
earlier.” Somosot, 2014 WL 1926491, at *7. In making this factual determination,
the special master relied upon the contemporaneous medical records prepared by
R.D.S.’s treating physicians in 2007 and 2008, which contained repeated
references to R.D.S.’s developmental delay, abnormal motor skills and muscle
tone, failure to thrive, and microcephaly. Id. at *6; see, e.g., Ex. 5 at 23 (March 18,
2008 observation of “gross motor delays”), 24 (April 3, 2008 observation of
“decreased axial skeletal tone” and inability to sit independently), 28 (noting
global developmental delays and delayed speech as of May 27, 2008), 29-31
(December 18, 2008 genetics consultation noting that R.D.S. could not walk
independently and suffered from microcephaly and hypertonicity); Ex. 6 at 3
(August 1, 2008 pediatric gastroenterology visit noting failure to thrive, poor
weight gain, hypertonic muscles, and developmental delay); Ex. 7 at 14-15
(October 1, 2008 pediatric neurology visit revealing that R.D.S. could not crawl,
walked only with a walker, sat only with support, did not point to indicate his
needs, and had severe microcephaly).
The special master also relied upon Dr. Dalle-Tezze’s declaration, which
explained that the aforementioned symptoms were symptoms of R.D.S.’s
subsequently diagnosed CP. Somosot, 2014 WL 1926491, at *6 (noting Dr. Dalle-
Tezze’s conclusion that R.D.S. “‘had microcephaly from birth, failure to thrive
from six months of age, and demonstrated signs of persistent developmental delay
and abnormal muscle tone beginning in 2008, which were all signs and symptoms
of what was subsequently diagnosed as cerebral palsy in 2011’” (quoting Ex. A at
2)). Although the special master afforded petitioners an opportunity to present an
affidavit by a medical doctor refuting Dr. Dalle-Tezze’s conclusions, petitioners
declined to offer any rebuttal evidence.
In view of Dr. Dalle-Tezze’s unrebutted testimony, which confirms that
R.D.S.’s developmental delay, abnormal motor skills and muscle tone, failure to
thrive, and microcephaly were objectively recognizable by the medical profession
at large as constituting symptoms of CP in 2007 and 2008, the court cannot
conclude that the special master acted irrationally in finding that the first symptom
10

Case 1:13-vv-00710-LJB Document 36 Filed 10/03/14 Page 11 of 12
of R.D.S.’s CP occurred in 2008 or earlier. Nor does the court find any error in the
special master’s application of the legal standard articulated by the Federal Circuit
in Markovich and Cloer. Under that standard, as the special master correctly
noted, “[t]he statute of limitations can and often does begin to run before a
petitioner’s condition is diagnosed definitively,” and the fact that R.D.S.’s treating
physicians did not diagnose CP until 2011 is of no moment. Somosot, 2014 WL
1926491, at *7; see Carson II, 727 F.3d at 1369; Markovich, 477 F.3d at 1358.
Accordingly, the special master did not err in dismissing petitioners’ claim as time-
barred under 42 U.S.C. § 300aa-16(a)(2).
Finally, with respect to petitioners’ claim that the special master did not
afford “proper weight” to the opinions of R.D.S.’s treating physicians, see Pet’rs’
Mot. at 11-12, the court must disagree. None of the records pointed to by
petitioners contain medical opinions provided by treating physicians that address
the issue of whether R.D.S. had symptoms or manifestations of CP in 2008 or
earlier. That specific issue is addressed by Dr. Dalle-Tezze and Dr. Dalle-Tezze’s
opinion on that issue is unrebutted.
Petitioners cannot proffer the absence of a diagnosis of CP in R.D.S.’s
medical records as of 2008 as a counterweight to the opinion of Dr. Dalle-Tezze.
The record before the special master contained no indication whether R.D.S.’s
treating physicians would agree or disagree that there is evidence of CP in R.D.S.’s
medical history through 2008. The court therefore rejects petitioners’ contention
that the special master failed to accord proper weight to the opinions of R.D.S.’s
treating physicians.
CONCLUSION
For the foregoing reasons, the court finds no error in the special
master’s dismissal of petitioners’ claim as untimely under 42 U.S.C. § 300aa-
16(a)(2). Accordingly, it is hereby ORDERED that
(1) Petitioners’ Motion for Review, filed May 6, 2014, is DENIED;
(2) The decision of the special master, filed April 24, 2014, is
SUSTAINED;
11

Case 1:13-vv-00710-LJB Document 36 Filed 10/03/14 Page 12 of 12
(3) The Clerk’s Office is directed to ENTER final judgment in
accordance with the special master’s decision of April 24, 2014; and
(4) The parties shall separately FILE any proposed redactions to this
opinion, with the text to be redacted clearly marked out or otherwise
indicated in brackets, on or before September 30, 2014.
/s/Lynn J. Bush
LYNN J. BUSH
Senior Judge
12

================================================================================
DOCUMENT 3: USCOURTS-cofc-1_13-vv-00710-3
Date issued/filed: 2015-04-07
Pages: 13
Docket text: JUDGE VACCINE REPORTED OPINION re: 44 Sealed Order on Motion for Review, Judge Vaccine Order/Opinion. Signed by Judge Lynn J. Bush. (kh) Copy to parties.
--------------------------------------------------------------------------------
Case 1:13-vv-00710-LJB Document 46 Filed 04/07/15 Page 1 of 13
In the United States Court of Federal Claims
No. 13-710 V
(Filed April 7, 2015)1
* * * * * * * * * * * * * * * * * * * * * * * *
RAYMOND SOMOSOT and *
WANWILAI SOMOSOT, on behalf of *
National Childhood Vaccine
R.D.S., a minor, *
Injury Act of 1986, 42 U.S.C.
*
§§ 300aa-1 to -34 (2012);
Petitioners, *
Untimely Petition under 42
*
U.S.C. § 300aa-16(a)(2);
v. *
Review of Special Master’s
*
Denial of Request for
SECRETARY OF HEALTH AND *
Attorneys’ Fees and Costs.
HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * * * * * * * * * *
Lorraine J. Mansfield, Las Vegas, NV, for petitioners.
Lynn E. Ricciardella, United States Department of Justice, with whom were
Joyce R. Branda, Acting Assistant Attorney General, Rupa Bhattacharyya,
Director, Vincent J. Matanoski, Deputy Director, and Gabrielle M. Fielding,
Assistant Director, Washington, DC, for respondent.
________________________________
OPINION
________________________________
BUSH, Senior Judge.
1/ Pursuant to Rule 18(b) of Appendix B of the Rules of the United States Court of Federal
Claims, this Opinion and Order was initially filed under seal on March 12, 2015. Pursuant to ¶ 4
of the ordering language, the parties were to propose redactions of the information contained
therein on or before March 26, 2015. No proposed redactions were submitted to the court.

Case 1:13-vv-00710-LJB Document 46 Filed 04/07/15 Page 2 of 13
Now pending before the court is petitioners’ motion for review of the special
master’s denial of their request for attorneys’ fees and costs under the National
Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (2012) (Act or
Vaccine Act). See Somosot ex rel. R.D.S. v. Sec’y of Health & Human Servs., No.
13-710, 2014 WL 6536059 (Fed. Cl. Spec. Mstr. Oct. 31, 2014) (Somosot III).2
The Secretary opposes the motion for review. For the reasons set forth below, the
court denies petitioners’ motion for review.
BACKGROUND
I. Procedural Overview
Petitioners filed their petition for compensation under the Vaccine Act on
September 23, 2013, alleging that their son R.D.S. developed cerebral palsy (CP)
as a result of the influenza vaccination he received on December 19, 2007. The
special master found that petitioners were not entitled to compensation under the
Vaccine Act because their petition was untimely. See Somosot ex rel. R.D.S. v.
Sec’y of Health & Human Servs., No. 13-710, 2014 WL 1926491 (Fed. Cl. Spec.
Mstr. Apr. 24, 2014) (Somosot I). This court then sustained the special master’s
decision denying entitlement to compensation under the Act. See Somosot ex rel.
R.D.S. v. Sec’y of Health & Human Servs., 118 Fed. Cl. 687 (2014) (Somosot II).
On September 19, 2014, petitioners filed an application for attorneys’ fees
and costs which the government opposed. Although respondent did not contest
that the petition was brought in good faith, the Secretary argued that their claim
was not supported by a reasonable basis. The special master agreed with
respondent that the petition in this case lacked a reasonable basis.
The special master noted that:
Under the Vaccine Act, a special master or a judge on the
Court of Federal Claims may award fees and costs for an
unsuccessful petition if “the petition was brought in good
faith and there was a reasonable basis for the claim for
which the petition was brought.”
2/ Following the example of the parties, all page references to Somosot III are to the version
of this opinion on the court’s website, not to the version found on Westlaw.
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Somosot III, at 7 (citing 42 U.S.C. § 300aa-15(e)(1) and Sebelius v. Cloer, 133 S.
Ct. 1886, 1893 (2013) (Cloer III). In particular, the special master found that “[a]
review of the relevant case law and [R.D.S.’s] medical records should have alerted
petitioners and their counsel that this case was untimely.” Id. at 8. The special
master therefore concluded that “there was no reasonable basis to bring this
petition” and denied petitioners’ request for attorneys’ fees and costs. Id. at 9.
II. Factual Background
R.D.S. was born on March 15, 2007 and received an influenza vaccination
during his nine-month well-baby visit on December 19, 2007. “[T]he first
symptoms of R.D.S.’s CP occurred in 2008 or earlier.” Somosot I, 2014 WL
1926491, at *7 (emphasis added). A diagnosis of CP, however, was not
mentioned in R.D.S.’s medical records until May 2011. Somosot III, at 6. As the
special master noted in Somosot III, five years separated the first symptoms of
R.D.S.’s CP and the petition filed in this case. Id. at 8. The Vaccine Act requires
that a petition be filed within three years of the first symptom or manifestation of
onset of the alleged vaccine injury. See 42 U.S.C. § 300aa-16(a)(2) (stating that
“no petition may be filed for compensation under the Program for such injury after
the expiration of 36 months after the date of the occurrence of the first symptom or
manifestation of onset . . . of such injury”).
DISCUSSION
I. Standard of Review
A. Three Distinct Standards of Review
This court has jurisdiction to review the decision of a special master in a
Vaccine Act case. 42 U.S.C. § 300aa-12(e)(2). “Under the Vaccine Act, the Court
of Federal Claims reviews the decision of the special master to determine if it is
‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law[.]’” de Bazan v. Sec’y of Health & Human Servs., 539 F.3d 1347, 1350 (Fed.
Cir. 2008) (alteration in original) (quoting 42 U.S.C. § 300aa-12(e)(2)(B), and
citing Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274, 1277 (Fed. Cir.
2005)). More specifically, this court uses three distinct standards of review in
Vaccine Act cases, depending upon which aspect of a special master’s judgment is
under scrutiny:
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These standards vary in application as well as degree of
deference. Each standard applies to a different aspect of
the judgment. Fact findings are reviewed . . . under the
arbitrary and capricious standard; legal questions under
the “not in accordance with law” standard; and
discretionary rulings under the abuse of discretion
standard.
Munn v. Sec’y of Dep’t of Health & Human Servs., 970 F.2d 863, 870 n.10 (Fed.
Cir. 1992).
B. The Abuse of Discretion Standard Applies to the Denial of a
Request for Attorneys’ Fees
To withhold an award of attorneys’ fees for an unsuccessful Vaccine Act
petition is within the discretion of the special master. See, e.g., Saxton ex rel.
Saxton v. Sec’y of Dep’t of Health & Human Servs., 3 F.3d 1517, 1520 (Fed. Cir.
1993) (stating that the Vaccine Act “clearly gives [the special master] discretion
over whether to make [an attorneys’ fees] award” in such cases). The denial of a
request for attorneys’ fees by a special master, therefore, is “generally reviewed for
abuse of discretion.” Scanlon v. Sec’y of Health & Human Servs., 116 Fed. Cl.
629, 633 (2014) (citations omitted); see, e.g., Chuisano v. United States, 116 Fed.
Cl. 276, 283-84 (2014) (“[A] special master’s decision whether to award or deny
attorneys’ fees and costs to unsuccessful petitioners is discretionary and, thus,
reviewed under an abuse of discretion standard.”) (citations omitted). In the
context of Vaccine Act cases, an abuse of discretion has not occurred when the
special master “considered the relevant evidence, drew plausible inferences, and
articulated a rational basis for [her] finding.” Masias v. Sec’y of Health & Human
Servs., 634 F.3d 1283, 1290 (Fed. Cir. 2011).
II. The Special Master Did Not Abuse Her Discretion in Denying
Petitioners’ Request for Attorneys’ Fees and Costs
A. The “Reasonable Basis” Requirement for an Award of Attorneys’
Fees and Costs to an Unsuccessful Petitioner under the Act
Under the Vaccine Act, the fact that a petition for compensation is ultimately
denied does not mean that the petitioner cannot be awarded attorneys’ fees and
costs. The governing language of the Act states that:
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If the judgment of the United States Court of Federal
Claims on such a petition does not award compensation,
the special master or court may award an amount of
compensation to cover petitioner’s reasonable attorneys’
fees and other costs incurred in any proceeding on such
petition if the special master or court determines that the
petition was brought in good faith and there was a
reasonable basis for the claim for which the petition was
brought.
42 U.S.C. § 300aa-15(e)(1). The two conditions for a fee award mentioned in this
statutory text are that the petition was brought in good faith and that the petition
had a reasonable basis. Id.
In this case, the special master found that the “good faith” requirement was
met by the Somosots. Somosot III, at 7. As for the requirement that a Vaccine Act
petition have a reasonable basis, the special master noted that this term is not
defined in the Act. Id. The special master also noted that even an untimely
petition may be found to have had a reasonable basis. Id. at 7-8.
B. The Totality of the Circumstances Test
The inquiry into whether a petition possessed a reasonable basis so as to
permit an award of attorneys’ fees, 42 U.S.C. § 300aa-15(e)(1), has been described
as a “totality of the circumstances” test. See Chuisano, 116 Fed. Cl. at 286
(“Numerous special masters, as well as this court, have held that reasonable basis
is an objective standard determined by the ‘totality of the circumstances.’”)
(citations omitted). Under this test, any jurisdictional barriers to the petition’s
success, among other factors, should be considered. Id. at 288. Further, the special
master may consider whether the preliminary investigation of the claim by the
petitioners’ attorney, before making the decision to file the petition, was reasonable
in light of the circumstances. Id.
C. Overview of Petitioners’ Arguments
Petitioners present a number of arguments in their motion for review
asserting that the special master’s denial of their request for attorneys’ fees and
costs was an abuse of discretion and contrary to law. First, they argue that their
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decision to file the petition in 2013 and not earlier was reasonable in light of the
complex facts in R.D.S.’s medical records. Pet’rs’ Mot. at 2. Second, petitioners
contend that the United States Supreme Court’s decision in Cloer III is analogous
to this case and compels an award of attorneys’ fees here. Id. at 5-6. Third,
petitioners rely upon another vaccine case, W.C. v. Sec’y of Health & Human
Servs., No. 07-456, 2011 WL 4537877 (Fed. Cl. Spec. Mstr. Feb. 22, 2011) (W.C.
v. HHS), aff’d in relevant part, 100 Fed. Cl. 440 (2011), aff’d, 704 F.3d 1352 (Fed.
Cir. 2013), to allege that their petition had a reasonable basis. Pet’rs’ Mot. at 7.
Finally, petitioners state that a denial of a request for attorneys’ fees and costs in
this case would constitute unequal treatment because less viable petitions have
been afforded attorneys’ fee awards under the Act. In this regard, petitioners argue
that the Vaccine Act requires that petitioners be treated equally. Id. (citing
Figueroa v. Sec’y of Health & Human Servs., 715 F.3d 1314, 1317-18 (Fed. Cir.
2013)). The court addresses each of these arguments in turn.
D. The Special Master’s Determination that the Petition Lacked a
Reasonable Basis Survives Review
Petitioners describe the claim in their petition as “admittedly tough, but yet
reasonable.” Pet’rs’ Mot. at 1. They also assert that this case was founded on
“complex facts,” and that this case was “firmly grounded in . . . [R.D.S.’s] medical
records.” Id. at 1, 6. Petitioners fail to explain, however, how the facts of this case
could justify filing a petition that was clearly untimely under precedent binding on
this court. This binding precedent, as the special master noted, holds that the
statute of limitations for Vaccine Act petitions runs from the date of the appearance
of symptoms of the alleged vaccine injury, not from the date that the alleged
vaccine injury is diagnosed. Somosot III, at 3, 8; see 42 U.S.C. § 300aa-16(a)(2)
(stating that “no petition may be filed for compensation under the Program for such
injury after the expiration of 36 months after the date of the occurrence of the first
symptom or manifestation of onset . . . of such injury”); Cloer v. Sec’y of Health &
Human Servs., 654 F.3d 1322, 1325 (Fed. Cir. 2011) (en banc) (Cloer I) (stating
that the Vaccine Act’s statute of limitations “begins to run on the calendar date of
the occurrence of the first medically recognized symptom or manifestation of onset
of the injury claimed by the petitioner”); Markovich v. Sec’y of Health and Human
Servs., 477 F.3d 1353, 1360 (Fed. Cir. 2007) (holding that the “‘first symptom or
manifestation of onset’” of a vaccine injury, for the purposes of 42 U.S.C. § 300aa-
16(a)(2), “is the first event objectively recognizable as a sign of a vaccine injury by
the medical profession at large”). In this instance petitioners failed to file their
petition within thirty-six months of the date of R.D.S.’s first symptoms of CP.
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Because the special master found that the Somosots brought their petition in
good faith, the fundamental question that remained to be resolved was whether
petitioners’ untimely Vaccine Act claim had a reasonable basis. She noted that it is
indeed possible for an untimely Vaccine Act claim to have a reasonable basis.
Somosot III, at 7-8. The special master provided two examples illustrating how an
untimely claim might have a reasonable basis: (1) when precedent governing the
running of the statute of limitations is unclear; and (2) when petitioners possess a
reasonable belief that the first symptom of the alleged vaccine injury occurred
within three years of filing their petition. Unfortunately for petitioners here,
precedent regarding the statute of limitations for Vaccine Act cases was firmly
established by the Federal Circuit in Cloer I, acting en banc in 2011, well in
advance of the Somosots’ decision to file their petition in September 2013. Thus,
no lack of clarity in precedent governing the statute of limitations for the filing of a
Vaccine Act petition can provide a reasonable basis for the untimely petition filed
in this case.
The second scenario described by the special master, where a petitioner has
a reasonable belief that the first symptom of an alleged vaccine injury occurred
within three years of the filing of the petition, is not addressed by substantive
argument in petitioners’ motion for review. According to the special master’s
opinion, petitioners argued before her “that they reasonably believed R.D.S’s
vaccine-related symptoms began within the limitations period based upon the
opinion of Dr. Wesley Robertson, R.D.S.’s pediatrician.” Somosot III, at 8.
Although it is true that in 2011 or 2013 Dr. Robertson articulated a hypothesis
about vaccine injury causation that linked R.D.S.’s CP to his influenza vaccination,
that commentary on causation is not relevant to the statute of limitations inquiry.
Id. Instead, petitioners and their counsel needed to review R.D.S.’s medical
records for the earliest symptoms of his CP. Id.
Petitioners have therefore failed to show that their untimely petition fits into
either of the special master’s illustrative examples of untimely petitions which
nonetheless have a reasonable basis. Precedent as to the running of the statute of
limitations was clear, and the first symptoms of CP in 2008 were clearly present in
R.D.S.’s medical records. Nor have petitioners identified any other reason why
their untimely petition should objectively be viewed as having had a reasonable
basis.
As the special master held,
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Here, the medical records clearly demonstrate that R.D.S.
exhibited symptoms of cerebral palsy in 2008, five years
before the petition was filed. Petitioners did not have a
reasonable basis to believe that R.D.S.’s first symptom of
cerebral palsy occurred after September 23, 2010, and
thus did not have a reasonable basis to file the petition.
Petitioner[s’] misunderstanding of the applicable legal
standard relating to section 16(a)(2) (when the statute of
limitations begins to run) does not make the filing of
their petition reasonable.
Somosot III, at 8. The petition did not have a reasonable basis because “[a] review
of the relevant case law and [R.D.S.’s] medical records should have alerted
petitioners and their counsel that this case was untimely.” Id. As summarized in
the conclusion section of the special master’s opinion, “there was no reasonable
basis to bring this petition, based on the clearly established law that the statute of
limitations begins to run on the date the first symptom or manifestation of onset
occurs.” Id. at 9 (citing 42 U.S.C. § 300aa-16(a)(2)).
The special master properly applied the “totality of the circumstances” test
described in Chuisano. See 116 Fed. Cl. at 286. This untimely petition was barred
by the statute of limitations, which is one factor in determining whether a petition
has a reasonable basis. Id. at 288. Further, there was inadequate investigation into
the onset of symptoms of R.D.S.’s CP, which occurred no later than 2008. Id.
Because the special master properly applied the “totality of the circumstances” test,
id. at 286, and “considered the relevant evidence, drew plausible inferences, and
articulated a rational basis for [her] finding,” Masias, 634 F.3d at 1290, her finding
that the petition lacked a reasonable basis was neither an abuse of discretion nor
contrary to law.3
E. Cloer III
3/ Petitioners have not explained how the facts in R.D.S.’s medical records could be
considered to be more complex than those in the medical records examined in Cloer I or
Markovich or other Vaccine Act cases where entitlement to compensation was denied due to the
running of the statute of limitations. The court sees no abuse of discretion in the special master’s
finding that R.D.S.’s medical records clearly demonstrated that he exhibited symptoms of CP in
2008.
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Before examining petitioners’ reliance on Cloer III, it is helpful to give some
background of that Supreme Court decision. The question of the availability of
attorneys’ fees and costs for untimely Vaccine Act petitions was thoroughly
addressed by the United States Court of Appeals for the Federal Circuit in Cloer v.
Secretary of Health & Human Services, 675 F.3d 1358 (Fed. Cir. 2012) (en banc)
(Cloer II). The conclusion of that decision succinctly states the holding of the
Federal Circuit:
A petitioner who asserts an unsuccessful but
nonfrivolous limitations claim should be eligible for a
determination of whether reasonable attorneys’ fees and
costs incurred in proceedings related to his or her petition
should be awarded. Therefore, we remand for a
determination as to whether Dr. Cloer’s [untimely]
petition was brought in good faith and whether the claim
for which her petition was brought had a reasonable
basis.
Cloer II, 675 F.3d at 1364 (emphases added).
The decision of the Supreme Court affirming Cloer II confirms that
petitioners filing untimely Vaccine Act petitions may receive an attorneys’ fee
award if their petitions were brought in good faith and had a reasonable basis:
The text of the [Vaccine Act] is clear: like any other
unsuccessful petition, an untimely petition brought in
good faith and with a reasonable basis that is filed with
– meaning delivered to and received by – the clerk of the
Court of Federal Claims is eligible for an award of
attorney’s fees.
Cloer III, 133 S. Ct. at 1895 (emphases added). The concluding sentence of Cloer
III is unambiguous:
We hold that [a Vaccine Act] petition found to be
untimely may qualify for an award of attorney’s fees if it
is filed in good faith and there is a reasonable basis for
its claim.
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Id. at 1896-97 (emphases added).
The fundamental problem with petitioners’ reliance on Cloer III is that the
Supreme Court did not comment on or address the question of how a special
master should determine whether an untimely petition has a “reasonable basis.”
The only question before the Supreme Court was whether the Vaccine Act
included untimely petitions among the unsuccessful petitions that could be eligible
for an attorneys’ fee award. Cloer III, 133 S. Ct. at 1890 (“The question before us
is whether an untimely petition can garner an award of attorney’s fees.”); see also
Resp’t’s Resp. at 12 n.4 (noting that “the issue of the reasonableness of the
underlying claim was not before the Supreme Court [in Cloer III], and thus the
Court did not address it”). Thus, there is no support in Cloer III for the following
argument presented in petitioner’s motion for review:
The Cloer [III] Court found that attorney’s fees and costs
were awardable – the Cloer [III] Court considered a
petition later determined to be filed after the statute of
limitations had run, was reasonable. This Court should
follow the ruling of Cloer [III], and determine the
petitioners’ claims in filing the petition [in this case]
were reasonable.
Pet’rs’ Mot. at 5. Petitioners appear to confuse an untimely Vaccine Act petition’s
eligibility for an attorneys’ fee award, which was firmly established by Cloer III,
with the different and separate requirement that an untimely Vaccine Act petition
also have a reasonable basis. See 42 U.S.C. § 300aa-15(e)(1).
Petitioners also state, without explanation, that:
The fact situation in Cloer [III] is markedly similar to the
case here. In both, the initial symptoms of a
vaccine-related injury and of unrelated malady, add up to
a reasonable basis to bring the claim, and, as in Cloer
[III], attorney’s fees and costs are awardable to meet the
mandate of the Vaccine Act.
Pet’rs’ Mot. at 6. There is, however, no discussion in Cloer III which addresses
the question of whether the untimely petition in that litigation had a reasonable
basis. Nor does Cloer III contain any discussion of an “unrelated malady.” The
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court is unable to interpret Cloer III as “markedly similar” to the facts of this case
or at all relevant to a determination of whether the untimely petition filed in this
case had a “reasonable basis.” The court finds petitioners’ reliance on Cloer III to
be unavailing.
F. W.C. v. HHS
Petitioners also attempt to find support for their request for attorneys’ fees in
W.C. v. HHS, another Vaccine Act case. Pet’rs’ Mot. at 7. The court observes that
in their motion for review only two sentences are devoted to this case, and no page
references to particular passages in the W.C. v. HHS opinion are provided. Id. As
respondent notes, W.C. v. HHS is a special master’s decision denying entitlement,
not a decision on a request for attorneys’ fees. Resp’t’s Resp. at 12. Any
commentary in that opinion discussing symptoms and an alleged vaccine injury is
necessarily focused on the causation or significant aggravation of a medical
condition, not on the question of whether the timely Vaccine Act petition filed in
that case had a reasonable basis at the outset.
Thus, the court cannot agree with the argument presented in petitioners’
motion for review which references W.C. v. HHS and cryptically states:
The Office of Special Masters has considered another
case similar to the one here discussing a petitioner who
had the disease multiple sclerosis. The court noted that it
was a subclinical disease and that the petitioner had a
reasonable belief that the vaccine caused the symptoms.
Pet’rs’ Mot. at 7 (citing generally to W.C. v. HHS, 2011 WL 4537877). Because
W.C. v. HHS addresses the issue of entitlement to compensation under the Act, not
the question of whether a Vaccine Act petition possessed a reasonable basis for its
filing in the first instance, any citation to W.C. v. HHS is inapposite to the inquiry
required here.
G. Equal Treatment
Finally, petitioners contrast the denial of attorneys’ fees and costs in this
case with the “inconsistent” fee awards in “each of the [Omnibus Autism
Proceeding] test cases.” Pet’rs’ Mot. at 7 (citing Autism General Order #1, 2002
WL 31696785 (Fed. Cl. Spec. Mstr. July 3, 2002)). The court notes, first, that the
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Omnibus Autism Proceeding did not expand or otherwise alter the three-year
window for filing a petition under the Vaccine Act. See Autism General Order #1,
2002 WL 31696785, at *8. The only alterations in petition processing in the
Omnibus Autism Proceeding that might be relevant to this case consisted of the
option of using a “short-form petition” and the option to participate in a proceeding
which examined vaccine injury causation for a group of cases. Id. at *7-8.
None of the advantages of the Omnibus Autism Proceeding, which were
adopted to confront an overwhelming wave of petition filings with similar
causation disputes, would have affected the timeliness of the petition filed in this
case. Here, petitioners first contacted counsel in December 2012. Pet’rs’ Mot. for
Fees, at 2. By that time, any Vaccine Act petition for R.D.S.’s alleged vaccine
injury of CP was already untimely, because the first symptoms of R.D.S.’s CP
occurred in 2008 at the latest. In other words, even if a short-form petition option
and a multi-case protocol had been made available to the Somosots and their
counsel, such as were offered in the Omnibus Autism Proceeding, any resulting
savings of time and effort in preparing a petition would not have assisted them in
filing a timely petition. Thus, even if the Somosots had been treated exactly like
the autism petitioners participating in the Omnibus Autism Proceeding, their
petition would still have been untimely and would still have lacked a reasonable
basis.
Petitioners also allege that “[m]any of the autism cases were less viable than
the instant case – many of them were untimely with poorly documented medical
records.” Pet’rs’ Mot. at 7. The Somosots also insist that “if the autism cases had
a reasonable basis, it follows that petitioners in the instant case had a reasonable
basis.” Id. It is impossible to conclude, based on these sweeping, unsubstantiated
remarks, that petitioners in this case have received unequal treatment so as to
violate the principle of equal treatment embodied in the Vaccine Act. It is certainly
true that the Federal Circuit has held that “the Vaccine Act enshrines a principle of
equal treatment for similarly situated vaccine-injured persons.” Figueroa, 715
F.3d at 1317-18 (citing Cloer I, 654 F.3d at 1340). Here, however, the Somosots
have not established that they were similarly situated to the autism petitioners
whose related, pending claims numbered in the hundreds, or that they received
unequal treatment in the denial of their request for attorneys’ fees and costs. The
court sees no evidence of unequal treatment of these petitioners in the special
master’s decision in Somosot III.
CONCLUSION
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For the foregoing reasons, the court finds no error in the special master’s
denial of petitioners’ request for attorneys’ fees and costs. Accordingly, it is
hereby ORDERED that
(1) Petitioners’ Motion for Review, filed November 23, 2014, is
DENIED;
(2) The special master’s Decision Denying Attorneys’ Fees and Costs,
filed October 31, 2014, is SUSTAINED;
(3) The Clerk’s Office is directed to ENTER final judgment in
accordance with the special master’s decision of October 31, 2014;
and
(4) The parties shall separately FILE any proposed redactions to this
opinion, with the text to be redacted clearly marked out or otherwise
indicated in brackets, on or before March 26, 2015.
/s/Lynn J. Bush
LYNN J. BUSH
Senior Judge
13