Ivana Phillips v. HHS - MMR, encephalopathy (2016)

On August 23, 2016, Aprises Phillips and Ivan Phillips, Sr. filed a petition under the National Childhood Vaccine Injury Act of 1986 on behalf of their minor daughter, Ivana Phillips. Ivana was born on December 18, 2008.

The petition alleged that Ivana suffered an encephalopathy with developmental effects, including problems with fine and gross motor skills, behavior, and learning, as well as recurrent infections. The petitioners claimed that Ivana became sick with measles-like symptoms in January 2009 through exposure to her brother, Ivan, who allegedly developed measles-like symptoms after receiving an MMR vaccination on December 31, 2008.

Prior to this exposure, Ivana was developing normally. The petition stated that on January 22, 2009, Ivana was seen by Dr.

Ryan Walley, who noted a facial rash and described the illness as viral. The petitioners also reported that pediatrician Dr.

James Womack (or Wamack) informed them that the MMR vaccine could not have caused the listed problems or autism-like behavior. They explained their late filing by stating they had long believed the MMR vaccinations were not the cause, were unaware of the Vaccine Program, and later learned compensation might be available.

No medical records were filed in support of Ivana's petition. Special Master George L.

Hastings dismissed the petition on November 29, 2016, finding it was filed untimely. Under the Vaccine Act, petitions for vaccinations administered after October 1, 1988, must be filed within 36 months of the first symptom or manifestation of the alleged injury.

The Special Master determined that Ivana's alleged symptoms began in January 2009, making the petition filed on August 23, 2016, more than seven years later, thus time-barred. The Special Master treated the petitioners' request to extend the deadline as a request for equitable tolling but found no basis for it, as lack of knowledge of the Vaccine Program or a potential causal theory does not extend the statutory deadline.

The petitioners sought review in the Court of Federal Claims. Senior Judge Lynn J.

Bush sustained the dismissal on March 10, 2017, with the public opinion issued on April 6, 2017. The court reviewed the Special Master's factual findings regarding symptom onset under the arbitrary and capricious standard and the legal conclusions regarding the statute of limitations and equitable tolling de novo.

The court agreed that the Special Master's finding of symptom onset in January 2009 was supported by the record and that the application of the statute of limitations was correct. The court also affirmed the Special Master's decision not to equitably toll the statute of limitations, citing Cloer v.

Secretary of Health & Human Services, which held that ignorance of the Vaccine Act or a potential causal link does not constitute extraordinary circumstances for equitable tolling. The court noted that the Special Master had also observed, without deciding the case on that basis, that MMR-autism and developmental-delay theories have been repeatedly rejected in Vaccine Program decisions.

No compensation was awarded. The Phillips parents represented themselves; respondent was represented on review by Ryan D.

Pyles of the Department of Justice.