VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_17-vv-01150
Package ID: USCOURTS-cofc-1_17-vv-01150
Petitioner: E.A.L.
Filed: 2018-03-01
Decided: 2018-06-15
Vaccine: DPT
Vaccination date: 
Condition: autism
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Arthur Fredrick Lute, as father and legal guardian of E.A.L., filed a petition on March 1, 2018, seeking compensation under the National Vaccine Injury Compensation Program. The petition alleged that DPT vaccines received on July 9, 2012, August 10, 2012, October 19, 2012, July 31, 2013, and November 18, 2016, caused an encephalopathy leading to autism. The case was initially assigned to Special Master Millman and later transferred to Special Master Brian H. Corcoran. Special Master Corcoran noted concerns about the statute of limitations and ordered Petitioner to file an amended petition identifying the vaccine(s) and the first onset of the claimed injury. Petitioner filed an amended petition stating that the onset of the condition was in 2014. Respondent filed a motion to dismiss on January 18, 2018, arguing the petition was time-barred because medical records indicated E.A.L. had symptoms of autism in June 2013, which was fourteen months before the petition was filed in August 2017. Petitioner was given until February 9, 2018, to respond to the motion to dismiss but did not file a response. The public decision does not describe the specific symptoms, medical tests, treatments, or expert witnesses involved. The Special Master observed that claims asserting autism as an injury have rarely been successful in the Vaccine Program. The case was dismissed because it was not filed within the three-year statute of limitations period. The Clerk was ordered to enter judgment accordingly. The decision was reissued for publication on June 15, 2018.

Theory of causation field:
Petitioner alleged that DPT vaccines administered on July 9, 2012, August 10, 2012, October 19, 2012, July 31, 2013, and November 18, 2016, caused an encephalopathy leading to autism in the minor child E.A.L. The petition was filed on March 1, 2018. Respondent moved to dismiss, asserting the claim was time-barred. Medical records indicated E.A.L. showed developmental delays in June 2013 and was diagnosed with a developmental delay on July 13, 2013. The Special Master determined that the three-year statute of limitations required the petition to be filed by June 2016. As the petition was filed on August 25, 2017, it was fourteen months late. Petitioner failed to respond to the motion to dismiss. The Special Master, Brian H. Corcoran, dismissed the case as untimely. The public decision does not detail the specific mechanism of injury or name any experts.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_17-vv-01150-0
Date issued/filed: 2018-06-15
Pages: 3
Docket text: PUBLIC DECISION (Originally filed: 3/1/2018) regarding 21 DECISION of Special Master, Signed by Special Master Brian H. Corcoran. (fm) Service on parties made.
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Case 1:17-vv-01150-UNJ Document 23 Filed 06/15/18 Page 1 of 3
REISSUED FOR PUBLICATION
JUN 15 2018
OSM
U.S. COURT OF FEDERAL CLAIMS
lfn tbe Wniteb
~tates
QCourt of jfe beral QClaitns
FILED
OFFICE OF SPECIAL MASTERS
No. 17-llSOV
MAR -1 2018
(Not to be Published)
U.S. COURT OF
* * * * * * * * * * * * * * * * * * * * * * * * *
FEDERAL CLAIMS
ARTHUR FREDRICK LUTE, as father * Special Master Corcoran
and legal guardian ofE.A.L., *
* Filed: March 1, 2018
Petitioner, *
v. * Respondent's Motion to Dismiss;
* Dismissal of Petition; Vaccine
SECRETARY OF HEALTH * Act; Denial Without Hearing; Statute
AND HUMAN SERVICES, * of Limitations.
*
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * * *
Arthur Fredrick Lute, prose, Imperial Beach, CA, for Petitioner.
Heather Pearlman, U.S. Dep't of Justice, Washington, D.C. for Respondent.
DECISION DISMISSING CASE AS UNTIMEL Y1
On August 25, 2017, Arthur Lute filed a petition on behalf of his minor child, E.A.L,
seeking compensation under the National Vaccine Injury Compensation Program.2 The petition
alleged that the diphtheria, pertussis, and tetanus ("DPT") vaccines E.A.L. received on July 9,
2012, August 10, 2012, October 19, 2012, July 31, 2013, and November 18, 2016 caused an
encephalopathy leading to autism. See Amended Petition ("Am. Pet.") (ECF No. 17) at 1, 3.
1 Although this Decision has been formally designated "not to be published," it will nevertheless be posted on the
Court of Federal Claims's website in accordance with the £-Government Act of2002, 44 U.S.C. § 3501 (2012). This
means the ruling will be available to anyone with access to the internet. As provided by 42 U.S.C. § 300aa
l 2(d)(4)(8), however, the parties may object to the Decision's inclusion of certain kinds of confidential information.
Specifically, under Vaccine Rule I 8(b) , each party has fourteen days within which to request redaction "of any
information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged
or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly
unwarranted invasion of privacy." Vaccine Rule I 8(b). Otherwise, the Decision in its present form will be available.
id.
2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of I 986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-IO through 34 (2012) ("Vaccine Act" or "the Act").
Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).

Case 1:17-vv-01150-UNJ Document 23 Filed 06/15/18 Page 2 of 3
This Petition was originally assigned to Special Master Millman, but was transferred to me
after Petitioner began filing medical records. See Notice of Reassignment, dated Sept. 19, 2017
(ECF No. 9). Shortly thereafter, I held a status conference on November 7, 2017. At that time
conference, I discussed the progression of the case and the medical records that would need to be
filed in order for the claim to continue. Specifically, I ordered Petitioner to file an Amended
Petition, identifying the vaccine(s) at issue and the first onset of the claimed injury, given my
concerns that the petition was likely filed outside the statute of limitations. See Scheduling Order,
dated Nov. 8, 2017 (ECF No. 16). Any vaccine administered in 2013 or earlier was unlikely to be
actionable under the Program's three-year limitations period. I also instructed Respondent to file
a motion to dismiss if, after considering the amended petition, he believed the claim was time
barred. Id. at 2.
Petitioner filed an amended petition, as referenced above, stating that several DPT vaccines
caused E.A.L.'s autism, all but one being administered in 2012-2013. Am. Pet. at 1. Despite my
instructions, Petitioner did not allege a precise date of onset, stating instead that "onset of the
mitochondrial change/illness as effected by underlying reasons related to immunization(s), as
noted in childs [sic] medical records-2014." Id. at 3. As instructed, Respondent thereafter filed a
motion to dismiss on January 18, 2018, arguing that the petition was time-barred because there is
record evidence that E.A.L. had symptoms of autism in June 2013, exceeding the statute of
limitations by fourteen months (since this petition was filed in August 2017). See Motion to
Dismiss, dated Jan. 18, 2018 (ECF No. 18). On January 24, 2018, I issued a written scheduling
order, allowing Petitioner until February 9, 2018 to file a response. See Scheduling Order, dated
Jan. 24, 2018 (ECF No. 20). That order was mailed to Petitioner. To date, no response has been
filed.
The statute oflimitations prescribed by the Vaccine Act is three years, or thirty-six months.
Section 16(a)(2). Thus, the period in which to bring a Program claim terminates "after the
expiration of 36 months after the date of the occurrence of the first symptom of manifestation of
onset or of the significant aggravation of such injury." Id. The statute begins to run from the
manifestation of the first objectively cognizable symptom, whether or not that symptom is
sufficient for diagnosis. Carson v. Sec'y of Health & Human Servs., 727 F.3d 1365, 1369 (Fed.
Cir. 2013). Special masters have appropriately dismissed cases that were filed outside the
limitations period, even by a single day or two. See, e.g., Spohn v. Sec'y of Dep't of Health &
Human Servs., No. 95-0460V, 1996 WL 532610 (Fed. Cl. Spec. Mstr. Sept. 5, 1996) (dismissing
case filed one day beyond thirty-six-month limitations period), mot. for review denied, (Fed. Cl.
Jan. 10, 1997), aff'd, 132 F.3d 52 (Fed. Cir. 1997).
The medical records filed by Petitioner indicate that E.A.L. began showing developmental
delays in June 2013, when he was evaluated by a neurologist for concerns that E.A.L. was not
responding to his name. See Oct. 6, 2017, Records at 7. Thereafter, E.A.L. had a series of
2

Case 1:17-vv-01150-UNJ Document 23 Filed 06/15/18 Page 3 of 3
evaluations and was diagnosed with a developmental delay on July 13, 2013. See Oct. 18, 2017,
Records at 29. Because the medical records clearly indicate that E.A.L.' s symptoms began in June
2013, the petition would need to have been filed by June 2016 in order to be timely. The petition,
however, was not filed until August 25, 2017, fourteen months after the statute oflimitations period
had expired.
Thus, this case is dismissed because it was not filed within the statute of limitations.3
The Clerk shall enter judgment accordingly.
IT IS SO ORDERED.
hit~
Brian H. Corcoran "'-
Special Master
3 I also observe, as set forth in more detail in my November 8th Scheduling Order, that claims asserting autism as an
injury have almost never been successful in the Vaccine Program -and hence even if the claim had been timely filed,
or Petitioner could establish some basis for equitable tolling of the statute, the claim would very likely fail regardless.
3