Paul Gallagher v. HHS - autism spectrum disorder (ASD) (2018)

On October 5, 2017, Paul Gallagher, as parent and natural guardian for his minor son R.G., filed a petition seeking compensation under the National Vaccine Injury Compensation Program. The petition alleged that childhood vaccines R.G. received on October 15, 2014, caused him to suffer developmental delays diagnosed as autism spectrum disorder (ASD).

Special Master Brian H. Corcoran held an initial status conference on November 27, 2017, and expressed concerns about the claim's reasonable basis, noting that vaccine-autism claims have historically been unsuccessful.

He explained that while Table claims based on a theory of encephalopathy causing a neurologic injury could be successful in rare circumstances, the record did not support R.G. suffering such an injury. A deadline of January 31, 2018, was set for R.G.'s medical records, which was extended twice.

Respondent filed additional medical records on April 12, 2018, and June 13, 2018. On May 9, 2018, Special Master Corcoran held another status conference and reiterated his view that the claim likely faced reasonable basis problems, stating it was highly unlikely Petitioner could show sufficient grounds to proceed.

He noted the record did not support an assertion that R.G. experienced a vaccine-induced encephalopathic reaction or that his developmental regression was more than temporally related to the vaccines. Respondent was directed to file a motion to dismiss by July 31, 2018, and Petitioner was to respond by August 31, 2018.

Respondent filed the motion to dismiss on July 26, 2018. Petitioner failed to respond by the August 31 deadline.

On September 6, 2018, Special Master Corcoran ordered the overdue response, and when Petitioner failed to comply, he issued an order to show cause on September 18, 2018, why the case should not be dismissed. Petitioner still had not filed a brief or responded to the show cause order.

The Special Master noted that to receive compensation, a petitioner must prove a "Table Injury" or that an injury was actually caused by a vaccine, meeting the test set forth in Althen v. Sec'y of Health & Human Servs.

The public decision does not describe the specific vaccines R.G. received beyond the date. The medical records did not support a vaccine-induced encephalopathy or that R.G.'s developmental regression was more than temporally related to the vaccines.

One record from October 23, 2017, noted in the health history that R.G. "experienced a sudden and significant regression in language ... shortly after receiving numerous vaccinations," but offered no explanation or opinion regarding any correlation.

Other records made no mention of any purported vaccine-induced injury, and at best, suggested only that R.G.'s parents reported a concern for vaccine-induced regression without any treater support connecting a vaccination with subsequent symptoms. One record from April 7, 2014, noted a concern for autism expressed prior to the vaccinations alleged to be causative.

The Special Master also cited Petitioner's repeated failures to comply with court orders, including missing deadlines and ignoring the order to show cause, as grounds for dismissal. The case was dismissed for insufficient proof and failure to prosecute.

Petitioner counsel was Paul Gallagher, pro se. Respondent counsel was Voris E.

Johnson. Special Master was Brian H.

Corcoran. The public decision does not specify an award amount or annuity terms as the case was dismissed.