In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 06-795V

Filed: March 11, 2015

(Not to be Published)

* * * * * * * * * * * * * * * * * * * * * * * * * * * * *

ROBERT BEVILL and *

JANICE BEVILL, parents and *

natural guardians of V.B., a minor, *

* Autism; Statute of Limitations;

Petitioners, * Untimely Filed; Equitable Tolling

* Doctrine.

v. *

*

SECRETARY OF HEALTH AND *

HUMAN SERVICES, *

*

Respondent. *

* * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Richard Gage, Cheyenne, WY, for Petitioners.

Linda Renzi, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION

On November 27, 2006, Robert and Janice Bevill (“Petitioners”), on behalf of their 

daughter, V.B., filed a claim for compensation pursuant to the National Vaccine Injury 

Compensation Program (“Vaccine Program”).1(Petition.) 

The question at issue is whether this case was timely filed under the Vaccine Act’s statute 

of limitations. § 16(a)(2). Based on my analysis of the evidence, I conclude that this case was 

not timely filed, and thus this case is dismissed as untimely filed. 

I

BACKGROUND: THE OMNIBUS AUTISM PROCEEDING

A. General

This case is one of more than 5,400 cases filed under the Program in which petitioners 

alleged that conditions known as “autism” or “autism spectrum disorder” [“ASD”] were caused 

by one or more vaccinations. A special proceeding known as the Omnibus Autism Proceeding 

(“OAP”) was developed to manage these cases within the Office of Special Masters (“OSM”). A 

 

1 The applicable statutory provisions defining the Program are found at 42 U.S.C. § 300aa-10 et seq. (2006 ed.). 

Hereinafter, for ease of citation, all "§" references will be to 42 U.S.C. (2006 ed.)
2

detailed history of the controversy regarding vaccines and autism, along with a history of the 

development of the OAP, was set forth in the six entitlement decisions issued by three special 

masters as “test cases” for two theories of causation litigated in the OAP (see cases cited below), 

and will only be summarized here. 

A group called the Petitioners’ Steering Committee (“PSC”) was formed in 2002 by the 

many attorneys who represented Vaccine Act petitioners who raised autism-related claims. 

Their responsibility was to develop any available evidence indicating that vaccines could 

contribute to causing autism, and eventually present that evidence in a series of “test cases,” 

exploring the issue of whether vaccines could cause autism, and, if so, in what circumstances. 

Ultimately, the PSC selected a group of attorneys to present evidence in two different groups of 

“test cases” during many weeks of trial in 2007 and 2008. In the six test cases, the PSC 

presented two separate theories on the causation of ASDs. The first theory alleged that the 

measles portion of the measles, mumps, rubella (MMR) vaccine could cause ASDs. The second 

theory alleged that the mercury contained in thimerosal-containing vaccines could directly affect 

an infant’s brain, thereby substantially contributing to the causation of ASD. 

Decisions in each of the three test cases pertaining to the PSC’s first theory rejected the 

petitioners’ causation theories. Cedillo v. HHS, No. 98-916V, 2009 WL 331968 (Fed. Cl. Spec. 

Mstr. Feb. 12, 2009), aff’d, 89 Fed. Cl. 158 (2009), aff’d, 617 F.3d 1328 (Fed. Cir. 2010); 

Hazlehurst v. HHS, No. 03-654V, 2009 WL 332306 (Fed. Cl. Spec. Mstr. Feb. 12, 2009), aff’d

88 Fed. Cl. 473 (2009), aff’d, 604 F.3d 1343 (Fed. Cir. 2010); Synder v. HHS, No. 01-162V, 

2009 WL 332044 (Fed. Cl. Spec. Mstr. Feb. 12, 2009), aff’d, 88 Fed. Cl. 706 (2009).2 Decisions 

in each of the three “test cases” pertaining to the PSC’s second theory also rejected the 

petitioners’ causation theories, and the petitioners in each of those three cases chose not to 

appeal. Dwyer v. HHS, No. 03-1202V, 2010 WL 892250 (Fed. Cl. Spec. Mstr. Mar. 12, 2010); 

King v. HHS, No. 03-584V, 2010 WL 892296 (Fed. Cl. Spec. Mstr. Mar 12, 2010); Mead v. 

HHS, No. 03-215V, 2010 WL 892248 (Fed. Cl. Spec. Mstr. Mar. 12, 2010).

 Thus, the proceedings in the six “test cases” concluded in 2010. Thereafter, the 

Petitioners in this case, and the petitioners in other cases within the OAP, were instructed to 

decide how to proceed with their own claims. The vast majority of those autism petitioners 

elected either to withdraw their claims or, more commonly, to request that the special master 

presiding over their case decide their case on the written record, uniformly resulting in a decision 

rejecting the petitioner’s claim for lack of support. However, a small minority of the autism 

petitioners have elected to continue to pursue their cases, seeking other causation theories and/or 

other expert witnesses. A few such cases have gone to trial before a special master, and in the 

cases of this type decided thus far, all have resulted in rejection of petitioners’ claims that 

vaccines played a role in causing their child’s autism. In none of the post-test case rulings has a 

special master or judge found any merit in an allegation that any vaccine can contribute to 

causing autism.

B. Relevance of OAP to this case

 

2 The petitioners in Snyder did not appeal the decision of the U.S. Court of Federal Claims.
3

This case, however, is quite different from the OAP cases cited in Section I(A) of this 

Decision. The issue addressed in this Decision is not whether vaccines caused V.B.’s autism. 

The question addressed here, rather, is whether this petition was timely filed. I include this 

description of the OAP, therefore, only to show why this case, filed in 2006, was not processed 

in the usual manner of non-autism Program cases. Because this case involved a child who had 

been diagnosed with a form of autism, the processing of this case was delayed, at Petitioners’ 

request, along with the other thousands of autism cases, to await the final outcome of the autism 

“test cases”. Then, when the “test cases” were finalized in 2010, individual petitioners such as 

the Bevills were given a generous period of time to decide whether to abandon their claims or to 

develop a theory of their own case.

Thus, the sole issue that I address in this case does not concern whether V.B.’s autism 

was vaccine-caused, but only whether this petition was timely filed.

II

PROCEDURAL HISTORY OF THIS CASE

On November 27, 2006, Petitioners filed a “Short-Form Autism Petition for Vaccine

Compensation,” on behalf of their daughter, V.B., under the Vaccine Act.

3

 The pro se

Petitioners provided no specific details at that time regarding the nature of the alleged vaccinerelated injury. On December 6, 2006, further proceedings in this case were deferred pending the 

outcome of the OAP “test cases.” (Notice, filed Dec. 6, 2006.)

On March 1, 2007, pursuant to Vaccine Rule 4(c), Respondent filed a report in response 

to Petitioners’ claim, stating that the record to date was deficient. 

On February 13, 2009, I ordered Petitioners to file certain medical records, and in 

response, Petitioners filed various medical records4on May 20, 2009. 

On July 1, 2009, Respondent filed a Motion to Dismiss, contending that Petitioners’

claim was filed after the expiration of the statute of limitations. On July 22, 2009, Petitioners 

filed an opposition to Respondent’s Motion to Dismiss.

 

3 By filing the Short-Form Autism Petition for Vaccine Compensation, the Petitioner, in effect, alleged that: 

[a]s a direct result of one or more vaccinations covered under the National Vaccine Injury 

Compensation Program, the vaccinee in question has developed a neurodevelopmental disorder, 

consisting of an Autism Spectrum Disorder or a similar disorder. This disorder was caused by a 

measles-mumps-rubella (MMR) vaccination; by the “thimerosal” ingredient in certain DiphtheriaTetanus-Pertussis (DTP), Diphtheria-Tetanus-acellular Pertussis (DTaP), Hepatitis B, and 

Hemophilus Influenza Type B (HIB) vaccinations; or by some combination of the two. 

(Autism General Order #1, 2002 WL 31696785 at *8 (Fed. Cl. Spec. Mstr., July 3, 2002).) 

4 Petitioners filed Exhibits A through F on May 20, 2009. Other exhibits were filed at various times thereafter, also 

identified with letters of the alphabet. I will refer to these exhibits as Pet. Ex. A, Pet. Ex. B, etc.
4

On December 2, 2010, I ordered Petitioners to provide a statement, within 30 days,

identifying their theory of how V.B.’s vaccines caused her autism, followed by an expert report 

within 90 days. On January 3, 2011, Petitioners filed a motion for a stay of proceedings, 

pending the outcome of a case then before the U.S. Supreme Court.5 Petitioners filed a general

description of their theory of vaccine causation on January 6, 2011. On January 20, 2011, I filed 

an Order indicating that Petitioners would not be required to file anything further until instructed 

to do so. 

In August of 2012, attorney Richard Gage became counsel of record for the Petitioners. 

On August 2, 2012, I filed an Order deferring my ruling on Respondent’s motion to 

dismiss the petition for untimeliness. That Order also instructed Petitioners to file the report of 

their medical expert. 

Petitioners filed an expert report of Dr. Andrew Zimmerman on May 22, 2013 (see Pet. 

Ex. I), along with various medical records (Exs. G, H, J, K, L, and M). Petitioners filed 

additional exhibits on June 27, 2013, and February 11, 2014, and on May 9, 2014, they filed two 

expert reports of Dr. Mary Megson.

Respondent filed additional evidence, designated as Respondent’s Exhibits A 

through E, on August 18, 2014.6

Respondent filed a renewed Motion to Dismiss this case, again alleging untimely 

filing, on August 19, 2014. Petitioners filed a Response to that motion on September 18, 

2014.

III

FACTUAL HISTORY

V.B. was born on December 4, 2001. (Pet. Ex. A, p. 16.) Dr. Gregory Williams 

assessed V.B. on October 30, 2002, when she was eleven months old, observing that V.B. “is not 

doing much in terms of motor development... [s]he is not walking, not crawling... [s]he says 

‘Da-Da’, no other words.” (Pet. Ex. A, p. 7.) As part of his assessment, he noted “ ? gross motor 

delay.” (Id.) Three months later, on February 7, 2003, Dr. Williams recorded that V.B. was “still 

crawling most of the time, not cruising too much * * * [s]ays momma and dada, and baby, but a 

little bit slow.” (Pet. Ex. A, p. 5.) Dr. Williams’ impression was that “she may have a gross 

motor delay, it’s probably mild, and there may be a mild language delay.” (Id.) 

There are no contemporaneous reports in the medical record for the next 21 months, 

between February 2003 and November 2004. On December 2, 2004, V.B. was examined by 

pediatrician Dr. Ann Dobbins, who noted that V.B. had “normal growth & development until 

about 1 year ago was speaking--now [without] speech--[symptoms] worse in July.” (Pet. Ex. D, 

 

5 That case was Bruesewitz v. Wyeth LLC, 131 S.Ct. 1068 (2011), in which a decision issued on February 22, 2011.

6

I will refer to Respondent’s exhibits as Resp. Ex. A, Resp. Ex. B, etc. 
5

p. 5.) Dr. Dobbins also recorded that V.B. “doesn’t play [with] other children.” (Id.) In the 

“Assessment” section of this note, Dr. Dobbins recorded the acronym “PDD.”

7

(Id.)

Dr. Dobbins referred V.B. to neurologist David Urion, at Boston Children’s Hospital, 

who examined her on January 3, 2005.8 (Pet. Ex. E, p. 3.) Dr. Urion wrote as follows: 

In retrospect, early milestones were all achieved within the usual timeframes, but 

language milestones were significantly delayed. By 2 years of age she only had a 

single word utterance, mama, which was not preserved and was subsequently lost. 

Since that time she has essentially gained no new words * * *.

(Id.) He opined that her condition seemed to fit within the spectrum of a “pervasive 

developmental disorder.” (Id.) On March 8, 2005, Dr. Urion stated that V.B “is a young woman 

with a very significant language and communication disorder that probably falls within the 

spectrum of an autism spectrum disorder.” (Pet. Ex. E, p. 7.)

On April 14, 2006, Dr. Pamela Hofley examined V.B. and recorded that “Her past 

medical history is significant for her autistic behavior. She has been diagnosed with autism 

spectrum disorder with PPD. Symptoms started to arise at about 15 months and became very 

apparent by age two and two and a half.” (Pet. Ex. C, p. 3.) 

At this point, there is a three-year chronological gap in the medical record, until March 

13, 2009. On that date, V.B. was evaluated by neurologist Shafali Jeste, who recorded:

[A]ccording to her parents [V.B.] had typical development until age 2.5 when 

they felt as though she profoundly regressed. Mom says that in the first 2.5 years 

of life she was babbling, and even had some words such as ‘mommy, daddy, uhoh” and had typical motor development as well. She was social and had good eye 

contact, and had no repetitive behaviors. Mom says that around age 2.5 she 

completely stopped talking and started exhibiting many repetitive behaviors such 

as hand flapping and twisting her fingers.

(Pet. Ex. H, p. 1.)9 

Dr. Ann Neumeyer, a specialist at the Massachusetts Lurie Family Autism Center, 

examined V.B. on June 15, 2010, and recorded the following developmental history: “[A]t 12 

months, she had a couple of words, but by 2.5 she didn’t talk much, and she seemed to lose much 

of her language. By three she was silent.” (Pet. Ex. Q, p. 2.)

 

7

It appears likely, in the context of this medical record, that “PDD” is an abbreviation for “pervasive developmental 

disorder.”

8

I note that in various exhibits, subsequent treating physicians refer to a “diagnosis” of autism by Dr. Urion

specifically in November 2005. (See Pet. Ex. T, p.1; Pet. Ex. L, p. 1.) There are no notes or reports by Dr. Urion in 

the medical record for November 2005.

9 Respondent’s Renewed Motion to Dismiss, filed on August 19, 2014, does not mention any of Petitioners’ Exhibits 

that were filed after Pet. Ex. F. Those exhibits contain many statements regarding onset that must be considered.
6

On May 2, 2012, Dr. Mark Korson evaluated V.B. He recorded that “[a]round the age of 

2.5 years, [V.B.] demonstrated rocking behaviors, flapping of her arms, twisting of her fingers. 

Occurred periodically, not in response to any stimulation or trigger.” (Pet. Ex. T, p. 1.) He also 

noted that her condition might be related to mitochondrial disease. (Id., pp. 5-6.) On September 

26, 2012, Dr. Katherine Sims, who specializes in neurogenetics and mitochondrial disorders, also 

concluded that V.B. had a “possible mitochondrial disorder.” (Pet. Ex. L, p. 4.)

On December 5, 2012, Dr. Andrew Zimmerman examined V.B. and noted that 

“Regression took place in [V.B.] at 30 months of age with onset of crying, light sensitivity, and 

constipation. There was no specific temporal relationship to vaccines (or illness) which were 

given according to the usual regimen at that time.” (Pet. Ex. I, p. 2.) He summarized that V.B 

“has autism following regressive encephalopathy at 30 months of age and has been found to have 

a mitochondrial dysfunction based on a muscle biopsy (with Complex I and III deficiencies) 

while other metabolic and genetic testing has been normal.” (Pet. Ex. I, p. 3.) On March 7, 2014,

Petitioners filed the expert report of Dr. Zimmerman, which again described V.B.’s condition as 

“autism and a mitochondrial disorder.” (Pet. Ex. W, p. 1.) Dr. Zimmerman also noted V.B.’s 

“history of normal development until 30 months of age, followed by regression at 30 months of 

age, with onset of crying, light sensitivity and constipation, leading to the diagnosis of autism.” 

(Id.) He concludes that, “[a]lthough there was not a clear temporal relationship between 

immunizations and onset of regression and autism in [V.B.], it is more likely than not that she 

was vulnerable to regression due to the mitochondrial disorder.” (Id., p. 2.)

IV 

DIAGNOSTIC CRITERIA FOR AUTISM SPECTRUM DISORDERS

Concerning this issue, I have relied upon the information submitted by Respondent in this 

case on August 19, 2014, much of which is drawn from OAP test case testimony provided by 

three pediatric neurologists with considerable experience in diagnosing ASDs. (See Resp. Ex. C, 

pp. 1242A-86A; Resp. Ex. D, pp. 1566a-1644; Resp. Ex. E, pp. 3236-64.) I further note that a 

lengthy discussion of this issue was first compiled and published by my colleague, Special 

Master Vowell, in White v. HHS, 04-337V, 2011 WL 6176064 (Fed. Cl. Spec. Mstr. Nov. 22, 

2011.)

The terms “autism” and “autism spectrum disorder” have been used to describe a set of 

developmental disorders characterized by impairments in social interaction, impairments in 

verbal and non-verbal communication, and stereotypical restricted or repetitive patterns of 

behavior and interests. (See Cedillo, 2009 WL 331968, at *7 (Fed. Cl. Spec. Mstr. Feb. 12, 2009) 

(an OAP “test case”).) The specific diagnostic criteria for ASDs are found in the Diagnostic and 

Statistical Manual of Mental Disorders (American Psychiatric Association, 4th ed. text revision 

2000 (“DSM-IV-TR”)),10 the manual used in the United States to diagnose dysfunctions of the 

brain. (See Resp. Ex. C, p. 1278A.) The manual identifies the behavioral symptoms recognized 

 

10 I am aware that the American Psychiatric Association has recently released the fifth edition of the DSM, and that 

the DSM-V has somewhat revised the diagnostic criteria pertaining to Autism Spectrum Disorders. However, based 

upon my review of this revision to the DSM, it appears that the basic criteria for diagnosing ASDs are not

substantially changed from the DSM-IV. (The Petitioners in this case have not offered any evidence in response to 

the evidence supplied by Respondent concerning the diagnostic criteria for ASDs.)
7

by the medical profession as symptoms of ASD. The DSM-IV-TR contains specific diagnostic 

criteria for the various disorders within the autism spectrum, including “autistic disorder,” 

“Asperger’s disorder,” and “pervasive developmental disorder-not otherwise specified” (most 

frequently referred to as “PDD-NOS”).11 It is not uncommon for parents and even health care 

providers to use these terms in non-specific ways, such as referring to a child as having an 

“autism diagnosis,” even though the specific diagnosis is PDD-NOS. The term “autism” is often 

used to refer to any of the five disorders within the ASD spectrum. Of note, a child’s diagnosis 

within the autism spectrum may change from “autistic disorder” to PDD-NOS (or vice versa) 

over time. 

A. Diagnosing Autism Spectrum Disorders 

The behavioral differences present in persons with autism spectrum disorders encompass 

not only delays in development, but also qualitative abnormalities in development. (Resp. Ex. C, 

p. 1264A; Resp. Ex. D, pp. 1589-91.) There can be wide variability in children with the same 

diagnosis. One child might lack any language at all, while another with a large vocabulary might 

display the inability to engage in a non-scripted conversation. (Resp. Ex. D, pp. 1602A-1604.) 

However, both would have impairment in the communication domain. 

Testing for the presence of an ASD involves the use of standardized lists of questions 

about behavior directed to caregivers and parents, as well as observations of behaviors in 

standardized settings by trained observers. (Resp. Ex. C, pp. 1272A-74A.) As one expert 

explained, in diagnosing an ASD, “we try to observe symptoms, and when we have observed 

enough symptoms, then we see if the child meets these criteria.” (Resp. Ex. C, pp. 1278A-79; 

see also Resp. Ex. E, pp. 3253-54 (describing diagnostic instruments and their use in clinical 

settings).)

Typically in children with autism spectrum disorders, the symptoms have been present 

for weeks or months before parents report them to health care providers. (Resp. Ex. C, p. 1283.) 

The most common age at which parents recognize developmental problems, usually problems in 

communication or the lack of social reciprocity, is at 18 to 24 months of age. (Resp. Ex. E, pp.

3259-60.) The development of symptoms of an ASD usually occurs very gradually, and it is not 

uncommon for the parents to be unable to date the onset very precisely. (Resp. Ex. C, pp. 1285A1286A.) 

1. Autistic Disorder 

A diagnosis of “autistic disorder,” sometimes described as “classical autism,” requires a 

minimum of six findings, from a list of impairments divided into three categories, known as 

“domains,” of impaired function: (1) social interaction; (2) communication; and (3) restricted, 

repetitive, and stereotyped patterns of behavior, interests, and activities. Furthermore, the 

abnormalities in development must have occurred before the age of three. (Resp. Ex. C, p

1264A, 1279; Resp. Ex. D, p. 1618; Resp. Ex. E, p. 3250.) 

 

11 Besides the above-named three types of ASDs, there are two other categories of ASDs listed in the DSM-IV-TR--

i.e., Child Disintegrative Disorder and Rett’s Syndrome. However, in the text above I will describe only the three 

types. Symptoms in the other two types are generally similar, but have some differences not relevant to this case.
8

2. Pervasive Developmental Disorder-Not Otherwise Specified 

The DSM-IV-TR defines PDD-NOS as a “severe and pervasive impairment in the 

development of reciprocal social interaction,” coupled with impairment in either communication 

skills or the presence of stereotyped behaviors or interests. (DSM-IV-TR, p. 84.) The diagnosis is 

made when the criteria for other autism spectrum disorders, or other psychiatric disorders, such 

as schizophrenia, are not met. (Id.) It includes what has been called “atypical autism,” which 

includes conditions that present like “autistic disorder,” but with onset after age three, or which 

fail to meet the specific diagnostic criteria in one or more of the domains of functioning. (Id.) As 

was noted in the Dwyer OAP test case, this is the most prevalent of the disorders on the autism 

spectrum. Dwyer, 2010 WL 892250, at *30.

3. Asperger’s Disorder 

Asperger’s Disorder, also known as “Asperger’s syndrome,” is a form of highfunctioning autism. Though often the individual functions at a high cognitive level, the disorder 

presents with significant abnormalities in social interaction and with restricted, repetitive, and 

stereotyped patterns of behavior, interests, and activities. (See DSM-IV-TR, p. 84.)

B. The three domains of impairment, and behavioral symptoms in each domain

1. Social Interaction domain 

This domain encompasses interactions with others. (Resp. Ex. C, p. 1264A.) There are 

four subgroups within this domain. (Resp. Ex. D, p. 1594.) The subgroups include: (1) a 

marked impairment in the use of nonverbal behavior, such as gestures, eye contact and body 

language; (2) the failure to develop appropriate peer relations; (3) marked impairment in 

empathy; and (4) the lack of social or emotional reciprocity. (Id., pp. 1594-96.) To be diagnosed 

with “autistic disorder,” the patient must have behavioral symptoms from two of the four 

subgroups. (Id., p. 1594.) For an Asperger’s diagnosis, there must be two impairments in this 

domain as well. (DSM-IV-TR, p. 84.) Children who do not display “the full set of symptoms” 

are diagnosed with PDD-NOS. (Resp. Ex. C, p. 1275A.) Symptoms used to identify young 

children with impairments in the social interaction domain include lack of eye contact, deficits in 

social smiling, lack of response to their name, and the inability to respond to others. (Resp. Ex. 

C, pp. 1269A-70A.) 

2. Communication domain 

The communication domain involves both verbal and non-verbal communication, such as 

intonation and body language. (Resp. Ex. C, p. 1263; Resp. Ex. D, p. 1602A.) Language 

abnormalities in ASD encompass not only delays in language acquisition, but the lack of 

capacity to communicate with others. (Resp. Ex. C, p. 1267A.) Impaired communication 

abilities are one of the “most important and early recognized symptoms” of autism. Dwyer, 2010 

WL 892250 at *31.
9

There are four criteria within the communication domain. (Resp. Ex. D, p. 1602A.) 

They include: (1) a delay in or lack of development in spoken language, without the use of signs 

or gestures to compensate; (2) problems in initiating or sustaining conversation; (3) stereotypic 

or repetitive use of language, including echolalia and repeating the script of a video or radio 

presentation, such as singing a commercial jingle; and (4) the lack of spontaneous imaginative or 

make-believe play. (Id., pp. 1602A-05.)

Language delay, limited babbling, lack of gestures, lack of pointing to communicate 

things other than basic wants and desires, are all early symptoms used to diagnose impairments 

in the communication domain. (Resp. Ex. C, pp. 1266A-68A.) 

Speech and language delays are the symptoms most commonly reported by parents as a 

concern leading to a diagnosis of ASD. (Resp. Ex. C, p. 1284 (one of first concerns noted by 

parents is the lack of language development); Resp. Ex. E, p. 3253 (problems in social and 

communication domains tend to be observed much earlier than stereotyped behaviors).) 

3. Restricted, repetitive and stereotyped patterns of behavior domain 

There are four categories of behavioral characteristics within this domain. They include 

(1) a preoccupation with an interest that is abnormal in intensity or focus, such as spinning a 

plate or a wheel or developing an intense fascination with a particular interest, such as dinosaurs, 

cartoon characters, or numbers; (2) an adherence to nonfunctional routines or rituals, such as 

eating only from a blue plate, sitting in the same seat, or walking the same route; (3) stereotypic 

or repetitive motor mannerisms, such as finger flicking, hand regard, hand flapping, or twirling; 

and (4) a persistent preoccupation with parts of an object, such as focusing on the wheel of a toy 

car and spinning it, rather than playing with the toy as a car. (Resp. Ex. D, pp. 1613A-15; Resp. 

Ex. C, pp. 1271A-72A.)

C. Summary 

The evidence, as filed into the record of this case (Resp. Exs. A through E), establishes 

that a diagnosis of ASD is based on observations of behavioral symptoms. The symptoms are 

categorized into three domains, the domains of Social Interaction, Communication, and 

Stereotyped Behaviors.

The absence of any specific symptom would not rule out an ASD diagnosis, so long as 

the requisite numbers of impairments in each domain are present. Conversely, ASD cannot be 

diagnosed by any single abnormal behavior, but the ultimate diagnosis is based on an 

accumulation of symptomatic behaviors. 

For a PDD-NOS diagnosis, the child must display behavioral abnormalities in all three 

domains. However, this diagnosis is given when the impairments fall short of the criteria 

required for a diagnosis of “autistic disorder.” (Resp. Ex. C, p. 1275A.)

V

LEGAL STANDARD
10

The Vaccine Act provides that:

In the case of * * * a vaccine set forth in the Vaccine Injury Table which is 

administered after October 1, 1988, 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 * * *.

§ 16(a)(2) (emphasis added). In Cloer v. HHS, the Court of Appeals for the Federal Circuit 

affirmed that the statute of limitations begins to run on “the date of occurrence of the first 

symptom or manifestation of onset of the vaccine-related injury recognized as such by the

medical profession at large.” 654 F.3d 1322, 1325 (Fed. Cir. 2011)(en banc), cert. denied, 132 

S. Ct. 1908 (2012). This date is dependent on when the first sign or symptom of injury appears, 

not when a petitioner discovers a causal relationship between the vaccine and the injury. Id. at 

1335, citing Markovich v. HHS, 477 F.3d 1353, 1360 (Fed. Cir. 2007.) The date of the 

occurrence of the first symptom or manifestation of onset “does not depend on when a petitioner 

knew or should have known” about the injury. Id. at 1339.

VI

THIS CASE WAS NOT TIMELY FILED

On November 27, 2006, Petitioners filed a Short-Form Autism Petition for Vaccine 

Compensation on behalf of V.B. Therefore, for this petition to be timely filed within the 

Vaccine Act’s 36-month statute of limitations, the first symptom of V.B.’s ASD must have 

occurred no earlier than November 27, 2003. In this case, however, the medical records indicate 

that symptoms of V.B.’s ASD likely appeared before that date.

A. Medical record notations indicating onset prior to November 27, 2003

Among the most important medical records, in my view, are the only contemporaneous

records prior to November 27, 2003. That is, Dr. Gregory Williams assessed V.B. on October 

30, 2002, when she was eleven months old, and observed that V.B. “is not doing much in terms 

of motor development... [s]he is not walking, not crawling... [s]he says ‘Da-Da’, no other 

words.” (Pet. Ex. A, p. 7.) This apparent expression of concern about V.B.’s development was 

reiterated three months later, on February 7, 2003, when Dr. Williams observed that V.B. could 

“[s]ay momma and dada, and baby, but a little bit slow.” (Pet. Ex. A, p. 5.) He recorded his

impression that “she may have a gross motor delay, it’s probably mild, and there may be a mild 

language delay.” (Id.) (Emphasis added.) Thus, it appears that Dr. Williams noticed symptoms 

of V.B.’s language delay, first in October of 2002, and then again in February of 2003, when she 

was about 14 months old; these symptoms, with the benefit of hindsight, were very likely part of 

V.B.’s ASD. 

There are no contemporaneous reports in the medical record for the next 21 months, 

between February 2003 and November 2004. Thus, to the extent that symptoms appeared within 

those months, there are no contemporaneous medical records to document them. 
11

However, the record of this case contains a number of medical records created in late 

2004 and later years. These records confirm that V.B. ultimately was diagnosed with an ASD, 

and they also report retrospectively on V.B.’s symptom history. Two of those retrospective 

histories place the onset of ASD symptoms as occurring prior to the crucial date of November 

27, 2003. 

For example, on April 14, 2006, Dr. Pamela Hofley examined V.B. and recorded that 

“She has been diagnosed with autism spectrum disorder with PPD. Symptoms started to arise at 

about 15 months and became very apparent by age two and two and a half.” (Pet. Ex. C, p. 3.) 

Thus, this history clearly places the onset of V.B.’s autism symptoms at age 15 months, or 

around March 4, 2003.

Also, V.B. saw Dr. David K. Urion on January 3, 2005, and Dr. Urion wrote the 

following note:

In retrospect, early motor milestones were all achieved within the usual 

timeframes, but language milestones were significantly delayed. By 2 year of 

age, she only had a single word utterance, “mama,” which was not preserved and 

was subsequently lost. Since that time she has essentially gained no new words 

* * *.

(Pet. Ex. E, p. 3.) This history clearly indicates onset of language delay prior to age two 

(December 4, 2003), and strongly suggests delay of language milestones substantially earlier, 

making it seem quite likely that V.B.’s language delay had its onset prior to the crucial date of 

November 27, 2003.

In sum, the only contemporaneous records, made in October of 2002 and February 2003, 

plus the retrospective history later recorded by Dr. Hofley placing the onset of symptoms around 

March 4, 2003, clearly place the onset of V.B.’s ASD symptoms well prior to the key date of 

November 27, 2003, which would make this petition untimely. Further, the retrospective history 

taken by Dr. Urion also strongly suggests onset prior to November 27, 2003.

B. Medical records notations which are neutral or ambiguous concerning this issue

Next, there are three retrospective records which are somewhat ambiguous or neutral 

concerning the issue of when V.B’s autism symptoms had their onset. First, Dr. Ann Neumeyer 

examined V.B. on June 15, 2010, and wrote that--“[A]t 12 months, she had a couple of words, 

but by 2.5 she didn’t talk much, and she seemed to lose much of her language. (Pet. Ex. Q, p. 2.) 

For Dr. Neumeyer to write that “by” age 2.5 V.B. didn’t talk much implies that the onset of 

V.B’s language delay took place sometime between age 12 months and age 2.5. Therefore, by 

this history, V.B.’s onset of autism symptoms could have taken place either prior to November 

27, 2003 (when V.B. was just seven days short of two years of age), or after November 27, 2003.

Second, on December 2, 2004, pediatrician Dr. Ann Dobbins noted that V.B. had 

“normal growth & development until about 1 year ago was speaking--now [without] speech--

[symptoms] worse in July.” (Pet. Ex. D, p. 5.) Dr. Dobbins’ notation, when closely examined, is 

therefore essentially neutral concerning the “timely filing” issue in this case. That is, her report 

suggests that V.B’s normal growth and development” ended, and the beginning of her language 
12

delay began, “about 1 year ago.” (Id.) One year prior to Dr. Dobbins’ exam would have been 

December 2, 2003--only five days after the crucial date of November 27, 2003. And Dr. 

Dobbins wrote “about 1 year,” implying that the onset of V.B.’s autism symptoms could have 

been sometime just prior to December 2, 2003, or just after that date. Therefore, Dr. Dobbins’ 

notation is essentially neutral concerning the issue of whether V.B.’s autism symptoms began 

prior to November 27, 2003. 

Finally, in April of 2014, Dr. Mary Megson examined V.B., and then wrote the following 

note:

Father reported she had a large number of vaccines at age 23 months 

premedicated with Tylenol. These included DTaP, IPV, HIB, Hepatitis B, and 

Pneumococcal vaccine, 11/11/2003 (23 months), after which she had slow 

developmental regression into autism, diagnosed at age 30 months. She began 

twisting her fingers. She was afraid of light and alternated between diarrhea and 

constipation, had night sweats, cried inconsolably, and stopped talking.

(Ex. X, p. 1.) This notation indicates that the first symptoms of ASD onset began after

November 23, 2003, the date of the vaccinations described by Dr. Megson. If that onset was 

very soon after November 23, 2003, then it might predate the crucial date of November 27, 2003. 

But if the onset did not began until four or more days after the vaccinations, then the onset would 

have occurred after the crucial date. Therefore, I analyze this record as neutral concerning the 

issue of whether this petition was timely filed.

C. Medical records notations which would support onset after November 27, 2003

Finally, there are a few records which appear to indicate that the onset of V.B.’s 

symptoms took place after the crucial date of November 27, 2003, which would make the filing 

of this petition timely.

First, on March 13, 2009, V.B. was evaluated by neurologist Shafali Jeste, who recorded

as follows:

[A]ccording to her parents [V.B.] had typical development until age 2.5 when 

they felt as though she profoundly regressed. Mom says that in the first 2.5 years 

of life she was babbling, and even had some words such as “mommy, daddy, uhoh” and had typical motor development as well. She was social and had good eye 

contact, and had no repetitive behaviors. Mom says that around age 2.5 she 

completely stopped talking and started exhibiting many repetitive behaviors such 

as hand flapping and twisting her fingers.

(Pet. Ex. H, p. 2.)

Second, on May 2, 2012, Dr. Mark Korson evaluated V.B. He recorded that “[a]round 

the age of 2.5 years, [V.B.] demonstrated rocking behaviors, flapping of her arms, twisting of her 

fingers. Occurred periodically, not in response to any stimulation or trigger.” (Pet. Ex. T, p. 1.)
13

Third, on December 5, 2012, Dr. Andrew Zimmerman examined V.B. and noted that 

“Regression took place in [V.B.] at 30 months of age with onset of crying, light sensitivity, and 

constipation. There was no specific temporal relationship to vaccines (or illness) which were 

given according to the usual regimen at that time.” (Pet. Ex. I, p. 2.)

Fourth, when V.B. saw Dr. Katherine Sims on September 26, 2013, she wrote that V.B.’s 

autism symptoms started “[a]round 3 years of age.” (Ex. L, p. 1.)

I note that age 2.5 years is equal to age 30 months, and that V.B. turned 2.5 years on June 

4, 2004. Thus if these four histories are accepted, then V.B.’s first symptoms of autism began 

after November 27, 2003.

D. Analysis of all medical records

It is not easy to reconcile these contrasting histories of V.B.’s symptoms. But after 

considering all of this evidence, I find that the first symptoms of V.B.’s autism were her first 

symptoms of language delay, and that it is substantially “more probable than not” that her first 

symptoms of language delay took place prior to November 27, 2003.

Most important, in my final analysis, is the existence of the only contemporaneous 

relevant records in the record of this case, the two records of Dr. Williams created on October 

30, 2002, and February 7, 2003. These records indicate clearly that on those dates, Dr. Williams 

was concerned about possible language delay, based upon V.B.’s behavior. He was, of course, 

not sure at that time that V.B. would eventually be found to suffer from ASD, or anything 

serious at all. But with the benefit of hindsight, it now appears very likely that Dr. Williams’ 

suspicions on those dates were correct, that V.B. was in fact displaying the first symptoms of 

ASD at that time.

This conclusion is strongly supported by the notation of Dr. Pamela Hofley on April 14, 

2006. After being told on that date of V.B.’s symptom history, Dr. Hofley wrote unequivocally 

that V.B.’s symptoms of ASD “started to arise at about 15 months and became very apparent by 

age two and two and a half.” (Pet. Ex. C, p. 3.) Moreover, her date of onset at “about 15 

months” roughly coincides with the symptoms noted by Dr. Williams on February 7, 2003, when 

V.B. had just passed 14 months of age. 

Also very important is Dr. Urion’s record of January 3, 2005, when he wrote the 

following history:

In retrospect, early motor milestones were all achieved within the usual 

timeframes, but language milestones were significantly delayed. By 2 years of 

age she only had a single word utterance, “mama,” which was not preserved as 

subsequently lost. Since that time she has essentially gained no new words 

* * *.

(Pet. Ex. E, p. 3.) This history clearly indicates onset of language delay prior to age two. And, 

since V.B. turned age two on December 4, 2003, this statement strongly suggests language delay 
14

substantially earlier, making it seem quite likely that V.B.’s language delay had its onset prior to 

the crucial date of November 27, 2003. 

Of course, I have not failed to consider the other retrospective histories mentioned above 

at pp. 11-13, some of which, as noted, are neutral on this issue, but some of which are contrary

to my conclusion. Specifically, in the four histories cited at pp. 12-13, Drs. Jeste, Korson, 

Zimmerman, and Sims reported that they had been told, obviously by V.B.’s parents, that her 

first symptoms of ASD occurred at age 2.5 years (the same as 30 months of age) or around age 3 

years. But I note that those four histories were taken in 2009 (Dr. Jeste) and 2012 (Drs. Korson, 

Zimmerman, and Sims). In contrast, the medical records that I find persuasive were either made 

contemporaneously in 2002 and 2003, or on dates much earlier (January 3, 2005, and April 14, 

2006) than the four histories recorded in 2009 and 2012. I find that the reports made by V.B.’s 

parents at earlier dates are more reliable than reports that they made on later dates. Memories 

dim as time passes. Further, all of the four reports of later onset dates were made after this case 

was filed, when Petitioners might have been aware of a possible “timely filing” problem. Indeed, 

the last three reports, each recorded in 2012, were recorded after Respondent had filed a motion 

on July 1, 2009, asserting that this case was untimely filed.

Accordingly, for all the reasons discussed above, I find that it is “more probable than not” 

that V.B. displayed symptoms of autism prior to November 27, 2003, so that this case was 

untimely filed.

VII

THE PETITIONERS DO NOT QUALIFY FOR RELIEF UNDER THE “EQUITABLE

TOLLING” DOCTRINE IN THIS CASE

The Petitioners, in their latest memorandum concerning the timely filing issue, filed on 

September 18, 2014 (ECF #66), make a brief, unpersuasive argument that their petition was 

timely filed. However, they also note that under Cloer v. HHS, 654 F.3d 1322, 1340 (Fed. Cir. 

en banc 2011), the doctrine of “equitable tolling” is available to a petitioner whose petition was 

not timely filed. Their main argument in their response, therefore, is that if this petition is 

deemed untimely filed, nevertheless their untimely filing of this petition should be excused under 

that doctrine. Petitioners note that they have six children, three of whom have autism, and that 

they were acting pro se when they filed Vaccine Act petitions on behalf of their three autistic 

children. They argue that these family circumstances constitute “extraordinary circumstances,” 

and that they acted diligently. (ECF #66, pp. 2-3.)

I begin by noting my great sympathy for the immense challenges faced by the Bevill 

family. It obviously does constitute “extraordinary circumstances,” in the ordinary usage of 

those words, for a family to have six children, three of whom suffer from ASDs.

However, I must decide this issue not based upon sympathy, but by examining the 

controlling law. Based upon that examination, it appears to me that the circumstances faced by 

the Bevill family, though certainly constituting “extraordinary circumstances” in one sense, do 

not qualify them for relief under the “equitable tolling” doctrine in this case.
15

The short summary of my analysis is that the controlling case law indicates that not all 

“extraordinary circumstances” justify application of the “equitable tolling” doctrine. That 

doctrine is applicable in only two types of very limited circumstances--and the unfortunate 

circumstances of the Petitioners in this case do not fall within those two very limited types.

In Cloer, the Federal Circuit’s discussion, concluding that the equitable tolling doctrine 

does apply to cases in which a Vaccine Act petition was untimely filed, noted that “any analysis” 

of equitable tolling under federal law “begins with Irwin v. Department of Veterans Affairs, 498 

U.S. 89 (1990).” 654 F.3d at 1341. I conclude that Irwin is determinative concerning the issue 

of what type of “extraordinary circumstances” justify an application of the “equitable tolling” 

doctrine. In Irwin, the Court opined that equitable tolling is to be used “sparingly” in federal 

cases, and has been limited to cases involving (1) deception, or (2) the timely filing of a 

procedurally defective pleading. Specifically, the Irwin Court stated that:

Federal courts have typically extended equitable relief only sparingly. We 

have allowed equitable tolling in situations where the claimant has 

actively pursued his judicial remedies by filing a defective pleading during 

the statutory period, or where the complainant has been induced or tricked 

by his adversary’s misconduct into allowing the filing deadline to pass.

498 U.S. at 96. Clearly, the circumstances of this case do not fit within either of the two 

types of situations described by the Court in Irwin. Petitioners do not allege either that 

the Respondent engaged in any deception or trickery resulting in their missing their filing 

deadline, or that they filed some kind of defective pleading during the statutory 

limitations period, such as a petition filed in the wrong court.

Indeed, the general criteria applicable to a claim for equitable tolling were wellestablished by the U.S. Court of Appeals for the Federal Circuit, long before the ruling in 

Cloer. In Leonard v. Gober, 223 F.3d 1374, 1375-76 (Fed. Cir. 2000), cert. denied, 531 

U.S. 1130 (2001), the Federal Circuit noted that equitable tolling of a statute of 

limitations is allowed when Petitioners contend that--

the claimant has actively pursued his judicial remedies “by filing a 

defective pleading during the statutory period, or where the complainant 

has been induced or tricked by his adversary’s misconduct into allowing 

the filing deadline to pass.” Irwin v. DVA, 498 U.S. 89, 96 (1990).

Likewise, in Martinez v. United States, 333 F.3d 1295, 1318 (Fed. Cir. 2003), cert. denied, 540 

U.S. 1177 (2004), the court opined that:

Our cases, like the Supreme Court’s decision in Irwin, make clear that 

equitable tolling against the federal government is a narrow doctrine. As the 

Supreme Court noted in Irwin, mere excusable neglect is not enough to 

establish a basis for equitable tolling; there must be a compelling justification 

for delay, such as “where the complainant has been induced or tricked by his 

adversary’s misconduct into allowing the filing deadline to pass.” Irwin, 498 

U.S. at 96.
16

Martinez, 333 F.3d at 1318. Thus, pursuant to rulings in the Federal Circuit, as in Irwin, 

equitable tolling is applicable when one of two situations have been met--either the petitioners 

were deceived or tricked, or they filed a defective pleading within the statutory time period.

In the context of Vaccine Act cases, there are few decisions addressing the issue of 

whether the equitable tolling doctrine may excuse an untimely petition filing. This is because up 

until the date of the 2011 ruling in Cloer, the Federal Circuit’s ruling was that “equitable tolling” 

was not available in cases in which Vaccine Act petitions were untimely filed. See Brice v. 

HHS, 240 F.3d 1367 (Fed. Cir. 2001), overruled in Cloer, 654 F.3d at 1340. A few decisions 

issued since Cloer, however, have recognized the limited application of “equitable tolling” in 

Vaccine Act cases. 

For example, in Wax v. HHS, No. 03-2830V, 2012 WL 3867161 (Fed. Cl. Spec. Mstr. 

Aug. 7, 2012) then-Special Master Patricia Campbell-Smith (now Chief Judge of this court) 

found that a petition had been untimely filed, and considered an argument that such untimely 

filing should be excused under the equitable tolling doctrine. The Wax petitioners argued that 

confusion about the law, as to where and when they needed to file a Vaccine Act petition,

entitled them to relief under the equitable tolling doctrine. Special Master Campbell-Smith 

denied the equitable tolling claim. 2012 WL 3867161 at *9-14. Her ruling was affirmed in Wax 

v. HHS, 108 Fed. Cl. 538, 541-43 (2012). The judge in Wax, citing Irwin, noted that, unlike the 

situation posited in Irwin, in which a plaintiff filed a timely petition but in the wrong court, the 

Wax petitioners had filed an untimely petition in the wrong court, and thus were not entitled to 

relief under the equitable tolling doctrine. (Id. at 542.)

Similarly, other special masters have rejected a petitioner’s plea for equitable tolling 

relief in the context of an untimely filed petition. See, e.g., Maack v. HHS, No. 12-354V, 2013 

WL 4718924, at *4-6 (Fed. Cl. Spec Mstr. Aug. 6, 2013). And, in a case quite similar to this 

one, Anderson v. HHS, No. 12-016V, 2013 WL 691003 (Fed. Cl. Spec. Mstr. Jan. 29, 2013), the 

petitioner alleged that a vaccination caused her to suffer an aggravation of her preexisting 

chronic illness. The petitioner claimed that she should receive equitable relief from the petition 

filing deadline because, among other reasons, “her family situation was an extraordinary 

circumstance.” (Id. at *4.) That circumstance involved raising two children while beset with 

difficulties caused by her own illness. (Id. at *4.) However, the special master, citing Irwin, 

opined that the petitioner’s family circumstances were “not the type of circumstances recognized 

to be extraordinary for the purpose of applying equitable tolling.” (Id. at *5.)

In the face of the case law cited above, Petitioners cite Mojica v. HHS, 102 Fed. Cl. 96 

(2011), in support of their request for equitable tolling. (ECF #66, p. 2.) The Mojica case 

involved a claim for equitable relief from judgment, pursuant to RCFC 60(b). The extraordinary 

circumstance alleged in Mojica was that a courier service had lost the petition twice, before 

delivering it, finally, several days after the statute of limitations had expired. (102 Fed. Cl. at 96-

97.) The Mojica court concluded that the petitioners had made diligent efforts and had taken 

reasonable steps to file a timely claim, but were thwarted by the “extraordinary” failures of the 

courier service. (Id. at 100.) To resolve whether such failure by a courier service was sufficient 

to justify the application of equitable tolling, the Mojica court examined rulings on this issue in 

five different federal appellate courts, which all favored a grant of relief. The court, therefore, 

granted relief. (Id. at 101.) However, in citing the Mojica case, the Petitioners in this case do 
17

not assert that they attempted to file within the statutory period, only to be thwarted by a delivery 

failure, as in Mojica. Thus, the rationale of Mojica is not applicable to this case. 

Petitioners have also cited the opinion in Price v. HHS, 565 Fed. Appx. 891 (Fed. Cir. 

2014). (ECF #66, p. 2.) But in that case, which involved equitable tolling in a Vaccine Act case 

but in a different context, the plea for equitable tolling was not found to be appropriate.

Finally, Petitioners cite Askew v. HHS, No. 10-767V, 2012 WL 2061804 (Fed. Cl. Spec. 

Mstr. May 17, 2012), for the general proposition that pro se petitioners “should be entitled to 

some relaxation of the standards applicable to attorneys.” (ECF #66, p. 3.) I fully agree with 

that general proposition, and in fact, I myself always give pro se petitioners much more leeway 

than I would an attorney, concerning procedural matters. However, the facts in Askew were 

much different than the facts here. In Askew the petitioners did mail their petition in a timely

fashion--they simply addressed it to the Respondent instead of this court. 2012 WL 2061804 at 

*4. Thus, as the special master concluded, the facts of Askew fell precisely into one of the two 

specific categories set forth in Irwin--“the claimant has actively pursued his judicial remedies by 

filing a defective pleading during the statutory period.” 498 U.S. at 457-58 (emphasis added). 

In this case, the Petitioners do not claim that they mailed a petition concerning V.B. to anyone

during the statutory period.

Thus, for all the reasons set forth above, Petitioners’ request for application of the 

equitable tolling doctrine in this case must be denied, under the binding case law of Irwin.

VIII

VIABILITY OF PETITIONERS’ CLAIM

Of course, as noted above, I am very sympathetic to Petitioners’ situation. It is 

heartbreaking to contemplate a family dealing with the immense challenges of caring for three 

children with ASDs, while also raising three other children. Yet I must rule based upon the 

applicable law, not on emotion.

I also note that any other ruling concerning the equitable tolling claim in this case would 

raise large issues, and possibly, in essence, largely eliminate the filing deadline for most Vaccine 

Act cases. The fact is that virtually all Vaccine Act petitions involve vaccinees with serious 

injuries. A great many cases involve families with children who have horrendous medical 

conditions. If a family with three autistic children can gain, in effect, a waiver of the timely 

filing rules, should not families with even one badly handicapped child also be exempted? 

Should adult petitioners/vaccinees with a serious injury also be exempted? Allowing “equitable 

tolling” because a vaccinee and his/her family face immense burdens is intuitively appealing, but 

it is not clear where the cut-off point for such a tolling doctrine would be established.

Further, at p. 2 of this Decision, I note that in six “test cases,” despite great efforts, 

petitioners’ attorneys were able to provide no plausible evidence linking any vaccine causally to 

autism. And, in several additional cases involving autistic children, decided since the test cases, 

the vaccine-causation arguments of the petitioners have uniformly been rejected as very weak. 

See, e.g., Waddell v. HHS, No. 10-316V, 2012 WL 4829291 (Fed. Cl. Spec. Mstr. CampbellSmith Sept. 19, 2012) (autism not caused by MMR vaccination); Blake v. HHS, No. 03-31V, 

2014 WL 2769979 (Fed. Cl. Spec. Mstr. Vowell May 21, 2014) (autism not caused by MMR 
18

vaccination); Henderson v. HHS, No. 09-616V, 2012 WL 5194060 (Fed. Cl. Spec. Mstr. Vowell 

Sept. 28, 2012) (autism not caused by pneumococcal vaccination); Franklin v. HHS, No. 99-

855V, 2013 WL 3755954 (Fed. Cl. Spec. Mstr. Hastings May 16, 2013) (MMR and other 

vaccines found not to contribute to autism); Coombs v. HHS, No. 08-818V, 2014 WL 1677584 

(Fed. Cl. Spec. Mstr. Hastings Apr. 8, 2014) (autism not caused by MMR or Varivax vaccines); 

Long v. HHS, No. 08-792V (Fed. Cl. Spec. Mstr. Hastings Feb. 9, 2015) (autism not caused by 

influenza vaccine). 

Accordingly, even if I were to utilize the “equitable tolling” doctrine to waive the timely 

filing requirement in this case, it does not appear likely that the Petitioners’ could thereafter 

successfully show that V.B.’s autism was vaccine-caused or vaccine-aggravated.

IX

CONCLUSION

The record of this case demonstrates plainly that V.B. and her family have been through a 

tragic ordeal. I have studied the records describing V.B.’s medical history, and the efforts of her

family in caring for her. Based upon those records, the great dedication of V.B’s family to her

welfare is readily apparent to me.

Nor do I doubt that V.B.’s parents are sincere in their belief that V.B.’s vaccinations

played a role in V.B.’s autism. V.B.’s parents very likely have heard the opinions of physicians

who profess to believe in a causal connection between vaccines and autism. After studying the 

extensive evidence in the autism test cases described above, I still have seen no plausible 

evidence that there is a causal connection between any vaccinations and autism. Nevertheless, I 

can understand why V.B.’s parents found such a physician’s opinion to be believable under the 

circumstances. I conclude that the Petitioners filed this petition in good faith. 

Thus, I feel deep sympathy for the Bevill family. Further, I find it unfortunate that my 

ruling in this case means the Program will not be able to provide funds to assist this family, in 

caring for their child who suffers from a serious disorder. It is my view that our society does not 

provide enough assistance to families of all autistic children, regardless of the cause of their 

disorders. And it is certainly my hope that our society will find ways to ensure that in the future 

much more generous assistance is available to all such children. These families must cope every 

day with tremendous challenges in caring for their autistic children, and all are deserving of 

sympathy and admiration. However, I must decide this case not on sentiment, but by analyzing 

the evidence. Congress designed the Program to compensate only petitioners who timely filed 

their Vaccine Act petitions. The Petitioners in this case did not do so. Accordingly, I conclude 

that this petition must be dismissed for untimely filing.12

IT IS SO ORDERED.

 

 

12 In the absence of a timely filed motion for review of this Decision, the Clerk of the Court shall enter judgment 

accordingly. 
19

/s/ George L. Hastings, Jr.

George L. Hastings, Jr.

Special Master