IN THE UNITED STATES COURT OF FEDERAL CLAIMS 

OFFICE OF SPECIAL MASTERS 

No. 08-0308V 

Filed: August 6, 2015 

Not for Publication 

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

HUSSEIN H. HASHI and SAFIA * 

WEGED, parents of O.H., * 

 * Autism; Dismissal; 

Petitioners, * Significant Aggravation; 

v. * Failure to Comply with Court Orders 

 * 

SECRETARY OF HEALTH AND * 

HUMAN SERVICES, * 

 * 

Respondent. * 

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

Elaine W. Sharp, Esq., Whitfield, Sharp & Sharp, Marblehead, MA, for petitioners. 

Traci R. Patton, Esq., U.S. Dept. of Justice, Washington, DC, for respondent. 

DISMISSAL DECISION1 

 

Vowell, Chief Special Master: 

On June 1, 2015, I issued findings of fact regarding petitioners’ significant 

aggravation claim. As I had previously dismissed their causation in fact claim because 

it was untimely filed, see Hashi v. Sec’y, HHS, No. 08-308V, 2013 WL 10487184 (Fed. 

Cl. Spec. Mstr. Aug. 26, 2013), the significant aggravation claim was petitioners’ only 

remaining claim. In my June 1, 2015 fact ruling, I noted that based on my factual 

findings, “it appears highly unlikely that any reputable expert can opine that O.H.’s 

condition was significantly aggravated by the vaccinations administered in April 2006” 

and remarked that it may “be unreasonable for petitioners to continue to pursue this 

 

1

 Because this decision contains a reasoned explanation for my action in this case, it will be posted on the 

United States Court of Federal Claims’ website, in accordance with the E-Government Act of 2002, Pub. 

L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17, 2002). As provided by Vaccine Rule 18(b), each party 

has 14 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 18(b). Otherwise, the entire decision will be available to the public. 
2 

case.” Hashi v. Sec’y, HHS, No. 08-308V, 2015 WL 4626843, at *15. 

Nevertheless, I allowed petitioners 60 days to identify an expert witness willing to 

opine that the vaccinations significantly aggravated O.H.’s condition. Petitioners’ 

deadline was July 31, 2015. I cautioned petitioners that “[n]o extensions to this 

deadline will be granted.” Id. (emphasis in original).2

Petitioners’ counsel untimely filed a status report on August 1, 2015, indicating 

that she had not heard from her clients about how they wished to proceed in this case, if 

at all. She did not address what, if anything, she had done to identify an expert,3

 nor 

when she communicated the fact ruling to petitioners. Regardless of whether 

petitioners or their counsel are at fault, petitioners have failed to comply with a very 

explicit and simple order: identify an expert or dismiss their case. They have failed to 

do either. This case is thus DISMISSED for failure to comply with court orders. 

I. Procedural History. 

 Petitioners Safia Weged and Hussein Hashi [“Ms. Weged,” “Mr. Hashi,” or 

“petitioners”] filed the short-form petition authorized by Autism General Order #14 for 

compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. 

§ 300aa-10, et seq.

5

 [the “Vaccine Act” or “Program”], on behalf of their minor daughter, 

O.H. By filing the short-form petition, petitioners joined the Omnibus Autism Program 

[“OAP”],6 thereby asserting that O.H. has an autism spectrum disorder [“ASD”]7 and that 

 

2

I note that petitioners’ counsel has frequently asked for extensions of time to comply with court orders. 

Her August 1, 2015 status report includes her 17th request for additional time to submit routine filings in 

this matter. 

3 Petitioners’ counsel had previously communicated with two experts, Drs. Sims and Kinsbourne, 

according to representations in status reports and other filings. See Status Report, filed Oct. 19, 2011, at 

1 (remarking that petitioners’ counsel had retained Dr. Sims to review the case and produce an expert 

report); Pet. Ex. 19 (statement from Dr. Kinsbourne, dated May 27, 2014, requesting an additional 30 

days to review O.H.’s case). 

4

 The text of Autism General Order #1 can be found at http://www.uscfc.uscourts.gov/sites/default/files/

autism/Autism+General+Order1.pdf, 2002 WL 31696785 (Fed. Cl. Spec. Mstr. July 3, 2002). 

5

 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for 

ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 

300aa (2006). 

6

 The OAP and the effects of joining it are discussed in detail in Dwyer v. Sec’y, HHS, No. 03-1202V, 

2010 WL 892250, at *3 (Fed. Cl. Spec. Mstr. Mar. 12, 2010). In summary, the OAP created a body of 

evidence about ASD that could be used to resolve not only the test cases themselves, but all the 

remaining OAP cases as well. Although the remaining OAP petitioners were not bound by the results in 

the test cases and remained free to develop and present new evidence and new theories, the OAP 

evidence could be relied upon by either side in resolving the remaining cases. 

7

“Autism spectrum disorder” is an umbrella term encompassing several neurological disorders 

manifesting in early childhood with impairments in communication and social interaction, and the display 

of restricted, repetitive, or stereotypical patterns of behavior, interests, and activities. A more complete 

description of the disorder is contained in White v. Sec’y, HHS, No. 04-337V, 2011 WL 6176064 (Fed. Cl. 
3 

one or more vaccines listed on the Vaccine Injury Table8 were causal of her condition. 

Petitioners did not file any medical records or details regarding O.H.’s injuries with the 

short-form petition. 

 On April 28, 2008, the presiding special master9 ordered petitioners to complete 

their petition by filing the statutorily required medical documentation10 and a “Statement 

Regarding Onset,” clearly detailing O.H.’s first symptom or manifestation of onset or 

significant aggravation of her injury. Order, issued Apr. 28, 2008. Respondent filed her 

Rule 4(c) report on May 20, 2008, noting that petitioners had yet to file any medical 

records and, thus, she could not assess the merits of the claim. Respondent’s Report

at 4. By October 23, 2008, petitioners filed 23 exhibits of medical records,11 but did not 

submit a “Statement Regarding Onset.” 

 No further activity occurred in this case until after the conclusion of the appeals in 

the OAP test cases. On January 25, 2011, in view of the test case findings of 

insufficient evidence linking vaccines and autism, petitioners were ordered to inform the 

court if they wished to proceed with their claim or to exit the Vaccine Program. Order, 

issued Jan. 25, 2011. Petitioners evinced their intent to proceed and filed an amended 

petition on June 29, 2011, alleging that the MMR vaccine O.H. received on July 1, 2002 

caused an encephalopathy and sequelae. First Amended Petition, ¶¶ 2-3. The 

amended petition also alleged that O.H. was later diagnosed with a mitochondrial 

disorder, specifically a Complex I electron transport chain [“ETC”] deficiency. Id., ¶ 4. 

 

 During a status conference held on July 20, 2011, I advised petitioners’ counsel 

that this claim appeared to have been filed outside the Vaccine Act’s 36 month statute 

of limitations. Order, issued July 20, 2011, at 2; see also § 16(a)(2). I cautioned 

petitioners’ counsel against obtaining an expert report at that point, in view of the 

unsettled state of the law regarding the Vaccine Act’s statute of limitations and its effect 

on payment of fees and costs on unsuccessful cases.12 Order, issued July 20, 2011; 

 

Spec. Mstr. Nov. 22, 2011). 

8

 42 C.F.R. § 100.3 (2011). 

9

 This case was reassigned to me on July 1, 2011. 

10 Section 11(c)(2) of the Vaccine Act and Vaccine Rule 2 require that the petition be accompanied by 

medical records and affidavits. 

11 Petitioners initially labeled their 23 exhibits A-W. The Guidelines for Practice indicate that petitioners’ 

exhibits should be labeled using Arabic numbers. Accordingly, pursuant to my order of July 20, 2011, 

petitioners refiled most of these exhibits using numbers as Pet. Exs. 1, 1.2, 1.3, 2, 2.1, 2.2, 2.3, and 3. 

However, I was unable to locate Petitioners’ Exhibit S in the subsequently filed documents, and it 

continues to be identified as Pet. Ex. S in this ruling. 

12 At the time of this status conference, interpretation of the Vaccine Act’s statute of limitations was under 

review by the U.S. Court of Appeals for the Federal Circuit. The Federal Circuit, sitting en banc, heard 

oral argument in Cloer v. Sec’y, HHS, on May 10, 2011. Because the outcome of that case could affect 

my determination of timeliness in this case, I opted to wait for the Federal Circuit’s decision before 

ordering petitioners to obtain an expert report. On August 5, 2011, the Federal Circuit reiterated that the 

first symptom recognized by the medical community at large as a symptom of a disorder triggered the 

running of the statute of limitations in Vaccine Act cases. Cloer v. Sec’y, HHS, 654 F.3d 1322 (Fed. Cir. 
4 

see also Order, issued Nov. 1, 2011. 

Between August 3, 2011, and October 18, 2011, petitioners filed eight exhibits 

addressing O.H.’s more recent medical treatment. Shortly thereafter, petitioners’ 

counsel reported that Dr. Katherine Sims, a neurogeneticist, had been retained as an 

expert to evaluate claims of vaccine causation and an expert report was forthcoming. 

Petitioners’ Status Report, filed Oct. 19, 2011. 

In response to petitioners’ status report, I reiterated my caution about retaining 

an expert prior to a determination that this case was timely filed. I emphasized that, 

given O.H.’s age and ASD diagnosis at the time this petition was filed, a significant 

issue in this case was an absence of records of O.H.’s routine pediatric care from birth 

onward. I ordered petitioners to refocus their efforts toward developing a complete 

medical record. Order, issued Nov. 1, 2011. Additionally, I ordered petitioners to 

provide medical records identifying the physician or other specialist who diagnosed O.H. 

with ASD. Order, issued Dec. 2, 2011. 

 Between early December 2011 and April 2012, petitioners filed eight more 

exhibits containing O.H.’s educational and medical records from birth to early childhood. 

During this time, petitioners submitted a status report indicating that O.H. suffered a preexisting injury, specifically a mitochondrial disorder, which was exacerbated by repeated 

vaccinations. Status Report, filed Dec. 16, 2011. However, the report did not identify 

which specific vaccines were believed to have aggravated O.H.’s disorder. 

 On May 17, 2012, respondent filed a motion to dismiss petitioners’ claim, arguing 

that the petition was filed approximately two years and four months after the expiration 

of the statute of limitations.13 Respondent’s Motion to Dismiss, filed May 17, 2012, at 5 

(noting that the petition should have been filed by December 31, 2005). In response, 

petitioners filed a joint opposition to respondent’s motions to dismiss in both of their 

children’s cases.14 In their opposition, petitioners asserted that the DTaP, MMR, and 

IPV vaccines administered on April 22, 2006,15 significantly aggravated O.H.’s preexisting mitochondrial disorder and that the short-form petition was filed on April 22, 

2008, within the statute of limitations period.16 Petitioners’ Joint Opposition to 

Respondent’s Motions to Dismiss at 2, 5. 

 

2011), cert. denied, 132 S. Ct. 1908 (2012). 

13 The Vaccine Act provides that “no petition may be filed . . . after the expiration of 36 months after the 

date of the occurrence of the first symptom or manifestation of onset . . . of such injury.” § 16(a)(2). 

14 In addition to this case, petitioners have filed a petition on behalf of their daughter S.H. (No. 08-307V). 

15 The record petitioners cited for this date, Pet. Ex. 7, pp. 2-3, is a visit from June 9, 2007. I note that the 

vaccination records for the DTaP, MMR, and IPV vaccines now alleged to be causal is listed as April 24, 

2006. 

16 This claim differs from petitioners’ first amended petition, which identified the July 2002 MMR vaccine 

as causing O.H.’s encephalopathy and sequelae. First Amended Petition, ¶ 3. 
5 

 The filed medical records showed that O.H. received DTaP, MMR, and IPV 

vaccines on April 24, 2006. However, the records did not include the consultation notes 

of Dr. Peter Masucci, who served as O.H.’s pediatrician during the time in question. 

Also missing were the particulars about the vaccinations O.H. received that day, 

including the lot number and manufacturer. In response to my September 2012 Order 

to file additional medical records, petitioners filed Dr. Masucci’s consultation notes for 

some of O.H.’s visits occurring between November 2004 and April 2006 as Pet. Ex. 18. 

They do not appear to be his complete records for treatment of O.H.17

On August 26, 2013, I dismissed petitioners’ causation in fact claim because it 

was untimely filed. Hashi v. Sec’y, HHS, No. 08-308V, 2013 WL 10487184 (Fed. Cl. 

Spec. Mstr. Aug. 26, 2013). Petitioners elected to proceed on a significant aggravation 

claim, a claim not made in their original or first amended petition, but first raised in 

Petitioners’ Status Report, filed December 16, 2011, at 1. The significant aggravation 

claim was explicitly raised in the second amended petition filed on September 25, 2013. 

The second amended petition asserted that vaccines O.H. received on April 22, 

2006, significantly aggravated an underlying mitochondrial disorder.18 Second 

Amended Petition, ¶ 6. As evidence of the significant aggravation, petitioners relied on 

assertions made by petitioner Hussein Hashi in his affidavit, dated and filed on July 16, 

2012. See Pet. Ex. 15. In dismissing the causation in fact claim and permitting 

petitioners to proceed on the significant aggravation claim, I noted that Mr. Hashi’s 

affidavit appeared to contradict the contemporaneous medical records regarding O.H.’s 

condition before and after the April 24, 2006 vaccinations.19 Hashi, 2013 WL 10487184, 

at *7, n.18. 

 To resolve the discrepancies between Mr. Hashi’s affidavit and the 

contemporaneous medical records, I conducted a hearing before ruling on the facts 

regarding O.H.’s condition. See Order, issued May 29, 2014. I heard the testimony of 

Mr. Hashi and Ms. Nimo Hashi, his niece,20 on September 18, 2014, in a hearing in 

Boston, MA. I carefully considered their testimony and ultimately found that the 

contemporaneous medical records and histories provided by O.H.’s parents at times 

closer to the events in question more accurately reflect O.H.’s condition than the 

hearing testimony and affidavits of the two hearing witnesses. I issued a fact ruling on 

June 1, 2015, concluding that petitioners have “failed to demonstrate that O.H.’s 

 

17 This exhibit contains a vaccine administration record and a few (largely illegible) consultation notes. 

There are entries in November of 2004, one entry dated in February 2006, and one entry for April 2006. 

18 I note that the date of the diphtheria, tetanus, acellular, and pertussis [“DTaP”], measles, mumps, and 

rubella [“MMR”], and inactivated polio virus [“IPV”] vaccines listed in O.H.’s consultation notes is April 24, 

2006, and not, as petitioners allege, April 22, 2006. Petitioners’ Exhibit [“Pet. Ex.”] 7, pp. 2-3.

19 These were the only vaccinations she received within the statute of limitations period. See Pet. Ex. 7, 

pp. 2-3.

20 Ms. Hashi testified that she frequently babysat for O.H. and her sister starting in October of 2002 (Pet. 

Ex. 20, ¶ 4) and was often a guest in the Hashi home during her undergraduate and graduate schooling. 

See Tr. at 161-63. When she began college in the fall of 2004, Ms. Hashi continued to visit and babysit 

on an as-needed basis. Tr. at 163. 
6 

symptoms and behavior worsened within 18 months of the April 2006 vaccinations.” I 

provided them with one more opportunity to identify an expert willing to opine that O.H.’s 

vaccinations did significantly aggravate her condition. Hashi, 2015 WL 4626843, at *15.

 My factual findings, both in dismissing petitioners’ causation in fact claim and in 

determining that O.H.’s symptoms and behavior did not significantly worsen after she 

received the allegedly aggravating vaccinations, contain thorough examinations of the 

medical records and the testimony provided by petitioners’ family members. I adopt 

those factual findings by reference. Hashi, 2013 WL 10487184; Hashi, 2015 WL 

4626843. 

In sum, O.H. was born into a family with a lengthy history of developmental 

delays. Within her first year of life, her pediatrician became concerned about her 

development. By the time she was two and a half years old, O.H. had begun to lose 

developmental milestones, and she was diagnosed with autism before her fourth 

birthday. 

Nothing in the contemporaneous medical records indicates that O.H. suffered 

any reaction to the allegedly aggravating vaccinations she received in April of 2006, 

approximately a year after her autism diagnosis. In the months following the allegedly 

aggravating vaccines, O.H.’s health remained much the same as it had been for the 

previous year—she was nonverbal, prone to stereotyped behaviors, and profoundly 

developmentally delayed. It was not until the fall of 2007, approximately a year and a 

half later, that O.H.’s parents and physicians became concerned about a second 

regression. 

 Based on these facts, it would have been very difficult for petitioners to find an 

expert willing to opine that O.H.’s April 2006 vaccinations significantly aggravated her 

condition. Petitioners were given 60 days to identify such an expert; instead, 

petitioners’ counsel filed an untimely status report indicating that she had been unable 

to communicate with her clients about how to proceed. Pet. Status Report, filed Aug. 1, 

2015. 

II. Failure to Comply with Court Orders 

Under the Vaccine Rules, I am empowered to dismiss any petition for “failure of 

the petitioner to...comply with...any order of the special master or the court.” Vaccine 

Rule 21(b)(1). Petitioners were warned that no extensions of time would be granted in 

this matter, given the posture of this case, post-fact hearing. Hashi, 2015 WL 4626843, 

at *15. After being ordered to identify an expert witness by no later than July 31, 2015, 

petitioners’ counsel untimely filed a status report requesting additional time to contact 

her clients. Petitioners’ counsel did not indicate whether she had approached any 

potential expert witnesses about their willingness to opine based on the June 2015 fact 

ruling. Any further delay is inexcusable. Under these circumstances, a dismissal for 

failure to comply with court orders is appropriate. 
7 

 The petition for compensation is therefore DENIED. The clerk is instructed to 

enter judgment accordingly. 

IT IS SO ORDERED. 

 s/Denise K. Vowell 

 Denise K. Vowell

 Chief Special Master