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# q[:ourt ofjfeberal q[:laiu1s OFFICE OF SPECIAL MASTERS 

# FILED No.17-1040V (not to be published)


### * * * * *** ** * 

### * * * * * *

## ** * * * * * 

### * * TIFFANY S. GAITER

### on behalfofD.S.G., 

## * a minor, 

### * Petitioner, 

### * V. 

## * * SECRETARY OF HEALTH 

### * AND HUMAN SERVICES, 

## * * Respondent. 

### * * **

## * * * * * * * * * * * * * * * * * * * * ***

T(ffany Gaiter,prose, Saginaw, MI, for Petitioner. 

## JUL - 6 2018 U

.S

. COURT OF FEDERAL CLAIMS Special Master Corcoran Filed: July 6, 2018

Heather Pearlman, U.S. Dep'tofJustice,Washington, DC, for Respondent. DECISIONDISMISSING PETITION 1 On August 2, 2017, Tiffany Gaiter, on behalfofher minor son, D

.S.G., filed aprose petition seeking compensation under the National Vaccine Injury Compensation Program (the "Vaccine Program"). 2 In it, Petitioner alleged that (a) the measles-mumps-rubella ("MMR") vaccine D.S.G. received on May 22, 2002, caused him to develop an autism spectrum disorder ("ASD"); and (b) a second dose ofthe MMR vaccine he received in July 2014 significantly aggravated his existing developmental condition.**Petit~on** at 1. The Petition was accompanied

1 Although I am not formally designating this Decision for publication, it will nevertheless be posted on the Court of Federal Claims's website in accordance with the E-Government Act of2002, 44 U.S

.C. § 3501 (2012). This means the Decision will beavailableto anyonewith access tothe internet. As provided by42U.S.C. § 300aa-12(d)(4)(B), however, the pa11ies may objectto the Decision's inclusion ofcer tain kinds ofconfidential information

. Specifically, under Vaccine Rule 18(b), each party has fourteen days within which to request redaction "of any information furnished by that pa1fy: (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 unwaiTantec,I invasion ofprivacy." Vaccine Rule 18(b). Otherwise, the Decision in its presentform will be available. Id.

2 The Vaccine Program comprises Part2 ofthe National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3758, codified as amended, 42 U.S.C. §§ 300aa-10 through 34 (2012) [hereinafter "Vaccine Act" or "the Act"]. Individual section references hereafter will be to § 300aa ofthe Act. 

### REISSUED FOR PUBLICATION AUG 3 2018 OSM U.S. COURT OF FEDERAL CLAIMSby some medical records. The month after the case's initiation, Respondent filed a motion to dismiss the claim, arguing that any claim based upon the 2002 vaccination was time-barred, and that Petitioner could not otherwise establish that the 2014 dose of MMR vaccine D.S.G. received had significantly aggravatedhis ASD. See Motion, filed September20, 2017 (ECFNo. 7). Petitioner responded to the motion on October 19, 2017, arguing that certain acts offederal governmental agencies (in pmiicular, the Centers for Disease Control ("CDC")) had intentionally obscured from public view the capacity of the MMR vaccine to cause autism in certain demographic groups, and that this (corroborated with her medical records and allegations) supported her claim. Opposition, dated October 19, 2017 (ECF No. 8).The matter was subsequently assigned tome.In February 2018, I held a status conference with the parties, at whichtime I outlined my concerns to Petitioner about her claim's reasonable basis. See Order, dated February 7, 2018 (ECF No. 13). I specifically explained to Petitioner that any claim based on a vaccine received in 2002 was very likely time-barred, and that her arguments about government misconduct as justifying tolling ofthe three-year statute oflimitations applicable to Vaccine Act claims had been unsuccessfully advanced by other petitioners before. Order at 1. I also informed her that, given the extensive prior review in the Vaccine Program ofclaims that the MMR vaccine was associated with autism and their overall lack ofsuccess, a significant aggravation claim was not likely to be successful. 

### Id at 2. 3 I therefore ordered Petitioner to indicate to me by March 30, 2018, how she wished to proceed with her claim. 

### Id at 3. Petitioner responded to my Order on March 19, 2018, referring onlyto allegations containedinher Petition andpriorresponse to the dismissal motion. See March 19, 2018 filing (ECF No. 15). I issued an Order on April 12, 2018, dismissing the pmi ofPetitioner's claim pertaining to the 2002 vaccination as time-barred. Order, dated April 12, 2018 (ECFNo. 19). I subsequently held a second status conference with the pmiies, at which time Ireiterated to Petitionermy view thatthe remaining significant aggravation claim (based onthe 2014 vaccination) was timelybut lacked reasonable basis, for the reasons previously discussed. Order, dated May 2, 2018, at 1 (ECF No. 21). I therefore ordered Petitionerto show cause why the remaining claim should not be dismissed. 

### Id at 2. I specifically indicated that Petitioner needed to "cite all favorable law mid precedent suppo1iing her claim" in any such filing. 

### Id Ms. Gaiter filed a response to my Order on June 11, 2018. See Response (ECF No. 23).

3 The special masters presiding over the test cases in the Omnibus Autism Proceedings (the "OAP"), after extensive research and testimony, rejected theories of causation connecting the MMR vaccine to autism. See e.g., Cedillo v. Sec'ya/Health & Human Servs., No. 98-916V, 2009 WL 331968 (Fed. Cl. Spec. Mstr. Feb. 12, 2009), mot.forreview den 'd, 89 Fed. Cl. 158 (2009), ajf'd, 617 F.3d 1328 (Fed. Cir. 2010); Dwyerv. Sec'y of Health & Human Servs., No. 03-1202V, 2010 WL 892250 (Fed. Cl. Spec. Mstr. Mar. 12, 2010).

2In it, she expresses frustration with my reaction to her claim, and my refusal to allow its development despite the prior on-point decisions pertaining to autism and vaccines. She also reiterates her prior arguments about alleged CDC misconduct in hiding evidence pertaining to causation, alleging that my April dismissal ofher 2002-based claim was unfair. Response at 1. Petitioner did not, however, cite any record evidence she maintained could support her claim, nor did she make any effortto distinguish the substantial body ofcase lawthat I had previously informed Petitionermade her claim unviable.4 Respondent filed a briefreacting to Petitioner's response on June 27, 2018. Reply (ECF No. 25). He observes that Petitioner's response did not comply with my earlier Show Cause Order, and therefore (in accordance with his September 2017 motion to dismiss) the remaining significant aggravation claim warranted dismissal. Reply at 1-2. ANALYSIS To receive compensation under the Vaccine Program, a petitioner must prove either (1) that he suffered a "Table Injury"

- i.e., an injury falling within the Vaccine Injury Table

- corresponding to one of his vaccinations, or (2) that he suffered an injury that was actually caused by a vaccine. See§§ 13(a)(l)(A) and 1l(c)(l). An examination ofthe record, however, does not uncover any evidence that D.S.G. suffered a "Table Injmy." Further, the record does not contain sufficient persuasive evidence establishing that D.S.G.'s autism or developmental problems were significantly aggravated bythe vaccinations received. (see § 11(c)(1)(C)(i)-(ii)). After careful review of the medical records, and Petitioner's filings I conclude that Petitioner will not be able to establish preponderant evidence in favor of her significant aggravation claim, and therefore the matter should not proceed, even ifexpert reports have not yet been obtained. My decision is rooted in both the facts ofthis case as well as applicable decisions in previously-litigated matters involving causation theories highly similar to the present. See ECF Nos. 13 and 21. The theory that vaccines can cause autism or developmental injuries (in the absence of proof of encephalopathy) have rarely been successful; I find no compelling reason here to diverge from those holdings, as Petitioner has not offered evidence

4 Petitioner's responses to Respondent's Motion to Dismiss (ECF Nos. 8, 12) in the fall of2017 (and early 2018) are similarly devoid ofany persuasive argument linking D.S.G.'s 2014 MMR vaccine to a significant aggravation ofhis existing autism diagnosis, or differentiating the present matter from claims litigated under similar circu1nstances. Rather, in both, Ms. Gaiter maintains that the alleged fraudulent withholding ofinformation by the CDC (suggesting a link between the MMR vaccine and autism in African American males under 36 months ofage) supports an award ofco1npensation in the instant case. At most, Petitioner differentiates her claim from similar, unsuccessful autis1n claims by arguing that past MMR cases did not take into account the alleged fraudulent withholding ofinformation by the CDC. She also attempts to address theA/thenprongs by arguingthatinformation excludedfrom the CDC study supports entitlement via a causation-in-factclaim. However, allegations relatingto fraudulent activityby a government agency is not sufficient to satisfy theA/then three-prong test. And in any event, the document cited in support (ECF No. 8-3) is astate1nent released by alaw firm, and includes no medical or scientific discussion. Petitioner's responses otherwise cite no supportive record evidence corroborating a vaccine-induced significant aggravation of D.S.G.'s existing autis1n diagnosis. 3

### showing why D.S.G.'s case is different from those already decided, nor has she suggested a novel theory not previously considered. Moreover, there is a lack ofrecord evidence (as well as treater statements) supporting the conclusion that D.S.G.'s autism was made worse by his 2014 MMR vaccine. At best, the record suggests that Petitioner herself 

### informed treaters that D.S.G. exhibited a worsening ofsymptoms following the MMR vaccine. See, e.g., 

### Ex. 11 (7/31/2003 appointment noting a parental concern for speech delay and regression, but making no mention ofany vaccination).5 

### However, such evidence does notestablish a causal linkbetween an injury and a vaccination. Furthermore, the decision to deny compensation in claims alleging a significant aggravation ofautism following the receipt ofavaccination is consistent withprior decisions of other special masters. See, e.g., Hooker v. Sec 

### '.Y of Health & Human Servs., 

### No. 02-472V, 2016 WL 

### 3456435, at *45 (Fed. CL Spec. Mstr. May 19, 2016) (causation theory relating to a significant aggravation ofan existing autism diagnosis was "not at all persuasive"); Long v. Sec 

### '.Yof Health & Human Servs., 

### No. 08-792V, 2015 WL 

### 1011740, at *18 (Fed. Cl. Spec. Mstr. Feb. 9, 2015) (petitioner did not suffer from a vaccine-induced significant aggravation ofan existing autism diagnosis where "worsening [of symptoms] seem[ed] likely to have been the result ofthe normal course ofautism"); Richard v. Sec 

### '.Y of Health & Human Servs., 

### No. 02- 877V, 2010 WL 

### 2766742, at *5 (Fed. Cl. Spec. Mstr. May 3, 2010) (petitioners "failedto present

... facts that plausibly suggest[ed]" a worsening of an existing autism diagnosis) (internal quotation marks omitted)). As noted above, Petitioner has offered no evidence distinguishing the presentmatter from cases decided under similar circumstances, despite my allowing her the opportunityto do so. Given the above, the claim as alleged lacks reasonable basis, and is appropriately dismissed. In so doing, I am aware of Petitioner's disappointment, and her fervent desire (motivatedby areasonable wishto provide good care for D.S.G.) to proceed with the claim. But I must balance such concerns against the waste of judicial resources that will be occasioned by allowing this matter to go forward. My experience and reasonedjudgment tells me (based on review ofthe record) that this claim will not succeed where countless others failed. Because Petitionerhas not

- despite due opportunity

- shown otherwise, Imust DISMISS 

### her claim. In the absence ofa timely-filed motion for review (see Appendix B to the Rules ofthe Court), the Clerk SHALL ENTERJUDGMENT 

### in accordance withthis decision.6

5 Ofnote, Exhibit 11 appears tobe the only medical record cited in Petitioner's briefs in support ofher claim(including the show cause response and the responses to Respondent's Motion to Dismiss filed in the fall of2017). See ECF No. 8 at 14. Moreover, Petitioner's assertion ofa worsening ofsymptoms appears to be directed toward D.S.G.'s initial MMR vaccination in 2002, and not the vaccination received in 2014 (as the record is from 2003). In any event, the record is not supportive ofany significant aggravation injury following the 2014 vaccination.

6 Pursuant to Vaccine Rule 1l(a), the parties may expedite entry of judgmentby filing ajoint notice renouncing their right to seekreview. 4

### IT IS SO ORDERED.

5 Brian

. Corcoran Special Master