STACY CARSON AND AMY CARSON, as legal guardians for KIT CARSON, Petitioners-Appellants,
SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent-Appellee.
Appeal from the United States Court of Federal Claims in No. 02-VV-873, Judge Mary Ellen Coster Williams.
David P. Matthews, Matthews & Associates, of Houston, Texas, for petitioners-appellants.
Heather L. Pearlman, Senior Trial Attorney, Torts Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent-appellee. With her on the brief were Stuart F. Delery, Principal Deputy Assistant Attorney General, Rupa Bhattacharyya, Director, Vincent J. Matanoski, Deputy Director, and Catharine E. Reeves, Assistant Director.
Before Newman, Clevenger, and Wallach, Circuit Judges.
Wallach, Circuit Judge.
Parents Amy and Stacy Carson ("Petitioners") filed a petition for compensation on behalf of their son, Kit Carson, under the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-1 to-34 (2006) ("Vaccine Act"). The Chief Special Master dismissed the petition as untimely filed. The United States Court of Federal Claims affirmed and dismissed the Petitioners' petition for review. See Carson v. Sec'y of Health & Human Servs., 97 Fed.Cl. 620, 621 (2010). We affirm.
Kit Carson was born on May 22, 1996, and received numerous vaccinations between his birth and June 4, 1997. Kit's pediatricians noted that he was "'[b]ehind in speech'" at his 18-month check-up, and "'speech delay[ed]'" at his 24-month check-up. Carson, 97 Fed.Cl. at 621 (quoting Carson v. Sec'y of Health & Human Servs., No. 02-873V, 2009 U.S. Claims LEXIS 449, at *4 (Fed. Cl. Spec. Mstr. Aug. 26, 2009) ("Special Master's Decision")). On May 25, 1999, at Kit's three-year check-up, Dr. Page, Kit's pediatrician, noted Kit's "severe language delay, " and referred him to the Developmental Evaluation Center in Asheville, North Carolina. Special Master's Decision at *5. On September 13, 1999, Kit was evaluated by a psychologist for placement in his school district, at which time the psychologist again noted Kit's language delays ("IEP evaluations"). Kit was diagnosed with autism spectrum disorder on April 26, 2001. Petitioners, on behalf of their son, filed a petition for compensation under the Vaccine Act on July 22, 2002.
After a deferral of proceedings, Respondent moved to dismiss the petition under Rule 21(b) of the Vaccine Rules of the United States Court of Federal Claims on the ground that Petitioners filed their petition more than 36 months "after the date of the occurrence of the first symptom or manifestation of onset or of the significant aggravation of such injury." See 42 U.S.C. § 300aa-16(a)(2). The Chief Special Master relied upon the written reports and oral testimony of Petitioners' medical expert, Dr. Mumper, to determine "the first event objectively recognizable as a sign of a vaccine injury." Special Master's Decision at *7. Relevant to the Chief Special Master's decision was Dr. Mumper's testimony that: (i) Kit Carson was "exhibiting speech delay" in May of 1999; (ii) speech delay is one symptom of autism; and (iii) difficulty with speech was "one of the ways [Kit Carson's autism] manifested itself." Id. at *15. Based on this testimony, the Chief Special Master concluded "that the first symptoms of Kit's autism spectrum disorder are recorded in May of 1999 . . . . Thus, the petition in this matter needed to be filed in May of 2002 to be timely filed in accordance with § 16(a)(2)." Id. at *16-17.
Petitioners appealed the Chief Special Master's decision to the Court of Federal Claims. The Court of Federal Claims found that the Chief Special Master properly dismissed the petition as untimely and sustained the decision. Carson, 97 Fed.Cl. at 625. Petitioners then filed the present appeal. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3) and 42 U.S.C. § 300aa-12(f).
The Vaccine Act established a program to increase the safety and availability of vaccines, and through the Vaccine Injury Compensation Program claimants may get compensation for vaccine-related injuries or death. See 42 U.S.C. §§ 300aa-1, 300aa-10(a). The program limits the period during which a petitioner may file for compensation:
[(a)](2) . . . if a vaccine-related injury occurred as a result of the administration of [a vaccine set forth in the Vaccine Injury Table that was administered after October 1, 1988], no petition may be filed for compensation under the Program for such injury after the expiration of 36 months after the date of occurrence of the first symptom or manifestation of onset or of the significant aggravation of such injury . . . .
42 U.S.C. § 300aa-16(a)(2) (emphasis added).
"We review an appeal from the Court of Federal Claims in a Vaccine Act case de novo, applying the same standard of review as the Court of Federal Claims applied to its review of the special master's decision." Broekelschen v. Sec'y of Health & Human Servs., 618 F.3d 1339, 1345 (Fed. Cir. 2010). We give no deference to the Court of Federal Claims's or Special Master's determinations of law, but uphold the Special Master's findings of fact unless they are arbitrary or capricious. Id.
In Markovich, this court established a standard to determine when the "first symptom" occurred for purposes of the Vaccine Program's statute of limitations. See Markovich v. Sec'y of Health & Human Servs., 477 F.3d 1353, 1360 (Fed. Cir. 2007). The court rejected a subjective standard that focused on the parent's view as to when the first symptom presented and instead adopted "an objective standard that focuses on the recognized standards of the medical profession at large . . . ." Id. at 1360. The court held that "'the first symptom or manifestation of onset, ' for the purposes of § 300aa-16(a)(2) is the first event objectively recognizable as a sign of a vaccine injury by the medical profession at large." Id.
Petitioners do not dispute that Kit demonstrated speech delay more than 36 months before they filed their petition. Additionally, Petitioners' expert medical witness concurred that Kit's speech delay was the first symptom of his autism. At trial, Respondent's counsel questioned Dr. Mumper on ...