In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 13-710V
                                      Filed: April 24, 2014
                                       Not for Publication


***************************************
RAYMOND SOMOSOT and                             *
WANWILAI SOMOSOT, on                            *
Behalf of R.D.S., a Minor,                      *
                                                *                 Dismissal; petition filed outside of
       Petitioners,                             *                 statute of limitations; statute of
                                                *                 limitations runs from first symptom
v.                                              *                 or manifestation of onset, not date of
                                                *                 diagnosis; influenza vaccine;
SECRETARY OF HEALTH                             *                 cerebral palsy
AND HUMAN SERVICES,                             *
                                                *
       Respondent.                              *
***************************************
Lorraine J. Mansfield, Las Vegas, NV, for petitioners.
Lynn E. Ricciardella, Washington, DC, for respondent.

MILLMAN, Special Master

                                              DECISION 1

        On September 23, 2013, petitioners filed a petition under the National Childhood Vaccine
Injury Act, 42 U.S.C. §§ 300aa-10–34 (2006), alleging that influenza vaccine administered on
December 19, 2007, caused their son R.D.S. to suffer from cerebral palsy (“CP”). According to
the petition, R.D.S. became ill three weeks after his vaccination and remained ill three months
1
  Because this unpublished decision contains a reasoned explanation for the special master’s action in this
case, the special master intends to post this unpublished decision on the United States Court of Federal
Claims’s website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat.
2899, 2913 (Dec. 17, 2002). Vaccine Rule 18(b) states that all decisions of the special masters will be
made available to the public unless they contain trade secrets or commercial or financial information that
is privileged and confidential, or medical or similar information whose disclosure would constitute a
clearly unwarranted invasion of privacy. When such a decision is filed, petitioner has 14 days to identify
and move to redact such information prior to the document=s disclosure. If the special master, upon
review, agrees that the identified material fits within the banned categories listed above, the special
master shall redact such material from public access.
later. Pet. ¶ 8. By December 18, 2008, R.D.S. was diagnosed with microcephaly and
hypertonicity. 

allege that the first symptoms of R.D.S.’s CP were on
May 12, 2011, the date he was diagnosed with CP, 

the first symptoms of his CP actually
occurred at least three years earlier.

       The Vaccine Act provides:

               In the case of . . . a vaccine set forth in the Vaccine Injury Table
               . . . , 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 . . . .

42 U.S.C. § 300aa-16(a)(2) (2006) (emphasis added). The first symptoms of R.D.S.’s CP
occurred in 2008, more than three years before the petition was filed. Therefore, the petition
must be dismissed.


                                             FACTS

        During her pregnancy with R.D.S., Ms. Somosot tested positive for isolated group B
streptococci. Med. recs. Ex. 3, at 7. The results of her rubella screening were 8.6 IU/mL, which
falls within the borderline range. 

       R.D.S. was born on March 15, 2007. Med. recs. Ex. 1, at 1. Ms. Somosot was treated
with penicillin for her positive beta streptococci. Med. recs. Ex. 4, at 4. There was heavy
meconium in the amniotic fluid, and “meconium” is listed as an infant complication at birth. 

a “poor feeder.” 

He had a head circumference of 32 centimeters, which is
below the second percentile for his age, meeting the definition of microcephaly. Id.; Ex. A, at 2.

       On November 6, 2007, at almost eight months of age, R.D.S. saw his pediatrician with
the complaint of an intermittent rash since he was three months of age. Med. recs. Ex. 5, at 7.
The pediatrician diagnosed R.D.S. with eczema. 

        On December 19, 2007, at the age of nine months, R.D.S. received flu vaccine. Med.
recs. Ex. 2, at 1.

        On January 15, 2008, R.D.S. was taken to Southwest Medical Associates, Inc. Med. recs.
Ex. 5, at 20. He had been in the emergency room four days earlier with a cough and runny nose.

diagnosed with an ear infection and given an antibiotic and medication to help him

                                                 2
breathe. 

was bronchiolitis. 

previously had fever, but the fever
stopped. 

18, 2008, R.D.S. returned to Southwest Medical Associates, Inc. 

He
was on Albuterol Sulfate and Pulmicort. 

an upper respiratory infection lasting one
week consisting of low-grade fever, runny nose, and cough. 

some vomiting after
feeding. 

diagnosed with gross motor delays. 

        On April 3, 2008, R.D.S. returned to Southwest Medical Associates, Inc. 

His
pediatrician noted that he appeared to have decreased axial skeleton tone. 

said
he was unable to sit independently very well. 

assessed with reactive airway disease
and gross motor delays. 

       On April 10, 2008, R.D.S. continued to be assessed with reactive airway disease. 

       On May 27, 2008, R.D.S. was noted to have some global developmental delays and
delayed speech. 

        On June 27, 2008, R.D.S. saw Dr. Ajaz Ahmad Sheikh, a pediatric gastroenterologist, for
a history of vomiting since he was a baby. Med. recs. Ex. 6, at 6. R.D.S.’s father said that in the
previous one and one-half months, there had been an increase in the frequency of R.D.S.’s
vomiting. 

after almost every feeding and, many times, he refused to eat
during the day. 

said that he was losing weight. 

difficulty with
feeding when he was born, and he was receiving early intervention services for developmental
delay. 

1, 2008, R.D.S. returned to Dr. Sheikh. 

Dr. Sheikh noted that R.D.S.
had a history of poor weight gain and vomiting but was doing well on Zantac. 

R.D.S. had increased muscle tone in his extremities and developmental delay. 

assessment was that R.D.S. had a history of failure to thrive, poor weight gain, and
hypertonic muscles with developmental delay. 

       On October 1, 2008, at one year and six months old, R.D.S. saw Dr. Donald W. Johns, a
neurologist, because he was not eating well and had delayed motor skills. Med. recs. Ex. 7, at
15. R.D.S. walked using a walker. 

not crawl. 

not point to indicate his
needs. 

thought R.D.S.’s language peaked in January 2008, and then he lost
some abilities. 

environmental allergies, a question of reactive airway disease,
eczema, and Mongolian spot. 

not sit without support. 

His head
circumference was 44.4 centimeters, about four standard deviations below mean. 

impression was that R.D.S. had severe microcephaly. 

was concerned about a
possible degenerative condition. 

December 18, 2008, R.D.S. had a genetics consultation with Dr. Colleen A. Morris.
Med. recs. Ex. 5, at 29. The reason for the referral was microcephaly and developmental delay.

reported that R.D.S. seemed to have normal development for his first four
months of life. 

At the age of nine months, R.D.S. went with his family to California
for a visit, and he was ill when he came home. 

not breathe well, had an ear
infection, and did not eat anything for four days. 

to the emergency room, where he
was given IV fluids and breathing treatments. 

reports that after this illness,
R.D.S. was not himself, was more irritable, and would cry much of the time. 

said
she was concerned because his development seemed to stop. 

months, he was noted to
have head lag, and at 19 months, he could tripod sit but was not yet walking. 

noted he had bilateral cortical thumbs for quite some time before the visit with Dr. Morris. 

Mongolian spots over his skin, significant eczema, and gastroesophageal reflux disease
in the past. 

family tried to get him to bear weight, he would stand on his toes.

receiving physical therapy once a week. 

December 18, 2008 visit with Dr. Morris, R.D.S.’s family reported that he had a
workup for failure to thrive because his length had been consistently at the third percentile, and
his weight at two months was at the tenth percentile, but by nine months was below the third
percentile. 

for height at the time of examination was just below the third
percentile. 

circumference at birth was at the second percentile and was below the
second percentile at the age of four months. 

circumference was growing but was
falling further away from the curve over time. 

Morris examined R.D.S., his height
was in the third percentile, and his weight and head circumference were below the third
percentile. 

ridging of the anterior sagittal and metopic sutures and frontal narrowing
of the cranium. 

hyperreflexia in his lower extremities. 

His heel cords were
tight. 

to get R.D.S. to bear weight, Dr. Morris found that he would stand
only on his toes. 

diagnosed R.D.S. with microcephaly and hypertonicity. 

noted that based on her review of the records, he did not have microcephaly before
becoming ill at age nine months. 

1, 2009, Sunshine Valley Pediatrics listed R.D.S. as having developmental
delay. Med. recs. Ex. 8, at 2.

        On August 13, 2009, at the age of two years and five months, R.D.S. saw Dr. Johns again
for a pediatric neurological evaluation. Med. recs. Ex. 7, at 12. Dr. Johns noted that R.D.S. had
increased tone with gait, suggestive of white matter disease. 

When placed in a
standing and supported position, R.D.S. walked on his toes, flexed his elbows, and pronated his
forearms. 

diagnosed R.D.S. with microcephaly and developmental delay of
unclear etiology and recommended a pediatric orthopedic evaluation. 

31, 2009, R.D.S. saw Dr. Howard I. Baron, a pediatric gastroenterologist, for
failure to thrive. Med. recs. Ex. 6, at 21. Dr. Baron notes that R.D.S. was very behind verbally.

fluids exclusively by bottle but was working on drinking through a straw. 

growth was satisfactory, although below the growth curve since his last visit. 

dysphagia, choking on solids or water. 

assessment was that R.D.S. was self-
limited in his ability to tolerate a variety of textures. 

Dr. Baron suggested high-density
calories packed in purees and milks to help R.D.S. grow. 

17, 2009, R.D.S. saw Dr. Roshan Raja, a pediatric neurologist, for
hypertonia and developmental delay. Med. recs. Ex. 7, at 1. R.D.S. was not walking and had not
been sitting even at nine months. 

first noted to have a problem after a significant
viral infection when he was nine months old. 

viral infection, R.D.S. regressed
further with some aspects, such as speech and weight. 

time, he was also stiff and had
cortical thumbing. 

therapy at fifteen months and began improving his fine motor
skills. 

was difficult. 

braces and wrist splints, and he
drooled. 

Dr. Raja’s impression was developmental delay, post-infectious worsening of
delays, microcephaly, and hypertonia. 

        Cerebral palsy is first mentioned in the medical records on May 9, 2011. Med. recs. Ex.
8, at 18. On that date, R.D.S.’s pediatrician, Dr. Wesley J. Robertson at Sunshine Valley Health
Care, wrote on a prescription pad that R.D.S. had a severe fever two weeks after a flu
vaccination at nine months of age. Med. recs. Ex. 9, at 2. Dr. Robertson continues, saying
R.D.S. developed severe cerebral palsy afterward. 

writes it is “possible” the
vaccine was the cause of the CP. 

12, 2011, R.D.S. was seen for a follow up of a head injury at Sunshine Valley
Pediatrics. Med. recs. Ex. 8, at 18; Ex. 9, at 3. Dr. Robertson notes cerebral palsy as a diagnosis.

thereafter mention CP as one of R.D.S.’s diagnoses. See, e.g., Ex. 8, at 2, 11, 15,
17.


                                   PROCEDURAL HISTORY

       Petitioners filed their petition on September 23, 2013.

        On January 13, 2014, the undersigned issued an Order to Show Cause. The undersigned
noted that although R.D.S.’s CP was diagnosed on May 12, 2011, the first symptom or
manifestation of the onset of his CP occurred in 2008. The undersigned stated that the petition
was filed outside the three-year statute of limitations, 42 U.S.C. § 300aa-16(a)(2), and ordered
petitioners to show cause why the case should not be dismissed.

       During a telephonic status conference on January 14, 2014, the undersigned discussed her
Order to Show Cause and the parties’ deadlines for their respective responses and replies.

        On February 6, 2014, petitioners filed a Response to Order to Show Cause. Petitioners
argue that the onset of R.D.S.’s cerebral palsy was August 2011, the date that they assert cerebral
                                                 5
palsy first appears in the medical records.2 Petitioners list symptoms of cerebral palsy, including
“muscles that are very tight and do not stretch,” “abnormal gait,” “floppy muscles,” “speech
problems,” and “difficulty sucking or feeding in infants.” Pet’rs’ Resp. at 6–7. Petitioners assert
that their argument is consistent with Cloer v. Sec’y of HHS, 

(Fed Cir. 2011),
because the board-certified pediatricians who examined R.D.S. did not diagnose him with CP
and would not have recognized his well-baby checkups as symptoms of CP until August 2011.3
Pet’rs’ Resp. at 10. Petitioners assert that the medical literature cited in the undersigned’s Order
to Show Cause should be rejected. 

page 14 of Judge Lettow’s slip opinion in
Paluck v. Sec’y of HHS, No. 07-889, 

(Fed. Cl. 2013), which refers to Judge
Lettow’s prior ruling in the same case, 

, 483 (Fed. Cl. 2012), where he found
that the Special Master’s finding of the appropriate interval between vaccination and injury
(Althen prong 3) was arbitrary and capricious because it was not supported by the expert
testimony and medical records.4 Pet’rs’ Resp. at 10. They also assert that the undersigned must
seriously consider the opinions of the treating physicians and the medical records. 

Petitioners assert that R.D.S.’s hypertonicity, gross motor delays, not sitting well, and
developmental delay were symptoms of other conditions and that cerebral palsy is a separate
medical entity from these symptoms. 

12.

        On March 7, 2014, respondent filed a Response to Petitioners’ Response to Order to
Show Cause. Respondent gives a recitation of the relevant facts and argues that the onset of
R.D.S.’s cerebral palsy began as early as January 2008 and as late as 2009. Resp’t’s Resp. at 2–
7, 9–10. Respondent discusses Cloer and Markovich, 

(Fed. Cir. 2007), which
state that the statute of limitations begins to run at the first “symptom” or “manifestation of
onset,” neither of which require a doctor to diagnose the injury definitively. 

Respondent argues that the medical records and petitioners’ allegations show that the claim is
time-barred. 

Respondent attaches a declaration from Terry Dalle-Tezze, M.D., a
medical officer employed with the Department of Health and Human Services, Division of

2
  It is unclear why petitioners assert that the onset of R.D.S.’s CP occurred in August 2011. As noted by
respondent, petitioners refer to two different onsets in their response: August 24, 2011, Pet’rs’ Resp. at 6,
and August 12, 2011. 

The medical records first refer to a diagnosis of CP on May 9, 2011.
Med. recs. Ex. 9, at 2. A diagnosis of cerebral palsy is also listed on August 24, 2011, Med. recs. Ex. 8,
at 2, 15; however, this is not the first reference.
3
 There are several mistakes in petitioners’ response. Petitioners assert, “The medical community did not,
and would not, have recognized [R.D.S.’s] well-baby check-ups as including symptoms of multiple
sclerosis.” Pet’rs’ Resp. at 10 (second emphasis added). The undersigned assumes that petitioners mean
cerebral palsy rather than multiple sclerosis since there has been no allegation that R.D.S. developed
multiple sclerosis. Rather, petitioners seem to be confusing the facts in this case with the facts of Cloer,
as this error comes in the paragraph following petitioners’ discussion of Cloer.
4
  This argument misconstrues the issue in this case. The issue here is the onset of R.D.S.’s CP as related
to the statute of limitations, not whether the timing interval between R.D.S.’s vaccination and the onset of
his CP is appropriate as related to causation in fact.
                                                      6
Vaccine Injury Compensation, in which Dr. Dalle-Tezze opines that R.D.S. displayed symptoms
of cerebral palsy at birth, six months of age, and throughout 2008. Ex. A, at 2.

        On March 17, 2014, petitioners filed a Sur-Response to Order to Show Cause.
Petitioners argue that Dr. Dalle-Tezze’s declaration is inadequate because his opinion contradicts
the opinions of the board-certified pediatricians and pediatric specialists who examined and
treated R.D.S. Pet’rs’ Sur-Resp. at 2. Petitioners argue that since none of these pediatricians or
specialists diagnosed R.D.S. with cerebral palsy or noted it as a differential diagnosis prior to
May 12, 2011, his onset could not have been prior to that date. 

        A telephonic status conference was held on March 19, 2014. The undersigned discussed
that petitioners did not have a medical doctor opining that R.D.S. did not exhibit signs or
symptoms of CP prior to his diagnosis in May 2011. Petitioners’ counsel requested thirty days,
until April 18, 2014, to consult with doctors to see if any of them would offer an opinion that
R.D.S.’s symptoms prior to 2011 were not indicative of CP. On April 16, 2014, petitioners filed
a status report indicating that they had no additional material to file in this matter.


                                         DISCUSSION

        The United States is sovereign, and no one may sue it without the sovereign’s waiver of
immunity. United States v. Sherwood, 

, 586 (1941). When Congress waives
sovereign immunity, courts strictly construe that waiver. Library of Congress v. Shaw, 

, 311 (1986); McGowan v. Sec’y of HHS, 

, 740 (Fed. Cl. 1994); Edgar v.
Sec’y of HHS, 

, 345 (Fed. Cl. 1993); Patton v. Sec’y of HHS, 

,
535 (Fed. Cl. 1993), aff’d 

(Fed. Cir. 1994); Jessup v. Sec’y of HHS, 

,
352–53 (Cl. Ct. 1992). A court may not expand on the waiver of sovereign immunity explicitly
stated in the statute. Broughton Lumber Co. v. Yeutter, 

, 1550 (Fed. Cir. 1991).

        The Vaccine Act requires that a petition be filed within “36 months after the date of the
occurrence of the first symptom or manifestation of onset or of the significant aggravation of [the
alleged] injury.” 42 U.S.C. § 300aa-16(a)(2). The statute of limitations in the Vaccine Act for
personal injury starts to run on the day of “the first symptom or manifestation of onset,” not on
the day that the injury was diagnosed. 

. The Federal Circuit has held
that “the symptom or manifestation of onset must be recognized as such by the medical
profession at large.” 

The Federal Circuit discussed in Cloer that there is no
discovery rule under the Vaccine Act. Id at 1337. The date of the first symptom or
manifestation of onset “does not depend on when a petitioner knew or reasonably should have
known anything adverse about her condition,” nor does it depend on whether a petitioner knew
or should have known a connection between her injury and the vaccine. 

        In Cloer, a doctor’s petition was found untimely and dismissed because although she sued
within three years of her multiple sclerosis (“MS”) diagnosis, she did not sue within three years
                                                 7
of the first symptom or manifestation of onset of her MS. 

The Federal Circuit
held that the statute of limitations does not start to run when a clinically definite diagnosis is
made but rather when the first symptom or manifestation of onset of the illness occurs. 

The Federal Circuit affirmed the lower court’s finding that the first symptom of Dr.
Cloer’s MS was the Lhermitte sign, an electric shock sensation that went down the center of her
back, which she experienced six years before her diagnosis and eight years before she filed her
petition. 

1330.

        In Markovich, the Federal Circuit elaborated on the meaning of the terms “symptom” or
“manifestation of 

. “A symptom may be indicative of a variety of
conditions or ailments, and it may be difficult for lay persons to appreciate the medical
significance of a symptom with regard to a particular injury.” 

“a manifestation
of onset is more self-evident of an injury and may include significant symptoms that clearly
evidence an injury.” 

symptom or manifestation of injury can trigger the statute of
limitations, “whichever is first.” 

or manifestation of injury may be subtle. 

For example, in Markovich, the Federal Circuit determined that the vaccinee’s eye
blinking episodes were the first symptom of a seizure disorder. 

       In order to satisfy the statute of limitations in this case, R.D.S.’s first symptom or
manifestation of onset would have had to occur on or after September 23, 2010. Although
R.D.S. was diagnosed with CP in May 2011, the first symptom or manifestation of onset
occurred in 2008 or earlier.

        The most common signs of CP are spasticity and walking on the toes. NINDS Cerebral
Palsy Information Page, National Institute of Neurological Disorders and Stroke,
http://www.ninds.nih.gov/disorders/cerebral_ palsy/cerebral_palsy.htm (last updated Aug. 21,
2013). A person with CP might need to use special equipment to be able to walk. 

with CP have problems with speech. Facts About Cerebral Palsy, Centers for Disease
Control and Prevention, http://www.cdc.gov/ncbddd/cp/facts.html (last updated Dec. 27, 2013).
Petitioners also list all of these symptoms as symptoms of cerebral palsy. 5 Pet’r’s Resp. at 7–8.
Other symptoms of cerebral palsy include difficulty with feeding. 

in their affidavits that R.D.S. became ill after their visit to California in
January 2008, and he “was not himself” thereafter. Ex. 10, at 3. The medical records show that
R.D.S. was a poor feeder from birth. Med. recs. Ex. 4, at 5; Ex. 6, at 6. He was first diagnosed
with gross motor delays on March 18, 2008. Med. recs. Ex. 5, at 23. On April 3, 2008, he had
decreased skeletal tone and was unable to sit independently. 

On May 27, 2008, he was
noted again to have global developmental delays and delayed speech. 

On August 1,
2008, he was noted to have a history of failure to thrive, poor weight gain, hypertonic muscles,

5
 Petitioners argue in their Response to reject this medical literature (which was also listed in the
undersigned’s previous Order to Show Cause), but the medical literature cited in their Response lists the
same symptoms. Pet’r’s Resp. at 7–8.
                                                    8
and developmental delay. Med. recs. Ex. 6, at 3. On October 1, 2008, he was not crawling,
could walk only with a walker, and had a head circumference of four deviations below the mean.
Med. recs. Ex. 7, at 14–15. On December 18, 2008, R.D.S. was not walking, stood only on his
toes, was diagnosed with microcephaly, and had trouble feeding, head lag, bilateral cortical
thumbs, a head circumference below the third percentile, hyperreflexia in his lower extremities,
and tight heel cords. Med. recs. Ex. 5, at 29–31.

       Dr. Dalle-Tezze opines that R.D.S. “had microcephaly from birth, failure to thrive from
six months of age, and demonstrated signs of persistent developmental delay and abnormal
muscle tone beginning in 2008, which were all signs and symptoms of what was subsequently
diagnosed as cerebral palsy in 2011.” Ex. A, at 2. She concludes that R.D.S. had microcephaly
because his head circumference was 32 centimeters at birth, which was below the second
percentile for his age, and microcephaly is defined as a head circumference that is below the fifth
percentile. 

concludes that he had failure to thrive at six months, because his weight
was below the second percentile, meeting the failure to thrive definition of below the third
percentile. 

that this petition was filed within the statute of limitations because
R.D.S. was not diagnosed with CP until 2011 misconstrues the law. It is clearly established law
that the statute of limitations begins to run at the first symptom or manifestation of onset. 

. The statute of limitations can and often does begin to run before a petitioner’s
condition is diagnosed definitively. The medical records as well as petitioners’ affidavits show
that R.D.S. exhibited numerous symptoms of CP before September 23, 2010, the date that would
be needed for the statute of limitations to be satisfied. Dr. Dalle-Tezze, a medical doctor, opined
that the onset of R.D.S.’s CP occurred in 2008 or earlier. Although given the opportunity to do
so, petitioners have not provided any medical opinion disputing Dr. Dalle-Tezze’s conclusions.
The undersigned finds that the first symptoms of R.D.S.’s CP occurred in 2008 or earlier, when
he showed symptoms of microcephaly, failure to thrive, poor feeding, hypertonicity,
developmental delays, speech delays, and difficulty sitting and walking. Petitioners filed their
petition outside of the three-year statute of limitations, and therefore the petition must be
dismissed.


                                           CONCLUSION

     The petition is DISMISSED. In the absence of a motion for review filed pursuant to
RCFC Appendix B, the clerk of the court is directed to enter judgment herewith.7




7
 Pursuant to Vaccine Rule 11(a), the entry of judgment can be expedited by each party, either separately
or jointly, filing a notice renouncing the right to seek review.
                                                    9
IT IS SO ORDERED.


April 24, 2014           s/Laura D. Millman
DATE                      Laura D. Millman
                            Special Master




                    10