DECISION DISMISSING PETITION1

(not to be published)

BRIAN H. CORCORAN, Special Master.

On August 2, 2017, Tiffany Gaiter, on behalf of her minor son, D.S.G., filed a pro se 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 of the MMR vaccine he received in July 2014 significantly aggravated his existing developmental condition. Petition at 1. The Petition was accompanied by 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 aggravated his ASD. See Motion, filed September 20, 2017 (ECF No. 7). Petitioner responded to the motion on October 19, 2017, arguing that certain acts of federal 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 which time 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 of the three-year statute of limitations 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 of claims that the MMR vaccine was associated with autism and their overall lack of success, 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 only to allegations contained in her Petition and prior response to the dismissal motion. See March 19, 2018 filing (ECF No. 15).

I issued an Order on April 12, 2018, dismissing the pmi of Petitioner's claim pertaining to the 2002 vaccination as time-barred. Order, dated April 12, 2018 (ECF No. 19). I subsequently held a second status conference with the pmiies, at which time I reiterated to Petitioner my view that the remaining significant aggravation claim (based on the 2014 vaccination) was timely but lacked reasonable basis, for the reasons previously discussed. Order, dated May 2, 2018, at 1 (ECF No. 21). I therefore ordered Petitioner to 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 supporting her claim" in any such filing. Id.

Ms. Gaiter filed a response to my Order on June 11, 2018. See Response (ECF No. 23). In 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 of her 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 effort to distinguish the substantial body of case law that I had previously informed Petitioner made her claim unviable.4

Respondent filed a brief reacting 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)(1)(A) and 11(c)(1). An examination of the 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 by the 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 if expert reports have not yet been obtained. My decision is rooted in both the facts of this 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 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 of record 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 of symptoms 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 of any vaccination).5 However, such evidence does not establish a causal link between an injury and a vaccination.

Furthermore, the decision to deny compensation in claims alleging a significant aggravation of autism following the receipt of a vaccination is consistent with prior 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 of an existing autism diagnosis was "not at all persuasive"); Long v. Sec'y of 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 of an existing autism diagnosis where "worsening [of symptoms] seem[ed] likely to have been the result of the normal course of autism"); Richard v. Sec'y of Health & Human Servs., No. 02-877V, 2010 WL 2766742, at *5 (Fed. Cl. Spec. Mstr. May 3, 2010) (petitioners "failed to 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 present matter from cases decided under similar circumstances, despite my allowing her the opportunity to 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 (motivated by a reasonable wish to 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 reasoned judgment tells me (based on review of the record) that this claim will not succeed where countless others failed. Because Petitioner has not — despite due opportunity — shown otherwise, I must DISMISS her claim.

In the absence of a timely-filed motion for review (see Appendix B to the Rules of the Court), the Clerk SHALL ENTER JUDGMENT in accordance with this decision.6

IT IS SO ORDERED.