In the United States Court of Federal Claims
oFFIcE oF SPECIAL MAsTERs
No. 02-s91v
Fn@d;May 6,2014 RECEl\/ED
Nor ro BE PUBLISHED MAY _ 6 2014
AND HUMAN SERVICES,
Respondent.
* U.S. collar oF FEDEFl=
>l<
SECRETARY OF HEALTH *
>l<
>l<
>l¢
=l=
>l¢
>k**>l<**>l<>l¢*>l<>l<*=|=*>l<**>l<=l<*=l<>l<**
DECISIoN‘
Petitioner filed a Petition for Vaccine Compensation in the National Vaccine lnjury
Compensation Program ("the Prograrn"),z on Iuly 26, 2002, alleging that her child, DJK, was
injured by a vaccine or vaccines listed on the Vaccine lnjury Table. See § l4. l hereby dismiss
this petition because Petitioner has failed to prosecute or prove this case.
I
PROCEDURAL BACKGROUND
On October 21, 2002, Respondent filed Respondent’s Report, which asserted that the
petition in this case failed to state with particularity the circumstances surrounding the claim and
was not accompanied by materials required to be filed with a petition (i.e.- contemporaneous
medical records). Respondent contended that such materials were needed to assess the medical
and legal merits of the Petitioner’s claim. (Id.)
1 Because this unpublished decision contains a reasoned explanation for the action in this case, I intend to post this
decision on the United States Court of Federal Claims' Website, in accordance with the E-Government Act of 2002,
Pub. L. No. 107-347, § 205, ll6 Stat. 2899, 29l3 (codified as amended at 44 U.S.C. § 3501 note (2006)). In
accordance with Vaccine Rule l8(b), petitioner has 14 days to identify and move to delete medical or other
information, the disclosure of which would constitute an unwarranted invasion of privacy. lf, upon review, I agree
that the identified material fits within this detinition, l will delete such material from public access.
2 The Program comprises Part 2 of the National Childhood Vaccine lnjury Act of 1986, Pub. L. No. 99-660, 100
Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-lO et seq.(2006) (hereinafter "Vaccine Act" or "the Act").
Hereafcer, individual section references will be to 42 U.S.C. § 300aa of the Act.
On June 14, 2011 Petitioner was ordered to inform the court within thirty days whether
she wished to proceed with this claim, or if she wished to exit the Vaccine Program. lf Petitioner
wanted to proceed, Petitioner was required to file an amended petition that was fully compliant
with §3 00 aa-l l(c), and that clearly explained the theory of vaccine causation in this case. After
several unopposed motions for extensions of time, on August 15, 2011, Petitioner filed an
amended petition for vaccine compensation. By my Order dated August 26, 2011, Petitioner was
put on notice that she would need an expert report to advance her case.
On September 6, 2011, Petitioner filed medical records. On November 28, 2011,
Petitioner filed a status report, stating that her counsel was still in the process of trying to contact
Petitioner regarding any missing medical records and obtaining a potential expert to review
DJK’s complete medical records. Furthermore, on January 27, 2012, Petitioner’s counsel filed a
status report stating that Petitioner was out of the country and that counsel tried to contact
Petitioner several times by telephone with no response. Petitioner’s counsel continued to file
status reports through May 30, 2012, stating that Petitioner’s counsel could not contact Petitioner
and had not obtained an expert report.
On June 28, 2012, 1 ordered Petitioner to show cause as to why this case should not be
dismissed for failure to prosecute. That order also required Petitioner to provide the court with all
relevant medical records within sixty days. On November 29, 2012, Petitioner filed certain
additional medical records.
On December 7, 2012, l filed an Order noting that Petitioner had been under order to file
an expert report in this case for over fifteen months, but had yet to file that report. Petitioner was
ordered to file an expert report by February 7, 2013.
F or the next eleven months, Petitioner’s motions for extension of time were granted. ln
January of 2014, Petitioner’s counsel of record withdrew from the case. On January 15 , 2014,
Petitioner was ordered to inform the court, within thirty days, how she wished to proceed with
her case. Petitioner failed to respond at all to that Order.
II
THE OMNIBUS AUTISM PROCEEDING ("OAP")
This case is one of more than 5,400 cases filed under the Program in which petitioners
alleged that conditions known as "autism" or "autism spectrum disorders" ["ASD"] were caused
by one or more vaccinations. A detailed history of the controversy regarding vaccines and
autism, along with a history of the development of the OAP, was set forth in six decisions issued
by three special masters as "test cases" for two theories of causation litigated in the OAP, as
described below, and will not be repeated here.
Ultimately, the Petitioners’ Steering Committee ["PSC"], an organization formed by
attorneys representing petitioners in the OAP, litigated six test cases presenting two different
theories on the causation of ASDs. The first theory alleged that the measles portion of the
measles, mumps, rubella vaccine could cause ASDs. That theory was presented in three separate
2
0
Program test cases during several weeks of trial in 2007. The second theory alleged that the
mercury contained in thimerosal-containing vaccines could directly affect an infant’s brain,
thereby substantially contributing to the causation of ASD. That theory was presented in three
additional test cases during several weeks of trial in 2008.
Decisions in each of the three test cases pertaining to the PSC’s first theory rejected the
petitioners’ causation theories. Cedillo v. HHS, No. 98-916\7, 2009 WL 33l968 (Fed. Cl. Spec.
Mstr. Feb. 12, 2009), ajj"d, 89 Fed. Cl. 158 (2009), aff’d, 617~ F.3d 1328 (Fed. Cir. 2010);
Hazlehurst v. HHS, No. 03-654\7, 2009 WL 332306 (Fed. Cl. Spec. Mstr. Feb. 12, 2009), ajj”’d,
88 Fed. Cl. 473 (2009), ajj"d, 604 F.3d 1343 (Fed. Cir. 2010); Snyder v. HHS, No. 01-162V,
2009 WL 332044 (Fed. Cl. Spec. Mstr. Feb. 12, 2009), ajj"d, 88 Fed. Cl. 706 (2009).3 Decisions
in each of the three "test cases" pertaining to the PSC’s second theory also rejected the
petitioners’ causation theories, and the petitioners in each of those three cases chose not to
appeal. Dwyer v. HHS, No. 03-1202V, 2010 WL 892250 (Fed. Cl. Spec. Mstr. l\/lar. 12, 2010);
Kl`ng v. HHS, No. 03-584V, 2010 WL 892296 (Fed. Cl. Spec. Mstr. Mar 12, 2010); Mead v.
HHS, No. 03-215\/, 2010 WL 892248 (Fed. Cl. Spec. Mstr. Mar. 12, 2010). Thus, the
proceedings in those six test cases concluded in 2010. Thereafter, Petitioner in this case, and
petitioners in other cases within the OAP, were given instructions concerning how to proceed, if
they chose to do so. (See the Order filed in this case on Aug. 26, 2011.)
III
FAILURE TO PROSECUTE
Although 1 am deeply sympathetic regarding DJK’s disorder, it is still Petitioner’s duty to
respond to court orders, and to prove her case. 1 note that Petitioner has been under order to file
an expert report in this case for nearly three years. (See my Orders filed August 26, 2011, June
28, 2012, December 7, 2012, March 27, 2012, and January 15, 2012.) The case was filed in
2002, and has not proceeded toward a resolution yet. As 1 reminded Petitioner in my Order of
January 15, 2014, failure to follow court orders, as well as failure to file medical records or an
expert medical opinion, must result in dismissal of Petitioner’s claim. Tsekoums v. Sec 'y, HHS,
26 Cl. Ct. 439 (1992), aff’dper curiam, 991 F.2d 810 (Fed. Cir. 1993); Sapharas v. Sec j), HHS,
35 Fed. Cl. 503 (1996); Vaccine Rule 21(b).
IV
CAUSATION IN FACT
To receive compensation under the Program, Petitioner must prove either 1) that DJK
suffered a "Table Injury" - z'. e., an injury falling within the Vaccine Injury Table - corresponding
to one of DJK’s vaccinations, or 2) that DJK suffered an injury that was actually caused by a
vaccine. See §§ 300aa-13(a)(1)(A) and 300aa-11(c)(1). Under the Vaccine Act, a special master
cannot find that Petitioner has proven her case by a preponderance of the evidence, based upon
3The petitioners in Snyder did not appeal the decision of the U.S. Court of Federal Claims_
3
"the claims of a Petitioner alone, unsubstantiated by medical records or by medical opinion."
§300aa-l 3(a). Petitioner has failed to file sufficient evidence in this case. My examination of the
filed medical records did not uncover any evidence that DJK suffered a "Table lnjury," or a
vaccine-caused injury. Furthermore, Petitioner did not file an expert report.
Accordingly, it is clear from the record in this case that Petitioner has failed to
demonstrate either that DJK suffered a "Table lnjury" or that DJK’s injuries were "actually
caused" by a vaccination. Further, Petitioner has been repeatedly ordered since 2011 to file an
expert report opining that DJK has a vaccine-caused injury, but she has failed to do so, nor does
it appear that there is any serious prospect that she will do so. Therefore, despite my sympathy
for Petitioner and for DJK, this case is dismissed for insufficient proof and for failure to
prosecute. The clerk shall enter judgment accordingly.
IT IS SO ORDERED.
Georgc L. Hastings, Jr.
Special Master