Parker v. Secretary of Health and Human Services

ORIGINAL

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. O3-l635V
(Fii@d; Jun@ 13, 2014> FE§_ED
NOT TO BE PUBLISHED
J'~»'N 1 3 20th
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* FEDERAL CLAlMS
KIMBERLEY A. PARKER, *
parent of, QF, a minor, *
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Petitioner, *
* Failure to Prosecute;
* Failure to Follow Court Orders;
* Dismissal
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SECRETARY OF HEALTH AND *
HUMAN SERVICES *
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Respondent. *
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DECISION DISMISSING PETITION FOR FAILURE TO PROSECUTE
HASTINGS, Special Master.

In this case under the National Vaccine Injury Compensation Program (hereinafter "the
Programl"), Petitioner, on behalf of her minor child, seeks compensation for injuries that she
alleges were caused by several vaccinations. After reviewing the record, l have decided to
dismiss this case for failure to prosecute, for the reasons set forth below.

I
THE OMNIBUS AUTISM PROCEEDING
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 Omnibus Autism Proceeding, was set

1 The Program comprises Part 2 ofthe National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat.

3755, codified as amended, 42 U.S.C., §300aa-l 0 et seq. Hereinafter, individual section references will be to 42
U.S.C. §300aa ofthe Act.

forth in the six entitlement decisions issued by three special masters as "test cases" for two
theories of causation litigated in the Omnibus Autism Proceeding, and will not be repeated hei'e.

Ultimately, the Petitioners’ Steering Committee ["PSC"], an organization formed by
attorneys representing petitioners in the Omnibus Autism Proceeding, litigated six test cases
presenting two different theories on the causation of ASDs. 'l`he first theory alleged that the
measles portion of the measles, mumps, rubella vaccine could cause ASDs. That theory was
presented in three separate Program test cases during several weeks of trial in 2007. The second
theory alleged that the mercury contained in thiinerosal-containing vaccines could directly affect
an infant’s brain, thereby substantially contributing to the causation of ASD. 'l`hat theory was
presented in three additional test cases during several weeks of trial in 2008.

Decisions in each of the three cases pertaining to the PSC’s_/"z`rsz theory rejected the
petitionei's’ causation theories. Cedz'llo v. HHS, No. 98-916\/', 2009 WL 331968 (Fed. Cl. Spec.
l\/_lstr. Feb. 12, 2009), a__ff’d, 89 Fed. Cl. 158 (2009),0_1}_‘]"’02', 617 F.3d 1328 (Fed. Cir. 2010);
Hazlehursl v. HHS, No. 03-654V, 2009 WL 332306 (Fed. Cl. Spec. l\/lstr. Feb. 12, 2009), aff’a’,
88 Fed. Cl. 473 (2009), c;)j"’d, 604 F.3d 1343 (Fed. Cir. 2010); Snyder v. HHS, No. 01~162\/,
2009 WL 332044 (Fed. Cl. Spec. l\/lstr. Feb. 12, 2009), c_zff’d, 88 Fed. Cl. 706 (2009).2 Decisions
in each of the three "test cases" pertaining to the PSC’s second theory also rejected the
petitionei's’ causation theories, and the petitioners in each of those three cases chose not to
appeal. Dwyer v. HHS, No. 03-1202\/, 2010 WL 892250 (Fed. Cl. Spec. l\/Istr. Mar. 12, 2010);
Kz`ng v. HHS, No. 03-584V, 2010 WL 892296(Fed. Cl. Spec. l\/lstr. l\/lar. 12, 2010); Mead v.
I~II'IS, No. 03-215\/, 2010 WL 892248 (Fed. Cl. Spec. l\/Istr. l\/lar. 12, 2010). Thus, the
proceedings in these six cases concluded in 2010. Thereafter, the Petitioner in this case, and the
petitioners in other cases within the Omnibus Autism Proceeding, were given instructions

concerning how to proceed, if they chose to do so. (See the Order filed in this case on Dec. 20,
2011.)

II

PROCEDURAL HISTORY OF THIS CASE

On July 2, 2003, Petitioner filed a "Short-Form Autism Petition for Vaccine
Compensation," on behalf of her child, QF, under the Vaccine Act. By filing the Short-Form
Petition, the Petitioner, in effect, alleged that as a result of one or more vaccinations covered
under the Program, QF developed a neurodevelopmental disorder, consisting of an Autism
Spectruin Disorder or similar disorder, and that such disorder was caused by measles-mumps-
rubella (l\/ll\/IR) vaccination; by the "thimerosal" ingredient in certain Diplitheria-Tetanus-
Pertussis (DTP), Diphtheria-Tetanus-acellular Pertussis (DtaP), Hepatitis B, and Hemophilus
lnfluenza Type B (HIB) vaccinations; or by some combination of the two. (Autz`sm General
Order #1, 2002 WL 3169785*8 (Fed, Cl. Spec. l\/lstr., July 3, 2002).) T he petition provided no
specific details regarding the nature of the alleged vaccine~related injury to QF.

After the Omnibus Autism Proceeding "test cases" were decided (see Section I), I issued
an Order on December 20, 2011, requiring Petitioner to file an amended petition that included

2 Tlie petitioners in .S'nyder did not appeal the decision of the U.S. Coui't of Fedei'al Claims.

2

medical records, a medical expert’s opinion, or other reliable medical evidence to suppoit her
claim. (Order, at 2~3.) Because Petitioner failed to file these documents, I issued an Order to
Show Cause on l\/lay l6, 2012, directing Petitioner to inform the Coui't how she wished to
proceed, or otherwise indicate why the case should not be dismissed for failure to prosecute.
(Order to SC, at l-2.) After Petitioner failed to respond to this Order, l issued a decision
dismissing the case on June l9, 20l2.

On June l8, 2013, Petitioner filed both a motion to relieve her attorney, J ames Ferrell, of
his duties so that she could represent herself pro se, and a "Motion for Post Judgment Relief and
a Declaration of Attorney l\/lisconduct" pursuant to RCFC Appendix B Rule 36 and RCFC Rule
60. l granted the motion allowing Petitioner to represent herself pro se on June 24, 2013, and l
issued an Order granting the motion for relief from judgment on October 25, 2()13.

On Noveinber 6, 2013, l issued an Order requiring Petitioner to file all relevant medical
records within 90 days. (Order, at 2.) Subsequent to this, l twice granted Petitioner enlargements
of time to file the necessary records. (Oi'der, filed on Feb. 5, 2014; Order, filed on l\/lar. l4,
2014.) However, Petitioner failed to comply with these orders, and on l\/lay 2, 2014, l issued an
Order to Show Cause why the case should not be dismissed for failure to respond to a court
Order. Petitioner again failed to respond.

III

DISCUSSION

A. Petitioner failed to file a response to my Order to Show Cause
On l\/Iay 2, 2014, l issued an Grder to Show Cause, stating as follows:

On November 6, 2013, l filed an Order allowing 90 days
for petitioner, Kiinberly A. Parker, to file all the medical records
that are relevant to this case. On February 5, 2()14, l filed an Order
allowing Petitioner additional time, until l\/larch 7, 2()4, to file
Petitioner’s medical records. On l\/Iarch l4, l issued an Order
allowing Petitioner an enlargement of time, until April 14, 2014, to
file the medical records that are relevant to this case. However,
Petitioner has not filed the relevant medical records.

Although l am deeply sympathetic regarding [QF’s]
disorder, it is still a Petitioner’s obligation to follow court orders.
Failure to follow court orders will result in dismissal of
Petitioner’s claim. Tsekouras v. Sec’y of HHS, 26 Cl. Ct. 439
(1992), 991 F.2d 810 (Fed. Cir. 1993) aff d per curiam without
opin.; Sapharas v. Sec’y of HHS, 35 Fed. Cl. 503 (1996); Vaccine
Rule 2l(b). Petitioner is hereby ordered to show cause within
thirty days of the date of this Order, why this case should not be
dismissed for failure to respond to a court Order.

Failure to file a response to this Order to Show Cause
will be interpreted as a failure to prosecute this claim, and the
petition shall be dismissed.

Petitioner has failed to file a response to this Order, and she has not otherwise explained why this
case should not be dismissed. Petitioner was notified that failing to respond to the Order to Show
Cause would be interpreted as a failure to prosecute the claim.

B. Petitioner failed to file any medical records or expert reports

Petitioner filed the instant petition almost eleven years ago, on July 2, 2003. Despite
numerous Orders, Petitioner has failed to file any medical records relevant to this case, and has
not filed any expert report.

C. Conclusion

Because Petitioner failed to respond to the Order to Show Cause issued on l\/lay 2, 2014,
and because Petitioner has failed for eleven years to provide any relevant medical records, expert
reports, or to otherwise prove her case, this case is dismissed for failure to prosecute or prove
the case. The clerk shall enter judgment accordingly.

IT IS SO ORDERED.

George L. Hastings, Jr.
Special Master

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