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No.03-468V
(Filed: March 30, 2016)*
'tOPINION ORIGINALLY FILED UNDER SEAL ON MARCH IO.2016
FILED
)
ROBERT R. BLOCH, JR. and ; MAR 3 0 2016
KERRY M. BLOCH, Parents and ) U.S. coURToF
natural guardians of D.J.B., aminor, ) fEOennl CUttvtS
Pro se plaintiffs. j
; Pro se; Vaccine Act; Dismissal for
v. ) Failure to Prosecute; Failure to Follow
) Court Orders
SECRETARYOFTHE )
DEPARTMENTOFHEALTHAND )
HUMAN SERVICES, ]
Defendant. t
\
',
OPINION'
FIRESTONE, Senior Judge.
This vaccine injury case comes before the court on petitioners' motion for review
of the special master's October 2, 2015 decision dismissing the petition of pro se
petitioners Robert R. Bloch, Jr. and Kerry M. Bloch, on behalf of their minor child D.J.B.
("petitioners"), for "fail[ure] to prosecute or prove this case." Bloch v. Sec'y of Health &
I Pursuant to Rule 18(b)
ofAppendix B ofthe Rules of the United States Court ofFederal
Claims (the "Vaccine Rules"), this opinion was initially filed under seal on March 10,2016 and
the parties were provided an opportunity to submit requests for redaclions.
Human Servs., No. 03-468V,2015 WL 6511457, at *1 (Fed. Cl. Oct.2,2015). Forthe
reasons discussed below, petitioners' motion for review is denied.
I. BACKGROUND
Petitioners initially filed their petition for vaccine compensation on February 27,
2003, under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. $$ 300aa-1 to
-34 ("the Vaccine Act"), alleging that D.J.B. was injured by a vaccine or vaccines listed
on the Vaccine lnjury Table. Id. $ 300aa-14. Petitioners filed their petition using the
Short-Form Autism Petition for Vaccine Compensation. On February 8,2012, after the
medical theories which formed the basis of petitioners' original claim were rejected in
test cases under the Omnibus Autism Proceeding ("OAP"), petitioners filed an amended
petition alleging a new medical theory for their case. DocketNo.33. Thereafter, on
February 21,2012, the special master ordered petitioners to file, in support of the
allegations in their amended complaint, "a reliable medical expert's opinion that one or
more vaccinations, more probably than not, played a substantial role in causing [D.J.B.'s]
injury." Docket No. 34.
From May 2012 through March 2013, petitioners, through their attomey, filed
status updates representing that an expert was reviewing their materials. Docket Nos. 35,
37,39,40. On June 20,2013, petitioners filed a status report indicating that they planned
to retain a medical expert. Docket No. 43. They did not, however, file any expert report.
On July 1,2013, the special master again ordered petitioners to file an expert
report. Docket No. 44. The special master stated:
Petitioners and petitioners' counsel are put on notice that if an expert report
is not frled in this case within six months of the date of this Order, absent
good cause shown, I will dismiss the petition for failure to prove the case.
Petitioners shall file their expert report by no later than August 1.
lQ!! If petitioners do not file an expert report at that time, petitioners
shall file a motion for an enlargement of time, pursuant to Vaccine
Rule 19(b). Such motion shall indicate whether or not a medical expert
has been retained in this case. Ifa medical expert has been retained
the motion shall be accompanied by a letter from petitioners' expert
describing what progress has been made toward producing an expert
report and when he/she expects to complete it,
ld. at l-2 (emphasis in original).
On October 30,2013, following an enlargement of time, Docket No. 46,
petitioners, through their attomey, represented that they had formally retained a medical
expert, Dr. Frances Kendall, M.D., to review their case. Docket No. 47. However,
petitioners did not provide an expert report. On Jtne 2,2014, following five more
enlargements of time (Order filed October 31,2013; Docket Nos. 51,54,56,59),
petitioners stated that they still did not have an expert report and requested additional
time to confer with counsel and "to make further report to the [special master] or to file
an appropriate motion regarding the petition." Docket No. 60.
On August 20,2014, the special master authorized counsel for petitioners to serve
subpoenas on Beaches Family Health Center, Florida Department of Health in Duval
County, and Florida Department of Health - Florida SHOTS, for the purpose of obtaining
additional vaccination records. Docket No. 70. Petitioners reoresented that "information
obtained from one or both of the above named entities may assist petitioners to determine
how they wish to proceed or ifthey can reasonably do so." Docket No. 86. It appears,
however, that petitioners were unable to get all of the information they sought from those
entities. Docket Nos. 80, 84.
On December 30,20I4, the special master reminded petitioners of their obligation
to file an expert report. Docket No. 87. The special master stated:
[T]his case has been pending for more than eleven years, and cannot
be permitted to go on indefinitely. Petitioners must file a report of a
qualified medical expert, which supports their claim that a vaccine
caused their child's condition, within 120 days of the date of this
order, or their case will be dismissed.
Id. (emphasis added).
On March 2,2015, counsel for petitioners stated that thcy were "unable to file an
expen report at this time." Docket No. 94 at 1. Counsel for petitioners further stated that
he had advised petitioners that he was unable to proceed with representation in their case
and would therefore file a motion to withdraw. Id. at 1-2.
On March 4, 2015, the special master issued an order stating, in relevant part, that:
. . . Petitioners are hereby put on notice that they soon will be required to
represent themselves, unless they obtain new counsel. In order to proceed with
their case, they will be required to file an expert reporl of a qualified medical
doctor supporting their claim. (Such expert must be willing to testify under oath
at an evidentiary hearing.) I will afford Petitioners a reasonable amount of time in
which to file such an expert report, bul I will not likely find it appropriate to
extend the due date for such report indefinitely, since this case has already been
pending for almost 12 years. Therefore, if Petitioners wish to pursue their claim,
they should proceed now with efforts to obtain an expert medical report.
4
Docket No. 95 (emphasis in original).2
On April 29,2015, the special master directed petitioners, now proceeding pro se,
to file an expert report by June 4,2015. Docket No. 106. On May 22,2015, petitioners
requested additional time to file an expert report. Docket No. 108. Petitioners stated that
they had only recently received case materials from their former attomey and that they
were in the process of familiarizing themselves with those resources and evaluating
potential expert witnesses. Id. Petitioners also noted that they found the previously
identified expert unsuitable. Id. On May 27,2015, the special master granted
petitioners' request for additional time, giving them until August 3, 2015 to file an expert
report, but noted that he would "rol be likely to grant any further enlargements of this
new deadline for filing an expert report." Docket No. 109 (emphasis in original).
On July 2,2015, petitioners reported that they had retained a medical doctor to
review their case materials and provide a report. Docket No. I 10. They also reported
that a chemist would support the doctor's findings. Id. In addition, petitioners requested
that the special master issue a subpoena to the hospital where D.J.B. was bom because
petitioners believed the hospital had withheld records regarding D.J.B.'s bi(h, medical
care, and treatment. Id. Petitioners also sought a subpoena to obtain billing records from
the time of D.J.B.'s birth that they believed were provided to their second attorney by
D.J.B.'s insurer. Id.
'Counsel for petitioners filedmotion to withdraw on April27,2015. Docket No. 104. The
a
motion to withdraw was granted on April 28,2015. Docket No. 105.
In an order filed July 10, 2015, the special master explained that the court's rules
permitted him to approve the issuance ofa subpoena but did not allow him to issue a
subpoena himself. Docket No. 113 at I (citing Vaccine Rule 7). The special master also
noted that petitioners had "had ample time to obtain relevant medical records." Id.
Moreover, the special master found that there was no evidence that petitioners' second
attomey had not provided all records in his possession. Id. at I -2.3 The special master
also reminded petitioners that they had been ordered to file an expert report. ld. at2.
The special master gave petitioners additional time for hling the expert report, untiL
August 17, 2015, but indicated that "given the extreme age of this case, I will not be
likely to further extend that deadline." Id. Finally, the special master instructed
petitioners to file a status report, by July 20,2015, stating the names of the two experts
whom thev had retained. Id.
On July 21,2015, petitioners filed a response to the special master's order.
Docket No. I 14. Petitioners again argued that D.J.B.'s birth hospital had withheld
records, in particular a Hepatitis B vaccine consenVrefusal form, and that their second
attorney was withholding insurance billing records. Id. In a separate request, hled on
Jtly 24,2015, petitioners asked for additional time to select expert witnesses. Docket
r Also on July I 0, 2015, pursuant to instructions from the special master,
the clerk of this court
forwarded petitioners copies of the medical records that the court had received on July 1 1 , 2008.
See Docket Nos. 111-l12 (cover letter for exhibits 1-11 copied onto compact disc by the clerk
and sent to petitioners via Federal Express Delivery).
No. 115. Petitioners stated that a medical doctor had been examinins their case materials
in preparation for writing an exp€rt report. Id.
On July 30, 2015, the special master denied petitioners' request to compel the
hospital to produce records. Docket No. 116.4 However, the special master did instruct
petitioners' second attorney to forward a copy of the requested insurance billing records
if he had them in his possession. Id.5 Regarding petitioners' request for additional time
a
After noting again that petitioners had "had ample time to obtain relevant medical records," the
special master found that:
Two different attomeys have apparently made efforts to obtain the hospital
records in question, and certain records ofthat hospital visit do appear at Ex. 2
filed in this case, of which Petitioners have a copy. Specifically, hospital records
conceming August 3 I , 1998, to Sept. I , 1998, are scattered throughout Ex. 2,
which consists of 85 pages, filed in four parts. I also note that on August 20,
2014, I authorized Petitioners' second counsel . . . to serve subpoenas upon
several sources of medical records. [Petitioners' second counsel] then succeeded
in using those subpoenas to obtain additional medical records, which were filed
on October 23, 2014.
Docket No. 116 at 1. The special master continued:
As to the "Vaccine Consent/Refusal Form", I find no record ofsuch a
form, nor was there a record of any Hepatitis B vaccination. However, I note that
atEx.2, p. 17, a birth record dated 8-31-98, there is a box checked indicating that
no neonatal medications were administered.
Further, in more than 26 years in presiding over Vaccine Act cases, I have
never seen a case in which birth records contributed in any way to showing that a
vaccine caused any harm to an individual. (ln a few cases, birth records have
shown that a child was damaged at or prior to binh, which might help show that a
condition was NOT vaccine-caused.)
Also, the question of"consent" to a vaccination seems irrelevant, since
under the Vaccine Act, causation is the only issue--the "fault" of any health
provider is never an issue.
Id. at 2 (emphasis in original).
5
On August 4, 2015, petitioners filed a motion to compel D.J.B.'s insurer to produce billing
records. Docket No. ll7. The special master denied the motion on August 11, 2015, on the
to file an expert report, the special master stated that he would "give Petitioners ONE
MORE FINAL CHANCE to obtain and file an expert report from a medical doctor,
stating the conclusion that DJB's condition was caused or aggravated by one or more
vaccines." Id. (emphasis in original). The special master concluded that "[i] f Petitioners
fail to file such an expert report within 60 days, I will have no choice but to dismiss their
case." Id.
On September 25,2015, petitioners filed a "motion for judgment on the pleading"
stating that they were sanctioning the court for the hospital's failure to comply with
discovery and the failure to provide medical records. Docket No. I19. Petitioners further
stated that if the court did not have all of the hospital's records for D.J.B., they wanted a
'Judgment on the pleading." Id. Petitioners did not file an expert report at that time or on
September 29,2015, as the special master had required in his last order, Docket No. I 16.
On October 2,2015, after the September 29,2015 deadline had passed, the special
master, consistent with his last order stating that he would "have no choice but to dismiss
their case" if an expert report were not filed, issued a decision dismissing petitioners'
case. Bloch,2015WL6511457, at*1-2(DocketNo. 120). Thespecialmasterreviewed
the case's procedural history and his orders for petitioners to submit an expert report. Id.
at *1. The special master also addressed petitioners' requests that the court compel
D.J.B.'s birth hospital and petitioners' former attomey to produce medical records,
grounds that petitioners had not shown that the information they sought was relevant to the issue
of whether D.J.B. suffered a vaccine-caused iniurv. Docket No. 1 18.
"many of which were already present in the record of this case." ld. at*2. The special
master concluded that despite many orders and warnings that informed petitioners that
their petition would bc dismissed if they did not file an expert report, petitioners had not
timely filed an expert report or requested more time to do so. Id. Accordingly, the
special master dismissed the case on the grounds that petitioners had failed to prosecute
and had failed to follow court orders. Id. (citing Sapharas v. Sec'y of Health & Human
Servs., 35 Fed. Cl. 503 (1996); Tsekouras v. Sec'v ofHealth & Human Servs.,26 Cl. Ct.
439 (1992); Vaccine Rule 2l(b)).
On October 6,2015, the special master filed an order addressing petitioners'
"motion for judgment on the pleading" that they had filed on September 25,2015,but
that did not arrive in his chambers until October 5,2015, after the decision of dismissal
had been filed. Docket No. l2l. In the October 6, 2015 order, the special master found
that "[i]n effect, [the decision to dismiss] has already complied with Petitioners' request"
because the special master had, prior to filing his decision, "carefully reviewed the record
of this case and concluded that Petitioners had failed to provide any substantial proofthat
[D.J.B.] suffered a vaccine-related injury." Id. Therefore, the special master concluded,
the decision to dismiss should stand as issued. Id.
On October 15, 2015, petitioners filed a motion asking this court to review the
special master's decision. Docket No. 122. The Secretary of Health and Human Services
("respondent") filed a response on November 12,2015. Docket No. 125.
II, DISCUSSION
A. Jurisdiction and Legal Standards
This court has jurisdiction to review the decisions of a special master in a Vaccine
Act case upon a motion from the petitioner. See 42 U.S.C. $ 300aa-12. Under 42 U.S.C.
$ 300aa-12(e), the court may: (a) sustain the special master's decision; (b) set aside any
findings of fact or conclusions of law that the court finds are arbitrary, capricious, or not
in accordance with law; or (c) remand the petition to the special master for further action.
A dismissal for failure to prosecute by the special master is reviewed under an abuse of
discretion standard. See. e.g., Padmanabhan v. Sec'y of Health & Human Servs., No.
2016-1074,2016 WL 463085, at *2-3 (Fed. Cir. Feb. 8, 2016) (per curiam) (citing
Claude E. Atkins Enters.. Inc. v. United States, 899 F.2d 1180, I183 (Fed. Cir. 1990);
Rule 4l (b) of the Rules of the Court of Federal Claims ("Involuntary Dismissal; Effect");
Vaccine Rule 21(b)(1)). The United States Court of Appeals for the Federal Circuit has
found that "[a]n abuse ofdiscretion exists when, inter alia, the [special master's] decision
was based on an erroneous conclusion of law or on a clearly eroneous finding of fact."
Id. at *3 (citing Matos v. Sec'v of Health & Human Servs., 35 F.3d 1549,1552 (Fed. Cir.
1994)). Therefore, a special master's decision should not be disturbed unless, upon a
weighing ofrelevant factors, the court is "left with a definite and firm conviction that the
[special master] committed a clear enor ofjudgment." Id. (citing Adkins v. United
States, 816 F.2d 1580, 1582 (Fed. Cir. 1987)).
l0
B. The Special Master Did Not Abuse His Discretion in Dismissing the
Petition.
In their motion for review of the special master's decision, petitioners argue that
the special master abused his discretion because "[a]s fact, it is the fiduciary
responsibility of the Respondents to provide a transparent, preponderance ofevidence
that vaccines did NOT injure DJB." Pet'rs' Mot. for Review 6. Petitioners also assert
that the special master should have decided this case in their favor because respondent
initially challenged their claim based on the statute of limitations rather than on the basis
of causation. Id. (citing respondent's motion to dismiss filed August 15, 2008, Docket
No. 14). Petitioners argue that respondent, having failed to raise causation, should be
deemed to have conceded that D.J.B.'s autism is vaccine-caused. Id. Finally, petitioners
argue that the special master ened in denying their request to compel the hospital to
oroduce records from D.J.B.'s birth. Id.6
6
Petitioners also allege fraud and demand the imposition of sanctions, including punitive
damages, on the special master, his law clerk, and counsel for respondent in connection with the
delayed consideration of their "motion for judgment on the pleading" (Docket No. 1 19), filed
September 25, 2015. Pet'rs'Mot. for Review 5. In addition, petitioners allege prejudice and
negligent mismanagement based on the special master's "failure to settle this case in DJB's favor
many years ago." S99 id. Respondent characterizes these claims as "meritless accusations made
because petitioners are appiuently unhappy with the dismissal of their petition." Resp't's
Resp. 8. The court agrees that these claims are without merit. There is nothing in the record to
indicate any wrongdoing on the part of the special master, his law clerk, or respondent's counsel.
To the contrary, the record of status reports, orders, and other filings from the past 12 years
demonstrates that the special master actively managed this case but gavc petitioners, proceeding
first through counsel and then pro se, ample leeway. The record also indicates that the special
master considered petitioners' September 25, 2015 motion as soon as he received a copy of it
and determined that the previously filed decision of dismissal in effect complied with petitioners'
request for ajudgment. See DocketNo. 121 (Order filed Oct. 6, 2015). Accordingly,
Detitioners' demand for sanctions is DENIED.
11
Respondent argues that petitioners' motion for review should be denied and the
special master's decision should be affirmed because the special master's management of
this case has been fair and because his dismissal of petitioners' petition was within his
sound discretion. Resp't's Resp. 8-10 (Docket No. 125).
The court now tums to each ofpetitioners' arguments. First, the court considers
petitioners' argument that the petition should have been granted because respondent had
the burden of demonstrating that the vaccines at issue did not harm D.J.B. and thus
petitioners did not need to show causation. This argument is without merit. Under the
Vaccine Act, causation is presumed by statute for "Table injuries." See. e.g., Lalonde v.
Sec'y of Health & Human Servs., 7 46 F.3d I 334, 1338 (Fed. Cir. 20 14). Where a
petitioner, however, alleges an "off-Table injury," as in this case, the petitioner has the
burden of establishing causation in fact. See. e.g., Paluck v. Sec'y of Health & Human
Servs., 786 F.3d 1373, 1379 (Fed. Cir. 2015) (citation omitted). It is only after the
petitioner has established causation that the burden shits to respondent to prove the injury
was caused by factors unrelated to the vaccine. See 42 U.S.C. $ 300aa- 13(a)( lXB).
In this connection, the Vaccine Act does not permit the special master or this court
to find causation in an off-Table injury case "based on the claims ofa petitioner alone,
unsubstantiated by medical records or by medical opinion." 42 U.S.C. $ 300aa-13(a)(l).
The Federal Circuit has recognized the discretion granted to the special masters to require
"such evidence as may be reasonable and necessary," "the submission of such
information as may be reasonable and necessary," and "the testimony of any person and
the production ofany documents as may be reasonable and necessary." Simanski v.
12
Sec'v of Health & Human Servs., 67 1 F.3d 1 368, I 380 (Fed. Cir. 20 12) (quoting
42 U.S.C. $ 300aa-12(d)(3)(B)). Thus, the burden was on petitioners in this case to
establish a plausible theory of causation with appropriate expert opinions. Petitioners'
objection to the dismissal on the ground that they did not have to establish causation is
based on a misunderstanding of the Vaccine Act and is without merit.
Second, the court finds that petitioners' contention that dismissal was not
appropriate because respondent conceded the issue ofcausation is without merit.
Petitioners suggest that respondent effectively conceded tiability because respondent
sought initially to dismiss their petition on statute of limitations grounds, without
mentioning causation. Respondent's motion to dismiss (Docket No. l4), ftled August 15,
2008, was submitted in accordance with the special master's scheduling order (Docket
No. 12), filed April 15, 2008, regarding stage one of resolving the OAP non-test cases.
The special master's April 15, 2008 order directed petitioners to file medical records,
which they did in part on July I l, 2008. Docket No. 13. The special master's April 15,
2008 order then directed respondent to file, within 45 days ofpetitioners' filing, a
statement regarding whether the petition was timely filed in compliance with the Vaccine
Act's statute of limitations and identi$,ing medical records in support of that statement.
The special master's April 15, 2008 order further explained that the merits of petitioners'
case, including the issue of causation, would not be considered until the statute of
limitations issue was addressed. Therefore, the court finds that respondent did not
concede the issue of causation by not raising it in the August 15, 2008 motion to dismiss
13
and that the special master did not abuse his discretion by rejecting petitioners'
contention that respondent conceded causation.
Third, the court finds that the special master did not abuse his discretion by
dismissing the petition without first ordering the production ofhospital records from
D.J.B.'s birth. In their subpoena request (Docket No. i 10), filed July 2,2015, petitioners
stated that they needed additional records because the records filed with the court "likely
do not completely represent events, medical care, and treatments DJB received as a
newbom infant." They focused their request on information related to a possible
Hepatitis B vaccination and the failure to provide "consent." The special master denied
the request for a subpoena on the grounds that the records were not relevant to the
specific issue of whether a childhood vaccine caused D.J.B.'s injuries. Docket Nos. 118
(Order filed Aug. 1 1, 2015), 116 (Order filed July 30, 2015).
In their filing with this court, petitioners fail to address the bases for the special
master's decision to deny their subpoena request. Docket No. I16. With regard to
petitioners' request for a "Vaccine Consent/Refusal Form," the special master found "no
record of such a form, nor was there a record of any Hepatitis B vaccination." ld. at2.
The special master found that "at Ex. 2, p. 17 , a birth record dated 8-3 l -98, there is a box
checked indicating that no neonatal medications were administered." Id. The special
master also noted that "the question of'consent' to a vaccination seems irrelevant, since
under the Vaccine Act, causation is the only issue--the 'fault' of any health provider is
never an issue." Id. (emphasis in original). Because petitioners do not explain how the
medical records they sought would have helped establish causation, the court finds that
14
the special master did not abuse his discretion by dismissing petitioners' case without
first granting their request to compel the hospital to produce records. Petitioners have
failed to show how the additional medical records would be relcvant to the issue of
causation.
Finally the court finds that the dismissal for failure to prosecute and failure to
follow the special master's orders is supported. The court recognizes that "while special
masters are given broad authority over the manner in which they conduct Vaccine Act
proceedings, that authority may not be used in a way that deprives a party ofprocedural
rights provided by the Vaccine Act and the Vaccine Rules . . . ." Simanski, 671 F.3d at
1385. Here, the special master provided petitioners with numerous opportunities and
extensions of time to provide an expert report to support their case. In such
circumstances, the court finds that petitioners' procedural rights were protected and that
the rationale for the special master's decision to dismiss for failure to prosecute and to
prove their case is well supported. In this regard, this case is similar to a recent Federal
Circuit case in which the court affirmed the dismissal of a vaccine petition in analogous
circumstances. In Padmanabhan v. Secretary of Health and Human Services , 2016 WL
463085, at +3-4, the Federal Circuit affirmed dismissal ofpro se petitioners' case for
failure to prosecute where the petitioners filed some medical records but did not comply
with the chief special master's repeated orders and wamings to file complete medical
records or an expert opinion regarding causation. The Federal circuit found that the
chief special master gave the petitioners "considerable leeway to pursue their claims.,,
Id. at *4. Similar to Padmanabhan, in this case the special master issued numerous orders
l5
for petitioners to file an expert report in support ofthe medical theory in their amended
petition and provided repeated wamings that their case would be dismissed if they did
not. The court finds that in this case, as the Federal Circuit found in Padmanabhan, the
special master did not abuse his discretion in dismissing petitioners' case for failure to
prosecute and follow court orders.
III. CONCLUSION
Petitioners' motion for review is DENIED. The special master's decision
dismissing the petition is SUSTAINED. The clerk is directed to enter judgment
accordingly.
IT IS SO ORDERED.
ANCVB. FIRESTONE
Senior Judge
16