REISSUED FOR PUBLICATION
MARCH 6, 2019
Jfn tbe Wniteb $)tates �ourt of jfeberal �laims OSM
OFFICE OF SPECIAL MASTERS U.S. COURT OF FEDERAL CLAIMS
No. 16-1446V
(not to be published)
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INDIGO GRANT, as parent and natural *
guardian of in fant , M.G., *
*
Petitioner, * Filed: January 18, 2019
*
V. *
* Dismissal; Failure to Adhere
SECRETARY OF HEALTH * to Orders; Expert Report
AND HUMAN SERVICES, *
*
Respondent. *
*
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Indigo Grant, Middletown, NY, prose litigant.
Daniel Principato, U.S. Dep't of Justice, Washington, DC, for Respondent.
DECISION DISMISSING CASE FOR
INSUFFICIENT PROOF AND FAILURE TO PROSECUTE 1
On November 2, 2016, Indigo Grant filed a petition seeking compensation under the
National Vaccine Injury Compensation Program ("Vaccine Program").2 She alleged that her son,
M.G., suffered from various skin conditions (including a staph infection, skin lesions, and a rash)
as a result of receiving the Hep B vaccine on November 6, 2013, unspecified vaccines in December
of 2013, and the DTaP, IPV, Hep B, Hib, rotavirus, and pneumococcal vaccines received on
January 16, 2014. Petition (ECF No. 1) ("Pet.") at 1.
1 Although this Decision has been formally designated "not to be published," it will nevertheless be posted on the
Court offederal Claims's website in accordance with the E-Govemment Act of 2002, 44 U.S.C. § 3501 (2012)). This
means that the Decision will be available to anyone with access to the internet. As provided by 42 U.S.C. § 300aa-
12(d)(4 )(B), however, the parties may object to the Decision's inclusion of certain kinds of confidential information.
Specifically, under Vaccine Rule I 8(b), each party has fourteen days within which to request redaction "of any
information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged
or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly
unwarranted invasion of privacy." Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public
in its current form. Id.
2
The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of I 986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-lO through 34 (2012) [hereinafter "Vaccine Act" or "the
Act"]. Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).
Fed Ex 8136 4199 5790
Respondent's Rule 4(c) Report, dated July 31,2017, denied that compensation was
appropriate, arguing that (a) any rash/skin reaction M.G. experienced occurred too long after the
first vaccination to be causal, and (b) the symptoms in question appeared to be atopic eczema
rather than something suggestive of a vaccine reaction. ECF No. 18 at 8-9. Petitioner subsequently
amended her petition to add a claim of significant aggravation (to the extent onset was determined
to fall too long after the Hep B vaccine's administration in November 2013). Amended Petition,
dated December 72,2017 (ECF No. 29).
After the filing of medical records, Respondent's Rule 4(c) Report, and a round of initial
expert reports from both sides, Petitioner's counsel withdrew in August 2018, and she
subsequently proceede d as a pro se litigant. At that time, however, there remained an outstanding
order I had issued prior to counsel's withdrawal requiring Petitioner to file a supplemental expert
report in this case. See Order, dated April 20,2018 (docket entry). Petitioner's initial expert, Dr.
Alan Levin (a pathologist and immunologist), had filed an expert report that only cursorily
addressed the significant aggravation aspect of Petitioner's claim, and was otherwise conclusory
in its nature and analysis. See Report, filed November 21,2017 (ECF No. 26-l). Respondent's
expert, by contrast (Dr. Markus Boos, a pediatric dermatologist), offered a well-supported opinion
that M.G.'s rash was merely atopic dermatitis, and that the record did not corroborate Petitioner's
allegations that M.G.'s symptoms were aggravated after his December 2013 ot January 2014
vaccinations. See Report, filed April 10, 2018 (ECF No. 31-1). I therefore had ordered Petitioner
to obtain a supplemental expert, preferably from a dermatologist, to comment on Dr. Boos's
opinion or otherwise supplement the existing opinion of Dr. Levin (who did not have demonstrated
expertise with dermatologic issues).
My April Order seeking a supplemental report went unsatisfied for several months.3 After
counsel indicated in the summer of 2018 his wish to withdraw from representation, however, I
held a status conference with counsel in late August 2018. At that time, I allowed Petitioner a brief
extension, setting September 28,2018, as the new deadline for the supplemental report. I also
warned Petitioner that (because of my view that she could not prevail solely based on the opinion
of Dr. Levin), the case risked dismissal if she did not obtain and file the long-overdue supplemental
report. See Scheduling Order, dated August 21,2018 (ECF No. 38).
This second deadline for an expert report also passed without action on Petitioner's part. I
therefore held a status conference with Petitioner herself, at which time I explained to her the need
for the supplemental report, and again informed her that dismissal was likely if my prior order was
not complied with. See Scheduling Order, dated October 3, 2018 (ECF No. 49)' I provided
Petitioner yet another extension of time in which to file the supplemental report, now setting it as
due onNovember 30,2018.ld. at2.
3 After providing the petitioner a chance to determine how long she would need, I issued an Order seffing July 31,
2018, as the deadline for the supplemental expert report. See Order, dated May 14,2018 (docket entry).
2
Petitioner missed this deadline as well, nor did she indicate how she intended to proceed
with the case (for example, via a ruling on the existing record and based solely on Dr. Levin's
report). Accordingly, on December 6, 2018, I issued an Order directing Petitioner to file the
supplemental expert report immediately. See Order, dated Dec. 6, 2018 (ECF No. 51). Petitioner
missed this deadline as well. I therefore ordered Petitioner to show cause why the case should not
be dismissed for failure to adhere to my orders. See Order to Show Cause, dated December 17,
20lS (ECF No. 52). Petitioner has not responded to this last Order either.
Ms. Grant's claim may properly be dismissed for her repeated failures to comply with my
orders. A petitioner's inaction and failure to abide by a special master's orders risks dismissal of a
claim. Tsekouras v. Sec'y of Health & Human Servs.,26 Cl. Ct. 439 (1992), affd per curiam, 991
F.2d 810 (Fed. Cir. 1993); Sapharas v. Sec'y of Health & Human Servs., 35 Fed. Cl. 503 (1996);
Vaccine Rule 21(b). Petitioner ignored multiple deadlines I set for the filing of a supplemental
expert report. In each instance I provided her with more than enough time to contact my chambers
or file some kind of status report, and also allowed her reasonable extensions of time once she
became pro se. She was therefore on ample notice of the risks she took not following my orders.
Additionally, Petitioner's claim is reasonably dismissed on substantive grounds. To receive
compensation under the Vaccine Act, a petitioner must prove either (1) that she suffered a Table
injury, or (2) that she suffered an injury that was actually caused by a vaccine. See Sections
11(c)(l), 13(a)(1XA). An examination of the record, however, shows that M.G. did not suffer a
Table irjury. Further, the filed medical records do not support her vaccine injury claim. And
although Petitioner did offer an expert opinion to support her claim, I informed her not long after
its filing that the opinion was too conclusory andlor offered by an expert without knowledge of the
dermatologic issues in this case to be sufficient for a favorable entitlement decision. She did not,
however, ever supplement that opinion as ordered.
Under the Vaccine Acq a petitioner may not receive an award of compensation based on
her claims alone. In this case, there is insufficient evidence for Petitioner to meet her burden of
proof. In keeping with Section 11(c)(1)(A), her claim therefore cannot succeed and must be
dismissed.
Accordingly, I hereby DISMISS Petitioner's case. In the absence of a motion for review
filed pursuant to RCFC Appendix B, the clerk of the court SHALL ENTER JUDGMENT in
accordance with the terms of this decision.a
4 pursuant to Vaccine Rule I l(a), the parties may expedite entry ofjudgment if (ointly or separately) they file notices
renouncing their right to seek review.
.
IT IS SO ORDERED.
M
Brian H. Corcoran
Special Master
4