In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
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MENGYAO HU, *
* No. 19-327V
Petitioner, * Special Master Christian J. Moran
*
v. *
* Filed: September 7, 2021
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * Decision dismissing case;
* order to show cause.
Respondent. *
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Renee Gentry, Vaccine Injury Clinic – George Washington Univ. Law School,
Washington, D.C., for petitioner;
Jennifer Shah, United States Dep’t of Justice, Washington, D.C., for respondent.
UNPUBLISHED DECISION DENYING COMPENSATION1
On March 1, 2019, Ms. Hu filed a petition under the National Childhood
Vaccine Injury Act, 42 U.S.C. §300a-10 et. seq., alleging that she suffered from
myofasciitis and other injuries as a result of the human papilloma virus vaccine
(“HPV” or “Gardasil”) vaccine she received on August 19, 2015. The information
in the record, however, does not show entitlement to an award under the Program.
I. Procedural History
On March 1, 2019, Ms. Hu filed her petition, alleging that she suffered from
myofasciitis and other injuries as a result of the HPV vaccine she received on
August 19, 2015. See Petition. Petitioner filed some initial medical records on
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The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services), requires that the Court post this decision on its website.
Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing redaction of
medical information or other information described in 42 U.S.C. § 300aa-12(d)(4). Any
redactions ordered by the special master will appear in the document posted on the website.
March 18, 2019. Subsequently, she filed some more medical records as well as
certified translated copies on September 10, 2019.
Respondent filed his Rule 4 report on April 20, 2020. In this report,
respondent stated that the medical records submitted do not establish that she
suffered myofasciitis. Resp’t’s Rep’t at 7. In addition, respondent questioned the
temporal relationship as it appears that petitioner’s joint pain began in November
2016, approximately 15 months after the vaccination. Id., citing exhibit 3 at 2. A
status conference was held on April 27, 2020 to discuss respondent’s report and the
resulting order required Ms. Hu to file an onset/fact affidavit and answer specific
narrative questions. See order, filed Apr. 28, 2020.
Although Ms. Hu filed an affidavit on August 4, 2020, she did not answer
the specific narrative questions and was re-ordered to complete those questions.
See order, filed Apr. 28, 2020. Subsequently, Ms. Hu filed affidavits on August 4,
2020 and October 21, 2020. Affidavits from her parents were filed November 6,
2021. More translated medical records were filed on December 29, 2020.
On January 28, 2021, petitioner was ordered to file her expert report(s) by
March 29, 2021. In a May 24, 2021 motion for enlargement of time, petitioner’s
counsel represented that although she communicated with numerous potential
experts, none were willing to testify. Although given additional time to produce an
expert report, petitioner did not. Petitioner’s counsel reported on June 24, 2021
that she has been unable to contact Ms. Hu for multiple months.
On June 30, 2021, a status conference was held to discuss whether Ms. Hu
would file an expert report and next steps. Petitioner’s counsel stated she had not
been able to contact Ms. Hu for a considerable period of time. Petitioner’s counsel
described extensive unsuccessful efforts to communicate with Ms. Hu.
The same day, petitioner was ordered to show cause as to why her case
should not be dismissed by July 30, 2021 and to file an expert report by August 30,
2021. Counsel for Ms. Hu filed a status report on July 30, 2021, indicating that she
has been unable to locate or contact Ms. Hu and thus would be unable to continue
with this case. Ms. Hu did not file an expert report.
II. Analysis
When a petitioner (or plaintiff) fails to comply with Court orders to
prosecute her case, the Court may dismiss the case. Sapharas v. Sec’y of Health &
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Human Servs., 35 Fed. Cl. 503 (1996); Tsekouras v. Sec’y of Health & Human
Servs., 26 Cl. Ct. 439 (1992), aff’d, 991 F.2d 810 (Fed. Cir. 1993) (table); Vaccine
Rule 21(c); see also Claude E. Atkins Enters., Inc. v. United States, 889 F.2d 1180,
1183 (Fed. Cir. 1990) (affirming dismissal of case for failure to prosecute for
counsel’s failure to submit pre-trial memorandum); Adkins v. United States, 816
F.2d 1580, 1583 (Fed. Cir. 1987) (affirming dismissal of case for failure of party to
respond to discovery requests).
Additionally, to receive compensation under the National Vaccine Injury
Compensation Program (hereinafter “the Program”), a petitioner must prove either
1) that she suffered a “Table Injury” – i.e., an injury falling within the Vaccine
Injury Table – corresponding to one of his vaccinations, or 2) that she suffered an
injury that was actually caused by a vaccine. See §§ 300aa-13(a)(1)(A) and 300aa-
11(c)(1). An examination of the record did not uncover any evidence that Ms. Hu
suffered a “Table Injury.” Thus, she is necessarily pursuing a causation-in-fact
claim.
Under the Act, a petitioner may not be given a Program award based solely
on the petitioner’s claims alone. Rather, the petition must be supported by either
medical records or by the opinion of a competent physician. § 300aa-13(a)(1). In
this case, because the medical records do not support petitioner’s claim, a medical
opinion must be offered in support. Petitioner, however, has offered no such
opinion. Accordingly, it is clear from the record in this case that Ms. Hu has failed
to demonstrate either that she suffered a “Table Injury” or that her injuries were
“actually caused” by a vaccination.
Ms. Hu’s compliance with deadlines and other orders falls short of ideal and
suggests she is not interested in pursuing her case. However, the dismissal of her
case is not a sanction for misconduct or punishment for missing a deadline. The
dismissal is a consequence of Ms. Hu’s inattention to her case and the inadequacy
of her evidence.
Thus, this case is dismissed for failure to prosecute and for insufficient
proof. The Clerk shall enter judgment accordingly. See Vaccine Rule 21(b).
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IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
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