Heine v. Secretary of Health and Human Services ( 2017 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-1241V
Filed: May 31, 2016
Unpublished
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TARA HEINE, *
*
Petitioner, * Failure to Prosecute; Failure to Follow
* Court Orders; Dismissal; Special
v. * Processing Unit (“SPU”)
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
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Edward M. Kraus, Law Offices of Chicago Kent, Chicago, IL, for petitioner.
Lara A. Englund, U.S. Department of Justice, Washington, DC, for respondent.
DECISION 1
Dorsey, Chief Special Master:
On September 30, 2016, petitioner filed a petition for compensation under the
National Childhood Vaccine Injury Act, 42, U.S.C. §§ 300aa-10, et seq., 2 alleging that
she “suffered chronic severe right shoulder and neck pain” as a result of receiving the
influenza vaccine on October 1, 2013. See Petition at preamble. The case was
assigned to the Special Processing Unit (“SPU”) of the Office of Special Masters.
I. Relevant Procedural Background
On October 4, 2016, petitioner was ordered to file required medical records and a
statement of completion by October 14, 2016. SPU Initial Order, issued Oct. 4, 2016
(ECF No. 5). Petitioner untimely filed documentation in support of her claim on October
1 Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends to post it on the United States Court of Federal Claims' website, in accordance with
the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services). In accordance with Vaccine Rule 18(b), petitioner has 14 days to
identify and move to redact medical or other information, the disclosure of which would constitute an
unwarranted invasion of privacy. If, upon review, the undersigned agrees that the identified material fits
within this definition, the undersigned will redact such material from public access.
2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
17, 2016, submitting medical records, a Walgreens informed consent form, an affidavit,
and a relevant medical article. Pet’r’s Exs. 1-7. Petitioner also filed an unopposed
motion requesting an extension to file additional records and a statement of completion.
Motion, filed Oct. 17, 2016 (ECF No. 8). The undersigned granted the request, setting a
new deadline of November 14, 2016, and postponing the initial status conference until
the record is complete. Order, issued Oct. 17, 2016 (Non-PDF).
Over the next three months, petitioner continued to seek extensions of the
deadline, and all requests were granted. See Orders, issued Nov. 15, 2016, Dec. 15,
2016, and Jan. 13, 2017 (Non-PDF). Additional evidence, however, was never filed.
On February 13, 2017, petitioner’s counsel filed an unopposed motion for status
conference. Motion, filed Feb 13, 2017 (ECF No. 12). The motion stated that additional
medical records were not forthcoming and counsel intended to withdraw from the case.
The motion further stated that petitioner’s counsel had attempted on several occasions
to contact petitioner concerning his intention to withdraw as her attorney, but his efforts
were unsuccessful. The conference was to discuss how to proceed.
The requested status conference was held on March 3, 2017, with Edward Kraus
appearing for petitioner and Lara Englund for respondent. During the discussion,
petitioner’s counsel stated that he had still not made contact with petitioner despite
multiple attempts by telephone, e-mail, and FedEx. He acknowledged that additional
evidence would be necessary for petitioner to prevail on her claim, and stated that
because such evidence had not materialized, he intended to withdraw. 3
On April 27, 2017, petitioner was ordered to show cause why her claim should
not be dismissed for insufficient proof and failure to prosecute. Order to Show Cause,
issued Apr. 27, 2017 (ECF No. 15). The deadline expired without response.
II. Failure to Prosecute and Statutory Requirements
It is petitioner’s obligation to follow court orders and non-compliance is not
favorably considered. Failure to follow court orders, as well as failure to file medical
records or an expert medical opinion, will result in dismissal of petitioner’s claim.
Tsekouras v. Sec’y of Health & Human Servs., 26 Cl. Ct. 439 (1992), aff’d, 991 F.2d
810 (Fed. Cir. 1993) (per curiam); Sapharas v. Sec’y of Health & Human Servs., 35
Fed. Cl. 503 (1996); Vaccine Rule 21(b).
In addition, a petitioner may not be awarded entitlement under the Vaccine Act
based on petitioner’s claims alone. Rather, the petition must be supported by medical
records or by the opinion of a competent physician. See 42 § 300aa-13(a)(1).
Petitioner bears the burden of proving a prima facie case by a preponderance of the
3On March 24, 2017, petitioner’s counsel submitted an application for interim attorneys’ fees and costs.
Motion, filed Mar. 24, 2017 (ECF No. 13). On April 6, 2017, respondent filed a response to the motion.
Response, filed Apr. 6, 2017 (ECF No. 14). The motion will now be considered an application for final
attorneys’ fees and costs.
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evidence. See 42 U.S.C. § 300aa-13(a)(1)(A); see also Moberly v. Sec’y of Health &
Human Services, 592 F.3d 1315, 1321 (Fed. Cir. 2010).
Petitioner in this case does not allege, nor does the record support, an injury
covered by the Vaccine Injury Table (“Table Injury”). See 42 C.F.R. § 100.3. Thus,
petitioner must prove causation-in-fact by providing “preponderant evidence that the
vaccination brought about [the] injury by providing: (1) a medical theory causally
connecting the vaccination and injury; (2) a logical sequence of cause and effect
showing that the vaccination was the reason for the injury; and (3) a showing of
proximate temporal relationship between vaccination and injury.” Moberly, 592 F.3d at1322 (citing Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274, 1278 (Fed. Cir.
2005).
III. Conclusion
Petitioner has failed to support her claim with sufficient proof, including medical
records and the opinion of a medical expert. Further, petitioner has signaled that such
evidence is not forthcoming by her refusal to communicate with her attorney or assist
him in the prosecution of her claim, or to respond to the Order to Show Cause.
Accordingly, this case is DISMISSED for insufficient proof and for failure to
prosecute. The clerk shall enter judgment accordingly.
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
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