Hendrickson v. Secretary of Health and Human Services ( 2018 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: November 28, 2017
* * * * * * * * * * * * * * * * * * *
GEORGE HENDRICKSON, *
parent and next friend of * PUBLISHED
E.H., a minor, *
* No. 15-812V
Petitioner, *
v. * Special Master Gowen
*
SECRETARY OF HEALTH * Dismissal; Failure to Prosecute; Insufficient
AND HUMAN SERVICES, * Proof; Diphtheria-Tetanus-Acellular
* Pertussis (“DTaP”); Seizures;
Respondent. * Dravet Syndrome; SCN1A Mutation.
* * * * * * * * * * * * * * * * * * *
Richard Gage, Richard Gage P.C., Cheyenne, WY, for petitioner.
Ryan Pyles, United States Department of Justice, Washington, DC for respondent.
DECISION1
On July 31, 2015, George Hendrickson ("petitioner”), as parent and next friend of E.H., a
minor, filed a claim in the National Vaccine Injury Compensation Program.2 Petitioner alleged
that a diphtheria-tetanus-acellular pertussis (“DTaP”) vaccination administered to E.H. on
October 23, 2012, either actually caused or significantly aggravated E.H.’s seizure disorder and
developmental delays. Petition (ECF No. 1). The information in the record, however, does not
show entitlement to an award under the Program.
I. Procedural History
Petitioner filed this claim on July 31, 2015. Petition (ECF No. 1). After being granted
several extensions of time, petitioner finished filing all relevant medical records and a Statement
1
Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this decision contains a
reasoned explanation for the action in this case, I intend to post it on the website of the United States Court of
Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. Before the decision
is posted on the court’s website, each party has 14 days to file a motion requesting 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). “An objecting party must provide the court with a proposed
redacted version of the decision.” Id. If neither party files a motion for redaction within 14 days, the decision
will be posted on the court’s website without any changes. Id.
2
The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-10 et
seq. (hereinafter “Vaccine Act” or “the Act”). Hereafter, individual section references will be to 42 U.S.C. § 300aa
of the Act.
of Completion on April 14, 2016. (ECF Nos. 18, 19).
The undersigned then ordered respondent to file a Rule 4(c) report detailing his position
in the case, which was received on July 13, 2016. Respondent’s Report (ECF No. 22). In his
Rule 4(c) report, respondent contended that petitioner had not shown through medical records,
expert opinion, or medical literature that the DTaP vaccine had actually caused or significantly
aggravated E.H.’s condition. Respondent argued that E.H. exhibited seizure activity before
receiving the DTaP vaccine; E.H.’s seizures after the vaccine were not significantly different
than those he had before; and E.H. had an SCN1A gene mutation which has been causally
associated with such seizure conditions.
The case proceeded on a litigation track. Petitioner submitted a neurologist’s expert
report. Exhibit 12 (ECF No. 25). Respondent submitted a responsive expert report from another
neurologist. Exhibit A (ECF No. 30). On March 23, 2017, I convened a Rule 5 status
conference, during which I set forth my preliminary views based on the medical records, expert
reports, and medical literature filed to date. I stated that petitioner’s case appeared to have
several factual problems.
I first reviewed the medical records, which provide that E.H. experienced seizures before
receiving the vaccine at issue, beginning within the second week of life. While petitioner
contends that the seizures changed following the vaccine, there is some indication that the
seizures began to change before the vaccine.
Additionally, respondent’s expert neurologist opines that DTaP-related seizures typically
occur within 72 hours, or 3 days, of the vaccination. In this case, the medical records indicate
that the first seizure following vaccination occurred approximately 15 days afterward. This is
well outside the 3 day time period associated in the literature.
I also discussed that E.H. has been found to have an Ala1339Asp SCN1A missense gene
mutation. Petitioner’s expert neurologist contends that this mutation does not cause the type of
seizures E.H. has experienced. However, the neurogenetic report states that SCN1A mutations
are associated with a variety of epilepsy phenotypes and with developmental disability. I noted
that while not dispositive regarding the issues in the present case, previous vaccine claims
involving SCN1A gene mutations have been unsuccessful.
During the Rule 5 status conference, petitioner’s counsel stated that he would like to
discuss the issues raised with his client and with his expert neurologist, and potentially have the
expert neurologist prepare another report. I stated that I would grant time for counsel to do so,
but cautioned that counsel and petitioner should bear in mind the considerable problems outlined
above as they determined how to proceed. I ordered petitioner to file a responsive expert report
or an appropriate motion by June 1, 2017 (approximately 65 days after the Rule 5 status
conference on March 23, 2017).
On the deadline of June 1, 2017, petitioner did not file an expert report or a motion.
Instead, he filed a status report indicating that a VAERS report was produced contemporaneous
to the onset events in this case. Petitioner was in the process of obtaining the VAERS report.
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Petitioner requested an unspecified extension of time to obtain the VAERS report, after which he
would make a decision on how to proceed in this case. (ECF No. 35). I ordered petitioner to file
the VAERS report and a status report by July 3, 2017. (ECF No. 36).
On July 5, 2017, petitioner filed a second status report providing that he had requested
the VAERS report, but he had not received it. He requested a second unspecified extension.
(ECF No. 37). I ordered petitioner to file the VAERS report and a status report by August 7,
2017. (ECF No. 38).
On August 7, 2017, petitioner filed a third status report indicating that he had requested
the VAERS report directly from the VAERS system but he had not received it. He requested a
third unspecified extension. (ECF No. 39). I ordered petitioner to file the VAERS report and a
status report by September 7, 2017. (ECF No. 40).
On September 7, 2017, petitioner filed a fourth status report providing that he was
attempting to locate the physician whom he asked to file the VAERS report and that he would
make a decision on how to proceed after he spoke with the treating physician. (ECF No. 41). In
response, I noted that each of these four status reports lacked detail, any estimate of how much
time is needed to complete the task at hand, or any request for specific relief. I instructed
petitioner’s counsel to avoid these issues going forward. I ordered that by October 10, 2017,
petitioner shall file a status report detailing his efforts to locate the physician, to speak with him
or her, and to have the VAERS report filed. If petitioner did not make progress by that time, he
shall request a specific period of additional time to do so or propose another course of action.
(ECF No. 42).
Petitioner did not meet this deadline. After petitioner’s counsel did not respond to my
law clerk’s several messages about this missed deadline, I scheduled a status conference for
October 30, 2017. During the status conference, I noted that since the Rule 5 status conference
on March 21, 2017, petitioner had received numerous extensions, totaling seven months, to file
another expert report or a VAERS report. Over this seven-month period, petitioner had not filed
any such report or other materials to help negate the likelihood of an SCN1A etiology for E.H.’s
condition. I noted that a petitioner’s failure to prosecute his claim may be grounds for dismissal.
I ordered petitioner to show cause, if any, why this case should not be dismissed upon the
records and reports filed to date, no later than Monday, November 20, 2017. I noted that failure
to respond by that date would result in dismissal of petitioner’s claim. See Order to Show Cause
(ECF No. 43).
To date, petitioner has not filed anything in response to the Order to Show Cause. This
matter is now ripe for adjudication.
II. Analysis
A petitioner must establish entitlement to compensation in the Vaccine Program, through
one of two ways. The first way is to establish that vaccinee suffered a “Table Injury,” i.e., that
he or she received a vaccine listed on the Vaccine Injury Table and subsequently developed a
corresponding injury within a corresponding period of time. § 300aa-11(c)(1). In the present
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case, petitioner does not allege, nor do the medical records indicate, that E.H. suffered a Table
Injury.
Thus, petitioner must proceed on the second route – he must establish that the vaccine
actually caused the onset or significant aggravation of a condition in the vaccinee. § 300aa-
13(a)(1)(A). To prove actual causation, petitioner must present (1) a medical theory; (2) a
logical sequence of cause and effect; and (3) a medically acceptable temporal relationship
between the vaccination and the injury. Althen v. Sec’y of Health & Human Servs., 418 F.3d
1274, 1278 (Fed. Cir. 2005). In this case, petitioner filed medical records and an initial expert
report in support of his claim. However, during the Rule 5 status conference in March 2017, I
outlined several issues which petitioner needed to address. Petitioner has now had over 8 months
to offer a supplemental expert report, a VAERS report, or other evidence in support of his claim.
Petitioner has failed to file any such evidence or give any indication that he will be able to do so.
Therefore, it is appropriate to dismiss petitioner’s claim for insufficient proof.
In addition, when a petitioner fails to comply with orders to prosecute his or her claim,
the special master may dismiss the claim. Sapharas v. Sec’y of Health & 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 819 (Fed. Cir. 1993); 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
when party failed to submit pre-trial memorandum); Adkins v. United States, 816 F.2d 1580,
1583 (Fed. Cir. 1987) (affirming dismissal of case due to party’s failure to respond to discovery
requests). In the present case, during the Rule 5 status conference in March 2017, I stated that I
would allow petitioner and his counsel time to decide how to proceed, but that they should keep
in mind the significant problems in their case. Petitioner did not follow my initial order to file an
expert report or an appropriate motion; he instead requested additional time to locate and file a
VAERS report. While it is not clear how the VAERS report could have helped to address the
problems in this case, I allowed petitioner additional time to attempt to locate the VAERS report,
and when that was unsuccessful, to attempt to locate the physician he asked to file the VAERS
report. Petitioner subsequently failed to file a status report on his progress and after that, he
failed to file any response to my Order to Show Cause. This repeated failure to meet deadlines
or otherwise inform the court constitutes a failure to prosecute, which is separate grounds for
dismissal of petitioner’s claim.
III. Conclusion
This case is dismissed for insufficient proof and for failure to prosecute. The Clerk
of the Court shall enter judgment accordingly.
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
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