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

REISSUED FOR PUBLICATION
June 8, 2018
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U.S. COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
Filed: April 26, 2018 FILED
************************* APR 2 6 2018
CHRISTY LYNN DAY, as mother and * No. 17-702V
representative of the Estate of R.E., * U.S. COURT OF
FEDERAL CLAIMS
*
Petitioner, * Special Master Sanders
*
V. *
*
SECRETARY OF HEALTH * Dismissal; Order to Show Cause;
AND HUMAN SERVICES , * Failure to Prosecute; Insufficient Proof.
*
Respondent. *
*************************
Christy Lynn Day, prose, Zachary, LA.
Ryan D. Pyles, United States Department of Justice, Washington, DC , for Respondent.
DECISION 1
On May 26, 2016, Christy Lynn Day ("Petitioner") filed a petition for compensation as
mother and representative of R. E. in the ational Vaccine Injury Compensation Program ["the
Program"]. 2 Pet. 1, ECF No. l. Petitioner alleged that the Hepatitis B ("Hep B"), Rotavirus,
Diphtheria-Tetanus-acellular-Pertussis (" DTaP"), Pneumococcal, and Polio vaccines R.E.
received on May 20 , 2015 caused his death. Id. at 2-6. The information in the record, however,
does not show entitlement to an award under the Program.
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This decision shall be posted on the website of the United States Court of Federal Claims, in
accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205 , 116 Stat. 2899,
2913 (codified as amended at 44 U .S.C. § 3501 note (2012)). As provided by Vaccine Rule
l 8(b ), each party has 14 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 l 8(b ).
2 National 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).
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I. PROCEDURAL HISTORY
Petitioner submitted her petition on May 26, 2017 along with R.E.'s birth certificate,
vaccination record, and death certificate. Pet'r 's Exs. 1-3 , ECF Nos. 1-2, 1-3, 1-4. This case
was originally assigned to Special Master Brian Corcoran. ECF No. 4. Special Master Corcoran
issued an Initial Order on May 31 , 2017 directing the parties to submit a joint statement of
completion on August 24, 2017. ECF No . 5. On July 19, 2017, the case was transferred to the
undersigned. ECF No . 9.
The undersigned held an initial status conference on July 24, 2017. ECF No. 13. During
the status conference, the undersigned encouraged Petitioner to obtain counsel. Id. Petitioner
stated that an attorney was reviewing her case and explained that she filed pro se in order to meet
the statute of limitations. Id. The undersigned ordered Petitioner to submit a Motion to
Substitute Counsel or request a status conference by August 23 , 2017. Id.
Petitioner's deadline passed without any communication from Petitioner. See Docket
Rep. On August 28, 201 7, Chambers emailed Petitioner to determine whether Petitioner was
still seeking counsel. See Informal Comm., dated Aug. 28, 2017. Petitioner answered that the
attorney was still reviewing her case and requested a status conference. Id. The undersigned
scheduled a status conference for September 11 , 2017. ECF No. 14. During the status
conference, Petitioner indicated that the attorney reviewing her case was awaiting "one more
document" before he or she could determine whether to represent Petitioner. ECF No. 15.
Petitioner further stated that this attorney had not given Petitioner a timeline for receiving the
document. Id. The undersigned granted Petitioner an extension to obtain counsel and ordered
her to submit a Motion to Substitute Counsel by October 11 , 2017. Id.
On October 1, 2017, Petitioner emailed Chambers seeking clarification regarding the
previous order. See Informal Comm., dated Oct. 5, 2017. Petitioner asked whether the
undersigned gave Petitioner more time to obtain an attorney or to gather documentation. Id. The
undersigned scheduled a status conference for October 19, 2017 to discuss Petitioner's questions.
ECF No. 16. On that date, the undersigned asked Petitioner about her attempts to procure
counsel. ECF No. 17. Petitioner answered that the attorney was still awaiting one more
document, but admitted that she had not communicated with the attorney in two weeks. Id. The
undersigned ordered Petitioner to have her attorney submit a Motion to Substitute Counsel by
November 20, 2017. Id.
On November 22 , 2017, Petitioner emailed Chambers, writing that the attorney wanted to
take her case. See Informal Comm., dated Nov. 27, 2017. Petitioner wrote that the attorney was
new to the Vaccine Program and asked whether the Court could pay experts directly . Id.
Chambers answered that the Court does not preemptively pay ex perts and emailed Petitioner a
copy of the Vaccine Rules regarding legal representation. Id. Because Petitioner wrote that the
attorney would take her case, the undersigned ordered Petitioner to have her attorney file a
Motion to Substitute Counsel by December 28, 201 7. ECF No . 18. Petitioner failed to meet this
deadline.
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On January 11 , 2018, Chambers tel ephoned and emailed Petitioner regarding her lapsed
deadline. See Informal Comm., dated Jan. 11, 2018. Petitioner responded via email by
reiterating that her attorney is new to the Program and repeating her question whether the Court
could compensate prospective experts directly . Id. The undersigned scheduled a status
conference for January 30, 2018 to discuss these questions. ECF No. 19.
On January 30, 2018, Chambers could not contact Petitioner, despite repeated attempts
by telephone and email. ECF No. 21. By this date, Petitioner had been given multiple
extensions of time to obtain an attorney. Furthermore, she represented on several occasions that
there was an attorney preparing to take her case, but had not filed a Motion to Substitute
Counsel. The undersigned therefore recognized Petitioner's pro se status and ordered her to file
an expert report by March 1, 2018 . Id. The undersigned also canceled the status conference
scheduled for January 30, 2018. Id. The undersigned included that a failure to meet this
deadline would result in an Order to Show Cause. Id.
Petitioner failed to submit any filing by her March 1, 2018 deadline. See Docket Rep.
On March 9, 2018, Chambers emailed Petitioner regarding her deadline. See Informal Comm.,
dated Mar. 9, 3028. On March 12, 2018 Chambers telephoned Petitioner, but was unable to
speak to Petitioner or leave a voicemail. See Informal Comm ., dated Mar. 12, 2018.
On March 13 , 2018, the undersigned issued an Order to Show Cause why Petitioner's
case should not be dismissed for failure to prosecute. ECF No. 22. The undersigned ordered
Petitioner to submit an expert report by April 12, 2018 and stated that failure to abide by this
deadline would result in dismissal. Id. To date, the undersigned has not received any further
filings or communications from Petitioner.
II. ANALYSIS
When a petitioner fails to comply with Court orders to prosecute her case, the Court may
dismiss her 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), ajf'd, 991 F .2d 819 (Fed.
Cir. 1993) (table); Vaccine Rule 2l(b); 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). Petitioner's failure to meet the deadline for her expert report and comply with the
undersigned 's Order to Show Cause indicate a disinterest in pursuing her claim.
The undersigned will therefore dismiss this case for failure to prosecute.
Additionally, to receive compensation under the Act, Petitioner must prove either (1) that
R. E. suffered a "Table Injury"- i.e., an injury falling within the Vaccine Injury Table-
corresponding to one of his vaccinations, or (2) that R.E. suffered an injury that was actually
caused by a vaccine. See§§ 13(a)(l)(A), 1 l(c)(l). An examination of the record did not provide
any evidence that R.E. suffered a "Table Injury." Furthermore, the undersigned finds that
Petitioner's filings, without an expert report or any additional evidence, do not contain
preponderant evidence demonstrating that R. E. 's death was caused by a vaccine.
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Thus, this case is dismissed for failure to prosecute. The Clerk shall enter judgment
accordingly.
IT IS SO ORDERED.
Special Master
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