Haley v. Secretary of Health and Human Services ( 2015 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 14-802V
Filed: May 22, 2015
Not for Publication
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LAURA HALEY, *
*
Petitioner, *
* Dismissal decision; failure to prosecute
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
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Laura Haley, Pensacola, FL, petitioner (pro se).
Adriana R. Teitel, Washington, DC, for respondent.
MILLMAN, Special Master
DECISION1
On September 2, 2014, petitioner filed a petition under the National Childhood Vaccine
Injury Act of 1986 (hereinafter the “Vaccine Act” or the “Act”), 42 U.S.C. §§ 300aa-10-34
(2006), alleging that the influenza (“flu”) vaccine she received on September 23, 2011, either
caused her to develop vaccine-induced systemic lupus erythematous (“SLE”), lupus with central
nervous system involvement, and neuropsychiatric lupus, or significantly aggravated these
conditions.
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Because this unpublished decision contains a reasoned explanation for the special master’s action in this
case, the special master intends to post this unpublished decision on the United States Court of Federal
Claims’ website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899,
2913 (Dec. 17, 2002). Vaccine Rule 18(b) states that all decisions of the special masters will be made
available to the public unless they contain trade secrets or commercial or financial information that is
privileged and confidential, or medical or similar information whose disclosure would constitute a clearly
unwarranted invasion of privacy. When such a decision is filed, petitioner has 14 days to identify and
move to delete such information prior to the document’s disclosure. If the special master, upon review,
agrees that the identified material fits within the banned categories listed above, the special master shall
delete such material from public access.
The initial telephonic status conference was held on October 7, 2014. Respondent filed
her Rule 4(c) Report on December 8, 2014, in which she stated respondent did not find the case
appropriate for compensation under the Act.
A telephonic status conference was held on December 17, 2015, during which petitioner’s
former counsel requested time to attempt to secure an expert report or discuss dismissal with his
client. The undersigned ordered petitioner to file a status report by January 16, 2015, stating
whether petitioner had found an expert, was willing to dismiss her claim, or wished to continue
with her claim as a pro se petitioner.
According to petitioner’s counsel’s status report dated February 13, 2015, petitioner did
not answer her phone for a scheduled telephone call with her counsel on January 5, 2015, nor did
she reply to her counsel’s email. She contacted her counsel’s office on January 12, 2015, and
rescheduled the call for January 13, 2015. During the call on January 13, 2015, petitioner told her
counsel that she needed additional time to make her final decision.
Petitioner filed a motion for extension of time on January 16, 2015, requesting an
additional two weeks for petitioner to determine how to proceed with her claim. This motion was
granted on January 20, 2015.
On January 22, 2015, petitioner’s counsel contacted petitioner and scheduled a call with
her for the following day. Stat. Rep., Feb. 13, 2015, ECF No. 16. Petitioner’s counsel was
unable to reach her on January 23, 29, and 30 by either phone or email. Petitioner’s counsel sent
a certified letter to petitioner on January 30, 2015.
Petitioner filed a second motion for extension of time on January 30, 2015, requesting an
additional two weeks to determine how to proceed. Petitioner’s counsel reported he had reached
out to petitioner via telephone, email, and certified mail and had been unable to reach her. The
undersigned granted petitioner’s motion on January 30, 2015, and ordered petitioner to file a status
report by February 13, 2015.
On February 10, 2015, petitioner’s counsel received notification that the certified letter
was signed for by someone other than petitioner. Petitioner’s counsel was unable to contact
petitioner on February 10, although he did speak with her father who said he would relay the
message. Petitioner’s counsel again attempted to contact petitioner on February 12.
On February 18, 2015, petitioner’s counsel filed a Motion to Withdraw as Attorney of
Record. After interim attorneys’ fees were resolved, petitioner’s counsel’s Motion to Withdraw
was granted on March 13, 2015.
Between February 18, 2015, and March 13, 2015, the undersigned’s law clerk attempted to
contact petitioner by phone and left a voicemail message. In a March 13, 2015 Order, the
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undersigned ordered petitioner to contact her chambers by March 27, 2015. This Order was sent
to petitioner by mail and email.
The undersigned’s law clerk attempted to phone petitioner on April 15, 2015, and left a
voicemail message. She also attempted to contact petitioner via email.
The undersigned issued an Order to Show Cause why the case should not be dismissed for
failure to prosecute on April 22, 2015. Petitioner was ordered to contact the undersigned’s law
clerk by May 6, 2015. This Order was sent to petitioner via certified mail. The tracking
information from the U.S. Postal Service shows that petitioner did not pick up the letter. The
undersigned’s law clerk emailed the Order to petitioner on May 14, 2015, and directed her to
contact chambers by May 20, 2015, or her case would be dismissed. The undersigned’s law clerk
also attempted to reach petitioner by phone on May 19 and 20, 2015, and left a voicemail message.
To date, the undersigned’s chambers has received no communication from petitioner.
Accordingly, this case is DISMISSED for failure to prosecute.
DISCUSSION
Under Rule 41(b) of the Rules of the United States Claims Court, “the court may dismiss a
case on its own motion, ‘[f]or failure of the plaintiff to prosecute or to comply with these rules or
any order of court. . . .’“ Tsekouras v. Sec’v of HHS, 26 Cl. Ct. 439, 442 (Fed. CI. 1992) (quoting
Claude E. Atkins Enterprises, Inc. v. United States, 899 F.2d 1180, 1183 (Fed. Cir. 1990)).
Petitioner failed to respond to the court’s many attempts to contact her and to the undersigned’s
April 22, 2015 Order to Show Cause.
To satisfy her burden of proving causation in fact, petitioner must prove by preponderant
evidence: “(1) a medical theory causally connecting the vaccination and the injury; (2) a logical
sequence of cause and effect showing that the vaccination was the reason for the injury; and (3) a
showing of a proximate temporal relationship between vaccination and injury.” Althen v. Sec’v of
HHS, 418 F.3d 1274, 1278 (Fed. Cir. 2005). In Althen, the Federal Circuit quoted its opinion in
Grant v. Secretary of Health and Human Services, 956 F.2d 1144, 1148 (Fed. Cir. 1992):
A persuasive medical theory is demonstrated by “proof of a logical sequence of
cause and effect showing that the vaccination was the reason for the injury[,]” the
logical sequence being supported by “reputable medical or scientific
explanation[,]” i.e., “evidence in the form of scientific studies or expert medical
testimony[.]”
418F.3d at l278.
Without more, “evidence showing an absence of other causes does not meet petitioner’s
affirmative duty to show actual or legal causation.” Grant, 956 F.2d at 1149. Mere temporal
association is not sufficient to prove causation in fact. Id. at 1148.
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Petitioner did not file an expert report in support of her allegations. The Vaccine Act does
not permit the undersigned to rule in favor of petitioner based solely on her allegations,
unsupported by medical records or medical opinion. 42 U.S.C. § 300aa-13(a)(1).
This petition is hereby DISMISSED for failure to prosecute.
CONCLUSION
Petitioner’s petition is DISMISSED. In the absence of a motion for review filed pursuant
to RCFC Appendix B, the clerk of the court is directed to enter judgment herewith.2
IT IS SO ORDERED.
Dated: May 22, 2015 s/ Laura D. Millman
Laura D. Millman
Special Master
2
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or
jointly, filing a notice renouncing the right to seek review.
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