Schwartfigure v. Secretary of Health and Human Services ( 2014 )

In the United States Court of Federal Clairns
OFFICE OF SPECIAL MASTERS
No. 14-161V
(N0t to be published)
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DANISE SCHWARTFIGURE, mother of *
E.D.S., a minor, * Filed: August l1, 2014
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Petitioner, *
v. * Failure to Prosecute; Failure to
* Follow Court Orders; Dismissal for
SECRETARY OF HEALTH * lnsufficient Proof of Causation;
AND HUMAN SERVICES, * Denial Without Hearing
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Respondent. *
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Danise Schwartj€gure, Pro Se Petitioner.
Lina’say Corlz's, U.S. Department of Justice, Washington, DC, for Respondent.
DECISIoN‘
On February 28, 2014, Petitioner Danise Schwartifgure filed an action on behalf of
E.D.S., a minor seeking compensation under the National Vaccine Injury Compensation Program
(the "Vaccine Program")z. Petitioner alleges that E.D.S. suffered neurological and physiological
symptoms as a result of receiving Measles, Mumps, and Rubella, Hepatitis A, and Varicella
vaccine series he received on May 15, 2009.
l Because this decision contains a reasoned explanation for my action in this case, it will be posted on the United
States Court of Federal Claims’ website, in accordance with the E-Govemment Act of 2002, Pub. L. No. 107-347, §
205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). As provided by 42 U.S.C §
300aa-l2(d)(4)(B), however, the parties may object to the decision’s inclusion of certain kinds of confidential
information. To do so, Vaccine Rule lS(b) permit each party 14 days within which to request redaction "of any
information furnished by that party: (l) 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 l8(b). Otherwise, the decision will be available to the
publio. Id.
2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine
Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C.A. § 300aa-10-§ 300aa-34
(West 1991 & Supp. 2002). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A.
§ 300aa
Petitioner did not submit a filing fee or in forma pauperis application with her petition.
The Clerk’s Office accordingly telephoned Ms. Schwartifgure and informed her either to submit
the fee or application to proceed in_forma pauperis and on March 24, 2014, 1 issued an Order to
that end. P filed in forma pauperis application on March 24, 2014, but because the motion lacked
certain information 1 required in order to rule upon it, on May 1, 2014, 1 issued an Order
directing Petitioner to file such supplemental information by June 2, 2014. After Ms.
Schwartfigure failed to do so, on June 16, 2014, 1 issued an Order requiring her to file this
information or pay the filing fee immediately. On July 7, 2014, 1 issued an Order to Show Cause
because Petitioner had still not complied with my May l, 2014 Order. Petitioner has filed
nothing since then.
When a Vaccine Court petitioner (or plaintiff in other settings) fails to comply with
orders to prosecute her case, a court may dismiss the matter. Sapharas v. Sec'y of Health &
Humar) Servs., 35 Fed. Cl. 503 (1996); Tsekouras v. Sec’y o_/’Health & Humari Servs., 26 Cl. Ct.
439 (1992), a_f@, 991 F.2d 819 (Fed. Cir. 1993) (table); Vaccine Rule 2l(c); see also Claude E.
Alkins Eriters., 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); Adkz`ns v.
United Slales, 816 F.2d 1580, 1583 (Fed. Cir. l987) (affirming dismissal of case for failure of
party to respond to discovery requests). Here, it is abundantly evident from the procedural
history that Ms. Schwartfigure has repeatedly failed to adhere to the orders in this matter, thus
establishing grounds for dismissal.
Additionally, my review of the record reveals insufficient evidence upon which an
entitlement award could be based. To receive compensation under the Program, Petitioner must
prove either 1) that E.D.S. suffered a "Table Injury" - i.e., an injury falling within the Vaccine
Injury T able - corresponding to one of her vaccinations, or 2) that he suffered an injury that was
actually caused by a vaccine. See §§13(a)(l)(A) and ll(c)(l). An examination of the record,
however, did not uncover any evidence that E.D.S. suffered a "Table Injury." Further, the record
does not contain a medical expert’s opinion or any other persuasive evidence indicating that
E.D.S.’s alleged injuries were vaccine-caused.
1 am very sympathetic to E.D.S.’s plight. But it is still Petitioner’s duty to respond to
court orders. Petitioner in this matter has been under order to file an in forma pauperis or
application fee since February 28, 2014. As 1 reminded Petitioner in my July 7"‘ Order to Show
Cause, failure to follow the court’s orders would result in the dismissal of her claim.
Additionally, under the Act, a petitioner may not receive a Program award based solely on the
petitioner’s claims. Rather, the petition must be supported by either medical records or by the
opinion of a competent physician. §l3(a)(1). 1n this case, there is insufficient evidence in the
record for Petitioner to meet her burden of proof, making it impossible to succeed on her claim.
§1 l(€)(l )(A)-
Thus, this case is dismissed for failure to prosecute and insufficient proof. The
Clerk shall enter judgment accordingly.
IT IS SO ORDERED.
Brian H. Cor