Evans v. Secretary of Health and Human Services ( 2022 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-557V
UNPUBLISHED
KIMBERLY EVANS,
Chief Special Master Corcoran
Petitioner,
v. Filed: July 8, 2022
SECRETARY OF HEALTH AND Show cause; failure to prosecute;
HUMAN SERVICES, tetanus diphtheria (Td) vaccine;
Shoulder Injury Related to Vaccine
Respondent. Administration (SIRVA)
Ronald C. Homer, Conway, Homer, P.C., Boston, MA, for Petitioner.
Heather L. Pearlman, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION1
On January 11, 2021, Kimberly Evans filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa—10 through 342
(the “Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to
vaccine administration (“SIRVA”) from a tetanus diphtheria (“Td”) vaccination she
received on May 17, 2020. ECF No. 1. Due to Petitioner’s failure to prosecute her claim,
this case is DISMISSED.
Relevant Procedural History
In the petition, Petitioner alleged that she suffered a shoulder injury from a Td
vaccination but did not provide any medical history for treatment of the injury. ECF No.
1. Petitioner did not submit any statutorily required supporting documentation with the
petition.
On February 4, 2021, the PAR Initial Order issued requiring Petitioner to file
these outstanding documents. ECF No. 5. Petitioner requested and received numerous
motions for extension of time but did not file any supporting documents.
1
Although I have not formally designated this Decision for publication, I am required to post it on the United
States Court of Federal Claims' website because it contains a reasoned explanation for the action in this
case, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal
Management and Promotion of Electronic Government Services). This means the Decision will be
available to anyone with access to the internet. 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, I agree that the identified material fits within this
definition, I will redact such material from public access.
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).
On December 14, 2021, Petitioner’s counsel filed a status report detailing
various attempts to contact Ms. Evans since the filing of the petition. ECF No. 12.
Counsel indicated that she has not received any replies from Ms. Evans. Counsel
requested that the Court issue an order to show cause for counsel to present to Ms.
Evans.
On March 28, 2022, I issued an Order to Show Cause warning that the case
would be dismissed for failure to prosecute if Petitioner did not file the outstanding
medical records or otherwise respond to the order. ECF No. 13.
On May 27, 2022, Petitioner’s counsel filed a response to the Order to Show
Cause indicating that she had sent the Order to Petitioner via a courier service and that
delivery had been confirmed on May 9, 2022. ECF No. 14. To date, counsel still has not
been able to communicate with Petitioner or otherwise obtain the medical records
required by the PAR Initial Order.
Grounds for Dismissal
It is a petitioner’s obligation to follow and respond to orders issued by a special
master in a case. The failure to do so – whether on account of attorney error, inaction,
or because a petitioner has failed to stay in contact and/or communicate with counsel -
is grounds for the claim’s dismissal. Padmanabhan v. Sec’y of Health & Human Servs.,
638 Fed. App’x 1013 (Fed. Cir. 2016); Tsekouras v. Sec’y of Health & Human Servs.,
26 Cl. Ct. 439 (1992), aff’d, 991 F.2d 810 (Fed. Cir. 1993) (per curiam), (“[c]ontrolling
precedent considers dismissal appropriate when failure to act is deemed willful, when it
is in violation of court orders, when it is repeated, and when clear warning is given that
the sanction will be imposed”); Sapharas v. Sec’y of Health & Human Servs., 35 Fed.
Cl. 503 (1996) (“[n]ot only did petitioner fail to meet the court's . . . . deadline, but he
also ignored the chief special master's ‘warning’ order, clearly placing petitioner on
notice that failure to respond to the court's order . . . , would result in dismissal of the
claim. The chief special master clearly did not abuse his discretion in dismissing this
case for failure to prosecute”); see also Vaccine Rule 21(b) (“[t]he special master or the
court may dismiss a petition or any claim therein for failure of the petitioner to prosecute
or comply with these rules or any order of the special master or the court.”).
Petitioner was specifically advised in my March 28, 2022 Order to Show Cause
that her failure to follow orders issued in this matter (and failure to communicate with
her counsel which prevents compliance with those order) risked dismissal of the claim.
As noted in the response to the Order to Show Cause, Petitioner has been out-of-touch
with her counsel since the filing of the petition in January 2021. Because Petitioner has
continued to disregard my orders, without justification or explanation, dismissal is now
appropriate.
As an alternative basis for dismissal, Petitioner has not filed any statutorily
required documentation, including medical records or affidavits, to establish the claims
in her petition. § 300aa—11(c). Without any evidence to support the elements of her
2
vaccine claim, Petitioner has failed to establish entitlement to compensation in the
Vaccine Program.
Accordingly, this case is DISMISSED for failure to prosecute. The clerk
shall enter judgment accordingly.3
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3
If Petitioner wishes to bring a civil action, she must file a notice of election rejecting the judgment
pursuant to § 21(a) “not later than 90 days after the date of the court’s final judgment.”
3