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

REISSUED FOR PUBLICATION
JUNE 8, 2018
.R·Gi~'A OSM
U.S. COURT OF FEDERAL CLAIMS
3Jn tbe Wniteb ~tates 2 Pet. 1, ECF No. 1.
Petitioner alleged that the Diphtheria-Tetanus-acellular-Pertussis ("DTaP") vaccine she received
on August 6, 20 14 caused her to suffer from anaphylaxis. Id. at 2-6. The information in the record,
however, does not show entitlement to an award under the Program.
I. PROCEDURAL HISTORY
Petitioner submitted her petition on October 2, 2017 along with medical records and a
newspaper article detailing how her grand-daughter aided Petitioner during her anaphylaxis. ECF
No. 1. On October 25, 2017, the undersigned held an initial status conference to discuss
Petitioner's case with both parties. ECF No. 7. During the status conference, the undersigned
explained that Petitioner filed her claim outside of the three-year statute of limitations, and set a
1
This decision shall be posted on the website of the United States Court of Federal Claims, in
accordance with the E-Government Act of2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913
(codified as amended at 44 U.S. C. § 3501 note (20 12)). As provided by Vaccine Rule 18(b), each
party has 14 days within which to request redaction "of any information furnished by that paity:
( 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).
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).
deadline for Respondent to submit a Motion to Dismiss. Id. On November 6, 2017, Respondent
submitted his Motion to Dismiss, requesting the undersigned to dismiss Petitioner's claim due to
an untimely filing. ECF No. 9.
On December 6, 2017, the undersigned granted Petitioner an additional sixty days to
acquire counsel in order to respond to Respondent's Motion. ECF No. 10. Petitioner's deadline
for an attorney to file a motion to substitute counsel was February 5, 2018. Id. This deadline
passed without any filing or communication from Petitioner. On February 7, 2018, Chambers
emailed Petitioner to inquire whether she is still seeking counsel. Informal Comm., dated Feb. 7,
2018. Petitioner did not respond to this email. On February 12, 2018, Chambers telephoned and
left a voicemail requesting Petitioner to contact Chambers. Informal Comm., dated Feb. 12, 2018.
Petitioner failed to contact Chambers following this voicemail.
On February 15, 2018, the undersigned issued an Order to Show Cause why Petitioner's
claim should not be dismissed. ECF No. 11. The undersigned emphasized Petitioner's failure to
respond to Chambers' multiple attempts to reach Petitioner and ordered her to submit either a
Motion to Substitute Counsel or a response to the Motion to Dismiss by April 16, 2018. Id. at 2.
The undersigned cautioned that a failure to submit either document "will be interpreted as a failure
to prosecute this claim, and the petition shall be dismissed." Id. To date, the undersigned has
received no filings or communications from Petitioner since the October 25, 2017 status
conference.
I. ANALYSIS
When a petitioner fails to comply with Court orders to prosecute her case, the Court may
dismiss her claim. Sapharas v. Sec 'yo/Health & HumanServs., 35 Fed. Cl. 503 (1996); Tsekouras
v. Sec'y of Health & Human Servs., 26 Cl. Ct. 439 (1992), ajj"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 respond to Chambers' communications 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.
To receive compensation under the Act, Petitioner must prove either (I) that she suffered
a "Table Injury"-i.e., an injury falling within the Vaccine Injury Table--corresponding to one of
his vaccinations, or (2) that she suffered an injury that was actually caused by a vaccine. See §§
13(a)(l)(A), l l(c)(l). Although Petitioner's medical records indicate that she may have suffered
a Table Injury, 3 Petitioner submitted her claim outside of the statute of limitations prescribed by
3
The Vaccine Table presumes causation when anaphylaxis manifests within less than four hours
after a petitioner receives a DTaP vaccine. 42 C.F.R. § 100.3(a). Petitioner's medical records
show that she was hospitalized for "anaphylactic reaction to Diphtheria/Tetanus vaccination" at
5:10 PM after receiving the DTaP vaccine at 3:00 PM on the same day. ECF No. 1. at 13, 19 (all-
2
the Vaccine Act. § 16(a)(2); see ECF No. 7 (explaining that the statute of limitations ended on
August 6, 2017 for Petitioner's claim, but she filed her petition on October 2, 2017). An
examination of the record does not provide any exception for Petitioner' untimely claim.
Furthermore, the undersigned finds that Petitioner's filings, without any additional evidence or
submissions, do not contain preponderant evidence demonstrating that she is entitled to
compensation.
Thus, this case is dismissed for failure to prosecute. The Clerk shall enter judgment
accordingly.
IT IS SO ORDERED.
Special Master
caps omitted). However, this fact is moot because Petitioner's claim is barred under the statute of
limitations. § 16(a)(2).
3