Onikama v. Secretary of Health and Human Services

ORIGINAL REISSUED FOR PUBLICATION
MAR 20 2018
OSM
U.S. COURT OF FEDERAL CLAIMS
3Jn tbe Wniteb $>tate.5 Id. If neither party files a motion for redaction within 14 days, the decision
will be posted on the court's website without any changes. id.
submit expert testimony and other pertinent evidence related to her claim, which would be more
easily accomplished through an attorney. Petitioner was provided with a list of attorneys who
accept vaccine injury claims, and I ordered her to either file a status report indicating how she
intended to proceed and successfully prove a case in the Program or to have an attorney file a
motion for substitution of counsel by June 26, 2017. Petitioner did not meet this deadline or
make other contact with the court.
An Order to Show Cause why this case should not be dismissed for failure to prosecute
was issued on July 11, 2017. Petitioner's deadline to respond to that Order was August 9, 2017.
After petitioner did not respond, my law clerk made several attempts to contact petitioner. She
left voicemail messages for petitioner on September 5, 2017; September 14, 2017; and again on
September 27, 2017.
On October 12, 2017, I issued a Final Order to Show Cause to allow petitioner additional
time to contact my chambers. On October 18, 2017, petitioner called my law clerk to request an
informal motion for extension of time to comply with the Order to Show Cause. I granted an
extension until November 22, 2017, for petitioner to file a status report or have an attorney file a
motion for substitution of counsel. Petitioner was again provided with a list of attorneys who
accept vaccine injury claims and instructions for filing documents with the court.
On November 17, 2017, petitioner emailed my law clerk detailing her attempts to obtain
counsel and requesting another informal motion for extension of time to comply with the Order
to Show Cause. I again granted the extension, but noted that I did not anticipate granting further
extensions unless an attorney had entered an appearance in the case and filed a status report
indicating how he or she intended to proceed with this claim. Petitioner's deadline to comply
was extended to January 2, 2018. To date, petitioner has not filed either a motion for substitution
of counsel or a status report.
II. Conclusion
A petitioner must establish entitlement to compensation in the Vaccine Program, through
one of two ways . The first way is to establish that he or she suffered a "Table Injury," i.e., that
he or she received a vaccine listed on the Vaccine Injury Table and subsequently developed a
corresponding injury within a corresponding period of time. § 300aa-11 ( c )( 1). The second way
is to establish that the vaccine actually caused the onset or significant aggravation of a condition
in the vaccinee. § 300aa-13(a)(l )(A). To prove actual causation, petitioner must present: (1) a
medical theory; (2) a logical sequence of cause and effect; and (3) a medically acceptable
temporal relationship between the vaccination and the injury. Althen v. Sec '.Y of Health &
Human Servs~, 418 F.3d 1274, 1278 (Fed. Cir. 2005).
In the present case, petitioner does not allege, nor do the medical records indicate, that
I.O . suffered a Table Injury. Thus, to prevail on entitlement, petitioner must establish that the
vaccines are the actual cause ofl.O. ' s injuries. Under the Vaccine Act, a petitioner may not be
awarded compensation 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. § 300aa-
13(a)(l). In the present case, the submitted medical records alone are insufficient to establish
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entitlement to compensation by showing vaccine causation, and petitioner has not submitted an
expert report providing a medical theory linking I.O. ' s injury to the vaccines administered on
November 20, 2012. Petitioner has not fulfilled her burden under the Vaccine Act and A/then,
and it is therefore appropriate to dismiss her claim for insufficient proof.
Further, when a petitioner fails to follow court orders, the special master can dismiss the
petitioner's claim. Tsekouras v. Sec 'y of Health & Human Servs., 26 Cl. Ct. 439 (1992), aff'd
per curiam , 991 F.2d 810 (Fed. Cir. 1993); Saphasas v. Sec 'y of Health & Human Servs., 35 Fed.
Cl. 503 (1996); Vaccine Rule 2l(b). Petitioner was granted multiple extensions of time but she
still has not complied with the Order to Show Cause, and she has to date not contacted my
chambers regarding her most recent missed filing deadline. This repeated failure to meet
deadlines or otherwise inform the court constitutes a failure to prosecute, which is separate
grounds for dismissal of petitioner' s claim.
Pursuant to Rule 41(b) of the Rules of the United States Court of Federal Claims,
this claim is DISMISSED for petitioner's failure to prosecute and failure to respond to
court orders. The Clerk of the Court shall enter judgment accordingly.
IT IS SO ORDERED.
Special Master
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