Hall v. Secretary of Health and Human Services

ORIGINAL
3tit tfje ©mteb States Court of jfeberal Claim*
OFFICE OF SPECIAL MASTERS
No. 14-734V
Filed: July 23, 2015
Not for Publication
FILED
JUL 2 3 2015
MELISSA HALL, * U.S. COURT OF
*
FEDERAL CLAIMS
Petitioner, *
*
Dismissal decision; failure to prosecute
v. *
SECRETARY OF HEALTH
AND HUMAN SERVICES,
Respondent.
*************************************
Melissa Hall, Wood River, NE, petitioner (pro se).
Ann P. Martin, Washington, DC, for respondent.
MILLMAN, Special Master
DECISION1
OnAugust 13, 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
(2012), alleging that the hepatitis B vaccine she received onAugust 16, 2011, caused her to suffer
autoimmune encephalitis. Petitioner did not file any medical records or proof of vaccination with
her petition.
1 Because this unpublished decision contains a reasoned explanation for the special master's action in this
case, the special master intends to post this unpublished decision on the United States Court of Federal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 orsimilar 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.
1
On August 21, 2014, the undersigned issued an Order granting petitioner's motion to
proceed in forma pauperis. Attached to that Order was a 36-page list of attorneys who practice in
the Vaccine Program, in case petitioner wanted to be represented by counsel.
After the undersigned's staff contacted petitioner by telephone to set up a first status
conference, the undersigned issued an Order dated September 9, 2014, setting Wednesday,
October 8, 2014, at 2:00 p.m. (EDT) for the first telephonic status conference. Attached to that
Order was another copy of the list of attorneys admitted to practice in the Vaccine Program.
On October 8, 2014, at 2:00 p.m. (EDT), the undersigned's staff telephoned petitioner a
number of times regarding the scheduled telephonic status conference. The undersigned's staff
left two telephone messages on petitioner's answering machine. Petitioner did not telephone the
undersigned's staff.
On October 9, 2014, the undersigned issued an Order stating that petitioner had until
October 17, 2014, to contact the undersigned's law clerk by telephone or e-mail. If petitioner
failed to do so, the undersigned would issue an Orderto Show Cause why this case should not be
dismissed for failure to prosecute.
Petitioner did not contact the undersigned's law clerk. The undersigned issued an Order
to Show Cause why the case should not be dismissed on October 20, 2014. The Order directed
petitioner to contact the undersigned's law clerk by October 31, 2014, or the case would be
dismissed for failure to prosecute. This Order was mailed to petitioner's last known address.
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, '[fjor failure of the plaintiffto prosecute or to comply with these rules or
any order of court. . ..'" Tsekouras v. Sec'v of HHS, 26 CI. 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 attempts to contact herand to the undersigned's October
20, 2014 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 ofa 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):
Apersuasive medical theory isdemonstrated by "proof ofa logical sequence of
cause and effect showing thatthe vaccination was the reason for the injury[,]" the
logical sequence being supported by "reputable medical or scientific
explanation^]" i.e., "evidence inthe form ofscientific studies orexpert medical
testimony[.]"
418F.3datl278.
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 sufficientto prove causation in fact. Id. at 1148.
Petitioner did not file proof of vaccination, any medical records, or an expert medical
opinion in support ofher allegations. The Vaccine Act does not permit the undersigned to rule in
favor ofpetitioner 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
Petitioners' petition isDISMISSED. In the absence ofa 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: July 23. 2015 (mjxhjx-
Laura D. Millman
Special Master
2 Pursuant to Vaccine Rule 11(a), entry ofjudgment can be expedited by each party, either separately or
jointly, filing a notice renouncing the right to seek review.