Giltinan v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 07-618V
Filed: September 3, 2014
Not to be Published
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TIMOTHY MARK GILTINAN *
and KRISTEN ELIZABETH *
KELLER-GILTINAN , parents and *
natural guardians of B.T.G., a minor, *
*
Petitioners, *
* Autism; Failure to Prosecute;
v. * Failure to Follow Court
* Orders; Insufficent Proof of
SECRETARY OF HEALTH * Causation; Dismissal
AND HUMAN SERVICES, *
*
Respondent. *
*
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DECISION1
On August 20, 2007, Petitioners filed a Petition for Vaccine Compensation in the
National Vaccine Injury Compensation Program,2 alleging that B.T.G. was injured by a vaccine
or vaccines listed on the Vaccine Injury Table. See ' 14. I hereby dismiss this petition because
Petitioners have failed to prosecute or prove this case.
For more than seven years, Petitioners have failed to produce an expert report in support
of their claim. On March 12, 2014, Petitioners were ordered to file an expert report in support of
their Petition, by June 26, 2014. On June 27, 2014, Petitioners filed a status report requesting
additional time to confer with their medical expert. I issued an Order on July 1, 2014, allowing
1
Because this unpublished decision contains a reasoned explanation for the action in this case, I intend to
post this decision on the United States Court of Federal Claims' website, in accordance with the E-
Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44
U.S.C. § 3501 note (2006)). In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and
move to delete 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
delete such material from public access.
2
The Program comprises 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. §§ 300aa-10 et seq. (hereinafter “Vaccine Act” or
“the Act”). Hereafter, individual section references will be to 42 U.S.C. § 300aa of the Act.
Petitioners until July 11, 2014, to either file their expert report or show cause why this case
should not be dismissed for failure to prosecute the case. On July 11, 2014, Petitioners filed a
Response to Order to Show Cause, requesting additional time to allow their medical expert to
complete a review of the record of this case. I filed an Order on July 16, 2014, allowing
Petitioners until August 4, 2014, to complete that review and file the report of Petitioners’ expert.
Petitioners did not file an expert report, nor did they file a request for additional time to do so.
On August 7, 2014, I filed another Order to Show Cause, on or before August 21, 2014,
as to why this case should not be dismissed for failure to respond to a court order. Petitioners
were also advised that failure to follow court orders would result in dismissal of Petitioners’
claim. Tsekouras v. Sec’y, HHS, 26 Cl. Ct. 439 (1992), aff’d per curiam, 991 F.2d 810 (Fed. Cir.
1993); Sapharas v. Sec’y, HHS, 35 Fed. Cl. 503 (1996); Vaccine Rule 21(b). Petitioners have
not responded.
Accordingly, this case is dismissed for failure to prosecute and failure to follow court
orders. The clerk shall enter judgment accordingly.
IT IS SO ORDERED.
/s/ George L. Hastings, Jr.
George L. Hastings, Jr.
Special Master
2