Schoenberger v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-356V
UNPUBLISHED
DONNA SCHOENBERGER, Chief Special Master Corcoran
Petitioner, Filed: September 2, 2022
v.
Show cause; failure to prosecute;
SECRETARY OF HEALTH AND influenza (flu) vaccine; Shoulder
HUMAN SERVICES, Injury Related to Vaccine
Administration (SIRVA)
Respondent.
Leah V. Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner.
Heather L. Pearlman, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION1
On January 8, 2021, Donna Schoenberger 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 an influenza (“flu”) vaccination she
received on September 30, 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 flu
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 January 29, 2021, the PAR Initial Order issued requiring Petitioner to file
these outstanding documents. ECF No. 5.
On March 2, 2022, Petitioner filed some medical records and a Statement of
Completion. ECF Nos. 14, 15. On the following day, Petitioner filed a Motion for Ruling
on the Record indicating that indicated that “[n]o additional records are available or will
1Although 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).
be filed in this case. [Petitioner’s] Counsel has reviewed the records and now believes
the case is ready for disposition.” ECF No. 16. Petitioner reiterated that “no additional
evidence will be presented by petitioner” and “requests that the Chief Special Master
issue a Decision based on the current record.” Id.
A status conference was held on March 14, 2022, to discuss this motion. During
the status conference, Petitioner’s counsel confirmed that no additional information
would be submitted in this case, including the statutorily required affidavit. I ultimately
deferred ruling on Petitioner’s Motion to allow the standard case review process to
proceed. ECF No. 19.
On May 31, 2022, I issued an Order to Show Cause noting that Petitioner was
missing medical records supporting the severity requirement, that his shoulder injury
persisted for more than six months, in additional to an affidavit. ECF No. 20. The Order
warned that the case would be dismissed for failure to prosecute if Petitioner did not file
the outstanding documents or otherwise respond to the order.
On July 29, 2022, Petitioner’s counsel filed a response to the Order to Show
indicating that she had sent the Order to Show Cause to Petitioner by certified mail, by
other means, and followed up without success. ECF No. 22. Despite many months of
effort, counsel indicated that she has been unable to contact Petitioner and, thus, could
not obtain the outstanding documents identified in the Order to Show Cause. Counsel
requested that a decision be issued resolving this case.
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 May 31, 2022 Order to Show Cause that
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
2
with her counsel since August 26, 2021. Because Petitioner has continued to disregard
my orders, without justification or explanation, dismissal is now appropriate.
As an alternative basis for dismissal, among other requirements for
compensation in the Vaccine Program, Petitioner must establish the severity
requirement, that her injury persisted for more than six months or resulted in inpatient
hospitalization and surgical intervention. § 300aa—11(c)(1)(D)(i). The Order to Show
Cause detailed the lack of evidence to establish the severity requirement. Since that
order, Petitioner has not filed any additional medical records to support the severity
requirement. Thus, 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
3If 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