Zins v. Secretary of Health and Human Services

Iu the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
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SARAH ZINS, **
* No. 18-2004V
Petitioner, 7 Special Master Christian J. Moran
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v. *
7 Filed: January 17, 2020
SECRETARY OF HEALTH 7
AND HUMAN SERVICES, : Decision dismissing case;
: failure to prosecute,
Respondent. 7
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Sarah Zins, Monsey, NY, pro se;
Traci R. Patton, United States Dep’t of Justice, Washington, D.C., for respondent.
UNPUBLISHED DECISION DENYING COMPENSATION!
Sarah Zins filed a petition under the National Childhood Vaccine Injury Act,
42 U.S.C. §300a-10 through 34 (2012) on December 18, 2018. The petition
alleged that she suffered a premature stillborn delivery of her son as a result of the
influenza (“flu”) vaccination she received on December 12, 2016. The information
in the record, however, does not show entitlement to an award under the Program.
I. Procedural History
A detailed procedural history of this case can be found in the order to show
cause, filed December 18, 2019. In that order, Ms. Zins was instructed to show
cause as to why this case should not be dismissed by January 16, 2020. To date,
Ms. Zins has not responded.
! The E-Government, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services). Pursuant to Vaccine Rule 18(b), the parties have 14 days to
file a motion proposing redaction of medical information or other information described in 42
U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special master will appear in the
document posted on the website.
II. Analysis
When a petitioner (or plaintiff) fails to comply with Court orders to
prosecute her case, the Court may dismiss the case. Sapharas v. Sec’y of Health &
Human Servs., 35 Fed. Cl. 503 (1996); Tsekouras v. Sec’y of Health & Human
Servs., 26 Cl. Ct. 439 (1992), aff'd, 991 F.2d 810 (Fed. Cir. 1993) (table); Vaccine
Rule 21(c); 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).
Additionally, to receive compensation under the National Vaccine Injury
Compensation Program (hereinafter “the Program”), a petitioner must prove either
1) 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 §§ 300aa-13(a)(1)(A) and 300aa-
11(c)(1). An examination of the record did not uncover any evidence that Ms. Zins
suffered a “Table Injury.” Thus, Ms. Zins is necessarily pursuing a causation-in-
fact claim.
Under the Act, a petitioner may not be given a Program award based solely
on the petitioner’s claims alone. Rather, the petition must be supported by either
medical records or by the opinion of a competent physician. § 300aa-13(a)(1).
While Ms. Zins did initially file medical records along with her claim, she has not
responded to orders for additional medical records and has overall failed to
prosecute her case. Accordingly, Ms. Zins failed to demonstrate either that she
suffered a “Table Injury” or that her injuries were “actually caused” by a
vaccination.
Thus, this case is dismissed for failure to prosecute and for insufficient
proof. The Clerk shall enter judgment accordingly. See Vaccine Rule 21(b).
IT IS SO ORDERED.
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Christian J. Moran
Special Master