RIGIN 

3Jn tbe mlniteb ~tate~ QCourt of jf eberal QCiaim~ OFFICE OF SPECIAL MASTERS 

Filed: April 26, 2018 

* * * * * * * * * * * * * * * * * * * * * * * * * 

CHRISTY LYNN DAY, as mother and 

representative of the Estate of R.E., 

Petitioner, 

V. 

* 

* 

No. 17-702V 

Special Master Sanders 

FILED 

APR 2 6 2018 

U.S. COURT OF 

FEDERAL CLAIMS 

SECRETARY OF HEALTH 

AND HUMAN SERVICES, 

* 

* 

* 

* 

* 

* 

* 

* 

* 

Dismissal; Order to Show Cause; 

Failure to Prosecute; Insufficient Proof. 

Respondent. 

* * * * * * * * * * * * * * * * * * * * * * * * * 

Christy Lynn Day, prose, Zachary, LA. 

Ryan D. Pyles, United States Department of Justice, Washington, DC, for Respondent. 

DECISION1 

On May 26, 2016, Christy Lynn Day ("Petitioner") filed a petition for compensation as 

mother and representative of R.E. in the ational Vaccine Injury Compensation Program ["the 

Program"]. 2 Pet. 1, ECF No. l. Petitioner alleged that the Hepatitis B ("Hep B"), Rotavirus, 

Diphtheria-Tetanus-acellular-Pertussis ("DTaP"), Pneumococcal, and Polio vaccines R.E. 

received on May 20, 2015 caused his death. Id. at 2-6. The information in the record, however, 

does not show entitlement to an award under the Program. 

1 This decision shall be posted on the website of the United States Court of Federal Claims, 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 (2012)). As provided by Vaccine Rule 

l 8(b ), each party has 14 days within which to request redaction "of any information furnished by 

that party: (1) that is a trade secret or commercial or financial in substance and is privileged or 

confidential; or (2) that includes medical files or similar files, the disclosure of which would 

constitute a clearly unwarranted invasion of privacy." Vaccine Rule l 8(b ). 

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). 

fel!f.r .. 9/0Y J'-138 h3/Y 

REISSUED FOR PUBLICATION

June 8, 2018

OSM

U.S. COURT OF FEDERAL CLAIMS
I. PROCEDURAL HISTORY 

Petitioner submitted her petition on May 26, 2017 along with R.E.'s birth certificate, 

vaccination record, and death certificate. Pet'r's Exs. 1-3, ECF Nos. 1-2, 1-3, 1-4. This case 

was originally assigned to Special Master Brian Corcoran. ECF No. 4. Special Master Corcoran 

issued an Initial Order on May 31 , 2017 directing the parties to submit a joint statement of 

completion on August 24, 2017. ECF No . 5. On July 19, 2017, the case was transferred to the 

undersigned. ECF No. 9. 

The undersigned held an initial status conference on July 24, 2017. ECF No. 13. During 

the status conference, the undersigned encouraged Petitioner to obtain counsel. Id. Petitioner 

stated that an attorney was reviewing her case and explained that she filed pro se in order to meet 

the statute of limitations. Id. The undersigned ordered Petitioner to submit a Motion to 

Substitute Counsel or request a status conference by August 23, 2017. Id. 

Petitioner's deadline passed without any communication from Petitioner. See Docket 

Rep. On August 28, 201 7, Chambers emailed Petitioner to determine whether Petitioner was 

still seeking counsel. See Informal Comm., dated Aug. 28, 2017. Petitioner answered that the 

attorney was still reviewing her case and requested a status conference. Id. The undersigned 

scheduled a status conference for September 11 , 2017. ECF No. 14. During the status 

conference, Petitioner indicated that the attorney reviewing her case was awaiting "one more 

document" before he or she could determine whether to represent Petitioner. ECF No. 15. 

Petitioner further stated that this attorney had not given Petitioner a timeline for receiving the 

document. Id. The undersigned granted Petitioner an extension to obtain counsel and ordered 

her to submit a Motion to Substitute Counsel by October 11 , 2017. Id. 

On October 1, 2017, Petitioner emailed Chambers seeking clarification regarding the 

previous order. See Informal Comm., dated Oct. 5, 2017. Petitioner asked whether the 

undersigned gave Petitioner more time to obtain an attorney or to gather documentation. Id. The 

undersigned scheduled a status conference for October 19, 2017 to discuss Petitioner's questions. 

ECF No. 16. On that date, the undersigned asked Petitioner about her attempts to procure 

counsel. ECF No. 17. Petitioner answered that the attorney was still awaiting one more 

document, but admitted that she had not communicated with the attorney in two weeks. Id. The 

undersigned ordered Petitioner to have her attorney submit a Motion to Substitute Counsel by 

November 20, 2017. Id. 

On November 22, 2017, Petitioner emailed Chambers, writing that the attorney wanted to 

take her case. See Informal Comm., dated Nov. 27, 2017. Petitioner wrote that the attorney was 

new to the Vaccine Program and asked whether the Court could pay experts directly. Id. 

Chambers answered that the Court does not preemptively pay experts and emailed Petitioner a 

copy of the Vaccine Rules regarding legal representation. Id. Because Petitioner wrote that the 

attorney would take her case, the undersigned ordered Petitioner to have her attorney file a 

Motion to Substitute Counsel by December 28, 201 7. ECF No. 18. Petitioner failed to meet this 

deadline. 

2 
On January 11 , 2018, Chambers tel ephoned and emailed Petitioner regarding her lapsed 

deadline. See Informal Comm., dated Jan. 11, 2018. Petitioner responded via email by 

reiterating that her attorney is new to the Program and repeating her question whether the Court 

could compensate prospective experts directly. Id. The undersigned scheduled a status 

conference for January 30, 2018 to discuss these questions. ECF No. 19. 

On January 30, 2018, Chambers could not contact Petitioner, despite repeated attempts 

by telephone and email. ECF No. 21. By this date, Petitioner had been given multiple 

extensions of time to obtain an attorney. Furthermore, she represented on several occasions that 

there was an attorney preparing to take her case, but had not filed a Motion to Substitute 

Counsel. The undersigned therefore recognized Petitioner's pro se status and ordered her to file 

an expert report by March 1, 2018. Id. The undersigned also canceled the status conference 

scheduled for January 30, 2018. Id. The undersigned included that a failure to meet this 

deadline would result in an Order to Show Cause. Id. 

Petitioner failed to submit any filing by her March 1, 2018 deadline. See Docket Rep. 

On March 9, 2018, Chambers emailed Petitioner regarding her deadline. See Informal Comm., 

dated Mar. 9, 3028. On March 12, 2018 Chambers telephoned Petitioner, but was unable to 

speak to Petitioner or leave a voicemail. See Informal Comm., dated Mar. 12, 2018. 

On March 13 , 2018, the undersigned issued an Order to Show Cause why Petitioner's 

case should not be dismissed for failure to prosecute. ECF No. 22. The undersigned ordered 

Petitioner to submit an expert report by April 12, 2018 and stated that failure to abide by this 

deadline would result in dismissal. Id. To date, the undersigned has not received any further 

filings or communications from Petitioner. 

II. ANALYSIS 

When a petitioner fails to comply with Court orders to prosecute her case, the Court may 

dismiss her claim. 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), ajf'd, 991 F .2d 819 (Fed. 

Cir. 1993) (table); Vaccine Rule 2l(b); 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). Petitioner's failure to meet the deadline for her expert report and comply with the 

undersigned 's Order to Show Cause indicate a disinterest in pursuing her claim. 

The undersigned will therefore dismiss this case for failure to prosecute. 

Additionally, to receive compensation under the Act, Petitioner must prove either (1) that 

R.E. suffered a "Table Injury"- i.e., an injury falling within the Vaccine Injury Tablecorresponding to one of his vaccinations, or (2) that R.E. suffered an injury that was actually 

caused by a vaccine. See§§ 13(a)(l)(A), 1 l(c)(l). An examination of the record did not provide 

any evidence that R.E. suffered a "Table Injury." Furthermore, the undersigned finds that 

Petitioner's filings, without an expert report or any additional evidence, do not contain 

preponderant evidence demonstrating that R.E. 's death was caused by a vaccine. 

3 
Thus, this case is dismissed for failure to prosecute. The Clerk shall enter judgment 

accordingly. 

IT IS SO ORDERED. 

Special Master 

4