In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 19-0096V

(Not to be Published)

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

MATTHEW GOLITKO and RAYGAN *

GOLITKO, Parents and Natural Guardians *

of GMG on behalf of GMG, *

* Special Master Oler

Petitioner, * Filed: October 31, 2019

v. *

*

SECRETARY OF HEALTH * Dismissal of Petition; Failure to Prosecute;

AND HUMAN SERVICES, * Insufficient Proof; Vaccine Act; Denial

* Without Hearing.

Respondent. * 

 *

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

Robert Thomas Dassow, Hovde Dassow & Deets, LLC, Indianapolis, IN, for Petitioner.

Voris Edward Johnson, U.S. Dep’t of Justice, Washington, D.C. for Respondent.

DECISION DISMISSING CASE FOR INSUFFICIENT PROOF AND FAILURE TO 

PROSECUTE1

On January 18, 2019, Matthew Golitko and Raygan Golitko (“Petitioners”) filed a petition

for compensation under the National Vaccine Injury Compensation Program.

2 Petition, ECF No. 

 

1 Although this Decision has been formally designated “not to be published,” it will nevertheless be posted 

on the Court of Federal Claims’s website in accordance with the E-Government Act of 2002, 44 U.S.C. § 

3501 (2012). This means the ruling will be available to anyone with access to the internet. As provided 

by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the decision’s inclusion of certain 

kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen 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 18(b). Otherwise, the Decision in its present form will be available. Id.

2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. 

No. 99-660, 100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine 

Act” or “the Act”). Individual section references hereafter will be to § 300aa of the Act (but will omit that 

statutory prefix).
2

1. Petitioners allege that their son, G.M.G., developed several injuries, including difficulty 

walking, pain in his extremities, acute rash, and arthralgias, as a result of an influenza (“flu”) 

vaccination received on January 19, 2016. Id. at 1. 

I. Procedural History

On January 28, 2019, Petitioners filed several medical records, an affidavit by G.M.G.’s 

mother, Raygan Golitko (“Ms. Golitko”), and photographs of G.M.G.’s alleged injuries. Ex. 1-6. 

In lieu of his status report, Respondent filed a Motion for Order to Show Cause (“Resp’t’s 

Mot.”) on April 23, 2019. ECF No. 10. In that motion, Respondent argued that Petitioners had not 

established that G.M.G. received his vaccination on January 19, 2016. Id. at 1. Additionally, 

Respondent stated that Petitioners had not established six months sequelae of G.M.G.’s injuries, 

as required by 42 U.S.C §300aa-11(c)(1)(D). Id at 3. Respondent referred to medical visits from 

February 1, 2016 onwards that noted G.M.G.’s reaction as resolved. Id.

On May 7, 2019, Petitioners filed their response to Resp’t’s Mot (“Pet’r’s’ Resp.”), along 

with an additional affidavit from Ms. Golitko and medical records. ECF No. 11. In that response, 

Petitioners addressed Respondent’s concerns regarding both the proof of vaccination and the sixmonth severity requirement. Id. Petitioners argued that the most recent medical records filed 

clearly indicate January 19, 2016 as date of vaccination. Id. at 1. Second, Petitioners stated that 

G.M.G.’s allergic symptoms “clearly continued over the next five (5) months,” as evidenced by 

Ms. Golitko’s affidavit. Id. at 2. 

On May 14, 2019, Respondent filed his reply (“Resp’t’s Rep.”). ECF No. 12. Respondent 

stated that he was satisfied that Petitioners had provided proof of vaccination. Id. However, 

Petitioners still had not met the six-month severity requirement, because no corroborating medical 

records had been filed. Id. 

I held a status conference on May 31, 2019. Order deferring ruling on Motion for Order to 

Show Cause (“Order”), ECF No. 13 at 1; see also Minute Entry for 6/6/2019. I informed the 

parties that I agreed with Respondent’s most recent assessment that the Vaccine Act’s statutory 

six-month severity requirement was not met. Id. Petitioner’s counsel requested additional time to 

seek more evidence in support of the fact that G.M.G. experienced symptoms for more than six 

months. Id. I granted Petitioners additional time and also informed counsel that absent additional 

objective evidence, Petitioners would not meet the six-month severity requirement, and counsel 

should discuss dismissal of the petition with his clients. Id. I directed Petitioners to file their 

additional evidence, or a motion for a decision dismissing their petition by July 15, 2019. Id. at 2. 

Petitioners did not file any documents or evidence by their deadline. 
3

On July 25, 2019, I directed Petitioners to file their outstanding evidence or a status report 

immediately. See Non-PDF Order of 7/25/2019. To date, Petitioners have not filed any additional 

evidence or the status report that I ordered. 

Following Petitioners’ missed deadline, on August 15, 2019, I issued an Order to Show 

Cause as to why this case should not be dismissed for failure to prosecute and insufficient proof. 

ECF No. 14. Petitioners were directed to file a brief or a motion for a decision dismissing their 

petition by October 15, 2019. Id. at 3. To date, Petitioners have not filed a response to the Order 

to Show Cause.

On October 29, 2019, Respondent filed a Motion to Dismiss, stating that Petitioners’ claims 

should be dismissed for a failure to prosecute. ECF No. 16. 

II. Assessment of Case

A. Insufficient Proof

G.M.G.’s medical records do not indicate a continuation of symptoms past March 8, 2016. 

On January 19, 2019, G.M.G. received his vaccination. ECF No. 11-1 at 3. On January 28, 2016, 

G.M.G. presented with rash and joint pain to IUH North Hospital (“IUH”). G.M.G.’s condition 

improved, and he was discharged on January 30, 2016. G.M.G. subsequently presented again to 

IUH on February 1, 2016 for worsening symptoms. After receiving treatment, he was discharged 

the same day. Specifically, it was noted that “[h]e has had complete resolution of his arthralgia 

and joint rash. He still has some uticaria on his legs and chest.” Ex. 3 at 89. Finally, during a visit 

to Hazel Dell Pediatrics on March 8, 2016, G.M.G.’s treater noted that his “recent Arthus Type III 

Hypersensitivity R[eaction]” was “now resolved.” Ex. 4 at 11. 

Petitioners submitted affidavits authored by Ms. Golitko in support of the six-month 

severity requirement. In her second affidavit, Ms. Golitko stated that G.M.G. continued to suffer 

from “issues with grip strength and general soreness in his hand for several months,” and that 

“weakness persisted... for almost a year.” ECF No. 11-2 at 3. These statements, however, directly 

contradict the evidence in the medical records. There is no indication in the records of ongoing 

sequelae of G.M.G.’s condition past March 8, 2016. 

As I have previously articulated to Petitioners, I view contemporaneously-created medical 

records to be highly persuasive, especially when the records are clear and consistent. Petitioners’ 

claims alone, without to some additional objective evidence, are not sufficient to overcome the 

facts as recorded in the medical records. As such, Petitioners were directed in the Order to Show 

Cause to provide reasoning as to why this case should not be dismissed for insufficient proof. As 

discussed, no response was filed. 
4

B. Failure to Prosecute

Since Petitioners had not submitted sufficient evidence to establish that G.M.G.’s injuries 

met the six-month severity requirement, on May 31, 2019, I directed Petitioners to file additional 

evidence supporting this issue or a motion for a decision dismissing this petition if no objective 

evidence could be found. Order at 2. Petitioners did not file any documents or evidence by their 

deadline. 

Again, on July 25, 2019, I ordered Petitioners to file their overdue evidence or a status 

report. Petitioners did not comply with this order. 

On August 15, 2019, I issued an Order to Show Cause and detailed for Petitioners my 

assessment of the case. ECF No. 14. I cautioned them regarding missed deadlines and clarified 

that a failure to respond to my order will be interpreted as a failure to prosecute their claim, and 

the petition would be dismissed. Id. at 4. Petitioners did not file a response to my Order to Show 

Cause. 

III. Conclusion 

It is Petitioners’ obligation to follow court orders. Failure to follow court orders, as well 

as failure to file motions or other required documents, can result in dismissal of a petitioner’s 

claim. Tsekouras v. Sec’y of HHS, 26 Cl. Ct. 439 (1992), 991 F.2d 810 (Fed. Cir. 1993) aff’d per 

curiam without opin.; Sapharas v. Sec’y of HHS, 35 Fed. Cl. 503 (1996); Vaccine Rule 21(b). 

Specifically, Vaccine Rule 21(b)(1) provides that a “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.” Since May 31, 2019, Petitioners have failed to 

comply with my numerous orders to produce the necessary records or a brief detailing their 

position. 

Further, to receive compensation under the Vaccine Program, a petitioner must prove either 

(1) that he suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table –

corresponding to one of his vaccinations, or (2) that he suffered an injury that was actually caused 

by a vaccine. See Sections 13(a)(1)(A) and 11(c)(1). Moreover, under the Vaccine Act, a petitioner 

may not receive a Vaccine Program award based solely on his or her claims alone. Rather, the 

petition must be supported by either medical records or by the opinion of a competent medical 

expert. Section 13(a)(1). In this case, however, there is insufficient evidence in the record for 

Petitioners to meet their burden of proof. Petitioners’ claim, therefore, cannot succeed and must 

be dismissed.
5

Thus, this case is dismissed for insufficient proof and a failure to prosecute. The Clerk 

shall enter judgment accordingly.

IT IS SO ORDERED.

 s/ Katherine E. Oler

Katherine E. Oler

Special Master