In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS 

No. 19-0452V 

UNPUBLISHED 

LAURIE L. OGLE, 

 Petitioner, 

v. 

SECRETARY OF HEALTH AND 

HUMAN SERVICES, 

 Respondent. 

Chief Special Master Corcoran 

Filed: May 10, 2021 

Special Processing Unit (SPU); 

Dismissal; Insufficient Proof; Failure 

to Prosecute; Tetanus-DiphtheriaAcellular Pertussis (Tdap) Vaccine; 

Shoulder Injury Related to Vaccine 

Administration (SIRVA) 

 

Kelly Danielle Burdette, Burdette Law, PLLC, North Bend, WA, for Petitioner. 

Alexa Roggenkamp, U.S. Department of Justice, Washington, DC, for Respondent. 

DECISION1

 On March 27, 2019, Laurie L. Ogle filed a petition for compensation under the 

National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the 

“Vaccine Act”). Petitioner alleged that that she suffered from a shoulder injury related to 

vaccine administration (“SIRVA”) as a result of receiving a tetanus-diphtheria-acellular 

pertussis (“Tdap”) vaccine on January 15, 2018. Petition at Preamble. The case was 

assigned to the Special Processing Unit of the Office of Special Masters (the “SPU”). 

I. Relevant Procedural History 

This matter was assigned to the SPU based on the initial presumption that it 

presented issues that were likely to be resolved expeditiously. However, during the initial 

1 Because this Decision contains a reasoned explanation for the action in this case, I am required to post it 

on the United States Court of Federal Claims' website 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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 

300aa (2012). 
2

status conference nearly two years ago (on July 31, 2019), it was disclosed that 

insufficient medical documentation had been filed demonstrating that Ms. Ogle’s alleged 

vaccine-injury lasted for six months or more – as required under Section 11(c)(1)(D)(i) of 

the Act. (ECF No. 10). This issue was echoed in my December 20, 2019, and February 

3, 2020 Scheduling Orders, where I noted that many records appeared to be missing, 

including records necessary to demonstrate that Petitioner could meet the six-month 

severity requirement. (ECF Nos. 15, 17). Respondent observed the same absence of 

evidence supporting this claim component. (ECF No. 16). 

Petitioner reported in a February 21, 2020 status report that she had previously 

submitted complete records from her relevant treatment providers and that she had 

obtained no additional or subsequent treatment. (ECF No. 18). She reiterated this 

information in a June 2, 2020 status report. (ECF No. 21). To date, no additional records 

or affidavits have been filed in support of the Petition. 

On July 17, 2020, Respondent file his Rule 4(c) Report recommending that 

compensation be denied in this case, as well as a motion requesting that an Order to 

Show Cause be issued directing Petitioner to demonstrate that she could overcome the 

present evidentiary deficiency regarding the required six-month sequela. (ECF Nos. 23, 

24). I agreed that such an Order was necessary, as Petitioner had not responded 

substantively to the lack of proof on the severity question, and therefore issued the Order 

on July 20, 2020 (ECF No. 25). 

Petitioner did file an initial response to the Order to Show Cause stating that she 

had been unable to see her doctor due to her income restrictions as well as restrictions 

in place due to the COVID-19 pandemic, but she believed that she still suffered from 

SIRVA and wanted additional time to seek follow up treatment. (ECF No. 26). I permitted 

Petitioner an additional 60 days to seek this additional treatment with the caveat that I 

would not permit this case to lag without Petitioner providing sufficient evidence to fulfill 

basic statutory requirements. (ECF No. 27). 

Two months later, Petitioner filed a status report stating that she had not yet 

obtained the additional documents to meet her burden of proof. She requested additional 

time to comply with my order. (ECF No. 30). I again granted Petitioner the additional time 

she requested, but she failed to meet the February 2, 2021 deadline. (ECF No. 29). I 

extended the deadline a second time to April 28, 2021 and Petitioner has yet to file any 

response. (ECF No. 30). 
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II. Insufficient Proof and Failure to Prosecute 

a. Failure to Satisfy the Six-Month Severity Requirement 

Under the Vaccine Act, a petition for compensation must contain “supporting 

documentation, demonstrating that the person who suffered [a vaccine related injury] 

...suffered the residual effects or complications of such illness, disability, injury, or 

condition for more than 6 months after the administration of the vaccine.” Section 

11(c)(1)(D)(i). The burden is on the petitioner to establish, by a preponderance of the 

evidence, the persistence of a vaccine-caused injury for longer than six months. Song v. 

Sec'y of Health & Human Servs., 31 Fed. Cl. 61, 65–66, aff'd, 41 F.3d 1520 

(Fed.Cir.1994). A petitioner cannot establish the length or ongoing nature of an injury 

merely through her self-assertion. Rather, the petition must be supported by medical 

records or by the opinion of a competent physician. See Section 13(a)(1). Petitioner bears 

the burden of proving a prima facie case by a preponderance of the evidence. Section 

13(a)(1)(A); see also Moberly v. Sec’y of Health & Human Services, 592 F.3d 1315, 1321 

(Fed. Cir. 2010). 

Although Ms. Ogle has asserted in her April 1, 2019 affidavit that that she “still 

suffer[s] from pain, weakness and lack of range of motion,” (Pet. Ex. 1 at 1, ¶7), she has 

not submitted any medical records or other evidence to substantiate her assertions that 

her shoulder pain persisted past her March 27, 2018 appointment – two months postvaccination. Petitioner has provided no records showing visits to any healthcare provider 

for the period between that March date and August 2, 2018 (approximately seven months 

post-vaccination). And the treatment records from August 2018 indicate that she 

complained of left shoulder pain after she had been “throwing freight around” – not that 

she was experiencing ongoing sequelae associated with her right-arm vaccination. Pet. 

Ex. 2 at 78. Thus, Petitioner’s records document a little more than two months of sequela 

for her alleged SIRVA injury. 

The Act does permit individuals who otherwise do not meet the severity 

requirement to bring a claim where they can demonstrate their injury caused them to 

experience “inpatient hospitalization and surgical intervention.” Section 11(c)(1)(D)(iii). 

But Ms. Ogle has not submitted evidence that this occurred in connection with her alleged 

SIRVA injury. To date, Ms. Ogle has failed to support her claim with sufficient proof, 

including medical records, affidavits, and/or the opinion of a medical expert to 

substantiate her claim that her injury persisted for more than six months despite multiple 

orders directing her to file this information. 
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b. Failure to Prosecute 

An additional ground for dismissal herein arises from Petitioner’s general failure to 

prosecute this matter. 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. 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 the July 20, 2020 Order to Show Cause, and 

then in my December 2, 2020 and March 30, 2021 Scheduling Orders that she risked 

dismissal of the claim. I ultimately set a final deadline to act by the end of April 2021. But 

Petitioner continued to disregard my orders without justification or explanation. 

III. Conclusion 

To date, and despite ample opportunity, Petitioner has failed to provide 

preponderant evidence that she suffered the residual effects of her injury for more than 

six months or suffered an in hospital surgical intervention. Section 11(c)(1)(D)(i). She has 

also failed to respond to the Order to Show Cause issued on July 20, 2020, and my 

December 2, 2020 and March 30, 2021 Scheduling Orders, respectively. Accordingly, this 

case is DISMISSED for failure to prosecute and insufficient proof. The clerk shall enter 

judgment accordingly. 3

IT IS SO ORDERED.

 s/Brian H. Corcoran 

 Brian H. Corcoran 

 Chief Special Master 

3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice 

renouncing the right to seek review.