ORIGINAL 

3Jn tbe mlniteb ~tates Q:Court of jf eberal Q:Claims 

OFFICE OF SPECIAL MASTERS 

Filed: June 5, 2017 

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

HEATHER BUTTON, on behalf of 

W.S.B., 

Petitioner, 

V. 

No. 16-1391V 

Special Master Sanders 

FILED 

JUN - 5 2017 

OSM 

U.S. COURT OF 

FEDERAL CLAIMS 

SECRETARY OF HEALTH 

AND HUMAN SERVICES, 

* 

* 

* 

* 

* 

* 

* 

* 

* 

* 

* 

Dismissal; Order to Show Cause; 

Failure to Prosecute; Insufficient Proof. 

Respondent. 

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

Heather Button, prose, Winfield, IL. 

Jennifer L. Reynaud, United States Department of Justice, Washington, DC, for Respondent. 

DECISION1 

On October 25, 2016, Heather Button ("Petitioner") filed a petition for compensation on 

behalf of W. S .B. in the National Vaccine Injury Compensation Program ["the Program"]. 2 Pet. 

1, ECF No. 1. Petitioner alleged that the influenza ("flu") vaccine and hepatitis A vaccine 

W.S.B. received on November 26, 2013 caused him to suffer from Henoch-Schonlein Purpura 

("HSP"). Pet. 1-2. 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 

18(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 18(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). 

REISSUED FOR PUBLICATION

JUL 6 2017

OSM

US COURT OF FEDERAL CLAIMS
I. PROCEDURAL HISTORY 

Petitioner filed her petition on October 25, 2016 with ten exhibits consisting of medical 

records. Pet. The case was initially assigned to Special Master Hamilton-Fieldman. Not. 

Assignment, ECF No. 4. On December 1, 2016, Special Master Hamilton-Fieldman held an 

initial status conference with the parties. Initial Order, ECF No. 8. During this status 

conference, Special Master Hamilton-Fieldman encouraged Petitioner to obtain an attorney for 

two reasons. Id. at 1. First, Special Master Hamilton-Fieldman noted that the medical records 

revealed a possible alternative cause to W.S.B.'s HSP. Id. Second, Special Master HamiltonFieldman explained that Petitioner would need to acquire an expert to address vaccine causation, 

especially in light of the possible alternative causation. Id. Special Master Hamilton-Fieldman 

then ordered Petitioner to re-file her medical records, as they were not filed in accordance with 

the Vaccine Rule. Id. at 2. Petitioner's deadline to re-file her records was January 6, 2017. Id. 

On January 10, 2017, this case was transferred to the undersigned. Not. Reassignment, 

ECF No. 12. On that same day, Petitioner telephoned the undersigned's chambers to inquire as 

to how to submit a motion for an extension ohime to file her outstanding medical records. 

Informal Comm., dated Jan. 10, 2017. Petitioner filed her motion for an extension of time on 

January 27, 2017. Mot., ECF No. 13. The undersigned granted this motion, providing Petitioner 

until February 10, 2017 to submit her medical records and a Statement of Completion. Order, 

ECF No. 14. 

On February 9, 2017, Petitioner submitted medical records and a Statement of 

Completion. Statement Comp., ECF No. 15. The undersigned then ordered Petitioner to submit 

an expert report by April 13, 2017, and Respondent to file a status report by March 3, 2017 to 

indicate how he wished to proceed. Order, ECF No. 16. On March 7, 2017, Respondent filed a 

Motion to Dismiss, arguing that Petitioner could not satisfy the six-month severity requirement 

of the Vaccine Act. Mot. Dismiss, ECF No. 19. The deadline for Petitioner to respond to this 

Motion was March 24, 2017. See Docket Rep. Petitioner did not respond to this Motion. 

Petitioner's April 13, 2017 deadline passed without any filings or communications with 

Chambers. On April 24, 2017, Chambers emailed Petitioner to inquire into the status of her 

expert report. Informal Comm., dated Apr. 24, 2017. Chambers again attempted to contact 

Petitioner on May 8, 201 7 regarding the lapsed deadlines to file an expert report and respond to 

Respondent's Motion to Dismiss. Informal Comm., dated May 8, 2017. 

On May 10, 201 7, the undersigned issued an Order to Show Cause why the case should 

not be dismissed for failure to prosecute. Order Show Cause, ECF No. 20. The undersigned 

ordered Petitioner to file an expert report or a status report by May 31, 2017. Id. at 2. The Order 

cautioned that a failure to file these documents "will be interpreted as a failure to prosecute this 

claim, and the petition shall be dismissed." Id. To date, the undersigned has not received any 

further filings or documentation from Petitioner. 

2 
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 21(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, respond to Respondent's 

Motion to Dismiss, 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 

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

caused by a vaccine. See§§ 300aa-13(a)(l)(A), 300aa-1 l(c)(l). An examination of the record 

did not provide any evidence that W.S.B. suffered a "Table Injury." Furthermore, the 

undersigned finds that Petitioner's incomplete medical record filings, without a hearing or any 

additional evidence, do not contain preponderant evidence demonstrating that W.S.B.'s alleged 

vaccine injury was vaccine-caused. 

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

accordingly. 

IT IS SO ORDERED. 

Special Master 

3