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# Q:Court of jf 

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OFFICE OF SPECIALMASTERS Filed: June 5, 2017


### * * * * * * * * * * * * * * * HEATHERBUTTON, onbehalfof W.S.B.,
Petitioner,

V. No. 16-1391V

Special Master Sanders 

# FILED JUN - 52017

OSM U.S. COURT OF FEDERAL CLAIMS

SECRETARY OF HEALTH AND HUMAN SERVICES, 

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## * * * Dismissal; Orderto ShowCause; Failure to Prosecute; Insufficient Proof.

Respondent. 

### * * * * * * * * * * * * * * *

Heather Button,prose, Winfield, IL. Jennifer L. Reynaud, United States Department ofJustice, Washington, DC, for Respondent.



### DECISION1

On October 25, 2016, Heather Button ("Petitioner") filed a petitionfor compensation on behalfofW.S.B. in the National Vaccine Injury CompensationProgram ["the Program"].2 Pet. 1, ECF No. 1. Petitioner alleged thatthe influenza ("flu") vaccine and hepatitis A vaccine W.S.B. received onNovember 26, 2013 caused him to suffer from Henoch-SchonleinPurpura ("HSP"). Pet. 1-2. The information inthe record, however, does not showentitlementto an award underthe Program.

1This decision shall be posted onthe website ofthe United States Court ofFederal Claims, in accordance with the E-GovernmentAct of2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2012)). As providedby Vaccine Rule 18(b), eachparty has 14 days within whichto request redaction "ofany informationfurnished by that party: (1) that is a trade secret or commercial orfinancial in substance and is privileged or confidential; or (2) thatincludes medical files or similar files, the disclosure ofwhichwould constitute a clearly unwarranted invasion ofprivacy." Vaccine Rule 18(b).

2National ChildhoodVaccineInjuryActof1986, Pub L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease ofcitation, 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 CLAIMSI. PROCEDURAL HISTORY
Petitioner filed her petition on October 25, 2016 with ten exhibits consisting ofmedical 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 MasterHamilton-Fieldman encouraged Petitionerto obtain an attorney for two reasons. 

### Id. at 1. First, Special Master Hamilton-Fieldman notedthatthe 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 ofthe 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 herrecords 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, Petitionertelephonedthe undersigned's chambers to inquire as to howto submit a motion for an extension ohimeto file her outstanding medical records. Informal Comm., dated Jan. 10, 2017. Petitioner filed her motion for an extension oftime 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 ofCompletion. Order, ECF No. 14.

On February 9, 2017, Petitioner submitted medical records and a Statement of Completion. Statement Comp., ECF No. 15. The undersignedthen ordered Petitionerto submit
an expert reportby April 13, 2017, and Respondentto file a status report by March 3, 2017 to indicate howhe 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 ofthe Vaccine Act. Mot. Dismiss, ECF No. 19. The deadline for Petitionerto 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 Petitionerto inquire into the status ofher expert report. Informal Comm., dated Apr. 24, 2017. Chambers again attempted to contact Petitioner on May 8, 2017regarding 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, 2017, the undersigned issued an Order to Show Cause whythe case should not be dismissed for failure to prosecute. Order Show Cause, ECF No. 20. The undersigned ordered Petitionerto 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.

2II. ANALYSIS

When a petitionerfails 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. AtkinsEnters., Inc. v. UnitedStates, 889 F.2d 1180, 1183 (Fed. Cir. 1990) (affirming dismissal ofcase for failure to prosecute for counsel's failure to submitpre-trial memorandum);Adkins v. UnitedStates, 816 F.2d 1580, 1583 (Fed. Cir. 1987) (affirming dismissal ofcase for failure ofparty to respond to discovery requests). Petitioner's failure to meet the deadline for her expertreport, respond to Respondent's Motion to Dismiss, and comply withthe undersigned's Orderto Show Cause indicate a disinterest in pursuing her claim. The undersigned will therefore dismiss this case for failure to prosecute. Additionally, to receive compensation underthe Act, Petitioner mustprove either (1) that W.S.B. suffered a "Table Injury"-i.e., an injury falling within the Vaccine Injury Tablecorresponding to one ofhis vaccinations, or (2) that W.S.B. suffered an injury that was actually causedby a vaccine. See§§ 300aa-13(a)(l)(A), 300aa-1l(c)(l). An examination ofthe 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 containpreponderant evidence demonstrating that W.S.B.'s alleged vaccine injury was vaccine-caused.
Thus, this case is dismissed for failure to prosecute. The Clerkshall enterjudgment accordingly.

IT IS SO ORDERED.

Special Master

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