# In the United States Court of Federal Claims

No. 15-1292V

(E-Filed: June 21, 2018) 1

)

JENNIFER SOGHOMONIAN, ) on behalf of K.S., ) ) Petitioner, )

v. ) Dismissal for Failure to ) Prosecute.

SECRETARY OF HEALTH ) AND HUMAN SERVICES, ) ) Respondent. ) )

Allison R. Bracy, Rancho Cu camonga, CA, for petitioner.

Darryl R. Wishard, Senior Trial Attorney, with whom were Chad A. Readler, Acting Assistant Attorney General, C. Salvatore D’Alessio, Ac ting Director, Catherine E. Reeves, Deputy Director, Torts Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent.

OPINION

CAMPBELL-SMITH, Judge.

Before the court is petitioner’s motion for review of the special master’s decision of dismissal for failure to prosecute, pursuant to Rules 23 and 24 in Appendix B (Vaccine Rules) of the Rules of the United St ates Court of Federal Claims (RCFC), and RCFC 60, filed on March 22, 2018. See EC F No. 48. The government has filed a response. See ECF No. 51. This matter is ri pe and ready for a decision by the court. For the following reasons, petitioner’s motion is DENIED , and the special master’s

decision is SUSTAINED

.

1 Pursuant to Rule 18(b) of the Vaccine Rules of the United States Court of Federal Claims (Appendix B to the Ru les of the United States Court of Federal Claims), this opinion was initially filed under seal on June 4, 2018. Pursuant to ¶ 4 of the ordering language, the parties were to propose redacti ons of the information contained therein on or before June 19, 2018. No proposed redactions were submitted to the court.2 I. Background

On October 30, 2015, petitioner filed the pr esent vaccine action on behalf of K.S. See ECF No. 1. After nearly a year and a half of litigation, on February 23, 2017, respondent reported to the special master th at the Secretary intended to engage in

settlement discussions. See ECF No. 46 at 2 (Spec. Mastr. Dec .). In order to assist the parties in resolving questi ons about the cause of spee ch and cognitive impairments experienced by K.S., the special master di rected petitioner to file an expert report addressing the speech and cognitiv e impairments, on or before May 15, 2017. See id. Petitioner never filed the expert report. See id.

On June 12, 2017, petitioner expressed a desire to have a ne uropsychologist test K.S. for cognitive delays that had not previously been identif ied. See id. On July 12, 2017, the special master directed petitioner to file K.S.’s me dical records from a visit to a pediatric neurologist on or before Sept ember 7, 2017, and to make a demand on respondent on or before Sept ember 8, 2017. See id. Th e special master granted an

extension of those deadlines , giving petitioner until November 9, 2017, to file the records and a status report relating to a dema nd on respondent. See id. at 3. Petitioner

did not file either the records or the report by November 9, 2017. See id.

The special master issued an order on November 15, 2017, directing petitioner to show cause why she had failed to meet the c ourt’s deadlines. See id. In the order, the special master directed petitioner to file the medical records, make a demand on respondent, and file a status report on or before November 29, 2017. See id. On November 28, 2017, petitioner filed a status re port informing the special master that she

was unable to obtain additional medical treatme nt for K.S., and stating that she made a demand on respondent on November 27, 2017. See id.

During a status conference on December 28, 2017, the special master directed petitioner to forward a letter from her pediatric neurology expert to re spondent. See id. Respondent never received the letter. See id.

The special master learned, on February 5, 2018, that pe titioner’s counsel had changed law firms, and directed counsel to update her contact info rmation on or before February 12, 2018. See id. The special master’s law cler k also attempted to contact petitioner’s counsel by email the same day. See id. Petitioner’s counsel did not respond by February 12, 2018. See id.

The special master entered a second sh ow cause order on February 12, 2018, stating that if petitioner’s counsel failed to resp ond to the previous inquiries on or before February 20, 2018, the case would be dismis sed. Petitioner did not file anything by February 20, 2018. See id.3 On March 19, 2018, the special master di smissed the case for failure to prosecute and for failure to obey four orders: (1) th e February 23, 2017 order directing petitioner to file an expert report relating to speec h and cognitive impairment s, on or before May 15, 2017; (2) the September 7, 2017 order directing petitioner to file medical records from a pediatric neurologist and a status re port regarding a demand on respondent, on or before November 9, 2017; (3) the December 28, 2017 or der directing petitioner to forward a letter from her pediatric neurology e xpert to respondent; and (4) the February 12, 2018 show cause order. See id.

II. Legal Standards

The United States Court of Federal Claims has jurisdiction to review the special master’s decision pursuant to 42 U.S.C. § 300aa-12(e)(1) (20 12). See also Vaccine Rule 23. Following its review, the court may either : (1) uphold the speci al master’s findings

of fact and conclusions of la w and sustain the special mast er’s decision; (2) set aside some or all of the special ma ster’s findings of fact and conclusions of law and issue different findings of fact a nd conclusions of law; or (3 ) remand the petition for further

action in accordance with the court’s directio n. See 42 U.S.C. § 300aa-12(e)(2)(A)-(C);

see also Vaccine Rule 27.

Vaccine Rule 21(b)(1) states that a “sp ecial master . . . 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.” The court reviews a special master’s decision dismissing a petition for failure to prosecute un der an abuse of discretion standard. See Padmananbhan v. Sec’y of Dep’t of Health & Human Servs., 638 F. App’x 1013, 1014- 15 (Fed. Cir. 2016) (per curiam).

A special master abuses his or her discretion when the decision is:

(1) . . . clearly unreasonable, arbitrary, or fanciful; (2) . . . based on an erroneous conclusion of the law; (3) . . . clearly erroneous; or (4) the record

contains no evidence on which the . . . [special master] rationally could have

based his decision.

Murphy v. Sec’y of Dep’t of Health & Human Servs., 30 Fed. Cl. 60 , 61 (1993) (quoting Hendler v. United States, 952 F.2d 1364, 1380 (Fed. Cir. 19 91)). See also Munn v. Sec’y of Dep’t of Health & Human Servs ., 970 F.2d 863, 870 (1992) (explaining this court owes “great deference” to the fact-fi ndings and fact-based conclusions of the special master). An “abuse of discretion ma y only be found where ‘no reasonable man would take the view adopted by the [special mast er] . . . .’” Mu rphy, 30 Fed. Cl. at 62 (quoting PPG Indus., Inc. v. Ce lanese Polymer Specialties Co.

, 840 F.2d 1565, 1572 (Fed. Cir. 1988)).4 III. Analysis

Petitioner now claims that the special master improperly di smissed her case

because:

1) The Special Master’s decision based on failure to follow Court orders is unjust and relief should be granted to Pe titioner as each enumerated violation was as [a] result of inadvertence or excusable neglect on the part of Petitioner’s attorney[, and]

2) The Special Master’s decision ba sed on Petitioner’s failu re to prosecute is not supported by the eviden ce and history of this case.

ECF No. 48 at 2-3. In her motion reques ting review of the special master’s order dismissing the case, petitioner attempts to ex plain or justify each of her failures to comply with th e special master’s orders.

As to the first order at issue, the Febr uary 23, 2017 order directing petitioner to file an expert report relating to speech a nd cognitive impairments on or before May 15, 2017, petitioner states that “giv en Minor K.S.’s age, his trea ting physicians felt that it was too early to fully evaluate any cognitive impairment.” Id. at 4. The court has no reason to question the veracity of this statement, but even a ssuming this to be the case,

such a medical conclusion does not excuse petitioner from complying with a court order. If no evaluation was possible, petitioner should have informed the special master by the May 15, 2017 deadline.

Petitioner states that she updated the cour t at a May 22, 2017 status conference, and that during the conference the specia l master “excused the failure to submit a report.” Id. at 8. According to the case docket, the conference was not officially recorded, and the scheduling order entered after the conference did not address the issue. See ECF No. 36 (scheduling orde r). In the court’s view, the fact that the special master specifically discussed petitioner’s failure to co mply with the Februa ry 23, 2017 order in dismissing the case is weighty counter-evidence to petitioner’s claim that her failure was excused. Further, the fact that petitioner ex plained her failure at a later time does not amount to retroactive compliance w ith the special master’s order.

Petitioner offers no colorable excuse for her failure to comply with the second order at issue, the September 7, 2017 order directing petiti oner to file medical records from a pediatric neurologist and a status re port regarding a demand on respondent, on or before November 9, 2017. Sh e states that “Petitioner’s a ttorney inadvertently missed

this deadline and instead filed a status report and made a settlement demand on November 29, 2017.” ECF No. 48 at 8. She then claims that the report was “accepted5 by the Court with no further mention.” Id. Th e court fails to see how this explanation in any way excuses petitioner’s failure. See Brid gham v. Sec’y of th e Dept. of Health & Human Servs., 33 Fed. Cl. 101, 105 (1995) (finding, in the context of a motion pursuant to RCFC 60(b)(1), that carelessness on the part of coun sel is not a sufficient reason to grant relief).

Although petitioner acknowledg es that she was directed to forward a letter from her pediatric neurology expert to respon dent on December 28, 2017, she offers no

excuse at all for her failure to do so. See ECF No. 48 at 5-6, 8-9. Around the second week of January 2018, petitioner’s counsel le ft the law firm with which she had been practicing, and she claims that she expected her prior firm to en sure compliance with any deadlines. See id. She st ates that she had no knowledge of the February 12, 2018

show cause order. See id. at 6.

So long as petitioner’s counsel was the a ttorney of record in this matter, she remained responsible fo r compliance with all relevant or ders. The special master made this abundantly clear in her order dated D ecember 28, 2017, in which she acknowledged petitioner’s counsel’s plan to change law firm s, directing petitioner to “file a notice of change of address after her counsel change s the address and contact number.” See ECF No. 43 at 1 (status conf. order). The fact that petitioner’s counsel entered into a new professional arrangement does not excuse her di sregard of the special master’s orders.

IV. Conclusion

For the foregoing reasons,

(1) Petitioner’s motion for review, ECF No. 48, is DENIED ;

(2) The special master’s February 21 , 2018 decision, ECF No. 46, is

SUSTAINED ;

(3) The clerk’s office is directed to ENTER final judgment in accordance with the special master’s deci sion of February 21, 2018; and

(4) The parties shall separately FILE any proposed redactions to this opinion, with the text to be redact ed clearly marked out or otherwise indicated in brackets, on or before June 19, 2018

.

IT IS SO ORDERED.

s/Patricia Campbell-Smith

PATRICIA CAMPBELL-SMITH Judge6