# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 13

- 72

Filed: January 8, 2015

* * * * * * * * * * * * * * * * * * * * * * * * * UNPUBLISHED

APRIL POLITE

, on behalf of her *

child, LKT, *

* Special Master Hamilton

- Fieldman

Petitioner, *

*

v. * Dismissal decision; Order to Show

* Cause; Failure to Prosecute;

SECRETARY OF HEALTH * Insufficient Proof.

AND HUMAN SERVICES, *

*

Respondent. *

*

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

Danielle A. Strait

, Malio, Christopher, and Toale, PA, Washington, DC, for Petitioner.

Lindsay Corliss , United States Department of Justice, Washington, DC, for Respondent.

DECISION 1

On January 29, 2013

, April Polite (“P etitioner ”) filed a petition for compensation under

the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa

- 1 et seq. (2006)

(“Vaccine Act”) , on behalf of her minor child, LKT . Petitioner alleged that he r child suffered

from a cerebrovascular infarct and that this injury had been caused by the Prevnar, Rotateq,

Pentacel, and Hepatitis B vaccines LKT received on May 24, 2010

. Petition (“Pet”) at 1. The

information in the record, however, does not show enti tlement to an award under the Program.

I. Procedural History

The p etition was filed on J anuary 29, 201 3 , and was initia lly assigned to Special Master

1 Because this unpublished decision contains a reasoned explanation for the action in this case,

the undersigned intends to post this decision on t he United States Court of Federal Claims’

website, 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 and note (2006)). In accordance with

Vaccine Rule 18(b), a party has 14 days to identify and move to delete medical or other

information, that satisfies the criteria in § 300aa

- 12(d)(4)(B). Further, consistent with the rule

requirement, a motion for redaction must include a proposed redacted decision. If, upon review,

the undersigned agrees that the identified material fits within the requirements of that provision,

such material will be deleted from public access.2

Hastings

. On April 19, 2013 , the case was reassigne d to the undersigned Special Master

. Petitioner’s counsel filed a Statement of Completion on July 30, 2013

.

O n November 19 , 2013

, a status conference was held to discuss the progress ion of the

case. During the status conference, the parties agreed that updated medica l documentation was

necessary and that informal resoluti on was not feasible. Order, ECF No. 26. Accordingly, t he

undersigned set up an expert report filing sc hedule

. Id. Petitioner subsequently filed four

motions for extension of time to file her expert report. 2 As of J uly 1, 2014, over seven months

later, an expert report had not been filed.

Following the filing of the fourth Motion for Extension of Time, the undersigned held a

status conf

erence on July 1, 2014. At the status conference, Petitioner’s counsel indicated that

she ha d been unable to contact her client since April 2014 . Order, ECF No. 31. The undersigned

issued a Show Cause Order according to which Petitioner was directed to inform the court, by no

later than September 19, 2014, how she wished to proceed. Id. In the event that Petitioner

wished to proceed, she was directed to “ indicate the good

- faith efforts made to secure an expert

report, as multiple extensions of time ha[d] been requested and granted.” Id.

On September 19, 2014, Petitioner’s counsel filed a Status Report in Response to Order

to Show Cause. Status Report, ECF No. 32. Petitioner’s coun sel again indicated that she had

been unable to communicate with her client. Id. She had attempted to mail, e

- mail, and call her

client, but h er client had not respond ed to any form of communication. Id. After Petitioner’s

counsel mail ed Petitioner the Order to Show Cause and it was retur ned undelivered, “counsel

ha[d] not been able to reach Petitioner [and] ... Petitioner [had not] contacted un dersigned

counsel in response to these proceedings.” Id.

II. Analysis

(1) Failure to Prosecute

When a petitioner fails to comply with Court orders to prosecute his case, the Court may

dismiss the case. 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), aff’d , 991 F.2d 810 (Fed.

Cir. 1993); see also Adkins v. United States , 816 F.2d 1580, 1583 (Fed. Cir. 1987) (affirming

dismissal of cases for failure of party to respond to discovery requests). Petitioner’s failure to

communicate with her attorney evidences her disinterest in pursuing this claim. Thus, the

undersigned finds it appropriate to dismiss this case for failure to prosecute.

2 The Motions were filed on 01/28/2014, 03/28/2014, 04/03/2014, and 06/16/2014. Motions ECF Nos. 27 , 28, 29,

30. The first three Motions were granted, but a status conference was held f ollowing the filing of the fourth Motion.3 (2) Causation In Fact

To receive comp ensation und er the Vaccine Act , P etit ion er must prove either 1) that s he

suffered a “Table Injury”

– i.e., an injury falling within the Vaccine Injury Table

– corresponding

to one of her vaccinations, or 2) that s he suffered an injury that was actually cau sed by a vaccine.

See §§ 300aa

- 13(a)(1)(A) and 300aa

- 11(c)(1). An examination of the record di d not reveal any

evidence that LKT suffered a “Table Injury.” Further, the record does not contain a medical

expert’s opinion or any other persuasive evidence indicating that LKT’s injuries were caused by

a vaccination

.

Under the Vaccine Act, a petitioner m ay not be awarded compensation based solely on the petitioner’s claims alone . Rather, the petition must be supported by either medical records or

by the opinion of a competent physician. § 300aa

- 13(a)(1). In this case, because the medical

records are insufficient to establish entitl ement to compensation , a medical opinion must be

offered in support. Petitioner , however, has offered no such opinion.

Therefore, the only alternative remains to DENY this petition

. This case is dismissed

for failure to prosecute and alternative ly for insufficient proof of causation. In the absence

of a motion for review, the Clerk shall enter judgment accordingly.

IT IS SO ORDERED.



### s/Lisa D. Hamilton

- Fieldman

Lisa D. Hamilton

- Fieldman

Special Master