In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

No. 21-380V

UNPUBLISHED

MA LOURDES ASPEITA,

 Petitioner,

v.

SECRETARY OF HEALTH AND 

HUMAN SERVICES,

 Respondent.

Chief Special Master Corcoran 

Filed: July 5, 2022

Show cause; Failure to prosecute;

Influenza Vaccine; Shoulder Injury 

Related to Vaccine Administration 

(SIRVA)

David J. Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner.

Heather L. Pearlman, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION1

On January 8, 2021, Ma Lourdes Aspeita filed a petition for compensation under 

the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa—10 through 

34,

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

vaccine administration (“SIRVA”) from an influenza vaccine she received on October 1, 

2019. ECF No. 1. Due to Petitioner’s failure to prosecute her claim, this case is 

DISMISSED.

Relevant Procedural History

In the petition, Petitioner alleged that she suffered a shoulder injury from an 

influenza vaccination but did not provide any medical history for treatment of the injury.

ECF No. 1. Petitioner did not submit any supporting documentation with the petition. 

On February 1, 2021, the PAR Initial Order issued requiring Petitioner to file her 

statutorily required supporting documentation, including medical records and her 

affidavit. ECF No. 5. On June 9, 2021, Petitioner filed an amended petition, an affidavit, 

medical records, and a Statement of Completion. ECF Nos. 6-9. The amended petition 

1 Although I have not formally designated this Decision for publication, I am required to post it on the United 

States Court of Federal Claims' website because it contains a reasoned explanation for the action in this 

case, 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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa 

(2012).
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added a medical history of treatment for Petitioner’s injured shoulder through November 

2019. ECF No. 6. After a Pre-Assignment review of Petitioner’s filings, the June 21, 

2021 order issued requiring Petitioner to file medical records to satisfy the severity 

requirement, i.e., that her shoulder injury persisted for more than six months or resulted

in inpatient hospitalization and surgical intervention. ECF No. 10.

On July 29, 2021, Petitioner’s counsel filed a status report advising that Petitioner 

“has been unresponsive to repeated emails, phone calls and certified letters since the 

filing of this case. For those reasons, Petitioner’s counsel has been unable to file the 

requisite additional medical records pursuant to the Court’s most resent Order. 

Petitioner’s counsel would respectfully request another sixty (60) days to pursue 

additional efforts to reach his client so that this case can be properly prosecuted. If 

Petitioner’s counsel is unsuccessful at that time communicating with his client, 

Petitioner’s counsel would be amenable to the Court taking the necessary steps to 

dismiss this claim without prejudice based on Petitioner’s failure to stay in contact with 

counsel.” ECF No. 11. By a July 30, 2021 non-pdf order, Petitioner’s counsel was 

granted an additional 60 days to contact his client to continue prosecuting this case and 

comply with the Court’s orders.

On September 28, 2021, Petitioner’s counsel filed a status report indicating that 

Petitioner “has been unresponsive to repeated emails, phone calls and certified letters 

since the filing of this case.” ECF No. 13. Counsel requested that a show cause order 

issue so that he can forward the order to Petitioner. If Petitioner continues to be 

unresponsive, counsel requested that he be granted leave to file a “motion to dismiss 

the petition without prejudice.” Id.

On November 2, 2021, I issued an Order to Show Cause directly Petitioner’s 

counsel to serve the order on Petitioner and that the case would be dismissed for failure 

to prosecute if Petitioner did not file the outstanding medical records or otherwise 

respond to the order. ECF No. 14. 

On January 4, 2022, Petitioner’s counsel filed a response to the Order to Show 

Cause citing Petitioner’s continued unresponsiveness as the reason for not being able 

to file the outstanding medical records. ECF No. 15. Counsel slightly modified his earlier 

statements regarding Petitioner’s responsiveness indicating that “Petitioner was 

responsive prior to the filing of the initial petition and amended petition,” i.e., prior to 

June 9, 2021. Id. Counsel confirmed that the Order Show Cause was served on 

Petitioner’s last known mailing address. Without citing any authority, counsel requested 

that he be granted leave to file a “Motion to Dismiss the Petition without prejudice for 

failure of Petitioner to communicate with Petitioner’s attorney of record.” Id.

Grounds for Dismissal

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. Padmanabhan v. Sec’y of Health & Human Servs., 

638 Fed. App’x 1013 (Fed. Cir. 2016); 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 
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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 my November 2, 2021 Order to Show 

Cause that her failure to follow orders issued in this matter (and failure to communicate 

with her counsel which prevents compliance with those order) risked dismissal of the 

claim. As noted in the response to the Order to Show Cause, Petitioner has been out-oftouch with her counsel since the filing of the amended petition in June 2021. Because 

Petitioner has continued to disregard my orders, without justification or explanation, 

dismissal is now appropriate.

Petitioner’s counsel has repeatedly requested that I dismiss this case without 

prejudice in the absence of Petitioner’s consent. However, a vaccine case can only be 

dismissed without prejudice under the procedure for voluntary dismissal pursuant to 

Vaccine Rule 21(a). A petitioner may voluntarily dismiss the petition by filing “(A) a 

notice of dismissal at any time before service of respondent’s report; or (B) a stipulation 

of dismissal signed by all parties who have appeared in the action.” Vaccine Rule 

21(a)(1). Petitioner has not filed a notice of dismissal or stipulation of dismissal. 

Moreover, due to the lack of communication since the petition was filed, Petitioner’s 

counsel admittedly does not have Petitioner’s consent to seek voluntary dismissal, or he 

would have done so pursuant to Vaccine Rule 21(a). Without having Petitioner’s 

consent to voluntarily dismiss the case, the case can only be involuntarily dismissed 

pursuant to Vaccine Rule 21(b) for failure to prosecute. Involuntarily dismissal is with

prejudice and judgment will enter. Vaccine Rule 21(b)(2).

As an alternative basis for dismissal, among other requirements for 

compensation in the Vaccine Program, Petitioner must establish the severity 

requirement, that her injury persisted for more than six months or resulted in inpatient 

hospitalization and surgical intervention. § 300aa—11(c)(1)(D)(i). The June 21, 2021 

order first identified that Petitioner had not filed sufficient medical records to establish 

the severity requirement. Since that order, Petitioner has not filed any additional medical 

records to support the severity requirement. Thus, Petitioner has failed to establish 

entitlement to compensation in the Vaccine Program. 

Accordingly, this case is DISMISSED for failure to prosecute. The clerk 

shall enter judgment accordingly.3

IT IS SO ORDERED.

3

If Petitioner wishes to bring a civil action, she must file a notice of election rejecting the judgment 

pursuant to § 21(a) “not later than 90 days after the date of the court’s final judgment.”
4

s/Brian H. Corcoran

Brian H. Corcoran

Chief Special Master