The opinion
DR|G!NAL
In the United States Court of Federal Claiins
OFFICE OF SPECIAL MASTERS
No. 03-1931V
Filed: March 28, 2014
Not to be Published MAR 2 8 20th
>1< FEDERAL C|_A|MS
JUDY O’CONNOR, *
parent of JR, a minor, *
* Autism; Failure to Prosecute',
Petitioner, ’*‘ Failure to Follow Court
* Orders; Dismissal
>l<
V_ >l<
>l<
SECRETARY OF HEALTH *
AND HUMAN SERVICES, "‘
>l<
Respondent. *
>l<
>l<>l<>l<>l<>l<**=l<>l<>l<>l<>l<>l<>k$>l<=l<>l<>l<>k>l<>l=>l<>l<*
DECISIoN‘
Petitioner filed a Petition for Vaccine Compensation in the National Vaccine injury
Compensation Program ("the Program"),z on August 18, 2003, alleging that her child, JR, was
injured by a vaccine or vaccines listed on the Vaccine injury Table. See § 14. l hereby dismiss
this petition because Petitioner has failed to prosecute or prove this case.
1
PROCEDURAL BACKGROUND
On November l7, 2003, Respondent filed Respondent’s Report, which asserted that the
petition in this case failed to state with particularity the circumstances surrounding the claim and
was not accompanied by materials required to be filed with a petition (z'.e. - contemporaneous
‘ Because this unpublished decision contains a reasoned explanation for the action in this case, 1 intend to post this
decision on the United States Couit of Federal Claims' website, in accordance with the E-Government Act of 2002,
Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codit`ied as amended at 44 U.S.C. § 3501 note (2006)). ln
accordance with Vaccine Rule l8(b), petitioner has 14 days to identify and move to delete medical or other
information, the disclosure ofwhich would constitute an unwarranted invasion of privacy. lf, upon review, 1 agree
that the identified inaterial fits within this def`mition, 1 will delete such material from public access.
2 The Program comprises Part 2 ofthe National Childhood Vaccine lnjury Act of 1986, Pub. L. No. 99-660, 100
Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-10 et seq. (hereinafter "Vaccine Act" or "the Act"). Hereafter,
individual section references will be to 42 U.S.C. § 300aa of the Act.
iiiedical records). Respondent contended that such inaterials were needed to assess the inedical
aiid legal merits of Petitioner’s claim. (Id.) Thereafter, several years passed during which there
were no proceedings in this case, while deliberations proceeded within the Omnibus Autism
Proceediiig. (See Section ll.)
On August 25, 2011, Petitioner was ordered to file an amended petition that was fully
compliaiit with the requirements of §3 00aa-1 l(c), and which clearly explained the theory of
vaccine causation in this case. Petitioiier did not respond to that Order. On October 21, 2011, l
issued an Order to Show Cause, within thirty days, why this case should not be dismissed for
failure to prosecute. Further, that Order instructed Petitioner to demonstrate her intent to proceed
with her case by filing an amended petition that was fully compliaiit with §300aa-l1(c) and
which clearly explained the theory of vaccine causation in this case.
Again, Petitioner failed to comply. lnstead, Petitioner’s counsel filed a l\/lotion to
withdraw as counsel, on Decernber 9, 2011. That l\/lotion indicated Petitioner’s intent to proceed
with her case, but it did not include any of the materials required by §300aa-l1(c). On February
8, 2012, l granted petitioner’s counsel’s l\/lotion to withdraw, and acknowledged Petitioner’s
status as a pro se litigant.
On February 21, 2012, l ordered Petitioner to file an expert report from a medical doctor
to support her theory of causation in this case. Petitioner filed a response on l\/lay 7, 2012, which
did not include an expert report. On July 19, 2012, l issued another Order requiring Petitioner to
file the report of a reliable medical expert.
Petitioner attempted to comply with that Order by attaching two documents to her
response on September 28, 2012. l'lowever, the attached documents, authored by Gwen l\/l.
Anderson and Dr. Scott S. Russell, were not sufficient to satisfy her burden to prove that JR’s
vaccinations caused his autism. Specifically, the copy of an e-mail from Gwen l\/l. Anderson,
who is identified as a retired behavioral specialist, asserted only that when JR "started the hep
immunizations, his development started to change. .. [and] after each vaccination [JR’S]
symptoms would increase." (Petitioner’s Response, filed Sept. 28, 2012, pp. 4-5.) The letter of
Dr. Scott D. Russell, dated September 24, 2012, and addressed "To Whom lt l\/lay Coiicern,"
stated only that "[JR] has a history of cerebral palsy and autism. Patient and family decline
vaccinations because of this medical history. There has been a history of medical side effects of
vaccination iii the past." (Ia'., p. 6.) Dr. Russell’s letter did not indicate the physician’s view that
a vaccine or vaccines caused JR’s conditions.3
On January 30, 2013, l issued an Order instructing Petitioner to file the expert report of a
qualified medical doctor, which specifically stated: l) which vaccination(s) were the cause of
JR’s iiijtiry; 2) what were the first symptoms of JR’s iiijtiry; 3) when the first symptoms
appeared; and, 4) exactly how the vaccines caused or contributed to JR’s iiijury. Furtlier, l
3lt has come to my attention that in my Oi'ders dated Jaiiuary 30, 2013, October 7, 2013, and February 19, 2014,
Dr. Scott S. Russell was inisidentified as "Dr. Scott S. Rohrer." This was a clerical error that has no impact on the
content of Dr. Russell’s letter.
ordered Petitioner to file all of the relevant inedical records. Petitioner’s failure to comply
resulted in the issuance of similar orders on July l0, 20l3, and October 7, 20l3.
On January 6, 2014, l issued another Order to Show Cause why this case should not be
dismissed for failure to prosecute. In response, Petitioner filed certain medical records and
documents on February 5, 2014. (See Petitioner’s Exhibits l-l2.) However, these exhibits do
not include the report of a medical doctor indicating the view that JR has a vaccine-caused
injury. Further, there reinained a gap of more than ten years in the medical records, making it
impossible to analyze the merits of this claim. ()n February l9, 2014, l issued an Order requiring
Petitioner to file the relevant medical records and an adequate expert report within thirty days.
Petitioner’s response, on l\/Iarch 20, 2014, did not include the relevant medical records or an
expert report.4
II
THE OMNIBUS AUTISM PROCEEDING ("C)AP")
This case is one of more than 5,400 cases filed under the Program in which petitioners
alleged that conditions known as "autism" or "autism spectrum disorders" ["ASD"] were caused
by one or more vaccinations. A detailed history of the controversy regarding vaccines and
autism, along with a history of the development of the OAP, was set forth in the six entitlement
decisions issued by three special masters as "test cases" for two theories of causation litigated in
the OAP, and will not be repeated here.
Ultimately, the Petitioners’ Steering Committee ["PSC"], an organization formed by
attorneys representing petitioners in the OAP, litigated six test cases presenting two different
theories on the causation of ASDs. The first theory alleged that the measles portion of the
measles, mumps, rubella vaccine could cause ASDs. That theory was presented in three separate
Program test cases during several weeks of trial in 2007. The second theory alleged that the
mercury contained in thimerosal~containing vaccines could directly affect an iiifant’s brain,
thereby substantially contributing to the causation of ASD. That theory was presented in three
additional test cases during several weeks of trial in 2008.
Decisions in each of the three test cases pertaining to the PSC’s firsl theory rejected the
petitioners’ causation theories. Ceoz’illo v. HHS, No. 98-916\/, 2009 WL 331968 (Fed. Cl. Spec.
l\/Istr. Feb. 12, 2009), ajj”’d, 89 Fed. Cl. 158 (2009), ct]j"’d, 617 F.3d 1328 (Fed. Cir. 2010);
Hczzlehur.s'z‘ v. IJHS, No. 03-654\/, 2009 WL 332306 (Fed. Cl. Spec. l\/lstr. Feb. l2, 2009), qff’d,
88 Fed. Cl. 473 (2009), aff’d, 604 F.3d 1343 (Fed. Cir. 2010)', .S`nyder v. HHS, No. 01-162\/,
4 Petitioiier’s Response, filed on l\/Iarch 20, 2014, included Petitioner’s request for "another judge to look at the
evidence. .. [a] judge not in the Ginnibus Autism Proceeding." l decline to transfer this case to a different special
master because, clearly, no special master can afford Petitioner the requested relief, unless Petitioner files a report
from a medical expert and the materials required pursuant to §300aa-l l(c).
3
2009 WL 332044 (Fed. Cl. Spec. Mstr. Feb. 12, 2009), q/f/"a’, 88 Fed. Cl. 706 (2009).5 Decisions
iii each of the tliree "test cases" pertaining to the PSC’s second theory also rejected the
petitioners’ causation theories, and the petitioners in each of those three cases chose not to
appeal Dwyer v. HI~IS, No. 03-1202\/, 2010 WL 892250 (Fed. Cl. Spec. l\/lstr. l\/lai‘. 12, 2010);
Kz`ng v. HIJS, No. 03-584\/, 2010 WL 892296 (Fed. Cl. Spec. l\/Istr. l\/lar 12, 2010); Mead v.
HHS, No. 03-215`\/, 2010 WL 892248 (Fed. Cl. Spec. l\/lstr. l\/lar. 12, 2010). Thus, the
proceedings in these six test cases concluded in 2010. Thereafter, the Petitioner in this case, aiid
the petitioners in other cases within the OAP, were given instructions concerning how to
proceed, if they chose to do so. (See the Order filed iii this case on Aug. 25, 2011.)
III
FAILURE TO PR()SECUTE
Altliough l am deeply sympathetic regarding JR’s disorder, it is still Petitioner’s duty to
respond to court orders, and to prove her case. l note that Petitioner has been under order to file
complete medical records and an expert report in this case for more than two years, but has yet to
file a sufficient expert report or even all of the required medical records. (See my Orders filed
August 25, 2011, February 21, 2012, July 19, 2012, January 30, 2013, July 10, 2013, ()ctober 7,
2013, and January 6, 2014.) As l reminded Petitioner in my Grder of January 6, 2014, failure to
follow court orders, as well as failure to file medical records or an expert medical opinion, must
result in dismissal of Petitioner’s claim. Tsekourcis' v. Sec ’y, HHS, 26 Cl. Ct. 439 (1992), ciff’d
per curiam 991 F.2d 810 (Fed. Cir. 1993)', Sap//zm'czs' v. Sec’y, HHS, 35 Fed. Cl. 503 (1996)',
Vaccine Rule 21(b).
IV
CAUSATION IN FACT
To receive compensation under the Program, Petitioners must prove either l) that JR
suffered a "Table lnjury" ~ i.e., an iiijiiry falling within the Vaccine lnjury Table ~ corresponding
to one of JR’s vaccinations, or 2) that JR suffered an injury that was actually caused by a
vaccine. See §§ 300aa-l3(a)(l)(A) and 300aa-1l(c)(1). Under the Vaccine Act, a special master
cannot find that Petitioner has proven her case by a preponderance of the evidence, based upon
"the claims of a Petitioner alone, unsubstantiated by medical records or by medical opinion."
§300aa-13(a) (2006). Petitioner has failed to file sufficient evidence iii this case. An
examination of the filed medical records did not uncover any evidence that JR suffered a "Table
lnjury," or a vaccine-caused injury. Further, the letter of Dr. Scott S. Russell did 1101 state the
opinion that .lR’s autisin spectrum disorder was vaccine-caused
§Tlie petitioners in Snyder did not appeal the decision of the U.S. Court of Federal Claims.
4
Accordingly, it is clear from the record in this case that Petitioner has failed to
demonstrate either that JR suffered a "Table lnjury" or that JR’s injuries were "actually caused"
by a vaccination. Further, Petitioner has been repeatedly ordered since mid-2011 to file
complete medical records and an expert report opining that JR has a vaccine-caused injury, but
she has failed to do so, nor does it appear that there is any serious prospect that she will do so.
Therefore, despite my sympathy for Petitioner and for JR, this case is dismissed for insufficient
proof and for failure to pr0secute. The clerk shall enter judgment accordingly.
/ /
George L. Hastings, .r.
Special l\/laster
IT IS SO ORDERED.