Abrams-Kelly v. Secretary of Health and Human Services

REISSUED FOR PUBLICATION

DEC 23 2020

OSM

U.S. COURT OF FEDERAL CLAIMS

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: November 24, 2020

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NICOLE ABRAMS-KELLY, * UNPUBLISHED

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Petitioner, * No. 19-1760V

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v. * Special Master Nora Beth Dorsey

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SECRETARY OF HEALTH * Dismissal Decision; Failure to Prosecute;

AND HUMAN SERVICES, * Insufficient Proof.

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Respondent. *

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Nicole Abrams-Kelly, pro se, Willingboro, NJ, for petitioner.

Kimberly S. Davey, U.S. Department of Justice, Washington, DC, for respondent.

DECISION1

I. INTRODUCTION

On November 15, 2019, Nicole Abrams-Kelly (“petitioner”) filed a petition pursuant to

the National Vaccine Injury Compensation Program (“Vaccine Act” or “the Program”), 42

U.S.C. § 300aa-10 et seq. (2012).2 Petitioner alleged that she suffered from hearing loss as a

result of an influenza (“flu”) vaccination allegedly administered on December 10, 2018. Petition

at 1-2 (ECF No. 1).

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Because this Decision contains a reasoned explanation for the action in this case, the

undersigned is required to post it on the United States Court of Federal Claims’ website 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, the undersigned

agrees that the identified material fits within this definition, the undersigned will redact such

material from public access.

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The National Vaccine Injury Compensation Program is set forth in Part 2 of the National

Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended,

42 U.S.C. §§ 300aa-10 to -34 (2012). All citations in this decision to individual sections of the

Vaccine Act are to 42 U.S.C. § 300aa.

Based on all the reasons set forth below and in the Show Cause Order dated September

10, 2020, and for failure to comply with the Show Cause Order, the undersigned dismisses this

case for failure to prosecute and insufficient proof.

II. PROCEDURAL HISTORY AND FACTUAL SUMMARY

Petitioner filed her claim on November 15, 2019, alleging she suffered hearing loss as a

result of a flu vaccination administered to her on December 10, 2018. Petition at 1-2. Attached

to petitioner’s petition was a record showing petitioner was prescribed Phenergan on December

27, 2017, a letter from Carolinas HealthCare System stating petitioner presented for an annual

wellness exam on September 23, 2016, a confirmation letter of a complaint petitioner filed with

the New Jersey Office of the Attorney General on June 19, 2019, and a list of medications

petitioner was prescribed on November 4, 2019. See generally Petition.

On November 15, 2019, the case was reassigned to the undersigned. Notice of

Reassignment dated Nov. 15, 2019 (ECF No. 7). On December 16, 2019, petitioner filed a

motion for leave to proceed in forma pauperis. Petitioner’s Motion for Leave to Proceed in

forma pauperis (“Pet. Mot.”), filed Dec. 16, 2019 (ECF No. 10). Petitioner’s motion was granted

on January 2, 2020. Order Granting Pet. Mot. dated Jan. 2, 2020 (ECF No. 11).

On January 30, 2020, petitioner filed various documents and medical records.3 ECF No.

14. These documents included a Records Request form from the New Jersey Judiciary, an e-

mail with the recipient crossed out, a photocopy of an Order from the Court of Federal Claims

directing respondent to appear, a photocopy from the Court of Federal Claims stating this case is

a Non-ECF case, a Willingboro municipal court order listing Mary Abrams as the defendant, and

the municipal court of Willingboro fining Mary Abrams for violation of Willingboro city statute.

See generally id.

On February 7, 2020, petitioner filed a medical records request form from V Lourdes

Medical Center, a photocopy of her driver’s license, and discharge summary from Virtua

Willingboro Hospital Emergency Department (“ED”) on September 25, 2019 for left ear pain

and fever. ECF No. 15 at 1-9. At the ED, petitioner was diagnosed with Acute Serous Otitis

Media and Otitis Externa. Id. at 9. At that time, petitioner told registered nurse (“RN”) Kerby

Cherubin that her earache was an ongoing issue since December 2018. Id. at 12. Dr. John-

Patrick Alvarez reported that petitioner stated her ear infection was due to “exposure to mold,”

which started in December 2018. Id. at 13. Petitioner stated she had presented to her primary

care provider and was prescribed Augmentin, but returned a few weeks later due to “re-

exposure” of mold. Id. Petitioner reported she had Crohn’s disease. Id. On examination

petitioner’s left ear canal was mildly inflamed. Id.

On March 16, 2020, petitioner filed additional documentation. ECF No. 18. Petitioner

filed copies of e-mails she sent requesting medical records, a prescription record for Mary

Abrams, a letter from the U.S. Office of Personnel Management regarding a number of

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Due to lack of pagination and exhibit numbers on the medical records and documents filed, the

undersigned will refer to the records by their docket entry numbers for convenience.

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complaints filed by petitioner, and a records release form for Cooper University Health. See

generally id.

On May 6, 2020, petitioner filed documents concerning a complaint against Liberty

Mutual; documents regarding homeowner’s insurance; a number of faxes, e-mails, and letters

petitioner sent and received regarding different court cases; an incident report from the

Willingboro police; and a number of petitioner’s handwritten notes concerning various matters.

ECF No. 22.

Similarly, on May 27, 2020, petitioner filed her handwritten notes, letters and paperwork

petitioner received concerning various complaints petitioner filed in North Carolina and New

Jersey, and a copy of an Order from the Court of Federal Claims sent to petitioner requesting

medical records and proof of vaccination. ECF No. 24.

On June 22, 2020, petitioner filed medical records from Atrium Health, as well as various

other documents. ECF No. 27. Petitioners records show she received the flu vaccine on October

2, 2014 and on November 23, 2016. Id. at 2. An office visit note by Dr. Adrian Hurst from

Carolinas HealthCare System on September 23, 2016, noted petitioner was in overall good

health. Id. at 4. Petitioner also filed a complaint of mail fraud, ID fraud, and a Ponzi scheme

against the undersigned for not being in receipt of medical records she alleged she sent. Id. at

16-17. Petitioner filed additional documents regarding mail fraud complaints against other two

other institutions on July 13, 2020. ECF No. 30.

On August 12, 2020, petitioner filed documents including two letters from a law firm

stating they do not represent petitioner in her vaccine-related matter, a letter from the New Jersey

Office of Attorney General, Division of Consumer Affairs Board dismissing petitioner’s

complaint against Cooper University Healthcare, and a copy of this Court’s previous Order to

petitioner. ECF No. 33.

On September 10, 2020, a status conference was held with the parties. During the status

conference, the undersigned explained that petitioner had not filed proof of vaccination for the

alleged injury in 2018. See Order to Show Cause dated Sept. 10, 2020, at 1 (ECF No. 36).

Additionally, medical records filed by petitioner state petitioner’s ear infection was due to

exposure from mold. Id. After the status conference, the undersigned filed an Order to Show

Cause stating,

[p]resently, there is no evidence in the record to suggest that petitioner has a

hearing loss, permanent or otherwise. Also, there is no evidence in the record to

suggest that even if petitioner has a hearing loss, that it was caused by her receipt

of a flu vaccine. . . . [I]n order to pursue her case further, petitioner will have to

file evidence to show that she received a flu vaccination in 2018, and that she

suffered an injury as a result of the flu vaccine.

Id. In September and October 2020, petitioner filed additional documentation. ECF Nos. 37-39.

However, petitioner did not file any additional evidence to show that she received the alleged

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vaccine. Further, she did not file any evidence to show that she sustained a vaccine-related

injury.

This matter is now ripe for adjudication.

III. ANALYSIS

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

dismiss the case. Sapharas v. Sec’y of Health & Hum. Servs., 35 Fed. Cl. 503 (1996); Tsekouras

v. Sec’y of Health & Hum. Servs., 26 Cl. Ct. 439 (1992), aff’d, 991 F.2d 819 (Fed. Cir. 1993);

Vaccine Rule 21(c); see also Claude E. Atkins Enters., Inc. v. United States, 889 F.2d 1180,

1183 (Fed. Cir. 1990) (affirming dismissal of case for failure to prosecute for counsel’s failure to

submit pre-trial memorandum); 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 file complete medical records and failure to file any proof of vaccination indicates a

disinterest in pursuing her claim. Thus, the undersigned finds it appropriate to dismiss this case

for failure to prosecute.

Additionally, to receive compensation under the Act, a petitioner must prove either (1)

that she suffered a “Table Injury”—i.e., an injury falling within the Vaccine Injury Table—

corresponding to one of her vaccinations, or (2) that she suffered an injury that was actually

caused by a vaccine. See §§ 11(c)(1), 13(a)(1)(A).

Here, a review of the records does not show that the petitioner suffered a “Table Injury.”

Further, although petitioner filed medical records, the records did not include any documentation

that petitioner received the flu vaccine in question. Instead, the records show that petitioner

complained of mold exposure as the cause of her ear pain. Without evidence of vaccination, the

undersigned finds that the record does not support a claim under the Vaccine Act, or otherwise

include preponderant evidence demonstrating that petitioner sustained any vaccine injury. The

undersigned expresses her sympathy for petitioner, but unfortunately the case cannot proceed

without proof of vaccination.

Thus, this case is dismissed for failure to prosecute and for insufficient proof. The

Clerk shall enter judgment accordingly.

IT IS SO ORDERED.

s/Nora Beth Dorsey

Nora Beth Dorsey

Special Master

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