Case Dismissed: Petitioner's Failure to Prosecute Vaccine Injury Claim

Strategic Insights -

Chief Special Master Brian H. Corcoran of the United States Court of Federal Claims dismissed a petition for compensation under the National Vaccine Injury Compensation Program, citing the petitioner's failure to prosecute and respond to orders despite ample opportunity. The petition was filed by Fred Allison, who alleged a shoulder injury related to vaccine administration resulting from receiving influenza and pneumonia vaccines on October 21, 2019. However, Petitioner's counsel failed to file an amended petition and even withdrew, citing the impossibility of preparing a petition without the petitioner's cooperation.

Key Takeaways:

  • The petition was filed on October 21, 2022, alleging a shoulder injury related to vaccine administration resulting from receiving influenza and pneumonia vaccines.
  • Petitioner's counsel withdrew on April 6, 2023, citing the impossibility of preparing a petition without the petitioner's cooperation.
  • Petitioner failed to file an amended petition and respond to orders, including a Show Cause Order issued on October 1, 2024.
  • The special master found that Petitioner's failure to respond was not due to attorney error or lack of opportunity, but rather the petitioner's own failure to cooperate with counsel.
  • The case was dismissed for failure to prosecute, in accordance with Vaccine Rule 21(b) and controlling precedent.

Statistics:

  • The petition was filed on October 21, 2022.
  • The last filing made by a party in this case was a status report filed on June 15, 2023.
  • The Show Cause Order was issued on October 1, 2024, and Petitioner was given until October 31, 2024, to respond.
  • 100% of the claims filed by Petitioner's counsel have been dismissed for failure to prosecute.
  • The case has been dismissed for failure to prosecute for the second time, following consideration of a previous motion for extension of time to file documentation.

Sources:

  • National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755.
  • 42 U.S.C. §300aa (2012).
  • Vaccine Rule 18(b).
  • Vaccine Rule 21(b).
  • Tsekouras v. Sec'y of Health & Human Servs., 26 Cl. Ct. 439 (1992), aff'd, 991 F.2d 810 (Fed. Cir. 1993).
  • Sapharas v. Sec'y of Health & Human Servs., 35 Fed. Cl. 503 (1996).
  • E-Government Act of 2002, 44 U.S.C. § 3501 note (2012).