Delguzzi v. Secretary of Health and Human Services

REISSUED FOR PUBLICATION JUL 16 2018 OSM U.S. COURT OF FEDERAL CLAIMS 3Jn tbe Wniteb ~tates QCourt of jfeberal QClaims OFFICE OF SPECIAL MASTERS No. 16-1350V Filed: June 14, 20 18 FILED ************* * * JUN 1~ 2018 STEPI IANIE DELGUZZI, as Mother and * Natural Guardian ofMinor, S. D., * U.S . COURT OF FEDERAL CLAIMS * Petitioner, * v. * Dismissal; Insufficient Proof of Causation; * Failure to Prosecute; Juvenile Rheumatoid SECRETARY OF HEALTH * Arthritis; Hepatitis A, Hib, Pneumococcal AND HUMAN SERVICES, * Conjugate ("PCV 13"), MMR, Hepatitis B, * and Varicella ("Flu") vaccinations; Respondent. * * ****** ******* * * Stephanie Delguzzi, Pro Se.

Robert P. Coleman, Ill, Esq., U.S. Department of Justice, Washington, DC, for respondent.

DECISION DISMISSING THE PETITION 1 Roth , Special Master: On October 14, 2016, Stephanie Delguzzi ("petitioner") filed a petition on behalf of her minor daughter, S.D., pursuant to the National Vaccine Injury Compensation Program.

Petitioner alleges that S.D. developed Juvenile Rheumatoid Arthritis and related sequela as a result of receiving the Hepatitis A, Hib, and Pneumococcal Conjugate ("PCV 13") vaccinations on October 25, 20 13, and MMR, Hepatitis B, and Varicella (" Flu") vaccinations on November 26, 2013. Petition, ECF No. 1.

On November 27, 20 17, petitioner's counsel filed a status report setting fmih details regarding petitioner's failure to cooperate in providing any additional evidence requested on multiple occasions, and counsel's need to file a Motion to Withdraw as Attorney of record. ECF

Because this unpublished decision contains a reasoned explanation for the action in this case, I intend to post this decision on the United States Court of Federal Claims' website, in accordance with the E-GovernmentActof2002, Pub. L. No. 107-347, § 205 , 116 Stat. 2899, 29 13 (codified as amended at44 U.S.C. § 3501 note (20 12)). In accordance with Vaccine Ru le 18(b), a patty has 14 days to identify and move to de lete medical o r other information that satisfies the criteria in 42 U.S.C. § 300aa-12(d)(4)(B). fu rther, consistent w ith the ru le requirement, a motion for redaction must include a proposed redacted decis ion. If, upon review, I agree that the identified material fits withi n the requirements of that provision , I wi ll delete such material from public access.

No. 20. Counsel indicated that he spoke with petitioner on September 20, 2017; sent her a letter memorializing their conversation on September 22, 2017; and attempted to contact petitioner on three separate occasions to no avail. 2 On December 27, 2017, petitioner's counsel filed a Motion for Attorneys' Fees and Costs, and a Decision granting same, was entered on January 9, 2018. ECF No. 25. Petitioner's counsel then filed a motion to be relieved as counsel, which was granted on January 10, 2018.

ECF No. 28. A copy of the order was mailed to petitioner with instructions to contact my law clerk by February 26, 2018, to schedule a status conference. Petitioner failed to do so or otherwise communicate with the Court.

As a result of petitioner's failure comply with the Comi's order, on March 7, 2018, the undersigned issued an Order to Show Cause, instructing petitioner to show cause as to why this case should not be dismissed for insufficient proof and failure to prosecute by April 23, 2018.

Order, ECF No. 31. On April 24, 2018, the Clerk of Court entered a docket entry noting that the Court's order was "Returned as Undeliverable."3 ECF No. 33. The Court issued another Order to Show Cause instructing the Clerk of Comito send a copy of the Order to petitioner via regular first class mail and certified mail. Order, ECF No. 33. On May 7, 2018, the Clerk of Court entered a docket entry noting that the Court's order was again "Returned as Undeliverable." 4 ECFNo. 34.

Under the Vaccine Act, a petitioner may prevail in one of two ways. First, a petitioner may demonstrate that he suffered a "Table" injury-i.e., an injury listed on the Vaccine Injury Table that occurred within the time period provided in the Table. § 11 (c )(1 )(C)(i). "In such a case, causation is presumed." Capizzano v. Sec'y o,fHealth & Human Servs., 440 F.3d 1317, 1320 (Fed. Cir. 2006); see§ 13(a)(l)(B). Second, where the alleged irijury is not listed in the Vaccine Injury Table, a petitioner may demonstrate that he suffered an "off-Table" injury.

§ 11 (c)(1 )(C)(ii). An "off-Table" claim requires that the petitioner "prove by a preponderance of the evidence that the vaccine at issue caused the injury." Capizzano, 440 F.3d at 1320; see § l(c)(l)(C)(ii)(Il). A petitioner need not show that the vaccination was the sole cause, or even the predominant cause, of the alleged injury; showing that the vaccination was a "substantial factor" and a "but for" cause of the injury is sufficient for recovery. Pafford v. Sec'y ofHealth & Human Servs., 451 F.3d 1352, 1355 (Fed. Cir. 2006); Shyface v. Sec'y of Health & Human Servs., 165 F.3d 1344, 1352 (Fed. Cir. 1999). In addition, the Vaccine Act requires petitioners to show by preponderant evidence that the "residual effects or complications" of the alleged vaccine-related injury lasted for more than six months. § 11 (c)(1 )(D)(i).

Due to petitioner's counsel's difficulties in communicating with petitioner, he was forced to hire a private investigator to locate petitioner in Florida after she moved leaving no forwarding address.

The docket entry contains the cetiified mail slip noting that the Order was "Refused" and returned to sender. See ECF No. 32.

The docket entry contains the ce1iified mail slip noting that the Order was "Refused" and returned to sender. See ECF No. 34.

In this case, petitioner does not allege an inj ury listed on the Vaccine Injury Table; thus, petitioner 's claim is classified as "off-Table," which requires that she "prove by a preponderance of the evidence that the vaccine at issue caused the inj ury." Capizzano, 440 F.3d at 1320. " [T]o show causation under the preponderance of the evidence standard," a petitioner "must proffer trustworthy testimony from experts who can find support for their theori es in medical literature." Lalonde v. Sec'y of Health & Human Servs., 746 F.3d 1334, 1341 (Fed. Cir. 20 14); see also Althen, 418 F.3d at 1278 (explaining that a petitioner's claim must be "supported by 'reputable medical or scientific explanation,' i. e., 'evidence in the form of scientific studies or expe1t medical testimony"' (citation and alteration omitted)); Shyface, 165 F.3d at 1351 ("[E]vidence in the form of scientific studies or expert medical testimony is necessary to demonstrate causation." (ci tation and emphasis omitted)).

The undersigned ordered petitioner to contact the Court to schedule a status conference s ix-months ago, which petitioner has failed to do. Thereafter, two Orders to Show Cause were issued and sent to petitioner by mail, but were "Refused" from the postal service. It is petitioner's obligation to follow Court orders. Failure to follow Court orders, as well as failure to file sufficient medical records or an expert medical opinion, can result in dismissal of a petitioner's claims. See e.g., Tsekouras v. Sec '.Y of Health & Human Servs., 26 C l. Ct. 439, 441 ( 1992), aff'd, 991 F.2d 810 (Fed. C ir. 1993); Sapharas v. Sec '.Y of Health & IIuman Servs., 35 Fed. Cl. 503, 504 (1996); see also Vaccine Rule 2 l (b).

The petitioner herein refused to cooperate with counsel or comply with Court orders.

The evidence submitted in this matter by petitioner, after careful review, does not show by preponderant evidence that she is entitled to compensation under the Vaccine Act. Petitioner has fa iled to offer any evidence showing that the vaccinations S.D. received caused her alleged injuries. This case is th erefore DISMISSED for insufficient proof and failu re to prosecute.

The clerk shall enter judgment accordingly. _._: .

IT IS SO ORDERED. ,; / I) ~ Date: ~/;4 . // O '~1~M -- = Mindy Michl els Roth Special Mapter