Filed: Jan. 22, 2020
Latest Update: Jan. 22, 2020
Summary: (Not to be Published) DECISION DISMISSING CASE 1 BRIAN H. CORCORAN , Chief Special Master . On May 6, 2019, L. Ruther filed a petition ( pro se ) seeking compensation under the National Vaccine Injury Compensation Program ("Vaccine Program"). 2 Therein, Petitioner seems to seek compensation on behalf of his deceased nephew, Timothy Derringer, alleging that a flu vaccine Mr. Derringer received caused his death. Pet. at 1; see also ECF No. 10. Petitioner did not file with his Petition—a
Summary: (Not to be Published) DECISION DISMISSING CASE 1 BRIAN H. CORCORAN , Chief Special Master . On May 6, 2019, L. Ruther filed a petition ( pro se ) seeking compensation under the National Vaccine Injury Compensation Program ("Vaccine Program"). 2 Therein, Petitioner seems to seek compensation on behalf of his deceased nephew, Timothy Derringer, alleging that a flu vaccine Mr. Derringer received caused his death. Pet. at 1; see also ECF No. 10. Petitioner did not file with his Petition—an..
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(Not to be Published)
DECISION DISMISSING CASE1
BRIAN H. CORCORAN, Chief Special Master.
On May 6, 2019, L. Ruther filed a petition (pro se) seeking compensation under the National Vaccine Injury Compensation Program ("Vaccine Program").2 Therein, Petitioner seems to seek compensation on behalf of his deceased nephew, Timothy Derringer, alleging that a flu vaccine Mr. Derringer received caused his death. Pet. at 1; see also ECF No. 10. Petitioner did not file with his Petition—and to this date has still not filed—any medical records or other evidence to support his claim, however, nor was it self-evident from the Petition when the relevant vaccine was administered or when Mr. Derringer died.
On June 4, 2019, the first status conference in this matter was held. At this time, I explained to Petitioner that Section 16(a)(3) imposes a strict two-year statute of limitations in cases of alleged vaccine-related death. Id. I therefore asked Petitioner to clarify factually some of his allegations relevant to the claim's timeliness. I also encouraged Petitioner to begin seeking relevant medical records to his claim as soon as possible. Id. Later, Respondent assisted Petitioner in this undertaking. (ECF Nos. 22, 25).
During another status conference on October 11, 2019 (ECF No. 27), Petitioner indicated that that Mr. Derringer might have died about five years ago. I explained to Petitioner that this likely meant his claim was time barred pursuant to Section 16(a)(2) or (3). I therefore informed Petitioner that he would have to so show cause. On October 15, 2019, I set a deadline of November 15, 2019, for Petitioner to show cause. (ECF No. 29). Petitioner did not respond, and I issued two more orders instructing Petitioner to respond or risk having his case dismissed. (ECF Nos. 30, 31). None received a response.
Inaction and failure to abide by court orders is grounds for dismissal of a Vaccine Program claim. Tsekouras v. Sec'y of Health & Human Servs., 26 Cl. Ct. 439 (1992), 991 F.2d 810 (Fed. Cir. 1993), aff'd per curiam without opin.; Sapharas v. Sec'y of Health & Human Servs., 35 Fed. Cl. 503 (1996); Vaccine Rule 21(b). Petitioner has not filed any supporting information regarding his claim despite repeated warnings and opportunities to do so. See (ECF Nos. 29, 30, 31).
Under the Vaccine Act, a petitioner may not receive an award of compensation based on his claims alone. In this case, there is insufficient evidence for Petitioner to meet his burden of proof, or to establish the timeliness of the present claim. Accordingly, in keeping with Section 11(c)(1)(A), his claim cannot succeed and must be dismissed.
I hereby DISMISS Petitioner's case. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court SHALL ENTER JUDGMENT in accordance with the terms of this decision.3
IT IS SO ORDERED.
