Judges: Nora Beth Dorsey
Filed: Mar. 15, 2017
Latest Update: Mar. 03, 2020
Summary: REISSUED FOR PUBLICATION l 15 MAR 2017 OSM U.S. COURT OF FEDERL CLAIMS 3Jn tbe Wniteb ~tates ~ourt of jfeberal ~!aims OFFICE OF SPECIAL MASTERS Filed: February 17, 20 17 FILED * * * * * * * * * * * * * FEB 17 2017 * AMY US CHER, on behalf of her minor child, M.U., * UNPUBLISHED U.S. COURT OF FEDERAL CLAIMS * Petitioner, * 15-798V * v. * Chief Special Master Dorsey * SECRETARY Of HEALTH * Vaccine Act Entitlement AND HUMAN SERVICES, * Consultation; Petitioner' s * Unreimbursed Costs Respondent. *
Summary: REISSUED FOR PUBLICATION l 15 MAR 2017 OSM U.S. COURT OF FEDERL CLAIMS 3Jn tbe Wniteb ~tates ~ourt of jfeberal ~!aims OFFICE OF SPECIAL MASTERS Filed: February 17, 20 17 FILED * * * * * * * * * * * * * FEB 17 2017 * AMY US CHER, on behalf of her minor child, M.U., * UNPUBLISHED U.S. COURT OF FEDERAL CLAIMS * Petitioner, * 15-798V * v. * Chief Special Master Dorsey * SECRETARY Of HEALTH * Vaccine Act Entitlement AND HUMAN SERVICES, * Consultation; Petitioner' s * Unreimbursed Costs Respondent. * *..
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REISSUED FOR PUBLICATION
l 15 MAR 2017
OSM
U.S. COURT OF FEDERL CLAIMS
3Jn tbe Wniteb ~tates ~ourt of jfeberal ~!aims
OFFICE OF SPECIAL MASTERS
Filed: February 17, 20 17 FILED
* * * * * * * * * * * * * FEB 17 2017
*
AMY US CHER, on behalf of her
minor child, M.U., * UNPUBLISHED U.S. COURT OF
FEDERAL CLAIMS
*
Petitioner, * 15-798V
*
v. * Chief Special Master Dorsey
*
SECRETARY Of HEALTH * Vaccine Act Entitlement
AND HUMAN SERVICES, * Consultation; Petitioner' s
* Unreimbursed Costs
Respondent. *
* * * * * * * * * * * * *
Amy Uscher, Senoia, GA, prose.
Christine M. Bccer, United States Department of Justice, Washington, DC, for respondent.
DECISION DISMISSING PETITION 1
On July 28, 2015, Amy Uscher ("petitioner") filed a petition on behalf of her minor chj ld,
M.U., pursuant to the National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-1 to
34 (2012). 2 Petitioner filed an Amended Petition on September 29, 2015. Petitioner alleged that
as a result of receiving "vaccinations" on July 16, 2012, M.U. became non-verbal and exhibited
mood swings and tantrums. Amended Petition,~ 8. Petitioner further alleged that M.U. suffers
from a MTHFR gene mutation that made her "more likely to suffer a vaccine-induced
complication." kL_ at~~ 9- 11 .
1
Because this decision contains a reasoned explanation for the undersigned 's action in this case,
the undersigned intends to post this ruling on the website of the United States Court of Federal
Claims, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012)
(Federal Management and Promotion of Electronic Government Services). As provided by
Vaccine Rule J 8(b), each party has 14 days within which to request redaction "of any
information furnished by that party: (1) that is a trade secret or commercial or financial in
substance and is privileged or confidential; or (2) that includes medical files or similar files, the
disclosure of which would constitute a clearly unwarranted invasion of privacy." Vaccine Rule
18(b).
2
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 (20 12). All citations in this decision to individual sections of the
Vaccine Act are to 42 U.S .C. § 300aa.
On May 3, 2016, petitioner's counsel, Mr. Andrew Downing, filed a motion for interim
attorneys' fees and costs and a motion to withdraw from the case. ECF Nos. 31, 32. The
undersigned awarded interim attorneys' fees and costs to petitioner on June 15, 2016. Decision
entered on June 15, 2016 (ECF No. 34). The undersigned granted Mr. Downing's motion to
withdraw from the case on July 11, 2016. Decision entered on July 11, 2016 (ECF No. 38).
On July 28, 2016, the undersigned held a status conference. See Scheduling Order
entered on July 29, 2016. Petitioner appeared prose and Ms. Christine Becer appeared on behalf
of respondent. Id. The undersigned had reviewed petitioner's medical records and she provided
her preliminary tentative findings as to why the medical records did not show causation between
the vaccines M.U. received and the injuries alleged. Petitioner has not alleged a Table claim, and
there is no evidence of encephalopathy that would create a presumption of causation.
Accordingly, petitioner must demonstrate causation in fact, which requires setting forth a
medical theory of causation. Petitioner had submitted an expert report from Dr. Dickerson, who
opined that the vaccinations caused neurotoxic mercury and aluminum to accumulate in M.U.,
and that she was susceptible to these toxins due to her MTHFR gene mutation. See Pet. Ex. 13 at
1. The undersigned explained that a number of previous cases in the Vaccine Program had
examined theories involving mercury and/ or aluminum toxicity; MTHFR gene mutations; and
autism. In all of these cases, there was insufficient evidence to support causation. The
undersigned stated that based on her review of the medical records in this case, the theory of
causation suggested by Dr. Dickerson, and the theories of causation considered in prior Program
cases, she did not believe that petitioner could prevail in this case. Petitioner then requested one
final opportunity to file an expert report. The undersigned granted this request. She ordered
petitioner to file an expert report presenting different theories than those presented by Dr.
Dickerson within sixty days, no later than September 26, 2016.
On September I, 2016, petitioner contacted chambers by phone and requested an
extension of time to file the expert report. The undersigned granted the motion and extended
petitioner's deadline to November 15, 2016. See Order filed on September 6, 2016 (ECF No.
41 ). Petitioner did not meet this deadline. Petitioner filed additional medical records on October
5, 2016. See Exhibit 7a (ECF No. 43). On November 17, 2016, petitioner filed a letter to the
undersigned and additional articles. See ECF No. 43.
The undersigned held a status conference with petitioner and Ms. Becer on January 10,
2017. See Scheduling Order entered on January 12, 2017 (ECF No. 46). During the status
conference, petitioner stated that she had retained an expert, who reviewed the medical records
but then declined to write a report in support of petitioner's claim. The undersigned stated that
petitioner was prudent to retain the expert, who agreed that there was insufficient evidence of
vaccine causation. The undersigned stated that petitioner had a reasonable basis for pursuing her
claim, including paying a retainer to the expert, up to the status conference on January 10, 2017.
Petitioner was entitled to request reimbursement of her costs, including the expert's retainer,
incurred before that point. However, after the status conference on January I 0, 2017, petitioner
no longer had a reasonable basis to proceed and she would not be reimbursed for costs incurred
after that point.
On February 1, 2017, petitioner filed a motion for reimbursement of costs. Pet'r's Mot.
(ECF No. 47). Petitioner requested reimbursement of$2,400.00 for the expert's retainer and
$500.00 for her own time on the case. Id. On February 6, 2017, the undersigned issued a
decision, which reimbursed petitioner for the full amount of the retainer and explained that
petitioner was not entitled to reimbursement for her own time. Decision (ECF No.48).
On January 12, 2017, the undersigned issued an Order to Show Cause why the case
should not be dismissed within thirty days, no later than February 13, 2017. See Order to Show
Cause entered on January 12, 2017 (ECF No. 45). The order stated that "[f]ailure to do so will
be interpreted as an inability to provide supporting documentation for this claim, constituting a
failure to prosecute, and the case will be dismissed with prejudice. To date, the undersigned has
not received any further documentation or communications from petitioner.
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 & Human Servs., 35 Fed. Cl. 503 (1996);
Tsekouras v. Sec'y of Health & Human Servs.,
26 Cl. Ct. 439 (1992), affd, 991F.2d819 (Fed.
Cir. 1993) (table); Vaccine Rule 2l(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).
Under the Vaccine Act, a petitioner may not be awarded compensation based solely on
petitioner's claims. Rather, the petition must be supported by either medical records or by the
opinion ofa competent physician. § 300aa-13(a)(l). In this case, the medical records are
insufficient to establish that the vaccine caused petitioner's injuries and the report from Dr.
Dickerson presents theories that have not prevailed in numerous past cases in the Program.
Therefore, petitioner must offer another expert report presenting another theory in support of her
claim. The undersigned has given petitioner over six months to obtain and file another expert
report. However, petitioner has not filed another expert report or given any indication that she
will be able to do so.
Therefore, this case is dismissed for failure to prosecute. The Clerk is directed to
ENTER JUDGMENT accordingly.
IT IS SO ORDERED.
Dated: .;/ - 17· Ci), 017 ~~~{_,VJ
Nora Beth Dorsey
Chief Special Master () '
