UNPUBLISHED

DECISION1

THOMAS L. GOWEN, Special Master.

On November 20, 2017, Indigo Grant, as parent and natural guardian of her minor daughter M.G. ("petitioner"), filed a petition for compensation in the National Vaccine Injury Compensation Program.2 Petitioner's claim relates to M.G.'s receipt of diptheria-tetanus-acellular pertussis ("DTaP"), Haemophilus influenzae type B ("Hib"), and inactivated polio virus ("IPV") vaccines on December 30, 2014, as well as DTaP, Hib, IPV, and Pneumococcal vaccines on February 26, 2015. Petitioner alleges that as a result of these vaccines, M.G. suffered sepsis, severe dermal reactions, and eventually death on January 13, 2016. Petition (ECF No. 1). The information in the record, however, does not show entitlement to an award from the Vaccine Program.

I. Procedural History3

Before filing this petition, petitioner was initially in contact with one attorney with experience in the Vaccine Program, Mr. Bruce W. Slane.4 He obtained some of the medical records, then referred her case to attorney Renee J. Gentry. Ms. Gentry filed the petition, all records in support of the claim, and a statement of completion. After conducting a preliminary review of the case, on April 26, 2018, I ordered petitioner and Ms. Gentry to file an expert report in support of vaccine causation. Scheduling Order (ECF No. 16). After receiving several extensions of time totaling almost one year, on April 5, 2019, Ms. Gentry filed a motion to withdraw from this case. Mot. To Withdraw (ECF No. 27). On July 10, 2019, I held a telephonic status conference with petitioner, her counsel Ms. Gentry, and respondent's counsel. I stated that petitioner had the burden of supporting her claim via an expert report. Despite significant time and assistance from experienced counsel, she had not filed an expert report to date. Petitioner asserted that she was working to obtain additional medical records, timestamped photographs, toxicology testing, genetic testing, and an expert report. Ms. Gentry agreed to remain in the case and file those materials electronically for her. Accordingly, I deferred ruling on counsel's application for interim attorneys' fees and costs and counsel's motion to withdraw. Petitioner was ordered to file the additional materials and a supplemental statement of completion within 60 days, by September 13, 2019. Scheduling Order filed July 15, 2019 (ECF No. 38). Petitioner did not meet that deadline. Ms. Gentry secured an extension of time for petitioner to file the promised materials by October 17, 2019. Petitioner did not meet that deadline.

On October 17, 2019, Ms. Gentry filed a status report providing that repeated efforts to reach the petitioner had been unsuccessful. ECF No. 41. Ms. Gentry respectfully requested that her motion to withdraw be granted. Id. On October 29, 2019, I awarded Ms. Gentry interim attorneys' fees and costs. ECF No. 42.

After judgment entered on the award of interim attorneys' fees, on December 12, 2019, I granted Ms. Gentry's motion to withdraw from this case, leaving petitioner pro se. ECF No. 45. Also on December 12, 2019, I issued an "Order to Show Cause", which stated:

Order to Show Cause (ECF No. 47) at 2. Petitioner was "warned that her inaction and failure to abide by court orders may be interpreted as a failure to prosecute the claim, which can result in the dismissal of the petition. See Tsekouras v. Sec'y of Health & Human Servs., 26 Cl. Ct. 439 1992, aff'd per curiam without opin., 991 F.2d 810 (Fed. Cir. 1993); Sapharas v. Sec'y of Health & Human Servs., 35 Fed. Cl 503 (1996); Vaccine Rule 21(b)." Id. Petitioner was "ORDERED to file an expert report in support of her claim, additional photographs, medical records, testing, and a suppemental statement of completion (as detailed in my order filed July 15, 2019 (ECF No. 38)) OR show other cause why the petition should not be dismissed within 30 days, by Monday, January 13, 2020." Id. (emphasis in the original). "Failure to file a response to this Order to Show Cause will be interpreted as a failure to prosecute this claim, which will result in the dismissal of the petition." Id. (emphasis in the original). The Order to Show Cause was sent to petitioner at her last known address by certified mail. The deadline has passed and petitioner has not responded.

II. Analysis

Petitioner's claim may properly be dismissed for failure to comply with my orders. A petitioner's inaction and failure to abide by a special master's order risks dismissal of a claim. Tsekouras v. Sec'y of Health & Human Servs., 26 Cl. Ct. 439 1992, aff'd per curiam without opin., 991 F.2d 810 (Fed. Cir. 1993); Sapharas v. Sec'y of Health & Human Servs., 35 Fed. Cl 503 (1996); Vaccine Rule 21(b). Petitioner has not complied with multiple orders, dating back to April 2018, to file an expert report. After her counsel announced her intention to withdraw from the case in April 2019 but graciously offered to stay on temporarily to assist petitioner to file documents and communicate with the Court, petitioner seemed cooperative. But following the status conference in July 2019, petitioner discontinued contact with the attorney and with the court. I have provided petitioner more than enough time to prosecute this case first with the assistance of counsel, and then pro se, but she has not complied.

Additionally, petitioner's claim may properly be dismissed on substantive grounds. A petitioner has the burden of establishing entitlement to compensation through one of two ways. The first way is to establish that the vaccinee suffered a "Table Injury," i.e., that he or she received a vaccine listed on the Vaccine Injury Table and subsequently developed a corresponding injury within a corresponding period of time. § 300aa-11(c)(1). In the present case, petitioner does not allege, nor do the medical records indicate, that her minor daughter M.G. suffered a Table Injury.

Thus, petitioner must proceed on the second route — she must establish that the vaccine actually caused (or "caused in fact") the onset or significant aggravation of a condition suffered by M.G. § 300aa-13(a)(1)(A). Under the relevant test, petitioner must establish (1) a medical theory; (2) a logical sequence of cause and effect; and (3) a medically acceptable temporal relationship between the vaccination and the injury. Althen v. Sec'y of Health & Human Servs., 418 F.3d 1274, 1278 (Fed. Cir. 2005). Here, the medical records do not establish that any vaccines received by her minor daughter M.G. actually caused any of M.G.'s injuries or her death. Thus, I directed petitioner to file an expert report. At the start of the case, she was represented by an attorney with significant experience in the Vaccine Program, who was not able to obtain an expert report. The attorney then filed a motion to withdraw from the case. Upon reviewing the motion for interim attorneys' fees and costs — which respondent challenged, questioning whether there was reasonable basis to file the petition — I repeated the need for an expert report. ECF No. 42 at 8-9, also at 2019 WL 6588294 at *6-7. However, that was never filed. Therefore, it is appropriate to dismiss petitioner's claim for insufficient proof.

III. Conclusion

This case is dismissed for failure to prosecute and for insufficient proof. In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the Court is directed to enter judgment forthwith.5

IT IS SO ORDERED.