Dodson v. Secretary of the Department of Health & Human Services

28 Fed. Cl. 550, 1993 U.S. Claims LEXIS 69, 1993 WL 222783
CourtUnited States Court of Federal Claims
DecidedJune 10, 1993
DocketNo. 90-2278V
StatusPublished
Cited by1 cases

This text of 28 Fed. Cl. 550 (Dodson v. Secretary of the Department of Health & Human Services) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dodson v. Secretary of the Department of Health & Human Services, 28 Fed. Cl. 550, 1993 U.S. Claims LEXIS 69, 1993 WL 222783 (uscfc 1993).

Opinion

ORDER

HORN, Judge.

Petitioners in this case have brought a motion for review of a special master’s decision issued on November 23, 1992, dismissing their petition, with prejudice. Because petitioners failed to file their motion for review of the special master’s decision within 30 days of the issuance of that decision, as required by 42 U.S.C. § 300aa-12(e)(3) (Supp. 1 1990) and the Rules of the United States Court of Federal Claims (RCFC), App. J, Rule 23, this court, hereby, dismisses petitioners’ motion for review.

FACTS

On October 1, 1990, petitioners, David Mark Dodson, Harry Dodson and Patricia Dodson, filed a petition, by and through their attorney, James B. Dodson, for vaccine compensation, pursuant to the National Childhood Vaccine Compensation Act, 42 U.S.C. §§ 300aa-l through 300aa-34 (1988) (Vaccine Act).1 *III,Petitioners included certain medical records with their petition, but stated that “[petitioners have not yet compiled all relevant medical documents created over the past 37 years concerning David Mark Dodson prior to filing this Petition and have nonetheless filed this Petition with the available documents so as to avoid any bar by a statute of limitations.” The case was assigned to Chief Special Master Golkiewicz. After an initial review, the chief special master issued an order, dated December 14, 1990, requesting the missing [551]*551documents2 or affidavits attesting to their unavailability, and suspending the proceedings in the case for 60 days, “[t]o give petitioner time to complete its petition____” In this order, the chief special master warned the petitioners that “[fjailure to comply with this Order will result in a dismissal of this case with prejudice.”

On February 22, 1991, Archie L. Hay-man, Esq., entered a notice of appearance on behalf of petitioners and supplied an affidavit, signed by him, which, in relevant part, stated:

2. I have read the Order entered in this matter on December 14, 1990.
3. That after reviewing the petition in this matter I believe that it is complete except for the report of an expert medical witness.
4. That I do not believe a medical expert is needed at this stage in the process because the petition clearly establishes a table injury.
5. That if the court does not believe that the petition establishes a table injury petitioners are ready to hire a medical expert to substantiate a table injury.
6. That if the court does not believe that the affidavit submitted in this matter is detailed enough petitioners are ready and willing to provide a more detailed affidavit.

The chief special master issued a second order on April 28, 1992, again requiring petitioners to show cause why the petition should not be dismissed for failure to provide the required documentation. In the order, the chief special master explained that:

Under the Vaccine Act, a special master may not make a finding of entitlement based on the claims of petitioner alone unsubstantiated by medical records or medical opinion. § 13(a)(1). Petitioners are on notice that failure to timely file such documentation shall result in the dismissal of this claim pursuant to Vaccine Rule 21(c). [Emphasis in original.]

In the absence of certain medical records, petitioners were advised that they should provide expert medical opinion to document a nexus between the vaccination and the Table injury, or if the injury incurred was not a Table injury or was incurred outside the time frames of the Table, to document, by expert medical opinion, that the administration of the vaccine caused the injury. As stated by the chief special master, in his April 28, 1992 order:

If the injury is not a Table-listed injury or if the injury occurs outside the time frames of the Table, petitioner must submit the opinion of a qualified medical expert. This opinion should state, to a reasonable degree of medical probability, that the injured person suffered an injury that was actually caused in-fact by the administration of the vaccine in question. This opinion must also address the basis for the doctor’s opinion including references to peer-reviewed medical literature. [Emphasis in original.]

The chief special master pointed out in a footnote to his April 28, 1992 order that in the instant case “the first signs of neurological injury, including seizure disorder” occurred outside the three-day time frame set out in the Vaccine Table (42 U.S.C. § 300aa-14(a)(I)(D)).

The chief special master’s third order, issued on July 31, 1992, noted that the petitioners still had failed to respond to previous court orders. He, once again, extended the time for petitioners’ compliance with his orders to September 14, 1992. Again, the chief special master warned that failure to respond to the order “shall result in the dismissal of this petition pursuant to Vaccine Rule 21(c).” (Emphasis in original.)

On August 19, 1992, by notice from the clerk of the court, a copy of the Deposition of Patricia Dodson, received July 30, 1992, was returned to petitioners unfiled, pursuant to the chief special master’s instructions. The filing was defective in several respects, most significantly, it lacked a proof of service. The deposition was also [552]*552returned due to non-compliance with RGFC App. J, Rule 16, governing the correct caption for all filings, and failure to comply with RCFC App. J, Rule 17(d), requiring that an original and two copies of all filings be provided to the court. Nothing in the record suggests that this, or any other deposition, has been resubmitted to the court.

On November 23, 1992, more than three months after the petitioners failed to comply with the previous court orders, the chief special master dismissed the above-captioned petition with prejudice, having received no additional filings. Pursuant to 42 U.S.C. § 300aa-12(e)(3) (Supp. I 1989), the clerk of the court waited 30 days and then, because no motion for review was filed, entered final judgment dismissing the case on January 4, 1993, consistent with the chief special master’s decision dismissing the case. Subsequently, on January 25, 1993, 63 days after the issuance of the special master’s decision dismissing the petition, this court received petitioners’ “Motion for Review Pursuant to Vaccine Rule 12,” signed by their counsel, Archie L. Hayman, asking this court to review the chief special master’s decision dismissing the petition. The court notes that besides the untimeliness of petitioners attempt to file its motion for review, counsel for petitioners again failed to provide proof of service, as required by RCFC Rule 5(e), failed to identify the name of the special master on the face of the pleading, as required by United States Court of Federal Claims General Order 32, failed to provide an original copy, as required by RCFC Rule 83, and included an incorrect docket number.

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Bluebook (online)
28 Fed. Cl. 550, 1993 U.S. Claims LEXIS 69, 1993 WL 222783, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dodson-v-secretary-of-the-department-of-health-human-services-uscfc-1993.