Grimes v. Secretary of Health and Human Services

• Court: United States Court of Federal Claims
• Decided: December 5, 2023
• Docket: 20-2082V
• Status: Unpublished

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-2082V

NURCYS GRIMES, Chief Special Master Corcoran

Petitioner, v. Filed: November 2, 2023

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

Alan Kenneth Nicolette, Nordstrom, Steele, et al., Tustin, CA, for Petitioner.

Benjamin Patrick Warder, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION DISMISSING PETITION1

On December 30, 2020, Nurcys Grimes filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). On September 14, 2021, she filed an amended petition setting forth additional facts based on the medical records. Amended Petition, ECF No. 19. Petitioner alleges that she suffered a shoulder injury related to vaccine administration as a result of an influenza vaccine that she received on October 7, 2019. Petition, ECF No. 1 at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters.

1 Because this unpublished Decision contains a reasoned explanation for the action in this case, it must be

made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government Services). This means the Decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access.

2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease

of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). On August 19, 2022, Respondent filed a combined Rule 4(c) Report and Motion to Dismiss challenging compensation, arguing that Petitioner could not demonstrate that she suffered the residual effects of her injury for greater than six months. ECF No. 32. Petitioner was ordered to file a brief addressing the duration of her shoulder injury by no later than December 22, 2022. However, as of today’s date – over ten months after the deadline – she has failed to file a response of any kind.

It is a petitioner's obligation to follow and respond to orders issued by a special master in a case. The failure to do so – whether on account of attorney error, inaction, or because a petitioner has failed to stay in contact and/or communicate with counsel - is grounds for the claim's dismissal. Padmanabhan v. Sec'y of Health & Human Servs., 638 Fed. App'x 1013 (Fed. Cir. 2016); Tsekouras v. Sec'y of Health & Human Servs., 26 Cl. Ct. 439 (1992), aff'd, 991 F.2d 810 (Fed. Cir. 1993) (per curiam), (“[c]ontrolling precedent considers dismissal appropriate when failure to act is deemed willful, when it is in violation of court orders, when it is repeated, and when clear warning is given that the sanction will be imposed”); see also Vaccine Rule 21(b) (“[t]he special master or the court may dismiss a petition or any claim therein for failure of the petitioner to prosecute or comply with these rules or any order of the special master or the court.”).

Here, Petitioner has not substantiated the disputed aspect of her claim by filing the brief I had ordered. She has also provided no reasonable justification for her failure to act, and has otherwise taken no action in this case in the almost year’s time since my last Order.

Accordingly, this case is DISMISSED for failure to prosecute and failure to follow orders. The Clerk of Court shall enter judgment accordingly.

IT IS SO ORDERED.

s/Brian H. Corcoran Brian H. Corcoran Chief Special Master