VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_06-vv-00809 Package ID: USCOURTS-cofc-1_06-vv-00809 Petitioner: RCB Filed: 2006-11-27 Decided: 2016-01-29 Vaccine: Vaccination date: Condition: Autism Outcome: dismissed Award amount USD: AI-assisted case summary: On November 27, 2006, Robert T. Bevill and Janice Bevill, parents and natural guardians of a minor child identified as RCB, filed a Petition for Vaccine Compensation. They alleged that RCB was injured by a vaccine or vaccines listed on the Vaccine Injury Table. The case was assigned to Special Master George L. Hastings, Jr. The public decision does not specify the vaccine(s) or the date(s) of vaccination, nor does it detail the alleged condition beyond the general category of Autism. The Petitioners' counsel was Richard Gage. The Secretary of Health and Human Services was the Respondent, represented by counsel not named in the public text. Special Master Hastings issued a decision on September 14, 2015, dismissing the petition. The dismissal was based on the Petitioners' failure to prosecute the case and failure to follow court orders. Over a period of more than eight years, Petitioners were unable to produce an expert report to support their claim. Despite multiple orders to file an expert report, and numerous granted enlargements of time, the report was never filed. The Special Master issued several Orders to Show Cause due to the delays and failure to comply with court directives. Petitioners repeatedly sought additional medical testing for RCB and consultations with potential experts, requesting suspensions of proceedings, which were sometimes granted temporarily but always with a directive to file the expert report by a specific deadline. The final deadline for the expert report was July 15, 2015. Petitioners did not file the report by this date, nor did they request further time. Instead, they submitted a status report indicating ongoing efforts for testing and expert consultations. The Special Master then ordered a written statement from their expert explaining the relevance of the requested testing and providing a plausible reason to expect a viable expert opinion. Petitioners failed to file this statement or any other response by the September 3, 2015 deadline. Consequently, the petition was dismissed for failure to prosecute and failure to follow court orders. Following the dismissal, on January 4, 2016, the parties filed a joint stipulation concerning attorneys' fees and costs. Special Master Hastings issued a decision on January 29, 2016, awarding fees and costs. He found that the Petition was filed and pursued in good faith and with a reasonable basis. The total award was $7,267.25, comprising $7,107.25 for attorneys' fees and costs incurred by counsel's law firm, and $250.00 for costs expended by the Petitioners. A lump sum of $7,017.25 was payable jointly to Petitioners and their counsel, Richard Gage. A lump sum of $250.00 was payable to Petitioners for their own litigation expenses. The public decision does not describe the specific mechanism of injury alleged or any expert testimony presented. Theory of causation field: The Petitioners alleged that childhood vaccinations caused Autism in the minor child, RCB. The case was dismissed by Special Master George L. Hastings, Jr. on September 14, 2015, for failure to prosecute and failure to follow court orders, as Petitioners were unable to produce an expert report or evidence of causation after more than eight years of proceedings. The public decision does not specify the vaccine(s) or vaccination date(s), nor does it detail the specific theory of causation or any expert testimony. A subsequent decision on January 29, 2016, awarded attorneys' fees and costs totaling $7,267.25, finding the petition was pursued in good faith and with a reasonable basis, despite the dismissal on procedural grounds. Petitioners' counsel was Richard Gage. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_06-vv-00809-0 Date issued/filed: 2015-10-06 Pages: 2 Docket text: PUBLIC DECISION (Originally filed: 09/14/2015) regarding 77 DECISION of Special Master Signed by Special Master George L. Hastings. (jtl) Copy to parties. -------------------------------------------------------------------------------- Case 1:06-vv-00809-UNJ Document 78 Filed 10/06/15 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 06-809V Filed: September 14, 2015 Not to be Published * * * * * * * * * * * * * * * * * * * * * * * * * * ROBERT T. BEVILL and * JANICE BEVILL, parents and * natural guardians of RCB, a minor, * * Petitioners, * * Autism; Failure to Prosecute; v. * Failure to Follow Court * Orders; Dismissal SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * * * * * * * * * * * * DECISION DISMISSING PETITION On November 27, 2006, Petitioners filed a Petition for Vaccine Compensation in the National Vaccine Injury Compensation Program,1 alleging that RCB was injured by a vaccine or vaccines listed on the Vaccine Injury Table. See ' 14. I hereby dismiss this petition because Petitioners have failed to prosecute or prove this case. For more than eight years, Petitioners have been unable to produce an expert report in support of their claim. On July 25, 2012, Petitioners were ordered to file an expert report within 90 days. (ECF No. 21.) Thereafter, several requests for enlargements of time to file Petitioners’ expert report were granted. (See ECF Nos. 27, 30, 34.) On April 8, 2013, when Petitioners’ expert report was long overdue, I filed an Order to Show Cause why this Petition should not be dismissed, due to Petitioners’ failure to prosecute. (ECF No. 36.) Petitioners filed a timely response indicating that they were seeking additional medical testing for RCB, and consulting a potential expert. (Status Report, ECF No. 37.) Petitioners filed additional status reports to update the court concerning their efforts to schedule further medical tests and provide an expert report based on those test results. (ECF Nos. 39, 47, 54.) On September 6, 2013, Petitioners were again ordered to file an expert report 1 The Program comprises 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 et seq. (hereinafter “Vaccine Act” or “the Act”). Hereafter, individual section references will be to 42 U.S.C. § 300aa of the Act. Case 1:06-vv-00809-UNJ Document 78 Filed 10/06/15 Page 2 of 2 in support of their Petition, by December 2, 2013. (ECF No. 48.) Petitioners then filed a series of requests for additional time. These requests were granted, and a new deadline for Petitioners’ expert report was assigned on each occasion. (See Orders, ECF Nos. 57, 59, 61, 63.) On June 18, 2014, Petitioners filed a Motion requesting an unlimited suspension of proceedings. (ECF No. 64.) Respondent objected. (ECF No. 65.) A status conference was convened to discuss this matter, which resulted in an Order allowing only a temporary suspension and directing Petitioners to file their expert report by October 23, 2014. (ECF No. 66.) Petitioners did not file an expert report on that date, nor did they request additional time to do so. Therefore, I filed a second Order to Show Cause why the case should not be dismissed, for failure to follow a court order. (Order, filed 11/12/24, ECF No. 67.) In response, Petitioners filed a status report indicating that RCB’s medical history was currently being evaluated by two potential experts who might be willing to opine in support of their Petition. (ECF No. 68.) On January 15, 2015, Petitioners again requested an unlimited suspension of proceedings, because they had been unable to obtain the medical tests that their experts had requested. (Status Report, ECF No. 70.) I denied Petitioners’ request for an indefinite suspension, but assigned a new deadline for Petitioners’ expert report, on April 16, 2015. (Order, filed 1/16/15, ECF No. 71.) On April 16, 2015, Petitioners filed yet another Motion for an enlargement of time. (Motion, ECF No. 72.) I granted that Motion, allowing Petitioners until July 15, 2015, to file their expert report. (Order, ECF No. 73.) Petitioners did not file a timely expert report, nor did they request more time to do so. On July 17, 2015, I issued a third Show Cause Order. (ECF No. 74.) Petitioners were advised that failure to follow court orders would result in dismissal of Petitioners’ claim. Tsekouras v. Sec’y, HHS, 26 Cl. Ct. 439 (1992), aff’d per curiam, 991 F.2d 810 (Fed. Cir. 1993); Sapharas v. Sec’y, HHS, 35 Fed. Cl. 503 (1996); Vaccine Rule 21(b). (Id.) Instead of filing an appropriate response, Petitioners submitted a Status Report on August 15, 2015, indicating that they were still seeking additional medical testing for RCB, and further consultations with potential experts. (ECF No. 75.) On August 5, 2015, I filed an Order directing Petitioners to provide a written statement by their expert explaining the relevance of such testing. (ECF No. 76.) I allowed Petitioners until September 3, 2015, to file that statement and to provide “some kind of plausible reason to expect that a viable expert opinion concerning causation might be obtained,” if more time were allowed. (Id.) Petitioners have not filed a statement from their medical expert, nor any other response to my Order. Accordingly, this case is dismissed for failure to prosecute and failure to follow court orders. The clerk shall enter judgment accordingly. IT IS SO ORDERED. /s/ George L. Hastings, Jr. George L. Hastings, Jr. Special Master 2 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_06-vv-00809-1 Date issued/filed: 2016-01-29 Pages: 2 Docket text: PUBLIC DECISION (Originally filed: 01/06/2016) regarding 83 DECISION Fees Stipulation/Proffer Signed by Special Master George L. Hastings. (jtl) Copy to parties. -------------------------------------------------------------------------------- Case 1:06-vv-00809-UNJ Document 86 Filed 01/29/16 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 06-809V (Not to be published) * * * * * * * * * * * * * * * * * * * * * * * * * * ROBERT T. BEVILL * and JANICE BEVILL, parents and * natural guardians of RCB, a minor, * * Petitioners, * * Filed: January 6, 2016 v. * * Decision on Attorneys’ SECRETARY OF HEALTH AND * Fees and Costs HUMAN SERVICES * * Respondent. * * * * * * * * * * * * * * * * * * * * * * * * * * * DECISION (ATTORNEYS’ FEES AND COSTS) In this case under the National Vaccine Injury Compensation Program,1 I issued a Decision on September 14, 2015. On January 4, 2016, the parties filed a joint stipulation of fact concerning attorneys’ fees and costs in this matter. The parties’ stipulation requests a total payment of $7,267.25, representing attorneys’ fees and costs of $7,107.25, and $250.00 of costs expended by Petitioners. I find that this Petition was filed and pursued in good faith and with a reasonable basis. Thus, an award for fees and costs is appropriate at this time, pursuant to 42 U.S.C. § 300aa-15(b) and (e)(1). Further, the proposed amounts seem reasonable and appropriate. Accordingly, I hereby award the following attorneys’ fees and costs pursuant to 42 U.S.C. § 300aa-15(b) and (e)(1): • a lump sum of $7,017.25, in the form of a check payable jointly to Petitioners and Petitioners’ counsel, Richard Gage, on account of services performed by counsel’s law firm. 1 The applicable statutory provisions defining the program are found at 42 U.S.C. § 300aa-10 et seq. (2012). Case 1:06-vv-00809-UNJ Document 86 Filed 01/29/16 Page 2 of 2 • a lump sum of $250.00, in the form of a check payable to Petitioners, which represents Petitioners’ own litigation expenses in this case. In the absence of a timely-filed motion for review filed pursuant to Appendix B of the Rules of the U.S. Court of Federal Claims, the clerk of the court shall enter judgment in accordance herewith.2 IT IS SO ORDERED /s/ George L. Hastings, Jr. George L. Hastings, Jr. Special Master 2 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing the right to seek review.