VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_09-vv-00480
Package ID: USCOURTS-cofc-1_09-vv-00480
Petitioner: DCS
Filed: 2009-07-24
Decided: 2015-10-26
Vaccine: 
Vaccination date: 
Condition: Autism
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
On July 24, 2009, Adam C. Simon and Nicole M. Simon, parents and natural guardians of DCS, a minor, filed a petition for vaccine compensation alleging that DCS was injured by a vaccine or vaccines listed on the Vaccine Injury Table. The case proceeded for over six years. During this time, the petitioners were repeatedly ordered to file an expert medical report to support their claim of autism. Despite numerous extensions and status reports filed over the years, the petitioners failed to produce the required expert report. On March 2, 2015, petitioners' counsel filed a status report indicating they would soon file a motion for interim attorneys' fees and costs and a motion to withdraw as counsel. The Special Master noted the pending withdrawal and put the pro se petitioners on notice that they would need to represent themselves and should proceed with efforts to obtain an expert medical report. Following the withdrawal of counsel, the Special Master reiterated the instruction to the pro se petitioners to file a medical doctor's opinion by July 30, 2015. On July 29, 2015, the petitioners filed a status report requesting additional time. On August 7, 2015, a decision was issued awarding supplemental interim attorneys' fees and costs of $5,000.00, payable jointly to the petitioners and their counsel, Robert J. Krakow. On October 8, 2015, the Special Master issued a decision dismissing the petition. The dismissal was based on the petitioners' failure to prosecute the case and failure to follow court orders, specifically their inability to produce an expert report in support of their claim for over six years. The petitioners were given a final warning that failure to file an expert report by October 5, 2015, would result in dismissal. The petitioners did not file a timely expert report nor request further time. The Special Master, George L. Hastings, Jr., dismissed the petition for failure to prosecute and failure to follow court orders.

Theory of causation field:
Petitioners filed a petition for vaccine compensation on July 24, 2009, alleging injury to minor DCS by a vaccine or vaccines listed on the Vaccine Injury Table, with the condition alleged being autism. The case was dismissed on October 8, 2015, by Special Master George L. Hastings, Jr., for failure to prosecute and failure to follow court orders. The dismissal stemmed from the petitioners' inability to produce an expert medical report to support their claim of autism over a period of more than six years, despite repeated orders and extensions. The public decision does not describe the specific vaccine(s) or vaccination date(s), the age of the minor at vaccination, the specific symptoms, medical tests, treatments, or the mechanism of injury. No experts were named in the public decision. The theory of causation was based on the Vaccine Injury Table, but the case was dismissed before any evidence of causation could be presented or evaluated due to the petitioners' failure to prosecute. Petitioners' counsel, Robert J. Krakow, was awarded supplemental interim attorneys' fees and costs of $5,000.00 on August 7, 2015.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_09-vv-00480-0
Date issued/filed: 2015-08-07
Pages: 2
Docket text: PUBLIC DECISION (Originally filed: 7/16/15) regarding 84 DECISION Interim Fees Stipulation/Proffer Signed by Special Master George L. Hastings. (jtl) Copy to parties.
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Case 1:09-vv-00480-UNJ Document 92 Filed 08/07/15 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 09-480V
Filed: July 16, 2015
(Not to be Published)
* * * * * * * * * * * * * * * * * * * * * * * * *
*
ADAM C. SIMON and *
NICOLE M. SIMON, parents and *
natural guardians of DCS, a minor, *
*
Petitioners, * Decision on Interim
* Attorneys’ Fees and Costs
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES *
*
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * * *
DECISION AWARDING SUPPLEMENTAL INTERIM ATTORNEYS’
FEES AND COSTS
On July 24, 2009, Petitioners filed a Petition for Vaccine Compensation in the National
Vaccine Injury Compensation Program (“the Program”),1 alleging that DCS was injured by a
vaccine or vaccines listed on the Vaccine Injury Table. See § 14. On May 17, 2015, Petitioners
filed a motion for interim attorneys’ fees and costs. Respondent filed Objections to Petitioners’
motion on May 21, 2015. On June 25, 2015, I issued a Decision awarding interim attorneys’
fees and costs in this case.
On July 16, 2015, the parties filed a joint stipulation concerning supplemental interim
attorney’s fees and costs incurred in this matter. The parties’ stipulation requests a total payment
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.
1

Case 1:09-vv-00480-UNJ Document 92 Filed 08/07/15 Page 2 of 2
of $5,000.00, representing additional attorneys’ fees and costs. Respondent does not object to an
award of this amount.2
I find that a supplemental award of interim attorneys’ fees and costs is appropriate in this
case. Interim attorneys’ fees and costs are explicitly authorized by the binding precedent of the
United States Court of Appeals for the Federal Circuit. Avera v. HHS, 515 F.3d. 1343; Shaw v.
HHS, 609 F.3d 1372, 1374 (Fed. Cir. 2010) (“the Vaccine Act permits [an] award of interim fees
and costs”); Cloer v. HHS, 675 F.3d 1358, 1361-62 (Fed. Cir. 2012) (“Congress made clear that
denying interim attorneys’ fees under the Vaccine Act is contrary to an underlying purpose of the
Vaccine Act.”). See also Vaccine Rule 13(b).
The request for supplemental interim attorneys’ fees and costs is hereby granted. I
find that the petition was brought in good faith and upon a reasonable basis, and the amount
requested is 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 $5,000.00, in the form of a check payable jointly to Petitioners
and Petitioners’ counsel, Robert J. Krakow, on account of services performed
by counsel’s law firm.
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.3
IT IS SO ORDERED.
/s/ George L. Hastings, Jr.
George L. Hastings, Jr.
Special Master
2 The parties’ stipulation includes a footnote indicating that respondent maintains that the Vaccine Act does not
authorize the requested interim fees. However, that footnote also states that respondent elects not to raise that
statutory objection at this time.
3 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review. See
Vaccine Rule 11(a).
2

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DOCUMENT 2: USCOURTS-cofc-1_09-vv-00480-1
Date issued/filed: 2015-10-26
Pages: 2
Docket text: PUBLIC DECISION (Originally filed: 10/08/2015) regarding 94 DECISION of Special Master Signed by Special Master George L. Hastings. (jtl) Copy to parties.
--------------------------------------------------------------------------------
Case 1:09-vv-00480-UNJ Document 95 Filed 10/26/15 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 09-480V
Filed: October 8, 2015
Not to be Published
* * * * * * * * * * * * * * * * * * * * * * * * *
*
ADAM C. SIMON and *
NICOLE M. SIMON, parents and *
natural guardians of D.C.S., 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 July 24, 2009, Petitioners filed a Petition for Vaccine Compensation in the National
Vaccine Injury Compensation Program,1 alleging that D.C.S. 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 six years, Petitioners have been unable to produce an expert report in
support of their claim. On August 27, 2012, Petitioners were ordered to file an expert report
within 60 days, or periodic status reports describing their progress toward obtaining such report.
(ECF No. 24.) Over the next year, Petitioners filed a series of status reports indicating that more
time would be needed to provide Petitioners’ expert report. (See ECF Nos. 25, 27, 28, 29.)
On August 8, 2013, Petitioners were again ordered to file an expert report in support of
their Petition. (ECF No. 30.) Petitioners then filed a series of motions and status reports
indicating that Petitioners needed additional time to provide an expert report. (See ECF Nos. 31,
34, 37, 38, 40, 41, 43, 46, 48.) Additional time was allowed. On September 15, 2014,
Petitioners filed a Motion requesting another thirty days, to determine what further action they
would take. (ECF No. 49.) That motion was granted. (ECF No. 50.)
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 1:09-vv-00480-UNJ Document 95 Filed 10/26/15 Page 2 of 2
On October 15, 2014, Petitioners’ counsel filed a Motion for an extension of time,
indicating that they did not have an expert report, but requesting thirty days to confer with
Petitioners and file an appropriate motion. (ECF No. 51.) That request was granted (ECF No.
52.) Thereafter, Petitioners filed a series of status reports indicating that counsel was conferring
with Petitioners in anticipation of receiving authorization from them to file an appropriate
motion. In response, I granted Petitioners additional time to confer with counsel about the status
of this case. (See ECF Nos. 54, 56, 58, 60, 62.)
On March 2, 2015, Petitioners filed a status report indicating that they would soon file a
motion for interim attorneys’ fees and costs, and a motion to allow Petitioners’ counsel to
withdraw as counsel of record. (ECF No. 63.) On March 4, 2015, I issued an Order noting the
pending withdrawal of Petitioners’ counsel, and specifically stating that “Petitioners are hereby
put on notice that they will soon have to represent themselves,” and they should “proceed now
with efforts to obtain an expert medical report.” (ECF No. 64.) Subsequently, I granted
Petitioners’ motions regarding interim attorneys’ fees and costs (ECF No. 84), and the
withdrawal request of Petitioners’ counsel (ECF No. 88.)
On April 30, I ordered Petitioners to file an expert report by July 30, 2015. (ECF No. 68.)
Following the withdrawal of Petitioners’ counsel, on July 20, 2015, I filed an Order repeating my
instructions directly to the pro se Petitioners, to file the opinion of a medical doctor in support of
their claim, by July 30, 2015. (ECF No. 90.)
On July 29, 2015, Petitioners filed a status report requesting additional time to file their
expert report. (ECF No. 91.) I filed an Order allowing Petitioners until October 5, 2015, to file
an expert report. (ECF No. 93.) That Order included a “Final Warning” to Petitioners that if
they did not file an expert report by that date, their petition would be dismissed for failure to
prove their claim. (Id.)
Petitioners did not file a timely expert report, nor did they request more time to do so. It
is petitioners’ duty to prosecute their case, and to follow court orders. 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). 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.
__________________________________
George L. Hastings, Jr.
Special Master
2