VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_10-vv-00212
Package ID: USCOURTS-cofc-1_10-vv-00212
Petitioner: H.L.S., III
Filed: 2010-01-17
Decided: 2014-01-17
Vaccine: 
Vaccination date: 
Condition: 
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Howard and Phillipa Sheard filed a petition on behalf of their minor son, H.L.S., III, on January 17, 2010, alleging a vaccine injury. After an initial attorney withdrew, the petitioners struggled to find new counsel and secure an expert medical witness. Over several years, the court granted multiple extensions and issued orders to show cause, emphasizing the need for an expert report and medical records. Despite these efforts and respondent's collection of medical records, the petitioners failed to file an expert report or comply with court orders. The Chief Special Master dismissed the case for failure to prosecute and insufficient proof, noting the absence of evidence for a Table injury or vaccine causation. No specific vaccine or injury was detailed in this dismissal decision.

Theory of causation field:
unclear

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_10-vv-00212-0
Date issued/filed: 2014-01-17
Pages: 4
Docket text: PUBLIC DECISION Signed by Chief Special Master Denise Kathryn Vowell. (tjk) Copy to parties.
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Case 1:10-vv-00212-UNJ Document 76 Filed 01/17/14 Page 1 of 4
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
No. 10-212V
Filed: January 17, 2014
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
HOWARD SHEARD and PHILLIPA *
SHEARD, biological parents and *
guardians of the minor child, H.L.S., III *
Petitioners, * Failure to Prosecute; Failure to
* Follow Court Orders; Dismissal
v. *
*
SECRETARY OF HEALTH AND *
HUMAN SERVICES *
Respondent. *
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
1
DECISION
VOWELL, Chief Special Master:
On April 7, 2010, Howard Sheard and Phillipa Sheard [“petitioners”] filed a
petition for compensation under the National Vaccine Injury Compensation Program, 42
U.S.C. § 300aa-10, et seq.2 [the “Vaccine Act” or “Program”], on behalf of their minor
son, H.L.S., III [“HLS”]. They filed the petition as pro se petitioners.
On May 28, 2010, attorney Thomas Gallagher moved to substitute in as
petitioners’ counsel. He filed an amended petition, on behalf of petitioners, on
November 19, 2010. Between August and November 2010, petitioners filed 25 exhibits
containing medical records. Respondent filed her Rule 4(c) Report on January 18,
2011.
On August 4, 2011, Mr. Gallagher filed a status report conveying that he would
1 Because this unpublished decision contains a reasoned explanation for the action in this case, I intend
to post this decision on the United States Court of Federal Claims' website, in accordance with the E-
Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44
U.S.C. § 3501 note (2006)). In accordance with Vaccine Rule 18(b), petitioners have 14 days to identify
and move to delete 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
delete such material from public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (1986). Hereinafter,
for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C.
§ 300aa (2006).

Case 1:10-vv-00212-UNJ Document 76 Filed 01/17/14 Page 2 of 4
be withdrawing from the case and that petitioners were in the process of locating
another attorney. A formal Motion to Withdraw was filed by Mr. Gallagher on November
2, 2011, and was granted on November 9, 2011.
On March 5, 2012, the special master then assigned to this case3 conducted a
status conference and gave petitioners 60 days in which to identify an expert medical
witness. Order, issued March 13, 2012. On May 9, 2012, following another status
conference, petitioners were ordered to file a medical expert report by July 6, 2012.
Order, issued May 9, 2012.
On June 29, 2012, petitioners reported that HLS had an appointment on August
10, 2012, with a potential medical expert, Dr. Hugh Sampson, and made an oral motion
for an enlargement of time to file their medical expert report. On July 5, 2012,
petitioners were granted an extension of time until August 31, 2012.
During a status conference held on July 17, 2012, petitioners’ August 31, 2012
deadline for submitting a medical expert report was suspended, and instead the special
master ordered another status conference be convened in 30 days to discuss whether
Dr. Sampson agreed to serve as petitioners’ expert. Order, issued July 18, 2012.
Because petitioners had requested assistance in collecting medical records, they were
also instructed to send a list of medical providers to respondent’s counsel. Id.
On September 5, 2012, an Order to Show Cause was issued. The order
summarized the procedural history of this case, the discussions which occurred during a
status conference held on August 28, 2012, and stressed the need to file an expert
report. Petitioners were ordered to file a medical expert report by October 29, 2012.
Additionally, petitioners were reminded to send the contact information for HLS’s
medical providers to respondent’s counsel.
After receiving the providers’ contact information, respondent moved for
subpoena authority on October 9, 2012. Respondent’s motion was granted on October
15, 2012. In light of the record collection effort, the October 29, 2012 show cause
deadline was vacated. Order, issued Nov. 29, 2012. Between January and May 2013,
respondent filed the records received in response to their subpoenas as exhibits A-G.
Respondent filed a supplemental Rule 4(c) Report on June 21, 2013.
On August 14, 2013, petitioners stated in a status conference that they wished
to continue proceeding with their claim and were in discussions with an attorney to find
an expert witness. Petitioners were ordered to make all efforts possible to retain an
expert and locate an attorney. Additionally, another status conference was scheduled
for October 23, 2013. Order, issued Aug. 15, 2013.
3 Since its filing in 2010, three special masters have presided over this case. It was initially assigned to
Special Master Lord. On September 10, 2012, it was reassigned to Special Master Zane, and on
September 6, 2013, it was reassigned to me.
2

Case 1:10-vv-00212-UNJ Document 76 Filed 01/17/14 Page 3 of 4
This case was assigned to me on September 6, 2013. On October 23, 2013, I
held the previously scheduled status conference to discuss the progress petitioners had
made in locating an attorney to represent them and finding an expert to opine in this
case. Petitioners indicated that they had contacted their prior counsel, Mr. Gallagher,
and believed he would soon be filing a Motion to Substitute as Petitioners’ Counsel.
Pursuant to our discussions at the status conference, and with the consent of both
parties, following the status conference my law clerk has contacted Mr. Gallagher to
confirm his intention to represent petitioners in this matter. He indicated that he had
been reviewing the case, but had decided not to become involved again in the case.
Petitioners were ordered to file an expert report supporting their assertions that
HLS suffered a vaccine-caused injury by January 3, 2014. Order, issued Oct. 24, 2013.
As had been discussed during the status conference, my order noted that given the time
already afforded to petitioners to obtain an expert report by Special Masters Lord and
Zane, I would only grant an extension request if it was accompanied by a motion from
an attorney to substitute in as petitioners’ counsel or a statement from an expert
indicating that he or she was working on a report.
I. Failure to Prosecute.
It is petitioners’ duty to respond to court orders. To date, petitioners have not
complied with my October 24, 2013 order. They have neither filed their medical expert
report nor requested additional time.
Petitioners have previously been informed that a failure to follow court orders, as
well as failure to file medical records or an expert medical opinion, shall 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).
II. Causation in Fact.
To receive compensation under the Program, petitioners must prove either 1)
that HLS suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table
– corresponding to one of his vaccinations, or 2) that HLS suffered an injury that was
actually caused by a vaccine. See §§ 13(a)(1)(A) and 11(c)(1). Under the Vaccine Act,
a special master cannot find that petitioners have proven their case by a preponderance
of the evidence based upon “the claims of petitioners alone, unsubstantiated by medical
records or by medical opinion.” § 13(a).
Petitioners have failed to file sufficient medical records or other evidence in this
case. An examination of the case record did not uncover any evidence that HLS
suffered a “Table Injury.” Further, the record does not contain a medical opinion or any
other persuasive evidence indicating that HLS’s injury was vaccine-caused.
3

Case 1:10-vv-00212-UNJ Document 76 Filed 01/17/14 Page 4 of 4
Accordingly, it is clear from the record in this case that petitioners have failed to
demonstrate either that HLS suffered a “Table Injury” or that HLS’s injuries were
“actually caused” by a vaccination.
This case is dismissed for insufficient proof and for failure to prosecute.
The clerk shall enter judgment accordingly.
IT IS SO ORDERED.
Denise K. Vowell
Chief Special Master
4