VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_13-vv-00072
Package ID: USCOURTS-cofc-1_13-vv-00072
Petitioner: LKT
Filed: 2013-01-29
Decided: 2015-01-30
Vaccine: Prevnar, Rotateq, Pentacel, and Hepatitis B
Vaccination date: 2010-05-24
Condition: cerebrovascular infarct
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
On January 29, 2013, April Polite filed a petition on behalf of her minor child, LKT, alleging that LKT suffered a cerebrovascular infarct caused by the Prevnar, Rotateq, Pentacel, and Hepatitis B vaccines received on May 24, 2010. Petitioner's counsel was Danielle A. Strait of Maglio Christopher and Toale, PA. Respondent was represented by Lindsay Corliss of the United States Department of Justice. The case was initially assigned to Special Master Hastings and later reassigned to Special Master Lisa Hamilton-Fieldman. Following a status conference on November 19, 2013, the parties agreed that updated medical documentation was necessary, and an expert report filing schedule was established. Petitioner filed four motions for extensions of time to file her expert report. By July 1, 2014, over seven months after the initial schedule, an expert report had not been filed. During a status conference on July 1, 2014, Petitioner's counsel indicated she had been unable to contact her client since April 2014. An order to show cause was issued, directing Petitioner to inform the court by September 19, 2014, how she wished to proceed and to detail good-faith efforts to secure an expert report. Petitioner's counsel filed a status report on September 19, 2014, reiterating that she had been unable to communicate with her client despite attempts via mail, email, and phone, and that mail sent to Petitioner was returned undelivered. Special Master Hamilton-Fieldman dismissed the case on January 8, 2015, for failure to prosecute, citing Petitioner's failure to communicate with her attorney and comply with court orders as evidence of disinterest. The dismissal was alternatively based on insufficient proof of causation, as the record did not contain evidence of a "Table Injury" or a medical expert's opinion, or any other persuasive evidence, linking LKT's injuries to the vaccines. The Special Master noted that compensation cannot be awarded based solely on the petitioner's claims and requires support from medical records or a competent physician's opinion, neither of which was sufficiently provided. On March 10, 2015, Petitioner filed a Stipulation of Facts Concerning Final Attorneys’ Fees and Costs. Pursuant to this stipulation, the parties agreed to an award of $26,190.00 in attorneys' fees and costs. Petitioner represented that she did not personally incur any expenses. Special Master Hamilton-Fieldman found that the petition was brought in good faith with a reasonable basis, making an award for fees and costs appropriate under 42 U.S.C. § 300aa-15(b) and (e)(1). The award of $26,190.00 was made payable jointly to Petitioner and Petitioner's counsel, Danielle A. Strait.

Theory of causation field:
Petitioner April Polite alleged that her minor child, LKT, suffered a cerebrovascular infarct caused by the Prevnar, Rotateq, Pentacel, and Hepatitis B vaccines received on May 24, 2010. The public decision does not describe the specific mechanism of causation or name any medical experts. The case was dismissed for failure to prosecute due to the petitioner's lack of communication with her counsel and failure to respond to court orders. Alternatively, the case was dismissed for insufficient proof of causation, as there was no evidence of a "Table Injury" and no medical expert opinion or other persuasive evidence was presented to link the alleged injury to the vaccines. The Special Master noted that compensation requires support from medical records or a physician's opinion, which were lacking. Petitioner's counsel was Danielle A. Strait, and respondent was represented by Lindsay Corliss. Special Master Lisa Hamilton-Fieldman issued the dismissal decision on January 8, 2015. A subsequent stipulation resulted in an award of $26,190.00 for attorneys' fees and costs on March 31, 2015, acknowledging the claim was brought in good faith with a reasonable basis.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_13-vv-00072-0
Date issued/filed: 2015-01-30
Pages: 3
Docket text: PUBLIC DECISION (Originally filed: 01/08/2015) regarding 34 DECISION of Special Master. Signed by Special Master Lisa Hamilton-Fieldman. (jb) Copy to parties.
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Case 1:13-vv-00072-UNJ Document 35 Filed 01/30/15 Page 1 of 3
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 13-72
Filed: January 8, 2015
* * * * * * * * * * * * * * * * * * * * * * * * * UNPUBLISHED
APRIL POLITE, on behalf of her *
child, LKT, *
* Special Master Hamilton-Fieldman
Petitioner, *
*
v. * Dismissal decision; Order to Show
* Cause; Failure to Prosecute;
SECRETARY OF HEALTH * Insufficient Proof.
AND HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * * *
Danielle A. Strait, Malio, Christopher, and Toale, PA, Washington, DC, for Petitioner.
Lindsay Corliss, United States Department of Justice, Washington, DC, for Respondent.
DECISION1
On January 29, 2013, April Polite (“Petitioner”) filed a petition for compensation under
the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 et seq. (2006)
(“Vaccine Act”), on behalf of her minor child, LKT. Petitioner alleged that her child suffered
from a cerebrovascular infarct and that this injury had been caused by the Prevnar, Rotateq,
Pentacel, and Hepatitis B vaccines LKT received on May 24, 2010. Petition (“Pet”) at 1. The
information in the record, however, does not show entitlement to an award under the Program.
I. Procedural History
The petition was filed on January 29, 2013, and was initially assigned to Special Master
1 Because this unpublished decision contains a reasoned explanation for the action in this case,
the undersigned intends 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 and note (2006)). In accordance with
Vaccine Rule 18(b), a party has 14 days to identify and move to delete medical or other
information, that satisfies the criteria in § 300aa-12(d)(4)(B). Further, consistent with the rule
requirement, a motion for redaction must include a proposed redacted decision. If, upon review,
the undersigned agrees that the identified material fits within the requirements of that provision,
such material will be deleted from public access.

Case 1:13-vv-00072-UNJ Document 35 Filed 01/30/15 Page 2 of 3
Hastings. On April 19, 2013, the case was reassigned to the undersigned Special Master.
Petitioner’s counsel filed a Statement of Completion on July 30, 2013.
On November 19, 2013, a status conference was held to discuss the progression of the
case. During the status conference, the parties agreed that updated medical documentation was
necessary and that informal resolution was not feasible. Order, ECF No. 26. Accordingly, the
undersigned set up an expert report filing schedule. Id. Petitioner subsequently filed four
motions for extension of time to file her expert report.2 As of July 1, 2014, over seven months
later, an expert report had not been filed.
Following the filing of the fourth Motion for Extension of Time, the undersigned held a
status conference on July 1, 2014. At the status conference, Petitioner’s counsel indicated that
she had been unable to contact her client since April 2014. Order, ECF No. 31. The undersigned
issued a Show Cause Order according to which Petitioner was directed to inform the court, by no
later than September 19, 2014, how she wished to proceed. Id. In the event that Petitioner
wished to proceed, she was directed to “indicate the good-faith efforts made to secure an expert
report, as multiple extensions of time ha[d] been requested and granted.” Id.
On September 19, 2014, Petitioner’s counsel filed a Status Report in Response to Order
to Show Cause. Status Report, ECF No. 32. Petitioner’s counsel again indicated that she had
been unable to communicate with her client. Id. She had attempted to mail, e-mail, and call her
client, but her client had not responded to any form of communication. Id. After Petitioner’s
counsel mailed Petitioner the Order to Show Cause and it was returned undelivered, “counsel
ha[d] not been able to reach Petitioner [and] … Petitioner [had not] contacted undersigned
counsel in response to these proceedings.” Id.
II. Analysis
(1) Failure to Prosecute
When a petitioner fails to comply with Court orders to prosecute his case, the Court may
dismiss the case. Sapharas v. Sec’y of Health & Human Servs., 35 Fed. Cl. 503 (1996);
Tsekouras v. Sec’y of Health & Human Servs., 26 Cl. Ct. 439 (1992), aff’d, 991 F.2d 810 (Fed.
Cir. 1993); see also Adkins v. United States, 816 F.2d 1580, 1583 (Fed. Cir. 1987) (affirming
dismissal of cases for failure of party to respond to discovery requests). Petitioner’s failure to
communicate with her attorney evidences her disinterest in pursuing this claim. Thus, the
undersigned finds it appropriate to dismiss this case for failure to prosecute.
2 The Motions were filed on 01/28/2014, 03/28/2014, 04/03/2014, and 06/16/2014. Motions ECF Nos. 27, 28, 29,
30. The first three Motions were granted, but a status conference was held following the filing of the fourth Motion.
2

Case 1:13-vv-00072-UNJ Document 35 Filed 01/30/15 Page 3 of 3
(2) Causation In Fact
To receive compensation under the Vaccine Act, Petitioner must prove either 1) that she
suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table – corresponding
to one of her vaccinations, or 2) that she suffered an injury that was actually caused by a vaccine.
See §§ 300aa-13(a)(1)(A) and 300aa-11(c)(1). An examination of the record did not reveal any
evidence that LKT suffered a “Table Injury.” Further, the record does not contain a medical
expert’s opinion or any other persuasive evidence indicating that LKT’s injuries were caused by
a vaccination.
Under the Vaccine Act, a petitioner may not be awarded compensation based solely on
the petitioner’s claims alone. Rather, the petition must be supported by either medical records or
by the opinion of a competent physician. § 300aa-13(a)(1). In this case, because the medical
records are insufficient to establish entitlement to compensation, a medical opinion must be
offered in support. Petitioner, however, has offered no such opinion.
Therefore, the only alternative remains to DENY this petition. This case is dismissed
for failure to prosecute and alternatively for insufficient proof of causation. In the absence
of a motion for review, the Clerk shall enter judgment accordingly.
IT IS SO ORDERED.
s/Lisa D. Hamilton-Fieldman
Lisa D. Hamilton-Fieldman
Special Master
3

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DOCUMENT 2: USCOURTS-cofc-1_13-vv-00072-1
Date issued/filed: 2015-03-31
Pages: 2
Docket text: PUBLIC DECISION (Originally filed: 03/10/2015) regarding 39 DECISION Fees Stipulation. Signed by Special Master Lisa Hamilton-Fieldman. (jb) Copy to parties.
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Case 1:13-vv-00072-UNJ Document 42 Filed 03/31/15 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 13-72
Filed: March 10, 2015
* * * * * * * * * * * * * * * * * * * * * * * * * * *
APRIL POLITE, on behalf of her child, * UNPUBLISHED
LKT, *
* Special Master Hamilton-Fieldman
Petitioner, *
v. * Attorneys’ Fees and Costs; Reasonable Amount
* Requested to which Respondent Does Not
SECRETARY OF HEALTH * Object.
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * * * * * * * * * * * * *
Danielle A. Strait, Maglio Christopher and Toale, PA, Washington, DC, for Petitioner.
Lindsay Corliss, United States Department of Justice, Washington, DC, for Respondent.
DECISION1
On January 29, 2013, April Polite (“Petitioner”) filed a petition on behalf of her minor child,
LKT, pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-1 to -34
(2006). Petitioner alleged that her child suffered from a cerebrovascular infarct and that this injury had
been caused by the Prevnar, Rotateq, Pentacel, and Hepatitis B vaccines LKT received on May 24, 2010.
Petition (“Pet”) at 1. On January 8, 2015, the undersigned issued a decision dismissing the case for
failure to prosecute and alternatively, for insufficient proof of causation.
On March 10, 2015, Petitioner filed a Stipulation of Facts Concerning Final Attorneys’ Fees and
Costs. Pursuant to their Stipulation, the parties have agreed to an award of $26,190.00 in attorneys’ fees
and costs. In accordance with General Order Number 9, Petitioner represents that she did not personally
incur any expenses in pursuit of this claim.
1 The undersigned intends to post this unpublished 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)). As provided by Vaccine Rule
18(b), each party has 14 days within which to file a motion for redaction “of any information furnished by
that party (1) that is trade secret or commercial or financial information and is privileged or confidential,
or (2) that are medical files and similar files the disclosure of which would constitute a clearly
unwarranted invasion of privacy.” In the absence of such motion, the entire decision will be available to
the public. Id.
2 The National Vaccine Injury Compensation Program is set forth in 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-1 to -34 (2006) (Vaccine Act or the Act). All citations in this decision to individual
sections of the Vaccine Act are to 42 U.S.C.A. § 300aa.
1

Case 1:13-vv-00072-UNJ Document 42 Filed 03/31/15 Page 2 of 2
The undersigned finds that this petition was brought in good faith and that there existed a
reasonable basis for the claim. Therefore, an award for fees and costs is appropriate, pursuant to 42
U.S.C. § 300aa-15(b) and (e)(1). Further, the proposed amount seems reasonable and appropriate.
Accordingly, the undersigned hereby awards the amount of $26,190.00, in the form of a check made
payable jointly to Petitioner and Petitioner’s counsel, Danielle A. Strait, of Maglio Christopher &
Toale, PA, 1605 Main Street, Suite 710, Sarasota, Florida 34236.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court
SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation.3
IT IS SO ORDERED.
/s/ Lisa D. Hamilton-Fieldman
Lisa D. Hamilton-Fieldman
Special Master
3 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of
notice renouncing the right to seek review.
2