VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_13-vv-00412 Package ID: USCOURTS-cofc-1_13-vv-00412 Petitioner: Hanna Dwornikoski Filed: 2013-06-20 Decided: 2016-08-05 Vaccine: DTaP, Hib, Prevnar Vaccination date: 2010-06-23 Condition: seizure disorder Outcome: dismissed Award amount USD: AI-assisted case summary: John and Debra Dwornikoski filed a petition on June 20, 2013, on behalf of their daughter, Hanna Dwornikoski. They alleged that Hanna suffered a seizure disorder as a result of the Diphtheria-Tetanus-acellular-Pertussis (DTaP), Haemophilus influenza (Hib), and Prevnar vaccinations she received on June 23, 2010. The respondent was the Secretary of Health and Human Services. The Special Master noted that the Dwornikoskis were proceeding pro se, and the respondent was represented by Lisa A. Watts of the United States Department of Justice. The court issued an order to show cause on May 5, 2016, instructing the Dwornikoskis to demonstrate why the case should not be dismissed for failure to prosecute, with a response due by July 5, 2016. The Dwornikoskis did not respond to this order. To receive compensation under the National Vaccine Injury Compensation Program, a petitioner must prove either a "Table Injury" (an injury listed in the Vaccine Injury Table) or that the vaccine "actually caused" the injury. The record did not show evidence of a "Table Injury." The Dwornikoskis were pursuing a causation-in-fact claim. The petition must be supported by medical records or a competent physician's opinion. While an expert report by Dr. Huq, filed in August 2014, suggested that Hanna's second DTaP/Hib and Prevnar vaccination may have caused her seizures through toxic, inflammatory, or immune factors, subsequent medical records revealed genetic mutations associated with infantile-onset epileptic encephalopathy. The petitioners requested 45 days to submit a supplemental report from Dr. Huq, but no such report was ever filed. Special Master Christian J. Moran found that the petitioners failed to demonstrate entitlement to an award because they did not prove a "Table Injury," that the vaccinations "actually caused" Hanna's seizure disorder, or that the vaccinations "significantly aggravated" her seizure disorder. The case was dismissed for failure to prosecute and insufficient proof. Judgment was to be entered accordingly. The decision was issued by Special Master Christian J. Moran on August 5, 2016. Theory of causation field: Petitioners John and Debra Dwornikoski, on behalf of their daughter Hanna Dwornikoski, alleged that DTaP, Hib, and Prevnar vaccinations received on June 23, 2010, caused a seizure disorder. The case was dismissed for failure to prosecute and insufficient proof. The public decision does not describe the specific onset or symptoms of the seizure disorder, nor does it detail the medical records or treatments. The petitioners pursued an "off-Table" causation-in-fact claim. An expert report by Dr. Huq suggested a possible link between the vaccinations and Hanna's seizures via toxic, inflammatory, or immune factors. However, subsequent medical records revealed genetic mutations associated with infantile-onset epileptic encephalopathy. The petitioners requested time to submit a supplemental report from Dr. Huq, but this was never filed. The Special Master found the petitioners failed to demonstrate entitlement to an award. No award amount was granted. The decision was issued by Special Master Christian J. Moran on August 5, 2016. Petitioners were represented pro se, and respondent was represented by Lisa A. Watts. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_13-vv-00412-0 Date issued/filed: 2016-08-05 Pages: 3 Docket text: PUBLIC DECISION (Originally filed: 7/15/16) regarding 82 DECISION of Special Master. Signed by Special Master Christian J. Moran. (dh) Copy to parties. -------------------------------------------------------------------------------- Case 1:13-vv-00412-UNJ Document 83 Filed 08/05/16 Page 1 of 3 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS * * * * * * * * * * * * * * * * * * * * * * * * * JOHN DWORNIKOSKI and * DEBRA DWORNIKOSKI, parents of * HANNA DWORNIKOSKI, * * No. 13-412V Petitioners, * Special Master Christian J. * Moran v. * * SECRETARY OF HEALTH * Filed: July 15, 2016 AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * * * * * * * * * * * John and Debra Dwornikoski, Columbia, NJ, pro se; Lisa A. Watts, United States Dep’t of Justice, Washington, D.C., for respondent. UNPUBLISHED DECISION DENYING COMPENSATION1 The Dwornikoskis filed a petition on behalf of their daughter, Hanna Dwornikoski, under the National Childhood Vaccine Injury Act, 42 U.S.C. §300a- 10 et. seq., on June 20, 2013. Their petition alleged that their daughter suffered from a seizure disorder as a result of the Diphtheria-Tetanus-acellular-Pertussis (“DTAP”), haemophilus influenza (“Hib”), and Prevnar vaccinations she received on June 23, 2010. The information in the record, however, does not show entitlement to an award under the Program. 1 Because this unpublished decision contains a reasoned explanation for the special master’s action in this case, the special master intends to post it on the United States Court of Federal Claims’s website, in accordance with the E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special master will appear in the document posted on the website. Case 1:13-vv-00412-UNJ Document 83 Filed 08/05/16 Page 2 of 3 I. Procedural History A detailed procedural history of this case can be found in the order to show cause, filed May 5, 2016. In that order, the Dwornikoskis were instructed to show cause as to why this case should not be dismissed by July 5, 2016. To date, the Dwornikoskis have not responded. II. Analysis When a petitioner (or plaintiff) fails to comply with Court orders to prosecute her 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 819 (Fed. Cir. 1993) (table); Vaccine Rule 21(c); see also Claude E. Atkins Enters., Inc. v. United States, 889 F.2d 1180, 1183 (Fed. Cir. 1990) (affirming dismissal of case for failure to prosecute for counsel’s failure to submit pre-trial memorandum); Adkins v. United States, 816 F.2d 1580, 1583 (Fed. Cir. 1987) (affirming dismissal of case for failure of party to respond to discovery requests). Additionally, to receive compensation under the National Vaccine Injury Compensation Program (hereinafter “the Program”), a 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 his 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 uncover any evidence that Hanna Dwornikoski suffered a “Table Injury.” Thus, the Dwornikoskis are necessarily pursuing a causation-in-fact claim. Under the Act, a petitioner may not be given a Program award 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 do not support petitioner’s claim, a medical opinion must be offered in support. Though a medical opinion has been offered, it is not persuasive. The Dwornikoskis filed an expert report by Dr. Huq in August, 2014. The report stated that Hanna’s second DTaP/Hib and Prevnar vaccination may have caused her seizures through toxic, inflammatory or immune factors. However, subsequent to Dr. Huq’s report additional medical records for Hanna became available that showed Hanna has genetic mutations associated with infantile-onset 2 Case 1:13-vv-00412-UNJ Document 83 Filed 08/05/16 Page 3 of 3 epileptic encephalopathy. Subsequently, petitioners requested 45 days to submit a supplemental report from Dr. Huq. A supplemental report from Dr. Huq, or any other expert, has never been filed. Accordingly, it is clear from the record in this case that petitioners have failed to demonstrate that Hanna suffered a “Table Injury,” that the DTaP/Hib and Prevnar vaccination “actually caused” Hanna’s seizure disorder, or that the DTaP/Hib and Prevnar vaccination “significantly aggravated” her seizure disorder. Thus, this case is dismissed for failure to prosecute and for insufficient proof. The Clerk shall enter judgment accordingly. Any questions may be directed to my law clerk, Dan Hoffman, at (202) 357- 6360. IT IS SO ORDERED. s/Christian J. Moran Christian J. Moran Special Master 3