Jorge Rodriguez v. HHS - MMR, immediate allergic reaction, hives, rashes, and other deleterious effects; anaphylactic shock; developmental delay (2017)

On August 8, 2014, Jorge Rodriguez, as the legal representative for his minor child M.R., filed a petition under the National Vaccine Injury Compensation Program. The petition alleged that the Inactivated Polio, Hepatitis B, MMR, Tdap, and Meningococcal vaccines administered on November 2, 2011, caused M.R. to suffer an immediate allergic reaction, hives, rashes, and other deleterious effects.

It further alleged that M.R. experienced anaphylactic shock, which is a Table injury, and subsequently developed a developmental delay as a sequela of that injury. The respondent was the Secretary of Health and Human Services.

The public decision does not name petitioner counsel or respondent counsel. Special Master Thomas L.

Gowen issued the order. The case proceeded through several procedural delays and extensions.

Petitioner's counsel was admitted to practice before the U.S. Court of Federal Claims on November 6, 2014.

Petitioner was directed to file medical records and a Statement of Completion by January 5, 2015, but received several extensions, filing the statement on April 15, 2015. Respondent filed a report recommending against compensation on May 29, 2015.

On June 23, 2015, the Special Master ordered petitioner to file an expert report by August 24, 2015, referencing the case Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274, 1278 (Fed.

Cir. 2005). Petitioner received multiple extensions and guidance over the next year.

By October 10, 2016, petitioner indicated an expert had been secured and paid, with a deadline to file the expert report set for November 1, 2016. After this deadline was missed, an Order to Show Cause was issued on November 15, 2016.

Petitioner responded on December 7, 2016, explaining difficulties contacting the expert who was on vacation, and stated a preliminary draft would be ready by December 9, 2016. Petitioner requested an extension until early January 2017, which was granted, with the expert report deadline set for January 16, 2017.

The Special Master noted that failure to file by this date would likely result in dismissal for failure to prosecute. Petitioner failed to file the report by January 16, 2017, and after further communication attempts, filed a motion for another extension on February 1, 2017, indicating a full draft would be ready by February 13, 2017.

The Special Master granted a final extension until February 28, 2017, stating no further extensions would be granted and the case would be dismissed for insufficient evidence if the report was not filed. Petitioner failed to file the expert report by February 28, 2017, or otherwise contact the court.

The Special Master analyzed the case, noting that petitioner had been aware for over a year and a half that an expert report was necessary. The medical records did not provide a clear diagnosis of a possible vaccine-related injury, and while an initial allergic reaction was noted, there was no evidence it persisted for the required six months.

The Special Master concluded that petitioner failed to meet the Program's severity requirement and the burden of proof for a non-Table injury, which requires a medical theory, a logical sequence of cause and effect, and a medically acceptable temporal relationship between the vaccination and the injury. Consequently, the case was dismissed for failure to prosecute and insufficient proof.

No compensation was awarded.