N.N. v. HHS - MMR, neurological issues (2016)

Kayla and Jason Nichols, on behalf of their minor child N.N., filed a petition on February 4, 2016, seeking compensation under the National Vaccine Injury Compensation Program. The petition alleged that the MMR vaccines N.N. received on June 3, 2009, and December 13, 2012, caused N.N. to develop neurological issues.

The respondent filed a Rule 4(c) Report disputing compensation. Following a status conference on June 2, 2015, the Special Master set a deadline of August 31, 2015, for the petitioners to submit an expert report.

Petitioners expressed no concern about this initial deadline. On August 31, 2015, petitioners moved for an extension until September 30, 2015, stating they were attempting to obtain information from N.N.'s treating physician, Dr.

Haresh Baxi. This extension was granted.

On the subsequent deadline, petitioners requested another one-month extension, citing continued, unsuccessful attempts to speak with Dr. Baxi.

This was also granted, with the condition that any further requests would require a showing of extraordinary circumstances. Petitioners then requested a third extension, without providing additional detail, which was granted until November 30, 2015.

Petitioners failed to take any action by this deadline. On December 4, 2015, the Special Master ordered the immediate filing of the overdue expert report.

After ten more days passed without a response, the Special Master ordered the report to be filed on or before January 4, 2016, warning that failure to comply would be interpreted as a failure to prosecute and would result in dismissal. Instead of filing the report, petitioners filed a Motion to Amend the Schedule on January 4, 2016, stating that Dr.

Baxi had ignored communication attempts and that they could not secure a causation expert without his clarification. The Special Master denied this motion and ordered petitioners to show cause by February 3, 2016, why the case should not be dismissed.

On February 3, 2016, petitioners' counsel filed a Motion to Withdraw as Attorney, citing repeated thwarted attempts to speak with Dr. Baxi and an inability to reach the petitioners for several months.

The Special Master found that petitioners had eight months to file an expert report but never did so, and had repeatedly failed to comply with court orders. The Special Master noted that the eight-month delay was not justified, especially since the petition was filed less than two years after the second vaccination, allowing ample time for investigation prior to filing.

The Special Master determined that the record lacked evidence of a "Table Injury" and insufficient evidence, without an expert report, to establish that the alleged injury was caused by the vaccinations. The Special Master concluded that the unjustified failure to comply with court orders and the failure to provide an expert report were grounds for dismissal.

The Special Master denied the motion to withdraw and dismissed the case for failure to prosecute and lack of proof. The Special Master was Brian H.

Corcoran. Petitioner's counsel was Andrew D.

Downing of Van Cott & Talamante, PLLC. Respondent's counsel was Heather Pearlman of the U.S.

Department of Justice.