VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_14-vv-01103
Package ID: USCOURTS-cofc-1_14-vv-01103
Petitioner: N.N.
Filed: 2016-02-04
Decided: 2016-02-29
Vaccine: MMR
Vaccination date: 2009-06-03
Condition: neurological issues
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
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.

Theory of causation field:
Petitioners alleged that the MMR vaccines administered on June 3, 2009, and December 13, 2012, caused N.N. to develop neurological issues. The case was dismissed for failure to prosecute and lack of proof. Petitioners failed to file a required expert report despite multiple extensions and warnings over an eight-month period. The Special Master found no evidence of a "Table Injury" and insufficient evidence, without an expert report, to establish causation. The public decision does not describe the specific neurological issues, onset, symptoms, diagnostic tests, treatments, or the mechanism of causation. No experts were named in the public decision. The Special Master was Brian H. Corcoran. Petitioner's counsel was Andrew D. Downing. Respondent's counsel was Heather Pearlman. The decision date was February 29, 2016.

Public staged source text:

================================================================================
DOCUMENT 1: USCOURTS-cofc-1_14-vv-01103-0
Date issued/filed: 2016-02-29
Pages: 4
Docket text: PUBLIC DECISION (Originally filed: 2/5/2016) regarding 27 DECISION of Special Master. Signed by Special Master Brian H. Corcoran. (ag) Copy to parties.
--------------------------------------------------------------------------------
Case 1:14-vv-01103-UNJ Document 28 Filed 02/29/16 Page 1 of 4
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 14-1103V
(Not to be Published)
* * * * * * * * * * * * * * * * * * * * * * * * *
KAYLA NICHOLS and JASON *
NICHOLS, on behalf of their minor *
child, N.N., * Filed: February 4, 2016
*
Petitioners, *
v. * Vaccine Act Entitlement;
* Denial Without Hearing
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * * *
Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for Petitioner.
Heather Pearlman, U.S. Dep’t of Justice, Washington, D.C. for Respondent.
DECISION DISMISSING CASE1
On November 13, 2014, Kayla and Jason Nichols filed a petition on behalf of their minor
child, N.N., seeking compensation under the National Vaccine Injury Compensation Program (the
“Vaccine Program”).2 The Petition alleges that the MMR vaccines N.N. received on June 3, 2009,
and December 13, 2012, caused N.N. to develop neurological issues. See Pet. at 1-2 (ECF No. 1).
1 Because this decision contains a reasoned explanation for my actions in this case, I will post it 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 (Dec. 17, 2002) (current version at 44 U.S.C. § 3501 (2014)). As provided by 42 U.S.C. § 300aa-
12(d)(4)(B), however, the parties may object to the decision’s inclusion of certain kinds of confidential information.
Specifically, under Vaccine Rule 18(b), each party has fourteen days within which to request redaction “of any
information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged
or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly
unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole decision will be available to the public.
Id.
2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) [hereinafter “Vaccine Act” or “the
Act”]. Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).

Case 1:14-vv-01103-UNJ Document 28 Filed 02/29/16 Page 2 of 4
After Petitioners filed medical records and Respondent filed her 4(c) Report disputing
compensation (ECF No. 17), I held a status conference on June 2, 2015, to discuss the next steps
in this case. I set the deadline of August 31, 2015, for Petitioners to submit their expert report. ECF
No. 18. At the time, Petitioners expressed no concern that the approximately three months they
were being provided to prepare an expert report would be inadequate. Id. I also discussed with the
Parties concerns (identified in the Rule 4(c) Report) about the claim’s viability, given evidence of
N.N.’s autism diagnosis well prior to the relevant vaccination. Id.
On the date of that deadline, Petitioners moved for an extension of time until September
30, 2015, to submit their expert report (ECF No. 20), which I subsequently granted. In that Motion,
Petitioners aver that they were attempting to obtain an opinion from or additional information from
Dr. Haresh Baxi, N.N.’s treating physician. Id. at 1. Petitioners’ Motion suggested that they
anticipated speaking with Dr. Baxi in the very near future (thus explaining in part the fact that they
only requested a 30-day extension of time).
On the very next deadline, Petitioners requested another one-month extension, stating that
despite continued attempts to speak with Dr. Baxi, Petitioners had been unable to set up a mutually
convenient time. ECF No. 21 at 1. I also granted this Motion, with the proviso that should
Petitioners require additional time beyond October 30, 2015, then they would contact Chambers
to set up a status conference. Instead of doing so, for a third time Petitioners waited until the
deadline to act, informally requesting an additional thirty days to file the expert report (without
providing any additional detail for the basis of this request). I granted that request as well,
extending the deadline to November 30, 2015, but simultaneously warning Petitioners that
additional requests for extensions of time would not be granted absent a showing of extraordinary
circumstances.
Petitioners let the November 30, 2015, deadline pass without taking any action whatsoever.
Therefore, on December 4, 2015, I ordered Petitioners to file their overdue expert report
immediately. ECF No. 22. Another ten days went by without any response from Petitioners. As a
result, on December 14, 2015, I ordered Petitioners to file their expert report on or before January
4, 2016, and warned them that failure to respond accordingly would be interpreted as a failure to
prosecute and would result in the dismissal of the case. ECF No. 23. Instead, Petitioners once again
waited until the date of the deadline, this time filing a Motion to Amend the Schedule. ECF No.
24. In this Motion, Petitioners reported that Dr. Baxi had ignored communication attempts, and
maintained that they could not secure a causation expert without Dr. Baxi’s clarification of the
medical records. Id. at 1. I denied the Motion, and instead ordered Petitioners to show cause on or
before February 3, 2016 why their case should not be dismissed. ECF No. 25.
Yet again, Petitioners waited until the last minute to act. Rather than comply with my order,
moreover, Petitioners’ counsel instead filed a Motion to Withdraw as Attorney. ECF No. 26
2

Case 1:14-vv-01103-UNJ Document 28 Filed 02/29/16 Page 3 of 4
[hereinafter “Mot.”]. In the Motion, Petitioners’ counsel stated that he was repeatedly thwarted in
his attempts to speak with Dr. Baxi, N.N.’s treating physician, whose input he considered
important to creation of an expert report. Mot. at 2. Simultaneously, Petitioners’ counsel reported
(for the first time) an inability to reach Petitioners “in over several months.” Id. Petitioners’ counsel
also (likely on the basis of the above) requested withdrawal, but urged me “to refrain from
dismissal, but to instead give Petitioners one thirty (30) day opportunity to respond.” Id. at 3.
Petitioners have had eight months to file an expert report, but never did so. In addition,
they have repeatedly flouted the Court’s deadlines by not complying with my orders, if not
ignoring them entirely. Petitioners have had numerous opportunities to prosecute their claim, and
Petitioners’ counsel has had ample time to investigate and act diligently. The Motion to Withdraw
asserts that Dr. Baxi's input is vital to preparation of an expert report – but they have been making
this representation since August of last year. Too much time has since past without action.
The eight-month delay in the filing of an expert report in this case is not justified by any
need to investigate a claim that was filed on the eve of the expiration of the three-year limitations
period for Vaccine Program claims. Section 16(a)(2). The matter was initiated on November 13,
2014, less than two years following the second vaccination that is alleged to have caused N.N.’s
neurological symptoms. Petitioners and their counsel therefore had ample opportunity – at least an
additional year – to thoroughly investigate their claim prior to filing. Under such circumstances, it
should not require almost eight more months (as has been the case here) to make inquiries of a
treater relevant to preparation of an expert report.
To receive compensation under the Vaccine Program, a petitioner must prove either (1)
that he suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table –
corresponding to one of his vaccinations, or (2) that he suffered an injury that was actually caused
by a vaccine. See §§ 13(a)(1)(A) and 11(c)(1). An examination of the record, however, does not
uncover any evidence that Petitioner suffered a “Table Injury.” Further, the record does not contain
sufficient persuasive evidence, without an expert report, establishing that the alleged injury that
Petitioner experienced could have been caused by the vaccinations received (see § 11(c)(1)(D)(i)).
Special masters may require such evidence “as may be reasonable or necessary.” 42
U.S.C.A. § 300aa-12(d)(3)(B)(ii). That evidence (here, an expert report) has not been provided
despite my repeated prior orders. In addition, under appropriate circumstances, an unjustified
failure to comply with a lawful order of a special master can be grounds for dismissal of their
petition for failure to prosecute. See, e.g., Sapharas v. Sec’y of Health & Human Servs., 35 Fed.
Cl. 503 (1996); See also Tsekouras v. Sec’y of Health & Human Servs., 26 Cl.Ct. 439 (1992), aff’d
991 F.2d 819 (Fed. Cir. 1993). Here, both Petitioners’ failure to provide an expert report, and their
failure to adhere to numerous Court orders, are ample grounds for dismissal of this case.
3

Case 1:14-vv-01103-UNJ Document 28 Filed 02/29/16 Page 4 of 4
Thus, Petitioners Motion is DENIED. This case is dismissed for failure to prosecute,
and for lack of proof. The Clerk shall enter judgment accordingly.
IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran
Special Master
4