VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_15-vv-00102
Package ID: USCOURTS-cofc-1_15-vv-00102
Petitioner: Susan Marshall
Filed: 2015-02-02
Decided: 2016-01-07
Vaccine: influenza
Vaccination date: 
Condition: sepsis, cerebral infarct, subdural hematoma, bronchopneumonia, central nervous system toxoplasmosis, HIV/AIDS, hydrocephalus, end-stage renal disease, hypertension
Outcome: denied
Award amount USD: 

AI-assisted case summary:
Susan Marshall, acting pro se, filed a petition seeking compensation for the death of her adult son, Antron Javar Thompson, alleging it was a result of an influenza vaccination. The petition was filed on February 2, 2015, after her son's death on January 30, 2013. The medical records and petition were difficult to understand, with inconsistent dates and allegations. The death certificate listed complications of cerebral infarct due to hypertension, end-stage renal disease, and AIDS as contributing factors. The Special Master noted multiple instances where Ms. Marshall failed to comply with court orders, including providing contact information and specific details about the alleged vaccination. Despite warnings and attempts to assist her, Ms. Marshall did not comply with the court's directives. Consequently, the petition was dismissed for failure to prosecute. Additionally, the court found the claim was untimely filed, as it was received by the court on February 2, 2015, three days after the statutory deadline of January 30, 2015, for claims related to death. The court affirmed the Special Master's dismissal and denied the motion for review.

Theory of causation field:
unclear

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_15-vv-00102-0
Date issued/filed: 2016-06-27
Pages: 4
Docket text: JUDGE VACCINE REPORTED OPINION and ORDER (Reissuance of 24 Opinion and Order for Publication). Signed by Judge Thomas C. Wheeler. (dls) Copy to parties.
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Case 1:15-vv-00102-TCW Document 26 Filed 06/27/16 Page 1 of 4
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No. l5-102V
JUN 2 7 2016
(Filed Under Seal: June 9,2016) U.S. COURT OF
FEDERAL CLAIMS
(Refiled for Public Availability: J:ume 27 ,2016)l
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SUSAN MARSHALL.
Petitioner,
*
Dismissal of Vaccine Claim; Pro Se
*
Petitioner; Failure to Prosecute.
SECRETARY OF HEALTH
AND HUMAN SERVICES,
Respondent.
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Susan Marshall Norcross, Georgia, pro se Petitioner.
Adriana Teitel, with whom were Benjamin C. Mizer, Principal Deputy Assistant Attomey
General, Rupa Bhattacharyya, Director, Vincent J. Matanoski, Deputy Director, and
Gabrielle M. Fielding, Assistant Director, Torts Branch, Civil Division, U.S. Department
of Justice, Washington, D.C., for Respondent.
OPINIONAND ORDER
WHEELER, Judge.
This vaccine case is before the Court on Petitioner's motion for review ofthe Special
Master's January 7,2016 decision dismissing this petition for failure to prosecute under
Vaccine Rule 2l(b), and granting Respondent's motion to dismiss. Marshall v. Sec'y of
Health and Human Servs., No. 15-102V, slip op. (Fed. Cl. Spec. Mstr. Jan.7,20\6)
I 'l'his opinion was originally filed on June 9,2016 and held under seal for fourteen days during which the parties
had the opportunity to consult and indicate to Chambers any appropriate redactions, No redaction requests were
received, and this Opinion is now public. Rules ofthe Court ofFederal Claims (,,RCFC"), App. B, Rule l8(b).

Case 1:15-vv-00102-TCW Document 26 Filed 06/27/16 Page 2 of 4
(hereinafter the "Decision"). For the reasons explained below, the Court affirms the
Soecial Master's dismissal decision.
Backqround
On February 2, 2015, Petitioner Susan Marshall, acting pro se, liled this petition
under the National Vaccine Injury Compensation Program,42 U.S.C. $$ 300aa-l to -34
("Vaccine Act"), seeking compensation for the death of her adult son, Antron Javar
Thompson. Although the Petition and accompanying medical records are very difficult to
understand, it seems that Petitioner is alleging that her son died as a result of complications
{iom an influenza vaccination given to him while he was being treated for a variety of
medical conditions in U.S. Veterans Administration f'VA") facilities. The date of
administration ofthe vaccination is not clear liom Petitioner's filings. The death certificate
fbr her son shows a date of death ofJanuary 30, 2013. Pet. Ex. 1 at 166.
On May 28,2015, Chief Special Master Nora Beth Dorsey, who was then presiding
over this case, conducted an initial status conference by telephone. In her order following
the conference, the Chief Special Master noted her explanation to Ms. Marshall that this
Court's jurisdiction is limited to vaccine injury claims and the Court would not address her
other complaints against the VA. The Chief Special Master included in her order a list of
attorneys willing to represent petitioners in vaccine cases, as well as a deadline of July 3 i,
2015 to notiff the Court ofher decision on retaining an attorney. Order, June 1, 201 5, Dkt.
9.
No. A subsequent Order by the Special Master indicated that the June Order sent by
the Court to Petitioner had been retumed as undeliverable on August 4,2015, and ordered
Petitioner to contact the court by September 23, 2015, or else her claim would be dismissed
for failure to prosecute. Order, August 20,2015, Dkt. No. 11. As noted in the docket, Ms.
Marshall did contact the court by email before the September 23 deadline, requesting that
the listofvaccine attorneys be sentto heragain. This was done by another Special Master's
Order, which extended the time for substitution ofcounsel to October 28,2015. Order,
September 4,2015, Dkt. No. 12. On October 29,2015, Petitioner filed with the Court a
"Motion for Substitution of Counsel," which seems to indicate that Petitioner was unable
to retain counsel after contacting one of the attomeys on the list supplied by the Special
Mastcr. Dkt. No. 17.
On October 28,2015, this case was reassigned to Special Master Mindy Roth, who
issued the dismissal decision under review here. In an order to Show cause flled on
November 10, 2015, Special Master Roth indicated that her office had attempted to reach
Ms. Marshall by email and telephone without success, and that the Special Master wished
to hold a status conference in this case. She also noted Petitioner's failure to comolv with
the September 4, 201 5 order as well as her failure to keep the courr apprised ofhei ctntact
infomation. The Show cause order required Ms. Marshall to provide more specific
information identifying the date and name ofthe vaccination she believed caused her son's
death, and its location in the medical records Petitioner submitted. The Order attached a

Case 1:15-vv-00102-TCW Document 26 Filed 06/27/16 Page 3 of 4
ibrm to be used by Petitioner to help her set out a timeline of events leading to her son's
death, including the date of vaccination claimed to have caused his death. The deadline
for submission of this information was set at December 10, 2015. Special Master Roth
concluded the Show Cause Order with a warning that failure to comply would result in
immcdiatc dismissal, especially since this would be the second time Petitioner had failed
to comply with such an Order in this case. Order, November 10,2015, Dkt. No. 18.
Although there is nothing in the record to show that the Order and accompanying forms
were returned as undeliverable, nothing further was heard from Petitioner before
Special Master Roth issued her decision dismissing this case on January 7,2016.
Petitioner's Motion for Review is also difficult to understand, but she apparently
maintains that she did not receive some of the Orders in this case including the November
10 Show Cause Order, even though they were not retumed as undeliverable. However,
Petitioner did receive the list of attorneys willing to replesent pro se petitioners, see her
Letter, Dkt. No. 17, and her Motion lbr Review, Dkt. No. 21, at p. 11. She also received
the Dismissal Order. Id. at 12.
Jurisdiction and Standard of Review
This Court has jurisdiction to review the vaccine decisions of the Special Masters
in accordance with 42 u.s.c. $ 3 00aa- 12(e)( I )-(2). The Special Master's findings of fact
receive deferential review under an "arbitrary and capricious" standard, while the Court
reviews legal conclusions under the "not in accordance with law" standard, and
discretionary rulings for an "abuse of discretion." Munn v. Sec'y of Health & Human
Servs.,970 F.2d 863, 870 n.10 (Fed. Cir. 1992). A dismissal for failure to prosecute is
reviewed under the abuse of discretion standard. Claude E. Atkins Enters., Inc. v. United
States, 899 F.2d 1180, 1183 (Fed. Cir. 1990); Adkins v. United States, 816 F.2d 1580, 1582
(Fed. Cir. 1987).
Discussion
Special Master Roth's decision details the instances where Petitioner failed to
comply with court ordels during the pendency of this case. It appears from the record that
Petitioner did not keep the Court inforrned of her contact information, despite many
attempts by each of the Special Masters and their staff to contact her. Special Master
Roth's November 10, 2015 Show Cause Order provided to Petitioner guidance on
explaining her case without benefit of counsel, since it appeared that she was unable to
secure legal assistance. Petitioner has never responded to the directives in that Order.
It appears that the two Special Masters assigned to the case each made an effort to
accommodate Petitioner's pro se status, but were unable to effectively communicate with
her despite their efforts. Vaccine Rule 2 1 (b) provides for involuntary dismissal by a special
master for "failure of the petitioner to prosecute or comply with these rules or any order of

Case 1:15-vv-00102-TCW Document 26 Filed 06/27/16 Page 4 of 4
the special master or the court." Failure to obey court orders constitutes a valid ground for
dismissal at the discretion of the Special Master. See Padmanabhan v. Sec'y of Health &
Human Servs., No.2016-1074,2016WL 463085 (Fed. Cir. Feb. 8,2016); Tsekouras v.
Sec'y of Health & Human Servs. ,26 Cl. Ct. 439 (1992). "While dismissal of a clairn is a
harsh action, especially to a pro se litigant, it is justified when a party fails to pursue
litigation diligently and disregards the court's rules and show cause order." Whiting v.
United States, 99 Fed. Cl. 13,17 (2011). The Court is mindful of Petitioner's pro se status
and has carefully considered the possibility that Petitioner may not be familiar with the
Court's rules. Although pro se litigants are generally afforded some leniency in procedural
matters, they cannot lail to provide essential contact information nor may they disregard
the timetables set by court orders and rules. See Carpenter v. United States, 38 Fed. Cl.
576, 578 (1997). In this case, the Courl finds that the Special Master did not abuse her
discretion in dismissing this case.
Respondent also filed a motion to disrniss the petition in this case, Dkt. No. 6, based
on a claim of untimely filing of the petition under the statute of lirnitations for vacctne
injury claims,42 USC $ 300aa-16(a)(3). Because the Court has afhrmed the Special
Master's dismissal for failure to prosecute, this issue need not be addressed.
Petitioner's Motion for Review is DENIED.
IT IS SO ORDERED,
lt--*,C L,R"L
THOMAS C. WHEELER
Judge

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DOCUMENT 2: USCOURTS-cofc-1_15-vv-00102-1
Date issued/filed: 2016-08-22
Pages: 5
Docket text: PUBLIC DECISION (Originally filed: 1/7/2016) regarding 19 DECISION of Special Master. Signed by Special Master Mindy Michaels Roth. (kh) Copy to parties.
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Case 1:15-vv-00102-TCWO RDoIcuGmeInNt 33A FLiled 08/22/16 Page 1 of 5
REISSUED FOR PUBLICATION
AUG 22 2016
OSM
U.S. COURT OF FEDERAL CLAIMS
3n tlj£ llnttefr states Court of 3\ebtml CUatms
OFFICE OF SPECIAL MASTERS —. . . _
No. 15-102V rlLED
Filed: January 7, 2016
JAN - 7 2016
OSM
SUSAN MARSHALL, * £&§2y&$L
FEDERALCLAIMS
*
Petitioner, * Failure to Comply with Court
* Orders; Statute ofLimitations.
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
Susan Marshall, Norcross, GA,pro se.
Adriana Teitel, Esq., USDepartmentofJustice, Washington, DC,for respondent.
DISMISSAL DECISION1
Roth, Special Master:
On February 2, 2015, Susan Marshall ["Ms. Marshall" or "petitioner"], actingpro se,
filed a petition for compensation under the National Vaccine Injury Compensation Program, 42
U.S.C. §300aa-10, etseq? [the"Vaccine Act"or"Program"], seeking compensation forthe
death ofher son, Antron Javar Thompson. Filed with the petition were several hundred pages of
medical records, some ofwhich appear to have been annotated by petitionerherself. Based on
1Becausethis decision containsareasoned explanation formy action inthis case, itwill beposted onthe United
States CourtofFederal Claims' website, in accordance withthe E-GovemmentActof2002, Pub. L. No. 107-347,
116Stat.2899, 2913 (Dec. 17,2002). Asprovided byVaccine Rule 18(b), each party has 14days within which to
requestredaction"ofanyinformationfurnishedbythatparty:(1)that isatradesecretorcommercialorfinancialin
substanceandisprivilegedorconfidential;or(2)thatincludesmedicalfilesorsimilarfiles,thedisclosureofwhich
wouldconstituteaclearlyunwarrantedinvasionofprivacy."VaccineRule18(b).Otherwise,theentiredecisionwill
be available to the public.
2National Childhood Vaccine Injury Actof1986, Pub. L.No.99-660, 100Stat.3755(1986). Hereinafter, forease
ofcitation,all"§" referencestotheVaccineActwillbetothepertinentsubparagraphof42U.S.C.§300aa.
1

Case 1:15-vv-00102-TCW Document 33 Filed 08/22/16 Page 2 of 5
the documents filed, it is unclear precisely which vaccination petitioner believed to be allegedly
causal. See generally Petition, Petitioner's Exhibit 1.
On several occasions during the eleven-month pendency ofthis matter, petitionerhas
failed to comply with court orders. Forthe reasons set forthbelow, Idismissthis petition for
failure to comply with court orders pursuant to Vaccine Rule 21(b). Additionally, I grant
respondent's motion to dismiss on the grounds that this claim was untimely filed.
I. Factual and Procedural History.
Ms. Marshall filed her claim on February 2, 2015. The petition, which was titled
"Complaint,"wascomprised of 12handwritten pagesandincludedpartialtranscriptions ofRule
1ofthe Vaccine Rules (Petition at 7)andAppendix Htothe Rules ofthe United StatesCourtof
Federal Claims (Petition at 10).3 Basedonthepetition, itappears thatMs.Marshall'sson,Mr.
Thompson,wasapatientattheAtlantaVeteransAffairsMedicalCenter.Thepetitionstatesthat
Mr.Thompson washospitalized fromSeptember26,2012untilDecember 31,2012.Petitionat
3."[Bjeforeleavingto gohome,"hewasapparently givenaninfluenzavaccination. Id. The
petitionthenalleges thatMr. Thompson "beginhaving fevers Nov. 02,2012; athome andhadto
bereturned to Atlanta Medical Center emergency room and stay about 2 daysinthe ICU for
speticshockandothermedical issues; thatleadtothedeathofMr.Thompson [sic]."Id.
Later,the petitionallegesthatMr.ThompsonwasapatientattheAtlantaVeterans
AffairsMedicalCenteruntilJanuary23,2013,andthathe"were deceasedNov. 30, 12."Id. at4.
Thepetition also alleges thatMr. Thompson wasdenied necessary medical treatment andwas
"kidnap[ped]...,covering uptheillness; thatwasfrom theInfluenzavaccine [sic]." Id. at5.It
appears thatpetitioner isalleging thatherson'sinfluenzavaccination caused him todevelop
sepsis and ultimately die, butthis assumption isby no means borne out bythecontents ofthe
petition. The petition isreplete with inconsistent dates. The final page ofthepetition isanote in
petitioner's hand, apparently signed byMr. Thompson, stating thathe"wassmotherby"adoctor
attheVAhospital onNovember 20,2011. ThenotewasdatedSeptember 24,2012. Id. at 14.
Withthepetition, Ms.Marshall filed some ofherson's medical records, many ofwhich
sheappearstohavewrittenon.See, e.g., Petitioner'sExhibit[hereinafter "Pet.Ex."] 1at 12,14,
22-25, 173,177.Othershavebeenredacted. SeePet.Ex. 1,at 60-90.Mr.Thompson's death
certificate statesthathewaspronounced deadat2253 (presumably 11:53pm) onJanuary 30,
2013.Pet.Ex. 1at 166. Hisprimarycauseofdeathwascomplications ofcerebral infarctasa
consequence ofhypertension. Id. Other significant conditions contributing tohisdeath were end-
stage renal disease and AIDS. Id. OnFebruary 12, 2013, Dr. Geoffrey Smith performed an
autopsy onMr. Thompson. Pet. Ex. 1at52-56. Dr. Smith's summary included cerebral infarct; a
3Becausethe petition and the accompanyingdocuments were notindividuallynumbered, Iwill refertothe
automatic numbers generated viaCM/ECF.

Case 1:15-vv-00102-TCW Document 33 Filed 08/22/16 Page 3 of 5
subdural hematoma; bronchopneumonia, probable Pneumocystis; a history ofcentral nervous
system toxoplasmosis, complicating HIV/AIDS; hydrocephalus; end-stage renal disease; and
hypertension.
On April 24, 2015, respondent filed a Rule 4(c) report and a motion to dismiss the case as
untimely filed. Five days later, ChiefSpecial Master Dorsey, who was then presiding overthis
matter,4 issuedanOrderscheduling astatus conference forMayof2015. Although thisOrder
was apparently returned as undeliverable (see ECF No. 8), the status conference was conducted
as scheduled.
ChiefSpecial MasterDorsey noted that during the status conference, petitioner
"expressed concern regarding the care her son received at the Veteran Affairs ("VA") hospital."
Order, issued June 1, 2015 [ECF No. 9], at 1.The ChiefSpecial Mastertold her that this claim
"only pertained to her vaccine injury claim on behalfofher son," and, "[i]nthe eventthat [she]
ha[d] inadvertently filed her claim with this Court," asked that "she dismiss her claim." Id. The
ChiefSpecial Master provided petitioner with information on exiting the Program. She also
granted Ms. Marshall until July 31, 2015 to retain counsel and provided her with a list of
attorneys accepting Vaccine Injury Program clients. Id.
The Order was returned as undeliverable, despite having been sentto the mailing address
Ms. Marshall provided during the status conference. See ECF No. 10. On August 20, 2015, the
ChiefSpecial Master issued an Order directing petitionerto contactthe court by September 23,
2015 or face dismissal ofher claim for failure to prosecute pursuantto Vaccine Rule 21(b)(1).
Order, issued Aug. 20, 2015 [ECF No. 11]. On August 31, 2015, Ms. Marshall emailed the Chief
Special Master's law clerk and requested the list ofVaccine Program attorneys. An Order issued
on September 4, 2015, which included the requested list, directed Ms. Marshall to retain an
attorney and file a Motion for Substitution ofCounsel by October 28, 2015. Order, issued Sept.
4, 2015. The Order also directed the Clerk's Office to update Ms. Marshall's telephone number.
Id.
On October 29, 2015, this case was reassigned to me. The same day, Ms. Marshall filed
her notice ofintent to remain in the Program and a letter. See ECF Nos. 16and 17.The letter,
which was titled "Motion for Substitution ofCounsel," appeared to indicate that Ms. Marshall
had contacted an attorney who had then declined representation. Ms. Marshall included another
phone number in the letter. My law clerk sent petitioner several emails (one on November 3,
2015, and another on November 6, 2015) that went unanswered. My law clerk also attempted to
call petitioner at both the phone number listed inthe docket and the phone number included in
her letter. None ofthe phone calls went through.
On November 10, 2015,1 issued an Orderto Show Cause in which I warned petitioner
This case was reassignedtome on October28, 2015.

Case 1:15-vv-00102-TCW Document 33 Filed 08/22/16 Page 4 of 5
that failure to comply with deadlines constitutes grounds for dismissal ofher case. Order, issued
Nov. 10, 2015 [ECF No. 18] at 3.1 informed petitioner that I wished to hold a status conference
to discuss her attempts to retain counsel and to clarify the sequence ofevents surrounding her
son's death. I then ordered petitionerto do the following things before December 10, 2015: (1)
contact the Court; (2) identify precisely which vaccination she believes to have caused her son's
death; and (3) provide a timeline ofevents leading to her son's death. To assist in her efforts to
provide the requested information, I included forms for Ms. Marshall to fill out.
Petitioner filed nothing in response to the Orderto Show Cause. There is no indication
that the Order and accompanying forms were returned as undeliverable.
II. Failure to Prosecute.
Under Vaccine Rule 21(b), a claim may be dismissed "for failure ofthe petitionerto
prosecute or comply with [the Vaccine Rules] or any order ofthe special master or the court."
Vaccine Rule 21(b)(1). See also Tsekourasv. Sec'y, HHS,26 CI. Ct. 439 (1992), aff'dper
curiam,991 F.2d 810 (Fed. Cir. 1993); Sapharas v. Sec'y, HHS, 35 Fed. CI. 503 (1996). Boththe
ChiefSpecial Master and I have emphasized that refusal to comply with court orders will result
in the dismissal ofMs. Marshall's claim. See Orders filed Aug. 20, 2015 [ECF No. 11] and Nov.
10, 2015 [ECF No. 18]. Despite these warnings, petitioner has still failed to comply with court
orders. Therefore, her claim is DISMISSED for failure to prosecute.
III. Dismissal for Untimely Filing.
Although ordinarily the statute oflimitations for vaccine injury claims is three years, the
Vaccine Act states that "ifa death occurred as a result ofthe administration of[a] vaccine," the
petition must befiled within "24 months fromthe dateofdeath." § 16(a)(3).Asrespondentnoted
in her Rule 4(c) report, given that Mr. Thompson died on January 30, 2013, any claim relating to
his death would only be timely iffiled by January 30, 2015. See Respondent's Rule 4(c) Report
and Motion to Dismiss, filed Apr. 24, 2015 [ECF No. 6] at 2.
Although Ms. Marshall signed an Applicationto Proceed InFormaPauperison January
30, 2015, like the petition, it was not received by the Court until February 2, 2015. See
Document 1-1 [ECF No. 1]at 1-2. "A document in paper form is filed when it is received and
marked filed by the clerk, not when mailed." Vaccine Rule 17(b)(4).Thus, evenifMs. Marshall
mailedherpetitiononthedatethatthestatuteoflimitationsexpired,becauseitwasnotreceived
bythe court until three days later, itwasuntimely. The claimwasnot filed until February2,
2015 and istherefore barred by the statute oflimitations. Respondent's motion to dismiss is
therefore GRANTED.

Case 1:15-vv-00102-TCW Document 33 Filed 08/22/16 Page 5 of 5
IV. Conclusion.
The allegations contained in the petition are very disturbing. However, petitioner has
repeatedly failed to comply with court orders, and thus her claim must be dismissed. Further,
even ifshe had complied with court orders, her claim is time-barred. Ms. Marshall should be
commended for her efforts to advocate on behalfofher son both before and after his death. Her
dedication to him is a creditto his memory. Nevertheless, she is not entitled to compensation
under the Vaccine Act.
The petition for compensation is therefore DENIED. The clerk is directed to enter
judgment accordingly.
IT IS SO ORDERED
Mindy Mictfaels Roth
Special Masaer