K.S. v. HHS - MMR, idiopathic thrombocytopenic purpura (ITP) (2018)
Case summary [AI summaries can sometimes make mistakes]
On October 30, 2015, Jennifer Soghomanian filed a petition on behalf of her son, K.S., alleging that K.S. suffered from idiopathic thrombocytopenic purpura (ITP) as a result of receiving the measles-mumps-rubella (MMR) vaccine on October 15, 2012. The petition claimed a Table injury or, alternatively, an off-Table injury.
The case was initially assigned to Chief Special Master Dorsey. On May 24, 2016, Chief Special Master Dorsey made a preliminary finding that K.S.'s ITP onset occurred within the Table timeframe.
Respondent argued that K.S.'s human metapneumovirus (HMPV) caused the injury, and Chief Special Master Dorsey ordered petitioner to file an expert report addressing this by July 18, 2016. Petitioner filed her expert report on October 13, 2016.
During a status conference on February 23, 2017, respondent's counsel indicated that K.S. was experiencing speech impairments, which respondent did not believe were related to his ITP. Petitioner's counsel stated that K.S.'s speech pathology was a result of an intracranial hemorrhage from his ITP.
Chief Special Master Dorsey ordered petitioner to file an expert report by May 15, 2017, addressing the speech and cognitive impairments and their relation to K.S.'s ITP. Petitioner never filed this report.
The case was reassigned to Special Master Laura D. Millman on February 23, 2017.
Special Master Millman ordered petitioner to file K.S.'s individualized education plans (IEPs) and speech therapy records by May 22, 2017. Petitioner's counsel expressed a desire to have a neuropsychologist test K.S. for cognitive delays.
On July 12, 2017, Special Master Millman ordered petitioner to file K.S.'s medical records from a pediatric neurologist visit by September 7, 2017, and to make a demand on respondent by September 8, 2017. Petitioner was granted an extension until November 9, 2017, to file these documents.
Petitioner filed nothing by November 9, 2017. Special Master Millman issued an Order to Show Cause on November 15, 2017, ordering petitioner to file the medical records, make a demand, and file a status report by November 29, 2017.
Petitioner filed a status report on November 28, 2017, stating she was unable to obtain additional medical treatment and had made a demand on November 27, 2017. During a status conference on December 28, 2017, Special Master Millman ordered petitioner to send respondent a letter from her pediatric neurology expert discussing K.S.'s speech therapy needs, the relationship between his speech deficit and ITP, and other issues raised by respondent, by January 8, 2018.
Respondent stated he never received this letter. On February 5, 2018, Special Master Millman ordered petitioner's counsel to file a notice of change of address and employer by February 12, 2018, due to counsel moving to another law firm.
Petitioner neither filed the notice nor contacted Chambers. Special Master Millman issued a second Order to Show Cause on February 12, 2018, stating the case would be dismissed if petitioner did not send the letter and file the notice by February 20, 2018.
Petitioner filed nothing by February 20, 2018. On March 19, 2018, Special Master Millman dismissed the case for failure to prosecute and failure to obey court orders, specifically citing the February 23, 2017, September 7, 2017, December 28, 2017, and February 12, 2018 orders.
Petitioner filed a motion for review of this dismissal. On June 21, 2018, Judge Patricia E.
Campbell-Smith denied the motion for review and sustained the Special Master's decision, finding that petitioner's counsel's failures to comply with court orders were not excused by inadvertence or excusable neglect. The court directed that final judgment be entered.
Theory of causation
Petitioner Jennifer Soghomanian, on behalf of minor K.S., alleged that K.S. suffered from idiopathic thrombocytopenic purpura (ITP) as a result of receiving the measles-mumps-rubella (MMR) vaccine on October 15, 2012. The petition claimed a Table injury or, alternatively, an off-Table injury. The Special Master initially found preponderant evidence for a Table injury onset timeframe. However, the case was dismissed for failure to prosecute and failure to obey court orders. Petitioner's counsel repeatedly failed to meet court-ordered deadlines for filing expert reports (specifically regarding speech and cognitive impairments and their relation to ITP) and medical records, and failed to provide a requested letter from a pediatric neurology expert to the respondent. Petitioner argued that these failures were due to inadvertence or excusable neglect. The court reviewed the Special Master's decision and denied petitioner's motion for review, sustaining the dismissal. The court found that the petitioner's counsel's failures were not excused by inadvertence or excusable neglect, and that the Special Master did not abuse her discretion in dismissing the case. No specific medical experts were named in the public decision, and the alleged mechanism of injury beyond the Table presumption for ITP following MMR was not fully developed due to the dismissal. The case was dismissed by Special Master Laura D. Millman on March 19, 2018, and this decision was sustained by Judge Patricia E. Campbell-Smith on June 21, 2018. Petitioner's counsel was Allison R. Bracy, and respondent's counsel was Darryl R. Wishard.
Source PDFs
USCOURTS-cofc-1_15-vv-01292