VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_15-vv-01292
Package ID: USCOURTS-cofc-1_15-vv-01292
Petitioner: K.S.
Filed: 2015-10-30
Decided: 2018-06-21
Vaccine: MMR
Vaccination date: 2012-10-15
Condition: idiopathic thrombocytopenic purpura (ITP)
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
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 field:
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.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_15-vv-01292-0
Date issued/filed: 2018-03-19
Pages: 4
Docket text: PUBLIC DECISION (Originally filed: 02/21/2018) regarding 46 DECISION of Special Master Signed by Special Master Laura D Millman. (tlf) Service on parties made.
--------------------------------------------------------------------------------
Case 1:15-vv-01292-PEC Document 47 Filed 03/19/18 Page 1 of 4
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 15-1292V
Filed: February 21, 2018
Not to be Published.
*************************************
JENNIFER SOGHOMONIAN, *
on behalf of K.S., *
*
measles-mumps-rubella (“MMR”)
Petitioner, *
vaccine;
*
idiopathic thrombocytopenic
v. *
purpura (“ITP”);
*
dismissal for failure to prosecute
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
*************************************
Allison R. Bracy, Los Angeles, CA, for petitioner.
Darryl R. Wishard, Washington, DC, for respondent.
MILLMAN, Special Master
DECISION1
On October 30, 2015, petitioner filed a petition under the National Childhood Vaccine
Injury Act, 42 U.S.C. § 300aa-10-34 (2012), alleging that her son, K.S., suffered from idiopathic
thrombocytopenic purpura (“ITP”) as a result of his receipt of measles-mumps-rubella (“MMR”)
vaccine on October 15, 2012. Pet. at 1-2. Petitioner alleges a Table injury, or in the alternative,
an off-Table injury caused in fact by MMR vaccine.
This case is now DISMISSED for failure to prosecute and failure to obey the
undersigned’s Order of December 28, 2017 and Order to Show Cause dated February 12, 2018,
1 Because this unpublished decision contains a reasoned explanation for the special master’s action in this
case, the special master intends to post this unpublished decision on the United States Court of Federal
Claims’ website, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012)
(Federal Management and Promotion of Electronic Government Services). Vaccine Rule 18(b) states that
all decisions of the special masters will be made available to the public unless they contain trade secrets
or commercial or financial information that is privileged and confidential, or medical or similar
information whose disclosure would constitute a clearly unwarranted invasion of privacy. When such a
decision is filed, petitioner has 14 days to identify and move to redact such information prior to the
document’s disclosure. If the special master, upon review, agrees that the identified material fits within
the banned categories listed above, the special master shall redact such material from public access.

Case 1:15-vv-01292-PEC Document 47 Filed 03/19/18 Page 2 of 4
under Vaccine Rule 21(b)(1).
BACKGROUND
The case was initially assigned to Chief Special Master Dorsey (SPU) on October 30,
2015.
Petitioner filed medical records on November 16, 2015. Petitioner filed more medical
records and the statement of completion on March 24, 2016. Respondent filed his Rule 4(c)
Report on April 19, 2016.
On May 24, 2016, Chief Special Master Dorsey found preponderant evidence to support
a preliminary finding that the onset of K.S.’s ITP occurred between November 23, 2012 and
November 30, 2012, within the 30-day timeframe for a Table injury of ITP following MMR
vaccine. Doc 20, at 2. Because respondent argued K.S.’s human metapneumovirus (“HMPV”)
caused K.S.’s injury, Chief Special Master Dorsey ordered petitioner to file an expert report
addressing whether HMPV played a causal role in the development of K.S.’s ITP by July 18,
2016. After two motions for an extension of time, petitioner filed her expert report on October
13, 2016.
On February 23, 2017, Chief Special Master Dorsey held a status conference, during
which respondent’s counsel explained that he received authority to enter into settlement
discussions and it was represented that K.S. had been experiencing speech impairments, but
respondent does not believe these symptoms are related to his ITP injury. Petitioner said K.S.’s
speech pathology is a result of the intracranial hemorrhage he experienced as a result of his ITP.
Chief Special Master Dorsey ordered petitioner to file an expert report by May 15, 2017
addressing the issue of whether K.S. is experiencing speech and cognitive impairments, and if so,
how those impairments are related to K.S.’s ITP. Doc 33, at 2-3. Petitioner never filed an expert
report in accordance with the Order of February 23, 2017.
On February 23, 2017, the case was reassigned to the undersigned.
During a status conference on May 22, 2017, the undersigned explained she believes this
is a good case for settlement and ordered petitioner to file the individualized education plans
(“IEP”) created for K.S. as well as K.S.’s speech therapy records.
On June 12, 2017, petitioner’s counsel said during a status conference that she would like
to have a neuropsychologist test K.S. to see if he has any cognitive delays that were not noted in
his IEP.
On July 12, 2017, the undersigned held a status conference and ordered petitioner to file
K.S.’s medical records from his visit to a pediatric neurologist by September 7, 2017 and make a
demand on respondent by September 8, 2017.
2

Case 1:15-vv-01292-PEC Document 47 Filed 03/19/18 Page 3 of 4
On September 7, 2017, the undersigned granted petitioner’s motion for an extension of
time until November 9, 2017 to file K.S.’s medical records and a status report saying she made a
demand. Petitioner filed nothing by November 9, 2017.
On November 15, 2017, the undersigned issued her first Order to Show Cause in this case
due to petitioner’s failure to prosecute and failure to obey her Order of September 7, 2017. The
undersigned ordered petitioner to file K.S.’s medical records, make a demand on respondent, and
file a status report stating she did so, or to move for an extension of time by November 29, 2017.
On November 28, 2017, petitioner filed a status report saying K.S. was unable to obtain
additional medical treatment and petitioner made a demand on respondent on November 27,
2017.
The undersigned held a status conference on December 28, 2017, during which she
ordered petitioner to send respondent a letter from her pediatric neurology expert (“the letter”)
discussing K.S.’s need for additional speech therapy, the relationship between K.S.’s speech
deficit and ITP, and any other issues respondent raised during a status conference on the same
day by January 8, 2018. According to respondent, petitioner never sent him the letter.
On February 5, 2018, the undersigned learned that petitioner’s counsel has moved to
another law firm and ordered petitioner’s counsel to file a notice of change of address and
employer by February 12, 2018. The undersigned’s law clerk emailed petitioner’s counsel
regarding the same matter on the same day. Petitioner neither filed a notice of change of address
and employer nor contacted the undersigned’s Chambers by February 12, 2018.
In her second Order to Show Cause dated February 12, 2018, the undersigned ordered
petitioner to send respondent the letter and file a notice of change of address and employer by
February 20, 2018. If she did neither, the undersigned would dismiss the case. Petitioner did not
file anything by February 20, 2018.
DISCUSSION
Under Vaccine Rule 21(b)(1), the undersigned can dismiss a petition based on
petitioner’s failure to prosecute and/or failure to obey orders. Petitioner’s counsel failed to
prosecute and failed to obey Orders on four occasions: (1) Chief Special Master Dorsey’s Order
of February 23, 2017; (2) the undersigned’s Order of September 7, 2017; (3) the undersigned’s
Order of December 28, 2017; and (4) the undersigned’s Order to Show Cause dated February 12,
2018.
This undersigned DISMISSES this petition for failure to prosecute and failure to obey
the above-mentioned Orders, under Vaccine Rule 21(b)(1).
CONCLUSION
3

Case 1:15-vv-01292-PEC Document 47 Filed 03/19/18 Page 4 of 4
The petition is DISMISSED. In the absence of a motion for review filed pursuant to
RCFC Appendix B, the Clerk of Court is directed to enter judgment herewith.2
IT IS SO ORDERED.
Dated: February 21, 2018 /s/ Laura D. Millman
Laura D. Millman
Special Master
2 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or
jointly, filing a notice renouncing the right to seek review.
4

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DOCUMENT 2: USCOURTS-cofc-1_15-vv-01292-1
Date issued/filed: 2018-06-21
Pages: 6
Docket text: Re-docketed for publication. JUDGE VACCINE REPORTED OPINION (Public Version of the court's opinion issued 6/4/2018, ECF No. 52 ). Pursuant to Rule 18(b) of the Vaccine Rules of the this court (Appendix B to the Rules of the United States Court of Federal Claims), this opinion was initially filed under seal on June 4, 2018. Pursuant to 4 of the ordering language, the parties were to propose redactions of the information contained therein on or before June 19, 2018. No proposed redactions were submitted to the court. Service on parties made. Signed by Judge Patricia E. Campbell-Smith. (ypb)
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Case 1:15-vv-01292-PEC Document 55 Filed 06/21/18 Page 1 of 6
In the United States Court of Federal Claims
No. 15-1292V
(E-Filed: June 21, 2018)1
)
JENNIFER SOGHOMONIAN, )
on behalf of K.S., )
)
Petitioner, )
v. ) Dismissal for Failure to
) Prosecute.
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
)
Allison R. Bracy, Rancho Cucamonga, CA, for petitioner.
Darryl R. Wishard, Senior Trial Attorney, with whom were Chad A. Readler, Acting
Assistant Attorney General, C. Salvatore D’Alessio, Acting Director, Catherine E.
Reeves, Deputy Director, Torts Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent.
OPINION
CAMPBELL-SMITH, Judge.
Before the court is petitioner’s motion for review of the special master’s decision
of dismissal for failure to prosecute, pursuant to Rules 23 and 24 in Appendix B
(Vaccine Rules) of the Rules of the United States Court of Federal Claims (RCFC), and
RCFC 60, filed on March 22, 2018. See ECF No. 48. The government has filed a
response. See ECF No. 51. This matter is ripe and ready for a decision by the court.
For the following reasons, petitioner’s motion is DENIED, and the special master’s
decision is SUSTAINED.
1 Pursuant to Rule 18(b) of the Vaccine Rules of the United States Court of Federal
Claims (Appendix B to the Rules of the United States Court of Federal Claims), this
opinion was initially filed under seal on June 4, 2018. Pursuant to ¶ 4 of the ordering
language, the parties were to propose redactions of the information contained therein on
or before June 19, 2018. No proposed redactions were submitted to the court.

Case 1:15-vv-01292-PEC Document 55 Filed 06/21/18 Page 2 of 6
I. Background
On October 30, 2015, petitioner filed the present vaccine action on behalf of K.S.
See ECF No. 1. After nearly a year and a half of litigation, on February 23, 2017,
respondent reported to the special master that the Secretary intended to engage in
settlement discussions. See ECF No. 46 at 2 (Spec. Mastr. Dec.). In order to assist the
parties in resolving questions about the cause of speech and cognitive impairments
experienced by K.S., the special master directed petitioner to file an expert report
addressing the speech and cognitive impairments, on or before May 15, 2017. See id.
Petitioner never filed the expert report. See id.
On June 12, 2017, petitioner expressed a desire to have a neuropsychologist test
K.S. for cognitive delays that had not previously been identified. See id. On July 12,
2017, the special master directed petitioner to file K.S.’s medical records from a visit to
a pediatric neurologist on or before September 7, 2017, and to make a demand on
respondent on or before September 8, 2017. See id. The special master granted an
extension of those deadlines, giving petitioner until November 9, 2017, to file the
records and a status report relating to a demand on respondent. See id. at 3. Petitioner
did not file either the records or the report by November 9, 2017. See id.
The special master issued an order on November 15, 2017, directing petitioner to
show cause why she had failed to meet the court’s deadlines. See id. In the order, the
special master directed petitioner to file the medical records, make a demand on
respondent, and file a status report on or before November 29, 2017. See id. On
November 28, 2017, petitioner filed a status report informing the special master that she
was unable to obtain additional medical treatment for K.S., and stating that she made a
demand on respondent on November 27, 2017. See id.
During a status conference on December 28, 2017, the special master directed
petitioner to forward a letter from her pediatric neurology expert to respondent. See id.
Respondent never received the letter. See id.
The special master learned, on February 5, 2018, that petitioner’s counsel had
changed law firms, and directed counsel to update her contact information on or before
February 12, 2018. See id. The special master’s law clerk also attempted to contact
petitioner’s counsel by email the same day. See id. Petitioner’s counsel did not respond
by February 12, 2018. See id.
The special master entered a second show cause order on February 12, 2018,
stating that if petitioner’s counsel failed to respond to the previous inquiries on or before
February 20, 2018, the case would be dismissed. Petitioner did not file anything by
February 20, 2018. See id.
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Case 1:15-vv-01292-PEC Document 55 Filed 06/21/18 Page 3 of 6
On March 19, 2018, the special master dismissed the case for failure to prosecute
and for failure to obey four orders: (1) the February 23, 2017 order directing petitioner
to file an expert report relating to speech and cognitive impairments, on or before May
15, 2017; (2) the September 7, 2017 order directing petitioner to file medical records
from a pediatric neurologist and a status report regarding a demand on respondent, on or
before November 9, 2017; (3) the December 28, 2017 order directing petitioner to
forward a letter from her pediatric neurology expert to respondent; and (4) the February
12, 2018 show cause order. See id.
II. Legal Standards
The United States Court of Federal Claims has jurisdiction to review the special
master’s decision pursuant to 42 U.S.C. § 300aa-12(e)(1) (2012). See also Vaccine Rule
23. Following its review, the court may either: (1) uphold the special master’s findings
of fact and conclusions of law and sustain the special master’s decision; (2) set aside
some or all of the special master’s findings of fact and conclusions of law and issue
different findings of fact and conclusions of law; or (3) remand the petition for further
action in accordance with the court’s direction. See 42 U.S.C. § 300aa-12(e)(2)(A)-(C);
see also Vaccine Rule 27.
Vaccine Rule 21(b)(1) states that a “special master . . . may dismiss a petition or
any claim therein for failure of the petitioner to prosecute or comply with these rules or
any order of the special master.” The court reviews a special master’s decision
dismissing a petition for failure to prosecute under an abuse of discretion standard. See
Padmananbhan v. Sec’y of Dep’t of Health & Human Servs., 638 F. App’x 1013, 1014-
15 (Fed. Cir. 2016) (per curiam).
A special master abuses his or her discretion when the decision is:
(1) . . . clearly unreasonable, arbitrary, or fanciful; (2) . . . based on an
erroneous conclusion of the law; (3) . . . clearly erroneous; or (4) the record
contains no evidence on which the . . . [special master] rationally could have
based his decision.
Murphy v. Sec’y of Dep’t of Health & Human Servs., 30 Fed. Cl. 60, 61 (1993) (quoting
Hendler v. United States, 952 F.2d 1364, 1380 (Fed. Cir. 1991)). See also Munn v.
Sec’y of Dep’t of Health & Human Servs., 970 F.2d 863, 870 (1992) (explaining this
court owes “great deference” to the fact-findings and fact-based conclusions of the
special master). An “abuse of discretion may only be found where ‘no reasonable man
would take the view adopted by the [special master] . . . .’” Murphy, 30 Fed. Cl. at 62
(quoting PPG Indus., Inc. v. Celanese Polymer Specialties Co., 840 F.2d 1565, 1572
(Fed. Cir. 1988)).
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Case 1:15-vv-01292-PEC Document 55 Filed 06/21/18 Page 4 of 6
III. Analysis
Petitioner now claims that the special master improperly dismissed her case
because:
1) The Special Master’s decision based on failure to follow Court orders is
unjust and relief should be granted to Petitioner as each enumerated violation
was as [a] result of inadvertence or excusable neglect on the part of
Petitioner’s attorney[, and]
2) The Special Master’s decision based on Petitioner’s failure to prosecute
is not supported by the evidence and history of this case.
ECF No. 48 at 2-3. In her motion requesting review of the special master’s order
dismissing the case, petitioner attempts to explain or justify each of her failures to
comply with the special master’s orders.
As to the first order at issue, the February 23, 2017 order directing petitioner to
file an expert report relating to speech and cognitive impairments on or before May 15,
2017, petitioner states that “given Minor K.S.’s age, his treating physicians felt that it
was too early to fully evaluate any cognitive impairment.” Id. at 4. The court has no
reason to question the veracity of this statement, but even assuming this to be the case,
such a medical conclusion does not excuse petitioner from complying with a court order.
If no evaluation was possible, petitioner should have informed the special master by the
May 15, 2017 deadline.
Petitioner states that she updated the court at a May 22, 2017 status conference,
and that during the conference the special master “excused the failure to submit a
report.” Id. at 8. According to the case docket, the conference was not officially
recorded, and the scheduling order entered after the conference did not address the issue.
See ECF No. 36 (scheduling order). In the court’s view, the fact that the special master
specifically discussed petitioner’s failure to comply with the February 23, 2017 order in
dismissing the case is weighty counter-evidence to petitioner’s claim that her failure was
excused. Further, the fact that petitioner explained her failure at a later time does not
amount to retroactive compliance with the special master’s order.
Petitioner offers no colorable excuse for her failure to comply with the second
order at issue, the September 7, 2017 order directing petitioner to file medical records
from a pediatric neurologist and a status report regarding a demand on respondent, on or
before November 9, 2017. She states that “Petitioner’s attorney inadvertently missed
this deadline and instead filed a status report and made a settlement demand on
November 29, 2017.” ECF No. 48 at 8. She then claims that the report was “accepted
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Case 1:15-vv-01292-PEC Document 55 Filed 06/21/18 Page 5 of 6
by the Court with no further mention.” Id. The court fails to see how this explanation in
any way excuses petitioner’s failure. See Bridgham v. Sec’y of the Dept. of Health &
Human Servs., 33 Fed. Cl. 101, 105 (1995) (finding, in the context of a motion pursuant
to RCFC 60(b)(1), that carelessness on the part of counsel is not a sufficient reason to
grant relief).
Although petitioner acknowledges that she was directed to forward a letter from
her pediatric neurology expert to respondent on December 28, 2017, she offers no
excuse at all for her failure to do so. See ECF No. 48 at 5-6, 8-9. Around the second
week of January 2018, petitioner’s counsel left the law firm with which she had been
practicing, and she claims that she expected her prior firm to ensure compliance with
any deadlines. See id. She states that she had no knowledge of the February 12, 2018
show cause order. See id. at 6.
So long as petitioner’s counsel was the attorney of record in this matter, she
remained responsible for compliance with all relevant orders. The special master made
this abundantly clear in her order dated December 28, 2017, in which she acknowledged
petitioner’s counsel’s plan to change law firms, directing petitioner to “file a notice of
change of address after her counsel changes the address and contact number.” See ECF
No. 43 at 1 (status conf. order). The fact that petitioner’s counsel entered into a new
professional arrangement does not excuse her disregard of the special master’s orders.
IV. Conclusion
For the foregoing reasons,
(1) Petitioner’s motion for review, ECF No. 48, is DENIED;
(2) The special master’s February 21, 2018 decision, ECF No. 46, is
SUSTAINED;
(3) The clerk’s office is directed to ENTER final judgment in accordance
with the special master’s decision of February 21, 2018; and
(4) The parties shall separately FILE any proposed redactions to this
opinion, with the text to be redacted clearly marked out or otherwise
indicated in brackets, on or before June 19, 2018.
IT IS SO ORDERED.
s/Patricia Campbell-Smith
PATRICIA CAMPBELL-SMITH
Judge
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Case 1:15-vv-01292-PEC Document 55 Filed 06/21/18 Page 6 of 6
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