VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_17-vv-00905
Package ID: USCOURTS-cofc-1_17-vv-00905
Petitioner: Christine Midnight
Filed: 2017-07-05
Decided: 2022-01-12
Vaccine: MMR, Tdap, varicella
Vaccination date: 2014-08-15
Condition: encephalitis, speech-regression, blurred vision, and reduced cognitive ability
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Christine Midnight filed a claim alleging that the MMR, Tdap, and varicella vaccines she received on July 9, 2014, and August 15, 2014, caused her to develop encephalitis, speech regression, blurred vision, and reduced cognitive ability. She also alleged headaches, fevers, and pain in her arms and legs following the second vaccination. Ms. Midnight initially provided some medical records and a damages affidavit. However, the respondent questioned her encephalitis diagnosis and asserted that her symptoms predated vaccination, noting a history of a speech impediment, ADHD, and difficulty focusing. The court ordered Ms. Midnight to provide expert reports from a neurologist and neuroradiologist to support her claim of vaccine-induced injury and her medical theory of causation. Despite multiple extensions and attempts by her counsel to contact her, Ms. Midnight failed to provide the required expert reports or a clear statement of her intent to continue the litigation. Her counsel reported that she eventually indicated she did not wish to proceed. Consequently, the court dismissed the case for failure to prosecute and failure to comply with court orders. The decision also noted significant weaknesses in the case, including a lack of concrete evidence of encephalitis and evidence suggesting her alleged symptoms predated vaccination, but the dismissal was based solely on her failure to prosecute.

Theory of causation field:
unclear

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_17-vv-00905-0
Date issued/filed: 2022-01-12
Pages: 4
Docket text: PUBLIC DECISION (Originally filed: 11/23/2021) regarding 87 DECISION of Special Master. Signed by Special Master Christian J. Moran. (amb) Service on parties made.
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Case 1:17-vv-00905-UNJ Document 93 Filed 01/12/22 Page 1 of 4
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
* * * * * * * * * * * * * * * * * * * * * * * * *
CHRISTINE MIDNIGHT, *
*
* No. 17-905V
* Special Master Christian J. Moran
Petitioner, *
*
v. *
* Filed: November 23, 2021
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * * * * * * * * * * *
Mark T. Sadaka, Law Offices of Sadaka Associates, LLC, Englewood, NJ, for
petitioner;
Claudia B. Gangi, United States Dep’t of Justice, Washington, DC, for respondent.
UNPUBLISHED DECISION DENYING COMPENSATION1
Christine Midnight sought compensation through the Vaccine Program. 42
U.S.C. § 300aa-10 through 34 (2012). Ms. Midnight, however, appears not to be
interested in continuing the litigation as she has not substantively responded to
orders. Because Ms. Midnight has not prosecuted her case, her case is
DISMISSED.
I. Procedural History
Represented by attorney Mark Sadaka, Ms. Midnight alleged that the MMR,
Tdap, and varicella vaccines she received on July 9, 2014 and a second set of
MMR and varicella vaccines she received on August 15, 2014 caused her to
develop encephalitis, speech-regression, blurred vision, and reduced cognitive
1 The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services), requires that the Court post this decision on its
website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing
redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4).
Any redactions ordered by the special master will appear in the document posted on the website.

Case 1:17-vv-00905-UNJ Document 93 Filed 01/12/22 Page 2 of 4
ability. See Pet., filed July 5, 2017, at Preamble; ¶¶ 2, 13. Ms. Midnight alleged
that after her second set of vaccinations, she developed headaches, fevers, and pain
in her arms and legs. Id. ¶ 3. Ms. Midnight filed initial medical records in July
2017, August 2017, and September 2017. She filed a statement of completion on
September 27, 2017 and a damages affidavit on October 16, 2017. Subsequently,
she filed more medical records in April 2018, May 2018, June 2018, and April
2020.
Respondent recommended against compensation, questioning Ms.
Midnight’s encephalitis diagnosis and asserting that Ms. Midnight’s headaches,
speech regression, and reduced cognitive ability predated vaccination. Resp’t’s
Rep., filed July 26, 2018, at 11-12. Ms. Midnight was ordered to file expert reports
from a neurologist and neuroradiologist clearly identifying the injury Ms. Midnight
allegedly suffered as a result of vaccination and her medical theory of causation.
See order, filed Aug. 6, 2018.
After Ms. Midnight filed several motions to extend the deadline for her
expert reports, Ms. Midnight filed a status report on June 28, 2019 indicating that
she was still working to obtain an expert. Subsequently, she was ordered to file a
statement indicating that she would like to continue her case. Order, issued June
30, 2020. Ms. Midnight informed chambers via telephone that she wished to
proceed with her case on August 6, 2020; however, Ms. Midnight has yet to file a
signed statement indicating her intent to continue her case. Due to the coronavirus,
after approximately one year, Ms. Midnight was again directed to explain how she
intended to prosecute her case. Order, issued Aug. 17, 2021.
In response, Mr. Sadaka stated that his office had sent the August 17, 2021
order to Ms. Midnight via regular mail, certified mail, and email. Mr. Sadaka’s
staff called Ms. Midnight six times, reaching her only on September 24, 2021. In
this call, Ms. Midnight indicated that she was uncertain as to how she wanted to
proceed. Pet’r’s Status Rep., filed Sept. 24, 2021.
On October 1, 2021, Ms. Midnight was ordered to show cause why her case
should not be dismissed for failure to prosecute, for failure to comply with the
court’s orders, and/or for failure to present minimally persuasive evidence
supporting her claim. Order, issued Oct. 1, 2021. Ms. Midnight was also directed
to explain how she planned to obtain a report from an expert to support her claim
that vaccinations in 2014 harmed her.
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Case 1:17-vv-00905-UNJ Document 93 Filed 01/12/22 Page 3 of 4
On November 1, 2021, Mr. Sadaka responded to the order to show cause
requesting that the case not be dismissed at this time. Mr. Sadaka represented that
his office again mailed the order to show cause to Ms. Midnight via certified mail,
regular mail, and email. The United States Postal Service confirmed that Ms.
Midnight received the communication on October 9, 2021. Mr. Sadaka further
stated that on October 29, 2021, Ms. Midnight indicated that she did not wish to
proceed in this matter. However, Mr. Sadaka requested that Ms. Midnight’s case
not be dismissed until counsel received written confirmation from her.
Because Ms. Midnight did not satisfy the obligations in the October 1, 2021
order to show cause but had provided some response, she was again directed to
indicate her intention to maintain this action. Order, issued Nov. 3, 2021.
Mr. Sadaka responded on November 17, 2021. Mr. Sadaka again stated that
his office had reached out to Ms. Midnight six times after November 4, 2021.
However, he had not received any response from Ms. Midnight. Mr. Sadaka again
requested that Ms. Midnight’s case not be dismissed.
II. Analysis
When a petitioner (or plaintiff) fails to comply with Court orders to
prosecute her case, the Court may dismiss the case. Sapharas v. Sec’y of Health &
Hum. Servs., 35 Fed. Cl. 503 (1996); Tsekouras v. Sec’y of Health & Hum. Servs.,
26 Cl. Ct. 439 (1992), aff’d, 991 F.2d 810 (Fed. Cir. 1993) (table); Vaccine Rule
21(c); see also Claude E. Atkins Enters., Inc. v. United States, 889 F.2d 1180, 1183
(Fed. Cir. 1990) (affirming dismissal of case for failure to prosecute for counsel’s
failure to submit pre-trial memorandum); Adkins v. United States, 816 F.2d 1580,
1583 (Fed. Cir. 1987) (affirming dismissal of case for failure of party to respond to
discovery requests).
Here, Ms. Midnight was ordered several times to file a statement expressing
her interest in maintaining the litigation. Mr. Sadaka has represented that he has
attempted to communicate with Ms. Midnight many times, using different means
of communication. Ms. Midnight’s persistent silence leads to a conclusion that she
is no longer interested in pursuing the case. Therefore, her case is DISMISSED.
See B.K. v. Sec’y of Health & Hum. Servs., No. 17-1840V, 2020 WL 1888866
(Fed. Cl. Spec. Mstr. Feb. 12, 2020) (dismissing case pursuant to Vaccine Rule
21(b) due to petitioner’s failure to respond to orders demonstrating an interest in
maintaining the case); Woods v. Sec’y of Health & Hum. Servs., No. 10-377V,
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Case 1:17-vv-00905-UNJ Document 93 Filed 01/12/22 Page 4 of 4
2012 WL 2872290 (Fed. Cl. Spec. Mstr. June 14, 2012) (dismissing case due to
petitioner’s failure to prosecute).
While Ms. Midnight’s case is dismissed solely for her failure to express an
interest in continuing the litigation, Ms. Midnight’s case has significant
weaknesses. First, there is no concrete evidence in the medical records that Ms.
Midnight was diagnosed with encephalitis. See exhibits 1-22, 24-26; Resp’t’s Br.,
filed Aug. 14, 2020, at 12-13. Second, there is evidence that Ms. Midnight’s
headaches, speech regression, and reduced cognitive ability predated vaccination.
The medical records show that Ms. Midnight had a speech impediment as a child
and that she has a long history of ADHD and difficulty focusing. Exhibits 3, 4;
Resp’t’s Br. at 13-14. Finally, Ms. Midnight failed to produce expert reports from
a neurologist and neuroradiologist explaining the injury Ms. Midnight allegedly
developed due to vaccination and her medical theory of causation. Thus, even if
Ms. Midnight were to have responded to the orders requiring a statement from her,
Ms. Midnight may not have received compensation based upon the current
evidence. However, Ms. Midnight’s case is not being dismissed due to the
weakness in her case.
This case is dismissed for failure to prosecute. The Clerk shall enter
judgment accordingly. See Vaccine Rule 21(b).
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
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