VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_17-vv-01445
Package ID: USCOURTS-cofc-1_17-vv-01445
Petitioner: R.G.
Filed: 2017-10-05
Decided: 2018-11-30
Vaccine: 
Vaccination date: 2014-10-15
Condition: autism spectrum disorder (ASD)
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
On October 5, 2017, Paul Gallagher, as parent and natural guardian for his minor son R.G., filed a petition seeking compensation under the National Vaccine Injury Compensation Program. The petition alleged that childhood vaccines R.G. received on October 15, 2014, caused him to suffer developmental delays diagnosed as autism spectrum disorder (ASD). Special Master Brian H. Corcoran held an initial status conference on November 27, 2017, and expressed concerns about the claim's reasonable basis, noting that vaccine-autism claims have historically been unsuccessful. He explained that while Table claims based on a theory of encephalopathy causing a neurologic injury could be successful in rare circumstances, the record did not support R.G. suffering such an injury. A deadline of January 31, 2018, was set for R.G.'s medical records, which was extended twice. Respondent filed additional medical records on April 12, 2018, and June 13, 2018. On May 9, 2018, Special Master Corcoran held another status conference and reiterated his view that the claim likely faced reasonable basis problems, stating it was highly unlikely Petitioner could show sufficient grounds to proceed. He noted the record did not support an assertion that R.G. experienced a vaccine-induced encephalopathic reaction or that his developmental regression was more than temporally related to the vaccines. Respondent was directed to file a motion to dismiss by July 31, 2018, and Petitioner was to respond by August 31, 2018. Respondent filed the motion to dismiss on July 26, 2018. Petitioner failed to respond by the August 31 deadline. On September 6, 2018, Special Master Corcoran ordered the overdue response, and when Petitioner failed to comply, he issued an order to show cause on September 18, 2018, why the case should not be dismissed. Petitioner still had not filed a brief or responded to the show cause order. The Special Master noted that to receive compensation, a petitioner must prove a "Table Injury" or that an injury was actually caused by a vaccine, meeting the test set forth in Althen v. Sec'y of Health & Human Servs. The public decision does not describe the specific vaccines R.G. received beyond the date. The medical records did not support a vaccine-induced encephalopathy or that R.G.'s developmental regression was more than temporally related to the vaccines. One record from October 23, 2017, noted in the health history that R.G. "experienced a sudden and significant regression in language ... shortly after receiving numerous vaccinations," but offered no explanation or opinion regarding any correlation. Other records made no mention of any purported vaccine-induced injury, and at best, suggested only that R.G.'s parents reported a concern for vaccine-induced regression without any treater support connecting a vaccination with subsequent symptoms. One record from April 7, 2014, noted a concern for autism expressed prior to the vaccinations alleged to be causative. The Special Master also cited Petitioner's repeated failures to comply with court orders, including missing deadlines and ignoring the order to show cause, as grounds for dismissal. The case was dismissed for insufficient proof and failure to prosecute. Petitioner counsel was Paul Gallagher, pro se. Respondent counsel was Voris E. Johnson. Special Master was Brian H. Corcoran. The public decision does not specify an award amount or annuity terms as the case was dismissed.

Theory of causation field:
Petitioner Paul Gallagher, on behalf of minor R.G., alleged that childhood vaccines received on October 15, 2014, caused autism spectrum disorder (ASD). The Special Master, Brian H. Corcoran, found the claim lacked reasonable basis, noting the historical lack of success for vaccine-autism claims and the absence of evidence supporting a vaccine-induced encephalopathy or that R.G.'s developmental regression was more than temporally related to the vaccines. Medical records did not support a Table Injury or a non-Table causation-in-fact claim under Althen. One record noted parental concern for regression shortly after vaccinations, but offered no causal link. Other records indicated concerns for autism prior to vaccination or made no mention of vaccine involvement. Petitioner failed to provide sufficient proof and repeatedly failed to prosecute the case by missing court-ordered deadlines and ignoring a show cause order. The case was dismissed for insufficient proof and failure to prosecute. Petitioner counsel was Paul Gallagher, pro se. Respondent counsel was Voris E. Johnson. The public decision does not specify an award amount or annuity terms.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_17-vv-01445-0
Date issued/filed: 2018-11-30
Pages: 4
Docket text: PUBLIC DECISION (Originally filed: 10/10/2018) regarding 24 DECISION of Special Master. Signed by Special Master Brian H. Corcoran. (fm) Service on parties made.
--------------------------------------------------------------------------------
Case 1:17-vv-01445-UNJ Document 26 Filed 11/30/18 Page 1 of 4
REISSUED FOR PUBLICATION
NOV 30 2018
OSM
U.S. COURT OF FEDERAL CLAIMS
JJn tbe Wniteb ~tate% Qtourt of jfeberal Qtlaitn%
OFFICE OF SPECIAL MASTERS
No.17-1445V
(not to be pnblished)
* * * * * * * * * * * * * * * * * * * * * * * * *
R.G., by his parent and natural guardian, *
PAUL GALLAGHER, * Special Master Corcoran
*
* Filed: October 10, 2018
Petitioner, *
V. *
* Dismissal of Petition; Vaccine
SECRETARY OF HEALTH * Act; Denial Without Hearing; Failure
AND HUMAN SERVICES, * to Prosecute.
*
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * * *
Paul Gallagher, pro se, Southhampton, MA.
Voris E. Johnson, U.S. Dep't of Justice, Washington, D.C. for Respondent.
DECISION DISMISSING CASE FOR INSUFFICIENT PROOF AND FAILURE TO
PROSECUTE1
On October 5, 2017, Paul Gallagher filed a petition seeking compensation under the
National Vaccine Injury Compensation Program on behalf of his minor son, R.G.2 The Petition
alleged that certain childhood vaccines that R.G. received on October 15, 2014, caused him to
suffer from developmental delays that were eventually diagnosed as an autism spectrum disorder
("ASD"). See Petition ("Pet.") at 1-2.
1 Although this Decision has been formally designated "not to be published," it will neve1theless be posted on the
Comt of Federal Claims's website in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012)). This
means that the Decision will be available to anyone with access to the internet. 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 pmty has fourteen days within which to request redaction "of any
information furnished by that pmty: (I) 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 l 8(b ). Otherwise, the whole Decision will be available to the public.
Id.
2 The Vaccine Program comprises Pait 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-J0 through 34 (2012) ("Vaccine Act" or "the Act").
Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).

Case 1:17-vv-01445-UNJ Document 26 Filed 11/30/18 Page 2 of 4
I held an initial status conference in this case on November 27, 2017. Based on my review
of the Petition (in combination with the medical records filed as of that date),3 I outlined my
concerns to Petitioner regarding the claim's overall reasonable basis. See Order, dated Nov. 28,
2017 (ECF No. 8). I specifically explained to Petitioner that claims alleging vaccines can cause
autism have repeatedly been unsuccessful in the Vaccine Program. Id. at 1-2. I also noted, given
Petitioner's initial asse1iions that R.G. may have suffered some form of encephalopathy post
vaccination, that Table claims based on a theory of encephalopathy causing a neurologic injury
could be successful (albeit in rare circumstances).
At the conclusion of the conference, I set a deadline of January 31, 2018, for Petitioner to
file all relevant medical record evidence supporting his claim. Id. at 2. That deadline was
subsequently extended twice over a four-month period. See Order, dated Feb. 1, 2018 (ECF No.
10); Order, dated Apr. 4, 2018 (ECF No. 12). Thereafter, Respondent filed tlu·ee sets of medical
records for Petitioner on April 12, 2018 (including records discussing visits related to occupational
and speech therapy, as well as a neuropsychological evaluation). See ECF No. 16.
On May 9, 2018 (nearly five months past Petitioner's original medical records filing
deadline), I held an additional status conference to discuss my views of the case in light of the
additional medical records filed to date. Given the existence of numerous other decisions pursuing
theories similar to the one proposed herein (involving a claimed injury of autism after an
encephalopathic event), I reiterated to Petitioner my strongly-held view that his claim likely faced
reasonable basis problems given its overall nature. See Order, dated May 10, 2018 (ECF No. 18)
("May 10th Order"). I noted that it was highly unlikely that Petitioner could show sufficient
grounds for proceeding with this case, as he had produced no evidence to distinguish this case
from the many similar claims that had failed to establish entitlement. Id. at 1-2. In particular, the
record did not supp01i his assertion that R.G. experienced any type of encephalopathic reaction to
the vaccines he received, or that his developmental regression was more than temporally related
to those vaccines. Thus, I set a deadline ofJuly 31, 2018, for Respondent to file a motion to dismiss
the case, and I directed Petitioner to file a response on or before August 31, 2018. See May 10th
Order at 2.4
Respondent filed his motion to dismiss, along with a Rule 4(c) Report on July 26, 2018
(ECF No. 21). Thereafter, Petitioner entirely missed the August 31, 2018, deadline to respond.
Thus, on September 6, 2018, I ordered Petitioner to file the overdue response immediately. See
Order, dated Sept. 6, 2018 (ECF No. 22). After Petitioner ignored that deadline as well, I directed
Petitioner to show cause immediately why the case should not be dismissed for failure to comply
3 Petitioner filed roughly 50 pages of medical records with the petition (including R.G.'s birth certificate and records
concerning proof of vaccination, well-child visits, and developmental assessments). See generally ECF No. 1.
4 Respondent filed two additional sets of medical records for Petitioner on June 13, 2018. See ECF No. 20. Those
records included birth records and pediatric well-visit records from Baystate Medical Center.
2

Case 1:17-vv-01445-UNJ Document 26 Filed 11/30/18 Page 3 of 4
with my orders. See Order to Show Cause, dated Sept. 18, 2018 (ECF No. 23). Despite this Order,
Petitioner still has not filed a brief in support of his claim, nor filed a response of any kind to my
Show Cause Order.
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 her vaccinations, or (2) that he suffered an injury that was actually caused
by a vaccine. See Sections 13(a)(l )(A) and l l(c)(l ). An examination of the record, however, does
not uncover preponderant evidence that R.G. suffered a Table injury. Accordingly, Petitioner seeks
to establish entitlement via a causation-in-fact, non-Table claim - meaning he must meet the test
for such a claim set forth by the Federal Circuit in Alt hen v. Sec '.Y ofH ealth & Human Servs., 418
F.3d 1274 (Fed. Cir. 2005). Petitioner has had several chances to offer an evidence that would
support his claim, and he failed to submit such evidence into the record.
As noted above, Petitioner has not sufficiently distinguished this case from the many
autism claims that have been litigated unsuccessfully in the Program. The medical records filed in
the case do not support the contention that R.G. suffered a vaccine-induced encephalopathy (or
any other reaction) close-in-time to the vaccine or thereafter. See, e.g., Ex. 4 at I (November 2,
2014 medical visit three weeks post-vaccinations noting R.G. "look[ed] developmentally normal"
with no concern for any significant, adverse behavior apmt from parental concern R.G. was
"avoiding eye contact"); Ex. 7 at I (April 21, 2015 medical visit for staring spells noting GERD
or seizure as possible explanation); Ex. 8 at 1-13 (August 3, 2015 autism evaluation/diagnosis
making no mention of vaccine involvement). At best, one record from long after the October 2014
vaccinations notes in the health history that R.G. "experienced a sudden and significant regression
in language ... shortly after receiving numerous vaccinations[,]" though it offers no explanation
or opinion regarding any correlation between the two. See Ex. C at 2 (October 23, 2017
neuropsychological evaluation).
The remaining records make no mention of any purported vaccine-induced injury. See
generally Ex. A at 1-10 (December 15, 2017 occupational therapy evaluation relating to active
autism diagnosis); Ex.Bat 1-13 (October 6 & 13, 2017 speech evaluation relating to the same);
Ex.Cat 1-22 (October 23, 2017 neurophysiological evaluation); Ex. D (detailing various bi1th
records, well-baby and well-child visits, and autism assessments); Ex. E (January 1, 2016 visit
detailing post-vaccine treatment for reflux and allergic colitis, September 8, 2015 ER visit for leg
limp, and additional newborn records). Rather, at best, the records suggest only that R.G. 's parents
rep01ted a concern for vaccine-induced regression (absent any treater support connecting a
vaccination with any subsequent symptoms R.G. experienced). See, e.g., Ex. 4 at l; Ex. 5 at 1-2;
Ex. D at 144 (April 7, 2014 visit noting concern for autism expressed prior to vaccinations alleged
to be causative ofR.G. 's symptoms), 250 (April 24, 2015 visit noting parents rep01ted regression
3

Case 1:17-vv-01445-UNJ Document 26 Filed 11/30/18 Page 4 of 4
following twelve-month vaccinations). It is therefore appropriate to dismiss the claim for failure
of proof.
Moreover, Petitioner's claim may also be dismissed due to his repeated failures to comply
with my orders. A petitioner's inaction and failure to abide by court orders risks dismissal of a
claim. Tsekouras v. Sec'y ofH ealth & Human Servs., 26 Cl. Ct. 439 (1992), a[f'd per curiam, 991
F.2d 810 (Fed. Cir. 1993); Sapharas v. Sec'y ofHealth & Human Servs., 35 Fed. Cl. 503 (1996);
Vaccine Rule 21 (b ). Petitioner ignored a deadline set by an Order I issued, and then ignored a
second warning that the case would soon be dismissed if he again failed to respond. In each
instance I provided him with more than enough time to contact my chambers or file some kind of
status report. He was therefore on ample notice of the risks he took not taking my orders seriously.
Under the Vaccine Act, a petitioner may not receive a Vaccine Program award based solely
on his claims alone. Rather, the petition must be suppmied by either medical records or by the
opinion of a competent physician. Section 13(a)(l). In this case, there is insufficient evidence in
the record for Petitioner to meet her burden of proof. Petitioner's claim therefore cannot succeed
and must be dismissed. Section 11 (c ) (1 )(A).
Thus, this case is dismissed for insufficient proof and failure to prosecute. The Clerk
shall enter judgment accordingly. 5
IT IS SO ORDERED.
Brian H. Corcoran
Special Master
5 Pursuant to Vaccine Rule l l(a), the parties may expedite judgment by filing a joint notice renouncing their right to
seek review.
4