VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_18-vv-01333
Package ID: USCOURTS-cofc-1_18-vv-01333
Petitioner: David Esala
Filed: 2018-08-30
Decided: 2021-04-01
Vaccine: influenza
Vaccination date: 2015-09-01
Condition: Guillain Barré syndrome
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
David Esala filed this action on August 30, 2018, alleging that the influenza vaccine he received on September 1, 2015 caused him to develop Guillain Barré syndrome. His counsel reported in September 2020 that Mr. Esala had recently died and that the family did not wish to continue the action. Counsel indicated that a motion to dismiss would be filed, but further status reports were filed as documentation for an estate representative was pending. The court scheduled a status conference in January 2021, and counsel informed the court that attempts to re-establish contact with Mr. Esala's son had been unsuccessful. The court ordered counsel to provide notice of the risk of dismissal to the estate and family members if no representative appeared or sought substitution by February 16, 2021. No one has sought substitution or appeared on behalf of the estate. The court noted that more than 90 days had passed since Mr. Esala's death, as required by RCFC 25 for dismissal if no substitution is made. Given the lack of movement and the passage of time, the court dismissed the petition with prejudice for failure to prosecute, citing judicial efficiency and the Program's policy goal of swift determinations.

Theory of causation field:
unclear

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_18-vv-01333-0
Date issued/filed: 2021-04-01
Pages: 3
Docket text: PUBLIC DECISION (Originally filed: 02/22/2021) regarding 48 DECISION of Special Master, Signed by Chief Special Master Brian H. Corcoran. (omg) Service on parties made.
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Case 1:18-vv-01333-UNJ Document 50 Filed 04/01/21 Page 1 of 3
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1333V
(not to be published)
* * * * * * * * * * * * * * * * * * * * * * * * *
DAVID ESALA, *
* Filed: February 22, 2021
Petitioner, *
*
v. * Dismissal; RCFC 25.
*
SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * * *
DECISION DISMISSING PETITION1
On August 30, 2018, David Esala filed this action seeking compensation under the National
Vaccine Injury Compensation Program (the “Program”).2 ECF No. 1. Mr. Esala alleged that the
influenza vaccine he received on September 1, 2015 caused him to develop Guillain Barré
syndrome. Id. at 1.
On September 8, 2020, Petitioner’s counsel submitted a status report (ECF No. 43)
indicating that Mr. Esala had recently died, and that counsel was in the process of determining if
the Petitioner’s family wished to continue the action. Counsel filed another status report two
months later, on November 9, 2020, stating that Petitioner’s son had informed counsel that the
1 Although this Decision has been formally designated “not to be published,” it will nevertheless be posted on the
Court of Federal Claims’ 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 party has fourteen days within which to request redaction “of any
information furnished by that party: (1) 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 18(b). Otherwise, the whole Decision will be available to the public.
Id.
2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa-10–34 (2012)) (hereinafter “Vaccine Act” or “the Act”).
All subsequent references to sections of the Vaccine Act shall be to the pertinent subparagraph of 42 U.S.C. § 300aa.

Case 1:18-vv-01333-UNJ Document 50 Filed 04/01/21 Page 2 of 3
family did not wish to continue his father’s action. Status Report, filed Nov. 9, 2020 (ECF No. 44).
Thus, Petitioner’s counsel indicated that a Motion to Dismiss would be filed within a week. Id.
The case was not dismissed as anticipated. Instead, Petitioner’s counsel submitted a third
status report, this time noting that she had not yet received documentary confirmation of the
appointment of an estate representative, and that once this was in hand dismissal would be
requested. Status Report, filed Nov. 20, 2020 (ECF No. 45) (“Third Status Rep.”). Additional time
passed with no action on the matter.
Accordingly, I scheduled a status conference for January 11, 2021, in order to obtain a
better understanding of the situation. Petitioner’s counsel informed me that she had made several
attempts to re-establish contact with Mr. Esala’s son, but that these attempts had been unsuccessful,
and she still was not in possession of the documentation required for a party’s substitution. I
thereafter ordered Petitioner’s counsel to provide notice of the risk of dismissal of the Petition to
Petitioner’s estate and to those members of Petitioner’s family and/or representatives that could be
identified if no representative appeared in the matter or sought substitution on or before February
16, 2021. Order, filed Jan. 11, 2021 (ECF No. 46). On January 15, 2021, Petitioner’s counsel filed
a status report indicating that she had acted in accordance with my Order. Status Report, filed Jan.
15, 2021 (ECF No. 47). To date, however, no person has sought substitution, or has otherwise
appeared in the matter on behalf of Petitioner’s estate.
ANALYSIS
The Court’s rules (which inform Vaccine Program practice—especially in the absence of
contrary rules) provide for the very circumstances the parties face. Pursuant to Rule 25 of the
United States Court of Federal Claims (“RCFC”), “[a] motion for substitution may be made by
any party or by the decedent’s successor or representative.” RCFC 25. Upon the death of a
claimant, if a motion for substitution is not made within 90 days after service of the statement
noting death, the action must be dismissed. RCFC 25(a)(1).
Here, counsel took reasonable care not to seek dismissal before official authorization from
an estate representative had been obtained, in accordance with Rule 25. But based solely on the
filed status reports, it is evident that well more than the 90 days required by Rule 25 has passed
since Petitioner’s death (assuming, as is reasonable, that the death likely occurred before the
September 2020 status report informing me of it). And although a literal “statement” noting death
was never filed, there is no reason to doubt counsel’s representation of the fact of Mr. Esala’s death
(which is not otherwise disputed). In addition, the November 2020 status report establishes that at
least Petitioner’s son is aware of his father’s death and the present claim, and no representative of
the estate has been identified to counsel who could be so served.
It is my determination that the Petition may now appropriately be dismissed under the
circumstances. No one from Petitioner’s family has expressed the desire to maintain the action,
2

Case 1:18-vv-01333-UNJ Document 50 Filed 04/01/21 Page 3 of 3
despite communication with counsel about the matter. More than five months have passed since
counsel first reported that Mr. Esala was deceased—and thus almost twice the amount of time
provided under Rule 25 to act. In addition, following the precise requirements of Rule 25 in such
a case would lead to a perverse outcome—since it would appear that any case in which it was
understood that the plaintiff/petitioner had died could nevertheless remain in stasis indefinitely,
until such time as an estate representative was identified to counsel who could be served with the
statement of death. It is otherwise inconsistent with the Program’s policy goal of swift and
streamlined determinations to continue to wait for the appearance of an estate representative to act,
when nothing suggests that occurrence is likely any time soon.
CONCLUSION
Despite ample opportunity for substitution and diligent efforts by Petitioner’s counsel to
find an appropriate representative, there has been no movement on this front for more than five
months, and nothing suggests circumstances are likely to change. Therefore, in the interest of
judicial efficiency, Petitioner's claim should be dismissed for failure to prosecute. RCFC 25;
Vaccine Rule 21(b)(1).
Accordingly, the Petition is dismissed with prejudice. In the absence of a motion for
review filed pursuant to RCFC Appendix B, the clerk of the court SHALL ENTER JUDGMENT
in accordance with the terms of this decision.3
IT IS SO ORDERED.
s/ Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment if (jointly or separately) they file notices
renouncing their right to seek review.
3