VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-00452
Package ID: USCOURTS-cofc-1_19-vv-00452
Petitioner: Laurie L. Ogle
Filed: 2019-03-27
Decided: 2021-06-09
Vaccine: Tdap
Vaccination date: 2018-01-15
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Laurie L. Ogle filed a petition alleging she suffered a shoulder injury related to vaccine administration (SIRVA) as a result of receiving a Tdap vaccine on January 15, 2018. The case was assigned to the Special Processing Unit due to its presumed expeditious resolution. However, nearly two years after the initial status conference, it was disclosed that insufficient medical documentation had been filed to demonstrate that Ms. Ogle's alleged injury lasted for six months or more, a requirement under the Vaccine Act. Despite multiple orders to show cause and extensions, Ms. Ogle failed to provide the necessary medical records or affidavits to substantiate her claim of a six-month residual effect. The records submitted only documented approximately two months of sequelae, and no evidence of inpatient hospitalization or surgical intervention was provided. Furthermore, Ms. Ogle failed to prosecute the matter by not responding to court orders. Consequently, the case was dismissed for failure to prosecute and insufficient proof.

Theory of causation field:
unclear

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_19-vv-00452-0
Date issued/filed: 2021-06-09
Pages: 4
Docket text: PUBLIC DECISION (Originally filed: 05/10/2021) regarding 31 DECISION of Special Master Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
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Case 1:19-vv-00452-UNJ Document 32 Filed 06/09/21 Page 1 of 4
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-0452V
UNPUBLISHED
LAURIE L. OGLE, Chief Special Master Corcoran
Petitioner, Filed: May 10, 2021
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Dismissal; Insufficient Proof; Failure
HUMAN SERVICES, to Prosecute; Tetanus-Diphtheria-
Acellular Pertussis (Tdap) Vaccine;
Respondent. Shoulder Injury Related to Vaccine
Administration (SIRVA)
Kelly Danielle Burdette, Burdette Law, PLLC, North Bend, WA, for Petitioner.
Alexa Roggenkamp, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION1
On March 27, 2019, Laurie L. Ogle filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleged that that she suffered from a shoulder injury related to
vaccine administration (“SIRVA”) as a result of receiving a tetanus-diphtheria-acellular
pertussis (“Tdap”) vaccine on January 15, 2018. Petition at Preamble. The case was
assigned to the Special Processing Unit of the Office of Special Masters (the “SPU”).
I. Relevant Procedural History
This matter was assigned to the SPU based on the initial presumption that it
presented issues that were likely to be resolved expeditiously. However, during the initial
1 Because this Decision contains a reasoned explanation for the action in this case, I am required to post it
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).
This means the Decision will be available to anyone with access to the internet. In accordance with
Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the
disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the
identified material fits within this definition, I will redact such material from public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).

Case 1:19-vv-00452-UNJ Document 32 Filed 06/09/21 Page 2 of 4
status conference nearly two years ago (on July 31, 2019), it was disclosed that
insufficient medical documentation had been filed demonstrating that Ms. Ogle’s alleged
vaccine-injury lasted for six months or more – as required under Section 11(c)(1)(D)(i) of
the Act. (ECF No. 10). This issue was echoed in my December 20, 2019, and February
3, 2020 Scheduling Orders, where I noted that many records appeared to be missing,
including records necessary to demonstrate that Petitioner could meet the six-month
severity requirement. (ECF Nos. 15, 17). Respondent observed the same absence of
evidence supporting this claim component. (ECF No. 16).
Petitioner reported in a February 21, 2020 status report that she had previously
submitted complete records from her relevant treatment providers and that she had
obtained no additional or subsequent treatment. (ECF No. 18). She reiterated this
information in a June 2, 2020 status report. (ECF No. 21). To date, no additional records
or affidavits have been filed in support of the Petition.
On July 17, 2020, Respondent file his Rule 4(c) Report recommending that
compensation be denied in this case, as well as a motion requesting that an Order to
Show Cause be issued directing Petitioner to demonstrate that she could overcome the
present evidentiary deficiency regarding the required six-month sequela. (ECF Nos. 23,
24). I agreed that such an Order was necessary, as Petitioner had not responded
substantively to the lack of proof on the severity question, and therefore issued the Order
on July 20, 2020 (ECF No. 25).
Petitioner did file an initial response to the Order to Show Cause stating that she
had been unable to see her doctor due to her income restrictions as well as restrictions
in place due to the COVID-19 pandemic, but she believed that she still suffered from
SIRVA and wanted additional time to seek follow up treatment. (ECF No. 26). I permitted
Petitioner an additional 60 days to seek this additional treatment with the caveat that I
would not permit this case to lag without Petitioner providing sufficient evidence to fulfill
basic statutory requirements. (ECF No. 27).
Two months later, Petitioner filed a status report stating that she had not yet
obtained the additional documents to meet her burden of proof. She requested additional
time to comply with my order. (ECF No. 30). I again granted Petitioner the additional time
she requested, but she failed to meet the February 2, 2021 deadline. (ECF No. 29). I
extended the deadline a second time to April 28, 2021 and Petitioner has yet to file any
response. (ECF No. 30).
2

Case 1:19-vv-00452-UNJ Document 32 Filed 06/09/21 Page 3 of 4
II. Insufficient Proof and Failure to Prosecute
a. Failure to Satisfy the Six-Month Severity Requirement
Under the Vaccine Act, a petition for compensation must contain “supporting
documentation, demonstrating that the person who suffered [a vaccine related injury]
...suffered the residual effects or complications of such illness, disability, injury, or
condition for more than 6 months after the administration of the vaccine.” Section
11(c)(1)(D)(i). The burden is on the petitioner to establish, by a preponderance of the
evidence, the persistence of a vaccine-caused injury for longer than six months. Song v.
Sec'y of Health & Human Servs., 31 Fed. Cl. 61, 65–66, aff'd, 41 F.3d 1520
(Fed.Cir.1994). A petitioner cannot establish the length or ongoing nature of an injury
merely through her self-assertion. Rather, the petition must be supported by medical
records or by the opinion of a competent physician. See Section 13(a)(1). Petitioner bears
the burden of proving a prima facie case by a preponderance of the evidence. Section
13(a)(1)(A); see also Moberly v. Sec’y of Health & Human Services, 592 F.3d 1315, 1321
(Fed. Cir. 2010).
Although Ms. Ogle has asserted in her April 1, 2019 affidavit that that she “still
suffer[s] from pain, weakness and lack of range of motion,” (Pet. Ex. 1 at 1, ¶7), she has
not submitted any medical records or other evidence to substantiate her assertions that
her shoulder pain persisted past her March 27, 2018 appointment – two months post-
vaccination. Petitioner has provided no records showing visits to any healthcare provider
for the period between that March date and August 2, 2018 (approximately seven months
post-vaccination). And the treatment records from August 2018 indicate that she
complained of left shoulder pain after she had been “throwing freight around” – not that
she was experiencing ongoing sequelae associated with her right-arm vaccination. Pet.
Ex. 2 at 78. Thus, Petitioner’s records document a little more than two months of sequela
for her alleged SIRVA injury.
The Act does permit individuals who otherwise do not meet the severity
requirement to bring a claim where they can demonstrate their injury caused them to
experience “inpatient hospitalization and surgical intervention.” Section 11(c)(1)(D)(iii).
But Ms. Ogle has not submitted evidence that this occurred in connection with her alleged
SIRVA injury. To date, Ms. Ogle has failed to support her claim with sufficient proof,
including medical records, affidavits, and/or the opinion of a medical expert to
substantiate her claim that her injury persisted for more than six months despite multiple
orders directing her to file this information.
3

Case 1:19-vv-00452-UNJ Document 32 Filed 06/09/21 Page 4 of 4
b. Failure to Prosecute
An additional ground for dismissal herein arises from Petitioner’s general failure to
prosecute this matter. It is a petitioner’s obligation to follow and respond to orders issued
by a special master in a case. The failure to do so – whether on account of attorney error,
inaction, or because a petitioner has failed to stay in contact and/or communicate with
counsel - is grounds for the claim’s dismissal. Tsekouras v. Sec’y of Health & Human
Servs., 26 Cl. Ct. 439 (1992), aff’d, 991 F.2d 810 (Fed. Cir. 1993) (per curiam),
(“[c]ontrolling precedent considers dismissal appropriate when failure to act is deemed
willful, when it is in violation of court orders, when it is repeated, and when clear warning
is given that the sanction will be imposed”); Sapharas v. Sec’y of Health & Human Servs.,
35 Fed. Cl. 503 (1996) (“[n]ot only did petitioner fail to meet the court's . . . . deadline, but
he also ignored the chief special master's ‘warning’ order, clearly placing petitioner on
notice that failure to respond to the court's order . . . , would result in dismissal of the
claim. The chief special master clearly did not abuse his discretion in dismissing this case
for failure to prosecute”); see also Vaccine Rule 21(b) (“[t]he special master or the court
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 or the court.”).
Petitioner was specifically advised in the July 20, 2020 Order to Show Cause, and
then in my December 2, 2020 and March 30, 2021 Scheduling Orders that she risked
dismissal of the claim. I ultimately set a final deadline to act by the end of April 2021. But
Petitioner continued to disregard my orders without justification or explanation.
III. Conclusion
To date, and despite ample opportunity, Petitioner has failed to provide
preponderant evidence that she suffered the residual effects of her injury for more than
six months or suffered an in hospital surgical intervention. Section 11(c)(1)(D)(i). She has
also failed to respond to the Order to Show Cause issued on July 20, 2020, and my
December 2, 2020 and March 30, 2021 Scheduling Orders, respectively. Accordingly, this
case is DISMISSED for failure to prosecute and insufficient proof. The clerk shall enter
judgment accordingly. 3
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
4