VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-01662
Package ID: USCOURTS-cofc-1_19-vv-01662
Petitioner: Richard Rebeles
Filed: 2019-10-25
Decided: 2022-11-07
Vaccine: influenza
Vaccination date: 2016-10-26
Condition: left shoulder injury related to vaccine administration (SIRVA)
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Richard Rebeles filed a petition alleging a left shoulder injury related to vaccine administration (SIRVA) after receiving an influenza vaccine on October 26, 2016. He filed his petition on October 25, 2019, and later filed an amended petition and medical records in September 2020. The case was assigned to the Special Processing Unit, and Petitioner submitted updated medical records over the following months. Respondent filed a report opposing compensation, noting an eleven-month gap between vaccination and treatment and questioning whether the pain was vaccine-related, citing a physician's opinion that it was likely a rotator cuff strain. During a status conference in March 2022, Petitioner's counsel reported being unable to contact Mr. Rebeles for five months. The court issued an order to show cause, instructing counsel to forward it to Petitioner, but Petitioner failed to respond by the deadline. The court noted that failure to communicate with counsel and respond to court orders is grounds for dismissal. Ultimately, the case was dismissed for failure to prosecute due to Petitioner's continued disregard of court orders and failure to communicate.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_19-vv-01662-0
Date issued/filed: 2022-11-07
Pages: 4
Docket text: PUBLIC DECISION (Originally filed: 10/06/2022) regarding 37 DECISION of Special Master, ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made.
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Case 1:19-vv-01662-UNJ Document 38 Filed 11/07/22 Page 1 of 4
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1662V
UNPUBLISHED
RICHARD REBELES, Chief Special Master Corcoran
Petitioner, Filed: October 6, 2022
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Dismissal; Insufficient Proof; Failure
HUMAN SERVICES, to Follow Court Orders; Failure to
Prosecute; Influenza (Flu) Vaccine;
Respondent. Shoulder Injury Related to Vaccine
Administration (SIRVA)
John Robert Howie, Howie Law, PC, Dallas, TX, for Petitioner.
Mark Kim Hellie, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION DISMISSING CASE1
On October 25, 2019, Richard Rebeles 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 he suffered a left shoulder injury related to
vaccine administration (“SIRVA”), as defined in the Vaccine Injury Table, after receiving
an influenza (“flu”) vaccine on October 26, 2016. Petition at 1, ¶¶ 1, 6.
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-01662-UNJ Document 38 Filed 11/07/22 Page 2 of 4
Approximately eleven months after filing the petition – in late September 2020,
Petitioner filed an amended petition, a signed declaration,3 and the medical records
required by the Vaccine Act. Amended Petition, filed Sept. 25, 2020, ECF No. 13; Exhibits
1-7, filed Sept. 28, 2020, ECF No. 15; see Section 11(c). On October 8, 2020, the case
was assigned to the Special Processing Unit of the Office of Special Masters. ECF No.
19.
Over the subsequent three-month period, Petitioner filed updated medical records.
Exhibits 8-10, ECF Nos. 22, 24, 27. On February 1, 2021, Respondent filed a status report
noting the eight-month gap between vaccination and when Petitioner sought treatment
for his left shoulder pain but indicating he had not identified any missing medical records
or factual issues which needed to be addressed before the medical review. ECF No. 29.
I ordered Petitioner to convey a demand and supporting documentation to Respondent
while awaiting the medical review. Order, issued Feb. 17, 2021, ECF No. 30.
During the subsequent eight-month period, Petitioner continued to undergo
treatment and to collect the documentation needed to support his demand. E.g., Status
Report, Sept. 14, 2021, ECF No. 31. On October 29, 2021, Petitioner informed me that
he had not yet conveyed a demand to Respondent because a disagreement had arisen
between Petitioner and Petitioner’s counsel. ECF No. 32.
Then, approximately two months later - on January 7, 2022 - Respondent filed his
Rule 4(c) Report, opposing compensation in this case. ECF No. 34. Emphasizing that
Petitioner did not report or seek treatment for his left shoulder pain until eight months
post-vaccination and did not consistently attribute his pain to the flu vaccine he received,
Respondent argued that Petitioner has failed to establish that the onset of his left shoulder
pain began within 48 hours of vaccination. Id. at 8 (citing Exhibit 3 at 9 and Exhibit 5 at
2); see 42 C.F.R. § 100.3(c)(10)(ii) (2017) (pain onset requirement); 42 C.F.R. §
100.3(a)(XIV)(B) (requiring the first symptom or manifestation of onset within 48 hours of
vaccination for a SIRVA injury following receipt of a flu vaccine). Respondent also noted
that the physician who first treated Petitioner opined that his left shoulder pain was likely
due to a rotator cuff strain and not the vaccine he had received. Rule 4(c) Report at 8
(citing Exhibit 3 at 10).
During a status conference held on March 4, 2022, Petitioner’s counsel reported
that he had attempted to reach Petitioner via multiple means but had received no
response. See Minute Entry, dated Mar. 10, 2022. In recent email communication to the
3 Rather than an affidavit, Petitioner filed a declaration signed under penalty of perjury as required pursuant
to 28 U.S.C.A. § 1746.
2

Case 1:19-vv-01662-UNJ Document 38 Filed 11/07/22 Page 3 of 4
court, Petitioner’s counsel indicated that Petitioner has remained unresponsive over the
past five months.
Accordingly, on August 19, 2022, I issued an order to show cause (“Order”),
reminding Petitioner of his duty to communicate with Petitioner’s counsel and to respond
to court orders. Order at 1, ECF No. 35. I instructed Petitioner’s counsel to forward copies
of the Order to Petitioner by regular and certified mail. Petitioner has, however, failed to
respond by the September 19, 2022 deadline set in the Order. Id.
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 & Hum. 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 & Hum. 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 August 2022 Order that his failure to
follow court orders (and specifically in this case the failure to communicate with his
counsel by September 19, 2022) risked dismissal of the claim. Because Petitioner has
continued to disregard my orders, without justification or explanation, dismissal is now
appropriate.
Conclusion
Accordingly, for the reasons stated above, this case is DISMISSED for failure to
prosecute. Petitioner’s counsel shall provide a copy of this Decision to Petitioner by
regular, certified, and electronic mail. The Clerk of Court shall enter judgment
accordingly.4
4 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.
3

Case 1:19-vv-01662-UNJ Document 38 Filed 11/07/22 Page 4 of 4
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
4