VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-00033
Package ID: USCOURTS-cofc-1_20-vv-00033
Petitioner: Loretta Franklin
Filed: 2020-01-13
Decided: 2023-01-18
Vaccine: influenza
Vaccination date: 2018-09-27
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Loretta Franklin filed a petition alleging that an influenza vaccination administered on September 27, 2018, caused her to suffer a shoulder injury related to vaccine administration (SIRVA). The petition was filed on January 13, 2020. During a status conference on April 20, 2022, the Special Master raised concerns about Franklin's ability to satisfy the statutory requirement that the injury's residual effects last for at least six months, as well as the location of the vaccination. Franklin's counsel indicated an intent to withdraw due to these concerns, and Franklin stated she intended to find new counsel. The court granted extensions for her to do so, but Franklin became unresponsive to her counsel. Her counsel requested a show cause order, which was issued on October 5, 2022, giving Franklin until November 4, 2022, to file a status report or motion to substitute counsel, or face dismissal for failure to prosecute. Franklin failed to meet this deadline and did not communicate with the court. Consequently, on January 18, 2023, the Special Master dismissed the case for failure to prosecute, noting Franklin had ample time to proceed with her claim.

Theory of causation field:
Off-Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_20-vv-00033-0
Date issued/filed: 2023-01-18
Pages: 3
Docket text: PUBLIC DECISION (Originally filed: 11/30/2022) regarding 44 DECISION of Special Master. Signed by Special Master Herbrina Sanders. (rig) Service on parties made.
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Case 1:20-vv-00033-UNJ Document 46 Filed 01/18/23 Page 1 of 3
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: November 30, 2022
* * * * * * * * * * * * * * *
LORETTA FRANKLIN, * No. 20-33V
*
Petitioner, * Special Master Sanders
*
v. *
* Dismissal; Show Cause Order;
SECRETARY OF HEALTH * Failure to Prosecute
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * *
David J, Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner.
Kimberly S. Davey, United States Department of Justice, Washington, DC, for Respondent.
DECISION1
On January 13, 2020, Loretta Franklin (“Petitioner”) filed a petition for compensation
pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-1 to -34
(2012). Petitioner alleged that she suffered from a shoulder injury related to vaccine administration
(“SIRVA”) that was caused-in-fact by an influenza (“flu”) vaccination administered on September
27, 2018. Pet. at 1, ECF No. 1.
On April 20, 2022, I held a status conference in this case pursuant to Vaccine Rule 5. Min.
Entry, docketed Apr. 20, 2022; Scheduling Order, ECF No. 37. During the status conference, I
noted questions regarding vaccination location site (on the body) and duration of Petitioner’s injury
for at least six months, as required by the Vaccine Act. See 42 U.S.C. U.S.C. § 300aa-
11(c)(1)(D)(i) (requiring that a petitioner “suffered the residual effects or complication of [her]
illness, disability, injury, or condition for more than 6 months after the administration of the
vaccine[]” unless her injury resulted in death or surgical intervention and inpatient hospitalization).
Because of these issues, I communicated my concerns regarding Petitioner’s ability to satisfy her
1 This decision shall be posted 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). In accordance with Vaccine Rule 18(b), a party has 14 days to identify
and move to delete medical or other information that satisfies the criteria in § 300aa-12(d)(4)(B). Further,
consistent with the rule requirement, a motion for redaction must include a proposed redacted decision.
If, upon review, the undersigned agrees that the identified material fits within the requirements of that
provision, such material will be deleted from public access.
2 The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-
660, 100 Stat. 3758, codified as amended, 42 U.S.C. §§ 300aa-10 et seq. (2012) (“Vaccine Act” or “the
Act”). Hereinafter, individual section references will be to 42 U.S.C. § 300aa of the Act.

Case 1:20-vv-00033-UNJ Document 46 Filed 01/18/23 Page 2 of 3
burden in this case and to establish reasonable basis. On April 20, 2022, I ordered Petitioner to
“file a status report indicating how she wishes to proceed or an appropriate motion . . . .” ECF No.
37.
On June 1, 2022, Petitioner filed a status report stating that her counsel intended to
withdraw in light of my opinions. ECF No. 39 at 1. Petitioner asserted that she intended to proceed
with her case if she is able to find another attorney. Id. Petitioner requested thirty days to retain
another attorney or to move to dismiss her case. Id. On July 7, 2022, I issued an order allowing
Petitioner until August 8, 2022, to file a motion to substitute attorney. Scheduling Order at 2, ECF
No. 40. I told Petitioner that no extensions would be granted and that “[i]f [she was] unable to
retain a new attorney by th[at] deadline, she must file a status report stating how she intends to
proceed or an appropriate motion[.]” Id.
On July 29, 2022, Petitioner’s counsel filed a status report on Petitioner’s behalf stating
that “Petitioner has been unresponsive to [her] counsel’s email’s telephone calls, letters and text
messages” since Petitioner’s June 1, 2022 status report. ECF No. 41 at 1. Petitioner’s counsel
“request[ed] that the Court issue a Show Cause Order that Petitioner[’s counsel] can mail by
certified mail to Petitioner giving her a deadline to either retain new counsel and provide the new
attorney’s information to Petitioner’s counsel for transfer of the file, or agree to a voluntary
withdraw of Petitioner’s [p]etition for [c]ompensation.” Id.
On October 5, 2022, I issued a Show Cause Order. ECF No. 42. I noted that Petitioner had
not submitted any additional filings or otherwise communicated with Chambers since her July 29,
2022 status report. Id. at 1–2. I further noted that Petitioner had had ninety days since my July 7,
2022 Order to file a motion to substitute attorney or to file a status report indicating how she wishes
to proceed. Id. at 2. I told Petitioner that “[f]ailure to file a motion to substitute attorney or a status
report stating how she intends to proceed by . . . November 4, 2022, w[ould] be interpreted as a
failure to prosecute this claim[]” and that “I [would] dismiss her petition.” Id. Petitioner missed
her November 4, 2022 deadline and has not communicated with Chambers.
When a petitioner fails to comply with Court orders to prosecute her case, the Court may
dismiss her claim. Vaccine Rule 21(b)(1); Sapharas v. Sec’y of Health & Human Servs., 35 Fed.
Cl. 503 (1996); Tsekouras v. Sec’y of Health & Human Servs., 26 Cl. Ct. 439 (1992), aff’d, 991
F.2d 810 (Fed. Cir. 1993) (table); see also Claude E. Atkins Enters., Inc. v. United States, 899 F.2d
1180, 1183-85 (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).
Petitioner has now had 224 days since my April 20, 2022 Order to determine how to
proceed. She has had at least 182 days since her attorney stated his intent to withdraw from this
case to find another attorney or elect to proceed pro se. Petitioner has also had fifty-six days to
respond to my Show Cause Order. Petitioner’s continued failure to file her status report or
communicate with Chambers indicates a disinterest in pursuing her claim. Therefore, this case
must be dismissed for failure to prosecute. The Clerk shall enter judgment accordingly.
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Case 1:20-vv-00033-UNJ Document 46 Filed 01/18/23 Page 3 of 3
IT IS SO ORDERED.
s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master
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