VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-00882
Package ID: USCOURTS-cofc-1_20-vv-00882
Petitioner: Domenica Foster
Filed: 2023-01-30
Decided: 2023-05-03
Vaccine: influenza
Vaccination date: 2017-10-17
Condition: Guillain-Barré Syndrome (GBS) and peripheral neuropathy
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Domenica Foster filed a petition alleging that she suffered from Guillain-Barré Syndrome (GBS) and peripheral neuropathy as a result of an influenza vaccine she received on October 17, 2017. She later amended her petition to allege polyneuropathy caused by the vaccination. The court ordered her to file an expert report by September 26, 2022, to support her claim. Petitioner requested an extension, which was granted, with a new deadline of November 10, 2022. On that date, she informed the court that she would not be filing an expert report, stating that her counsel had discussed the necessity of this with her. The court issued a Show Cause Order on December 7, 2022, explaining that a petitioner cannot be awarded compensation based solely on their claims and must provide medical records or a competent physician's opinion on causation. The court noted that Petitioner's medical records lacked a definitive statement of causation and that she would be unable to establish but-for causation without additional evidence. Petitioner was given 54 days to respond to the Show Cause Order. As Petitioner failed to respond and indicated she would not file an expert report, the court dismissed the case for insufficient proof and failure to prosecute. The decision was issued on May 3, 2023.

Theory of causation field:
Off-Table

Public staged source text:

================================================================================
DOCUMENT 1: USCOURTS-cofc-1_20-vv-00882-0
Date issued/filed: 2023-05-03
Pages: 2
Docket text: PUBLIC DECISION (Originally filed: 1/30/2023) regarding 32 DECISION of Special Master. Signed by Special Master Herbrina Sanders. (rig) Service on parties made.
--------------------------------------------------------------------------------
Case 1:20-vv-00882-UNJ Document 35 Filed 05/03/23 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: January 30, 2023
* * * * * * * * * * * * * * *
DOMENICA FOSTER, * No. 20-882V
*
Petitioner, * Special Master Sanders
*
v. *
* Dismissal; Show Cause Order; Insufficient
SECRETARY OF HEALTH * Proof; Failure to Prosecute
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * *
Bridget C. McCullough, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Christine M. Becer, United States Department of Justice, Washington, DC, for Respondent.
DECISION1
On July 20, 2020, Domenica Foster (“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 Guillain-Barré Syndrome (“GBS”) and peripheral
neuropathy due to an influenza (“flu”) vaccine administered on October 17, 2017. Pet. at 1, ECF
No. 1. On March 3, 2022, Petitioner filed an amended petition alleging that she suffered from
polyneuropathy that was caused-in-fact by her October 17, 2017 flu vaccination. Am. Pet. at 1,
ECF No. 27.
On July 27, 2022, I ordered Petitioner to file an expert report by September 26, 2022.
Scheduling Order, ECF No. 28. On September 22, 2022, Petitioner filed a motion for extension of
time stating that her expert “need[ed] additional time to prepare his report.” ECF No. 29. I granted
Petitioner’s motion and ordered her to file her expert report by November 10, 2022. Order,
docketed Sept. 23, 2022. On November 10, 2022, Petitioner filed a status report stating that she
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-00882-UNJ Document 35 Filed 05/03/23 Page 2 of 2
“will not be filing an expert report.” ECF No. 30. Petitioner noted that “Petitioner’s counsel has
discussed with Petitioner the necessity of the above to move forward with her claim.” Id.
On December 7, 2022, I issued a Show Cause Order. ECF No. 31. I stated that “[u]nder the
Vaccine Act, petitioners may not be given a Program award based solely on their claims alone.
Rather the petition must be supported by medical records or the opinion of a competent physician.”
Id. at 1 (citing 42 U.S.C. § 300aa-13(a)(1)). I noted that “Petitioner’s medical records do not
contain a definitive statement of causation made by a treating medical professional, a biological
mechanism of causation pursuant to Althen prong one, or a logical sequence of cause and effect
pursuant to Althen prong two.” Id. I explained that I ordered Petitioner to file an expert report
because “[w]ithout additional evidence, Petitioner will be unable to establish but-for causation
based on the current record.” Id. I further noted that Petitioner had had 133 days to file an expert
report and that she “also had this time to determine how to proceed given [her] difficulties
obtaining an expert report.” Id. I told Petitioner that failure to respond to my Show Cause Order
“w[ould] be interpreted as either an inability to provide supporting documentation for this claim
or as a failure to prosecute, and this claim w[ould] be dismissed.” Id.
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 187 days to file an expert report, and she has indicated that she does
not plan to do so. Petitioner has also had 54 days to respond to my Show Cause Order. Petitioner’s
failure to respond to my Show Cause Order, or otherwise communicate with Chambers, indicates
a disinterest in pursuing her claim. Furthermore, the medical records are insufficient to prove
Petitioner’s claim, and she has not filed a supporting opinion on causation from an expert witness.
Therefore, this case must be dismissed for insufficient proof and for failure to prosecute. The
Clerk shall enter judgment accordingly.
IT IS SO ORDERED.
s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master
2