VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-00228
Package ID: USCOURTS-cofc-1_21-vv-00228
Petitioner: Kelly Dittoe
Filed: 2021-01-07
Decided: 2024-02-05
Vaccine: human papillomavirus
Vaccination date: 2020-07-21
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Kelly Dittoe filed a petition alleging she developed a shoulder injury related to vaccine administration (SIRVA) after receiving a human papillomavirus vaccine on July 21, 2020. She filed her petition with the Court of Federal Claims on January 7, 2021. The case was assigned to the Special Processing Unit, and Petitioner was ordered to detail her injury and provide supporting medical records, including evidence of residual effects lasting more than six months post-vaccination. However, Petitioner failed to provide sufficient evidence to meet the six-month severity requirement, acknowledging a gap in medical treatment documentation. Furthermore, Petitioner became unresponsive to her counsel starting in January 2023, and despite attempts to contact her and a court order to reestablish contact, counsel reported they were unsuccessful. Respondent argued for dismissal based on Petitioner's failure to establish an injury severe enough for compensation. Ultimately, the case was dismissed for failure to prosecute and failure to follow court orders, as Petitioner did not provide the necessary evidence or communicate with her counsel.

Theory of causation field:
unclear

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_21-vv-00228-0
Date issued/filed: 2024-02-05
Pages: 3
Docket text: PUBLIC DECISION (Originally filed: 01/04/2024) regarding 41 DECISION of Special Master ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made.
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Case 1:21-vv-00228-UNJ Document 42 Filed 02/05/24 Page 1 of 3
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-0228V
KELLY DITTOE, Chief Special Master Corcoran
Petitioner,
v. Filed: January 4, 2024
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
Petitioner.
Michael Joseph Lang, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION DISMISSING PETITION1
On January 7, 2021, Kelly Dittoe filed a petition under the National Vaccine Injury
Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petition (ECF
No. 1). Petitioner alleged that she developed a shoulder injury related to vaccine
administration (“SIRVA”) as a result of a human papillomavirus vaccine which she
received on July 21, 2020. Petition (ECF No. 1).3 The case was assigned to the Special
Processing Unit of the Office of Special Masters.
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, it must be
made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or
at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act
of 2002. 44 U.S.C. § 3501 note (2018) (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).
3 Petitioner filed the statutorily required affidavit and medical records as Exs. 1 – 7 in November 2021 (ECF
No. 12 – 14). The case was activated and assigned to the Special Processing Unit in May 2022 (ECF No.
15).

Case 1:21-vv-00228-UNJ Document 42 Filed 02/05/24 Page 2 of 3
Beginning in May 2022, Petitioner was ordered to “detai[l] the injury alleged and
includ[e] appropriate citations to the medical records, including and not limited to…
whether the statutory six-month requirement [was] fulfilled.” Scheduling Order (ECF No.
17) (emphasis added). However, Petitioner failed to offer such evidence, despite alleging
ongoing sequela as a result of SIRVA. See Amended Petition filed on June 16, 2022 (ECF
No. 19) (citing medical records spanning less than six months post-vaccination); see also
Status Report filed Sept. 22, 2022 (ECF No. 23) (acknowledging gap in the medical record
documentation). Petitioner was repeatedly afforded additional time to file any additional
non-medical evidence in support of her claim while awaiting Respondent’s position on the
claim – but Petitioner did not avail herself of that opportunity.
On August 31, 2023, Respondent filed his report pursuant to Vaccine Rule 4(c)
arguing for dismissal of the claim on the grounds that Petitioner had not established an
injury sufficiently severe to be eligible for compensation under the Vaccine Program. Rule
4(c) Report filed Aug. 31, 2023 (ECF No. 27) at 1, 7 – 9.
It was then revealed that since January 2023, Petitioner had been unresponsive
to her counsel’s attempts to contact and coordinate on the case. See Status Report filed
Sept. 15, 2023 (ECF No. 38). I ordered Petitioner to, at minimum, reestablish contact with
her counsel and file a sworn statement or notarized statement attesting to severity. Show
Cause Order filed Oct. 6, 2023 (ECF No. 39).
Sixty (60) days later on the specified deadline, Petitioner’s counsel reported that
further efforts to contact Petitioner had been unsuccessful. Thus, a Decision resolving the
case on the merits based on the current record was requested. Status Report filed Dec.
5, 2023 (ECF No. 40).
Relevant Legal Standards
Program compensation is generally limited to vaccine injuries with “residual effects
or complications of such illness, disability, or condition for more than 6 months after the
administration of the vaccine.” Section 13(a)(1)(A)(i).4 It is often appropriate to resolve
any severity issue first, given that it is a threshold requirement for eligibility under the
Program. Black v. Sec’y of Health & Hum. Servs., 33 Fed. Cl. 546, 550 (1995) (reasoning
that the “potential petitioner” must not only make a prima facie case, but clear a
jurisdictional threshold, by “submitting supporting documentation which reasonably
4 Section 11(c)(1)(D) presents two alternative grounds for eligibility to compensation if a petitioner does not
meet the six months threshold: (ii) death from the vaccine, and (iii) inpatient hospitalization and surgical
intervention. Neither alternative is alleged or implicated in this claim.
2

Case 1:21-vv-00228-UNJ Document 42 Filed 02/05/24 Page 3 of 3
demonstrates that a special master has jurisdiction to hear the merits of the case”), aff’d,
93 F.3d 781 (Fed. Cir. 1996) (internal citations omitted).
A petitioner bears the burden of establishing his or her claim by a preponderance
of the evidence. See Section 13(a)(1)(A); see also Moberly v. Sec’y of Health & Hum.
Servs., 592 F.3d 1315, 1320 (Fed. Cir. 2010). A petitioner may not establish a claim solely
based on his or her own assertions; rather, a petitioner must also present medical records
and supporting evidence. Section 13(a)(1)(A).
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. Padmanabhan v. Sec'y of Health & Human Servs., 638
Fed. App'x 1013 (Fed. Cir. 2016); 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”); 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.”).
Here, evidence regarding the dates/timeline for Petitioner’s initial medical
treatment course did not appear to be sufficient to meet the Vaccine Program’s six-month
severity requirement. Petitioner has acknowledged a gap in the medical treatment, but
she has not furnished any supplemental non-medical evidence to fill in the gap, and she
has failed to coordinate with counsel for over a year – both before and after Respondent
formally opposed the six-month severity requirement. Petitioner has not provided any
justification for her failure to act, even after the issuance of the Order to Show Cause,
which warned of the likely dismissal of her claim.
Accordingly, this case is DISMISSED for failure to prosecute and failure to
follow orders. The Clerk of Court shall enter judgment accordingly.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
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