VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-00295
Package ID: USCOURTS-cofc-1_21-vv-00295
Petitioner: Debra McCarthy
Filed: 2021-01-07
Decided: 2023-02-21
Vaccine: influenza (flu)
Vaccination date: 2020-10-31
Condition: Shoulder Injury Related to Vaccine Administration (SIRVA)
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Debra McCarthy filed a petition alleging she suffered a shoulder injury related to vaccine administration (SIRVA) after receiving an influenza vaccine on October 31, 2020. She did not provide any medical history or supporting documentation with her initial petition. The court issued an order requiring these documents, but McCarthy failed to comply. Her counsel reported being unable to communicate with McCarthy since April 2021, which prevented her from obtaining the necessary medical records to advance her claim. Following a status conference, the court issued an order to show cause why the case should not be dismissed for failure to prosecute. McCarthy's counsel confirmed service of this order, but no response was received from McCarthy. The court noted that failure to prosecute, including failure to communicate with counsel and comply with court orders, is grounds for dismissal. As McCarthy continued to disregard court orders without justification, the case was dismissed for failure to prosecute. The dismissal was based on procedural grounds rather than a determination on the merits of her alleged injury.

Theory of causation field:
unclear

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_21-vv-00295-0
Date issued/filed: 2023-02-21
Pages: 3
Docket text: PUBLIC DECISION (Originally filed: 1/27/2023) regarding 18 DECISION of Special Master. Signed by Chief Special Master Brian H. Corcoran. (abs) Service on parties made.
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Case 1:21-vv-00295-UNJ Document 19 Filed 02/21/23 Page 1 of 3
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-295V
UNPUBLISHED
DEBRA MCCARTHY, Chief Special Master Corcoran
Petitioner, Filed: January 27, 2023
v.
Show cause; failure to prosecute;
SECRETARY OF HEALTH AND influenza (flu) vaccine; Shoulder
HUMAN SERVICES, Injury Related to Vaccine
Administration (SIRVA)
Respondent.
Leah V. Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner.
Heather L. Pearlman, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION1
On January 7, 2021, Debra McCarthy filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa—10 through 342
(the “Vaccine Act”). Petitioner alleged that she suffered a shoulder injury related to
vaccine administration from an influenza vaccine she received on October 31, 2020.
ECF No. 1. Due to Petitioner’s failure to prosecute her claim, this case is DISMISSED.
Relevant Procedural History
Petitioner alleged that she suffered a shoulder injury from a flu vaccination but
did not provide any medical history for treatment of the injury. ECF No. 1. Petitioner did
not submit any statutorily required supporting documentation with the petition. On
January 12, 2021, the PAR Initial Order issued requiring Petitioner to file these
outstanding documents. ECF No. 5. No supporting documentation has been filed.
On May 20, 2022, Petitioner’s counsel filed a motion to set a status conference
to discuss the case. Counsel advised that she “has been unable to elicit any form of
communication from petitioner, since approximately April 30, 2021,” despite repeated
1 Although I have not formally designated this Decision for publication, I am required to post it on the United
States Court of Federal Claims' website because it contains a reasoned explanation for the action in this
case, 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 “§” references to the Vaccine Act will be to the pertinent subparagraph of
42 U.S.C. § 300aa (2012).

Case 1:21-vv-00295-UNJ Document 19 Filed 02/21/23 Page 2 of 3
voicemails, emails, and a certified letter. ECF No. 15. Counsel stated that “[b]ecause
Ms. McCarthy has not communicated with her counsel, counsel for petitioner has been
unable to attain the necessary information to contact medical providers and request or
obtain petitioner’s medical records. In the absence of such supportive medical evidence,
counsel for petitioner is unable to advance petitioner’s claim.” Id. Counsel “believes she
has exhausted all means of providing the Court with any further evidence.” Id. A status
conference was then set.
On July 13, 2022, a status conference was held to discuss this case. Ms. Leah
Durant appeared on behalf of Petitioner, and Ms. Heather Pearlman appeared on behalf
of Respondent. During the status conference, I advised Ms. Durant that I would issue a
show cause order for failure to prosecute, similar to the procedures I have instituted in
other cases with unresponsive petitioners.
On August 1, 2022, I issued an Order to Show Cause noting that Petitioner had
not filed any supporting documentation for her vaccine claim. ECF No. 16. The Order
warned that the case would be dismissed for failure to prosecute if Petitioner did not file
the outstanding documents or otherwise respond to the order. Petitioner’s counsel was
ordered to serve the Order on Petitioner by certified mail, and the Clerk’s Office
separately served the Order on Petitioner.
On August 19, 2022, Petitioner’s counsel filed a receipt indicating that the Order
to Show Cause had been served on Petitioner. No response to the Order to Show
Cause has been received from Petitioner.
Grounds for Dismissal
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”); 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 my August 1, 2022 Order to Show Cause
that failure to follow orders issued in this matter (and failure to communicate with her
counsel which prevents compliance with those order) risked dismissal of the claim. As
noted in the motion for a status conference, Petitioner has been out-of-touch with her
2

Case 1:21-vv-00295-UNJ Document 19 Filed 02/21/23 Page 3 of 3
counsel since April 30, 2021. Because Petitioner has continued to disregard my orders,
without justification or explanation, dismissal is now appropriate.
Accordingly, this case is DISMISSED for failure to prosecute. The clerk
shall enter judgment accordingly.3
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3 If Petitioner wishes to bring a civil action, she must file a notice of election rejecting the judgment
pursuant to § 21(a) “not later than 90 days after the date of the court’s final judgment.”
3