VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-00478
Package ID: USCOURTS-cofc-1_21-vv-00478
Petitioner: Meredith Potts
Filed: 2021-01-11
Decided: 2022-12-14
Vaccine: influenza (flu)
Vaccination date: 2020-09-30
Condition: Shoulder Injury Related to Vaccine Administration (SIRVA)
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Meredith Potts filed a petition on January 11, 2021, seeking compensation under the National Vaccine Injury Compensation Program. She alleged that she suffered a shoulder injury related to vaccine administration (SIRVA) from an influenza vaccine received on September 30, 2020. The petition was filed by Leigh Finfer of Muller Brazil, LLP, and the respondent was the Secretary of Health and Human Services, represented by Heather L. Pearlman of the U.S. Department of Justice. 

Following the initial filing, the court ordered Ms. Potts to submit supporting medical records and other required documentation. Her counsel informed the court on May 13, 2021, that Ms. Potts had verbally authorized the withdrawal of her claim but that written authorization was still pending. Subsequent status reports indicated ongoing difficulties in obtaining this written authorization and in communicating with Ms. Potts. 

On October 18, 2021, counsel filed medical records and a Statement of Completion. However, on November 3, 2021, the Special Master required Ms. Potts to file a PAR Questionnaire and medical records supporting the severity requirement, specifically that her shoulder injury persisted for more than six months or resulted in inpatient hospitalization and surgical intervention. A PAR Questionnaire was filed on November 29, 2021. 

After the deadline for medical records passed, the Special Master issued an order on February 10, 2022, requiring supplemental documentation regarding the severity requirement. On June 14, 2022, counsel filed a status report stating that Ms. Potts was unable to meet the severity requirement and remained out of touch. 

Consequently, on June 24, 2022, the Special Master issued an Order to Show Cause why the case should not be dismissed for failure to prosecute. Evidence of service on Ms. Potts by certified mail was filed on July 12, 2022. The Special Master noted that it is a petitioner's obligation to follow court orders, and failure to do so, whether due to attorney error, inaction, or the petitioner's failure to communicate with counsel, can result in dismissal. The Special Master cited precedent supporting dismissal for willful, repeated violations of court orders after clear warning. 

As Ms. Potts had continued to disregard court orders without justification and remained out of contact with her counsel since April 2021, the case was dismissed on December 14, 2022, for failure to prosecute. The clerk was ordered to enter judgment accordingly. Chief Special Master Brian H. Corcoran issued the decision.

Theory of causation field:
Petitioner Meredith Potts alleged a shoulder injury related to vaccine administration (SIRVA) from an influenza vaccine received on September 30, 2020. The case was dismissed for failure to prosecute. Petitioner failed to provide supporting medical records and documentation, including evidence to meet the severity requirement (injury lasting more than six months or resulting in inpatient hospitalization and surgical intervention). Petitioner also became out of touch with her counsel, preventing compliance with court orders. The Special Master, Brian H. Corcoran, dismissed the case on December 14, 2022, citing Petitioner's failure to prosecute and disregard for court orders, referencing precedent such as Padmanabhan v. Sec’y of Health & Human Servs. and Tsekouras v. Sec’y of Health & Human Servs. No specific medical experts or causation theories were detailed in the public decision, as the case was dismissed prior to adjudication on the merits. Petitioner's counsel was Leigh Finfer, and Respondent's counsel was Heather L. Pearlman.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_21-vv-00478-0
Date issued/filed: 2022-12-14
Pages: 3
Docket text: PUBLIC DECISION (Originally filed: 11/18/2022) regarding 22 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-00478-UNJ Document 26 Filed 12/14/22 Page 1 of 3
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-478V
UNPUBLISHED
MEREDITH POTTS, Chief Special Master Corcoran
Petitioner, Filed: November 18, 2022
v.
Show cause; failure to prosecute;
SECRETARY OF HEALTH AND influenza (flu) vaccine; Shoulder
HUMAN SERVICES, Injury Related to Vaccine
Administration (SIRVA)
Respondent.
Leigh Finfer, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Heather L. Pearlman, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION1
On January 11, 2021, Meredith Potts 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 September 30, 2020.
ECF No. 1. Due to Petitioner’s failure to prosecute her claim, this case is DISMISSED.
Relevant Procedural History
Petitioner filed a declaration with her petition but did not file any other supporting
documents. The declaration did not address the duration of her shoulder injury. Exhibit
1. On February 2, 2021, the PAR Initial Order issued requiring Petitioner to file medical
records and other statutorily required supporting documentation. ECF No. 5.
On May 13, 2021, Petitioner’s counsel filed a status report advising that
“Petitioner has verbally authorized Counsel to Withdraw Petitioner’s claim. Counsel is
awaiting return of written authorization to take the necessary steps to withdraw
Petitioner’s claim.” ECF No. 7. On July 9, 2021, counsel filed a status report advising
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-00478-UNJ Document 26 Filed 12/14/22 Page 2 of 3
that she had been unable to obtain the written authorization to withdraw Petitioner’s
claim. ECF No. 8. On August 9, 2021, counsel filed a status report advising that she still
had not been able to obtain written authorization and requested guidance on how to
proceed. ECF No. 9.
The August 19, 2021 order required counsel to file a status report clarifying if an
April 5, 2021 phone call was the last communication with Petitioner, detail the attempts
to communicate with Petitioner since that call, and confirm whether counsel has been
able to obtain Petitioner’s medical records. ECF No. 10.
On October 18, 2021, counsel filed Petitioner’s medical records, a Statement of
Completion, and a status report. ECF Nos. 12-14. In the status report, counsel
confirmed that she had not communicated with Petitioner since April 5, 2021, and
detailed the attempted communications since that date.
Prompted by the filing of medical records and a Statement of Completion, a Pre-
Assignment Review was conducted on this case. I issued an order on November 3,
2021, requiring Petitioner to file a PAR Questionnaire and medical records in support of
the severity requirement, i.e., that her shoulder injury persisted for more than six months
or resulted in inpatient hospitalization and surgical intervention. ECF No. 11. On
November 29, 2021, Petitioner filed a PAR Questionnaire. ECF No. 16.
After the due date for Petitioner’s medical records lapsed, I issued an order on
February 10, 2022, requiring Petitioner to file medical records or at least a supplemental
affidavit in support of the severity requirement. On May 13, 2022, counsel filed a status
report advising that she still had not been able to obtain written authorization to
withdraw Petitioner’s claim. ECF No. 18. In email correspondence on June 9, 2022, with
Respondent’s counsel copied, an OSM Staff Attorney clarified that counsel’s status
reports had not yet indicated that Petitioner would be unable to meet the severity
requirement and that clarification on this point would allow a show cause order to issue.
On June 14, 2022, Petitioner’s counsel filed a status report indicating that
Petitioner is unable to meet the severity requirement and that Petitioner continues to be
out of touch. ECF No. 19.
On June 24, 2022, I issued an Order to Show Cause why this case should not be
dismissed for failure to prosecute. ECF No. 20. On July 12, 2022, counsel filed evidence
that the Order to Show Cause had been served on Petitioner by certified mail. ECF No.
21.
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
2

Case 1:21-vv-00478-UNJ Document 26 Filed 12/14/22 Page 3 of 3
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 the June 24, 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 response to the Order to Show Cause, Petitioner has been out-of-touch
with her counsel since April 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, he 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