VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-00719
Package ID: USCOURTS-cofc-1_21-vv-00719
Petitioner: Nobuntu Moyo
Filed: 2021-01-12
Decided: 2024-10-22
Vaccine: influenza
Vaccination date: 2020-01-13
Condition: shoulder injury
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Nobuntu Moyo filed a petition for compensation under the National Vaccine Injury Compensation Program on January 12, 2021, alleging a shoulder injury resulting from influenza and Tdap vaccinations received on January 13, 2020. The public decision does not describe the specific onset or symptoms of the alleged shoulder injury, nor does it detail any medical records, treating physicians, or diagnostic tests. The petition was filed by Jonathan J. Svitak of Shannon Law Group, P.C., and the respondent was the Secretary of Health and Human Services, represented by Heather L. Pearlman of the U.S. Department of Justice. Chief Special Master Brian H. Corcoran presided over the case. The case was dismissed for failure to prosecute. The public decision details a procedural history spanning nearly three years, during which the petitioner repeatedly failed to provide necessary supporting documentation, including medical records and a statutory affidavit, despite multiple orders to show cause and extensions granted by the court. Petitioner's counsel reported significant difficulties in maintaining contact with Ms. Moyo to obtain required information and signatures. Despite several opportunities and warnings, the petitioner did not comply with court orders or cooperate sufficiently with her counsel to advance the claim. Consequently, Chief Special Master Corcoran dismissed the case, citing the petitioner's failure to prosecute and comply with court orders, referencing precedent that supports dismissal for repeated inaction, violation of court orders, and lack of prosecution after clear warning. No award was made.

Theory of causation field:
Nobuntu Moyo filed a petition on January 12, 2021, alleging a shoulder injury from influenza and Tdap vaccinations on January 13, 2020. The case was dismissed for failure to prosecute on October 22, 2024, by Chief Special Master Brian H. Corcoran. The public decision does not describe the specific theory of causation, mechanism of injury, or any expert testimony. The dismissal was based on the petitioner's repeated failure to provide required supporting documentation, including medical records and a statutory affidavit, and her lack of cooperation with counsel and the court, despite multiple orders and warnings. Petitioner's counsel, Jonathan J. Svitak, and respondent's counsel, Heather L. Pearlman, were involved. No award was made.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_21-vv-00719-0
Date issued/filed: 2024-10-22
Pages: 3
Docket text: PUBLIC DECISION (Originally filed: 9/27/2024) regarding 32 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-00719-UNJ Document 33 Filed 10/22/24 Page 1 of 3
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-719V
UNPUBLISHED
NOBUNTU MOYO, Chief Special Master Corcoran
Petitioner, Filed: September 27, 2024
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Jonathan J. Svitak, Shannon Law Group, P.C., Woodridge, IL, for Petitioner.
Heather L. Pearlman, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION1
On January 12, 2021, Nobuntu Moyo filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa—10 through 342
(the “Vaccine Act”). Petitioner alleges that she suffered a shoulder injury due to an
influenza and Tdap vaccinations she received on January 13, 2020. ECF No. 1. Due to
Petitioner’s failure to prosecute her claim, this case is DISMISSED.
Relevant Procedural History
Petitioner did not file any supporting documentation with the petition. On
February 9, 2021, the PAR Initial Order issued requiring Petitioner to file medical
records and her statutory affidavit, among other documents. ECF No. 5. Such
documents are critical to the claim’s resolution. But now, almost three years have
passed – yet Petitioner has not filed any supporting documentation for the vaccine
claim.
On July 7, 2023, I issued an Order to Show Cause why this case should not be
dismissed for failure to prosecute. ECF No. 19. On September 5, 2023, Petitioner’s
counsel filed a motion for extension of time stating, for the first time, that he “has had
difficulty remaining in contact with petitioner to obtain an accurate list of her medical
providers, obtain signatures on her affidavit and PAR medical history questionnaire,
1 Because this Decision contains a reasoned explanation for the action taken 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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).

Case 1:21-vv-00719-UNJ Document 33 Filed 10/22/24 Page 2 of 3
obtain signatures on authorizations to request medical records, and otherwise remain
updated on her condition.” ECF No. 20. Counsel further stated that he has “not able to
reach Petitioner to advise her of the pending show cause order” and requested more
time to attempt to contact Petitioner. Id.
On September 20, 2023, I issued an order for Petitioner’s counsel to file a status
report stating counsel’s most recent contact with Petitioner and Petitioner’s mailing
address, to facilitate direct service of a show cause order on Petitioner. ECF No. 21. On
October 20, 2023, Petitioner’s counsel filed a status report providing the mailing
address and stating that he last spoke with Petitioner on January 20, 2023, but has not
received a response to numerous phone calls, mails, letters, and text messages since
then. ECF No. 22.
On October 31, 2023, I issued a second Order to Show Cause why this case
should not be dismissed for failure to prosecute and set a due date for January 2, 2024.
ECF No. 23.
On January 3, 2024, Petitioner’s counsel filed a status report stating that he had
talked with Petitioner on November 22, 2023, and that Petitioner was in the process of
collecting documents and signing authorizations for counsel to request medical
records.3 ECF No. 25. Counsel had not yet received any documents from Petitioner but
had communicated with Petitioner on January 2, 2024, and anticipated receiving some
documents soon. A status report due date was set for Petitioner to make progress on
obtaining her medical records or again risk dismissal of the case. ECF No. 27.
On March 4, 2024, Petitioner’s counsel filed a status report stating that Petitioner
had provided two sets of medical records in support of her petition since January 5,
2024. ECF No. 28. These records have not yet been filed. Counsel advised Petitioner
that additional records are needed which would require updated medical authorizations
or the records themselves. Counsel last communicated with Petitioner on January 31,
2024.
On March 5, 2024, I set another due date for a progress report on Petitioner’s
medical records and warned that Petitioner must cooperate with her attorney to obtain
certified medical records, as required by the Vaccine Rules, or the case would be
dismissed for failure to prosecute. ECF No. 29.
On April 3, 2024, Petitioner’s counsel filed a status report stating that he needed
Petitioner’s cooperation to obtain one last set of medical records and has had sporadic
contact with Petitioner since January. ECF No. 30. Counsel proposed a deadline of April
17, 2024, for the medical records. I set this date as the deadline for Petitioner’s medical
records.
After the April 17, 2024 deadline had passed, I set one final deadline of June 14,
2024, noting again that failure to comply would result in another Order to Show Cause.
This final deadline passed without any filings from Petitioner. Thus, I issued a final
3 Unknown to me, Petitioner’s counsel had filed this status report responding to the Order to Show Cause
a few hours before a dismissal decision issued on January 3, 2024. ECF No. 26. Counsel stated that he
was unable to file the status report on the January 2, 2024 due date due to the inaccessibility of the
Court’s electronic filing system. ECF No. 25. Based on the representatives in the status report, I withdrew
the dismissal decision to allow Petitioner a final chance to move her case forward. ECF No. 27.
2

Case 1:21-vv-00719-UNJ Document 33 Filed 10/22/24 Page 3 of 3
Order to Show Cause on June 17, 2024, that was served on Petitioner by her counsel
and directly by the Court via certified mail. ECF No. 31. Petitioner has not filed any
medical records or supporting documentation for her vaccine claim.
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 the multiple Orders 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 numerous filings by Petitioner’s counsel, Petitioner has failed to maintain
adequate contact with her counsel. 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.4
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
4 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