VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-00731
Package ID: USCOURTS-cofc-1_21-vv-00731
Petitioner: Benjamin Kane
Filed: 2021-01-12
Decided: 2021-11-30
Vaccine: influenza
Vaccination date: 2020-02-29
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Benjamin Kane filed a petition on January 12, 2021, alleging he suffered a shoulder injury related to vaccine administration (SIRVA) from an influenza vaccination received on February 29, 2020. The court ordered Mr. Kane to submit his medical records and a statement of completion by April 20, 2021. He failed to meet this deadline and did not respond to multiple inquiries from the court's chambers. On September 8, 2021, the court issued another order, giving Mr. Kane until October 8, 2021, to file the required documents, warning that failure to comply would result in dismissal for failure to prosecute. Mr. Kane missed this second deadline and had no further contact with the court. Given his prolonged failure to prosecute his claim and lack of communication, the case was dismissed for failure to prosecute. The court noted that Mr. Kane had been given 241 days to file his medical records and statement of completion.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_21-vv-00731-0
Date issued/filed: 2021-11-30
Pages: 2
Docket text: PUBLIC DECISION (Originally filed: 10/18/2021) regarding 13 DECISION of Special Master Signed by Special Master Herbrina Sanders. (sw) Service on parties made. Modified on 12/2/2021 Petitioner served via U.S. mail. (hw1).
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Case 1:21-vv-00731-UNJ Document 15 Filed 11/30/21 Page 1 of 2
REISSUED FOR PUBLICATION
NOV 30 2021
OSM
U.S. COURT OF FEDERAL CLAIMS
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: October 18, 2021
* * * * * * * * * * * * * * *
BENJAMIN KANE, * No. 21-731V
*
Petitioner, * Special Master Sanders
*
v. *
*
SECRETARY OF HEALTH * Dismissal; Failure to Prosecute
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * *
Benjamin Kane, pro se, Amesbury, MA, for Petitioner.
Lara A. Englund, United States Department of Justice, Washington, DC, for Respondent.
DECISION1
On January 12, 2021, Benjamin Kane (“Petitioner”) filed a pro se petition for compensation
pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-1 to -34
(2012). Petitioner alleged that he suffered from a shoulder injury related to vaccine administration
(“SIRVA”) as a result of an influenza (“flu”) vaccination administered on February 29, 2020. Pet.
at 1, ECF No. 1.
On February 19, 2021, I ordered Petitioner to file his medical records and a statement of
completion by April 20, 2021. Initial Order at 1, ECF No. 9. Petitioner missed this deadline. My
Chambers emailed Petitioner regarding his missed deadline on May 21, 2021, June 2, 2021, and
June 11, 2021. Informal Comms., docketed May 21, 2021, June 2, 2021, and June 11, 2021.
Petitioner did not respond to these emails. On August 31, 2021, my Chambers left a voicemail for
Petitioner and asked that he confirm receipt of the emails by September 3, 2021. Informal Comm.,
docketed Aug. 31, 2021. Petitioner did not confirm receipt of the emails or otherwise contact
Chambers by September 3, 2021.
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 1:21-vv-00731-UNJ Document 15 Filed 11/30/21 Page 2 of 2
On September 8, 2021, I ordered Petitioner to file his medical records and a statement of
completion by October 8, 2021, and informed him that he must file his medical records before his
case can proceed. Scheduling Order at 1, ECF No. 11. I noted that Petitioner had already had 201
days to file his medical records and statement of completion. In light of this amount of time and
Petitioner’s failure to respond to Chambers’ inquiries, I told Petitioner that failure to comply with
his October 8, 2021 deadline would result in dismissal of his case for failure to prosecute. Id.
Petitioner missed his October 8, 2021 deadline and has not contacted Chambers.
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 241 days to file his medical records and statement of completion.
He has had 40 days to respond to my September 8, 2021 scheduling order. Moreover, Petitioner
has not submitted any filing or communicated with Chambers since he filed his petition and motion
to proceed in forma pauperis on January 12, 2021. Petitioner’s continued failure to submit his
medical records and statement of completion, and to communicate with Chambers, indicates a
disinterest in pursuing his claim. Therefore, this case must be dismissed for failure to prosecute.
The Clerk shall enter judgment accordingly.
IT IS SO ORDERED.
s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master
2