VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-00895
Package ID: USCOURTS-cofc-1_21-vv-00895
Petitioner: Kathleen G. McKenna
Filed: 2021-02-08
Decided: 2022-12-14
Vaccine: influenza
Vaccination date: 2019-10-22
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Kathleen G. McKenna filed a petition for compensation under the National Vaccine Injury Compensation Program on February 8, 2021, alleging she suffered a shoulder injury related to vaccine administration (SIRVA) from an influenza vaccine received on October 22, 2019. The Special Master's decision notes that Petitioner only filed a declaration in support of her petition. On February 11, 2021, an initial order required Petitioner to file medical records and other statutorily required supporting documentation. Despite receiving two extensions of time, Petitioner failed to file these documents. On August 23, 2021, Petitioner's counsel filed a status report stating they had been unable to contact Petitioner since February 2021 to obtain information or permission to withdraw the case, and were unaware if her injury met the requirements for compensation. Counsel detailed numerous unsuccessful attempts to communicate with Petitioner. On June 13, 2022, Chief Special Master Brian H. Corcoran issued an Order to Show Cause why the case should not be dismissed for failure to prosecute. Counsel filed evidence on July 5, 2022, that the order had been served on Petitioner by certified mail. The decision cites precedent establishing that failure to prosecute, including failure to stay in contact with counsel and comply with court orders, is grounds for dismissal. As Petitioner had continued to disregard court orders without justification and remained out of contact with her counsel, the case was dismissed for failure to prosecute. No compensation was awarded. The decision was issued by Chief Special Master Brian H. Corcoran. Petitioner's counsel was Leigh Finfer of Muller Brazil, LLP, and respondent's counsel was Heather L. Pearlman of the U.S. Department of Justice.

Theory of causation field:
Petitioner Kathleen G. McKenna alleged a shoulder injury related to vaccine administration (SIRVA) from an influenza vaccine received on October 22, 2019. The case was dismissed for failure to prosecute due to Petitioner's failure to provide required medical records and documentation, and her lack of contact with counsel since February 2021, despite multiple extensions and an Order to Show Cause. The public decision does not describe the specific medical condition, onset, symptoms, diagnostic tests, treatments, or expert testimony. The theory of causation is unclear due to the dismissal for failure to prosecute. The Special Master was Brian H. Corcoran. Petitioner's counsel was Leigh Finfer, and respondent's counsel was Heather L. Pearlman. The decision date was December 14, 2022.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_21-vv-00895-0
Date issued/filed: 2022-12-14
Pages: 3
Docket text: PUBLIC DECISION (Originally filed: 11/18/2022) regarding 14 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-00895-UNJ Document 19 Filed 12/14/22 Page 1 of 3
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-895V
UNPUBLISHED
KATHLEEN G. MCKENNA, 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 February 8, 2021, Kathleen McKenna 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 due to an influenza vaccine she received on October 22, 2019.
ECF No. 1. Due to Petitioner’s failure to prosecute her claim, this case is DISMISSED.
Relevant Procedural History
Petitioner only filed a declaration in support of her petition. Exhibit 1. On
February 11, 2021, the PAR Initial Order issued requiring Petitioner to file medical
records and other statutorily required supporting documentation. ECF No. 5. Petitioner
received two extensions of time but did not file these documents.
On August 23, 2021, Petitioner’s counsel filed a status report stating that
“Petitioner's counsel has been unable to contact Petitioner to obtain information related
to her medical providers or to obtain oral or written permission to withdraw this case. At
this time, Petitioner’s counsel is unaware if Petitioner’s injury meets the requirements for
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-00895-UNJ Document 19 Filed 12/14/22 Page 2 of 3
compensation. Despite numerous follow up correspondence and telephone calls,
Petitioner's counsel has been unsuccessful in contacting Petitioner since February
2021.” ECF No. 8.
The September 13, 2021 order encouraged counsel to continue reaching out to
Petitioner and, in the event that these attempts were unsuccessful, to file a status report
documenting the attempted communications. ECF No. 9.
On November 12, 2021, counsel filed a status report advising that all
communication with Petitioner since February 5, 2021, has been unsuccessful and
provided details on the numerous attempted communications with Petitioner. ECF No.
11.
On June 13, 2022, I issued an Order to Show Cause why this case should not be
dismissed for failure to prosecute. ECF No. 12. On July 5, 2022, counsel filed evidence
that the Order to Show Cause had been served on Petitioner by certified mail. ECF No.
13.
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 June 13, 2022 Order to Show Cause
that failure to follow orders issued in this matter (and failure to communicate with his
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 at least August 2021. Because Petitioner has continued to
disregard my orders, without justification or explanation, dismissal is now appropriate.
2

Case 1:21-vv-00895-UNJ Document 19 Filed 12/14/22 Page 3 of 3
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