VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-01306
Package ID: USCOURTS-cofc-1_21-vv-01306
Petitioner: Sarah Lopez
Filed: 2021-05-03
Decided: 2023-09-13
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:
Sarah Lopez filed a petition for compensation on May 3, 2021, alleging she suffered a shoulder injury related to vaccine administration (SIRVA) after receiving an influenza vaccine on September 30, 2020. The court issued an initial order requiring Petitioner to file supporting documentation, including a statutory affidavit. Petitioner's counsel filed some medical records but later informed the court that she had been unable to contact Ms. Lopez for several months to obtain the necessary affidavit and other documentation. The court issued an Order to Show Cause, warning that the case would be dismissed for failure to prosecute if the outstanding documents were not filed or if there was no response. The order was delivered to Ms. Lopez, but she did not respond. The court noted that the order was returned as unclaimed. Due to Ms. Lopez's continued failure to communicate with counsel and comply with court orders, the case was dismissed for failure to prosecute.

Theory of causation field:
unclear

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_21-vv-01306-0
Date issued/filed: 2023-09-13
Pages: 3
Docket text: PUBLIC DECISION (Originally filed: 8/17/2023) 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-01306-UNJ Document 23 Filed 09/13/23 Page 1 of 3
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-1306V
UNPUBLISHED
SARAH LOPEZ, Chief Special Master Corcoran
Petitioner, Filed: August 17, 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 May 3, 2021, Sarah Lopez filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa—10 through 34.2
Petitioner alleges that she suffered from a shoulder injury related to vaccine
administration (“SIRVA”) after receiving an influenza vaccine on September 30, 2020.
ECF No. 1. Due to Petitioner’s failure to prosecute her claim, this case is DISMISSED.
Relevant Procedural History
On May 3, 2021, the PAR Initial Order issued requiring Petitioner to file medical
records, an affidavit, and other statutorily required supporting documentation. ECF No. 5.
Petitioner filed some medical records and a Statement of Completion on August 25, 2022.
ECF Nos. 15, 16.
On August 26, 2022, Petitioner’s counsel filed a motion for ruling on the record.
ECF No. 17. Counsel stated that she and “members of her staff have attempted for
several months to contact petitioner to obtain the necessary documentation and
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 (“Vaccine Act”), 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-01306-UNJ Document 23 Filed 09/13/23 Page 2 of 3
petitioner’s affidavit to comply with PAR. However, Petitioner has not responded to
counsel’s telephone calls or email messages.” Id. at 1. Counsel indicated that “[n]o
additional records are available or will be filed in this case” and that she “believes the
case is ready for disposition.” Id. at 2.
As noted by counsel in the motion for ruling on the record, Petitioner has not yet
submitted the statutorily required affidavit. While I would typically issue an order for
Petitioner to file the missing affidavit, counsel explained her various unsuccessful efforts
to contact Petitioner and obtain the affidavit. Given the admitted lack of communication
with the Petitioner, I cannot entertain a motion for ruling on the record at this point, since
it has not in fact been established that the Petitioner in fact understands the implications
of her failure to communicate with counsel. However, a petitioner’s non-responsiveness
can result in a failure to adhere to my orders – which is an accepted, alternative basis
for a claim’s dismissal.
On September 1, 2022, I issued an Order to Show Cause noting that Petitioner
had not yet filed her statutory affidavit. ECF No. 18. 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.
On September 22, 2022, Petitioner’s counsel filed a receipt indicating that the
Order to Show Cause had been sent to Petitioner by certified mail. ECF No. 19. Review
of the tracking number on the receipt indicates that the Order to Show Cause was
delivered. On November 2, 2022, Petitioner’s counsel filed a status report confirming
“that no additional medical records exist, and that all medical records have been
previously filed” and indicating that “Petitioner stands on her Motion for Ruling on the
Record.” ECF No. 20.
On November 18, 2022, the Clerk’s Office docketed that the Order to Show
Cause served on Petitioner by the Court had been returned because it was “unclaimed,
unable to forward.” ECF No. 21. The show cause deadline passed without any response
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
2

Case 1:21-vv-01306-UNJ Document 23 Filed 09/13/23 Page 3 of 3
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 September 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 Order to Show Cause, Petitioner has been out-of-touch with her counsel
for at least several months before the August 26, 2022 motion for ruling on the record.
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