VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-02074
Package ID: USCOURTS-cofc-1_21-vv-02074
Petitioner: Wayne Waggener
Filed: 2021-10-26
Decided: 2024-12-10
Vaccine: influenza
Vaccination date: 2020-10-20
Condition: shoulder injury
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Wayne Waggener filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging he suffered a shoulder injury from an influenza vaccination received on October 20, 2020. The petition was filed on October 26, 2021. The court ordered the petitioner to file additional medical records and supporting documentation, but he failed to do so. An order to show cause was issued due to failure to prosecute. Petitioner's counsel reported that Wayne Waggener had died and that no estate had been established. Subsequent investigations by counsel indicated the petitioner might be alive, but attempts to contact him were unsuccessful. The court noted that without an established estate, counsel could not act on the petitioner's behalf. After further attempts to contact the petitioner and service of an Order to Show Cause, the court found that the petitioner had failed to prosecute his claim and disregarded court orders. Consequently, 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-02074-0
Date issued/filed: 2025-01-08
Pages: 3
Docket text: PUBLIC DECISION (Originally filed: 12/10/2024) regarding 28 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-02074-UNJ Document 29 Filed 01/08/25 Page 1 of 3
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-2074V
UNPUBLISHED
WAYNE WAGGENER,
Chief Special Master Corcoran
Petitioner,
v. Filed: December 10, 2024
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 October 26, 2021, Wayne Waggener filed a petition for compensation under
the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa—10 through 34
(the “Vaccine Act”). Petitioner alleges that he suffered from a shoulder injury from an
influenza vaccination he received on October 20, 2020. ECF No. 1. Due to Petitioner’s
failure to prosecute his claim, this case is DISMISSED.
Relevant Procedural History
Petitioner filed some medical records and an affidavit with the petition. Exhibits 1-
3. On October 27, 2021, the PAR Initial Order issued requiring Petitioner to file
additional medical records and other required supporting documentation. ECF No. 5.
Because Petitioner did not file any additional medical records, I issued an order
to show cause on July 27, 2023, for why the case should not be dismissed due to failure
to prosecute. ECF No. 18.
On September 26, 2023, Petitioner’s counsel filed a status report stating that
Petitioner died and that he did not have any living relatives. ECF No. 19. Counsel
proposed first investigating whether an estate had been established for Petitioner before
filing a motion to dismiss.
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.

Case 1:21-vv-02074-UNJ Document 29 Filed 01/08/25 Page 2 of 3
On October 25, 2023, Petitioner’s counsel filed a status report stating that no
probate case has been opened in Petitioner’s name and that he had been unable to
contact any next of kin or representative of Petitioner’s estate. ECF No. 20. Counsel
proposed filing a motion to dismiss.
In the March 20, 2024 order, I noted that due to the death of the Petitioner and
the current absence of an estate, counsel would not have the authority to dismiss
Petitioner’s case or take any other substantive action. Restatement (Third) Of Agency §
3.06 (2006). ECF No. 21. I ordered additional information about Petitioner’s death and
counsel’s investigation of the death.
On May 21, 2024, Petitioner’s counsel filed a status report recounting the history
of his contact with Petitioner. ECF No. 22. Counsel stated that a recent Lexis Nexis
search now stated that Petitioner was alive and living at the same address. Counsel
sent a certified letter to Petitioner and requested additional time to hear back from
Petitioner.
On June 6, 2024, Petitioner’s counsel filed a status report stating that his office
had been unable to contact Petitioner by phone but that someone signed for the
certified letter sent to Petitioner. ECF No. 23. Counsel intended to continue reaching out
to Petitioner.
On July 31, 2024, Petitioner’s counsel filed a status report stating that additional
attempts by phone and email to contact Petitioner had failed. ECF No. 24. Counsel
requested that the Court issue an order to show cause to serve on Petitioner.
On October 10, 2024, I issued an Order to Show Cause why this case should not
be dismissed for failure to prosecute. ECF No. 25. In a status report submitted on
November 5, 2024, counsel indicated that Petitioner had been out of contact for over a
year. ECF 26. On November 14, 2024, counsel filed evidence that the Order to Show
Cause had been served on Petitioner by certified mail. ECF No. 27.
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
2

Case 1:21-vv-02074-UNJ Document 29 Filed 01/08/25 Page 3 of 3
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 October 10, 2024 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 recent status report, Petitioner has been out-of-touch with his counsel for
over a year. 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.2
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
2 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