VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-02075
Package ID: USCOURTS-cofc-1_21-vv-02075
Petitioner: Joseph Scott Vancuren
Filed: 2021-10-26
Decided: 2023-10-25
Vaccine: influenza
Vaccination date: 
Condition: neurological injury
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Joseph Scott VanCuren filed a petition alleging a neurological injury from an influenza vaccine he received on October 27, 2018. He represented himself in the case, which was filed on October 26, 2021. Mr. VanCuren submitted some medical records on July 7, 2022, and indicated he would file more, but failed to meet subsequent deadlines for these records. The respondent noted that Mr. VanCuren had not provided sufficient proof of vaccination, and that the evidence regarding the vaccination date was inconsistent. The respondent also argued that Mr. VanCuren's neurological symptoms were likely caused by cervical disk herniation, severe spinal stenosis, and spinal cord conditions, rather than the vaccine. Mr. VanCuren missed a status conference and failed to respond to multiple court orders directing him to demonstrate his interest in continuing the litigation. Ultimately, the court dismissed the case for failure to prosecute, as Mr. VanCuren had not taken any action since July 7, 2022, and did not respond to orders to show cause. The decision noted that the case also had significant weaknesses, including insufficient evidence of vaccination and causation, but the dismissal was solely for failure to prosecute.

Theory of causation field:
unclear

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_21-vv-02075-0
Date issued/filed: 2023-10-25
Pages: 4
Docket text: PUBLIC DECISION (Originally filed: 10/2/23) regarding 36 DECISION of Special Master Signed by Special Master Christian J. Moran. (ceo) Service on parties made. E-mailed to the Petitioner on 10/25/23 (tjk).
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Case 1:21-vv-02075-UNJ Document 37 Filed 10/25/23 Page 1 of 4
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Reissued for Public Availability Date: October 25, 2023
* * * * * * * * * * * * * * * * * * * * * * * * *
JOSEPH SCOTT VANCUREN *
*
Petitioner, * No. 21-2075V
* Special Master Christian J. Moran
v. *
* Filed: October 2, 2023
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * * *
Joseph Scott VanCuren, pro se, Peabody, KS, for petitioner;
Matthew Murphy, United States Dep’t of Justice, Washington, D.C., for
respondent.
UNPUBLISHED DECISION DENYING COMPENSATION12
Joseph VanCuren sought compensation through the Vaccine Program. 42
U.S.C. § 300aa-10 through 34 (2012). Mr. VanCuren, however, appears not to be
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), the
parties have 14 days to identify and move to redact medical or other information, the disclosure
of which would constitute an unwarranted invasion of privacy. Any changes will appear in the
document posted on the website.
2 Pursuant to Vaccine Rule 18(b), this Decision was initially filed on October 2, 2023,
and the parties were afforded 14 days to propose redactions. The parties did not propose any
redactions. Accordingly, this Decision is reissued in its original form for posting on the Court’s
website.

Case 1:21-vv-02075-UNJ Document 37 Filed 10/25/23 Page 2 of 4
interested in continuing the litigation as he has not responded to orders. Because
Mr. VanCuren has not prosecuted his case, his case is DISMISSED.
I. Procedural History
On October 26, 2021, Mr. VanCuren, representing himself, filed a petition
under the National Childhood Vaccine Injury Act, 42 U.S.C. §300a-10 et seq.,
alleging that he developed a neurological injury as a result of the influenza (“flu”)
vaccine he received on October 27, 2018. See Petition. Mr. VanCuren filed
medical records, as required by 42 U.S.C. § 300aa-11(c), on July 7, 2022. The
same day, Mr. VanCuren contacted chambers stating that he had another doctor
appointment on July 21, 2022, and he planned to file medical records from that
visit as well. See Order, issued July 12, 2022. Mr. VanCuren was ordered to file
the records by August 22, 2022 but did not do so. Id. This deadline was extended
twice. Orders, issued Sept. 21, 2022 and Oct. 3, 2022.
After Mr. VanCuren failed to meet the third deadline, the undersigned
ordered the Secretary to file a status report on the sufficiency of the medical
records already filed. Order, issued Oct. 12, 2023. The Secretary stated that Mr.
VanCuren had not yet provided proof that he received the flu vaccination, and
requested that Mr. VanCuren be directed to file a vaccination record. Resp’t’s
Status Rep., filed Nov. 28, 2022.
Mr. VanCuren was ordered three times to produce this material, with the last
order stating that Mr. VanCuren’s failure to establish receipt of vaccination would
result in an order to show cause as to why the case should not be dismissed.
Orders, issued Nov. 29, 2022, Jan. 3, 2023, & Jan. 23, 2023. Mr. VanCuren did
not file proof of vaccination by the February 21, 2023 deadline. Accordingly, an
order to show cause by April 24, 2023 was issued. Order, issued Feb. 23, 2023.
Mr. VanCuren did not file anything. Upon an additional review, it appeared
that Mr. VanCuren had filed some evidence of vaccination in the submission he
made on July 7, 2022. Exhibit 1. A different record also referred to a flu
vaccination, although the dates were different. Exhibit 2. Thus, there was some
evidence that Mr. VanCuren received a vaccination, although the evidence about
the date of vaccination was inconsistent. The Secretary was ordered to file a status

Case 1:21-vv-02075-UNJ Document 37 Filed 10/25/23 Page 3 of 4
report discussing the persuasiveness of the evidence regarding vaccination and his
Rule 4(c) Report. Order, issued April 27, 2023.
The Secretary argued that Mr. VanCuren had only submitted a billing record
for the flu vaccine, not an actual record of administration. Resp’t’s Status Rep.,
filed May 15, 2023. The Secretary further noted that the other possible vaccination
record was for a different flu vaccine on a different date. Id. In his Rule 4(c)
Report, the Secretary reiterated his position that the vaccination record was
unclear, and argued that Mr. VanCuren’s neurological symptoms were caused by
cervical disk herniation, severe spinal stenosis, and spinal cord conditions rather
than the alleged flu vaccination. Resp’t’s Rep. at 1-5.
The undersigned scheduled a status conference for June 27, 2023, to discuss
the next steps of the case. Order, issued June 14, 2023. Mr. VanCuren was served
with this order and was sent instructions on how to call in, but did not attend the
status conference. Mr. VanCuren was ordered to file a status report demonstrating
his interest in continuing this case within 30 days, or by July 28, 2023. Order,
issued June 28, 2023. It was noted that, if Mr. VanCuren did not file a status report
by the deadline, an order to show cause would be issued. Id.
Mr. VanCuren was ordered to show cause why his case should not be
dismissed by September 25, 2023. The order permitted Mr. VanCuren to file an
affidavit stating his intent to remain in the program and fully prosecute his case.
Order, issued Aug. 25, 2023. Mr. VanCuren did not file an affidavit, and has not
taken any action since filing his medical records on July 7, 2022.
II. Analysis
When a petitioner (or plaintiff) fails to comply with Court orders to
prosecute their cases, the Court may dismiss their case. Padmanabhan v. Sec’y of
Health & Hum. Servs., 638 Fed. App’x 1013 (Fed. Cir. 2016); Sapharas v. Sec’y of
Health & Hum. Servs., 35 Fed. Cl. 503 (1996); Tsekouras v. Sec’y of Health &
Hum. Servs., 26 Cl. Ct. 439 (1992), aff’d, 991 F.2d 819 (Fed. Cir. 1993) (table);
Vaccine Rule 21(c); see also Claude E. Atkins Enters., Inc. v. United States, 889
F.2d 1180, 1183 (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).

Case 1:21-vv-02075-UNJ Document 37 Filed 10/25/23 Page 4 of 4
Here, three times, Mr. VanCuren was ordered to file his medical records.
After missing a status conference, he was ordered twice to file an affidavit
expressing his interest in maintaining the litigation. Mr. VanCuren’s persistent
silence leads to a conclusion that he is no longer interested in pursuing the case.
Therefore, his case is DISMISSED. See B.K. v. Sec’y of Health & Human Servs.,
No. 17-1840V, 2020 WL 1888866 (Fed. Cl. Spec. Mstr. Feb. 12, 2020) (dismissing
case pursuant to Vaccine Rule 21(b) due to petitioner’s failure to respond to orders
demonstrating an interest in maintaining the case); Woods v. Sec’y of Health &
Human Servs., No. 10-377V, 2012 WL 2872290 (Fed. Cl. Spec. Mstr. June 14,
2012) (dismissing case due to petitioner’s failure to prosecute).
While Mr. VanCuren’s case is dismissed solely for his failure to express an
interest in continuing the litigation, his case has significant weaknesses. The
primary problem is that Mr. VanCuren has not submitted sufficient evidence to
establish that the flu vaccine caused his injury, nor that he ever received the flu
vaccine. If Mr. VanCuren were to continue to prosecute his case, he might have
overcome these obstacles. However, Mr. VanCuren’s case is not being dismissed
due to the weaknesses in his case, but for his failure to prosecute it.
This case is dismissed for failure to prosecute. The Clerk shall enter
judgment accordingly. See Vaccine Rule 21(b).
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master