Melanie Roush, as the Parent and Natural Guardian of Savanna Simmons, an Infant v. Secretary of Health and Human Services ( 2013 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 11-750V
March 29, 2013
Not for Publication
*****************************
MELANIE ROUSH, as the Parent and Natural *
Guardian of SAVANNA SIMMONS, an Infant, *
*
Petitioner, *
*
v. * Failure to prosecute; no expert
* opinion; no response to order
* to show cause
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * * * * * * * * * * * * * **
Melanie Roush, New Holland, OH, for petitioner (pro se).
Jennifer L. Reynaud, Washington, DC, for respondent.
MILLMAN, Special Master
DECISION1
1
Because this unpublished decision contains a reasoned explanation for the special
master’s action in this case, the special master intends to post this unpublished decision on the
United States Court of Federal Claims’ website, in accordance with the E-Government Act of
2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17, 2002). Vaccine Rule 18(b) states that
all decisions of the special masters will be made available to the public unless they contain trade
secrets or commercial or financial information that is privileged and confidential, or medical or
similar information whose disclosure would constitute a clearly unwarranted invasion of privacy.
When such a decision is filed, petitioner has 14 days to identify and move to redact such
information prior to the document’s disclosure. If the special master, upon review, agrees that
the identified material fits within the banned categories listed above, the special master shall
redact such material from public access.
On November 8, 2011, petitioner filed a petition for compensation under the National
Childhood Vaccine Injury Act of 1986, 42 U.S.C. § 300aa–10-34 (2006), on behalf of her
daughter Savanna Simmons, alleging that Gardasil, Menactra, DTaP, Varicella, and Flu Mist
vaccines caused Savanna an allergic reaction and epilepsy.
Although initially represented by counsel, petitioner became pro se on August 24, 2012.
A telephonic status conference was held with petitioner and respondent’s counsel on
October 24, 2012, during which petitioner stated she had contacted another attorney and was
going to send the medical records to him. The undersigned set up another status conference with
petitioner and respondent’s counsel for January 9, 2013. This was with the consent of petitioner
as well as respondent’s counsel.
On January 9, 2013, petitioner failed to appear for the scheduled telephonic status
conference.
On January 9, 2013, the undersigned issued an Order stating that petitioner shall contact
the undersigned’s law clerk by January 31, 2013 to set up another status conference. If petitioner
failed to contact the law clerk by January 31, 2013, petitioner should expect the undersigned to
issue an Order to Show Cause why this case should not be dismissed.
Petitioner failed to contact the undersigned’s law clerk.
On February 28, 2013, the undersigned issued an Order to Show Cause why this case
should not be dismissed and gave petitioner until March 18, 2013 to respond.
Petitioner failed to respond to the undersigned’s Order to Show Cause. This petition
must be dismissed for failure to prosecute.
DISCUSSION
2
To satisfy her burden of proving causation in fact, petitioner must prove by preponderant
evidence” (1) a medical theory causally connecting the vaccination and the injury; (2) a logical
sequence of cause and effect showing that the vaccination was the reason for the injury; and (3) a
showing of a proximate temporal relationship between vaccination and injury.” Althen v. Sec’y
of HHS, 418 F.3d 1274, 1278 (Fed. Cir. 2005). In Althen, the Federal Circuit quoted its opinion
in Grant v. Sec’y of HHS, 956 F.2d 1144, 1148 (Fed. Cir. 1992):
A persuasive medical theory is demonstrated by “proof of a logical
sequence of cause and effect showing that the vaccination was the
reason for the injury[,]” the logical sequence being supported by
“reputable medical or scientific explanation[,]” i.e., “evidence in
the form of scientific studies or expert medical testimony[.]”
Without more, “evidence showing an absence of other causes does not meet petitioners'
affirmative duty to show actual or legal causation.” Grant, 956 F.2d at 1149. Mere temporal
association is not sufficient to prove causation in fact. Id. at 1148.
Petitioner must show not only that but for the vaccines, Savanna would not have had
epilepsy, but also that the vaccines were a substantial factor in bringing about her epilepsy.
Shyface v. Sec’y of HHS, 165 F.3d 1344, 1352 (Fed. Cir. 1999).
Petitioner has not filed any expert report in support of her allegations. The undersigned
cannot rule in petitioner’s favor based solely on her allegations without supporting medical
records or medical opinion. 42 U.S.C. § 300aa-13(a)(1).
Petitioner has failed to make a prima facie case of causation in fact. She has failed to
prosecute this case. This petition is hereby DISMISSED.
CONCLUSION
3
Petitioner’s petition is DISMISSED. In the absence of a motion for review filed
pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment herewith.2
IT IS SO ORDERED.
__________________
DATE Laura D. Millman
Special Master
2
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party’s
filing a notice renouncing the right to seek review.
4