Block v. Secretary of Health and Human Services ( 2015 )

Case 1:14-vv-00739-UNJ Document 28 Filed 09/29/15 Page 1 of 3
ORIGINAL
3n tfte 3Hmte& States; Court of Jfeberai Claims?
OFFICE OF SPECIAL MASTERS
No. 14-739V
FILED
Filed: September 29, 2015 SEP 2920,5
CLEMENTINE BLOCK, UNPUBLISHED
Petitioner, Special Master Hamilton-Fieldman
SECRETARY OF Dismissal for Failure to Prosecute.
HEALTH AND HUMAN SERVICES,
Respondent.
Clementine Block, Pro Se, Summit, NJ.
Ryan Pyles, United States Department of Justice, Washington, D.C., for Respondent.
DISMISSAL DECISION
On August 14, 2014, Clementine Block ("Petitioner") filed a petition for
compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§
300aa-l et seq. (2006) ("Vaccine Act"). Petitioner alleged that she suffered from
bilateral optic neuritis and complete vision loss as a result of the administration of an
influenza ("flu") vaccine on January 14, 2013. The undersigned now finds that the
information in the record does not show entitlement to an award under the Program.
On July 6, 2015, Petitioner's daughter, Brett Block, contacted the undersigned's
Chambers and stated that Petitioner did not wish to represent herself, and that she wished
to exit the program. The undersigned's staff advised Brett Block to advise Petitioner to
review the routes to dismissal listed on the Court of Federal Claims website. Chambers
staff also advised Ms. Block that the undersigned would be willing to conduct a status
conference at any time.
When, by August 17, 2015, a motion regarding Petitioner's exit from the program
had not been filed, the undersigned's staff contacted Petitioner regarding how she wished
to proceed. Petitioner stated that, for medical reasons, she was unable to personally
pursue her petition, and she requested that the undersigned's staff contact Brett Block,
Case 1:14-vv-00739-UNJ Document 28 Filed 09/29/15 Page 2 of 3
whom Petitioner believed had been appointed to represent her.1 The undersigned's staff
informed Petitioner that her daughter had not, in fact, been appointed to represent her,
and that Petitioner would need to take additional steps in the event that she did not wish
to proceed on her own behalf. Petitioner again indicated that she was personally unable
to take any steps in furtherance of her claim.
On August 19, 2015, the undersigned issued an order directing Petitioner to show
cause why this case should not be dismissed for failure to prosecute. Petitioner was given
a deadline of September 15, 2015 to either 1) file a motion to exit the program, or 2)
contact the undersigned's Chambers to schedule a status conference. Petitioner was
warned that failure to respond to the show cause order will be interpreted as either a
failure to prosecute or as an inability to provide supporting documents for her claim. In
either event, Petitioner was warned, the petition would be dismissed.
Petitioner did not contact the undersigned's Chambers or file anything by the
September 15, 2015 deadline, and she has not filed anything to date.
I. Failure to Prosecute
It is petitioner's duty to respond to court orders. Failure to follow court orders, as
well as failure to file medical records or an expert medical opinion, shall result in
dismissal of petitioner's claim. Tsekouras v. Sec'y, HHS, 26 CI. Ct. 439 (1992), aff'dper
curiam, 991 F.2d 810 (Fed. Cir. 1993); Sapharas v. Sec'y, HHS, 35 Fed. CI. 503 (1996);
Vaccine Rule 21(b).
II. Causation In Fact
To receive compensation under the Program, Petitioner must prove either 1) that
she suffered a "Table Injury" - i.e., an injury falling within the Vaccine Injury Table -
corresponding to her vaccination, or 2) that she suffered an injury that was actually
caused by a vaccine. See §§ 3OOaa-13(a)(1)(A) and 300aa-l 1(c)(1). Under the Vaccine
Act, a special master cannot find a petitioner has proven her case by a preponderance of
the evidence based upon "the claims of a petitioner alone, unsubstantiated by medical
records or by medical opinion." 42 U.S.C. § 300aa-13(a) (2006). An examination of the
record did not uncover any evidence that Petitioner suffered a "Table Injury." Further,
the record does not contain a medical opinion or any other persuasive evidence indicating
that Petitioner's injury was vaccine-caused.
1Ata previous status conference, the undersigned had explained that, because Petitioner's daughter is not
an attorney, she cannotrepresent Petitioner in these proceedings without being legally appointed as
Petitioner's conservator or guardian.
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Accordingly, it is clear from the record in this case that Petitioner has failed to
demonstrate either that she suffered a "Table Injury" or that her injuries were "actually
caused" by a vaccination. This case is dismissed for insufficient proof and for failure
to prosecute. The clerk shall enter judgment accordingly.2
IT IS SO ORDERED.
Lisa D. Hamilton-Fieidman
Special Master
2This document constitutes the undersigned's final "Decision" in this case, pursuantto 42 U.S.C. §
300aa-12(d)(3)(A). If Petitioner wishes to have this case reviewed by a Judge of the United States Court
of Federal Claims, a motion for review of this decision must be filed within 30 days. After 30 days the
Clerk of this Court shall enterjudgment in accord with this decision. If petitioner wishes to preserve
whatever right petitioner may have to file a civil suit (that is a law suit in another court) petitioner must
file an "election to reject judgment in this case and file a civil action" within 90 days of thefiling of the
judgment. 42 U.S.C. § 300aa-21(a).