Barkocy v. Secretary of Health and Human Services ( 2020 )

In the Guited States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1175V
l‘iled: December 10, 2019
* * * * * K K K K K K K K K
ASHLEY BARKOCY, as parent and * UNPUBLISHED
natural guardian of M.B., a minor *
*
Petitioner, + Dismissal; Failure to Prosecute;
* Failure to Follow Court Orders;
v. * Vaccine Rule 21(b)
*
SECRETARY OF HEALTH +
AND HUMAN SERVICES, a
*
*
Respondent.
* * * * * * * * K KF K K K F
Ashley Barkocy, pro se, Destin, FL.
Mollie Gorney, Esq., U.S. Dept. of Justice, Washington, DC, for respondent.
DECISION DISMISSING PETITION!
Roth, Special Master:
On August 10, 2018, Ashley Barkocy (“petitioner” or “Ms. Barkocy”) filed a pro se
petition for compensation in the National Vaccine Injury Compensation Program (“the
Program”)? on behalf of her minor child, MB. The petition alleged that M.B. received
human papillomavirus (“HPV”) vaccinations on August 13, 2015, October 19, 2015, and
' Although this Decision has been formally designated “unpublished,” it will nevertheless be posted on the
Court of Federal Claims’s website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-
347, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). This means the Decision
will be available to anyone with access to the internet. However, the parties may object to the Decision’s
inclusion of certain kinds of confidential information. Specifically, under Vaccinc Rule 18(b), each party
has fourteen days within which to request redaction “of any information furnished by that party: (1) that is
a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes
medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of
privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available tothe public. /d.
? The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-10 et seg. (hereinafter “Vaccine Act” or “the
Act”). Hereafter, individual section references will! be to 42 U.S.C. § 300aa of the Act.
March 18, 2016, and thereafter suffered from injuries including but not limited to, postural
orthostatic tachycardia syndrome (“POTS”). See Petition §[[2, 3.
A status conference was held on November 13, 2018. During the conference,
petitioner advised that she had contacted several attorneys with experience in the Vaccine
Program and they requested to review M.B.’s medical records before undertaking
representation of petitioner’s claim. Order at 1, ECF No. 9. Petitioner explained that she
was in the process of gathering M.B.’s medical records but was having trouble obtaining
records from some of M.B.’s providers. /d. Petitioner was advised that she could contact
the Court and request an Order granting petitioner the authority to have a subpoena served
on a certain facility or provider. Jd. Petitioner was ordered to file M.B.’s medical records
by January 14, 2019. /d. at 2. Petitioner was encouraged to continue pursuing
representation from an attorney. Jd.
Petitioner failed to file any medical records for M.B. by January 14, 2019, nor did
she contact the Court in any way. An Order was issued on January 24, 2019 for petitioner
to file M.B.’s medical records by March 25, 2019. Scheduling Order at 1-2, ECF No. 10.
Petitioner was advised that failure to comply with Court orders, as well as failure to respond
to Court communications, could result in the dismissal of her claim. /d. at 1.
Petitioner failed to file any medical records for M.B. by March 25, 2019, nor did
she contact the Court in any way. An Order to Show Cause was issued on April 2, 2019,
for petitioner to file M.B.’s medical records or otherwise show cause for why this matter
should not be dismissed by May 2, 2019. Order to Show Cause at 1, ECF No. 11. Petitioner
was advised that failure to respond to this Order would result in the dismissal of her claim.
Td.
Petitioner contacted the Court via email on May 6, 2019. See Status Report, ECF
No. 14. Petitioner advised that she had an appointment with attorney for the end of May
and requested an extension of time. /d. at 1. An Order was issued for petitioner to file a
status report by August 5, 2019, advising the Court of her progress in retaining an attorney.
Status Report Order at 1, ECF No. 13.
Petitioner failed to file a status report by August 5, 2019, nor did she contact the
Court in any way. On August 8, 2019, my law clerk emailed petitioner to remind her of the
necessity of complying with Court-ordered deadlines. See Order to Show Cause at 1, ECF
No. 15. Petitioner did not respond. Jd. On August 29, 2019, a second Order to Show Cause
was issued. Jd. Petitioner was ordered to file a status report or otherwise show cause for
why this matter should not be dismissed by September 30, 2019. Jd. Petitioner was advised
that failure to respond to this Order would result in the dismissal of her claim. Jd. This
Order was returned to the Court as unclaimed mail on October 3, 2019. See ECF No. 16.
On October 4, 2019, a third Order to Show Cause was issued, requiring petitioner
to file a status report or otherwise show cause for why this case should not be dismissed
for failure to prosecute by November 4, 2019. Order to Show Cause at 1, ECF No. 17.
Petitioner was advised that failure to respond to this Order would result in the dismissal of
her claim. /d. This Order was sent to petitioner via certified mail, regular mail, and e-mail
to ensure delivery. Jd. On October 16, 2019, the Court received a return receipt indicating
that the Order had been successfully delivered on October 8, 2019. See ECF No. 18.
Petitioner failed to file a status report or contact the Court in any way by November
4, 2019. As of December 10, 2019, petitioner has not contacted the Court in any way.
Petitioner’s case has been pending for over a year. She has been provided time to
find new counsel and to file medical records in support of her petition but has failed to do
so. Moreover, she has failed to respond to Court orders on numerous occasions, despite
numerous opportunities to do so, and has generally failed to comply with any of the Court’s
orders to apprise of her status and her intention regarding this vaccine injury claim.
It is petitioner’s duty to prosecute her case, and to follow court orders. Tsekouras v.
Sec’y, HHS, 26 Cl. Ct. 439 (1992), aff'd per curiam, 991 F.2d 810 (Fed. Cir. 1993);
Sapharas v. Sec’y, HHS, 35 Fed. Cl. 503 (1996); Vaccine Rule 21(b). Accordingly, this
case is dismissed for failure to prosecute and failure to follow courts orders. The clerk
shall enter judgment accordingly.
IT ISSO ORDERED.
Special] Master