                                                                                   REISSUED FOR PUBLICATION
                                          ORIGINAL                                                  3 MAY 2017
                                                                                                    OSM
                                                                                        U.S. COURT OF FEDERAL CLAIMS

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                                     OFFICE OF SPECIAL MASTERS                                            F ILE D
                                             No. 12-782V
                                                                                                           MAR 16 2017
                                                                                                                  OSM
*************************                                                                                    U.S. COURT OF
                                                                                                            FEDERAL CLAIMS
                                                        *        Special Master Corcoran
KENDRA IANNOTTI,                                        *
                                                        *        Filed: March 16, 2017
                            Petitioner,                 *
         v.                                             *
                                                        *         Dismissal of Petition; Vaccine
SECRETARY OF HEALTH                                     *       · Act; Denial Without Hearing; Failure
AND HUMAN SERVICES,                                     *         to Prosecute.
                                                        *
                            Respondent.                 *
                                                        *
*************************

Kendra Iannotti, Pro Se, East Haven, CT, for Petitioner.

Gordon E. Shemin, U.S. Dep't of Justice, Washington, D.C. for Respondent.

                 DECISION DISMISSING CASE FOR INSUFFICIENT PROOF 1

       On November 13, 2012, Kendra Iannotti filed a petition seeking compensation under the
National Vaccine Injury Compensation Program.2 The Petition alleged that the influenza ("flu")
vaccine that she received on August 19, 2011, caused her to develop Guillain-Barre Syndrome
("GBS"). See Petition ("Pet.") at 1.

       Petitioner initially filed this case pro se, but was able to obtain representation by attorney
Ronald Homer, Esq., who appeared on her behalf on April 8, 2013 . ECF No. 9. Petitioner then
began to file medical records related to her claim in December 2013. ECF No. 21. In January 2014,

1
  This dec ision will be posted on the United States Court of Federal Claims website, in accordance with the E-
Government Act of 2002, 44 U.S .C. § 350 I (2012) . As provided by 42 U.S.C . § 300aa-12(d)(4)(B), however, the
parties may object to the decision's inclusion of certain kinds of confidential information. Specifically, under Vaccine
Rule I 8(b ), each party has fourteen days within which to request redaction "of any information furnished by that party :
(I) that is a trade secret or commercial or financial in substance and is privi leged or confidential; or (2) that includes
medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy."
Vaccine Ru le l 8(b). Otherwise, the whole decision will be available to the public. Id.

2
 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No . 99-660,
JOO Stat. 3758, codified as amended at 42 U.S .C. §§ 300aa-IO through 34 (2012) ("Vaccine Act" or "the Act") .
Individual sect ion references hereafter wil l be to § 300aa of the Act (but will omit that statutory prefix).
the case was reassigned to me. ECF No. 26. Due to the voluminous nature of these records, counsel
took nearly three months to review them, there upon determining that he would not be proceeding
further as Petitioner's counsel. ECF No. 27. Mr. Homer thus filed a motion to withdraw as attorney
on May 15, 2014 (ECF No. 34), which was granted on July 10, 2014. ECF No. 40.

         Petitioner thereafter reassumed her pro se status, and filed additional medical records
during July 2014, although many necessary records were still missing. ECF No. 38. From
September 2014 to March 2015, I repeatedly ordered Petitioner to file such additional medical
records or a statement of completion. However, Petitioner failed to comply with these orders; thus,
I issued an order to show cause on April 20, 2015. ECF No. 51. Petitioner responded that she was
still attempting to determine which medical records were relevant to her claim, as well as
attempting to obtain new counsel. ECF No. 52. I gave Petitioner another opportunity to comply
with my order, and she filed the medical records and a statement of completion on July 13, 2015.
ECF Nos. 55-56. The case had now been pending for well over two years.

        Respondent filed her Rule 4(c) Report on August 17, 2015 (ECF No. 58), which contested
the appropriateness of an entitlement award. First, Respondent contended that the medical records
alone failed to provide proof of a vaccine injury, and that Petitioner had failed to provide a reliable
medical theory or logical sequence of cause and effect to support her claim. ECF No. 58 at 7.
Respondent also noted that the record supported a finding that Petitioner's complaints were more
likely caused by her pre-existing diabetes. Id. Finally, Respondent noted that the timing of
Petitioner's OBS onset was not during a medically reasonable timeframe to infer causation. Id.

       In light of Respondent's report, I ordered Petitioner to file an expert report on or before
November 13, 2015. ECF No. 60. After several delays and extensions, Petitioner filed a letter from
Dr. Philip Goldberg (her treating endocrinologist) on January 15, 2016. ECF No. 64. But the letter
was very short and unsupported by any medical literature, and conclusorily stated that Petitioner's
symptoms were not consistent with diabetic neuropathies, and therefore must be unrelated to her
pre-existing diabetes. Id. at 2.

        Shortly before filing this report, Petitioner also indicated to the court that she had found an
attorney to represent her. See ECF No. 63. I explained to Petitioner that until the attorney entered
an appearance in the case, it was still Petitioner's responsibility to comply with my orders. Id. Such
counsel never did appear, however.

        After review of Dr. Goldberg's letter, I noted to Petitioner that the report alone was
insufficient to support vaccine causation, and urged the parties to consider settlement of the claim.
ECF No. 66. Therefore, Petitioner was to make a demand on Respondent and file a status report
indicating she had done so before March 18, 2016. Id. However, she failed to file the report until
April 7, 2016. ECF No. 68. The parties thereafter entered into settlement negotiations that were


                                                  2
ultimately unsuccessful; thus, I ordered Respondent to file an expert report or a motion for a ruling
on the record on or before September 30, 2016. ECF No. 76.

         After several extension requests, Respondent filed an expert report on November 21, 2016.
ECF No. 81. Based on this report, Petitioner requested the opportunity to obtain a supplemental
expert report in response (presumably in line with my prior direction earlier in 2016). ECF No. 83.
I set a deadline of February 17, 2017, and informed Petitioner that I would not grant any extensions
due to the drawn-out nature of this case.

        Thereafter, and on the date the report was due, Petitioner informally contacted my
chambers to request an extension of time. I denied the request based on my previous determination
that there would be no extensions, and I ordered Petitioner to show cause immediately why her
case should not be dismissed for failure to comply with my orders on February 22, 2017. ECF No.
87. Despite this order, Petitioner still has not filed her supplemental expert report, nor filed a
response of any kind to my order to show cause.

        To receive compensation under the Vaccine Program, a petitioner must prove either (1)
that she suffered a "Table Injury" - i.e., an injury falling within the Vaccine Injury Table -
corresponding to one of her vaccinations, or (2) that she suffered an injury that was actually caused
by a vaccine. See Sections 13(a)(l)(A) and 1 l(c)(l). An examination of the record, however, does
not uncover any evidence that Petitioner suffered a "Table Injury." Further, the record does not
contain a medical expert's opinion or any other sufficient and persuasive evidence indicating that
the alleged injury that Petitioner experienced could have been caused or significantly aggravated
by the flu vaccine that she received on August 19, 2011. Petitioner had several chances to offer a
supplemental report or other evidence that would support her claim, and she failed to submit such
evidence into the record. It is therefore appropriate to dismiss the claim for failure of proof.

       In addition, Petitioner's claim must be dismissed due to her repeated failures to comply
with my orders. A petitioner's inaction and failure to abide by court orders risks dismissal of a
claim. Tsekouras v. Sec'y <~f Health & Human Servs., 26 Cl. Ct. 439 (1992), aff'd per curiam, 991
F.2d 810 (Fed. Cir. 1993); Sapharas v. Sec'y o.f Health & Human Servs., 35 Fed. Cl. 503 (1996);
Vaccine Rule 21 (b ). Though Petitioner represented that she had obtained counsel, the attorney
never entered an appearance in this matter. She also failed to file the expert report.

        Under the Vaccine Act, a petitioner may not receive a Vaccine Program award based solely
on her claims alone. Rather, the petition must be supported by either medical records or by the
opinion of a competent physician. Section 13(a)(l). In this case, there is insufficient evidence in
the record for Petitioner to meet her burden of proof. Petitioner's claim therefore cannot succeed
and must be dismissed. Section l l(c)(l)(A).



                                                  3
       Thus, this case is dismissed for insufficient proof and failure to prosecute. The Clerk
shall enter judgment accordingly. 3

         IT IS SO ORDERED.


                                                                            Brian H. Corcoran
                                                                            Special Master




3
  Pursuant to Vaccine Rule 11 (a), the parties may expedite judgment by filing a joint notice renouncing their right to
seek review.

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