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                              No.03-468V
                        (Filed: March 30, 2016)*
      'tOPINION ORIGINALLY FILED UNDER SEAL ON MARCH IO.2016
                                                                         FILED
                                             )
 ROBERT R. BLOCH, JR.         and     ;                                MAR 3   0   2016
 KERRY M. BLOCH, Parents        and )                                 U.S. coURToF
 natural guardians of D.J.B., aminor, )                              fEOennl CUttvtS

                        Pro se   plaintiffs. j
                                             ;        Pro se; Vaccine Act; Dismissal for
 v.                                          )        Failure to Prosecute; Failure to Follow
                                             )        Court Orders
 SECRETARYOFTHE                              )
 DEPARTMENTOFHEALTHAND                       )
 HUMAN      SERVICES,                        ]
                       Defendant.            t
                                             \
                                             ',




                                         OPINION'

FIRESTONE, Senior Judge.

       This vaccine injury case comes before the court on petitioners' motion for review

of the special master's October 2, 2015 decision dismissing the petition of pro      se


petitioners Robert R. Bloch, Jr. and Kerry M. Bloch, on behalf of their minor child D.J.B.

("petitioners"), for "fail[ure] to prosecute or prove this case." Bloch v. Sec'y of Health   &




I Pursuant to Rule 18(b)
                         ofAppendix B   ofthe Rules of the United States Court ofFederal
Claims (the "Vaccine Rules"), this opinion was initially filed under seal on March 10,2016 and
the parties were provided an opportunity to submit requests for redaclions.
Human Servs., No. 03-468V,2015 WL 6511457, at *1 (Fed. Cl. Oct.2,2015). Forthe

reasons discussed below, petitioners' motion for review is denied.

I.     BACKGROUND

       Petitioners initially filed their petition for vaccine compensation on February 27,

2003, under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. $$ 300aa-1 to

-34 ("the Vaccine Act"), alleging that D.J.B. was injured by a vaccine or vaccines listed

on the Vaccine lnjury Table. Id. $ 300aa-14. Petitioners filed their petition using the

Short-Form Autism Petition for Vaccine Compensation. On February 8,2012, after the

medical theories which formed the basis of petitioners' original claim were rejected in

test cases under the Omnibus Autism Proceeding ("OAP"), petitioners filed an amended

petition alleging a new medical theory for their case. DocketNo.33. Thereafter, on

February 21,2012, the special master ordered petitioners to file, in support of the

allegations in their amended complaint, "a reliable medical expert's opinion that one or

more vaccinations, more probably than not, played a substantial role in causing [D.J.B.'s]

injury." Docket No. 34.

       From May 2012 through March 2013, petitioners, through their attomey, filed

status updates representing that an expert was reviewing their materials. Docket Nos. 35,

37,39,40. On June 20,2013, petitioners filed    a status report indicating that they planned

to retain a medical expert. Docket No. 43. They did not, however, file any expert report.
       On July 1,2013, the special master again ordered petitioners to file an expert

report. Docket No. 44. The special master stated:

       Petitioners and petitioners' counsel are put on notice that if an expert report
       is not frled in this case within six months of the date of this Order, absent
       good cause shown, I will dismiss the petition for failure to prove the case.

       Petitioners shall file their expert report by no later than August 1.
       lQ!! If petitioners do not file an expert report at that time, petitioners
       shall file a motion for an enlargement of time, pursuant to Vaccine
       Rule 19(b). Such motion shall indicate whether or not a medical expert
       has been retained in this case. Ifa medical expert has been retained
       the motion shall be accompanied by a letter from petitioners' expert
       describing what progress has been made toward producing an expert
       report and when he/she expects to complete it,

ld. at l-2 (emphasis in original).

       On October 30,2013, following an enlargement of time, Docket No. 46,

petitioners, through their attomey, represented that they had formally retained a medical

expert, Dr. Frances Kendall, M.D., to review their case. Docket No. 47. However,

petitioners did not provide an expert report. On Jtne 2,2014, following five more

enlargements of time (Order filed October 31,2013; Docket Nos. 51,54,56,59),

petitioners stated that they still did not have an expert report and requested additional

time to confer with counsel and "to make further report to the [special master] or to file

an appropriate motion regarding the petition." Docket No. 60.

       On August 20,2014, the special master authorized counsel for petitioners to serve

subpoenas on Beaches Family Health Center, Florida Department of Health in Duval

County, and Florida Department of Health     - Florida SHOTS, for the purpose of obtaining
additional vaccination records. Docket No. 70. Petitioners reoresented that "information
obtained from one or both of the above named entities may assist petitioners to determine

how they wish to proceed or ifthey can reasonably do so." Docket No. 86. It appears,

however, that petitioners were unable to get all of the information they sought from those

entities. Docket Nos. 80, 84.

       On December 30,20I4, the special master reminded petitioners of their obligation

to file an expert report. Docket No. 87. The special master stated:

              [T]his case has been pending for more than eleven years, and cannot
              be permitted to go on indefinitely. Petitioners must file a report of a
              qualified medical expert, which supports their claim that a vaccine
              caused their child's condition, within 120 days of the date of this
              order, or their case will be dismissed.

Id. (emphasis added).

       On March 2,2015, counsel for petitioners stated that thcy were "unable to file an

expen report at this time." Docket No. 94 at 1. Counsel for petitioners further stated that

he had advised petitioners that he was unable to proceed with representation in their case

and would therefore file a motion to   withdraw. Id. at 1-2.

       On March 4, 2015, the special master issued an order stating, in relevant part, that:

       . . . Petitioners are hereby put on notice that they soon will be required to
       represent themselves, unless they obtain new counsel. In order to proceed with
       their case, they will be required to file an expert reporl of a qualified medical
       doctor supporting their claim. (Such expert must be willing to testify under oath
       at an evidentiary hearing.) I will afford Petitioners a reasonable amount of time in
       which to file such an expert report, bul I will not likely find it appropriate to
       extend the due date for such report indefinitely, since this case has already been
       pending for almost 12 years. Therefore, if Petitioners wish to pursue their claim,
       they should proceed now with efforts to obtain an expert medical report.




                                              4
Docket No. 95 (emphasis in original).2

       On   April 29,2015, the special master directed petitioners, now proceeding pro              se,


to file an expert report by June 4,2015. Docket No. 106. On May 22,2015, petitioners

requested additional time to file an expert report. Docket No. 108. Petitioners stated that

they had only recently received case materials from their former attomey and that they

were in the process of familiarizing themselves with those resources and evaluating

potential expert witnesses.      Id. Petitioners      also noted that they found the previously

identified expert unsuitable.        Id.   On May 27,2015, the special master granted

petitioners' request for additional time, giving them until August 3, 2015 to file an expert

report, but noted that he would        "rol   be likely to grant any further enlargements of this

new deadline for filing an expert report." Docket No. 109 (emphasis in original).

       On July 2,2015, petitioners reported that they had retained a medical doctor to

review their case materials and provide          a   report. Docket No. I 10. They also reported

that a chemist would support the doctor's findings.            Id. In addition, petitioners   requested

that the special master issue a subpoena to the hospital where D.J.B. was bom because

petitioners believed the hospital had withheld records regarding D.J.B.'s bi(h, medical

care, and treatment.    Id.   Petitioners also sought a subpoena to obtain billing records from

the time of D.J.B.'s birth that they believed were provided to their second attorney by

D.J.B.'s insurer. Id.




'Counsel for petitioners filedmotion to withdraw on April27,2015. Docket No. 104. The
                                 a
motion to withdraw was granted on April 28,2015. Docket No. 105.
        In an order filed July 10, 2015, the special master explained that the court's rules

permitted him to approve the issuance ofa subpoena but did not allow him to issue a

subpoena himself. Docket No. 113 at        I (citing Vaccine Rule 7). The     special master also

noted that petitioners had "had ample time to obtain relevant medical records." Id.

Moreover, the special master found that there was no evidence that petitioners' second

attomey had not provided all records in his possession. Id. at I -2.3 The special master

also reminded petitioners that they had been ordered to file an expert report. ld. at2.

The special master gave petitioners additional time for hling the expert report, untiL

August 17, 2015, but indicated that "given the extreme age of this case, I will not be

likely to further extend that deadline." Id. Finally, the special master instructed

petitioners to file a status report, by July 20,2015, stating the names of the two experts

whom thev had retained. Id.

       On July 21,2015, petitioners filed a response to the special master's order.

Docket No. I 14. Petitioners again argued that D.J.B.'s birth hospital had withheld

records, in particular a Hepatitis B vaccine consenVrefusal form, and that their second

attorney was withholding insurance billing records.       Id. In a separate   request, hled on

Jtly 24,2015, petitioners asked for additional time to select expert witnesses. Docket




r Also on July I 0, 2015, pursuant to instructions from the special master,
                                                                            the clerk of this court
forwarded petitioners copies of the medical records that the court had received on July 1 1 , 2008.
See Docket Nos. 111-l12 (cover letter for exhibits 1-11 copied onto compact disc by the clerk
and sent to petitioners via Federal Express Delivery).
No. 115. Petitioners stated that       a medical doctor had been     examinins their case materials

in preparation for writing an exp€rt report. Id.

           On July 30, 2015, the special master denied petitioners' request to compel the

hospital to produce records. Docket No. 116.4 However, the special master did instruct

petitioners' second attorney to forward        a   copy of the requested insurance billing records

if   he had them in his possession. Id.5 Regarding petitioners' request for additional time




a
     After noting again that petitioners had "had ample time to obtain relevant medical records," the
special master found that:

           Two different attomeys have apparently made efforts to obtain the hospital
           records in question, and certain records ofthat hospital visit do appear at Ex. 2
           filed in this case, of which Petitioners have a copy. Specifically, hospital records
           conceming August 3 I , 1998, to Sept. I , 1998, are scattered throughout Ex. 2,
           which consists of 85 pages, filed in four parts. I also note that on August 20,
           2014, I authorized Petitioners' second counsel . . . to serve subpoenas upon
           several sources of medical records. [Petitioners' second counsel] then succeeded
           in using those subpoenas to obtain additional medical records, which were filed
           on October 23, 2014.

Docket No. 116 at 1. The special master continued:

                  As to the "Vaccine Consent/Refusal Form", I find no record ofsuch a
          form, nor was there a record of any Hepatitis B vaccination. However, I note that
          atEx.2, p. 17, a birth record dated 8-31-98, there is a box checked indicating that
          no neonatal medications were administered.
                  Further, in more than 26 years in presiding over Vaccine Act cases, I have
          never seen a case in which birth records contributed in any way to showing that a
          vaccine caused any harm to an individual. (ln a few cases, birth records have
          shown that a child was damaged at or prior to binh, which might help show that a
          condition was NOT vaccine-caused.)
                  Also, the question of"consent" to a vaccination seems irrelevant, since
          under the Vaccine Act, causation is the only issue--the "fault" of any health
          provider is never an issue.

Id. at 2 (emphasis in original).
5
  On August 4, 2015, petitioners filed a motion to compel D.J.B.'s insurer to produce billing
records. Docket No. ll7. The special master denied the motion on August 11, 2015, on the
to file an expert report, the special master stated that he would "give Petitioners ONE

MORE FINAL CHANCE to obtain and file an expert report from a medical doctor,

stating the conclusion that DJB's condition was caused or aggravated by one or more

vaccines." Id. (emphasis in original). The special master concluded that "[i] f Petitioners

fail to file such an expert report within 60 days, I will have no choice but to dismiss their

case." Id.

         On September 25,2015, petitioners filed a "motion for judgment on the pleading"

stating that they were sanctioning the court for the hospital's failure to comply with

discovery and the failure to provide medical records. Docket No. I19. Petitioners further

stated that if the court did not have all of the hospital's records for D.J.B., they wanted a

'Judgment on the pleading."      Id. Petitioners did not file   an expert report at that time or on

September 29,2015, as the special master had required in his last order, Docket No. I 16.

         On October 2,2015, after the September 29,2015 deadline had passed, the special

master, consistent with his last order stating that he would "have no choice but to dismiss

their case" if an expert report were not filed, issued a decision dismissing petitioners'

case. Bloch,2015WL6511457, at*1-2(DocketNo. 120). Thespecialmasterreviewed

the case's procedural history and his orders for petitioners to submit an expert report. Id.

at   *1. The special   master also addressed petitioners' requests that the court compel

D.J.B.'s birth hospital and petitioners' former attomey to produce medical records,




grounds that petitioners had not shown that the information they sought was relevant to the issue
of whether D.J.B. suffered a vaccine-caused iniurv. Docket No. 1 18.
"many of which were already present in the record of this case." ld. at*2. The special

master concluded that despite many orders and warnings that informed petitioners that

their petition would bc dismissed if they did not file an expert report, petitioners had not

timely filed an expert report or requested more time to do so. Id. Accordingly, the

special master dismissed the case on the grounds that petitioners had failed to prosecute

and had failed to follow court orders. Id. (citing Sapharas v. Sec'y of Health        & Human

Servs., 35 Fed. Cl. 503 (1996); Tsekouras v. Sec'v ofHealth           & Human Servs.,26 Cl. Ct.

439 (1992); Vaccine Rule 2l(b)).

         On October 6,2015, the special master filed an order addressing petitioners'

"motion for judgment on the pleading" that they had filed on September 25,2015,but

that did not arrive in his chambers until October 5,2015, after the decision of dismissal

had been    filed. Docket No.    l2l.    In the October 6, 2015 order, the special master found

that   "[i]n effect, [the decision to dismiss]   has already complied with Petitioners' request"

because the special master had, prior to       filing his decision, "carefully reviewed the record

of this case and concluded that Petitioners had failed to provide any substantial proofthat

[D.J.B.] suffered   a   vaccine-related injury."   Id.   Therefore, the special master concluded,

the decision to dismiss should stand as issued. Id.

         On October 15, 2015, petitioners filed a motion asking this court to review the

special master's decision. Docket No. 122. The Secretary of Health and Human Services

("respondent") filed     a response on   November 12,2015. Docket No. 125.
II,    DISCUSSION

       A.     Jurisdiction and Legal Standards

       This court has jurisdiction to review the decisions of a special master in a Vaccine

Act case upon a motion from the petitioner.    See 42 U.S.C. $   300aa-12. Under 42 U.S.C.

$ 300aa-12(e), the court   may: (a) sustain the special master's decision; (b)   set aside any

findings of fact or conclusions of law that the court finds are arbitrary, capricious, or not

in accordance with law; or (c) remand the petition to the special master for further action.

A dismissal for failure to prosecute by the special master is reviewed under an abuse of

discretion standard. See. e.g., Padmanabhan v. Sec'y of Health & Human Servs., No.

2016-1074,2016 WL 463085, at *2-3 (Fed. Cir. Feb. 8, 2016) (per curiam) (citing

Claude E. Atkins Enters.. Inc. v. United States, 899 F.2d 1180, I183 (Fed. Cir. 1990);

Rule 4l (b) of the Rules of the Court of Federal Claims ("Involuntary Dismissal; Effect");

Vaccine Rule 21(b)(1)). The United States Court of Appeals for the Federal Circuit has

found that "[a]n abuse ofdiscretion exists when, inter alia, the [special master's] decision

was based on an erroneous conclusion of law or on a clearly eroneous finding of fact."

Id. at *3 (citing Matos v. Sec'v of Health & Human Servs., 35 F.3d 1549,1552 (Fed. Cir.

1994)). Therefore, a special master's decision should not be disturbed unless, upon      a


weighing ofrelevant factors, the court is "left with a definite and firm conviction that the

[special master] committed a clear enor ofjudgment." Id. (citing Adkins v. United

States, 816 F.2d 1580, 1582 (Fed. Cir. 1987)).




                                              l0
       B.      The Special Master Did Not Abuse His Discretion in Dismissing the
               Petition.

       In their motion for review of the special master's decision, petitioners argue that

the special master abused his discretion because "[a]s fact, it is the fiduciary

responsibility of the Respondents to provide       a transparent, preponderance   ofevidence

that vaccines did NOT injure DJB." Pet'rs' Mot. for Review          6. Petitioners   also assert

that the special master should have decided this case in their favor because respondent

initially challenged their claim based on the statute of limitations rather than on the basis

of causation. Id. (citing respondent's motion to dismiss filed August 15, 2008, Docket

No. 14). Petitioners argue that respondent, having failed to raise causation, should be

deemed to have conceded that D.J.B.'s autism is vaccine-caused.          Id. Finally,   petitioners

argue that the special master ened in denying their request to compel the hospital to

oroduce records from D.J.B.'s     birth.   Id.6




6
  Petitioners also allege fraud and demand the imposition of sanctions, including punitive
damages, on the special master, his law clerk, and counsel for respondent in connection with the
delayed consideration of their "motion for judgment on the pleading" (Docket No. 1 19), filed
September 25, 2015. Pet'rs'Mot. for Review 5. In addition, petitioners allege prejudice and
negligent mismanagement based on the special master's "failure to settle this case in DJB's favor
many years ago." S99 id. Respondent characterizes these claims as "meritless accusations made
because petitioners are appiuently unhappy with the dismissal of their petition." Resp't's
Resp. 8. The court agrees that these claims are without merit. There is nothing in the record to
indicate any wrongdoing on the part of the special master, his law clerk, or respondent's counsel.
To the contrary, the record of status reports, orders, and other filings from the past 12 years
demonstrates that the special master actively managed this case but gavc petitioners, proceeding
first through counsel and then pro se, ample leeway. The record also indicates that the special
master considered petitioners' September 25, 2015 motion as soon as he received a copy of it
and determined that the previously filed decision of dismissal in effect complied with petitioners'
request for ajudgment. See DocketNo. 121 (Order filed Oct. 6, 2015). Accordingly,
Detitioners' demand for sanctions is DENIED.



                                                  11
       Respondent argues that petitioners' motion for review should be denied and the

special master's decision should be affirmed because the special master's management          of

this case has been fair and because his dismissal of petitioners' petition was within his

sound discretion. Resp't's Resp. 8-10 (Docket No. 125).

       The court now tums to each ofpetitioners' arguments. First, the court considers

petitioners' argument that the petition should have been granted because respondent had

the burden of demonstrating that the vaccines at issue did not harm D.J.B. and thus

petitioners did not need to show causation. This argument is without merit. Under the

Vaccine Act, causation is presumed by statute for "Table injuries." See. e.g., Lalonde v.

Sec'y of Health & Human Servs., 7 46 F.3d I 334, 1338 (Fed. Cir. 20 14). Where       a


petitioner, however, alleges an "off-Table injury," as in this case, the petitioner has the

burden of establishing causation in fact. See. e.g., Paluck v. Sec'y of Health & Human

Servs., 786 F.3d 1373, 1379 (Fed. Cir. 2015) (citation omitted). It is only after the

petitioner has established causation that the burden shits to respondent to prove the injury

was caused by factors unrelated to the vaccine. See 42 U.S.C. $ 300aa- 13(a)( lXB).

       In this connection, the Vaccine Act does not permit the special master or this court

to find causation in an off-Table injury case "based on the claims ofa petitioner alone,

unsubstantiated by medical records or by medical opinion." 42 U.S.C. $ 300aa-13(a)(l).

The Federal Circuit has recognized the discretion granted to the special masters to require

"such evidence as may be reasonable and necessary," "the submission of such

information as may be reasonable and necessary," and "the testimony of any person and

the production ofany documents as may be reasonable and necessary." Simanski v.


                                              12
Sec'v of Health & Human Servs., 67       1   F.3d 1 368, I 380 (Fed. Cir. 20 12) (quoting

42 U.S.C. $ 300aa-12(d)(3)(B)). Thus, the burden was on petitioners in this case to

establish a plausible theory of causation with appropriate expert opinions. Petitioners'

objection to the dismissal on the ground that they did not have to establish causation is

based on a misunderstanding of the Vaccine Act and is without merit.

       Second, the court finds that petitioners' contention that dismissal was not

appropriate because respondent conceded the issue ofcausation is without merit.

Petitioners suggest that respondent effectively conceded tiability because respondent

sought initially to dismiss their petition on statute of limitations grounds, without

mentioning causation. Respondent's motion to dismiss (Docket No. l4), ftled August 15,

2008, was submitted in accordance with the special master's scheduling order (Docket

No. 12), filed April 15, 2008, regarding stage one of resolving the OAP non-test            cases.


The special master's   April   15, 2008 order directed petitioners to file medical records,

which they did in part on July I l, 2008. Docket No. 13. The special master's April 15,

2008 order then directed respondent to file, within 45 days ofpetitioners' filing, a

statement regarding whether the petition was timely filed in compliance with the Vaccine

Act's statute of limitations and identi$,ing medical records in support of that statement.

The special master's   April   15, 2008 order further explained that the merits of petitioners'

case, including the issue of causation, would not be considered until the statute      of
limitations issue was addressed. Therefore, the court finds that respondent did not

concede the issue of causation by not raising it in the August 15, 2008 motion to dismiss




                                                  13
and that the special master did not abuse his discretion by rejecting petitioners'

contention that respondent conceded causation.

       Third, the court finds that the special master did not abuse his discretion by

dismissing the petition without first ordering the production ofhospital records from

D.J.B.'s birth. In their subpoena request (Docket No. i 10), filed July 2,2015, petitioners

stated that they needed additional records because the records filed with the court "likely

do not completely represent events, medical care, and treatments DJB received as a

newbom infant." They focused their request on information related to a possible

Hepatitis B vaccination and the failure to provide "consent." The special master denied

the request for a subpoena on the grounds that the records were not relevant to the

specific issue of whether a childhood vaccine caused D.J.B.'s injuries. Docket Nos. 118

(Order filed Aug. 1 1, 2015), 116 (Order filed July 30, 2015).

       In their filing with this court, petitioners fail to address the bases for the special

master's decision to deny their subpoena request. Docket No.          I16. With   regard to

petitioners' request for a "Vaccine Consent/Refusal Form," the special master found "no

record of such a form, nor was there a record of any Hepatitis B vaccination." ld. at2.

The special master found that "at Ex. 2, p.   17   , a birth record dated 8-3 l -98, there is a box

checked indicating that no neonatal medications were administered."           Id. The special

master also noted that "the question of'consent' to a vaccination seems irrelevant, since

under the Vaccine Act, causation is the only issue--the      'fault' of any health provider   is

never an issue." Id. (emphasis in original). Because petitioners do not explain how the

medical records they sought would have helped establish causation, the court finds that


                                               14
the special master did not abuse his discretion by dismissing petitioners' case without

first granting their request to compel the hospital to produce records. Petitioners have

failed to show how the additional medical records would be relcvant to the issue        of

causation.

          Finally the court finds that the dismissal for failure to prosecute and failure to

follow the special master's orders is supported. The court recognizes that "while special

masters are given broad authority over the manner in which they conduct Vaccine Act

proceedings, that authority may not be used in a way that deprives a party ofprocedural

rights provided by the Vaccine Act and the Vaccine Rules . . . ." Simanski, 671 F.3d at

1385. Here, the special master provided petitioners with numerous opportunities and

extensions of time to provide an expert report to support their case. In such

circumstances, the court finds that petitioners' procedural rights were protected and that

the rationale for the special master's decision to dismiss for failure to prosecute and to

prove their case is well supported. In this regard, this case is similar to a recent Federal

Circuit case in which the court affirmed the dismissal of     a   vaccine petition in analogous

circumstances. In Padmanabhan v. Secretary of Health and Human Services , 2016 WL

463085, at +3-4, the Federal Circuit affirmed dismissal ofpro se petitioners' case for

failure to prosecute where the petitioners filed some medical records but did not comply

with the chief special master's repeated orders and wamings to file complete medical

records or an expert opinion regarding causation. The Federal         circuit found that the

chief special master gave the petitioners "considerable leeway to pursue their claims.,,

Id. at   *4. Similar   to Padmanabhan, in this case the special master issued numerous orders


                                                l5
for petitioners to file an expert report in support ofthe medical theory in their amended

petition and provided repeated wamings that their case would be dismissed if they did

not. The court finds that in this   case, as the Federal Circuit found in Padmanabhan, the

special master did not abuse his discretion in dismissing petitioners' case for failure to

prosecute and follow court orders.

III.   CONCLUSION

       Petitioners' motion for review is DENIED. The special master's decision

dismissing the petition is SUSTAINED. The clerk is directed to enter judgment

accordingly.

       IT IS SO ORDERED.




                                                              ANCVB. FIRESTONE
                                                            Senior Judge




                                               16
