  In the United States Court of Federal Claims
                             OFFICE OF SPECIAL MASTERS
                                       Filed: January 4, 2018

* * * * * * * * * * * * * * *
DAVID ROMERO,                 *
                              *
     Petitioner,              *                       No. 16-136V
                              *                       Special Master Sanders
v.                            *
                              *                       Dismissal; Petitioner Death;
SECRETARY OF                  *                       No Substitute Petitioner;
HEALTH AND HUMAN SERVICES,    *                       Failure to Prosecute
                             *
     Respondent.              *
* * * * * * * * * * * * * * *

Bruce Slane, Law Office of Bruce W. Slane, P.C., White Plains, NY, for Petitioner.
Voris Johnson, United States Department of Justice, Washington, DC, for Respondent.

                                            DECISION1

        On January 28, 2016, David Romero (“Petitioner”) filed a petition pursuant to the National
Vaccine Injury Compensation Program (“Vaccine Program”).2 42 U.S.C. §§ 300aa-10 to -34
(2012). Petitioner alleged that he suffered from “cryoglobulinemic vasculitis, kidney failure,
congestive heart failure, atrial fibrillation, pneumonia, meningoencephalitis, seizures, edema in the
bilateral lower extremities, palpable purpura, glomerulonephritis, enlarged spleen, anemia, nose
bleeds, pancytopenia, chronic thrombocytopenia, pulmonary edema, psychosis, diplopia,
hemoptysis, dyspnea, bronchiolitis, pneumonitis, sepsis, pseudomonas bacteremia, neutropenia,
leukopenia, mood changes, and neurocognitive disorder” as a result of Hepatitis B vaccinations he
received on April 22, 2014 and May 22, 2014. Pet. at 1, ECF No. 1.


       1
           This decision shall be posted on the United States Court of Federal Claims’ website, in
accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012) (Federal
Management and Promotion of Electronic Government Services). In accordance with Vaccine
Rule 18(b), a party has 14 days to identify and move to delete medical or other information that
satisfies the criteria in § 300aa-12(d)(4)(B). Further, consistent with the rule requirement, a motion
for redaction must include a proposed redacted decision. If, upon review, the undersigned agrees
that the identified material fits within the requirements of that provision, such material will be
deleted from public access.
       2
         National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755.
Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent
subparagraph of 42 U.S.C. § 300aa (2012).

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        Petitioner was actively pursuing his claim and the parties were engaging in settlement
discussions when Petitioner passed away on September 3, 2017. Pet’r Ex. 21, ECF No. 45. On
December 8, 2017, Petitioner’s counsel filed a status report stating that he “spoke to [Petitioner’s]
daughter, Veronica Gonzalez, in regards to becoming the proposed Administratrix of Petitioner’s
estate and retaining [counsel’s law office].” ECF No. 47. Petitioner’s counsel further reported
that it is his belief that Petitioner “died intestate, that Veronica Gonzalez would be the sole
beneficiary of the estate . . . [and] that no estate will likely be formed on the behalf of [Petitioner].”
Id. Finally, Petitioner’s counsel stated his understanding that Ms. Gonzalez “does not wish to
pursue her late father’s cause of action at this time.” Id.

         At a status conference held on December 12, 2017, Petitioner’s counsel reiterated the
contents of his December 8, 2017 status report and his understanding that there is no beneficiary
who seeks to pursue Petitioner’s claim. See Order, ECF No. 48. That same day, Petitioner’s
counsel sent a letter to Ms. Gonzalez via federal express and certified mail with return receipt.
Pet’r Ex. 22, ECF No. 49-1. In the letter, Petitioner’s counsel advised Ms. Gonzalez “that there
will be a motion to dismiss [her] late father’s Petition in the Federal Court of Claims Vaccine
Compensation Program.” Id. Counsel further advised that because Ms. Gonzalez has “not retained
[his] firm and [has] represented that there are no beneficiaries willing to continue [Petitioner’s]
case,” the motion to dismiss would “be made within 20 days of the date of [the] letter.” Id. He
explained that if she or “any other possibl[e] beneficiary that [she is] aware of change[d] their
mind in the next 20 days and wish[ed] to pursue the petition,” they should “contact him
immediately.” Id. Petitioner’s counsel then informed Ms. Gonzalez that if he received no
response, he would “not oppose the motion [to dismiss] and the petition will then be dismissed
with prejudice.” Id. He noted that “it is [his] understanding that this [dismissal] is [Ms.
Gonzalez’s] wish.” Id.

        On January 3, 2018, Respondent filed an unopposed Motion to Dismiss Pursuant to
Vaccine Rule 21(b)(1). Resp’t’s Mot. to Dismiss, ECF No. 51. In the motion, Respondent notes
his understanding that Petitioner’s “counsel has made diligent efforts to locate a person to serve as
the legal representative of [Petitioner’s] estate for purposes of maintaining the instant Vaccine Act
Petition,” but that “Ms. Gonzalez has declined to serve as the petitioner in this matter and has
represented that there are no other beneficiaries of the estate to serve as the petitioner.” Id.
Therefore, Respondent moved for the petition to be dismissed pursuant to Vaccine Rule 21(b)(1)
because “[t]here [is] no petitioner to prosecute th[e] claim further.” Id. at 2. The motion reflects
that Petitioner’s “counsel has reviewed th[e] motion and advises that he does not object.” Id.

        Under Vaccine Rule 21(b)(1), the Special Master “may dismiss a petition or any claim
therein for failure of the petitioner to prosecute or comply with these rules or any order of the
Special Master or the court.” Because Petitioner died on September 3, 2017 and his sole
beneficiary has declined to serve as Petitioner in this matter, there is no longer a petitioner to
prosecute the claim. Therefore, this case must be dismissed for failure to prosecute. The Clerk
shall enter judgment accordingly.




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IT IS SO ORDERED.
                    s/Herbrina D. Sanders
                    Herbrina D. Sanders
                    Special Master




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