            IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                      OFFICE OF SPECIAL MASTERS
                                             No. 11-156V
                                        Filed: January 2, 2014

****************************
ROBERT V. DAVIS and                  *
AMY M. PHILLIPS-DAVIS,               *
Parents and Legal Representatives of *
AIDAN L. DAVIS, a Minor Child,       *                     Failure to Prosecute; Failure to Follow
                                     *                     Court Orders; Dismissal.
                   Petitioners,      *
             v.                      *
                                     *
SECRETARY OF HEALTH                  *
AND HUMAN SERVICES,                  *
                                     *
                   Respondent.       *
****************************

Robert V. Davis and Amy M. Phillips-Davis, Ogden, UT, pro se petitioners.
Lisa A. Watts, United States Department of Justice, Washington, DC, for respondent.

                                               DECISION 1

Vowell, Chief Special Master:

        On March 14, 2011, Robert Davis and Amy Phillips-Davis [“petitioners”] filed a
petition for compensation under the National Vaccine Injury Compensation Program, 42
U.S.C. § 300aa-10, et seq. 2 [the “Vaccine Act” or “Program”], on behalf of their minor
child, Aidan. Petitioners allege that Aidan suffered various injuries, including “moderate
to severe sensorineural bi-lateral hearing loss, fine motor skill incorrdination, global
development delay, and an unspecified diagnosis including Pervasive Developmental
Disorder,” as a result of the measles, mumps, rubella [“MMR”], hepatitis A [“Hep A”],

1
  Because this unpublished decision contains a reasoned explanation for the action in this case, I intend
to post this decision on the United States Court of Federal Claims' website, in accordance with the E-
Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44
U.S.C. § 3501 note (2006)). In accordance with Vaccine Rule 18(b), petitioners have 14 days to identify
and move to delete medical or other information, the disclosure of which would constitute an unwarranted
invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will
delete such material 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 (2006).
and varicella vaccines he received on March 12, 2008; and/or the Haemophilus
influenzae type B [“Hib”] and hepatitis B [“Hep B”] vaccines he received on March 21,
2008. Petition at 1-4.

        Included with their petition, petitioners filed Exhibits 1-22. On May 6, 2011,
petitioners filed a consented motion to substitute Mr. Thomas Gallagher in as attorney
of record. On October 3, 2011, petitioners filed Exhibits 23-26. Petitioners filed Exhibit
27 and a statement of completion on November 9, 2011.

       On February 17, 2012, respondent filed a Rule 4 report. In her report,
respondent argued that, petitioners failed to establish by preponderant evidence that the
vaccines Aidan received on March 12, 2008 and/or March 21, 2008, caused any of the
various injuries petitioners alleged in their petition. Specifically, respondent contended
that petitioners’ recollection that Aidan suffered a seizure following his receipt of the
March 2008 vaccines was not supported by the contemporaneous medical records.
Respondent added that without a report from a medical expert to support their
causation-in-fact claim, petitioners’ claim fails under the standard set forth in Althen v.
Sec’y, HHS, 418 F.3d 1274, 1278 (Fed. Cir. 2005). Respondent’s Report at 13-15.

        On February 27, 2012, following a status conference on the same day, the
special master previously assigned to this case ordered petitioners to identify all
evidence of a post-vaccination seizure or seizures and all evidence of a Table
encephalopathy by March 28, 2012. The special master also ordered petitioners to file
an expert report by April 27, 2012. On March 27, 2012, petitioners contacted chambers
to make an oral motion for an enlargement of time to these deadlines. The special
master granted that motion on March 28, 2012. On April 24, 2012, petitioners made a
second motion for an extension of time to these deadlines. The special master denied
that motion on May 3, 2012, and ordered petitioners to submit any outstanding medical
records by June 4, 2012.

        Petitioners filed medical records (Exhibits 28-40) on May 23, 2012, 3 and a status
report on May 24, 2012, in which they requested an extension of time to file their expert
report. The special master granted that motion on May 25, 2012, ordering petitioners to
file an expert report by July 9, 2012.

       On July 9, 2012, petitioners’ counsel filed a status report in which he conveyed
that he had advised petitioners he would be filing a motion to be relieved as counsel.
On July 19, 2012, the special master issued an order affording petitioners 60 days to
search for alternate counsel.

      This case was reassigned to me on September 4, 2012. On September 18,
2012, petitioners moved for an extension of time until November 16, 2012, to seek

3
    Petitioners re-filed these exhibits on June 6, 2012.

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alternate counsel. On September 25, 2012, I ordered petitioners to show cause why I
should not dismiss their case for insufficient proof and failure to prosecute their claim.
In my order, I noted that the record indicated that “petitioners cannot prevail without an
expert willing to opine in favor of vaccine causation,” and that “[n]o treating physician
has attributed Aidan’s speech and hearing problems to a vaccine.” Order at 1.

        On November 21, 2012, petitioners filed a motion for an extension of time until
January 21, 2013, to find new counsel and respond to my order to show cause. In
making their motion, petitioners failed to indicate respondent’s response. Thus, I denied
petitioners’ motion on November 27, 2012, and granted petitioners leave to re-file a
motion for an extension of time fully compliant with Vaccine Rule 19 by November 30,
2012.

       On November 29, 2012, petitioners filed a response to my order to show cause in
which they contended that their case should be allowed to proceed to trial.
Alternatively, petitioners requested additional time in which to find an expert and/or new
counsel. In their response, petitioners indicated that they had been in contact with
prospective counsel, as well as doctors who had agreed to review Aidan’s records. On
November 30, 2012, I granted petitioner’s request for an extension of time, ordering
them to file a status report by January 28, 2013, updating the court on their efforts to
secure alternate counsel and/or an expert witness.

        On January 28, 2013, petitioners’ counsel filed a status report with a letter from
Ms. Phillips-Davis attached. In her letter, Ms. Phillips-Davis expressed petitioners’
intent to proceed with Aidan’s case despite their difficulties obtaining alternate counsel.

       Following a status conference on February 1, 2013, I ordered petitioners to file a
status report by March 18, 2013, indicating that their materials had been sent to
prospective attorneys for review and further indicating whether one of those attorneys
anticipated substituting in as counsel of record.

        On February 5, 2013, petitioners’ counsel moved to withdraw as counsel of
record. I deferred a ruling on Mr. Gallagher’s motion on February 6, 2013, to allow
petitioners the opportunity to file a motion for interim attorney fees and costs.
Petitioners filed an application for interim fees and costs on February 12, 2013. On
March 7, 2013, I issued a decision awarding interim attorney fees and costs.
Thereafter, on March 11, 2013, I granted Mr. Gallagher’s motion to withdraw as
counsel.

        On March 22, 2013, after petitioners failed to comply with my February 1, 2013
order, I issued an order to show cause, directing petitioners to file a status report by
April 22, 2013, or otherwise show cause for why their case should not be dismissed for
failure to prosecute.

       On April 22, 2013, petitioners filed a status report in which they conveyed that,
                                             3
due to the fact that Aidan had been diagnosed with an autism spectrum disorder, the
prospective attorneys they had been in contact with declined to review Aidan’s case. In
their status report, petitioners requested an additional 60 days to continue their efforts to
obtain alternate counsel and produce an expert report. On April 23, 2013, I ordered
petitioners to file a status report regarding their search for alternate counsel by June 24,
2013.

       On July 8, 2013, after petitioners failed to comply with my April 23, 2013 order, I
issued a third order to show cause, giving petitioners yet another opportunity to file an
expert report.

        On September 6, 2013, petitioners filed a status report in which they requested
an additional 90 days to obtain alternate counsel and an expert report. According to
their status report, petitioners encountered a few setbacks, including Mr. Davis’s
surgeries, that impeded their efforts to prosecute Aidan’s case. On September 12,
2013, I granted petitioners’ request for additional time, ordering them to file an expert
report by December 10, 2013. Petitioners have failed to comply with this order.

        More than a year and 10 months have passed since the previous special master
ordered petitioners to produce an expert report. I informed petitioners on multiple
occasions that they could not prevail without an expert willing to opine in favor of
vaccine causation. Additionally, petitioners have been afforded ample opportunity to
obtain alternate representation. Despite the time afforded to petitioners to obtain
counsel and produce an expert report, they have failed to do so. Three times I ordered
petitioners to show cause why I should not dismiss their case for failure to prosecute.
Petitioners have failed to comply with my September 12, 2013 order. Accordingly, this
case is dismissed for failure to prosecute. The clerk shall enter judgment
accordingly.


IT IS SO ORDERED.


                                                         Denise K. Vowell
                                                         Chief Special Master




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