         In the United States Court of Federal Claims
                             OFFICE OF SPECIAL MASTERS
                                        Filed: November 7, 2016

*********************
CHRISTINA PERI,             *
                            *                             No. 15-1018
                Petitioner, *
v.                          *                             Special Master Gowen
                            *
SECRETARY OF HEALTH         *                             UNPUBLISHED
AND HUMAN SERVICES,         *
                            *                             Influenza; Ptosis; Failure to Prosecute.
                Respondent. *
*********************

                 UNPUBLISHED DECISION DENYING COMPENSATION1

        On September 14, 2015, Christina Peri (“petitioner”) filed a petition pursuant to the
National Vaccine Injury Compensation Program (hereinafter “the Program”).2 Petitioner alleged
that as a result of receiving an influenza (“flu”) vaccination on October 1, 2012, she experienced
a systemic immune response characterized by rash, myalgias, arthralgias, and progressive severe
disability that was “caused in fact” by the vaccine. Petition at Preamble. The information in the
record, however, does not show entitlement to an award under the Program.

    I.    Procedural History

        A detailed procedural history of this claim can be found in the Order to Show Cause, issued
on August 3, 2016. As the case developed, it became clear that the claim of an injury that lasted
for six months, as is required for an award in the program, was based primarily upon a claim of
ptosis or drooping of one eyelid. Accordingly, petitioner’s counsel was directed to file dated
photographs documenting that petitioner suffered the residual effects of the alleged injury for more
than six months by October 31, 2016, or face dismissal of the claim. To date, the photographs
have not been filed.

1
 Because this unpublished ruling contains a reasoned explanation for the action in this case, I intend to
post it on the United States Court of Federal Claims' website, in accordance with the E-Government Act
of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17, 2002). In accordance with Vaccine Rule
18(b), petitioner has 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
 The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§
300aa-10 et seq. (hereinafter “Vaccine Act” or “the Act”). Hereafter, individual section references will be
to 42 U.S.C. § 300aa of the Act.
 II.   Analysis

        When a petitioner (or plaintiff) fails to comply with Court orders to prosecute her case, the
Court may dismiss the case. Sapharas v. Sec’y of Health & Human Servs., 35 Fed. Cl. 503 (1996);
Tsekouras v. Sec’y of Health & Human Servs., 26 Cl. Ct. 439 (1992), aff’d, 991 F.2d 819 (Fed.
Cir. 1993); Vaccine Rule 21(c). See also Claude E. Atkins Enters., Inc. v. United States, 889 F.2d
1180, 1183 (Fed. Cir. 1990) (affirming dismissal of case for failure to prosecute when party failed
to submit pre-trial memorandum); Adkins V. United States, 816 F.2d 1580, 1583 (Fed. Cir. 1987)
(affirming dismissal of case due to party’s failure to respond to discovery requests).

        Additionally, to fulfill the Program’s severity requirement, petitioner must show that she:
(i) suffered the alleged injury’s residual effects or complications for more than six months after
the administration of the vaccine; (ii) died from the administration of the vaccine; or (iii) suffered
an injury from the vaccine which resulted in inpatient hospitalization and surgical intervention. 42
U.S.C. § 300aa-11(c)(1)(D).

         In the present case, petitioner does not seek compensation under § 300aa-11(c)(1)(D)(ii)
or (iii). Rather, she alleges that she suffered an injury lasting for more than six months. During a
telephonic status conference on May 18, 2016, petitioner’s counsel stated that the only residual
injury allegedly attributable to petitioner’s influenza vaccination, which has lasted for at least six
months, is ptosis (drooping of one eyelid). Petitioner’s counsel stated that petitioner still had ptosis
on the date of that status conference.

        The undersigned has directed petitioner’s counsel several times to file dated photographs
from before the vaccination and from at least six months after the vaccination, to support this
claim. Petitioner has not filed these photographs, or any additional medical records indicating that
petitioner developed ptosis after the vaccination and that the residual effects lasted for more than
six months.

        Accordingly, it is clear that the record does not demonstrate that petitioner suffered residual
effects of the alleged injury for more than six months. Therefore, petitioner is not entitled to seek
compensation under § 300aa-11(c)(1)(D)(i).

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

      Any questions about this Order may be directed to my law clerk, Kate Burmeister, at (202)
357-6375 or kate_burmeister@cfc.uscourts.gov.

       IT IS SO ORDERED.

                                                               s/Thomas L. Gowen
                                                               Thomas L. Gowen
                                                               Special Master




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