            In the United States Court of Federal Claims
                              OFFICE OF SPECIAL MASTERS
                                   Filed: April 12, 2018

* * * * * * * * * * * * * *                  *      UNPUBLISHED
SUZANNE E. MCANDREWS and                     *      No. 17-494V
TIMOTHY R. MCANDREWS, Parents                *
and Natural Guardians of P.C.M., a minor,    *      Chief Special Master Dorsey
                                             *
               Petitioners,                  *
                                             *
v.                                           *      Measles, Mumps, Rubella;
                                             *      Failure to Prosecute;
SECRETARY OF HEALTH                          *      Insufficient Proof.
AND HUMAN SERVICES,                          *
                                             *
               Respondent.                   *
                                             *
* * * * * * * * * * * * * * *
Robert Joel Krakow, Law Office of Robert J. Krakow, P.C., New York, NY, for petitioners.
Ilene Claire Albala, U.S. Department of Justice, Washington, DC, for respondent.

                            DECISION DISMISSING PETITION 1

        On April 7, 2017, Suzanne and Timothy McAndrews (“petitioners”) filed a petition for
compensation with the National Vaccine Injury Compensation Program 2 on behalf of their minor
son, P.C.M. Petitioners alleged that P.C.M. developed encephalitis and/or encephalopathy,
developmental regression, developmental delay, and related injuries after receiving the Measles,
Mumps, Rubella combination vaccine (“MMR”) on April 7, 2014. Petition at 1. Because
petitioners alleged a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table –

1
  This decision will be posted on the website of the United States Court of Federal Claims’
website, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). This
means the Decision will be available to anyone with access to the internet. As provided by
42 U.S.C. §300aa-12(d)(4)(B), however, the parties may object to the published Decision’s
inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b),
each party has 14 days within which to request redaction “of any information furnished by that
party: (1) that is a trade secret or commercial or financial in substance and is privileged or
confidential; or (2) that includes medical files or similar files, the disclosure of which would
constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the
whole decision will be available to the public in its current form. Id.
2
  The National Vaccine Injury Compensation Program is set forth in Part 2 of the National
Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended,
42 U.S.C. §§ 300aa-1 to -34 (2012) (“Vaccine Act” or “the Act”). All citations in this decision
to individual sections of the Vaccine Act are to 42 U.S.C. § 300aa.
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corresponding to a vaccination, the case was assigned to the Special Processing Unit (“SPU”) for
expedited resolution.

        Petitioners first filed medical records on April 12, 2017. Petitioners then filed their first
motion for extension of time on April 21, 2017, which was granted by the undersigned.
Petitioners filed additional medical records on May 11, 2017, May 18, 2017 and June 2, 2017,
followed by a second motion for extension of time on June 20, 2017, to file additional medical
records and a statement of completion, which the undersigned granted. After filing several other
motions for extension of time, on October 30, 2017, petitioners filed additional medical records.

        On December 11, 2017, petitioners filed a seventh motion for extension of time to allow
petitioners’ attorney time to confer with petitioners about how they wished to proceed in the case
and for petitioners’ attorney to move to withdraw from the case. Thereafter, the undersigned
held a status conference with the parties on January 16, 2018. During this conference,
petitioners’ counsel stated that he had made multiple unsuccessful attempts to reach his clients.
As a result of this status conference, the undersigned denied petitioners’ motion, removed the
case from SPU, and issued an order to show cause, instructing petitioners to show cause as to
why this case should not be dismissed for insufficient proof and failure to prosecute, by March
30, 2018. As of the date of the filing of this decision, petitioners have failed to respond to the
show cause order or file any of the requested additional documentation.

        To receive compensation under the Program, petitioners must prove either: 1) that P.C.M.
suffered a Table Injury corresponding to a vaccination, or 2) that he suffered an injury that was
actually caused by a vaccine. See §§ 300aa-13(a)(1)(A) and 300aa-11(c)(1). In the instant case,
petitioners allege P.C.M. suffered a table injury – that P.C.M. experienced an encephalopathy
and/or encephalitis listed on the Vaccine Injury Table as a result of the MMR vaccine, and that
such an injury first manifested in a time not less than five days and not more than fifteen days
after receiving the MMR vaccination. Petition at 2. Thereafter, petitioners allege that P.C.M.
had a chronic encephalopathy that persisted for more than six months beyond the date of the
vaccination. Id.

        Under the Vaccine Act, a petitioner may not be awarded compensation based solely on
the petitioner’s claims. Rather, the petition must be supported by either medical records or by
the opinion of a competent physician. § 300aa-13(a)(1). In addition, it is petitioners’ obligation
to follow court orders and non-compliance is not favorably considered. Failure to follow Court
orders, as well as failure to file medical records or an expert medical opinion, can result in
dismissal of a petitioner’s claims. Tsekouras v. Sec’y of Health &Human Servs., 26 Cl. Ct. 439
(1992), 991 F.2d 810 (Fed. Cir. 1993) aff’d per curiam without opin.; Sapharas v. Sec’y of
Health & Human Servs., 35 Fed. Cl. 503 (1996); Vaccine Rule 21(b).

         The undersigned has allowed petitioners almost one year in which to file all necessary
medical records and a statement of completion, and she has granted six of petitioners’ requests
for extension of time. The medical records that were filed in the case fail to satisfy the causation
criteria established in Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274 (Fed. Cir.
2005). Additionally, petitioners have not retained a medical doctor to opine as to causation in
their case, and none of P.C.M.’s treating physicians attribute his encephalopathy to any

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vaccination. See Moberly v. Sec’y of Health & Human Servs., 592 F.3d at 1315, 1323 (Fed. Cir.
2010); Pet’r’s Ex. 5 at 79, 84.

      Thus, this case is dismissed for insufficient proof and failure to prosecute. In the
absence of a motion for review, the Clerk of the Court shall enter judgment accordingly.

       IT IS SO ORDERED.

                                   s/Nora B. Dorsey
                                   Nora B. Dorsey
                                   Chief Special Master




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