ORlGINAL

3111 the ﬁHm’teh étates QEnurt at erhtral QEIaims

OFFICE OF SPECIAL MASTERS

No. 03—468V
Filed: October 2, 2015 F
Not to be Published 
OCT 0 2 2015

ROBERT R. BLOCH, JR. and
KERRY M. BLOCH, as parents and
natural guardians of DJ E, a minor,

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3k
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Petitioners, *
* Autism; Failure to Prosecute;
v. * Failure to Follow Court
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Orders; Dismissal
SECRETARY OF HEALTH

AND HUMAN SERVICES,

Respondent.

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DECISION DISMISSING PETITION

On February 27, 2003, Petitioners ﬁled a Petition for Vaccine Compensation in the
National Vaccine Injury Compensation Program,1 alleging that DJ B was injured by a vaccine or
vaccines listed on the Vaccine Injury Table. See § 14. I hereby dismiss this petition because
Petitioners have failed to prosecute or prove this case.

For more than twelve years, Petitioners have been unable to produce an expert report in
support of their claim. On February 21, 2012, Petitioners were ordered to ﬁle an expert report
within 90 days, or periodic status reports describing their progress toward obtaining such report.
(ECF No. 21.) Thereafter, Petitioners ﬁled a series of status reports indicating that more time
would be needed to provide Petitioners’ expert report. (See ECF Nos. 35, 37, 39, 40, 43.)

On July 1, 2013, Petitioners were again ordered to ﬁle an expert report in support of their
Petition, by December 2, 2013. (ECF No. 44.) Petitioners then ﬁled a series of Motions and

 

1 The Program comprises Part 2 ofthe National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-
660, 100 Stat. 3755, codiﬁed as amended, 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.

status reports requesting additional time. These requests were granted, and a new deadline for

Petitioners’ expert report was assigned on each occasion. (See Orders, ECF Nos. 46, 51, 54, 56,
59, 61.)

On June 18, 2014, Petitioners’ counsel ﬁled a Motion for an extension of time, indicating
that they did not have an expert report, but requesting twenty-one days to confer with Petitioners
and ﬁle an appropriate motion. (ECF No. 60.) That request was granted (ECF No. 61.)
Thereafter, Petitioners ﬁled a series of status reports indicating that counsel was conferring with
Petitioners in anticipation of receiving authorization from them to ﬁle an appropriate motion. In

response, I granted Petitioners additional time to confer with counsel about the status of this
case. (See ECF Nos. 63, 65, 67.)

On August 20 2014, Petitioners ﬁled a Motion to Issue Subpoena, in order to obtain
certain medical records that they considered relevant to their claim. I granted Petitioners’
request. (ECF No. 70.) Thereafter, Petitioners ﬁled periodic status reports describing their

progress toward obtaining the subpoenaed medical records and an expert report. (See ECF Nos.
73, 75, 77, 80, 82, 84, 86, 88, 90, 92, 94.)

On March 29, 2015, Petitioners ﬁled a Motion requesting additional time to ﬁle a motion
for interim attorneys’ fees and costs, and a motion to allow Petitioners’ counsel to withdraw as
counsel of record. I granted Petitioners’ Motion (ECF No. 97). Subsequently, I granted
Petitioners” interim attorneys’ fees and costs (ECF No. 99), and the withdrawal request of
Petitioners’ counsel (ECF No. 105.)

After the withdrawal of Petitioners’ counsel, on April 29, 2015, I issued an Order
requiring the pro se Petitioners to ﬁle the opinion of a medical doctor in support of Petitioners’
claim, by July 4, 2015. (ECF No. 106.) On May 22, 2015, Petitioners ﬁled a status report
requesting additional time. (ECF No. 108.) I ﬁled an Order allowing Petitioners until August 3,
2015, to ﬁle an expert report. (ECF No. 109.) That Order warned Petitioners that I would not be
likely to grant any further enlargements of this new deadline for ﬁling an expert report ([61,)

Nonetheless, on July 2, 2015, Petitioners ﬁled another Motion, requesting that I issue
subpoenas to their previous counsel and a medical provider requesting numerous medical
records, many of which were already present in the record of this case. (ECF No. 110.) I
instructed the clerk of this court to provide Petitioners with copies of Petitioners’ medical
records, identiﬁed as Exhibits 1—1 1. (ECF No. 112.) On July 10, 2015, I ﬁled an Order noting
that their attorney, Mr. Krakow, had also sent an “extensive box of materials” related to this case
to Petitioners. (ECF No. 113.) Further, I instructed Petitioners to ﬁle a status report identifying
their medical expert(s). That Order also elaborated my reasons for declining to authorize further

subpoenas, and reminded Petitioners that the due date of their expert report was still August 3,
2015. (1d)

On July 24, 2015, Petitioners ﬁled a response to my Order dated July 10, describing their
unsuccessful efforts to retain an expert to opine in this case. They requested additional time to

do so. (ECF No. 115.) On July 30, 2015, I ﬁled an Order allowing Petitioners additional time,
until September 29, 2015, to ﬁle an expert report. However, I speciﬁcally advised Petitioners

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that if they did not timely ﬁle such report, I would “have no choice but to dismiss their case.”
(ECF No. 116.)

Petitioners did not ﬁle a timely expert report, nor did they request more time to do so. It
is petitioners’ duty to prosecute their case, and to follow court orders. Tsekouras v. Sec ’y, HHS,
26 C1. Ct. 439 (1992), aﬂ’dper curiam, 991 F.2d 810 (Fed. Cir. 1993); Sapharas v. Sec ’y, HHS,
35 Fed. Cl. 503 (1996); Vaccine Rule 21(b). Accordingly, this case is dismissed for failure to

prosecute and failure to follow court orders. The clerk shall enter judgment accordingly.

IT IS SO ORDERED.

 

George L. Hastings, Jr.
Special Master

