, 0RlG|NAL
3111 the ﬂamteh games Qtuurt at feberal atlath

OFFICE OF SPECIAL MASTERS
No. 14-71v 
Filed: August 10, 2015 H L” 
Not for Publication AUG 1 U a,”

U.S.COURTOF
************************************* FEDERALCLAIMS

MICHELLE A. CUTTINO, Administratrix *
of the Estate of CHARLES R. JACKSON, *

Deceased, *
*
Petitioner, *

* Dismissal decision; failure to prosecute
V. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*

*************************************

Michelle A. Cuttino, Landsdowne, PA, petitioner (pro se).
Traci R. Patton, Washington, DC, for respondent.

MILLMAN, Special Master

DECISION1

On January 27, 2014, petitioner (then known as Michelle Jackson) ﬁled a petition under the
National Childhood Vaccine Injury Act of 1986 (hereinafter the “Vaccine Act” or the “Act”), 42
U.S.C. §§ 300aa-10-34 (2012), alleging that the inﬂuenza (“ﬂu”) vaccine her husband received on
September 29, 2011, caused him to suffer Guillain-Barre’ Syndrome (“GBS”), which she alleges
resulted in his death on February 5, 2012.

1 Because this unpublished decision contains a reasoned explanation for the special master’s action in this
case, the special master intends to post this unpublished decision on the United States Court of Federal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). Vaccine Rule 18(b) states that all decisions of the special masters will be made
available to the public unless they contain trade secrets or commercial or ﬁnancial information that is
privileged and conﬁdential, or medical or similar information whose disclosure would constitute a clearly
unwarranted invasion of privacy. When such a decision is ﬁled, petitioner has 14 days to identify and
move to delete such information prior to the document’s disclosure. If the special master, upon review,
agrees that the identiﬁed material ﬁts within the banned categories listed above, the special master shall
delete such material from public access.

Petitioner filed medical records via compact disc on February 10, 2014, and additional
records on April 18, 2014. Respondent ﬁled her Rule 4(c) Report on June 16, 2014, expressing
her view that petitioner is not entitled to compensation, primarily because the records show Mr.
Jackson’s neurologic symptoms predated his vaccination. Resp’t’s Rep. at 10.

On June 27, 2014, the undersigned ordered petitioner to ﬁle a report from a medical expert
by September 26, 2014. On September 24, 2014, petitioner filed a motion for extension of time,
stating that she had retained a medical expert to review the case and asking for an additional 60
days to file a report. The motion was granted. Petitioner requested two more extensions of time,
which were granted, until petitioner ﬁled a status report on March 12, 2015, stating that counsel
intended to withdraw as counsel. Petitioner’s counsel ﬁled a Motion to Withdraw as Attorney of
Record on May 4, 2015. This motion was granted on May 7, 2015, and petitioner became pro 56.

With petitioner’s agreement, the undersigned scheduled a status conference with the
parties for June 22, 2015. The undersigned’s chambers contacted petitioner by telephone at the
scheduled time, but petitioner did not answer or return voicemail messages. Subsequently, the
undersigned’s chambers attempted to contact petitioner via phone and email. The undersigned
issued an order on June 22, 2015, directing petitioner to contact chambers by July 22, 2015. After
no response from petitioner, on July 23, 2015, the undersigned issued an Order to Show Cause
why the case should not be dismissed for failure to prosecute. Petitioner did not contact the

undersigned’s chambers to respond to the Order to Show Cause. Accordingly, this case is
DISMISSED for failure to prosecute.

DISCUSSION

Under Rule 41(b) of the Rules of the United States Claims Court, “the court may dismiss a
case on its own motion, ‘[fjor failure of the plaintiff to prosecute or to comply with these rules or
any order of court. . . .’” Tsekouras v. Sec’v of HHS, 26 Cl. Ct. 439, 442 (Fed. C1. 1992) (quoting
Claude E. Atkins EnterprisesLan. v. United States, 899 F.2d 1180, 1183 (Fed. Cir. 1990)).

Petitioner failed to respond to the court’s attempts to contact her and to the undersigned’s July 23,
2015 Order to Show Cause.

To satisfy her burden of proving causation in fact, petitioner must prove by preponderant
evidence: “(1) a medical theory causally connecting the vaccination and the injury; (2) a logical
sequence of cause and effect showing that the vaccination was the reason for the injury; and (3) a
showing of a proximate temporal relationship between vaccination and injury.” Althen v. Sec’v of
HHS, 418 F.3d 1274, 1278 (Fed. Cir. 2005). In Althen, the Federal Circuit quoted its opinion in
Grant v. Secretary of Health and Human Services, 956 F.2d 1144, 1148 (Fed. Cir. 1992):

 

 

A persuasive medical theory is demonstrated by “proof of a logical sequence of
cause and effect showing that the vaccination was the reason for the injury[,]” the
logical sequence being supported by “reputable medical or scientific

2

explanation[,]” i.e., “evidence in the form of scientiﬁc studies or expert medical
testimony[.]”

418F.3d at 1278.

Without more, “evidence showing an absence of other causes does not meet petitioner’s
afﬁrmative duty to show actual or legal causation.” Grant, 956 F.2d at 1149. Mere temporal
association is not sufﬁcient to prove causation in fact. Id; at 1148.

 

Petitioner did not ﬁle an expert medical opinion in support of her allegations. The
Vaccine Act does not permit the undersigned to rule in favor of petitioner based solely on her
allegations, unsupported by medical records or medical opinion. 42 U.S.C. § 300aa—13(a)(l).

This petition is hereby DISMISSED for failure to prosecute.
CONCLUSION

This petition is DISMISSED. In the absence of a motion for review ﬁled pursuant to
RCFC Appendix B, the clerk of the court is directed to enter judgment herewith.2

IT IS SO ORDERED.

Dated: August 10, 2015 Qélum D. W

Laura D. Millman
Special Master

 

 

2 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or
jointly, ﬁling a notice renouncing the right to seek review.

3

