                                                                                    REISSUED FOR PUBLICATION
                                                                                                     JUL 10 2018
                                                     ORIGl·NAL                                       OSM
                                                                                         U.S. COURT OF FEDERAL CLAIMS

                  3Jn tbe Wniteb ~tates <leourt of jfeberal <lelaints
                                     OFFICE OF SPECIAL MASTERS
                                              No. 17-SlV                                                   FILED
                                                                                                         JUN 1~ 2018
** ** ** ** *** * ***** ** ***** *
                                                                                                 U.S. COU~T OF
                                                        *                  Filed: June 14, 2018 FEDERAL CLAIMS
COY CLAUDE FREDELL,                                     *
                                                        *
                            Petitioner,                 *                  Special Master Oler
                                                        *
                   v.                                   *
                                                        *
SECRETARY OF HEALTH AND                                 *
HUMAN SERVICES,                                         *
                                                        *
                            Respondent.                 *
                                                        *
* ** ** **** * * ** * ** ** *** ** * *

    DECISION DISMISSING CASE FOR INSUFFICIENT PROOF AND FAILURE TO
                              PROSECUTE 1

        On January 12, 20 17, Coy Claude Fredell ("Petitioner") filed a petition for compensation
under the National Vaccine Injury Compensation Program (the "Vaccine Program"),2 alleging
that he suffered adverse effects as a result of his influenza vaccination administered on
September 13, 2016. See Petition at 1. On January 17, 2017, the special master to whom the
case had been originally assigned (Special Master Hastings) issued an Initial Order instructing
Petitioner to file either a Status Rep01t or Statement of Completion by Monday, February 26,
2017. ECF No . 6. A copy of the Initial Order was sent to Petitioner via USPS 1st Class Mail on
January 23, 2017. Due to Petitioner' s failure to comply with the Initial Order, Special Master

1 Although this Decision has been formally designated "not to be published," it wi ll nevertheless be posted on the

Court of Federal Claims' website in accordance with the E-Government Act of2002, 44 U.S.C. § 3501 (2012).
This means the ruling will be available to anyone with access to the internet. As provided by 42 U.S.C. §
300aa-12(d)(4)(8), however, the parties may object to the decision's inclusion of certain kinds of confidential
information. Specifically, under Vaccine Rule I 8(b), each party has fomteen days within which to request redaction
"of any information furnished by that party: (I) 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 wou ld constitute
a clearly unwarranted invasion of privacy." Vaccine Rule l 8(b). Otherwise, the Decision in its present form will be
available. Id.

2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
I 00 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-l 0 tlu·ough 34 (201 2) ("Vaccine Act" or "the Act").
Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).
Hastings issued an order on March 6, 201 7, instructing Petitioner to file his overdue Status
Report immediately. ECF No. 8. A copy of the order was sent to Petitioner via USPS !st Class
Mail on March 6, 2017.

         Petitioner filed a Status Repmt on March 23, 2017, informing the cowt of Petitioner's
request for medical records from his primary physician and Carolinas Healthcare System. ECF
No. 9. Accordingly, a Scheduling Order issued on March 27, 2017, instructing the Petitioner to
file his Statement of Completion by April 27, 2017. ECF No. 10. Petitioner filed his Medical
Records, Exhibit List, and Statement of Completion on March 28, 2017. ECF Nos. 11-13.

         On August 2, 2017, Special Master Hastings ordered Petitioner to file a Status Report by
September 27, 2017, describing the status of Petitioner's effo1ts to obtain and file an Expe1t
Report. ECF No. 20. Special Master Hastings also encouraged Petitioner to continue to seek
counsel familiar with Vaccine Act cases in this court, in an effort to advance Petitioner's case
forward to resolution. Id. Petitioner was further warned that the failure to file a timely response
to the August 2, 2017 order could result in dismissal of Petitioner's claim. Id. Petitioner did not
file the requested documentation by the September 27, 2017 deadline.

         This case was reassigned to Special Master Corcoran on October 2, 2017. ECF No. 23.
Special Master Corcoran issued an Order to Show Cause on October 4, 2017 due to Petitioner's
failure to comply with the August 2, 2017 order. ECF No. 21. Petitioner was warned that non-
compliance can result in dismissal of his claim. Id. Petitioner filed a response to the October 4,
2017 order on October 27, 2017. ECF No. 25. Petitioner informed the Cowt of his progress in
both retaining an expett and retaining legal counsel. Id. More specifically, Petitioner noted that
he is "currently seeking the assistance of legal counsel[,]" he is "actively working with legal
counsel and medical experts in an effo1t to file an Expe1t Report[,]" and that he "discovered that
[he] was in fact not given the full records by office and hospital personnel" from his primary
physician and Carolinas Healthcare System. Id. Petitioner also noted that he is "in contact with
a qualified medical doctor and upon review of [his] complete set [ofJ medical records, [such
doctor] will provide a medical opinion letter[.]" Id. Petitioner informed the Cowt that his legal
counsel "will be notifying [the Court] with the [items mentioned] and necessary documents." Id.

         Special Master Corcoran then issued an order on October 31, 2017, setting a deadline of
November 14, 2017 to inform the court regarding Petitioner's progress in filing an expe1t repo1t
and retaining legal counsel in this matter. ECF No. 26. Petitioner complied with that order and
filed a status repmt on November 14, 2017, reiterating information that he provided in his
previous status report. ECF No. 27. Petitioner noted that he is "cmrently still working to seek
the assistance of legal counsel[,]" he is "continuing to actively work with legal counsel and
medical expe1is in an effmt to file an Expeti Report[,]" and that he has "not yet obtained those
[medical] records in their entirety." Id. Petitioner also noted that he "rcmain[s] in contact with a
qualified medical doctor[.]" Id. In regard to legal counsel, Petitioner stated that "[o]nce all of



                                                 2
the paperwork is completed and retention has fully taken place, [his] legal counsel will be
notifying [the Court] with the [items mentioned] and necessary documents." Id.

         Special Master Corcoran issued an order on November 15, 2017, instructing Petitioner to
file a status report by January 16, 2018 in order to inform the court regarding Petitioner's
progress in filing an expeti report and retaining legal counsel. ECF No. 28. Petitioner was
instructed to include in his status repoti an update regarding his progress in obtaining outstanding
medical records. Id.

        On December 6, 2017, this case was reassigned to my docket. ECF No. 30. Petitioner
did not file a status report by January 16, 2018, as ordered by Special Master Corcoran. I issued
an order on February 7, 2018 for Petitioner to file his overdue status report by March 9, 2018.
ECF No. 31. Petitioner did not comply with my order, so I again issued an order on March 20,
2018, instructing Petitioner to file his overdue status report by April 20, 2018. ECF No. 32.
Petitioner did not comply with this order.

         In light of Petitioner's failure to file his overdue status repoti, I subsequently issued an
Order to Show Cause on May 2, 2018, instructing Petitioner to file his overdue status report or
show cause as to why this case should not be dismissed pursuant to Vaccine Rule 21 (b) for
failure to prosecute and for failure to comply with prior orders in this action. ECF No. 33.
Petitioner failed to file a response to my Order to Show Cause.

        To receive compensation under the Vaccine Program, a petitioner must prove either (1)
that he suffered a "Table Injury" - i.e., an injury falling within the Vaccine Injury Table -
corresponding to one of his vaccinations, or (2) that he suffered an injury that was actually
caused by a vaccine. See Sections 13(a)(l)(A) and l l(c)(l). Petitioner was afforded the
oppotiunity to offer an expert repoti or other evidence that would support his claim, and he failed
to submit such evidence into the record. It is therefore appropriate to dismiss the claim for
failure of proof.

        In addition, Petitioner's claim must be dismissed due to his repeated failures to comply
with orders. A petitioner's inaction and failure to abide by comi orders risks dismissal of a
claim. Tsekouras v. Sec'y of Health & Human Servs., 26 Cl. Ct. 439 (1992), ajf'd per curiam,
991F.2d810 (Fed. Cir. 1993); Sapharas v. Sec'y of Health & Human Servs., 35 Fed. Cl. 503
( 1996); Vaccine Rule 21 (b ). Petitioner ignored deadlines set by the orders Special Master
Corcoran and I issued on November 15, 2017, February 7, 2018, March 20, 2018, and May 2,
2018; further, he ignored my order to show cause, issued on May 2, 2018, informing Petitioner
that the case would be dismissed if he again failed to respond. In each instance, Special Master
Corcoran and I provided him ample time to contact chambers or file a status repmi.

        Under the Vaccine Act, a petitioner may not receive a Vaccine Program award based
solely on his claims alone. Rather, the petition must be supported by either medical records or
by the opinion ofa competent physician. Section 13(a)(l). In this case, there is insufficient

                                                   3
evidence in the record for Petitioner to meet his burden of proof. Petitioner's claim therefore
cannot succeed and must be dismissed. Section 1 l(c)(l)(A).

       Thus, this case is dismissed for insufficient proof and failure to prosecute. The
Clerk shall enter judgment accordingly. 3

         IT IS SO ORDERED.



                                                              .~2&_~
                                                               Kat!eril1ei.01er
                                                               Special Master




3
 Pursuant to Vaccine Rule I !(a), the pa11ies may expedite judgment by filing a joint notice renouncing their right to
seek review.

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