Desiderio v. Secretary of Health and Human Services
16-713
| Fed. Cl. | Sep 18, 2017Background
- Petitioner Martin Desiderio filed a Vaccine Act petition alleging Miller-Fisher syndrome (a GBS variant) caused by a trivalent influenza vaccine allegedly received Sept. 17, 2014.
- Medical records show onset of neurologic symptoms in December 2014; diagnosis of Miller-Fisher syndrome was made Jan. 17, 2015 after hospitalization and lumbar puncture.
- Records are inconsistent about whether the vaccine was actually administered on Sept. 17, 2014, and several contemporaneous entries cast doubt on the vaccination date.
- Petitioner submitted medical records but no expert report supporting causation; one treating physician offered a brief, unexplained suggestion of causation with factual inaccuracies.
- Respondent’s Rule 4 report disputed causation and noted the inconsistent vaccination record; petitioner failed to respond to court orders and an Order to Show Cause and did not pursue the case after Feb. 2017.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether case should be dismissed for failure to prosecute | Desiderio did not file further status reports or respond to orders (no argument in record) | Respondent urged dismissal given petitioner’s noncompliance and inactivity | Case dismissed for failure to prosecute (petitioner did not respond to orders or Show Cause) |
| Whether petitioner established entitlement to compensation under the Vaccine Program | Vaccine caused Miller-Fisher syndrome; petitioner relied on medical records and a single treating physician’s brief note | Records inconsistent on vaccine date; no expert opinion tying vaccine to injury; factual gaps undermine causation | Dismissed for insufficient proof: no Table injury shown and no persuasive expert opinion of causation |
| Whether petitioner could rely on Vaccine Injury Table presumption | Petitioner alleged vaccine date Sept. 17, 2014 to link to syndrome | Respondent noted latency longer than table window and record uncertainty about vaccine date | Table presumption inapplicable: onset ~Dec 2014 (~12 weeks) exceeds 3–42 day window; record uncertainty about vaccination date |
| Whether petitioner could cure defects post-dismissal by refiling under revised Table | Not asserted by petitioner in record | Respondent noted regulatory change effective Mar. 21, 2017 allowing presumption only within 3–42 days | Court noted petitioner could file a new petition but revision wouldn’t help because latency here exceeded Table window |
Key Cases Cited
- Sapharas v. Sec’y of Health & Human Servs., 35 Fed. Cl. 503 (1996) (dismissal for failure to prosecute)
- Tsekouras v. Sec’y of Health & Human Servs., 26 Cl. Ct. 439 (1992), aff’d, 991 F.2d 810 (Fed. Cir. 1993) (failure to prosecute may justify dismissal)
- Claude E. Atkins Enters., Inc. v. United States, 889 F.2d 1180 (Fed. Cir. 1990) (affirming dismissal for failure to prosecute)
- Adkins v. United States, 816 F.2d 1580 (Fed. Cir. 1987) (affirming dismissal where party failed to respond to discovery)