Moczek v. Secretary of Health and Human Services
16-930
| Fed. Cl. | Nov 14, 2017Background
- Petitioner Patrice Moczek filed a Vaccine Program petition on behalf of her minor daughter K.H., alleging leg pain, headaches, and fatigue caused by HPV, meningococcal, and Tdap vaccines administered August 15, 2013.
- Respondent filed a Rule 4(c) report contesting entitlement and asserting K.H. had a pre-existing condition explaining her symptoms.
- Petitioner initially submitted expert reports criticized by Respondent as unqualified and unsupported by medical records; the special master ordered supplemental expert evidence.
- Petitioner stated she retained an immunologist and was given a September 8, 2017 deadline to file a supplemental expert report, then missed that deadline and a subsequent immediate-order deadline.
- After a show-cause order, Petitioner still failed to file the supplemental expert report or otherwise respond; the special master dismissed the petition for insufficient proof and failure to prosecute.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petitioner met burden to prove vaccine causation | K.H.’s symptoms were caused by the August 15, 2013 vaccinations | Medical records show a pre-existing condition causing the symptoms; petitioner’s experts are deficient | Dismissed for insufficient proof because petitioner failed to submit competent supporting evidence |
| Whether to allow additional time to supplement expert evidence | Needed more time; retained an immunologist who would provide an opinion | Opposed based on deficiencies in submitted experts and record support | Court gave deadline but dismissed after petitioner missed deadlines and failed to respond |
| Whether dismissal is warranted for failure to comply with court orders | N/A (petitioner did not comply) | Court argued dismissal appropriate under rules and precedent for noncompliance | Case dismissed for failure to prosecute and comply with orders |
| Whether petition could proceed based solely on petitioner’s statements | Petitioner claimed injuries but offered no adequate medical/opinion support | Respondent: Vaccine Act requires medical records or competent physician opinion | Held that claims cannot succeed on petitioner’s assertions alone; dismissal required |
Key Cases Cited
- Tsekouras v. Sec’y of Health & Human Servs., 26 Cl. Ct. 439 (1992) (supports dismissal for failure to prosecute and comply with court orders)
- Tsekouras v. Sec’y of Health & Human Servs., 991 F.2d 810 (Fed. Cir. 1993) (per curiam) (affirming dismissal for procedural deficiencies)
- Sapharas v. Sec’y of Health & Human Servs., 35 Fed. Cl. 503 (1996) (discusses dismissal where petitioner fails to comply with program rules and court orders)