Unick v. Secretary of Health and Human Services
15-1216
| Fed. Cl. | Mar 15, 2017Background
- Petitioner Jerome Unick filed a Vaccine Program petition alleging that an October 22, 2012 influenza vaccination caused cellulitis and chronic joint pain.
- Petitioner proceeded pro se after being unable to retain counsel; he was granted in forma pauperis status.
- The special master reviewed petitioner’s medical records and found they: showed pre‑existing joint pain, lacked treating‑physician causation opinions, and did not establish six‑month persistence of injuries required by the Act.
- The special master advised petitioner that, because records were insufficient, he needed an expert report satisfying the Althen framework (medical theory, logical sequence, and appropriate timing).
- Multiple deadlines and extensions were granted (final deadline Feb. 8, 2017) for an expert report; petitioner failed to file any expert report or otherwise prosecute the claim.
- The special master dismissed the petition for failure to prosecute and ordered judgment entered for respondent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petitioner established vaccine causation with medical records alone | Unick asserted flu vaccine caused cellulitis and chronic joint pain | HHS argued records do not show causation or treating‑physician opinion | Held: Records insufficient under §300aa‑13(a)(1); expert required |
| Whether an expert report was required under Althen | Unick sought time to obtain expert but produced none | HHS relied on lack of expert and insufficiency of records | Held: Expert required (Althen) and petitioner failed to provide one |
| Whether petitioner’s failure to file an expert or comply with orders warranted dismissal | Unick did not file responses after extensions | HHS supported dismissal for failure to prosecute | Held: Dismissal for failure to prosecute affirmed (court rules and precedents) |
| Whether petitioner’s alleged injuries met six‑month persistence requirement | Petitioner did not demonstrate persistence in records | HHS argued records do not show six‑month persistence | Held: Records do not establish six‑month persistence as required by the Vaccine Act |
Key Cases Cited
- Althen v. Sec'y of Health & Human Servs., 418 F.3d 1274 (Fed. Cir.) (sets three‑part causation framework for vaccine claims)
- Sapharas v. Sec'y of Health & Human Servs., 35 Fed. Cl. 503 (1996) (dismissal for failure to prosecute authority)
- Tsekouras v. Sec'y of Health & Human Servs., 26 Cl. Ct. 439 (1992) (affirming dismissal for failure to prosecute)
- Claude E. Atkins Enters., Inc. v. United States, 889 F.2d 1180 (Fed. Cir.) (dismissal for failure to prosecute affirmed)
- Adkins v. United States, 816 F.2d 1580 (Fed. Cir.) (affirming dismissal for party's failure to respond)