M.D. v. Sec'y of Health & Human Servs.
| Decision Date | 09 April 2021 |
| Docket Number | No. 10-611V,10-611V |
| Parties | M.D. a minor, by his mother and next friend, ROSEMARY DILASCIO, Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. |
| Court | U.S. Claims Court |
Amber Diane Wilson, Wilson Science Law, Washington, DC, for the petitioner.
Colleen Clemons Hartley, Torts Branch, Civil Division, U.S. Department of Justice, Washington, DC, for the respondent.
The petitioner, Rosemary Dilascio, on behalf of her minor child M.D., filed a petition under the National Childhood Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 through 34 (2012), seeking compensation for injuries M.D. allegedly sustained following a diphtheria-tetanus-acellular pertussis ("DTaP") vaccination in April 2006. The special master entered judgment on the merits on May 30, 2017, denying compensation. The petitioner subsequently moved for relief from judgment pursuant to Rule 60(b) of the Rules of the Court of Federal Claims ("RCFC"), arguing that her former counsel had abandoned her during the proceedings on the merits. The special master denied the petitioner's motion in December 2020.
Pursuant to RCFC App. B 36, the petitioner now seeks this Court's review of the special master's denial of her motion for relief from judgment. She argues that the special mastererroneously concluded that her former counsel did not abandon her and erred in finding that the petitioner had not been diligent in pursuing her rights. Reviewing the special master's decision for abuse of discretion, the Court denies the petitioner's motion for review.
The Court begins with a recitation of the facts. Because the petitioner claims her attorney failed to represent her adequately throughout the pendency of her case on the merits before abandoning her, it is necessary to trace in detail the history of this case, which spans a period of more than ten years. The Court provides a summary of initial filings in this case for context before turning to the events central to the petitioner's claim—namely, events surrounding the cancellation of the entitlement hearing, the special master's order related to the National Childhood Encephalopathy Study ("NCES"), and the decision on the merits. The Court then summarizes the evidence before the special master in issuing his decision denying the petitioner's motion for review.
The petition in this case was filed on September 10, 2010. (ECF 1.) The petitioner's attorney of record, Corey B. Kaye, filed the petition along with an affidavit from the petitioner.1 (Id.) The petition requested:
[C]ompensation under National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 et seq. (Supp. 2000), for the injury of [M.D.] who received a DTaP and IPV vaccination on April 24, 2006, and who thereafter suffered sudden, severe allergic symptoms beginning with rash at injection site within 24 hours and the "Table Injury" known as Disorder of the brain (Encephalopathy) within seven days of administration of the DTaP vaccine, including first seizure on May 1, 2006 at approximately 11 PM, requiring immediate hospitalization with chronic seizure disorder and brain encephalopathy continuing to date. In the event that it be determined that the above-stated is not defined as a "Table Injury," than [sic] itis specifically alleged that the above-stated injuries were "caused-in-fact" by the above stated vaccinations.
(ECF 1 at 4.)2
Vaccine Rule 2(c)(2) requires the attachment of medical records to a vaccine petition filed in this court. RCFC App. B 2(c)(2)(A)-(B). Ms. Dilascio's petition, as filed, did not attach any medical records. (See ECF 1.) The presiding special master issued numerous orders granting motions to extend the time for the petitioner to file medical records. (ECF 7, 9, 10, 11, 15, 17, & 18.) The special master thereafter issued orders in April 2012, July 2012, and February 2013 directing the petitioner to show cause why the case should not be dismissed for failure to prosecute due to the unfiled medical records. (ECF 21, 24, & 36.) The petitioner assured the court that she would proceed with the case and indicated medical records were forthcoming. (ECF 16, 22, & 37.)
The petitioner filed a statement of completion on November 13, 2012, indicating that "all medical records pertinent to this claim have been filed as of this date." (ECF 34.) The respondent then indicated that several medical records were still missing. (ECF 35.) After delays filing the missing records, by September 2013 (approximately three years after the petition was filed), the court received notice that the petitioner was filing a compact disk with the last of the petitioner's medical records. (ECF 48.)
On September 23, 2013, the case was reassigned to a new special master who presided over the remainder of the case. (ECF 49.)
Vaccine Rule 4(c) requires the respondent to "file a report setting forth a full and complete statement of its position as to why an award should or should not be granted." RCFC App. B Rule 4. Pursuant to an October 24, 2013 order of the special master, on December 9, 2013, the respondent filed its Rule 4(c) Report ("Report"). (ECF 52 & 56.)
The Report found that M.D. "was a previously healthy little boy until onset of epilepsy at 5 years of age on May 1, 2006." (ECF 56 at 2.) The Report chronicled M.D.'s medical history and hospitalizations and identified several impediments to compensation for either an on-Table or an off-Table claim.3 For an on-Table claim, the Report found that "none of the medicalconditions listed in the [Qualifications and Aids for Interpretation (defining the terms used in the Table)] for a Table encephalopathy injury have been met in this case." (Id. at 9.) In particular, the Report noted that: (Id.)
Regarding an off-Table causation-in-fact theory, the Report explained that the "petitioner must establish by preponderant evidence that the DTaP vaccine was the 'legal cause' for his brain injury." (Id. at 10.) To do so, the Report noted that the petitioner needed a medical report or "scientific explanation in support of the causation theory that is reputable and reliable." (Id. at 11.) It found the petitioner had "not provided an expert report in support of her claim of a vaccine injury," nor had she presented "a reliable medical theory as to how the DTaP (or IPV) vaccine caused M[.D.]'s encephalopathy." (Id. at 12.) The Report concluded that, without more evidence, the petitioner had not made out a prima facie case. (Id. at 16.)
The special master held a status conference with the parties on January 8, 2014, to discuss the need for an expert report. (ECF 57.) The special master ordered the petitioner to file an expert report by May 9, 2014, and included as an attachment to the order a document titled "Instructions for Expert Witnesses." (ECF 57 & 57-1.) The order indicated that the expert reports would serve as direct testimony at the petitioner's entitlement hearing. (ECF 57.)
The petitioner apparently had trouble retaining an expert and obtaining a timely expert report, requesting several extensions of time. (ECF 61, 63, 66, 69, 72, & 79.) These motions were all granted in some form. (ECF 62, 65, 68, 71, 73, & 81.) On June 25, 2015, more than a year after the initial deadline, the petitioner filed a five-page expert report by Dr. Robert J. Gould, M.D. (ECF 82.)
Dr. Gould suggested the possibility that M.D.'s seizures could have begun within the first 72 hours after vaccination, noting that potential "subtle" seizures could have gone undetected. (Id. at 2.) He also argued that the "72 hour cutoff is a completely arbitrary number," and that "there is nothing in the medical literature that states that 72 hours is the cut off point for encephalopathy being manifested at least partially by seizures." (Id. at 3.)
The deadline for respondent's expert report was briefly suspended until the petitioner filed additional records pertaining to M.D.'s initial hospitalization. (ECF 107.) On March 1, 2016, the respondent filed its expert report by Dr. John Zempel, M.D., Ph.D. (ECF 116-1.) Dr. Zempel challenged the basis for Dr. Gould's opinion, explaining that the petitioner's report makes its conclusion "without a theory of causality or direct support in the medical and epidemiological literature." (Id. at 8.) Dr. Zempel expressed his opinion that "it is extremely unlikely that the DTaP vaccine caused the onset of the catastrophic epilepsy in this case." (Id. at 13.) He did "not know why" M.D. developed catastrophic epilepsy, noting that an unexplained, sudden epilepsy onset "infrequently, but regularly occurs at any tertiary medical center with specialized epilepsy care." (Id.) Mr. Kaye filed a rebuttal report by Dr. Gould on April 29, 2016. (ECF 120.)
At a status conference on May 11, 2016, the petitioner and respondent discussed dates, duration, and location for a hearing on entitlement, and the special master suggested that the hearing occur in New York, where the petitioner lives, "if the petitioner wishes to testify in person." (ECF 121 at 1.) Accordingly, on June 24, 2016, the special master entered an order setting an entitlement hearing for December 2, 2016, in New York, New York. (ECF 127 at 2.)
The special master's order setting the hearing also identified preliminary steps to the hearing, including the filing of a table of contents by July 6, the submission of prehearing briefs by October 3, and the scheduling of a pre-hearing status conference on November 16. (Id. at 1-2.) Mr. Kaye had difficulty filing a timely table of contents and pretrial brief despite the special master's warning that "the parties should not expect any...
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