Schutz v. Secretary of Health and Human Services

    In the United States Court of Federal Claims
                              OFFICE OF SPECIAL MASTERS

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RANDALL SCHUTZ,            *                         No. 21-1103V
                           *
               Petitioner, *
                           *                         Special Master Christian J. Moran
v.                         *
                           *                         Filed: November 15, 2023
SECRETARY OF HEALTH        *
AND HUMAN SERVICES,        *
                           *
               Respondent. *
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Steven K Jambois, Kralovec, Jambois and Schwartz, Chicago, IL, for petitioner;
Debra A. Filteau Begley, United States Dep’t of Justice, Washington, D.C., for respondent.

               UNPUBLISHED DECISION DENYING COMPENSATION 1

       Mr. Randall Schutz sought compensation through the Vaccine Program. 42 U.S.C.
§ 300aa-10 through 34. Mr. Schutz, however, has not presented sufficient evidence to be entitled
to compensation. Because Mr. Schutz has not met his burden of proof, his case is DISMISSED.

    I.     Procedural History

       On March 23, 2021, Mr. Schutz filed a petition under the National Childhood Vaccine
Injury Act, 42 U.S.C. §300a-10 et seq., alleging that he developed “increased neuropathy” and
“possible ASIA syndrome” as a result of the tetanus, diphtheria, acellular pertussis (“Tdap”)
vaccine he received on March 27, 2018. See Petition. Mr. Schutz filed medical records, as




1
  Because this Decision contains a reasoned explanation for the action taken in this case, it must
be made publicly accessible and will be posted on the United States Court of Federal Claims'
website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance
with the E-Government Act of 2002. 

 note (2018) (Federal Management and
Promotion of Electronic Government Services). This means the Decision will be available to
anyone with access to the internet. In accordance with Vaccine Rule 18(b), the parties have 14
days to identify and move to redact medical or other information, the disclosure of which would
constitute an unwarranted invasion of privacy. Any changes will appear in the document posted
in the website.
required by 42 U.S.C. § 300aa-11(c), and he submitted a statement of completion on November
11, 2022.

        The Secretary filed his Rule 4(c) Report on February 27, 2023. The Secretary argued
that Mr. Schutz was not entitled to compensation, as “ASIA is not a defined and recognized
injury, and no ASIA case has been successful in the Vaccine Program.” Resp’t’s Rep. at 13.
Further, although the medical records documented that Mr. Schutz suffered from peripheral
neuropathy both prior to and after his Tdap vaccination, the Secretary argued that there was no
reliable evidence that he suffered any change in his condition following vaccination. Id. at 14.
The Secretary noted that Mr. Schutz had not offered an expert report addressing causation, and
no medical provider stated that he suffered an aggravation of his peripheral neuropathy caused
by the Tdap vaccination. Id. at 15. The Secretary also identified several missing medical
records, and asked that Mr. Schutz be ordered to collect and file the records. See id., footnotes
1-7.

        A status conference was held on March 6, 2023. The parties discussed obstacles in the
case and the need to obtain additional medical records. See Order, issued Mar. 6, 2023. Mr.
Schutz was ordered to file a status report by May 5, 2023 discussing his intent to continue with
the case and his progress in obtaining the medical records. Id. After Mr. Schutz missed this
deadline, he was ordered to file a status report by May 22. Order, issued May 9, 2023.

        On May 22, 2023, Mr. Schutz requested 30 days to make a decision regarding the future
of his claim. Mr. Schutz filed a status report on June 22, 2023, stating that he and counsel
continued to discuss potential issues and the likelihood of success, and requesting an additional
14 days to make a decision. Accordingly, Mr. Schutz was given until July 7, 2023 to provide an
update. Order, issued June 23, 2023. The undersigned reminded Mr. Schutz that if he did not
file a motion to dismiss, then he would be ordered to prosecute the case by obtaining medical
records and (eventually) an expert report. Id.

        Mr. Schutz did not file anything by the deadline, and was subsequently ordered to file his
medical records, or a status report advising on his progress in obtaining the records, by
September 1, 2023. Order, issued July 17, 2023. Mr. Schutz failed to file his medical records of
a status report. An order to show cause was then issued on October 2, 2023, requiring Mr.
Schutz to submit a response by November 3, 2023 as to why his case should not be dismissed.
To date, Mr. Schutz has not filed any response.

   II.     Analysis

       To receive compensation under the National Childhood Vaccine Injury Compensation
Program (hereinafter “the 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 42
U.S.C. § 300aa–13(a)(1)(A) and § 300aa-11(c)(1). An examination of the record did not
uncover any evidence that Mr. Schutz suffered a “Table Injury.” Thus, Mr. Schutz is necessarily

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pursuing a causation-in-fact claim. As part of a causation-in-fact claim, a petitioner must “show
by preponderant evidence that the vaccination brought about [the] injury by providing: (1) a
medical theory causally connecting the vaccination and injury; (2) a logical sequence of cause
and effect showing that the vaccination was the reason for the injury; and (3) a showing of
proximate temporal relationship between vaccination and injury.” Althen v. Sec’y of Health &
Hum. Servs., 

 (Fed. Cir. 2005).

        Under the Act, a petitioner may not be given a Program award based solely on the
petitioner’s claims alone. Rather, the petition must be supported by either medical records or by
the opinion of a competent physician. 42 U.S.C. § 300aa–13(a)(1). In this case, because the
medical records do not support petitioner’s claim, a medical opinion must be offered in support.

       When a petitioner (or plaintiff) fails to comply with Court orders to prosecute their cases,
the Court may dismiss their case. Padmanabhan v. Sec’y of Health & Human Servs., 638 Fed.
App’x 1013 (Fed. Cir. 2016); Sapharas v. Sec’y of Health & Human Servs., 

(1996); Tsekouras v. Sec’y of Health & Human Servs., 

 (1992), aff’d, 

 (Fed. Cir. 1993) (table); Vaccine Rule 21(c); see also Claude E. Atkins Enters., Inc. v.
United States, 

 (Fed. Cir. 1990) (affirming dismissal of case for failure to
prosecute for counsel’s failure to submit pre-trial memorandum); Adkins v. United States, 

 (Fed. Cir. 1987) (affirming dismissal of case for failure of party to respond to
discovery requests).

        Here, Mr. Schutz was ordered on several occasions to file medical records but failed to
do so. He gave no indication that he was working to obtain his records. When Mr. Schutz was
ordered to respond to the October 2, 2023 order to show cause by November 3, 2023 as to why
his case should not be dismissed, he failed to file a response. Consequently, Mr. Schutz’s case is
dismissed for failure to present evidence, not as a sanction. See Duncan v. Sec’y of Health &
Hum. Servs., 

 (2021) (denying motion for review of a decision for failure to
present persuasive evidence).

     Accordingly, this case is dismissed for insufficient evidence. The Clerk shall enter
judgment accordingly. See Vaccine Rule 21(b).

       IT IS SO ORDERED.
                                                     s/Christian J. Moran
                                                     Christian J. Moran
                                                     Special Master




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