Pearson v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 21-2027V

UNPUBLISHED

DRUSILLA PEARSON, Chief Special Master Corcoran

Petitioner, Filed: April 25, 2025

v.

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent.

Courtney Christine Jorgenson, Siri & Glimstad, LLP, Phoenix, AZ, for Petitioner.

Katherine Carr Esposito, U.S. Department of Justice, Washington, DC, for Respondent.

(I) FINDINGS OF FACT AND CONCLUSIONS OF LAW DISMISSING TABLE CLAIM

AND (II) ORDER TO SHOW CAUSE 1

On October 15, 2021, Drusilla Pearson filed a petition for compensation under the

National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the

“Vaccine Act”). Petitioner alleges that she suffered a Table injury – shoulder injury related

to vaccine administration (“SIRVA”) – as a result of an influenza (“flu”) vaccine she

received on October 16, 2018. Petition, ECF No. 1 at 1, 3. The case was assigned to the

Special Processing Unit of the Office of Special Masters (the “SPU”).

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Because this ruling 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. 44 U.S.C. § 3501 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), Petitioner has 14 days to identify and move to redact medical or other

information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I

agree that the identified material fits within this definition, I will redact such material from public access.

2

National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease

of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §

300aa (2018).

For the reasons stated below, I conclude that Petitioner has not established by

preponderant evidence that the onset of her shoulder pain likely occurred within 48 hours

of vaccination, as required to establish a Table SIRVA claim. In addition, the evidence

strongly is unsupportive of any causation-in-fact claim as well, and therefore Petitioner

must Show Cause why the matter should not be dismissed in its entirety.

I. Relevant Procedural History

In September 2022, I observed that based upon my preliminary review of the

records in this case, it appeared that Petitioner could not establish that she suffered

shoulder pain within 48 hours of her vaccination – one of the four QAI requirements

necessary to demonstrate a Table SIRVA claim. ECF No. 16 (citing Ex. 6 at 256; 42

C.F.R. § 100.3(c)(10)(ii)). Thereafter, Petitioner was provided time to supplement the

record with additional evidence documenting the onset of her injury. Subsequent to filing

additional medical records, and sworn statements from five witnesses, Petitioner filed a

Brief Addressing Onset on May 16, 2023, and arguing that this Table element can be met.

ECF No. 30.

On June 15, 2023, Respondent filed his Rule 4(c) Report and Response to

Petitioner’s Brief Regarding Onset. ECF No. 31. Respondent contends that Petitioner has

failed to establish that she suffered shoulder pain within 48 hours of her vaccination,

meaning she cannot prevail on a Table SIRVA. Id. at 13-18. Respondent further argues

that Petitioner has failed to demonstrate an off-Table claim under the applicable legal

standard and therefore her claim must be dismissed. Id. at 18-21. Finally, Respondent

asserts that Petitioner has failed to demonstrate a reasonable basis for her claim, and

states that he will challenge any request by Petitioner for fees and costs in this case. Id.

at 20. On July 17, 2023, Petitioner filed a Reply brief. ECF No. 32. This matter is now ripe

for adjudication.

II. Authority

Pursuant to Vaccine Act Section 13(a)(1)(A), a petitioner must prove, by a

preponderance of the evidence, the matters required in the petition by Vaccine Act

Section 11(c)(1). A special master must consider, but is not bound by, any diagnosis,

conclusion, judgment, test result, report, or summary concerning the nature, causation,

and aggravation of petitioner’s injury or illness that is contained in a medical record.

Section 13(b)(1). “Medical records, in general, warrant consideration as trustworthy

evidence. The records contain information supplied to or by health professionals to

facilitate diagnosis and treatment of medical conditions. With proper treatment hanging in

the balance, accuracy has an extra premium. These records are also generally

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contemporaneous to the medical events.” Cucuras v. Sec’y of Health & Hum. Servs., 993

F.2d 1525, 1528 (Fed. Cir. 1993).

Accordingly, where medical records are clear, consistent, and complete, they

should be afforded substantial weight. Lowrie v. Sec’y of Health & Hum. Servs., No. 03-

1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, this rule

does not always apply. “Written records which are, themselves, inconsistent, should be

accorded less deference than those which are internally consistent.” Murphy v. Sec’y of

Health & Hum. Servs., No. 90-882V, 1991 WL 74931, *4 (Fed. Cl. Spec. Mstr. April 25,

1991), quoted with approval in decision denying review, 23 Cl. Ct. 726, 733 (1991), aff'd

per curiam, 968 F.2d 1226 (Fed.Cir.1992)). And the Federal Circuit recently “reject[ed] as

incorrect the presumption that medical records are accurate and complete as to all the

patient’s physical conditions.” Kirby v. Sec’y of Health & Hum. Servs., 997 F.3d 1378,

1383 (Fed. Cir. 2021).

The United States Court of Federal Claims has outlined four possible explanations

for inconsistencies between contemporaneously created medical records and later

testimony: (1) a person’s failure to recount to the medical professional everything that

happened during the relevant time period; (2) the medical professional’s failure to

document everything reported to her or him; (3) a person’s faulty recollection of the events

when presenting testimony; or (4) a person’s purposeful recounting of symptoms that did

not exist. La Londe v. Sec’y of Health & Hum. Servs., 110 Fed. Cl. 184, 203-04 (2013),

aff’d, 746 F.3d 1335 (Fed. Cir. 2014).

The Court has also said that medical records may be outweighed by testimony that

is given later in time that is “consistent, clear, cogent, and compelling.” Camery v. Sec’y

of Health & Hum. Servs., 42 Fed. Cl. 381, 391 (1998) (citing Blutstein v. Sec’y of Health

& Hum. Servs., No. 90-2808, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998).

The credibility of the individual offering such fact testimony must also be determined.

Andreu v. Sec’y of Health & Hum. Servs., 569 F.3d 1367, 1379 (Fed. Cir. 2009); Bradley

v. Sec’y of Health & Hum. Servs., 991 F.2d 1570, 1575 (Fed. Cir. 1993).

A special master may find that the first symptom or manifestation of onset of an

injury occurred “within the time period described in the Vaccine Injury Table even though

the occurrence of such symptom or manifestation was not recorded or was incorrectly

recorded as having occurred outside such period.” Section 13(b)(2). “Such a finding may

be made only upon demonstration by a preponderance of the evidence that the onset [of

the injury] . . . did in fact occur within the time period described in the Vaccine Injury

Table.” Id.

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The special master is obligated to fully consider and compare the medical records,

testimony, and all other “relevant and reliable evidence contained in the record.” La

Londe, 110 Fed. Cl. at 204 (citing Section 12(d)(3); Vaccine Rule 8); see also Burns v.

Sec’y of Health & Hum. Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (holding that it is within

the special master’s discretion to determine whether to afford greater weight to medical

records or to other evidence, such as oral testimony surrounding the events in question

that was given at a later date, provided that such determination is rational).

In addition to requirements concerning the vaccination received, the duration and

severity of petitioner’s injury, and the lack of other award or settlement, 3 a petitioner must

establish that she suffered an injury meeting the Table criteria, in which case causation

is presumed, or an injury shown to be caused-in-fact by the vaccination she received.

Section 11(c)(1)(C).

The most recent version of the Table, which can be found at 42 C.F.R. § 100.3,

identifies the vaccines covered under the Program, the corresponding injuries, and the

time period in which the particular injuries must occur after vaccination. Section 14(a).

Pursuant to the Vaccine Injury Table, a SIRVA is compensable if it manifests within 48

hours of the administration of a flu vaccine. 42 C.F. R. § 100.3(a)(XIV)(B). The criteria

establishing a SIRVA under the accompanying QAI are as follows:

Shoulder injury related to vaccine administration (SIRVA). SIRVA manifests

as shoulder pain and limited range of motion occurring after the

administration of a vaccine intended for intramuscular administration in the

upper arm. These symptoms are thought to occur as a result of unintended

injection of vaccine antigen or trauma from the needle into and around the

underlying bursa of the shoulder resulting in an inflammatory reaction.

SIRVA is caused by an injury to the musculoskeletal structures of the

shoulder (e.g. tendons, ligaments, bursae, etc.). SIRVA is not a neurological

injury and abnormalities on neurological examination or nerve conduction

studies (NCS) and/or electromyographic (EMG) studies would not support

SIRVA as a diagnosis (even if the condition causing the neurological

abnormality is not known). A vaccine recipient shall be considered to have

suffered SIRVA if such recipient manifests all of the following:

3

In summary, a petitioner must establish that he received a vaccine covered by the Program, administered

either in the United States and its territories or in another geographical area but qualifying for a limited

exception; suffered the residual effects of his injury for more than six months, died from his injury, or

underwent a surgical intervention during an inpatient hospitalization; and has not filed a civil suit or collected

an award or settlement for her injury. Section 11(c)(1)(A)(B)(D)(E).

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(i) No history of pain, inflammation or dysfunction of the affected shoulder

prior to intramuscular vaccine administration that would explain the alleged

signs, symptoms, examination findings, and/or diagnostic studies occurring

after vaccine injection;

(ii) Pain occurs within the specified time-frame;

(iii) Pain and reduced range of motion are limited to the shoulder in which

the intramuscular vaccine was administered; and

(iv) No other condition or abnormality is present that would explain the

patient’s symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy,

brachial neuritis, mononeuropathies, or any other neuropathy).

42 C.F.R. § 100.3(c)(10).

III. Finding of Fact

I make these findings after a complete review of the record, including all medical

records, declarations, Respondent’s Rule 4 Report, the parties’ arguments, and additional

evidence filed.

A. Medical Records

• On October 16, 2018, Petitioner at the age of 70 received in her left arm a

flu vaccine at Costco Pharmacy. Ex. 7 at 12-13; Ex. 15 at 334.

• Approximately three weeks later, on November 7, 2018, Petitioner was seen

by an ENT physician for an evaluation of allergies and tinnitus. Ex. 2 at 335;

Ex. 15 at 349-350. Petitioner did not report any shoulder pain at this visit.

• One month after her vaccination, on November 15, 2018, Petitioner was

seen at the office of her primary care provider (“PCP”), Darren P. Hee, MD.

Ex. 2 at 281-84; Ex. 15 at 336-39. Petitioner’s diagnoses for this visit

included acute sinusitis, hypertension, seasonal allergies, and anxiety. Ex.

2 at 283; Ex. 15 at 339-40.

• On November 21, 2018, Petitioner underwent a mammogram. Ex. 15 at

335.

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• Petitioner messaged Dr. Hee on December 19, 2018, requesting a

prescription cream to treat a rash on her legs that occurred while walking

long distances in hot and humid weather. Ex. 15 at 331. Petitioner raised

no concerns regarding shoulder pain in this message.

• On January 4, 2019, Petitioner was seen again at her PCP’s office. She

was assessed with hypertension and acute sinusitis. Ex. 2 at 279; Ex. 15 at

323-29. The record from this visit contains no report of shoulder pain.

• On January 17, 2019, Petitioner was seen by her ENT for allergy testing.

Ex. 15 at 317.

• Petitioner was next seen by Dr. Hee on February 11, 2019 for a follow-up

visit. Ex. 2 at 275; Ex. 15 at 314-15. Petitioner’s history included a

discussion of her allergies, tinnitus issues, medications, smoking history

and desire for lung screening, and need for preventive medications in

consideration of her coronary artery disease and diabetes mellitus. Ex. 15

at 314. The record contains no report of shoulder pain.

• Four days later, on February 15, 2019, Petitioner messaged Dr. Hee to

discuss lung screening results and diagnosis of pulmonary emphysema. Ex.

15 at 310. Petitioner raised no concerns regarding shoulder pain in this

message.

• Thereafter, on February 20, 2019, Petitioner messaged Dr. Hee with

medication questions and concerns in follow-up to her laboratory testing.

Ex. 15 at 301. In follow-up, Petitioner was referred to an endocrinologist on

February 21, 2019. Id. at 298, 301.

• On March 15, 2019, messaged Dr. Hee regarding another possible sinus

infection. Ex. 15 at 283-84.

• On March 25, 2019, Petitioner was seen by an endocrinologist, Dorota

Pucyk, for a consultation regarding her hypothyroidism. Petitioner’s

hypothyroidism, weight gain, diabetes, hyperlipidemia, and muscle

cramping were addressed at this visit. Ex. 2 at 331-32; Ex. 15 at 275-78.

The record notes under a musculoskeletal symptom review that Petitioner

had “[n]ew joint pain” but contains no report of any shoulder pain. Ex. 2 at

333.

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• On April 1 and 2, 2019, Petitioner messaged Dr. Hee and Dr. Pucyk

questions regarding her diabetes medication. Ex. 15 at 269-72.

• On April 18, 2019, Petitioner established care with cardiologist Rajesh

Janardhanan, MD. Ex. 15 at 264-65.

• On April 29, 2019, Petitioner underwent an echocardiogram study. Ex. 15

at 261-62.

• On May 23, 2019, Petitioner was seen again by Dr. Hee with complaints of

a one-week cough. Ex. 15 at 252-54. Petitioner was assessed with a cough,

allergies, and hypertension. Ex. 2 at 267; Ex. 15 at 252. The record contains

no report of any shoulder pain.

• Petitioner was again seen by Dr. Hee on May 28, 2019 for a follow-up on

her blood pressure and with concerns regarding sinusitis and tinnitus. Ex.

15 at 234.

• Between May 28, 2019 and June 6, 2019, Petitioner engaged in messaging

with Dr. Hee (regarding her Bystolic prescription) and Dr. Puyk regarding

laboratory tests. Ex. 15 at 227-31.

• Petitioner was again seen by Dr. Hee for a comprehensive Medicare annual

wellness examination on June 26, 2019. Ex. 15 at 210-216; see also Ex. 2

at 260-61. Petitioner underwent a physical examination at this appointment

that included a musculoskeletal examination with multiple findings specific

to a diabetic foot examination. Ex. 15 at 212. Dr. Hee detailed a history that

included: resolution of Petitioner’s tinnitus, Petitioner’s daily calorie intake

and weekly exercise regimen, a notation that her asthma was controlled

well, and a discussion of biannual mammograms. Id. at 211. Petitioner’s

visit assessments included, but were not limited to: asthma, hypertension,

obesity, hypothyroidism, and diabetes. Id. at 210. There is no indication in

the record that Petitioner suffered from, reported, or exhibited any shoulder

pain.

• On September 29, 2019, Petitioner messaged Dr. Hee regarding fasting

instructions in advance of her blood tests scheduled for October 2019 in

preparation for her November 5, 2019 appointment, and requested that her

mammogram order be sent to a specific radiologist. Ex. 15 at 205-06.

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• On November 5, 2019 (now more than one year after the vaccination at

issue), Petitioner was seen again by Dr. Hee for a follow-up appointment

and to discuss her medication. Ex. 15 at 195-97. The history provided in this

record states, in addition to a discussion of other medical concerns, “left

shoulder pain since flu shot. Diclofenac cream helps but increased pain with

swimming. Pain with elevation of the left shoulder.” Id. at 196. Petitioner

was assessed with “subcoracoid impingement of left shoulder” in addition

to other conditions. Ex. 15 at 195.

• Thereafter, on November 9-12, 2019, Petitioner messaged Dr. Hee

regarding certain prescription requests (including a renewal for diclofenac

sodium topical gel). Ex. 15 at 190-92. Petitioner did not report or discuss

any shoulder pain in her messages.

• Subsequently, Petitioner was seen by and/or messaged various medical

providers on numerous occasions in the nineteen month period between

November 19, 2019 and June 30, 2021, including Dr. Hee, but did not seek

any treatment for her left shoulder. See, e.g., Ex. 2 at 5, Ex. 15 at 559

(November 19, 2019: annual flu vaccination received); Ex. 2 at 330

(December 2, 2019: mammogram); Ex. 2 at 247-251 (January 16 - 24,

2020: messaging with Dr. Hee); Ex. 2 at 245 (February 7, 2020: message

to Dr. Hee); Ex. 2 at 232 (March 3, 2020: visit with Dr. Hee); Ex. 2 at 230

(March 5, 2020: message to Dr. Hee); Ex. 2 at 228-29 (April 3, 2020:

message to Dr. Hee); Ex. 2 at 224-26 (May 14 and 18, 2020: messaging

with Dr. Hee); Ex. 2 at 217, 220 (July 12-14 messaging with Dr. Hee); Ex. 2

at 207, 218 (July 16, 2020: sinus CT conducted) Ex. 2 at 204 (July 28, 2020:

visit with Dr. Hee for a comprehensive Medicare annual wellness

examination); Ex. 2 at 326 (August 12, 2020: ENT visit); Ex. 2 at 200

(August 12, 2020: message to Dr. Hee); ) Ex. 2 at 198 (August 19, 2020:

message to Dr. Hee’s office); Ex. 2 at 191-93 (August 25, 2020: visit with

Dr. Hee’s office); Ex. 2 at 324 (October 30, 2020: dermatologist visit); Ex. 2

at 181 – 85 (October 30 – November 3, 2020 (messaging with Dr. Hee); Ex.

2 at 174 (November 4, 2020: visit with Dr. Hee); Ex. 2 at 187-88 (November

5, 2020: renal ultrasound); Ex. 2 at 320 (December 22, 2020: telemed visit

with nephrologist for renal insufficiency); Ex. 2 at 317-18 (12/30/2020: renal

artery ultrasound); Ex. 2 at 316 (January 25, 2021: mammogram); Ex. 2 at

157, 159 (February 1 and 8, 2021: messaging with Dr. Hee); Ex. 2 at 154-

55 (February 14-15, 2021: messaging with Dr. Hee); Ex. 2 at 311 (February

23, 2021 nephrologist visit); Ex. 2 at 147 (March 4, 2021: visit with Dr. Hee);

Ex. 2 at 145, 143 (March 15-16, 2021: messages to Dr. Hee); Ex. 2 at 132-

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34 (May 6, 2021: telephone encounter with Dr. Hee’s office); Ex. 3 at 4-6

(May 19, 2021: cardiologist visit); Ex. 3 at 2-3 (June 1, 2021: cardiologist

visit); Ex. 2 at 91 (June 8, 2021: visit with Dr. Hee’s office); Ex. 2 at 60 (June

30, 2021: labwork performed).

• On July 8, 2021, at an annual wellness visit with Dr. Hee, Petitioner now

reported “[c]onstant left arm pain. She has pain lying in the left side. She

has pain with movement.” Ex. 2 at 41. Petitioner’s musculoskeletal

examination comments state “[d]ecreased extension of the left shoulder and

pain with crossover, apprehension sign and supraspinatus/infraspinatus

testing.” Id. at 46. Petitioner’s diagnoses for this visit includes “[i]mpingment

syndrome of left shoulder region” with a plan to treat with physical therapy

in the future Id. at 47-48.

• On July 12, 2021, Petitioner messaged her nephrologist’s office in regard

to her June 30, 2021 GFR levels and mentioned that in June she had “ate

all the wrong things plus used aspirin for an aching arm.” Ex. 4 at 19.

• On July 14, 2021, Petitioner presented for an initial physical therapy

evaluation. Ex. 6 at 5. This record records a history or “Mechanism of Injury”

as “P[atien]t had a flu[] shot and that night she woke up in excruciating pain

in the left shoulder. This happened about 3 years ago and shoulder has not

gotten better. Shoulder has gotten progressively worse and now she [h]as

sharp pain and aching in the shoulder with difficulty using the arm. Insidious

onset.” Id.

• Thereafter, Petitioner continued to treat her left shoulder pain (which she

associated with her 2018 flu vaccination) in addition to her other medical

conditions.

B. Other Evidence – Declarations filed by Petitioner

Petitioner submitted her own sworn declaration, and an additional five sworn

declarations from her domestic partner, and four friends, in support of her claim. Exs. 1,

8-12. In her own declaration dated October 14, 2021, Petitioner states that upon receiving

the flu vaccine on October 16, 2018 at Costco Pharmacy “it felt as though the technician

had inserted the needle into my bone. I winced and almost cried out” and she complained

to the technician who assured her she would be okay in a few hours. Ex. 1 at 1. Petitioner

states she awoke that night in “excruciating pain” and feared a heart attack. Id. She states

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“[o]ver the next few months, I just tried to live with the pain, all the while thinking it would

get better. It never did.” Id. Thereafter, she states that “[o]n November 5, 2019, I had a

visit with Dr. Hee. He addressed, although inadequately, my shoulder and arm pain.” Id.

at 2. Petitioner’s declaration discussed the impact her shoulder pain has had upon her

activities of daily living, including exercising and traveling to visit her grandchildren. Id.

Petitioner states that her “constant complaints” to her PCP finally resulted in xrays and a

referral to a physical therapist. Id. However, Petitioner’s declaration does not mention any

complaints to her PCP, or any other medical provider, other than to Dr. Hee on November

5, 2019.

Petitioner filed a sworn declaration from David Pinney, dated March 27, 2023. Ex.

12. Mr. Pinney states that he lives with Petitioner, who has been his domestic partner

since 2008. Id. at 1. Mr. Pinney recalls that the day of Petitioner’s flu shot, October 16,

2018, she complained “it felt like the technician had hit a wrong spot or hit a nerve” and

that Petitioner told him “she felt pain immediately.” Id. He states the next day when she

“was lying in bed she said the pain made it feel like she was having a heart attack.” Id.

Thereafter, he states that Petitioner “noticed she was having difficulty lifting her arm

above the shoulder. She felt pain whenever she tried to lift anything.” Id.

Anne Browning-Aiken provided a sworn statement dated December 7, 2022. Ex.

8. Ms. Browning-Aiken a long-term friend of Petitioner states that she “think[s] the first

time [Petitioner] shared with me that something was wrong with her arm after the

vaccination was by email. To my best recollection, it was within a week of her getting the

vaccination.” Id. Ms. Browning-Aiken also states that on her birthday, November 20th,

“Petitioner just wasn’t herself that year” and told her that “she could not understand why

her arm had not gotten better.” Id. at 1. Ms. Browning-Aiken states that Petitioner has

“complained about her arm since that time.” Id.

Petitioner filed a sworn declaration from Baruch Burstein who participated in the

same exercise classes with Petitioner. Ex. 9. Mr. Burstein states that Petitioner told him

“about her injury caused by the flu shot (although I don’t remember the exact date she

told me). This was several years ago now. She told me she had left shoulder pain.” Id.

Mr. Baruch notes that Petitioner still complains of pain sometimes. Id. at 2.

Petitioner filed a sworn affidavit from Wain Cooper, dated December 12, 2022, who

states he knows Petitioner through his wife, who took exercise classes with Petitioner four

or more years ago. He states that when they socialized with Petitioner “after she got her

vaccination, she explained the pain she was having in her shoulder.” Ex. 10. He states

Petitioner described things that she couldn’t do anymore such as exercise “and she told

us it happened to her because of her flu shot.” Id.

Finally, Petitioner filed a sworn declaration from Daniel Aiken dated December 12,

2022. Ex. 11. Mr. Aiken states that he and his wife are long-term friends with Petitioner

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and that he became aware of her left shoulder problem “a number of years ago”. Id. He

states that Petitioner told them about her “chronic left shoulder pain, and how

uncomfortable this was for her. She told us she thought it was from the flu shot, and the

pain started after the shot was given too high on her arm. As time went on her pain did

not go away.” Id.

C. Petitioner Cannot Meet the Table Onset Requirement for

a SIRVA

On balance, and despite Petitioner’s efforts to offer witness statements consistent

with her allegations, the evidence in this case preponderates strongly against a finding

that Petitioner suffered the onset of her shoulder pain within 48 hours following the

administration of her October 16, 2018 flu vaccine.

Most significant to my determination is the fact that contemporaneous medical

records do not document any report of shoulder pain from Petitioner until over one year

after her vaccination. During this time period, Petitioner was seen for numerous medical

visits, including six visits to her PCP, Dr. Hee, or his office. See supra at pp. 5-7. However,

neither Dr. Hee nor any of Petitioner’s other providers documented any report that

Petitioner experienced shoulder or arm pain. Additionally, Petitioner engaged in electronic

messaging with Dr. Hee or his office on at least seven occasions and never raised any

concerns regarding her shoulder pain in any of these messages. See supra at pp. 6-7.

During this time period Petitioner sought care with various specialists such as an

ENT, and a cardiologist, but sought no care for her shoulder. While it is reasonable that

Petitioner would not report shoulder pain to a specialist seen for another condition, the

record supports the conclusion that she could have seen an appropriate treater (and likely

would have if the problem had in fact been significant enough). Petitioner’s many visits

during the year following her 2018 vaccination with both her PCP, and various specialists,

demonstrate that she is not a person who avoids seeking medical care. Rather the record

in this case demonstrates that Petitioner promptly seeks care for both acute, and chronic

conditions.

Petitioner in her brief argues that she “spoke about her shoulder with her provider

multiple times before this date [November 5, 2019]. She is not sure why this is not

documented on the medical chart.” ECF No. 30 at 3, n. 1. However, this argument is not

supported by the record. Petitioner’s declaration fails to describe or mention any report or

complaint to Dr. Hee, or any other provider, of shoulder pain made before her November

5, 2019 complaint to Dr. Hee. Nor does Petitioner provide any explanation in her

declaration for why she delayed reporting her shoulder pain to a medical professional, or

otherwise seek treatment or care for her shoulder.

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Although the declarations filed in support of Petitioner’s claim offer some support

for her allegation of immediate onset, they are not compelling evidence for multiple

reasons. First, the declarations (except for Petitioner’s own statement 4) were all dated

over four years after the alleged onset of Petitioner’s shoulder pain. None of the

declarants, aside from Petitioner’s domestic partner, recall Petitioner reporting shoulder

pain to them on a specific date. Although, Ms. Browning-Aiken recalls “to the best of her

recollection” Petitioner emailed her within a week of getting her vaccination to share that

something was wrong – neither Petitioner, nor Ms. Browning-Aiken, submitted a copy of

the purported email. 5 These vague statements, offered many years after Petitioner’s

vaccination, simply fail to outweigh the lack of documentation in the many

contemporaneous medical records filed in the year following Petitioner’s October 2018 flu

vaccination.

Ultimately, the medical records, witness statements and other evidence offered 6 in

this case do not preponderantly support a Table SIRVA onset. Although after-the-fact

statements can sometimes be deemed persuasive when consistent and compelling, the

declarations submitted in this matter do not alone preponderantly establish immediate

onset in a case where the numerous contemporaneous medical records are silent.

Although the standard applied to SIRVA claims on the onset issue is fairly liberal, not

every SIRVA claim can be so preponderantly established, and especially not where the

4

Petitioner’s sworn statement is dated October 14, 2022, nearly three years after her October 16, 2018

flu vaccination. Ex. 1.

5

In other SIRVA cases, I have found copies of emails and/or text messages mentioning a Petitioner’s

shoulder pain as persuasive evidence supporting a Petitioner allegation of onset. See, e.g., Underwood v.

Sec'y of Health & Hum. Servs., No. 20-404V, 2023 WL 1778189, at *5 (Fed. Cl. Spec. Mstr. Feb. 6,

2023)(noting the “contemporaneous email correspondence between Petitioner and her daughter are

consistent with her allegations about onset” in a SIRVA claim where Petitioner filed email correspondence

with her daughter from “the day following her vaccination indicating that her arm was a little sore,” and also

describing subsequent email correspondence between the petitioner and her daughter demonstrating their

“ongoing concerns in regard to her arm pain.”)(emphasis in original).

6

Petitioner’s brief points to her use of Diclofenac gel as evidenced by her Walmart Pharmacy records (Ex.

13) in an attempt to support her claim. As Petitioner acknowledges, however, she was prescribed

Diclofenac before her vaccination to treat another condition. ECF No. 30 at 11-12. She reported to Dr. Hee

on November 5, 2019 that the prescription gel helped her shoulder pain. Ex. 15 at 196. Subsequently,

Petitioner’s nephrology record from December 22, 2020 states that Petitioner “used diclofenac gel for years

[but] has stopped [as of] 12/20, [and] now uses CBD oil” to treat her arthritis. Ex. 2 at 320. But Petitioner’s

report to Dr. Hee on November 5, 2019 that Diclofenac helped her shoulder pain, provides no support for

her allegation that she suffered the onset of her shoulder pain beginning within 48 hours of her October

2018 vaccination – nor does Petitioner’s continued use of the gel after her November 2019 appointment

with Dr. Hee.

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contemporaneous medical record contradicts a petitioner’s allegations. 7 Such is the case

here: where the voluminous medical record consistently fails to document any shoulder

pain for over a year following her October 16, 2018 flu vaccination.

Petitioner has not preponderantly established that the onset of her shoulder

pain occurred within 48 hours of vaccination. Accordingly, Petitioner cannot

proceed in this action with her Table SIRVA claim, and it is hereby dismissed.

IV. Order to Show Cause

The Petition asserts an alternative claim that Petitioner’s shoulder injury was

caused in fact by the same vaccination. In order to prevail on a causation in fact claim,

Petitioner must establish the Althen factors. See Althen v. Sec’y of Health & Human

Servs., 418 F.3d 1274, 1278 (Fed. Cir. 2005) (setting out a three part test for causation

in fact claims, requiring that a petitioner establish (1) a medical theory causally connecting

the vaccination and the injury; (2) a logical sequence of cause and effect showing that the

vaccination was the reason for the injury; and (3) a showing of a proximate temporal

relationship between vaccination and injury).

Here, the same general onset questions that required dismissal of the Table claim

also seem to likely mean that a non-Table version of the claim would not be tenable. The

record demonstrates that Petitioner sought no treatment for her alleged shoulder injury

for over a year following her October 2018 vaccination, despite seeking medical care on

many occasions during the relevant time period. And other than as contained in witness

statements, there is no intervening objective evidence from that one-year time period of

any shoulder issues at all.

Give such facts, it is very unlikely that Petitioner can demonstrate that any vaccine

injury occurred in a medically-acceptable timeframe, when measured from the date of

vaccination as required under prong three of Althen. There is, simply, an absence of

record proof of any vaccine-related concern for too long after the vaccination – and this

would be so even were I to find that Petitioner’s onset occurred closer in time to

vaccination. Vaccine Act claimants cannot prevail by associating an injury with a vaccine

administered at a remote time in the past – since the passage of time inevitably suggests

that the potential “medically-acceptable” relationship between vaccination and injury may

decline. As Judge Bruggink observed in Hennessey v. Sec’y of Health & Human Servs.,

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See, e.g., Shoemaker v. Sec’y of Health & Human Servs., No. 20-625V, 2022 WL 2288698 (Fed. Cl. Spec.

Mstr. Jan. 18, 2022), mot. for rev. denied, 150 Fed. Cl. 307 (2022) (dismissing claim where the petitioner

alleged immediate shoulder pain but did not seek care until almost ten months after vaccination).

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91 Fed. Cl. 126 (2010), there are some proposed timeframes that are so long that all

concepts of medical reasonableness and acceptability fly out the window. Hennessey, 91

Fed. Cl. at 142 (“this theory accounts for symptoms which do not occur until years after

vaccination, exacerbated by some other environmental trigger... [under this theory] it

would be virtually impossible to determine that the vaccine, and not some other

environmental condition, was the original triggering event”).

However, despite such well-reasoned skepticism for any non-Table claim’s value,

I will allow Petitioner a final opportunity to provide additional argument on this issue. To

assuage my concerns, Petitioner must demonstrate that the exceedingly-long gap

between her vaccination and first record complaint of shoulder issues would not cause

her to run afoul of the third Althen prong. She should, if possible, cite to prior Program

determinations where Petitioners have prevailed under comparable circumstances.

Petitioner is cautioned that if she fails to demonstrate entitlement, I may find that

her claim lacks a reasonable basis (for the reasons discussed above), and that she is not

entitled to an award of attorneys’ fees and costs. It is important that Petitioner take

seriously the chance I am providing her to substantiate her claim. It is a petitioner’s

obligation to follow court orders and to provide the evidence to support her claim. Failure

to follow court orders, as well as failure to file the medical records and other evidence to

support her claim, may result in dismissal of Petitioner’s claim. Tsekouras v. Sec’y of

Health & Hum. Servs., 26 Cl. Ct. 439 (1992), aff’d, 991 F.2d 810 (Fed. Cir. 1993) (per

curiam); Sapharas v. Sec’y of Health & Hum. Servs., 35 Fed. Cl. 503 (1996); Vaccine

Rule 21(c).

Because of the factual deficiencies discussed herein, Petitioner should strongly

consider seeking dismissal of this case, given the risk of an adverse reasonable basis

finding. In the event that Petitioner decides not to pursue the petition further, Petitioner is

advised to consult with Section IX of the Vaccine Guidelines for guidance on the

appropriate motion or stipulation to file to exit the vaccine program. The Guidelines may

be found at: https://www.uscfc.uscourts.gov/guidelines-practice-under-national-vaccine-

injury-compensation-program

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Conclusion

The Table SIRVA claim alleged in this Petition is dismissed; and

Petitioner shall show cause why this Petition should not be dismissed in its

entirety for insufficient evidence by Tuesday, May 27, 2025.

IT IS SO ORDERED.

s/Brian H. Corcoran

Brian H. Corcoran

Chief Special Master

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