holding that a special master may reject an opinion that is “based on facts not substantiated by the record”
How later courts described this case
- holding that a special master may reject an opinion that is “based on facts not substantiated by the record”
Written by the judges who cited it.
The opinion
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-322V
GEORGE TAYLOR, Chief Special Master Corcoran
Petitioner,
v. Filed: August 21, 2025
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
David John Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner.
Debra A. Filteau Begley, U.S. Department of Justice, Washington, DC, for Respondent.
DISMISSAL DECISION 1
On March 23, 2020, George Taylor filed a Petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the
“Vaccine Act”), alleging a right SIRVA. But my previous finding that the at-issue vaccine
was likely administered in Petitioner’s left arm, 3 and the lack of any further submissions
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002. 44 U.S.C. § 3501 note (2012) (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 (2012).
3 See Findings of Fact and Conclusions of Law Dismissing Table SIRVA Claim filed June 18, 2024 (ECF
No. 45) (containing a longer discussion of the procedural history, and the underlying evidence, which is
fully incorporated and relied upon herein).
from Petitioner, 4 establish that entitlement cannot be substantiated – even on the basis
of a causation-in-fact claim. Accordingly, the matter is appropriately dismissed for
insufficient proof and for failure to prosecute.
Insufficient Proof
Under Section 13(a)(1)(A) of the Act, a petitioner must demonstrate, by a
preponderance of the evidence, that all requirements for a petition set forth in section
11(c)(1) have been satisfied. A petitioner may prevail on his claim if the vaccinee for whom
he seeks compensation has “sustained, or endured the significant aggravation of any
illness, disability, injury, or condition” set forth in the Vaccine Injury Table (the Table).
Section 11(c)(1)(C)(i).
If, however, the vaccinee suffered an injury that either is not listed in the Table or
did not occur within the prescribed time frame, petitioner must prove that the administered
vaccine caused injury to receive Program compensation on behalf of the vaccinee.
Section 11(c)(1)(C)(ii) and (iii). In such circumstances, petitioner asserts a “non-Table or
[an] off-Table” claim and to prevail, petitioner must prove his claim by preponderant
evidence. Section 13(a)(1)(A). This standard is “one of . . . simple preponderance, or
‘more probable than not’ causation.” Althen v. Sec’y of Health & Hum. Servs., 418 F.3d
1274, 1278-80 (Fed. Cir. 2005) (referencing Hellebrand v. Sec’y of Health & Hum. Servs.,
999 F.2d 1565, 1572-73 (Fed. Cir. 1993). The Federal Circuit has held that to establish
an off-Table injury, petitioners must “prove . . . that the vaccine was not only a but-for
cause of the injury but also a substantial factor in bringing about the injury.” Shyface v.
Sec’y of Health & Hum. Servs., 165 F.3d 1344, 1351 (Fed. Cir 1999). Id. at 1352. The
received vaccine, however, need not be the predominant cause of the injury. Id. at 1351.
The Federal Circuit has noted that petitioners “must show ‘a medical theory
causally connecting the vaccination and the injury’” to establish that a vaccine was a
substantial factor in bringing about the injury. Shyface, 165 F.3d at 1352-53 (quoting
Grant v. Sec’y of Health & Hum. Servs., 956 F.2d 1144, 1148 (Fed. Cir. 1992)). In
addition, "[t]here must be a ‘logical sequence of cause and effect showing that the
4 Petitioner filed a Response to my Table Dismissal and Order to Show Cause. ECF No. 46. However,
rather than taking the opportunity to supply further evidence in support of any off-Table claim (or to seek
leave to do so in the form of expert support) as instructed, Petitioner’s Response appears to essentially
seek reconsideration of the aforementioned Findings of Fact and was thus procedurally inappropriate. See,
e.g., id. at 4 (urging that the Court “should use Petitioner’s Response to Show Cause as an opportunity to
fix an injustice to Petitioner”). Indeed, Vaccine Rule 10(e) contemplates that a motion for reconsideration
be filed within 21 days of a special master’s decision as to whether an award of compensation is to be
made. See id. My Table Dismissal and Order to Show Cause did no such thing; rather, it left the door open
for Petitioner to submit further evidence in pursuit of any off-Table claim in the non-vaccinated arm, which
Petitioner did not do. See ECF No. 45 at 11.
2
vaccination was the reason for the injury.’” Id. The Federal Circuit subsequently reiterated
these requirements in its Althen decision. See 418 F.3d at 1278. Althen requires a
petitioner:
to show by preponderant evidence that the vaccination
brought about her injury by providing: (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.
Id. All three prongs of Althen must be satisfied. Id.
Finding a petitioner is entitled to compensation must not be “based on the claims
of a petitioner alone, unsubstantiated by medical records or by medical opinion.” Section
13(a)(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 contemporaneous to
the medical events.” Cucuras v. Sec’y of Health & Hum. Servs., 993 F.2d 1525, 1528
(Fed. Cir. 1993).
I previously determined that the Hepatitis A vaccine received by Petitioner on July
2, 2019, was more likely than not administered in his left deltoid. That finding required
dismissal of his right-sided Table SIRVA claim, but he was permitted to consider whether
any off-Table, causation-in-fact claim might be feasible. However, he has not made any
representation to that effect – within the specified 30-day timeframe, or in the 14 months
thereafter.
The medical records do not establish causation-in-fact. In particular, the initial
evaluations by primary care providers either fail to mention shoulder issues (of either
laterality) or contain conflicting medical assessments of Petitioner’s shoulder complaints.
Compare Ex. 3 at 141-45 (a visit on August 2, 2019, with no mention of shoulder
symptoms), with id. at 147 (listing the chief complaint as “L [sic] shoulder pain” on
September 13, 2019, but undergoing an examination of the right shoulder). An orthopedist
3
reviewed that Petitioner’s MRI and clinical evidence were not consistent with a fracture,
dislocation, structural abnormalities, or bursitis. 5 Ex. 4 at 6.
I also observe that no provider recorded the independent belief, let alone proposed
a medical theory, that the vaccine’s administration or any of its components caused
Petitioner’s right shoulder complaints. Any mere references to the vaccine in the record
are based on Petitioner’s history, centering on a right-sided administration – which, I have
found, has inadequate evidentiary support. See, e.g., Snyder v. Sec’y of Health & Hum.
Servs., No. 01-0162V, 2009 WL 332044, at *187 n.523 (Fed. Cl. Spec. Mstr. Feb. 12,
2009), mot. for review den’d, 88 Fed. Cl. 706 (2009) (discussing the importance of an
accurate factual basis for any treating provider or expert opinion); Burns v. Sec'y of Health
& Hum. Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (holding that a special master may reject
an opinion that is “based on facts not substantiated by the record”).
Otherwise, the medical records merely show a potential temporal association with
the vaccine in question – also reported by Petitioner – that seemed to be ruled out
following further diagnostic testing revealing other conditions or abnormalities in the right
shoulder. Compare Ex. 4 at 8-10 (a September 26, 2019 orthopedic assessment including
“a complication following immunization” and ordering an MRI for “possible immunization
complication”), with id. at 4-6 (an October 10, 2019 orthopedic assessment following MRI
that did not include an immunization complication).
Petitioner was instructed to consult with Respondent and the Court if he wished to
seek medical expert support for his off-Table claim. Findings of Fact at 11 (noting that
any request for experts would likely support the case’s transfer out of SPU). But he has
not requested expert involvement. Accordingly, there is insufficient evidence of causation-
in-fact to proceed with the claim.
Failure to Prosecute
An additional ground for dismissal herein arises from Petitioner’s general failure to
prosecute this matter. It is a petitioner’s obligation to follow and appropriately respond to
orders issued by a special master in a case. The failure to do so – whether on account of
attorney error, inaction, or because a petitioner has failed to stay in contact and/or
communicate with counsel - is grounds for the claim’s dismissal. Tsekouras v. Sec’y of
Health & Hum. Servs., 26 Cl. Ct. 439 (1992), aff’d, 991 F.2d 810 (Fed. Cir. 1993) (per
5 Rather, Petitioner’s MRI revealed “a small full thickness tear of the distal supraspinatus tendon[,]
moderately severe outlet narrowing[,] small rim-rent tears in the infraspinatus tendon[, and] a small full-
thickness tear in the subscapularis tendon at the site of insertion.” Ex. 4 at 6. Following this review of
Petitioner’s MRI, the orthopedist’s assessment included: 1) localized primary osteoarthritis of the right
acromioclavicular joint, and 2) a nontraumatic rupture of the right rotator cuff tendon. Id.
4
curiam), (“[c]ontrolling precedent considers dismissal appropriate when failure to act is
deemed willful, when it is in violation of court orders, when it is repeated, and when clear
warning is given that the sanction will be imposed”); Sapharas v. Sec’y of Health & Hum.
Servs., 35 Fed. Cl. 503 (1996) (“[n]ot only did petitioner fail to meet the court's . . . .
deadline, but he also ignored the chief special master's ‘warning’ order, clearly placing
petitioner on notice that failure to respond to the court's order . . . , would result in
dismissal of the claim. The chief special master clearly did not abuse his discretion in
dismissing this case for failure to prosecute”); see also Vaccine Rule 21(b) (“[t]he special
master or the court may dismiss a petition or any claim therein for failure of the petitioner
to prosecute or comply with these rules or any order of the special master or the court.”).
My June 18, 2024 Findings of Fact specifically warned Petitioner that any
remaining causation-in-fact claim risked dismissal, and therefore it was critical that he
took steps to bulwark the claim. But he did not respond appropriately (see supra, note 4)
by the 30-day deadline or at any time thereafter, without offering any justification or
explanation. As previously warned, this lack of response (in the form of additional
evidence/argument regarding an off-Table claim) is hereby interpreted as a failure to
prosecute. Findings of Fact at 11.
Conclusion
Accordingly, this case is DISMISSED for insufficient evidence and for failure to
prosecute. The Clerk of Court shall enter judgment accordingly. 6
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
6 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
5