Gothers v. Secretary of Health and Human Services

In the United States Court of Federal Claims

No. 20-2033V

(Filed: September 26, 2024)

(Public Filing: January 14, 2026*)

)

THOMAS GOTHERS, )

)

Petitioner, )

)

v.

)

SECRETARY OF HEALTH AND )

HUMAN ERVICES, )

)

Respondent. )

)

Timothy J. Mason, Law Office of Sylvia Chin-Caplan, LLC, Boston, MA, for

Petitioner.

J. Travis Williamson, Torts Branch, Civil Division, United States Department of

Justice, Washington, D.C. for Respondent. With him on the briefs were Brian M.

Boynton, Principal Deputy Assistant Attorney General, C. Salvatore D’Alessio,

Director, Heather L. Pearlman, Deputy Director, Gabrielle M. Fielding, Assistant

Director.

OPINION AND ORDER

SOLOMSON, Judge.

Petitioner, Thomas Gothers, filed this action pursuant to the National Vaccine

Injury Compensation Program, 42 U.S.C. §§ 300aa-1 et seq., alleging that an influenza

vaccination caused various injuries, including a shoulder injury related to vaccine

administration (“SIRVA”). ECF No. 1. On April 10, 2024, Chief Special Master Brian H.

Corcoran denied his petition for vaccine injury compensation. ECF No. 55. The Chief

Special Master concluded that the preponderance of evidence weighed against

Mr. Gothers’s claim, and, in particular, that his injury did not occur within the requisite

48 hours of vaccine administration, contrary to the Vaccine Injury Table. Id. Mr. Gothers

now petitions this Court for review of the Chief Special Master’s decision. For the reasons

explained below, this Court affirms that decision.

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I. LEGAL AND FACTUAL BACKGROUND 1

To receive compensation under the National Vaccine Injury Compensation

Program, a petitioner may prove either that he suffered an injury falling within the

Vaccine Injury Table (a “table claim” pursuant to 42 U.S.C. § 300aa-11(c)(1)(C)(i)), or that

he suffered an injury that was caused by a covered vaccine but first began after the time

period required by the table (a “non-table claim” pursuant to 42 U.S.C. § 300aa–

11(c)(1)(C)(ii)(II)). A table claim presumes causation, while a non-table claim requires

proof of causation in fact. Gardner-Cook v. Sec’y of Health & Hum. Servs., 59 Fed. Cl. 38, 44

(2003), aff’d, 97 F. App’x 332 (Fed. Cir. 2004) (quoting Grant v. Sec’y of Dep’t of Health &

Hum. Servs., 956 F.2d 1144, 1148 (Fed. Cir. 1992)). In this case, Mr. Gothers asserted a table

claim. See ECF No. 53 at 2; ECF No. 55 at 1.

Mr. Gothers received an influenza vaccine in his left arm on October 1, 2019. ECF

No. 46 at 4. Prior to receiving the vaccine, Mr. Gothers had no history of injury to his left

shoulder. Id. He asserts that he began feeling pain in his left shoulder and upper arm

immediately after receiving his flu shot. Id. Mr. Gothers’s wife, who has both educational

and vocational training in administering vaccines, maintains that Mr. Gothers first told

her about his left shoulder pain the day after his flu shot, and that she noticed then that

the band-aid on his shoulder was higher than she would have expected it to be based on

her training. Id.

Mr. Gothers’s wife suggested that the pain might take about three months to heal.

ECF No. 46 at 4. Mr. Gothers claims that his shoulder pain continued throughout the fall

of 2019, and that he attempted to self-treat the pain and adapted his habits and activities

during that time. Id. Throughout the following months, Mr. Gothers made several visits

to his optometrist and a chiropractor (the latter for treatment of ankle pain relating to an

earlier surgery). Id. at 4–5. The medical records from those visits do not reflect any

reports of left shoulder injury. Id.

On March 2, 2020, Mr. Gothers first sought medical treatment for his left shoulder.

ECF No. 46 at 5. That visit — as well as subsequent visits to medical professionals —

provides conflicting evidence regarding precisely when Mr. Gothers’s shoulder pain

began. Id. at 5–6. The record of the first March doctor’s visit notes that Mr. Gothers

reported pain that “started in 12/2019 after receiving the flu shot.” Id. at 5. The record

* This decision was initially issued under seal on September 26, 2024, in accordance with Rule

18(b) of the Vaccine Rules of the United States Court of Federal Claims, to permit Petitioner time

to propose redactions. There are no redactions requested by the parties. Accordingly, this

opinion is reissued in full.

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Because the parties do not dispute the relevant facts, but rather only disagree about the

conclusions to be drawn from them, the Court’s recitation of the facts here are drawn almost

entirely from ECF No. 46 (“Special Master’s Findings of Fact and Conclusions of Law”).

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from that visit also notes that Mr. Gothers was last seen on October 1, 2019, for a “flu

vaccine.” Id. That evidence clearly supports the conclusion that his pain started well

after the 48-hour window of a SIRVA table claim.

On March 30, 2020, Mr. Gothers visited an orthopedist and reported “five months

of left shoulder pain” that “began after he got the flu shot in the fall.” Id. The records do

not reflect a precise date or time frame “in the fall.” On April 10, 2020, Mr. Gothers went

for a physical therapy evaluation during which he reported left shoulder pain “since

Oct[tober] 2019 after getting a flu shot.” Id. The physical therapist noted that Mr. Gothers

thought that the pain was from a flu shot that “went into the bursa Oct[ober] 5[,] 2019.”

Id. These records are not inconsistent with Mr. Gothers’s assertion that his pain began

immediately after his flu shot.

On June 13, 2020, Mr. Gothers’s chiropractor recorded that Mr. Gothers’s pain

“gradually began following a seasonal influenza vaccine.” Id. No specific timeframe for

pain onset is reflected. On August 11, 2020, Mr. Gothers visited a sports medicine clinic

and reported that his pain began “after receiving a flu shot on 10/5/2019.” Id. at 5–6.

Again, none of these records expressly contradict Mr. Gothers’s assertion that his

shoulder pain began within 48 hours of his flu vaccine, but they are equally consistent

with the pain having started after the 48-hour window required for a table case.

II. PROCEDURAL HISTORY

On December 30, 2020, Mr. Gothers filed a petition in this Court alleging that he

“received a seasonal flu vaccine administration on October 1, 2019” and that he

subsequently “suffered the onset of [SIRVA] and related conditions.” ECF No. 1 at 2.

Mr. Gothers further claimed that the “onset of the Petitioner’s SIRVA occurred within the

time frame specified in the Vaccine Injury Table (42 CFR § 100.3) for the seasonal flu

vaccine (i.e., less than or equal to 48 hours),” and that “the symptoms, residual effects,

and/or sequelae of the Petitioner’s injuries have persisted for more than six (6) months.”

Id. The case was assigned to Chief Special Master Corcoran. ECF No. 4. On October 24,

2022, the Secretary of Health and Human Services filed a Rule 4(c) Report disputing that

Mr. Gothers had met his burden to prove that his left shoulder symptoms began within

the required 48-hour period, and had therefore not established a SIRVA table claim. ECF

No. 38 at 9.

On August 15, 2023, Chief Special Master Corcoran issued his Findings of Fact and

Conclusions of Law, dismissing Mr. Gothers’s SIRVA table claim on the basis that

“Petitioner has not preponderantly established that the onset of his shoulder pain

occurred within 48 hours of vaccination ….” ECF No. 46 at 8. Chief Special Master

Corcoran offered Mr. Gothers the opportunity to proceed with a non-table claim and

ordered him to show cause on or before September 29, 2023, as to “why such a claim

might be viable, articulating his theory of recovery and citing to other Program decisions

in which similarly situated claimants have succeeded.” Id.

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On September 14, 2023, Mr. Gothers filed a motion for this Court to review the

Chief Special Master’s findings of fact and conclusions of law. ECF No. 47. On October

5, 2023, Respondent filed a motion to dismiss Mr. Gothers’s motion for review. ECF No.

50. On October 19, 2023, Mr. Gothers responded to Respondent’s motion to dismiss. ECF

No. 51.

On January 16, 2024, this Court granted Respondent’s motion to dismiss, without

prejudice, finding that Mr. Gothers’s motion for review was premature. ECF No. 52 at 3.

This Court held that “only a decision that resolves whether compensation shall be

awarded and that may result in an entry of judgment is subject to review by this Court,”

and since “the Chief Special Master did not issue a final decision resolving whether

Mr. Gothers is entitled to compensation,” this Court did not have jurisdiction to review

what was essentially an interim order of a special master. Id. at 2. The Court explained

further that “[o]nce the Chief Special Master issues a final decision on Mr. Gothers’[s]

petition for compensation, he may file a motion for review if warranted.” Id. at 3.

On January 18, 2024, Chief Special Master Corcoran issued a scheduling order,

once again instructing Mr. Gothers to “show cause why his claim is a viable causation-

in-fact claim.” Minute Entry, Jan. 18, 2024. On February 9, 2024, in response to the Chief

Special Master’s order, Mr. Gothers filed a status report, in which he requested that the

Chief Special Master issue a final decision. ECF No. 53. Mr. Gothers explained, for

reasons that are unclear to the Court, that “based on the Findings of Fact and Conclusions

of Law regarding injury onset, as they stand now, he does not see an off-Table causation-

in-fact claim as a viable path forward.” Id. at 2. Based on Mr. Gothers’s request, Chief

Special Master Corcoran issued a final decision on April 10, 2024, dismissing

Mr. Gothers’s case. ECF No. 55 at 2.

On May 10, 2024, Mr. Gothers filed a motion for review, asserting that the Chief

Special Master’s “decision was arbitrary and capricious, an abuse of discretion, and not

in accordance with law.” ECF No. 57 at 22. That motion is now pending before this

Court.

III. STANDARD OF REVIEW

This Court possesses jurisdiction, pursuant to the Vaccine Act, to review a special

master’s decision upon the filing of a petition from either party within thirty days of that

decision. 42 U.S.C. § 300aa-12(e)(1). On review, the Court may:

(A) uphold the findings of fact and conclusions of law of the

special master and sustain the special master’s decision,

(B) set aside any findings of fact or conclusion of law of the

special master found to be arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law

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and issue its own findings of fact and conclusions of law,

or

(C) remand the petition to the special master for further

action in accordance with the court’s direction.

42 U.S.C. § 300aa-12(e)(2).

“Under the Vaccine Act, the Court of Federal Claims reviews the Special Master’s

decision to determine if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with the law.’” Markovich v. Sec’y of Health & Hum. Servs., 477 F.3d 1353,

1355–56 (Fed. Cir. 2007). “‘Arbitrary and capricious’ is a highly deferential standard of

review: ‘[i]f the special master has considered the relevant evidence of record, drawn

plausible inferences and articulated a rational basis for the decision, reversible error will

be extremely difficult to demonstrate.’” Rodriguez v. Sec’y of Health & Hum. Servs., 632

F.3d 1381, 1384 (Fed. Cir. 2011) (citing Hines v. Sec’y of Health & Hum. Servs., 940 F.2d 1518,

1528 (Fed. Cir. 1991)). A special master’s statement or interpretation of law is reviewed

de novo. Id. (citing Markovich, 477 F.3d at 1356).

While a special master’s decision “is entitled to deference,” Morse v. Sec’y of Health

& Hum. Servs., 93 Fed. Cl. 780, 783 (2010), this Court will find that a special master has

abused his discretion if his decision: “(1) is clearly unreasonable, arbitrary, or fanciful;

(2) is based on an erroneous conclusion of law; (3) rests on clearly erroneous fact findings;

or (4) follows from a record that contains no evidence on which the [special master] could

rationally base [his] decision.” Wirtshafter v. Sec’y of Health & Hum. Servs., 155 Fed. Cl.

665, 671 (2021) (quoting Ninestar Tech. Co. v. Int’l Trade Comm’n, 667 F.3d 1373, 1379 (Fed.

Cir. 2012)). 2

Our appellate court, the United States Court of Appeals for the Federal Circuit,

has thus explained that “the statute contemplates that fact finding will be done by the

special master.” Munn v. Sec’y of Dep’t of Health & Hum. Servs., 970 F.2d 863, 870 (Fed. Cir.

1992). Indeed, Congress tasked the special masters with the “unenviable job of sorting

through these painful cases and, based upon their accumulated expertise in the field,

judging the merits of the individual claims.” Hodges v. Sec’y of Dep’t of Health & Hum.

Servs., 9 F.3d 958, 961 (Fed. Cir. 1993).

IV. DISCUSSION

At the heart of this dispute is a simple question of fact: did the pain that

Mr. Gothers experienced begin within 48 hours of his having received the influenza

2 See also Spahn v. Sec’y of Health & Hum. Servs., 138 Fed. Cl. 252, 257 (2018) (“This Court will find

an abuse of discretion only where the special master’s decision is clearly unreasonable, based

upon an erroneous conclusion of law, rests on erroneous fact finding, or based on a record

without evidence to support the special master’s decision.”).

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vaccine, or did the pain begin later? If it began within 48 hours, then the Vaccine Injury

Table requirements have been satisfied, and Mr. Gothers is entitled to compensation. See

42 C.F.R. § 100.3(a)(XIV)(B). If the pain first occurred after the 48-hour period, then the

table claim must be denied. The Chief Special Master concluded that the evidence did

not support Mr. Gothers’s table claim. The evidence is mixed and thus this Court cannot

conclude that the Chief Special Master’s decision is arbitrary, capricious, unsupported by

substantial evidence, or otherwise contrary to law.

Records from Mr. Gothers’s various visits to medical professionals provide

various date ranges and windows during which the onset of pain occurred, while the

assertions of Mr. Gothers and his wife in the proceedings before the Chief Special Master

put the onset of pain specifically within 48 hours of Mr. Gothers’s vaccine. ECF No. 46 at

4–5. Other than their testimony here, however, there is no decisive evidence supporting

Mr. Gothers’s claim while there is some evidence that undermines it.

Had the task of fact-finding and the weighing of the evidence been delegated to

this Court in the first instance — as opposed to the special master — this Court may well

have found Mr. Gothers’s and his wife’s assertions sufficient. Indeed, viewed in isolation,

this Court believes that Petitioner’s neglecting to mention his shoulder pain during a visit

to an optometrist is irrelevant. See ECF No. 46 at 4. Similarly, the Court is inclined to

agree with Mr. Gothers that his failure to mention shoulder pain during repeated visits

to a chiropractor for treatment of an ankle injury are of little import. ECF No. 57 at 16. In

both cases, the purpose of the medical visits was unrelated to his shoulder. Moreover,

the fact that Mr. Gothers waited five months to seek professional treatment of his

shoulder pain may suggest that the pain began after the 48-hour window, ECF No. 46 at

6, but the Court can easily envision reasonable explanations for why a patient may delay

seeking treatment (e.g., because he believed the pain was normal or because the pain was

not severe).

But those facts do not help Mr. Gothers either. They do not definitively support

Mr. Gothers’s claim in a way that somehow requires the Chief Special Master to find in

Mr. Gothers’s favor. Even the somewhat helpful facts cannot be viewed in isolation. In

that regard, the Chief Special Master reasonably relied not only upon the length of time

between Mr. Gothers’s vaccination and his first report of pain to medical professionals,

but also upon the conflicting dates of the onset of pain within the various medical reports,

a few of which expressly place the onset of pain as occurring after the 48-hour window.

ECF No. 46 at 6–7. This constitutes substantial evidence; again, the record must be

viewed as a whole. See Shapiro v. Sec’y of Health & Hum. Servs., 101 Fed. Cl. 532, 540 (2011)

(“To be sure, a finder of fact generally is not required to itemize every piece of evidence

on an issue and adopt or reject it.… [C]onsistent with the duties imposed by the Vaccine

Act, the task of a Special Master is to ‘consider [ ] the relevant evidence in the record as a

whole, draw[ ] plausible inferences and articulate[ ] a basis for his decision which is

rational.’” (emphasis added) (quoting Hines, 940 F.2d at 1525)).

The Court notes once again that the special master, and not this Court, is tasked

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by Congress to be the fact finder in the first instance. See Munn, 970 F.2d at 870. In this

case, the Chief Special Master, after considering and weighing all of the evidence,

concluded that it “preponderantly weighs against a finding of Table onset.” ECF No. 46

at 7. That is a factual conclusion — one which this Court cannot characterize as “arbitrary

and capricious” or lacking in substantial evidentiary support. Hines, 940 F.2d at 1528; see

also Doe v. Sec’y of Health & Hum. Servs., 601 F.3d 1349, 1355 (Fed. Cir. 2010) (“[Petitioner]

is correct that not all of the evidence in the record supports the special master’s findings.

That, however, is not the question. On appeal, we must determine whether the special

master’s findings of fact are supported by substantial evidence.”); cf. Duvall v. United

States, 647 F.2d 131, 134 (Ct. Cl. 1981) (“In exercising this substantial evidence review, the

court’s role is not to hear the case de novo, but to review the administrative record and

determine whether there is substantial evidence on the record as a whole to support the

findings of the board.”).

Because the Chief Special Master considered all of the “relevant evidence” and

drew a “plausible inference” with a “rational basis,” his decision is entitled to deference.

Hines, 940 F.2d at 1528 (“If the special master has considered the relevant evidence of

record, drawn plausible inferences and articulated a rational basis for the decision,

reversible error will be extremely difficult to demonstrate.”).

V. CONCLUSION

For all of the above reasons, this Court finds that Chief Special Master Corcoran’s

decision was not arbitrary, capricious, or otherwise contrary to law. Accordingly, this

Court AFFIRMS Chief Special Master Corcoran’s decision. The Clerk shall enter

JUDGMENT for the government, dismissing this case.

IT IS SO ORDERED.

s/Matthew H. Solomson

Matthew H. Solomson

Judge

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