The opinion
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 22-275V
MARTHA KEMEMU, Chief Special Master Corcoran
Petitioner, Filed: January 21, 2026
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Jessica Wallace, Siri & Glimstad, LLP, Aventura, FL, for Petitioner.
Julianna Rose Kober, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION DISMISSING CLAIM 1
On March 10, 2022, Martha Kememu (“Petitioner”) 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 left
shoulder injury related to vaccine administration (“SIRVA”), a defined Table Injury, due
to was related to a Human Papillomavirus (“HPV”) vaccine she received on July 13,
2019. Petition at 1.
For the reasons set forth below, I find Petitioner has not established that she
suffered the residual effects of her injury for more than six months, and therefore dismissal
of the claim is warranted (since no claim – Table or causation-in-fact – is tenable if severity
cannot also be preponderantly demonstrated).
1 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).
I. Procedural History
Petitioner filed this matter on March 10, 2022, and subsequent medical records on
March 22, 2022. ECF No. 1, 6. On December 4, 2023, Respondent filed his Rule 4(c)
Report opposing compensation in this case, arguing that the Vaccine Act’s severity
requirement could not be met. ECF No. 39 at 10. Petitioner filed a Motion for Ruling on the
Record on September 13, 2024, requesting the Court award her compensation for a SIRVA injury.
Petitioner’s Motion for Ruling on the Record (“Mot.”), ECF No. 43. Respondent filed his response
on December 5, 2024, arguing that Petitioner failed to satisfy the threshold severity requirement.
Respondent’s Response to Petitioner’s Motoin for Ruling on the Record (“Res.”) ECF No. 45.
Petitioner filed her reply on January 3, 2025. Reply in Support of Petitioner’s Motion for Ruling on
the Record, ECF No. 47.
II. Factual Background
A. Medical Records
Petitioner was twenty-five years old when she received the HPV vaccine in her left
shoulder on July 13, 2019. Ex. 2 at 17-18. Prior to vaccination, Petitioner had no history
of left shoulder or arm pain. Id. at 16.
On July 18, 2019, Petitioner complained of “severe shoulder pain . . . the day
following the injection,” and limited range of motion (“ROM”) to Dr. Ebony Copeland. Ex.
2 at 8. Following a physical examination, Dr. Copeland noted that the bandage for her
immunization appeared “to be very high,” and that Petitioner had tenderness to palpation
in front of the vaccination area. Id. at 9. Petitioner had full passive ROM but was unable
to abduct or adduct her left arm without significant pain. Id. Dr. Copeland diagnosed acute
left shoulder pain and advised that Petitioner take ibuprofen as needed. Id.
On July 19, 2019, Petitioner received an ultrasound of the left shoulder. Ex. 2 at
12. The results showed “no fluid collection or soft tissue abnormality.” Id.
Petitioner presented to orthopedist Konrad Gruson, M.D on August 1, 2019, for
evaluation of her left shoulder pain. Ex. 3 at 18. Petitioner reported that her pain began
after “receiving a vaccine to the left upper extremity.” Id. at 19. A physical examination
revealed tenderness to palpation of the left shoulder and positive Neer and Hawkin’s
tests. Id. Dr. Gruson noted that Petitioner’s symptoms were “consistent with bursitis which
may have been exacerbated by the injection.” Id. at 20. An MRI of her left shoulder was
ordered at Petitioner’s request and she was given a prescription for 7.5 mg of meloxicam.
Id. at 20-21.
2
On August 8, 2019, an MRI of the left shoulder showed “fraying of bursal sided
fibers of the supraspinatus tendon” and “[e]xtensive fluid in the subacromial/subdeltoid
bursa . . . probably related to a recent therapeutic injection.” Ex. 3 at 15. There was no
indication of a rotator cuff tear. Id.
On August 13, 2019, Petitioner returned to Dr. Gruson. Ex. 3 at 6-12. She was
diagnosed with bicipital tendinitis of her left shoulder and received a corticosteroid
injection. Id. at 6-7.
There is a subsequent, one-year treatment gap, with no evidence in the intervening
timeframe of any shoulder pain complaints or related treatment. The next medical record
is from August 10, 2020, when Petitioner went to a hospital’s emergency department and
was subsequently admitted for a medical issue involving her breast. Ex. 5 at 3-16. During
this visit, Petitioner reported no arthralgias or shoulder pain. Id. at 3. A physical
examination did not record any musculoskeletal deficiencies either. Id.
Petitioner next sought medical care related to her left shoulder more than six
months thereafter - on February 20, 2021. Ex. 2 at 5. She now reported left shoulder pain
from an HPV vaccine “administered in 2019.” Id. Further, it was noted that she had
received a cortisone injection in August 2019 that wore off, and that she “could not follow
up with ortho after … due to loss of insurance.” Id. The physical examination revealed no
deformity or swelling of the left shoulder, no tenderness to palpation, and full active and
passive ROM in all directions. Id. at 6. Petitioner was given a referral to an orthopedic
surgeon and to physical therapy (“PT”). Id.
On March 5, 2021, Petitioner presented for an initial PT evaluation of her left
shoulder pain. Ex. 4 at 36. She described her symptoms as swelling and pain after an
HPV injection in July of 2019. Id. A physical examination revealed tightness of the left
shoulder with abnormal joint play, muscle spasms, limited ROM, and decreased strength.
Id. at 38. The therapist recommended two to three PT sessions per week for a total of
eight weeks. Id.
From March 12 to April 15, 2021, Petitioner attended eight additional PT sessions.
See Ex. 4. At her final session on April 15, 2021, Petitioner reported muscle spasms in
her left shoulder and difficulty picking up and putting on her book bag. Id. at 6. Additional
PT was recommended; however, there are no records of Petitioner having continued with
her PT treatment. Id.
3
B. Affidavit evidence
In an affidavit dated January 24, 2022, Petitioner stated that her shoulder pain
began the day she received her vaccination. Ex. 1 at 1-2. She also addressed the
eighteen-month gap in treatment between August 13, 2019, and February 20, 2021.
Petitioner explained that she lost medical insurance as of the fall of 2019, and was unable
to afford PT. Id. at 3. Petitioner obtained medical insurance the following year (in July
2020), but that PT remained “out of the question” because she was “terrified to leave [the]
house for anything other than groceries due to the COVID-19 pandemic.” Id. Petitioner
attempted to cope with her injury through strength training and yoga, but eventually
realized she “still needed professional help.” Id. at 3-4.
III. Fact Findings and Ruling on Entitlement
Before compensation can be awarded under the Vaccine Act, a petitioner must
demonstrate, by a preponderance of evidence, all matters required under Section
11(c)(1), including the factual circumstances surrounding her claim. Section 13(a)(1)(A).
In making this determination, the special master or court should consider the record as a
whole. Section 13(a)(1). Petitioner’s allegations must be supported by medical records or
by medical opinion. Id.
In particular, a petitioner must establish that she suffered an injury meeting the
Table criteria (i.e. a Table injury), in which case causation is presumed, or an injury
shown to be caused-in-fact by the vaccination she received. If a petitioner establishes
a Table injury the burden shifts to respondent to establish a more likely alternative
cause. Section 13(a)(1)(A), 11(c)(1)(C)(i), 14(a). If a petitioner cannot establish a Table
injury, or she may pursue causation-in-fact under the legal standard set forth in Althen
v. Sec'y of Health & Hum. Servs., 418 F. 3d 1274, 1278 (Fed. Cir. 2005).
In addition to causation, a petitioner must also meet the requirements
establishing that the vaccine received is “covered” by the Program, the duration and
severity of petitioner’s injury, and the lack of other award or settlement. 3 With regard to
severity, a petitioner must show that she suffered the residual effects or complications
of her injury or condition for more than six months after the administration of the vaccine.
§ 11(c)(1)(D)(i); see Song v. Sec'y of Health & Hum. Servs., 31 Fed. Cl. 61, 65-66
3
In summary, a petitioner must establish that she 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 her injury for more than six months, died from her 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. See § 11(c)(1)(A)(B)(D)(E).
4
(1994), aff'd, 41 F.3d 1520 (Fed. Cir. 2014) (noting that a petitioner must demonstrate
the six-month severity requirement by a preponderance of the evidence). Finding that
petitioner has met the severity requirement cannot be based on petitioner's word alone,
though a special master need not base their finding solely on medical records. Section
13(a)(1); see Colon v. Sec'y of Health & Hum. Servs., 156 Fed. Cl. 534, 541 (2021).
Severity must be established regardless of whether the claim arises under the Table or
is a causation-in-fact claim.
The parties dispute whether Petitioner has demonstrated that she suffered
“residual effects or complications of [the injury alleged] for more than six months after the
administration of the vaccine,” as required for eligibility under the Vaccine Program.
Section 11(c)(1)(D)(i). Because Petitioner received the HPV vaccine on July 13, 2019,
she must demonstrate by preponderant evidence that her residual symptoms continued
at least through January 13, 2020. See, e.g., Herren v. Sec'y of Health & Human Servs.,
No. 13-100V, 2014 WL 3889070, at *2 (Fed. Cl. Spec. Mstr. July 18, 2014); see also
Hinnefeld v. Sec'y of Health & Human Servs., No. 11-328V, 2012 WL 1608839, at *4-5
(Fed. Cl. Spec. Mstr. Mar. 30, 2012) (dismissing case where medical history revealed that
petitioner's injury resolved less than two months after onset).
The record herein establishes that Petitioner’s initial treatment occurred over one
month, or until August 13th. At that time, Petitioner was diagnosed with tendinitis and
received a steroid injection. Ex. 3 at 6-7. But that is the last evidence of treatment for an
inordinate period of time. Aside from emergency care in August 2020, there are no
medical records until February 2021 - 18 months later – establishing persistent shoulder
complaints. While the steroid injection may well have ameliorated Petitioner’s pain for a
period of time, the timeframe herein is too long to conclude that subsequent complaints
of pain were due to its effects eventually wearing off. And the emergency visit from August
2020 establishes that Petitioner did have the wherewithal to seek treatment when needed;
her failure to also do so at least in the fall of 2020 for her alleged ongoing shoulder issues
underscores the likelihood her condition had not persisted throughout this time.
Petitioner has offered explanations for her treatment cessation, and while they
often prove meritorious, they do not in the context of this case. The lack of insurance, for
example, defends some of the lag in treatment, but not the absence of treatment in the
latter half of 2020. Ex. 2 at 5; Ex. 4 at 36. The same goes for Pandemic concerns, which
are entitled to some weight, but not when coupled with so many significant treatment
gaps. Those gaps ultimately allow for the conclusion that Petitioner’s initial shoulder pain
had resolved, and that any number of possible intervening events might better explain
her reported pain recurrence. Thus, the overall totality of evidence preponderates against
a favorable severity finding.
5
Conclusion
Because Petitioner has failed to meet the severity requirement set forth in Section
11(c)(1)(D)(i), Petitioner cannot establish entitlement, and therefore I must DISMISS
her claim in its entirety. In the absence of a timely-filed motion for review (see Appendix
B to the Rules of the Court), the Clerk of Court shall enter judgment in accord with this
Decision. 4
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
4
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
6