VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_16-vv-01140
Package ID: USCOURTS-cofc-1_16-vv-01140
Petitioner: Shawn’Quavious A’drez Hinton
Filed: 2016-09-14
Decided: 2022-12-27
Vaccine: influenza
Vaccination date: 2015-12-21
Condition: Guillain-Barré Syndrome (GBS)
Outcome: compensated
Award amount USD: 177790

AI-assisted case summary:
On September 14, 2016, Tramella Hinton, as the mother and natural guardian of Shawn’Quavious A’drez Hinton, filed a petition under the National Vaccine Injury Compensation Program. The petition alleged that Shawn, who was 17 years old at the time, suffered Guillain-Barré Syndrome (GBS) caused by an influenza vaccine administered on December 21, 2015. Shawn had been diagnosed with Down Syndrome at birth and resided with his mother and sisters. Prior to the alleged vaccination, he was described as a healthy and active young man. His medical history included appointments with Dr. Gilbert Alligood for behavioral and sleeping problems, for which he was prescribed medication. Shawn's appointment on December 21, 2015, was scheduled for a follow-up visit and medication refill. However, clinic records indicated Shawn was a "no show" for this appointment, and his mother later called to obtain the prescription refill. Insurance records also did not reflect any charges for this date. Despite these discrepancies, Petitioner testified that Shawn did receive the flu vaccine from a nurse named Lisa during the appointment. She later sought to amend the clinic's records, which was denied. Following the alleged vaccination, Shawn experienced leg weakness and pain, which progressed, leading to an inability to stand or walk. He was diagnosed with GBS. Hospitalization records from February 2016 noted that he had not recently received a flu vaccination. However, later rehabilitation records from April 2016 stated that he received a flu shot on December 21, 2015. On May 29, 2018, Chief Special Master Nora Beth Dorsey issued a Ruling on Entitlement, finding Petitioner entitled to compensation, as the respondent chose not to defend the case. Subsequently, the parties were unable to resolve damages. On November 29, 2022, Special Master Dorsey issued a Decision Awarding Damages. The Special Master awarded $160,000.00 for past pain and suffering and $16,493.68 for future pain and suffering, calculated as $500.00 per year for Shawn's life expectancy, reduced to net present value. Additionally, $1,296.02 was awarded to satisfy a Medicaid lien. The total award amounted to $177,790.00. The respondent sought review of the Special Master's decision regarding proof of vaccination. On June 5, 2023, Judge Kathryn C. Davis issued an Opinion and Order denying the respondent's motion for review. The court found that the Special Master's determination that Petitioner had established adequate proof of vaccination by a preponderance of the evidence was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. The court noted that while contemporaneous documentary proof is ideal, it is not strictly necessary, and lay witness testimony, supported by corroborating evidence, can suffice. The court deferred to the Special Master's credibility findings regarding Petitioner's testimony and her assessment of the weight of the circumstantial evidence, including phone records and later medical record entries, which supported the claim despite conflicting contemporaneous records. Petitioner's counsel was Bruce W. Slane. Respondent's counsel included Colleen Clemons Hartley and Zoe Wade. Special Master Nora Beth Dorsey presided over the entitlement and damages decisions, and Judge Kathryn C. Davis reviewed the entitlement decision.

Theory of causation field:
Petitioner Tramella Hinton alleged that her son, Shawn’Quavious A’drez Hinton, a minor, received an influenza vaccine on December 21, 2015, and subsequently developed Guillain-Barré Syndrome (GBS). The respondent initially chose not to defend the case on entitlement, leading to a ruling in favor of the petitioner. A significant issue was proving the vaccination occurred, as clinic records indicated a "no show" and hospitalization records stated no recent flu shot. However, the Special Master found Petitioner's testimony credible, supported by circumstantial evidence such as phone records and later medical records referencing the vaccination, establishing proof of vaccination by a preponderance of the evidence. The court upheld this finding on review. The case proceeded to damages, where Special Master Nora Beth Dorsey awarded $160,000.00 for past pain and suffering and $16,493.68 for future pain and suffering, plus $1,296.02 for a Medicaid lien, totaling $177,790.00. The theory of causation was that the influenza vaccine caused GBS, an "Off-Table" condition, which was accepted by the respondent's decision not to defend on entitlement. No specific medical experts were named in the provided text for the causation theory, and the mechanism was not detailed beyond the general association of flu vaccines with GBS. The decision was issued by Special Master Nora Beth Dorsey on May 29, 2018 (entitlement) and November 29, 2022 (damages), with a judicial review by Judge Kathryn C. Davis on June 5, 2023. Petitioner's counsel was Bruce W. Slane, and respondent's counsel included Colleen Clemons Hartley and Zoe Wade.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_16-vv-01140-0
Date issued/filed: 2018-07-31
Pages: 14
Docket text: PUBLIC ORDER/RULING (Originally filed: 03/09/2018) regarding 54 Findings of Fact & Conclusions of Law ( Signed by Chief Special Master Nora Beth Dorsey.)(mpj) Service on parties made.
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Case 1:16-vv-01140-KCD Document 63 Filed 07/31/18 Page 1 of 14
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-1140V
Filed: March 9, 2018
UNPUBLISHED
TRAMELLA HINTON, as mother and
Special Processing Unit (SPU);
natural and proposed guardian of
Finding of Fact; Influenza (Flu)
SHAWN’QUAVIOUS A’DREZ
Vaccine; Proof of Vaccination.
HINTON, an incapacitated and
disabled person,
Petitioner,
v.
SECRETARY OF HEALTH
AND HUMAN SERVICES,
Respondent.
Bruce William Slane, Law Office, White Plains, NY, for petitioner.
Colleen Clemons Hartley, U.S. Department of Justice, Washington, DC, for respondent.
ORDER AND RULING ON FACTS – SPECIAL PROCESSING UNIT1
Dorsey, Chief Special Master:
On September 14, 2016, petitioner, Tramella Hinton, as the mother, natural and
proposed guardian of Shawn’Quavious A’drez Hinton (“Shawn”) filed a petition for
compensation under the National Vaccine Injury Compensation Program, 42 U.S.C.
§300aa-10, et seq.,2 (the “Vaccine Act”).3 Petitioner alleges that her son suffered
injuries, including the Acute Inflammatory Demyelinating Polyneuropathy (“AIDP”)
variant of Guillain-Barré syndrome (“GBS”) that was caused-in-fact by the adverse
effects of an influenza (“flu”) vaccination he received on December 21, 2015 in Tarboro,
1 Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends 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). 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, the undersigned agrees that the identified material fits
within this definition, the undersigned 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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
3 An amended petition was filed on June 2, 2017. (ECF No. 35).

Case 1:16-vv-01140-KCD Document 63 Filed 07/31/18 Page 2 of 14
North Carolina. Amended Petition at 1. Petitioner has been unable to obtain
documentary proof of vaccination and now moves (based on circumstantial evidence)
for a fact-finding that Shawn’Quavious A’drez received a flu vaccination on December
21, 2015. After a review of the evidence submitted and the parties’ briefs, the
undersigned finds that petitioner has established adequate proof of vaccination.
I. Procedural History
In the petition, Ms. Hinton alleges that Shawn received a flu vaccine on
December 21, 2015, at the office of his primary care physician, Dr. Gilbert Alligood in
Tarboro, North Carolina. The petition states that Ms. Hinton’s counsel “faced resistance
from the office of Dr. Gilbert Alligood and Vidant Health in attempting to obtain the
records of vaccination.” Petition at 1, fn. 1. After obtaining authority to issue subpoenas
for Shawn’s medical records, petitioner filed the first set of medical records (petitioner’s
exhibits (“Pet. Ex.”) 1-10) on January 11, 2017. No record of vaccination was included
with these records.
On January 12, 2017, petitioner filed a motion (and was granted authority) to
depose Dr. Gilbert Alligood regarding Shawn’s December 21, 2015 flu vaccination.
Order dated January 17, 2017. Dr. Alligood was deposed on March 17, 2017 and the
transcript of the deposition has been filed into the record as petitioner’s exhibit 12. On
March 10, 2017, Ms. Hinton filed unofficial transcripts of recorded telephone
conversations that she had with Dr. Alligood regarding Shawn’s 2015 flu vaccination as
well as a compact disc of the audio recording. During Dr. Alligood’s deposition, portion
of the recordings were played and transcribed into the official transcript of the
deposition.
On June 2, 2017, petitioner filed an amended petition which included citations to
the deposition transcript and medical records that were obtained after the filing of the
original petition. A status conference was held on June 14, 2017, with counsel and the
staff attorney managing this case. During that status conference, the parties stated that
proof of vaccination remained an issue and requested that the undersigned conduct a
fact hearing to determine whether and when Shawn received a flu vaccination in
December 2015. The undersigned granted this request.
A fact hearing was held on September 8, 2017 in Raleigh, North Carolina, during
which Ms. Hinton testified. Shawn and his stepfather were also present during the
hearing, but did not testify. The transcript of this proceeding has been filed and the
parties have filed the requested documentation from the hearing as well as their
respective post-hearing briefs. This matter is now ripe for adjudication.
II. Relevant Factual History
In order to understand the unusual circumstances of this case, the undersigned
will separately summarize the information contained in the medical records and witness
affidavits, the testimony from Dr. Alligood’s deposition, and Ms. Hinton’s testimony from
the fact hearing. Although not all of the evidence is summarized below, the
undersigned has reviewed the record as a whole in reaching her decision.
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a. Medical records and testimonial affidavits
Shawn’Quavious A’Drez Hinton (“Shawn”) was born on September 24, 1988.
Pet. Ex. 1 at 1. Shawn was born with Down Syndrome. Pet. Ex. 2 at 1, ¶2. He resides
with his mother and three younger sisters. Id. Ms. Hinton reported to Shawn’s treating
physicians during the course of his treatment for GBS, that Shawn had never
complained to her of any pain, weakness, tingling, decreased sensation, or decreased
stability prior to December 21, 2015. Pet. Ex. 2 at 1, ¶3. Shawn was a healthy and
active young man, attending school at Tarboro High school in the exceptional children’s
program. Pet. Ex. 2 at 1, ¶5.
On July 10, 2015, approximately five months prior to the vaccination at issue in
this case, Shawn was seen by his primary care physician, Dr. Gilbert Alligood, for what
his mother described as behavioral and sleeping problems. Pet. Ex. 3 at 178-181.
After a consultation and physical examination, Dr. Alligood prescribed Clonidine and
Trazadone and instructed Ms. Hinton to return with Shawn in 30 days. Id. at 181.
Shawn was seen again on August 3, 2015, for this follow-up visit. Id. at 184-188. Ms.
Hinton reported that Shawn was sleeping better although he was still experiencing
behavioral issues. Id. at 186. Dr. Alligood prescribed a refill for the Trazodone during
this visit. Id. at 187. Upon leaving Dr. Alligood’s office, Ms. Hinton made another
appointment for Shawn to be seen on December 21, 2015 at 2:30 p.m., for a follow-up
visit. Pet. Ex. 2 at 2, ¶15.
In her affidavit, Ms. Hinton states that she took Shawn for his four-month follow
up appointment on December 21, 2015. Pet. Ex. 2 at 2. It was during this appointment
that she alleges that Shawn received the flu vaccine at issue in this case. Pet. Ex. 2 at
1, 3. Ms. Hinton states that she was present in the exam room on December 21, 2015
and watched as Shawn received his annual seasonal flu vaccination, which was
administered in his left upper arm by Dr. Alligood’s nurse. Id. Ms. Hinton states that
two days later, based on this December 21, 2015 visit with Dr. Alligood, a refill for the
prescription for Trazodone was sent to Rite-Aid pharmacy. Id.
Dr. Alligood’s records do show that Shawn was scheduled for an appointment on
December 21, 2015; however, Shawn is marked as a “no show” for the appointment.
See Pet. Ex. 9 at 1. The billing records associated with Dr. Alligood’s office and
Shawn’s Medicaid and BlueCross BlueShield insurance records do not reflect a charge
for a December 21, 2015 encounter or for any vaccination administered on that date.
See Pet. Ex. 16, 17; Pet Ex. 3 at 30. Dr. Alligood’s records indicate that Ms. Hinton
contacted his office on December 23, 2015 by telephone to request a prescription refill
of Shawn’s Trazadone medication. See Pet. Ex. 3 at 190, 208-201. This record
indicates that the prescription was ordered by another provider at Dr. Alligood’s office
and was filled at Rite Aid Pharmacy the same day. See Pet. Ex. 15 at 2; Pet. Ex. 12 at
144.
Ms. Hinton states in her affidavit that in the “days and weeks following Shawn’s
December 21, 2015 vaccination,” he began to experience pain and weakness in his
legs. Pet. Ex. 2 at 2, ¶6. She stated that on January 11, 2016, Shawn injured his left
ankle as he was attempting to stand. Id. Ms. Hinton states that over the next three
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days, Shawn continued to complain about the pain and soreness in his left ankle. Id. at
2, ¶7.
On January 14, 2016, Ms. Hinton took Shawn to Vidant Edgecombe Urgent Care
to be seen for his left ankle pain. Pet. Ex. 3 at 195. The records from this visit note that
Shawn presented for complaints of “joint pain, left ankle.” Id. The history provided
indicates that Shawn’s ankle pain started over the past seven days and that his pain
occurred constantly. Id. Shawn’s symptoms were aggravated by walking and standing.
It was noted that Shawn fell on his left ankle three days prior. Id. After an x-ray showed
no fractures, Shawn was discharged with a prescription for Ibuprofen. Id. at 196. Ms.
Hinton states in her affidavit that in the days and weeks following the January 14, 2016
visit to urgent care, Shawn’s leg weakness and ankle pain progressed to the point
where he had to use a walker to get around. Pet. Ex. 2 at 2, ¶8. Shawn lost the ability
to maintain his balance and walk. Id.
On January 20, 2016, Shawn was taken to the emergency room at Vidant for
complaints of left knee pain. Pet. Ex. 5 at 61. Shawn’s stepfather provided the history
stating that Shawn had difficulty walking and a significant gait change. Id. His
stepfather explained that Shawn’s abnormal gait was noticed a week prior after he
sustained a fall. Id. At that time, Shawn was seen in the emergency department. Id. A
CT scan of his head was normal but he was found to be significantly hyperthyroid. Id.
Upon examination, Shawn was found to have decreased strength to dorsiflexion and
plantar flexion. Id. at 62. He was noted to have a fine tremor and walked with a
shuffled gait. Id. at 61-62. He was unable to ambulate without support. Id. Shawn was
discharged with diagnosis of myalgias, pain, and hyperthyroidism and concerns for
Guillain-Barre syndrome, myasthenia gravis versus transverse myelitis. Id. at 61-62. He
was provided with a prescription for a beta-blocker and instructed to follow up with his
primary care physician. Id.
On February 1, 2016, Shawn was taken to Vidant Multi-Specialty Clinic (“Vidant”)
for continued complaints of difficulty walking. Pet. Ex. 3 at 203. He presented in a
wheelchair due to his inability to walk. Id. Shawn’s parents again reported to the
medical providers that Shawn had sustained a fall two weeks prior and had been
previously evaluated at the emergency room on two separate occasions. Pet. Ex. 3 at
203. The results of a CT scan of his cervical and lumbar spine showed some disc
bulging and narrowing of the neural exit foramina at L5-S1 bilaterally. Id. at 210. The
CT scan of his head was normal. Id. at 207. In the assessment, it was noted that
Shawn walked with a shuffling gait and demonstrated some “obvious tremors” in both
upper extremities. Id. at 210. An MRI of his brain and cervical spine were ordered. Id.
If the results were normal, an EMG and neurology referral would be considered. Id.
Shawn was next seen on February 15, 2016, when he was admitted to Vidant
Medical Center for weakness of his lower extremities and inability to walk over the “past
1-2 months.” Pet. Ex. 4 at 57-63. He was hospitalized for three days during which a
nerve conduction study and lumbar puncture were obtained. Id. at 54. The results of
the lumbar puncture showed an elevated protein level at 194 and his nerve conduction
study showed blocks of absent H reflexes consistent with demyelinating peripheral
neuropathy. Id. A diagnosis of Guillain-Barre syndrome was considered. Id. Shawn
was given two doses of IVIG over 48 hours. Id. He continued to have difficulty
ambulating and required assistance. Id. Shawn was to be discharged to inpatient
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rehabilitation. Id. Regarding his immunization history, the medical records note that
Shawn was “up to date, did not receive flu vaccine.” Pet. Ex. 4 at 58. On the same
date at 20:36 (8:36 p.m.), an “influenza risk assessment” flow sheet was completed with
the notation “No” in the column marked “Influenza Vaccine received since Sept 1.” Pet.
Ex. 4 at 166.
Shawn attended inpatient rehabilitation at Vidant Medical Center from February
19, 2016 through March 18, 2016. Pet. Ex. 4 at 224. It was noted that Shawn’s final
diagnoses was Guillain-Barre syndrome. Id. The plan was for Shawn to attend a
minimum of three hours per day, five days a week, of physical and occupational therapy
to improve his functional outcome of impaired mobility, activities of daily living, transfers
and self-care. Pet. Ex. 4 at 235. Upon discharge on March 18, 2016, Shawn had
shown improvement in his bilateral and lower extremity strength. Pet Ex. 4 at 342. He
was instructed to follow up with his new primary care physician, Dr. Kalind Parashar, in
one to two weeks after his discharge. Id. at 344.
On April 11, 2016, Shawn presented for a follow-up appointment with Dr.
Parashar after his discharge from Vidant Medical Center. Pet. Ex. 3 at 217-18. Shawn
was now being seen in outpatient rehab and his mother reported that he had been
making significant progress. Id. Shawn was noted to have the ability to ambulate but
with support. Id. He was scheduled for another follow up with Dr. Parashar in two
months. Id. at 220.
Shawn attended outpatient rehabilitation at Vidant Edgecombe Hospital from
April 12, 2016 through July 19, 2016. Pet. Ex. 6 at 311. During an evaluation dated
April 12, 2016, it is noted that Shawn was being treated after having been hospitalized
for Guillian-Barré syndrome after receiving a flu shot on December 21, 2015. Pet. Ex. 6
at 21. In another physical therapy note dated April 15, 2016, under “Subjective/History
of Illness/Injury” it states “December 2015 p[atien]t received a flu shot. P[atien]t began
to become not ambulatory… An MRI revealed current diagnosis in February 2016…”
Pet. Ex. 6 at 42. Shawn was discharged from outpatient therapy on July 19, 2016. It
was noted that it had been more than 30 days since his last visit and he was being
discharged due to poor patient attendance. Pet. Ex. 6 at 312.
On October 3, 2016, Shawn was seen by Dr. Parashar for another follow-up
appointment. Pet. Ex. 3 at 223-28. There were no concerns noted. Shawn was
reported to be sleeping well and that his appetite and behavior were unchanged. Id.
Shawn continued to work with his physical therapist and it had been recommended that
he attend psychotherapy three times a week to work on proprioception. Id. at 224. He
was instructed to follow up in six months. Id. at 225
b. Documentation regarding the December 21, 2015 vaccination
On April 5, 2016, Ms. Hinton filed a formal request with Vidant Multi-Specialty
Clinic for an amendment of the medical records that Dr. Alligood maintained for Shawn.
Pet. Ex. 3 at 236. Ms. Hinton requested that Shawn’s record be amended to contain a
notation that read “12-21-15 Follow up visit: flu vaccination administered left upper arm.
(Please check with clinic to see the flu vaccine manufacturer in use for that day, and
include the vaccine manufacturer and lot number if possible).” Id.
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On May 23, 2016, Vidant denied Ms. Hinton’s request to amend Shawn’s medical
records noting that “the record you requested be amended is accurate and complete.
Your requested amended would make the record inaccurate or incomplete.” Pet. Ex. 3
at 233-35. On June 10, 2016, Ms. Hinton filed a complaint with the U.S. Department of
Health and Human Services, Office of Civil Rights (“OCR”) regarding the alleged failure
of Vidant to amend Shawn’s medical record. Pet. Ex. 3 at 10-18. On September 23,
2016, OCR notified Ms. Hinton and Vidant that it was “closing this case without further
action, effective the date of this letter.” Pet. Ex. 3 at 11-18. On October 26, 2016,
Vidant provided correspondence to OCR stating, in part, the following:
Vidant has carefully reviewed the information provided by OCR. Vidant
has found no basis for amendment of the medical records as requested
by the complainant. While Vidant understands OCR has closed this case
effective September 23, 2016, Vidant is writing this letter to assure OCR
that Vidant is aware of its obligations…
Vidant Risk Management staff has invested considerable time and effort
in investigating complainant’s request for amendment by, among other
things, repeatedly speaking with the complainant, conferring with the
facility’s clinic medical director, reviewing the patient’s medical records,
reviewing medical records of all patients seen by Dr. Gilbert Alligood on
the day of the alleged visit, reviewing the medical records of all patients
receiving a flu vaccination at the facility on the day of the alleged visit,
interviewing pertinent staff, auditing access to the patient’s records,
reviewing payment and billing records, reviewing a record of
complainant’s telephonic request for a prescription refill from two days
after the alleged visit, requesting technical assistance from Vidant’s
electronic health record vendor to confirm the audit of the patient’s
medical record, and requesting any documentation available from
complainant. Dr. Gilbert Alligood, who alleged ordered the flu
vaccination, has also independently review the patient’s medical record.
Vidant is unable to find any indication that the patient was seen at the
Vidant Multi-Specialty Clinic – Tarboro on the date the complainant
believes the patient presented...
c. Recorded Telephone Conversations
Petitioner filed as exhibit 8, a transcript4 of her July 27, 2016 telephone
conversation with Dr. Alligood. The portions of the transcript that are relevant to this
fact ruling are set forth below:
Ms. Hinton: But umm let me ask you this Ms Manning ain’t umm Ms Manning
wanna talk about when she had called me she talking about you know
everything still remain the same.
4 The “transcript” was transcribed by petitioner’s counsel’s office staff and not by a formal court reporting
service. The undersigned has reviewed the recorded telephone call and compared the transcribed exhibit
8 with the telephone call and finds the transcription to be accurate.
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Case 1:16-vv-01140-KCD Document 63 Filed 07/31/18 Page 7 of 14
Dr. Alligood: Well, the only thing I can tell you that’s different, I talked to their
attorney and I talked to Ms. Manning today and there gonna try and get
somebody from outside to come in and look to see if they can figure out what
happened with that record so I’m hoping that, that will help us you know.
Ms. Hinton: Ok but listen though, when she marked Shawn down as a no
show.
Dr. Alligood: Uh huh.
Ms. Hinton: I’m trying to see how did that effect it.
Dr. Alligood: Yeah and that’s what I want to find out cause I don’t that it, it’s not
supposed to, so I don’t know what happened.
…
Ms. Hinton: Ok well I’m saying Dr. Alligood did you ever tell them that Shawn got
seen? Did you, did you let them know that?
Dr. Alligood: I told them exactly what I told you that Shawn was seen sometime I
remember seeing him but I don’t remember when and I do not remember if he got a
flu shot.
Ms. Hinton: Oh ok so you don’t remember your nurse coming in and giving him the
flu shot?
Dr. Alligood: No.
Ms. Hinton: In the left upper arm.
Dr. Alligood: No.
Ms. Hinton: You was standing right there by the door.
Dr. Alligood: Yep.
Ms. Hinton: You was like you gonna get a flu shot today and you were like let me get
my nurse back in to get on that flu shot.
Dr. Alligood: Yep.
Ms. Hinton: Right on December 21st.
Dr. Alligood: Now see I wish I could say I was right there looking at it but I wasn’t I
don’t know if he, what happened.
…
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Ms. Hinton: Ok so I’m saying as far as like ok if you get subpoenaed for court I
mean so basically you you just. You don’t remember that.
Dr. Alligood: No I remember seeing Shawn a lot of times and I…
Hinton: I’m talking about for the month of December when he got the flu shot
Dr. Alligood: Yeah right, and I want so bad, you don’t know how much I want so
bad to say Oh I remember exactly but I don’t. I just don’t.
Ms. Hinton: Wow but you know that he got seen? Right before you left.
Dr. Alligood: I remember, I remember that.
….
d. Deposition Testimony
On March 17, 2017, Dr. Alligood was deposed in connection with this case. The
transcript from the deposition has been filed as petitioner’s exhibit 12, and the exhibits
used during the deposition have been marked as petitioner’s exhibit 13. Dr. Alligood
confirmed that he formally left Vidant Medical Group on December 31, 2015, and
accepted a position with UNC Physicians Network in Middlesex, North Carolina. Pet.
Ex. 12 at 7-8; Deposition Transcript (“Dep. Tr.”) at 7-8. Dr. Alligood testified that the last
day that he saw patients was December 21, 2015, although he did return to the office
after December 21, 2015 to clean out his office and attend to any last pending matters.
Dep. Tr. at 143; 152-53. During his deposition, Dr. Alligood repeatedly testified that he
recalled seeing Shawn several times in 2015 but he did not recall whether he saw
Shawn on December 21, 2015 and he also did not recall whether Shawn received a flu
vaccine. Dep. Tr. at 44-45; 50-51; 59. The only other relevant information obtained
during the deposition for purposes of this fact ruling is that Dr. Alligood described the
check-in process for his office which is relevant to the hearing testimony provided by
Ms. Hinton. Dr. Alligood testified that if an established patient presented to his office for
a follow-up visit, it was typical for there to be no formal check-in process. One of his
nurses would verbally acknowledge that a patient had arrived and the patient would be
called back to an examining room. Dep. Tr. at 146-47. At the end of the visit, a patient
would typically receive an “After-Visit Summary.” Id. at 148. The majority of the
deposition testimony merely established that Dr. Alligood does not specifically recall
seeing Shawn on December 21, 2015 and he does not know whether Shawn received a
flu vaccine from his office in 2015.
e. Fact Hearing Testimony
A fact hearing was held on September 8, 2017. Ms. Hinton was the sole witness.
During her testimony, Ms. Hinton explained that in early 2015, Shawn was experiencing
a number of sleeping and behavioral issues. Hearing Transcript (“Tr.”) at 9. As a result,
she scheduled an appointment for Shawn to be seen by his primary care physician, Dr.
Alligood in July 2015. Tr. at 10. Ms. Hinton recalls that during that visit, after examining
Shawn and discussing Shawn’s behavioral issues, Dr. Alligood prescribed Clonidine
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and Trazadone and instructed Ms. Hinton to bring Shawn in for a follow-up appointment
in 30 days. Tr. at 10.
Shawn was seen again by Dr. Alligood in August 2015. Tr. at 10. Ms. Hinton
reported that Shawn’s sleeping issues had improved but that he was still experiencing
behavioral issues. Tr. at 11. According to Ms. Hinton, Dr. Alligood told her to keep
Shawn on his medications and to return for another follow-up visit in four months. Tr. at
11.
Ms. Hinton states that Shawn’s four-month follow up visit with Dr. Alligood was
scheduled for December 21, 2015 at 2:30 p.m. Tr. at 11. In November 2015, during an
appointment her daughter had scheduled with Dr. Alligood, she learned that Dr. Alligood
would be leaving Vidant at the end of the year. Tr. at 14. Ms. Hinton testified that Dr.
Alligood’s nurse told her that it would be a good idea to make sure all her children were
seen before Dr. Alligood left. Tr. at 13-14. Ms. Hinton stated that she knew Shawn
already had an appointment scheduled for December 21, 2015, so she did not need to
make an additional appointment for him. Tr. at 15. Ms. Hinton stated that she recalls
the December 21, 2015 date specifically because Shawn was out of school for his
Christmas break. Tr. at 15.
Ms. Hinton testified that on December 21, 2015, she and Shawn arrived at Dr.
Alligood’s office for the scheduled appointment. Tr. at 11-12. Ms. Hinton testified that
she stopped at the receptionist’s desk to check in with Rosella, the receptionist, who
acknowledged their arrival and stated that someone would be out to see them. Tr. at
11-12. Ms. Hinton testified that one of Dr. Alligood’s nurses called them into an
examining room and proceeded to take Shawn’s vital signs. Tr. at 13. When Dr.
Alligood arrived, he asked about Shawn’s sleeping habits and how Shawn was doing
with the medication that was prescribed at his prior visits. Tr. at 13. Ms. Hinton testified
that she told Dr. Alligood that the medication seemed to be helping Shawn sleep. She
recalls telling Dr. Alligood that she did not give Shawn his sleeping medication every
night, especially if he had fallen asleep without it, because she did not “want his body to
get immune to the medicine”. Tr. at 13. According to Ms. Hinton, Dr. Alligood
conducted a physical examination of Shawn. Tr. at 13. Ms. Hinton also recalls having a
conversation with Dr. Alligood where she asked him why he was leaving Vidant. Tr. at
96. She stated that Dr. Alligood told her that he finally got a chance to be out on his
own and he was taking the opportunity. Tr. at 96. Ms. Hinton specifically recalls that at
the end of the examination, Dr. Alligood asked her if Shawn would be receiving a flu
vaccination, to which she replied yes. Tr. at 12. Ms. Hinton testified that Dr. Alligood
called his nurse in to administer the vaccine. Tr. at 12. Ms. Hinton states that the nurse
administered the vaccine to Shawn’s left upper arm. Tr. at 12. When asked whether
she recalled the name of the nurse who administered the vaccine, Ms. Hinton stated
that the nurse’s name was Lisa. Tr. at 12. Ms. Hinton stated that when she and Shawn
left the exam room, she stopped by Rosella’s desk who informed her that information
about Shawn’s new primary care physician would be mailed to her. Tr. at 100.
At the hearing and in order to provide additional evidence of her whereabouts on
December 21, 2015, Ms. Hinton produced her telephone records from December 21,
2015 to demonstrate that she was present at Dr. Alligood’s office at 2:30 p.m. for
Shawn’s appointment. Tr. at 16. Ms. Hinton testified that she was on the phone for
most of the day because she was trying to contact Social Services because she did not
9

Case 1:16-vv-01140-KCD Document 63 Filed 07/31/18 Page 10 of 14
receive her monthly benefit check which she was expecting on December 19, 2015. Tr.
at 17. She also explained that she was speaking with a temp agency that had called
her about an available job, and she also had several telephone conversations with her
grandmother, and her friend, Felicia. Tr. at 17. Ms. Hinton testified that there are no
records of telephone calls between 2:41 p.m. and 3:09 p.m. on December 21, 2015,
because that was the time that Shawn was being seen by Dr. Alligood. Tr. at 18-19.
In the months following Shawn’s hospitalization, Ms. Hinton attempted to obtain
documentation of Shawn’s December 2015 flu shot from Dr. Alligood’s office. She
testified that she first went to Vidant’s billing office to obtain a printout of Shawn’s
medical encounters for 2015. Tr. at 31. It was then that she learned that Shawn had
been marked as a “no show” for the December 21, 2015 appointment. Tr. at 31. Ms.
Hinton was informed that Shawn had indeed had an appointment scheduled for
December 21, 2015 at 2:30 p.m., but the printout Ms. Hinton received marked him as a
“no show.” Tr. at 31-32. When Ms. Hinton told the billing staff member that Shawn was
present for that appointment, she was directed to Cynthia Manning, Vidant’s risk
management person. Tr. at 32. Ms. Hinton testified that she was directed by Ms.
Manning to complete a form requesting an amendment to Shawn’s medical records
regarding the December 21, 2015 visit. Tr. at 34. Ms. Hinton completed the form and
was informed that an investigation would be conducted into her request. Tr. at 34.
Ms. Hinton also testified that as soon as she learned that Shawn had been
marked as a no show for his December 21, 2015 appointment, she went to Dr.
Alligood’s office to speak with him. Tr. at 33. She testified that Dr. Alligood stated that
he did not understand how there was no documentation of the visit but that he would try
“to make it right.” Tr. at 33. Thereafter, Ms. Hinton stated that she contacted Dr.
Alligood on numerous occasions to address the situation. Tr. at 35.
In May 2016, Ms. Hinton received a letter from Vidant stating that her request to
amend Shawn’s medical records for December 21, 2015 had been denied. Tr. at 36.
After receiving this letter, Ms. Hinton testified that she tried contacting Dr. Alligood again
to correct the situation. Tr. at 36. She stated that she contacted Dr. Alligood’s office at
least once a week for six weeks. Tr. at 37. On June 14, 2016, Ms. Hinton testified that
she went to Dr. Alligood’s office to try to speak to him in person. Tr. at 37. She was
informed by Dr. Alligood that he could not do anything without speaking with Vidant first.
Tr. at 38. Ms. Hinton continued to call Dr. Alligood in July 2016. She testified that she
began recording her telephone conversations with him to document his responses since
he seemed to be changing his account of the events. Tr. at 38-39.
Ms. Hinton filed a complaint with HIPAA against Vidant. Tr. at 46. She testified
that she filed this complaint because she felt that her son’s rights were violated. Tr. at
48. Ms. Hinton stated that Dr. Alligood told her he was not contacted or interviewed by
Vidant regarding her request to amend Shawn’s medical records. Tr. at 47. Even after
speaking with Dr. Alligood in person, Ms. Hinton continued to contact him. She testified
that because Dr. Alligood was the physician who saw Shawn on December 21, 2015, he
was the only person who could correct the error that had been made, and that is why
she continued calling his office. Tr. at 51. Ms. Hinton testified that she worked with her
attorney to prepare an affidavit for Dr. Alligood’s signature so that he could confirm that
he saw Shawn on December 21, 2015 and that Shawn received a flu vaccination. Tr. at
56. Dr. Alligood refused to sign the affidavit and he instructed Ms. Hinton to stop calling
10

Case 1:16-vv-01140-KCD Document 63 Filed 07/31/18 Page 11 of 14
him because Vidant was not going to change their decision to deny her request to
amend Shawn’s medical records. Tr. at 56-57.
On cross-examination, Ms. Hinton insisted that Dr. Alligood employed a nurse
named Lisa. Dr. Alligood testified in his deposition that he did not have any nurses
named Lisa. Tr. at 59. He stated that he employed two nurses, one named Kim and
another named Angie. Pet. Ex. 12 at 91; Dep. Tr. at 91. Ms. Hinton also testified that
she attempted to obtain a listing of all the other patients that were seen by Dr. Alligood
on December 21, 2015, but her request was denied due to patient privacy. Tr. at 62-63.
Ms. Hinton also testified that she attempted to reach out to Dr. Alligood’s office staff
including Rosella and Dr. Alligood’s nurses, but that they had all been instructed not to
speak to Ms. Hinton. Tr. at 72. When questioned about the notation in Dr. Alligood’s
records that Ms. Hinton called the office to request a refill of Shawn’s Trazadone, Ms.
Hinton stated that she did not recall calling Dr. Alligood’s office on December 23, 2015
to request a refill. Tr. at 103.
Also on cross-examination, Ms. Hinton was asked about the documentation in
the medical records, petitioner’s exhibit 4 at 58, completed by Dr. Robin Collin that
states that Shawn’s vaccinations were “up to date. Did not receive flu vaccination.” Tr.
at 107. Ms. Hinton testified that she specifically told the physician that Shawn had
received the flu vaccine and that the notation was an error. Tr. at 107-08.
III. Analysis
a. Standard of Proof to be Applied
A Vaccine Act petitioner must, as a threshold matter in advancing a claim for
damages, establish by a preponderance of the evidence receipt of “a vaccine set forth
in the Vaccine Injury Table.” § 300aa–11(c)(1)(A). The preponderance of the evidence
standard means that an allegation is established to be “more likely than not.” Moberly v.
Sec'y of Health & Human Servs., 592 F.3d 1315, 1322 n.2 (Fed.Cir.2010).
Although contemporaneous documentation of vaccination from a healthcare
provider is the best evidence that a vaccination occurred, it is not absolutely required in
all cases. Centmehaiey v. Sec'y of Health & Human Servs., 32 Fed. Cl. 612, 621 (1995)
(“[t]he lack of contemporaneous documentary proof of a vaccination ... does not
necessarily bar recovery”). Indeed, as Vaccine Rule 2 states, “[i]f the required medical
records are not submitted, the petitioner must include an affidavit detailing the efforts
made to obtain such records and the reasons for their unavailability.” Vaccine Rule
2(c)(2)(B)(i). Furthermore, if a petitioner's claim is “based in any part on the
observations or testimony of any person, the petitioner should include the substance of
each person's proposed testimony in a detailed affidavit(s) supporting all elements of
the allegations made in the petition.” Vaccine Rule 2(c)(2)(B)(ii).
Special masters have thus found that vaccine administration occurred even in the
absence of direct documentation. In such cases, preponderant evidence was provided
in the form of other medical records and/or witness testimony. For example,
corroborative, though backward-looking, medical notations have been found to tip the
11

Case 1:16-vv-01140-KCD Document 63 Filed 07/31/18 Page 12 of 14
evidentiary scale in favor of vaccine receipt. Lamberti v. Sec'y of Health & Human
Servs, No. 99–507V, 2007 WL 1772058, at *7 (Fed.Cl.Spec.Mstr. May 31, 2007)
(finding multiple medical record references to vaccine receipt constituted adequate
evidence of administration); Groht v. Sec'y of Health & Human Servs, No. 00–287V,
2006 WL 3342222, at *2 (Fed.Cl.Spec.Mstr. Oct. 30, 2006) (finding a treating
physician's note—“4/30/97—Hep B. inj. # 1 (not given here) (pt. wanted this to be
charted)”—to be sufficient proof of vaccination); Wonish v. Sec'y of Health & Human
Servs., No. 90–667V, 1991 WL 83959, at *4 (Cl.Ct.Spec.Mstr. May 6, 1991) (finding
parental testimony “corroborated strongly by medical records [referring] back to the
[vaccination]” to be sufficient to establish vaccine administration).
In addition to corroborative medical records, witness testimony can also help
establish a sufficient basis for a finding that a vaccine was administered as alleged.
Alger v. Sec'y of Health & Human Servs, No. 89–31V, 1990 WL 293408, at *2, 7
(Fed.Cl.Spec.Mstr. Mar. 14, 1990) (oral testimony from a parent and the doctor who
administered the vaccine was “more than adequate to support a finding that the vaccine
was administered”). The Court of Federal Claims has recognized the existence of
precedent supporting the proposition that a court may base a finding of vaccination on
lay testimony. Epstein v. Sec'y of Health & Human Servs., 35 Fed. Cl. 467, 478
(Fed.Cl.1996); see also Brown v. Sec'y of Health & Human Servs., 18 Cl.Ct. 834, 839–
40 (1989) (proof of vaccination in the absence of contemporaneous medical records
established via testimony of petitioner's parent, her personal calendar, and evidence of
a charge for the vaccine on the physician's billing statement), rev'd on other grounds,
920 F.2d 918 (Fed.Cir.1990); Gambo v. Sec'y of Health & Human Servs., No. 13-691V,
2014 WL 7739572, at *3 (Fed. Cl. Dec. 18, 2014).
In the present case, the undersigned finds that Ms. Hinton has presented barely
enough circumstantial evidence to conclude that Shawn more likely than not received
the flu vaccine on December 21, 2015. The circumstances of this case are troubling,
and the undersigned acknowledges that the lack of documentation regarding the
December 21, 2015. However, the undersigned finds that Ms. Hinton is a highly
credible witness and that her actions and the circumstantial evidence she obtained have
fulfilled her duty to produce preponderant proof of vaccination.
b. Finding of Fact Regarding Proof of Vaccination
The undersigned first acknowledges respondent’s arguments that while Dr.
Alligood’s records show that Shawn was scheduled for an appointment on December
21, 2015, Shawn is marked as a “no show” for the appointment. See Pet. Ex. 9 at 1.
There is no dispute that the billing records associated with Dr. Alligood’s office and
Shawn’s Medicaid and BlueCross BlueShield insurance records do not reflect a charge
for a December 21, 2015 encounter or for any vaccination administered on that date.
See Pet. Ex. 16, 17; Pet Ex. 3 at 30. In addition, there are two reference in Shawn’s
hospitalization records that indicate he did not receive a flu vaccination. See Pet. Ex. 4
at 58 (“up to date, did not receive flu vaccine.”); Pet. Ex. 4 at 166 (the “influenza risk
assessment” flow sheet was completed with the notation “No” in the column marked
“Influenza Vaccine received since Sept 1). However, Ms. Hinton has presented, in a
very detailed and credible account, her recitation of the events which occurred on
12

Case 1:16-vv-01140-KCD Document 63 Filed 07/31/18 Page 13 of 14
December 21, 2015, and the undersigned finds her testimony to be highly credible for
the reasons set forth below.
First, the actions that Ms. Hinton took and the lengths that she went through to
obtain evidence, any evidence that her son was seen on December 21, 2015, are
simply not the actions that an individual would take if she did not believe the events
occurred as she recalled. In her affidavit, Ms. Hinton details each of the people she
contacted and the actions she took to establish that Shawn was seen by Dr. Alligood on
December 21, 2015 and that he received a flu vaccination on that day, including:
contacting and appearing in person at Vidant to obtain a copy of Shawn’s vaccine
record and any records of his visit on December 21, 2015; filing a formal request for an
amendment of Shawn’s records with Vidant and understanding that a formal
investigation would take place into her request; calling and attempting to see Dr.
Alligood on many, many instances (Dr. Alligood testified that Ms. Hinton called his office
10-15 times a day; see Pet. Ex. 12 at 42); filing a complaint with HIPAA to report a
violation of Vidant’s record-keeping practices; filing a formal complaint with the Office of
Civil Rights; contacting her private insurance company and Medicaid to obtain any
documentation regarding the December 21, 2015 visit, and even resorting to recording
her telephone conversations with Dr. Alligood. See Pet. Ex. 10. These are actions of a
dedicated mother demanding for what she believed was an accurate record for her
child. While Ms. Hinton’s telephone records from December 21, 2015, are certainly not
definitive proof that she was at Dr. Alligood’s office with Shawn on December 21, 2015,
the records do provide some support for her claim. In addition, there are two medical
record references indicating that Shawn did receive a flu vaccine prior to his onset of
GBS. Pet. Ex. 6 at 21, 42.5
In reviewing Dr. Alligood’s deposition transcript, it is clear that Dr. Alligood does
not recall whether Shawn was seen on December 21, 2015, or whether Shawn received
a flu shot on that date or any time in 2015. However, Dr. Alligood does seem to imply
that he saw Shawn in late 2015 before he left Vidant in December 2015; Pet. Ex. 8.
There is no dispute that Shawn had an appointment scheduled for December 21, 2015
at 2:30 p.m. Ms. Hinton testified that she was not working on that date and that Shawn
was out of school on December 21, 2015 for his Christmas break. Ms. Hinton
described, in detail, the events of the morning of December 21, 2015 leading up to
Shawn’s appointment, clear details of the appointment with Dr. Alligood, including
specifics of her conversations with Dr. Alligood and specific information about the
administration of the flu vaccine by Dr. Alligood’s nurse to Shawn.
There are definitely some questionable occurrences in this case, such as Dr.
Alligood’s denial of having a nurse named Lisa, the lack of documentation from any
source regarding the December 21, 2015 appointment, and the two notations in the
medical records that indicate Shawn may have not received a flu vaccine. However, in
reviewing the facts of this case, the testimony and actions of Ms. Hinton, and the
circumstantial evidence, the undersigned finds, as a whole, that the evidence presented
by Ms. Hinton satisfies the preponderance of the evidence standard. The undersigned
therefore finds that Shawn received a flu vaccination on December 21, 2015.
5 The undersigned is aware, as respondent has noted, that these medical references occur after Ms.
Hinton retained counsel.
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Case 1:16-vv-01140-KCD Document 63 Filed 07/31/18 Page 14 of 14
IV. Conclusion
Based upon the undersigned’s review of the record, including the affidavits,
witness statements, deposition testimony, and testimony from the fact hearing, the
undersigned findings that petitioner has established by preponderant evidence that
Shawn’Quavious D’Adrez received an influenza vaccination on December 21, 2015.
Petitioner has thus satisfied the burden as to receipt of a vaccine listed on the Vaccine
Injury Table. See 42 U.S.C. § 300aa11(C)(1)(A) and (B).
The parties are encouraged to consider an informal resolution of this claim.
Petitioner shall file a joint status report by Friday, April 13, 2018, updating the
Court on the status of the parties’ settlement discussions.
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
14

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DOCUMENT 2: USCOURTS-cofc-1_16-vv-01140-1
Date issued/filed: 2018-09-05
Pages: 2
Docket text: PUBLIC ORDER/RULING (Originally filed: 05/29/2018) regarding 57 Ruling on Entitlement ( Signed by Chief Special Master Nora Beth Dorsey. )(mpj) Service on parties made.
--------------------------------------------------------------------------------
Case 1:16-vv-01140-KCD Document 68 Filed 09/05/18 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-1140V
Filed: May 29, 2018
UNPUBLISHED
TRAMELLA HINTON, as mother, and
natural guardian of Special Processing Unit (SPU);
SHAWN’QUAVIOUS A’DREZ Ruling on Entitlement; Respondent
HINTON, an incapacitated and Will Not Defend; Causation-In-Fact;
disabled person, Influenza (Flu) Vaccine; Guillain-
Barre Syndrome (GBS)
Petitioner,
v.
SECRETARY OF HEALTH
AND HUMAN SERVICES,
Respondent.
Bruce William Slane, Law Offices, White Plains, NY, for petitioner.
Colleen Clemons Hartley, U.S. Department of Justice, Washington, DC, for respondent.
RULING ON ENTITLEMENT1
Dorsey, Chief Special Master:
On September 14, 2016, petitioner, Tramella Hinton, as the mother and natural
guardian of Shawn’Quavious A’drez Hinton (“Shawn”) 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 her son suffered injuries, including the
Acute Inflammatory Demyelinating Polyneuropathy (“AIDP”) variant of Guillain-Barré
syndrome (“GBS”) that was caused-in-fact by the adverse effects of an influenza (“flu”)
1 Because this unpublished ruling contains a reasoned explanation for the action in this case, the
undersigned intends 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). 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, the undersigned agrees that the identified material fits
within this definition, the undersigned 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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
1

Case 1:16-vv-01140-KCD Document 68 Filed 09/05/18 Page 2 of 2
vaccination Shawn received on December 21, 2015. Amended Petition at 1. The case
was assigned to the Special Processing Unit of the Office of Special Masters.
On May 25, 2018, respondent filed his Rule 4(c) report in which he states that he
will not defend this case. Respondent’s Rule 4(c) Report at 7. Specifically, respondent
states that “[m]edical personnel at the DICP have reviewed the petition and medical
records filed in the case. DICP chooses not to defend this case.” Id. at 7. Respondent
further “recommends that the Court issue an entitlement decision in this matter, where
respondent chooses not to defend this case.” Id. at 8.
In view of respondent’s position and the evidence of record, the
undersigned finds that petitioner is entitled to compensation.
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
2

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DOCUMENT 3: USCOURTS-cofc-1_16-vv-01140-2
Date issued/filed: 2020-05-14
Pages: 2
Docket text: PUBLIC ORDER/RULING (Originally filed: 4/3/2020) regarding 149 Findings of Fact & Conclusions of Law. Signed by Special Master Nora Beth Dorsey. (fs) Service on parties made.
--------------------------------------------------------------------------------
Case 1:16-vv-01140-KCD Document 160 Filed 05/14/20 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-1140V
TRAMELLA HINTON, as mother and
natural guardian of SHAWN’QUAVIOUS Special Master Nora Beth Dorsey
A’DREZ HINTON, an incapacitated and
disabled person,
Filed: April 3, 2020
Petitioner,
v.
Compensation Under the Vaccine
SECRETARY OF HEALTH AND Program; Offset; Section 15(g);
HUMAN SERVICES, Claim of Subrogation by Private Health
Care Insurance; Section 15(h)
Respondent.
RULING ON PRIVATE HEALTH CARE INSURANCE OFFSET1
At an April 3, 2020 telephonic status conference, counsel for the parties discussed the
need for a ruling concerning how §§ 15(g) and (h) of the National Childhood Vaccine Injury
Compensation Program (the “Vaccine Act” or “Program”)2 pertains to the present case. Order,
ECF No. 147. Petitioner’s counsel received a letter from Anthem BlueCross/BlueShield stating
that it was placing petitioner on notice of the Plan’s subrogation/reimbursement rights.
Petitioner’s Exhibit (“Pet. Ex.”) 50, ECF No. 145. The letter states that as of August 15, 2018,
$183,843.40 in medical benefits have been paid by the Plan on behalf of petitioner. Thus,
petitioner seeks to clarify whether her health care insurer is entitled to reimbursement of benefits
that it has paid if petitioner recovers monies in this Vaccine case.
Under the Vaccine Program, a petitioner may recover actual and projected
unreimbursable expenses, lost wages, and pain and suffering, and an award of $250,000 if the
1 Because this unpublished ruling contains a reasoned explanation for the action in this case, the undersigned intends
to post it on the website of the United States Court of Federal Claims, in accordance with the E-Government Act of
2002 § 205, 44 U.S.C. § 3501 (2006). In accordance with the Vaccine Rules, each party has 14 days within which
to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial
in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of
which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Further, consistent with the
rule requirement, a motion for redaction must include a proposed redacted ruling. If, upon review, the undersigned
agrees that the identified material fits within the requirements of that provision, such material will be redacted from
public access.
2 The National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42
U.S.C. §§ 300aa-10 et seq. Hereafter, individual section references will be to 42 U.S.C. § 300aa of the Act.

Case 1:16-vv-01140-KCD Document 160 Filed 05/14/20 Page 2 of 2
injury resulted in death. §15(a); see also Helman v. Sec’y of Health & Human Servs., No. 10-
813V, 2014 WL 3589564, at *1 (Fed. Cl. Spec. Mstr. June 24, 2014) (citing Bruesewitz v. Wyeth,
LLC, 131 S.Ct. 1068, 1074 (2011)).
This compensation is then limited by subsequent sections. Punitive and exemplary
damages are prohibited, and for unreimbursable expenses and pain and suffering, compensation
may be provided only for the “health, education, or welfare of the person who suffered the
vaccine-related injury.” §15(d).
Additionally, compensation is offset by amounts paid or expected to be paid under an
insurance policy and certain State or Federal programs. §15(g).3 Thus, the Vaccine Act is a
secondary payer to petitioner’s health care insurance. Any award paid to petitioner would not
include amounts paid or expected to be paid under his health care insurance policy.
Moreover, the Vaccine Act prohibits any health insurance policy from “mak[ing]
payment of benefits under the policy secondary to the payment of compensation under the
Program.” Therefore, the plain language of the Vaccine Act does not authorize reimbursement
of the benefits paid under petitioner’s health care insurance policy. §15(h).
On May 29, 2018, the undersigned ruled that petitioner is entitled to compensation under
the Vaccine Act. Hinton v. Sec'y of Health & Human Servs., No. 16-1140V, 2018 WL 4391071
(Fed. Cl. May 29, 2018). I rule that pursuant to the Vaccine Act, petitioner’s insurer is
prohibited from recouping any payments made for treatment in connection with
Shawn’Quavious A’Drez Hinton’s vaccine injury from petitioner’s forthcoming damages
award.
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Special Master
3 Section 15(g) states:
Payment of compensation under the Program shall not be made for any
item or service to the extent that payment has been made, or can
reasonably be expected to be made, with respect to such item or service
(1) under any State compensation program, under an insurance policy,
or under any Federal or State health benefits program (other than under
title XIX of the Social Security Act [42 U.S.C. 1396 et seq.]), or (2) by an
entity which provides health services on a prepaid basis.
2

================================================================================
DOCUMENT 4: USCOURTS-cofc-1_16-vv-01140-4
Date issued/filed: 2022-12-27
Pages: 5
Docket text: PUBLIC DECISION (Originally filed: 11/29/2022) regarding 264 DECISION of Special Master. Signed by Special Master Nora Beth Dorsey. (kis) Service on parties made.
--------------------------------------------------------------------------------
Case 1:16-vv-01140-KCD Document 265 Filed 12/27/22 Page 1 of 5
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: November 29, 2022
* * * * * * * * * * * * * * *
TRAMELLA HINTON, as general * PUBLISHED
guardian of SHAWN’QUAVIOUS *
A’DREZ HINTON, *
*
Petitioner, * No. 16-1140V
*
v. * Special Master Dorsey
*
SECRETARY OF HEALTH * Decision Awarding Damages; Influenza
AND HUMAN SERVICES, * (“Flu”) Vaccine; Guillain-Barré Syndrome
* (“GBS”); Pain and Suffering; Future Pain
Respondent. * and Suffering; Medicaid Lien.
*
* * * * * * * * * * * * * * *
Bruce W. Slane, Law Office of Bruce W. Slane, White Plains, NY, for Petitioner.
Zoe Wade, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
I. INTRODUCTION
On September 14, 2016, Tramella Hinton (“Petitioner”), as mother and natural guardian
of Shawn’Quavious A’dres Hinton (“Shawn”) filed a petition under the National Vaccine Injury
Compensation Program (“Vaccine Act” or “the Program”),2 42 U.S.C. § 300aa-10 et seq.
(2012). Petitioner alleges that Shawn suffered Guillain-Barré Syndrome (“GBS”) as a result of
1 Because this Decision contains a reasoned explanation for the action in this case, the
undersigned is 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, the undersigned
agrees that the identified material fits within this definition, the undersigned will redact such
material from public access.
2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National
Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended,
42 U.S.C. §§ 300aa-10 to -34 (2012). All citations in this Decision to individual sections of the
Vaccine Act are to 42 U.S.C. § 300aa.
1

Case 1:16-vv-01140-KCD Document 265 Filed 12/27/22 Page 2 of 5
an influenza (“flu”) vaccine administered to him on December 21, 2015. Amended Petition at 1
(ECF No. 35). On May 29, 2018, a Ruling on Entitlement issued, finding Petitioner entitled to
compensation. Ruling on Entitlement dated May 29, 2018 (ECF No. 57). This Decision awards
compensation for Shawn’s vaccine injury.
II. BACKGROUND
Since the Ruling on Entitlement issued, the parties have been unable to resolve damages.
Order dated Oct. 8, 2021 (ECF No. 209). At issue was pain and suffering and the Medicaid lien
amount. Petitioner filed motion for a ruling on the record regarding damages, and both parties
submitted briefs. Petitioner’s Motion for Ruling on Damages (“Pet. Mot.”), filed Mar. 4, 2022
(ECF No. 233); Respondent’s Response to Pet. Mot. (“Resp. Response”), filed May 26, 2022
(ECF No. 240); Pet. Reply to Resp. Response (“Pet. Reply”), filed June 9, 2022 (ECF No. 241).
Petitioner proposed a total award for past pain and suffering in the amount of
$210,000.00, and future pain and suffering in the amount of $1,000.00 annually for Shawn’s life
expectancy, or until the statutory cap is met. Pet. Mot. at 31, 34. Petitioner requested full
payment of Shawn’s Medicaid lien, $1,665.50. Id. at 1. Respondent considered $66,500.00 to
be an appropriate pain and suffering award. Resp. Response at 1. Regarding the Medicaid lien,
Respondent asserted that the total amount of relevant charges to be reimbursed was $1,118.14.
Id. Respondent reasoned that the remaining amount claimed by Petitioner included dates of
service prior to the onset of Shawn’s GBS or were unrelated to the treatment of Shawn’s GBS,
and therefore, should not be compensated. Id. at 38-39.
On September 22, 2022, the undersigned held a telephonic hearing where she gave an
oral ruling on damages. Order dated Sept. 23, 2022 (ECF No. 248). Based on consideration of
the record as a whole, the undersigned found $160,000.00 represents a fair, reasonable, and
appropriate amount of compensation for Petitioner’s past pain and suffering; and for future pain
and suffering, $500.00 per year for Petitioner’s life expectancy, reduced to net present value. Id.
at 1. Regarding the Medicaid lien amount, the undersigned found $1,296.02 to be the
appropriate amount for reimbursement. Id.
An official recording of the proceeding was taken by a court reporter and the undersigned
fully adopts the transcript in this Decision. See Transcript “(Tr.”), filed Oct. 7, 2022.
Following the oral ruling, the undersigned ordered the parties to file a joint status report
converting the award of future pain and suffering to its net present value and to report on all
other outstanding items of damages that remain unresolved, if any. Order dated Sept. 23, 2022
(ECF No. 248). A separate order was also issued to forward the ruling on the Medicaid lien to
the Medicaid office. Order dated Sept. 23, 2022 (ECF No. 249)
On October 27, 2022, the parties filed a joint status report in which they agreed that the
net present value of Petitioner’s future pain and suffering award is $16,493.68. Joint Status
Report, filed Oct. 27, 2022 (ECF No. 254). Petitioner also confirmed the Court’s Order
containing the Medicaid lien information was provided to the Medicaid office. Id. Thereafter,
Petitioner filed an updated Medicaid lien letter (dated November 11, 2022) reflecting an adjusted
2

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lien amount of $1,296.02. Pet. Exhibit (“Ex.”) 78 at 2.3 On November 28, 2022, Respondent
confirmed that $16,493.68 represents the net present value of the proposed award for future pain
and suffering and requested a final damages decision. Resp. Status Report, filed Nov. 28, 2022
(ECF No. 263).
This written Decision memorializes the undersigned’s oral ruling and provides an
abbreviated recitation for the basis of the Decision. See Hebern v. United States, 54 Fed. Cl. 548
(2002) (formalizing a bench ruling).
III. DISCUSSION AND ANALYSIS
There is no formula for assigning a monetary value to a person’s pain and suffering and
emotional distress. I.D. v. Sec’y of Health & Hum. Servs., No. 04-1593V, 2013 WL 2448125, at
*9 (Fed. Cl. Spec. Mstr. May 14, 2013) (“Awards for emotional distress are inherently subjective
and cannot be determined by using a mathematical formula.”); Stansfield v. Sec’y of Health &
Hum. Servs., No. 93-0172V, 1996 WL 300594, at *3 (Fed. Cl. Spec. Mstr. May 22, 1996)
(“[T]he assessment of pain and suffering is inherently a subjective evaluation.”). Factors to be
considered when determining an award for pain and suffering include: (i) awareness of the
injury; (ii) severity of the injury; and (iii) duration of the suffering. I.D., 2013 WL 2448125, at
*9 (citing McAllister v. Sec’y of Health & Hum. Servs., No. 91-1037V, 1993 WL 777030, at *3
(Fed. Cl. Spec. Mstr. Mar. 26, 1993), vacated & remanded on other grounds, 70 F.3d 1240 (Fed.
Cir. 1995)).
The undersigned may look to prior pain and suffering awards to aid in the resolution of
the appropriate amount of compensation for pain and suffering in this case. See, e.g., Doe 34 v.
Sec’y of Health & Hum. Servs., 87 Fed. Cl. 758, 768 (2009) (finding that “there is nothing
improper in the chief special master’s decision to refer to damages for pain and suffering
awarded in other cases as an aid in determining the proper amount of damages in this case”).
The undersigned may also rely on her experience adjudicating similar claims. Hodges v. Sec’y
of Health & Hum. Servs., 9 F.3d 958, 961 (Fed. Cir. 1993) (noting that Congress contemplated
the special masters would use their accumulated expertise in the field of vaccine injuries to judge
the merits of individual claims).
As explained in the oral ruling, to assist in the determination of an appropriate award of
damages in this case, the undersigned reviewed the parties’ respective briefs, medical records,
expert reports, and all relevant filings.4 Entries by physical therapists, occupational therapists,
and physicians, most of whom are neurologists, were particularly helpful in the undersigned’s
ruling as they provided specific objective information about Shawn’s condition. Thus, the
compensation awarded is based on the particular facts and circumstances in this case, with due
consideration given to the circumstances and damages awarded in other cases cited by the parties
and other relevant cases, as well as knowledge and experience adjudicating similar cases.
3 This amount is consistent with the undersigned’s ruling on the matter.
4 The relevant facts are summarized in the parties’ submissions and will not be repeated. For a
complete summary, see Tr.; Pet. Mot.; Resp. Response.
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In considering the factors for determining an award of pain and suffering, the
undersigned did not find awareness of suffering an issue here. With respect to the severity and
duration factors, the undersigned explained in the oral ruling that Shawn has suffered from GBS
and its residual sequela for well over six years. He experienced pain, weakness, and difficulty
walking. He was hospitalized, underwent a lumbar puncture, received two rounds of IVIg, and
has had extensive physical and occupational therapy. The undersigned found the sequela of
Shawn’s GBS to be permanent. Tr. 13-14 (citing Pet. Ex. 71 at 5 (Dr. Bodner opining Shawn’s
“lower extremity weakness and gait difficulty would persist for the duration of his life”); Pet. Ex.
73 at 5 (Dr. Ferrell finding nerve cell damage caused by Shawn’s GBS to be non-regenerative);
Pet. Ex. 57 at 6 (Dr. Kolychev noting Shawn’s “continued pain + gait disorder” were attributable
to his GBS)).
In addition, the undersigned considered prior pain and suffering awards in other flu
vaccine and GBS cases. In Taylor and Robinson, the Petitioners were awarded $160,000.00 in
past pain and suffering but were not awarded future pain and suffering. Taylor v. Sec’y of
Health & Hum. Servs., No. 18-0100V, 2021 WL 1346059, at *7 (Fed. Cl. Spec. Mstr. Mar. 12,
2021); Robinson v. Sec’y of Health & Hum. Servs., No. 18-88V, 2020 WL 5820967, at *7 (Fed.
Cl. Spec. Mstr. Aug. 27, 2020). Shawn and the Petitioners in Taylor and Robinson had similar
acute presentations, but unlike Shawn, those Petitioners had rather short recoveries with few
residual symptoms. Taylor, 2021 WL 1346059, at *5; Robinson, 2020 WL 5820967, at *6.
Shawn’s recovery was more like the Petitioner’s recovery in Setaro. Both Shawn and the
Petitioner in Setaro had outpatient physical therapy and neither returned to their prior level of
functioning. Setaro v. Sec’y of Health & Hum. Servs., No. 19-0207V, 2021 WL 1440207, at *3
(Fed. Cl. Spec. Mstr. Mar. 16, 2021). There, the Petitioner was awarded $160,000.00 in past
pain and suffering and $500.00 annually for residual symptoms and future pain and suffering.
Id. at *5.
The official recording of the undersigned’s oral ruling includes further discussion of the
various comparable cases as well as specific facts relating to Petitioner’s medical history and
experience that further informed the decision awarding damages herein. Tr. 14-16, 18-19 (citing
Gruba v. Sec’y of Health & Hum. Servs., No. 19-1157V, 2021 WL 1925630 (Fed. Cl. Spec.
Mstr. Apr. 13, 2021); Johnson v. Sec’y of Health & Hum. Servs., No. 16-1356V, 2018 WL
5024012 (Fed. Cl. Spec. Mstr. July 20, 2018); Presley v. Sec’y of Health & Hum. Servs., No. 17-
1888V, 2020 WL 1898856 (Fed. Cl. Spec. Mstr. Mar. 23, 2020)).
Thus, based on consideration of the record as a whole, the undersigned finds $160,000.00
represents a fair, reasonable, and appropriate amount of compensation for Petitioner’s past pain
and suffering; and for future pain and suffering, $500.00 per year for Petitioner’s life expectancy,
reduced to net present value. See § 15(f)(4)(A) (requiring that future compensation awards be
reduced to their net present value). In the oral ruling, the undersigned discussed the calculation
of Shawn’s life expectancy (approximately 50.1 years)5 and the rate at which the future pain and
5 This is based on specific data for non-Hispanic black males Shawn’s age from data tables
compiled by the National Center for Health Statistics. Elizabeth Arias & Jiaquan Xu, Nat’l Ctr.
for Health Statistics, Ctrs. for Disease Control & Prevention, United States Life Tables, 2020, 71
Nat’l Vital Stat. Reps. 36 tbl.14 (2022).
4

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suffering award would be discounted at if the parties did not agree on the net present value
amount. Tr. 19-20; see also Order dated Sept. 23, 2022, at 1 (ECF No. 248). The parties
subsequently agreed a lump sum of $16,493.68 represents the net present value of the award for
Shawn’s future pain and suffering. Resp. Status Report, filed Nov. 28, 2022.
Regarding the Medicaid lien amount, the undersigned finds $1,296.02 to be the
appropriate amount for reimbursement. Upon review of the Medicaid lien letter and itemized
claims (Pet. Ex. 76 at 3-4), as well as the corresponding medical records, the undersigned found
there were some expenses itemized that should not be reimbursed as they do not relate to
Shawn’s GBS. Tr. 20-21. Following the oral ruling, the Medicaid lien amount was updated.
Pet. Ex. 78 at 2.
IV. CONCLUSION
In light of all the above, the undersigned awards the following compensation:
(1) A lump sum payment in the amount of $176,493.68, representing $160,000.00 for
past/actual pain and suffering and $16,493.68 for future pain and suffering, in
the form of a check payable to Petitioner, Tramella Hinton, as general guardian
of Shawn’Quavious A’dres Hinton (Shawn).
(2) A lump sum payment in the amount of $1,296.02, representing compensation for
satisfaction of the North Carolina Division of Health Benefits Medicaid lien for
services rendered on behalf of Shawn, in the form of a check payable jointly to
Petitioner and:
Division of Health Benefits
Office of the Controller
2022 Mail Service Center
Raleigh, NC 27699-2022
This amount represents compensation for all damages that would be available under 42
U.S.C. § 300aa-15(a).
The Clerk of Court is directed to enter judgment in accordance with this Decision.6
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
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

================================================================================
DOCUMENT 5: USCOURTS-cofc-1_16-vv-01140-5
Date issued/filed: 2023-06-05
Pages: 20
Docket text: JUDGE VACCINE REPORTED OPINION re: 271 Order on Motion for Review, Judge Vaccine Order/Opinion. Signed by Judge Kathryn C. Davis. (apkt) Service on parties made.
--------------------------------------------------------------------------------
Case 1:16-vv-01140-KCD Document 274 Filed 06/05/23 Page 1 of 20
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
___________________________________
)
TRAMELLA HINTON, as general )
guardian of SHAWN’QUAVIOUS )
A’DREZ HINTON, )
)
Petitioner, ) No. 16-1140
)
v. ) Filed: May 15, 2023
)
SECRETARY OF HEALTH AND ) Re-issued: June 5, 2023*
HUMAN SERVICES, )
)
Respondent. )
___________________________________ )
OPINION AND ORDER
Respondent seeks review of a decision awarding Petitioner, Tramella Hinton, entitlement
to compensation under the National Vaccine Injury Compensation Program (“Vaccine Act”).
Petitioner filed her petition for compensation alleging that her son, Shawn’Quavious A’drez
Hinton (“Shawn”), suffered from Guillain-Barré Syndrome (“GBS”) caused by an influenza
vaccination he received on December 21, 2015. On March 9, 2018, the Special Master issued an
Order and Ruling on Facts finding that Petitioner had established adequate proof of vaccination.
Subsequently, Respondent filed a Rule 4(c) report stating that he would not defend this case. As
a result, on May 29, 2018, the Special Master ruled that Petitioner is entitled to compensation.
Respondent now seeks to reverse the Special Master’s Order and Ruling on Facts and vacate the
Ruling on Entitlement.
* The Court issued this opinion under seal on May 15, 2023, and directed the parties to
file any proposed redactions by May 30, 2023. As the parties do not propose any redactions, the
Court reissues the opinion publicly in full.

Case 1:16-vv-01140-KCD Document 274 Filed 06/05/23 Page 2 of 20
For the reasons discussed below, the Special Master’s finding that Petitioner established
adequate proof of vaccination was not arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law. Accordingly, the Court DENIES Respondent’s Motion for Review.
I. BACKGROUND
A. Factual Background
1. Shawn’s Condition Prior to the Alleged Vaccination
Petitioner is Shawn’s mother and natural guardian. Am. Pet. ¶ 2, ECF No. 35. Shawn was
born with Down Syndrome on September 24, 1998, and resides with his mother and three younger
sisters. Pet’r’s Ex. 2 ¶ 2, ECF No. 14-2. According to Petitioner, prior to December 21, 2015,
Shawn was a healthy and active young man who attended Tarboro High School in North Carolina.
Id. ¶ 5. Shawn never complained to her of any pain, weakness, tingling, decreased sensation, or
decreased stability. Id. ¶ 4. Petitioner further contended that Shawn never had any limitation with
balance, gait, mobility, or endurance in standing. Id.
From approximately the time of Shawn’s birth through 2015, Shawn was a patient of Dr.
Gilbert Alligood, an internal medicine and pediatric specialist. Pet’r’s Ex. 12 at 7, 11, ECF No.
33-1. On July 10, 2015, Shawn attended an appointment with Dr. Alligood at Vidant Multi-
Specialty Clinic (“Vidant”) in Tarboro, North Carolina, for behavioral and sleeping problems.
Pet’r’s Ex. 3 at 179–83, ECF No. 14-3. After a consultation and physical examination, Dr.
Alligood prescribed Clonidine and Trazadone. Id. at 179. During a follow-up visit on August 3,
2015, Dr. Alligood noted that Shawn was sleeping better but still experiencing behavioral issues,
and Dr. Alligood prescribed a refill for the Trazodone. Id. at 186–87. Shawn’s next appointment
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with Dr. Alligood was scheduled for December 21, 2015. Pet’r’s Ex. 9 at 2, ECF No. 15-5; ECF
No. 14-2 ¶ 3.
2. The Alleged Vaccination
Petitioner alleged that she and Shawn attended the follow-up appointment on December
21, 2015, at which Shawn received an influenza (“flu”) vaccination. ECF No. 14-2 ¶ 3. She
alleged that she was in the exam room with Shawn when Dr. Alligood’s nurse administered the flu
vaccine in his upper left arm. Id. Petitioner stated that based on that visit, a refill for Trazodone
was sent to her pharmacy. Id. However, Vidant’s records indicated that Shawn was a “no show”
for the appointment on December 21, 2015, and that Petitioner called the clinic two days later
(December 23, 2015) to obtain the prescription refill for Trazodone. ECF No. 15-5 at 2; ECF No.
14-3 at 191–92. Shawn’s Medicaid and BlueCross Blue Shield insurance records do not reflect
any charges billed for the December 21 appointment. ECF No. 14-3 at 30–31; Pet’r’s Ex. 16, ECF
No. 47-2; Pet’r’s Ex. 17, ECF No. 47-3.
On April 5, 2016, Petitioner filed a formal request with Vidant requesting that the clinic
amend its records to indicate that Shawn received a flu vaccination on December 21, 2015. ECF
No. 14-3 at 237. Vidant denied Petitioner’s request, noting that the record was accurate and
complete. Id. at 234–37. Consequently, Petitioner filed a complaint with the U.S. Department of
Health and Human Services, Office of Civil Rights (“OCR”) regarding Vidant’s failure to amend
the records. Id. at 11–12. On September 23, 2016, OCR notified Petitioner and Vidant that it was
closing Petitioner’s case without further action. Id. at 12. Subsequently, on October 26, 2016,
Vidant informed OCR that it had investigated Petitioner’s request, including reviewing medical
records of all patients seen by Dr. Alligood on the day of the alleged visit, and found no basis for
amendment of the medical records. Id. at 9–10.
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3. Shawn’s Condition After the Alleged Vaccination
On January 14, 2016, Petitioner took Shawn to the urgent care for left ankle pain. ECF
No. 14-3 at 195–96. The notes section of the urgent care record indicated that Shawn’s ankle pain
started seven days prior and was constant. Id. at 196. The notes further stated that Shawn fell on
his left ankle three days prior while trying to stand up. Id. Petitioner contended that in the days
and weeks following the urgent care visit, Shawn’s leg weakness progressed and became so severe
that he lost the ability to stand, maintain his balance, and walk. ECF No. 14-2 ¶ 8. On January
29, 2016, Petitioner took Shawn to the Emergency Department for leg pain and difficulty walking.
Pet’r’s Ex. 5 at 61, ECF No. 15-1. The Emergency Department provider noted concern about
possible GBS and instructed Shawn to follow-up with his primary care physician. Id. at 64.
On February 1, 2016, Shawn was taken to Vidant in a wheelchair due to his continued
inability to walk. ECF No. 14-3 at 204. A CT scan of his cervical and lumbar spine revealed some
disc bulging and narrowing of the neural exit foramina. Id. at 211. On February 15, 2016, Shawn
was admitted to Vidant Medical Center for weakness of his lower extremities and inability to walk.
Pet’r’s Ex. 4 at 58, ECF No. 14-4. The providers at the medical center examined Shawn and also
expressed concerns about GBS. Id. Notations in Shawn’s medical records for February 15, 2016,
indicated that he had not received the flu vaccine. Id. at 59 (noting “up to date, did not receive flu
vaccination” under “Immunizations”); id. at 167 (indicating “No” in the column marked “Influenza
Vaccine received since Sept[ember] 1 (Effective Sept[ember] 1 to March 31)” under “Influenza
Risk Assessment”). The medical center admitted Shawn for three days and discharged him to
pediatric rehabilitation. Id. at 54.
On March 18, 2016, after approximately 30 days of pediatric inpatient rehabilitation,
Shawn was discharged with a final diagnosis of GBS and instructed to follow-up with Dr. Kalind
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Parashar, his new primary care physician. Id. at 224–25, 345. On April 11, 2016, Shawn saw Dr.
Parashar for the follow-up visit. ECF No. 14-3 at 219. The medical records from that visit stated
that Shawn “has been making significant progress” and “is able to ambulate but with support.” Id.
Shawn began attending outpatient rehabilitation on April 12, 2016, at Vidant Edgecombe
Hospital. Pet’r’s Ex. 6 at 312, ECF No. 15-2. The evaluation record from an April 12, 2016,
assessment at the rehabilitation hospital noted that Shawn was “coming for skilled therapy after
being hospitalized [for] having [GBS].” Id. at 21. The record further stated that “[patient] received
flu shot on 12/21/2015.” Id. An April 15, 2016, assessment record also noted that in “December
2015 [patient] received a flu shot.” Id. at 43. Shawn was discharged from outpatient therapy on
July 19, 2016. Id. at 312. On October 3, 2016, Shawn saw Dr. Parashar for a follow-up
appointment. ECF No. 14-3 at 224. Dr. Parashar noted “no concerns today” and that Shawn
attended physical therapy and was recommended for psychotherapy to work on proprioception.
Id. at 225. Dr. Parashar instructed Shawn to follow-up in six months. Id. at 226.
B. Procedural Background
On September 14, 2016, Petitioner filed a petition for compensation under the Vaccine Act.
See Pet., ECF No. 1. Petitioner alleged that Shawn suffered GBS caused by the adverse effects of
a flu vaccination he received on December 21, 2015, at Dr. Alligood’s office. Id. ¶¶ 3, 4. On
January 11, 2017, Petitioner obtained subpoenas for Shawn’s medical records and filed a first set
of medical records. See Pet’r’s Exs. 1-10, ECF Nos. 14, 15. Petitioner also filed a transcript of a
July 27, 2016, recorded telephone conversation with Dr. Alligood in which Dr. Alligood
mentioned that he remembered seeing Shawn for a medical appointment but did not remember
when. Pet’r’s Ex. 12 at 3, ECF No. 15-4; Pet’r’s Ex. 12 at 47–48, ECF No. 33-1.
5

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On January 17, 2017, the Special Master granted Petitioner’s motion to depose Dr.
Alligood regarding Shawn’s flu vaccination. See Order, ECF No. 23. In his deposition on March
17, 2017, Dr. Alligood stated that December 21, 2015, was the last day he saw patients before he
left his employment at Vidant. ECF No. 33-1 at 8, 153. According to Dr. Alligood, he remembered
seeing Shawn several times in 2015 but did not remember whether he saw Shawn on December
21, 2015, and did not remember whether Shawn received a flu vaccination. Id. at 14, 34.
Regarding the check-in process at his office, Dr. Alligood mentioned that it was typical for there
to be no formal check-in process for established patients, and that a patient would typically receive
an “After-Visit Summary” at the end of the visit. Id. at 147–50. Dr. Alligood stated that he is
required by law to maintain medical records and there is no situation where he would fail to keep
a record. Id. at 39–40.
On June 2, 2017, Petitioner filed an amended petition including citations to Dr. Alligood’s
deposition transcript, as well as medical records that were obtained after filing the original petition.
See ECF No. 35. In a status conference held on June 14, 2017, the parties stated that proof of
vaccination remained an issue. See Scheduling Order at 1, ECF No. 36. As a result, the Special
Master granted the parties’ request to conduct a fact hearing to determine whether Shawn received
a flu vaccination. Id. The Special Master held the fact hearing on September 8, 2017, in Raleigh,
North Carolina. See Order and Ruling on Facts at 2, ECF No. 54. During the fact hearing,
Petitioner testified that she did not sign an authorization for vaccination on December 21, 2015,
and she was not provided a summary of the visit. Tr. at 93, 100, ECF No. 44. Petitioner explained
that Shawn’s vaccine was administered by a nurse called Lisa, although Dr. Alligood testified at
deposition that he did not have a nurse by that name. ECF No. 44 at 12–13, 59–60; ECF No. 33-
1 at 92. Petitioner testified that she did not call Vidant on December 23, 2015, to request a refill
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of Shawn’s Trazadone prescription. ECF No. 44 at 102–04. She maintained that Shawn was at
the appointment on December 21, 2015, and the refill was renewed at that time. Id. According to
Petitioner, the medical center’s immunization history and the influenza risk assessment were
inaccurate because she informed the providers during Shawn’s hospitalization that he received a
flu vaccination in December. Id. at 107–09. At the hearing, Petitioner also produced her telephone
records from December 21, 2015, and testified that she was on the phone for most of the day but
not between 2:41 p.m. and 3:09 p.m. because at that time she was with Shawn at Dr. Alligood’s
office. Id. at 18–19.
After a review of the evidence submitted and the parties’ briefs, the Special Master found
that Petitioner had established adequate proof of vaccination. ECF No. 54 at 2. In her Order and
Ruling on Facts, the Special Master first acknowledged that although Shawn was scheduled for an
appointment on December 21, 2015, the Vidant records marked him as a “no show,” the billing
and insurance records did not show a charge for an encounter or vaccination on that date, and two
references in Shawn’s hospitalization records indicated he did not receive a flu vaccination. ECF
No. 54. at 12. The Special Master then highlighted that Petitioner’s testimony was “highly
credible,” and that “the actions that Ms. Hinton took and the lengths that she went through to obtain
evidence, any evidence that her son was seen on December 21, 2015, are simply not the actions
that an individual would take if she did not believe the events occurred as she recalled.” Id. at 13.
The Special Master also added that there are “two medical record references indicating that Shawn
did receive a flu vaccine prior to the onset of GBS,” as well as a statement from Dr. Alligood that
implies he saw Shawn in December 2015. Id. And while noting that Petitioner’s telephone records
were “certainly not definitive proof that she was at Dr. Alligood’s office with Shawn on December
21, 2015,” the Special Mater found that they provided “some support” for Petitioner’s claim. Id.
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On balance, the Special Master concluded that Petitioner “established by preponderant evidence
that [Shawn] received an influenza vaccination on December 21, 2015.” Id. at 14. After
Respondent indicated that he would not defend this case, the Special Master issued a summary
Ruling on Entitlement in favor of Petitioner on May 29, 2018. Resp’t.’s Report at 7, ECF No. 56;
Ruling on Entitlement, ECF No. 57.
On December 28, 2022, Respondent filed the instant Motion for Review of the Special
Master’s decision. Resp’t.’s Mot. for Review, ECF No. 266; Resp’t.’s Mem. In Support of Mot.
for Review, ECF No. 267. Respondent argues that, in finding that Shawn received a vaccine set
forth in the Vaccine Injury Table, the Special Master improperly ignored contemporaneous
medical records and relied instead on Petitioner’s uncorroborated statements. ECF No. 267 at 5.
According to Respondent, Petitioner’s evidence was as a matter of law insufficient to support a
proof of vaccination finding. Id. at 5. Respondent further argues that the Special Master’s finding
was arbitrary and capricious considering the overwhelming weight of evidence demonstrating that
no appointment or vaccination occurred on December 21, 2015. Id. at 6. On January 30, 2023,
Petitioner responded to Respondent’s motion. Pet’r’s Resp. to Resp’t.’s Mot. for Review, ECF
No. 270. Petitioner argues that she established by a preponderance of evidence that Shawn
received a flu vaccination on December 21, 2015. Id. at 6. According to Petitioner, the Special
Master’s consistent finding was neither arbitrary and capricious nor contrary to the law. Id. at 5.
II. LEGAL STANDARD
This Court has jurisdiction to review a special master’s decision upon the timely request
of either party. 42 U.S.C. § 300aa-12(e)(2). Under the Vaccine Act, a court deciding a motion for
review may:
(A) uphold the findings of fact and conclusions of law of the special master and
sustain the special master’s decision,
8

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(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 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.
Id. §§ 300aa-12(e)(2)(A)–(C).
In conducting its review, the Court employs “a highly deferential standard.” Hines v. Sec’y
of Health & Hum. Servs., 940 F.2d 1518, 1528 (Fed. Cir. 1991). “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.” Id.; see Hayman
v. United States, No. 02-725V, 2005 WL 6124101, at *2 (Fed. Cl. May 9, 2005) (decision should
stand so long as the special master “consider[ed] all the relevant factors, ma[de] no clear error in
judgment, and articulate[d] a rational connection between the facts found and the choice made”).
This “great deference” extends in particular to a special master’s findings of fact, which
are reviewed under the arbitrary and capricious standard. Munn v. Sec’y of Health & Hum. Servs.,
970 F.2d 863, 870 & n.10 (Fed. Cir. 1992). On a motion for review, it is not the Court’s role “to
reweigh the factual evidence;” rather, “the probative value of the evidence [and] the credibility of
the witnesses . . . are all matters within the purview” of the special master as the factfinder. Id. at
871; see Doe 93 v. Sec’y of Health & Hum. Servs., 98 Fed. Cl. 553, 565 (2011) (citing Lampe v.
Sec’y of Health & Hum. Servs., 219 F.3d 1357, 1360 (Fed. Cir. 2000)). Accordingly, the Court
should not substitute its judgment for that of the special master even though it may have reached
a different conclusion. Johnson v. Sec’y of Health & Hum. Servs., 33 Fed. Cl. 712, 720 (1995).
This deference notwithstanding, when the matter for review is whether the special master’s
decision was in accordance with law—i.e., when a question of law is at issue—the court reviews
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the decision de novo. Althen v. Sec’y of Health & Hum. Servs., 418 F.3d 1274, 1277–78 (Fed. Cir.
2005).
III. DISCUSSION
Respondent’s motion raises two objections to the Special Master’s decision. Specifically,
Respondent alleges that: (1) the Special Master erred as a matter of law in finding preponderant
evidence that Shawn received a flu vaccination on December 21, 2015; and (2) the Special
Master’s finding was, in any event, arbitrary and capricious. Having considered the parties’
arguments, as well as the record in this case, the Court rejects Respondent’s objections and declines
to set aside the Special Master’s decision.
A. The Special Master Did Not Err as a Matter of Law in Finding Preponderant
Evidence that Shawn Received a Flu Vaccination on December 21, 2015.
Respondent argues that the Special Master erred in finding preponderant evidence that
Shawn received a flu vaccination on December 21, 2015, because Petitioner did not submit
corroborating documentary evidence of vaccination. ECF No. 267 at 12. Respondent contends
that the only documentary evidence offered to substantiate proof of vaccination—i.e., Petitioner’s
phone records and two non-contemporaneous medical records—do not demonstrate that Shawn
received the vaccine and, with respect to the latter records, simply documented Petitioner’s
uncorroborated statements to medical providers that were made after she retained legal counsel for
the purposes of the present litigation. Id. at 6. Respondent further argues that the fact that
contemporaneous medical records are unavailable does not eliminate the statutory requirement
that the claim be substantiated. Id. at 13.
The Court finds that the Special Master did not err. When proving eligibility for
compensation under the Vaccine Act, a petitioner must establish by a preponderance of evidence
that the injured person received a vaccine set forth in the Vaccine Injury Table. See 42 U.S.C. §
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300aa-13(a)(1)(A); id. § 300aa-11(c)(1)(A); see also Matthews v. Sec’y of Health & Hum. Servs.,
157 Fed. Cl. 777, 785 (2021). A preponderance of evidence standard requires “the trier of fact to
believe that the existence of a fact is more probable than its nonexistence before [he] may find in
favor of the party who has the burden to persuade the [judge] of the fact’s existence.” Moberly ex
rel. Moberly v. Sec’y of Health & Hum. Servs., 592 F.3d 1315, 1322 n.2 (Fed. Cir. 2010) (alteration
in original) (quoting Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for
S. Cal., 508 U.S. 602, 622 (1993)). The Act directs the special master to base her eligibility finding
on “the record as a whole” and prohibits “such a finding based on the claims of a petitioner alone,
unsubstantiated by medical records or by medical opinion.” 42 U.S.C. § 300aa-13(a)(1).1
These requirements are reflected in the statutory provision governing the content of a
petition for compensation. Pursuant to the Act, a petition must contain “an affidavit, and
supporting documentation, demonstrating that the [injured] person,” among other things, “received
a vaccine set forth in the Vaccine Injury Table,” id. § 300aa-11(c)(1)(A), as well as “vaccination
records associated with the vaccine allegedly causing the injury,” among other records, id. § 300aa-
11(c)(2). However, if any required records “are unavailable to the petitioner,” the petition may
identify such records and state “the reasons for their unavailability.” Id. § 300aa-11(c)(3). All of
these statutory requirements are similarly reflected in the Court’s Vaccine Rules. See R.
2(c)(1)(A)(ii), (c)(2)(A)(i), (c)(2)(B)(i)–(ii), Rules of the U.S. Court of Federal Claims, app. B
(“Vaccine Rules”).
1 The Act defines “record” as “the record established by the special masters of the United
States Court of Federal Claims in a proceeding on a petition filed under section 300aa-11 of this
title.” 42 U.S.C. § 300aa-13(c).
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Applying the evidentiary framework provided in the Act and the Vaccine Rules, courts
have long held that “contemporaneous, documentary proof of a vaccination”—although the best
of evidence—is not necessary to establish proof of vaccination under the preponderance standard.
Centmehaiey v. Sec’y of Health & Hum. Servs., 32 Fed. Cl. 612, 621, aff’d, 73 F.3d 381 (Table)
(Fed. Cir. 1995) (per curiam) (citing Brown v. Sec’y of Health & Hum. Servs., 18 Cl. Ct. 834, 839
(1989), rev’d on other grounds, 920 F.2d 918 (1990)). Other evidence may include lay witness
testimony supported by “corroborating evidence, either medical or otherwise.” Epstein v. Sec’y of
Health & Hum. Servs., 35 Fed. Cl. 467, 478 (1996). As such, petitioners have presented sufficient
evidence on which to base a finding of vaccination where, in addition to their own testimony, they
proffered an entry from a personal calendar and billing records, Brown, 18 Cl. Ct. at 840; an entry
in a baby book, Taylor v. Sec’y of Health & Hum. Servs., No. 90-857V, 1991 WL 115031, at *3
(Cl. Ct. Spec. Mstr. June 12, 1991); and references in more recent medical records referring back
to the vaccination, Wonish v. Sec’y of Health & Hum. Servs., No. 90-667V, 1991 WL 83959, at *4
(Cl. Ct. Spec. Mstr. May 6, 1991).
Here, the record included Petitioner’s affidavit and live testimony about personally
witnessing Shawn receive the flu vaccine on December 21, 2015, along with the following
corroborating evidence: Petitioner’s phone records from December 21, 2015, deposition testimony
from and recorded telephone conversations with Dr. Alligood, and medical records from April
2016 that post-date the alleged vaccination date. See ECF No. 44 at 12–13, 18–19; ECF No. 33-1
at 47–48; ECF No. 15-4 at 3; ECF No. 15-2 at 21, 43; ECF No. 54 at 14. The record also included
ample explanation about the absence of contemporaneous records documenting the fact of
Shawn’s vaccination and the extensive efforts Petitioner undertook to obtain such documentation.
See ECF No. 15-4 at 3; ECF No. 14-3 at 11–12; ECF No. 44 at 93, 100.
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In her Order and Ruling on Facts, the Special Master found Petitioner’s testimony “highly
credible,” highlighting the actions she took and the lengths to which she went to obtain evidence,
as well as how Petitioner explained with clear and specific details the events of December 21,
2015. ECF No. 54 at 13. The Special Master found this testimony was corroborated, albeit
“barely,” by the circumstantial evidence. Id. This included the phone records, which the Special
Master found “provide some support for [Petitioner’s] claim,” even though they are “certainly not
definitive proof that [Petitioner] was at Dr. Alligood’s office with Shawn on December 21, 2015.”
Id. It also included the two later medical records from Shawn’s outpatient rehabilitation reporting
that Shawn received a flu vaccination: an April 12, 2016, rehabilitation evaluation and an April
15, 2016, physical therapy note. Id. at 5, 13. The Special Master also credited Dr. Alligood’s
recorded statement implying that he saw Shawn right before the doctor stopped seeing patients at
Vivant on December 21, 2015, which was undisputedly the date of Shawn’s scheduled follow-up
appointment. Id. at 13. Although the Special Master based her finding primarily on Petitioner’s
“highly credible” testimony, ECF No. 54 at 12, the Special Master did not rely on it alone but
rather on the record as a whole and specifically discussed supporting documentation and other
evidence that indicated Shawn attended his December 21 appointment and received a flu
vaccination. Id. at 12; see id. at 13–14.
Respondent contends that none of this evidence corroborates Petitioner’s testimony.
Respondent argues that the two medical records the Special Master referenced in support of her
finding are non-contemporaneous medical records that simply document Petitioner’s
uncorroborated statements to medical providers. ECF No. 267 at 6. But neither the statute nor the
case law provides that only medical records containing independent proof of vaccination are
legally sufficient to support an eligibility finding. To the contrary, the Federal Circuit has
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explained the importance of medical record evidence to eligibility determinations in the Vaccine
Program, specifically acknowledging that they contain information both “supplied to or by health
professionals to facilitate diagnosis and treatment.” Cucuras v. Sec’y of Health & Hum. Servs.,
993 F.2d 1525, 1528 (Fed. Cir. 1993) (emphasis added); see James-Cornelius on Behalf of E. J. v.
Sec’y of Health & Hum. Servs., 984 F.3d 1374, 1380 (Fed. Cir. 2021) (recognizing that “medical
records may indeed serve as important corroborating evidence for evaluating testimony’s
credibility” in a vaccine case, even though they would likely be based on the statements of the
petitioner or his parents). As such, special masters have found notations in medical records to
corroborate proof of vaccination even where the information was reported by the petitioner or
other individual with knowledge. See, e.g., Riddick v. Sec’y of Health & Hum. Servs., No. 99-
643V, 2006 WL 2990220, at *10 (Fed. Cl. Spec. Mstr. Oct. 4, 2006); Groht v. Sec’y of Health &
Hum. Servs., No. 00-287V, 2006 WL 3342222, at *2 (Fed. Cl. Spec. Mstr. Oct. 30, 2006); Berry
v. Sec’y of Health & Hum. Servs., No. 90-339V, 1990 WL 293448, at *3 (Cl. Ct. Spec. Mstr. Nov.
15, 1990). Indeed, relying on Groht, Respondent suggests that a single reference to the vaccination
in a contemporaneous medical record based on a petitioner’s statement would be legally sufficient
under § 300aa-11(c)(1).2 ECF No. 267 at 14 (quoting Groht, 2006 WL 3342222, at *2). The
difference here is the timing of the statements documented in the records.
As such, Respondent’s attack on the medical records more aptly constitutes a disagreement
with the weight the Special Master gave to such evidence. See ECF No. 267 at 16 (arguing that
2 The courts in Brown and Taylor, cases Respondent also relies on, similarly found that
statements made by the petitioners’ mothers in a personal calendar and a baby book, respectively,
corroborated their own testimony. Brown, 18 Cl. Ct. at 840 (finding the entry “Conway to Dr.
Lee—time 10:45” in mother’s calendar corroborated her testimony that the petitioner had a
medical appointment on that date); Taylor, 1991 WL 115031, at *3 (finding that baby book
substantiated mother’s claim that a Table vaccine was administered on a specific date).
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the medical records lack “reliability” because, among other things, they were created months after
the alleged vaccination, after Petitioner retained counsel). The same can be said for Respondent’s
challenge to the phone records. Id. (arguing that “there are many reasons petitioner might not have
been using her phone for a period of time on any given day”). According to Respondent, the
circumstantial evidence found to corroborate Petitioner’s testimony was “far from persuasive.” Id.
at 15. Whether Petitioner produced evidence that, as a whole, was sufficiently corroborative
implicates the Special Master’s discretion as the factfinder; it does not raise the legal question of
whether the testimony was uncorroborated at all. See Abruzzo v. Sec’y of Health & Hum. Servs.,
No. 02-0857V, 2007 WL 5161746, at *2 (Fed. Cl. Feb. 13, 2007) (describing a petitioner’s burden
of production under § 300aa-11(c) and burden of persuasion under § 300aa-13(a)(1)(A)); see also
Matthews, 157 Fed. Cl. at 788–89 (citing Burns v. Sec’y of Health & Hum. Servs., 3 F.3d 415, 417
(Fed. Cir. 1993)) (“In weighing the evidence pertaining to proof of vaccination, the Special Master
has discretion to determine the relative weight of the evidence presented, including
contemporaneous medical records and oral testimony.”). Reweighing the sufficiency of the factual
evidence falls outside this Court’s role. See Munn, 970 F.2d at 871.
Accordingly, considering the statutory requirements and case law demonstrating the
myriad ways a petitioner may corroborate her testimony to prove the fact of vaccination, the Court
finds that the Special Master did not err as a matter of law in evaluating the evidence as a whole
and applying the preponderance standard to conclude Petitioner had established that Shawn
received a flu vaccination on December 21, 2015.
B. The Special Master’s Finding that Shawn Received a Flu Vaccination on
December 21, 2015, Was Not Arbitrary or Capricious.
Respondent argues that regardless of whether the Special Master erred as a matter of law,
her factual finding was arbitrary and capricious in light of the overwhelming weight of evidence
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demonstrating that no appointment or vaccination occurred on December 21, 2015. ECF No. 267
at 6, 18. Specifically, Respondent emphasizes that the records at Dr. Alligood’s office recorded
Shawn as a “no show” for his appointment, billing records and insurance records from BlueCross
BlueShield and Medicaid did not indicate an encounter or vaccination on December 21, 2015,
records from Shawn’s subsequent hospitalization in February 2016 twice noted that he did not
recently receive a flu vaccination, and the investigation by Vidant did not find any evidence that
an appointment or vaccination occurred on December 21, 2015. Id. at 6. Respondent further
argues that the Special Master provided no explanation of how she resolved conflicts in the
evidence. Id. at 18. According to Respondent, by crediting Petitioner’s testimony, the Special
Master necessarily discredited numerous instances of contradictory evidence indicating that a
vaccination was not administered as claimed. Id. at 18–19. Respondent argues that the Special
Master’s failure to explain why hospital records showing that Shawn did not receive any flu
vaccination were entitled to less weight than Petitioner’s uncorroborated testimony was arbitrary
and capricious. Id. at 20.
The Court finds that the Special Master’s finding was not arbitrary or capricious. Applying
the requisite “highly deferential” standard of review, the Special Master’s decision shows that she
“considered the relevant evidence of record, [drew] plausible inferences, and articulated a rational
basis for the decision.” Hines, 940 F.2d at 1528. Here, there is no dispute that the Special Master
considered all the relevant evidence. She evaluated the credibility and persuasiveness of
Petitioner’s testimony in addition to the “affidavits, witness statements, [ ]deposition testimony,”
medical records, and other documents in the record. ECF No. 54 at 14; see id. at 2–11. She also
specifically considered and weighed conflicting evidence and the absence of evidence. See id. at
3 (discussing Dr. Alligood’s records and the absence of other records), 3–5 (February 2016
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hospital records and Vidant investigation letter), 11 (cross-examination topics). In doing so, the
Special Master acknowledged both weaknesses in the evidence supporting Petitioner’s claim and
concerns raised by evidence that tended to undermine it. See id. at 13 & n.5.
Based on a thorough evaluation of the evidence, the Special Master also rationally
explained the reasons underlying her decision. Specifically, the Special Master noted that:
[T]he actions that Ms. Hinton took and the lengths that she went through to obtain
evidence, any evidence that her son was seen on December 21, 2015, are simply
not the actions that an individual would take if she did not believe the events
occurred as she recalled. In her affidavit, Ms. Hinton details each of the people she
contacted and the actions she took to establish that Shawn was seen by Dr. Alligood
on December 21, 2015 and that he received a flu vaccination on that day, including:
contacting and appearing in person at Vidant to obtain a copy of Shawn’s vaccine
record and any records of his visit on December 21, 2015; filing a formal request
for an amendment of Shawn’s records with Vidant and understanding that a formal
investigation would take place into her request; calling and attempting to see Dr.
Alligood on many, many instances (Dr. Alligood testified that Ms. Hinton called
his office 10-15 times a day; see Pet. Ex. 12 at 42); filing a complaint with HIPAA
to report a violation of Vidant’s record-keeping practices; filing a formal complaint
with the Office of Civil Rights; contacting her private insurance company and
Medicaid to obtain any documentation regarding the December 21, 2015 visit, and
even resorting to recording her telephone conversations with Dr. Alligood. See Pet.
Ex. 10. These are actions of a dedicated mother demanding for what she believed
was an accurate record for her child. While Ms. Hinton’s telephone records from
December 21, 2015, are certainly not definitive proof that she was at Dr. Alligood’s
office with Shawn on December 21, 2015, the records do provide some support for
her claim. In addition, there are two medical record references indicating that
Shawn did receive a flu vaccine prior to his onset of GBS. Pet. Ex. 6 at 21, 42.
. . . Dr. Alligood does seem to imply that he saw Shawn in late 2015 before he left
Vidant in December 2015; Pet. Ex. 8. There is no dispute that Shawn had an
appointment scheduled for December 21, 2015 at 2:30 p.m. Ms. Hinton testified
that she was not working on that date and that Shawn was out of school . . . for his
Christmas break. Ms. Hinton described, in detail, the events of the morning of
December 21, 2015 leading up to Shawn’s appointment, clear details of the
appointment . . . , including specifics of her conversations with Dr. Alligood and
specific information about the administration of the flu vaccine by Dr. Alligood’s
nurse to Shawn.
Id. at 13. These findings bear on the Special Master’s assessment of the Petitioner’s credibility
and the reliability of her testimony, as well as the weight of other evidence supporting her
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testimony. As the factfinder, the Special Master was “entitled—indeed, expected—to make
determinations as to the reliability of the evidence presented to [her] and . . . as to the credibility
of the persons presenting that evidence.” See Porter v. Sec’y of Health & Hum. Servs., 663 F.3d
1242, 1250–51 (Fed. Cir. 2011) (citing Moberly, 592 F.3d at 1326). On review, this Court does
not assess the credibility of witnesses or the probative value of evidence, nor does it assess whether
the Special Master properly evaluated the evidence. See Munn, 970 F.2d at 870. Since the Special
Master’s decision was based on evidence in the record that supports her findings and that was not
wholly implausible, the Court finds that the decision was not arbitrary or capricious. See Lampe,
219 F.3d at 1363.
Respondent, however, argues that it was arbitrary and capricious for the Special Master to
not explain (1) how she resolved conflicts between Petitioner’s testimony and contradictory
evidence indicating that a vaccination was not administered to Shawn and (2) why hospital records
that indicated Shawn did not receive any flu vaccination were entitled to less weight than
Petitioner’s testimony. ECF No. 267 at 18–20. Respondent fails to cite authority supporting either
proposition. As Respondent correctly notes, Vaccine Rule 3(b)(2) charges the Special Master with
the responsibility of “affording each party a full and fair opportunity to present its case and creating
a record sufficient to allow review of the special master’s decision.” Both obligations were met in
this case. The Special Master’s decision details the extent of the record created below including a
fact hearing, sets forth specific factual findings based on her review of the evidence with citations
to the record, and articulates a rational connection between the facts found and the decision made.
Respondent’s disagreement with the way the Special Master weighed and resolved
conflicting evidence is not a basis for the Court to find the decision arbitrary or capricious. The
Court agrees with Respondent that crediting Petitioner’s testimony and corroborating evidence to
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support a finding that Shawn more likely than not received the flu vaccine implies the Special
Master necessarily found the documentation (and lack of documentation) related to the December
21, 2015, office visit and the vaccine-related notations in the February 2016 hospital records less
likely to be accurate and/or complete. But, contrary to Respondent’s suggestion, there is no
presumption in vaccine cases that “medical records are ‘accurate and complete.’” Kirby v. Sec’y
of Health & Hum. Servs., 997 F.3d 1378, 1382 (Fed. Cir. 2021). And although the Federal Circuit
has recognized the “unremarkable proposition that it [is] not erroneous to give greater weight to
contemporaneous medical records than to later, contradictory testimony,” it has not held that
crediting credible and corroborated testimony over conflicting or absent contemporaneous records
is per se arbitrary and capricious. Id. (discussing Cucuras, 993 F.2d at 1527–28). Nor does
Respondent cite any case holding that, to meet her burden of persuasion, the petitioner must
demonstrate what caused the conflicting contemporaneous medical records to be inaccurate or
incomplete. The Court doubts those reasons would be ascertainable, let alone provable, in the vast
majority of cases. See id. at 1383 (noting various reasons records may be inaccurate or complete).
Here, the Special Master acknowledged that there were “questionable occurrences in this
case” involving the contemporaneous medical records. ECF No. 54 at 13. Nonetheless, “in
reviewing the facts of this case, the testimony and actions of Ms. Hinton, and the circumstantial
evidence,” she found as a whole “that the evidence presented by Ms. Hinton satisfied the
preponderance of the evidence standard” to support a finding that Shawn attended his December
21, 2015, medical appointment and received the flu vaccine. Id. Under its “uniquely deferential”
review, the Court is not free to “second guess the Special Master[’]s fact-intensive conclusions.”
Hodges v. Sec’y of Health & Hum. Servs., 9 F.3d 958, 961 (Fed. Cir. 1993). Consequently, the
Court sees no reason to disturb the Special Master’s determination.
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IV. CONCLUSION
For these reasons, the Court DENIES Respondent’s Motion for Review. Pursuant to
Vaccine Rule 30(a), the Clerk is directed to enter judgment accordingly.
This opinion and order will be unsealed in its entirety after May 30, 2023, unless pursuant
to Vaccine Rule 18(b) the parties specifically identify protected and/or privileged information
subject to redaction prior to that date. Any objecting party must submit a proposed redacted
version of the decision and provide the reason(s) supporting the party’s request for redaction.
SO ORDERED.
Dated: May 15, 2023 /s/ Kathryn C. Davis
KATHRYN C. DAVIS
Judge
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