VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_18-vv-01406
Package ID: USCOURTS-cofc-1_18-vv-01406
Petitioner: James Victor Grant
Filed: 2018-09-14
Decided: 2024-08-06
Vaccine: influenza
Vaccination date: 2015-09-15
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
James Victor Grant filed a petition alleging he suffered a shoulder injury related to vaccine administration (SIRVA) from an influenza vaccination received on September 15, 2015. The case was filed on September 14, 2018. The respondent contended that Mr. Grant failed to meet the burden of proof, specifically that his injury did not persist for more than six months post-vaccination. The court noted that Mr. Grant's shoulder pain resolved about four months after vaccination, and a treating physician two years later attributed a subsequent shoulder injury to weightlifting and boxing, not the flu shot. Mr. Grant was ordered to provide additional medical records and evidence to demonstrate the injury's persistence for over six months, but he failed to do so despite multiple extensions and orders. The court also cited Mr. Grant's general failure to prosecute the case, including not responding to court orders and warnings of dismissal. Consequently, the petition was dismissed for insufficient proof of the injury's duration and for failure to prosecute. No compensation was awarded.

Theory of causation field:
unclear

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_18-vv-01406-0
Date issued/filed: 2024-08-06
Pages: 4
Docket text: PUBLIC DECISION (Originally filed: 07/03/2024) regarding 31 DECISION of Special Master, Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made.
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Case 1:18-vv-01406-UNJ Document 32 Filed 08/06/24 Page 1 of 4
CORRECTED
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1406V
UNPUBLISHED
JAMES VICTOR GRANT, Chief Special Master Corcoran
Petitioner, Filed: July 3, 2024
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Edward J. Kroger, Kroger Burrus, Houston, TX, for Petitioner.
Alexis B. Babcock, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION1
On September 14, 2018, James Victor Grant 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 alleged that that he suffered from a shoulder injury related
to vaccine administration (“SIRVA”) as a result of receiving an influenza (“flu”) vaccination
on September 15, 2015. Petition at Preamble. The case was assigned to the Special
Processing Unit of the Office of Special Masters (the “SPU”).
For the reasons set forth below, the petition is hereby DISMISSED for failure to
show he suffered the effects of his injury for more than six months and for failure to
prosecute.
I. Relevant Procedural History
1 Because this Decision contains a reasoned explanation for the action in this case, I am required to post it
on the United States Court of Federal Claims' website in accordance with the E-Government Act of 2002.
44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services).
This means the Decision will be available to anyone with access to the internet. In accordance with
Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the
disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the
identified material fits within this definition, I will redact such material from public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).

Case 1:18-vv-01406-UNJ Document 32 Filed 08/06/24 Page 2 of 4
This matter was assigned to the SPU based on the initial presumption that it
presented issues that were likely to be resolved expeditiously. During the initial status
conference on March 12, 2019, Petitioner was requested to file additional medical records
pertaining to the three-year period before his flu vaccination. (ECF No. 11). Those records
and an amended statement of completion were filed on August 27, 2019.
On January 13, 2020, Respondent file his Rule 4(c) Report recommending that
compensation be denied in this case. (ECF No. 23). Respondent contended that
Petitioner had failed to meet his burden of proof because he did not provide any evidence
to support that his injury persisted for over six months. Respondent specifically noted that
his shoulder injury symptoms following his flu vaccination resolved about four months
post-vaccination, and that Petitioner’s treating physician for a shoulder injury two years
later noted that the injury could not be attributed to his previous flu vaccination.
On January 28, 2020, I issued a scheduling order for Petitioner to file an affidavit
addressing the severity of his shoulder injury (e.g., addressing any residual effects or
complications of his injury for more than six months and any medical treatment that
Petitioner may have received between January 26, 2016, and February 5, 2018 for his
shoulder) and any additional evidence that would demonstrate that Petitioner suffered the
residual effects of complications of his injury for more than six months, such as medical
treatment records. (ECF No. 24).
To date, Petitioner has failed to make any additional filings. I sua sponte extended
Petitioner’s deadline for his affidavit, updated medical records, and statement of
completion on three separate occasions between May 26, 2020, and July 28, 2020.
During this time, the OSM staff attorney managing this case tried numerous times to e-
mail or call Petitioner’s counsel to address Petitioner’s noncompliance, but none of these
attempts were successful. After a long period of inactivity, an order to show case was
issued on December 19, 2022. (ECF No. 29). Petitioner was ordered to show cause by
February 17, 2023, why this case should not be dismissed for insufficient proof. Petitioner
did not make the ordered filing.
II. Insufficient Proof and Failure to Prosecute
a. Failure to Satisfy the Six-Month Severity Requirement
Under the Vaccine Act, a petition for compensation must contain “supporting
documentation, demonstrating that the person who suffered [a vaccine related injury]
...suffered the residual effects or complications of such illness, disability, injury, or
condition for more than 6 months after the administration of the vaccine.” Section
11(c)(1)(D)(i). The burden is on the petitioner to establish, by a preponderance of the
2

Case 1:18-vv-01406-UNJ Document 32 Filed 08/06/24 Page 3 of 4
evidence, the persistence of a vaccine-caused injury for longer than six months. Song v.
Sec'y of Health & Human Servs., 31 Fed. Cl. 61, 65–66, aff'd, 41 F.3d 1520
(Fed.Cir.1994). A petitioner cannot establish the length or ongoing nature of an injury
merely through her self-assertion. Rather, the petition must be supported by medical
records or by the opinion of a competent physician. See Section 13(a)(1). Petitioner bears
the burden of proving a prima facie case by a preponderance of the evidence. Section
13(a)(1)(A); see also Moberly v. Sec’y of Health & Human Services, 592 F.3d 1315, 1321
(Fed. Cir. 2010).
In this case, Petitioner first reported shoulder pain approximately one month after
vaccination, when he presented to orthopedics complaining of right shoulder pain, stating
that he had received a flu shot and that it hurt right away and lasted for a week. After
having an MRI, Petitioner was assessed with adhesive capsulitis and referred for physical
therapy on October 19, 2015. Two months later, Petitioner received a steroid injection
from his orthopedist. In January of 2016, Petitioner attended two PT sessions. A follow-
up visit with his orthopedist occurred on January 25, 2016, where an exam showed
Petitioner had full range of motion and was at near full strength, and was assessed with
bursitis. Subsequent medical appointments made no mention of any shoulder pain and
were instead focused on a skin condition. It was not until February 8, 2018, when
Petitioner presented to a new orthopedist complaining of right shoulder pain. On July 27,
2018, Petitioner had another MRI which revealed “multifocal tears of the labrum involving
the superior labrum, throughout the anterior labrum, and the posteroinferior quadrant”; no
evidence of rotator cuff tear”; and “moderate to severe hypertrophic degenerative
changes at the acromioclavicular joint with active marrow edema in the distal clavicle and
acromion.” Ex. 5 at 7. In a follow-up appointment, Petitioner’s orthopedist stated that the
MRI was “consistent with superior and labral type symptoms,” and that this “certainly
cannot be attributed to a flu shot but upon further questioning he has done quite a big of
weight lifting and boxing throughout his life.” Id. at 10.
The Act does permit individuals who otherwise do not meet the severity
requirement to bring a claim where they can demonstrate their injury caused them to
experience “inpatient hospitalization and surgical intervention.” Section 11(c)(1)(D)(iii).
But Petitioner has not submitted evidence that this occurred in connection with his alleged
SIRVA injury. To date, Petitioner has failed to support his claim with sufficient proof,
including medical records, affidavits, and/or the opinion of a medical expert to
substantiate his claim that his injury persisted for more than six months despite multiple
orders directing him to file this information.
b. Failure to Prosecute
An additional ground for dismissal herein arises from Petitioner’s general failure to
prosecute this matter. It is a petitioner’s obligation to follow and respond to orders issued
3

Case 1:18-vv-01406-UNJ Document 32 Filed 08/06/24 Page 4 of 4
by a special master in a case. The failure to do so – whether on account of attorney error,
inaction, or because a petitioner has failed to stay in contact and/or communicate with
counsel - is grounds for the claim’s dismissal. Tsekouras v. Sec’y of Health & Human
Servs., 26 Cl. Ct. 439 (1992), aff’d, 991 F.2d 810 (Fed. Cir. 1993) (per curiam),
(“[c]ontrolling precedent considers dismissal appropriate when failure to act is deemed
willful, when it is in violation of court orders, when it is repeated, and when clear warning
is given that the sanction will be imposed”); Sapharas v. Sec’y of Health & Human Servs.,
35 Fed. Cl. 503 (1996) (“[n]ot only did petitioner fail to meet the court's . . . . deadline, but
he also ignored the chief special master's ‘warning’ order, clearly placing petitioner on
notice that failure to respond to the court's order . . . , would result in dismissal of the
claim. The chief special master clearly did not abuse his discretion in dismissing this case
for failure to prosecute”); see also Vaccine Rule 21(b) (“[t]he special master or the court
may dismiss a petition or any claim therein for failure of the petitioner to prosecute or
comply with these rules or any order of the special master or the court.”).
Petitioner was specifically advised in the July 28, 2020, Scheduling Order that he
risked dismissal of the claim for failure to prosecute. Petitioner was warned again in the
December 29, 2022, Order to Show Cause that if documentation was not provided by
February 17, 2023, his claim would be dismissed. Petitioner, however, continued to
disregard my orders without justification or explanation.
III. Conclusion
To date, and despite ample opportunity, Petitioner has failed to provide
preponderant evidence that he suffered the residual effects of his injury for more than six
months. Section 11(c)(1)(D)(i). He has also failed to respond to the scheduling orders
issued on May 26, 2020, June 15, 2020, and July 28, 2020, and the Order to Show Cause
issued on December 19, 2022. Accordingly, this case is DISMISSED for failure to
prosecute and insufficient proof. The clerk shall enter judgment accordingly. 3
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3 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.
4