VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_18-vv-01977
Package ID: USCOURTS-cofc-1_18-vv-01977
Petitioner: Michael Mezzacapo
Filed: 2018-12-27
Decided: 2022-02-23
Vaccine: SIRVA
Vaccination date: 
Condition: Shoulder Injury Related to Vaccine Administration (“SIRVA”)
Outcome: compensated
Award amount USD: 50533

AI-assisted case summary:
Michael Mezzacapo filed a petition for compensation under the National Vaccine Injury Compensation Program on December 27, 2018, alleging he suffered a right Shoulder Injury Related to Vaccine Administration (SIRVA) after receiving an influenza vaccine and a Tdap vaccine. The petition stated that the condition's residual effects lasted for more than six months, that there had been no prior award or settlement of a civil action for damages, and that the vaccines were administered in the United States. The respondent denied that the petitioner sustained a Table SIRVA within the Table timeframe and denied that the Tdap vaccine and/or flu vaccine caused his alleged shoulder injury and residual effects, or any other injury. Despite the respondent's denials, the parties filed a joint stipulation on January 25, 2022, agreeing that a decision should be entered awarding compensation. Special Master Daniel T. Horner found the stipulation reasonable and adopted it as the decision of the Court. Pursuant to the stipulation, Michael Mezzacapo was awarded a lump sum of $50,532.58, payable to the petitioner, as compensation for all items of damages available under the Vaccine Act. The case was resolved via stipulation, with the respondent contesting entitlement but agreeing to compensation. Leah Durant represented the petitioner, and Voris E. Johnson represented the respondent. The decision was issued on February 23, 2022.

Theory of causation field:
Petitioner Michael Mezzacapo alleged a Shoulder Injury Related to Vaccine Administration (SIRVA) following administration of an influenza and Tdap vaccine. Respondent denied that the injury was a Table SIRVA within the Table timeframe and denied that the vaccines caused the alleged shoulder injury. The parties filed a joint stipulation agreeing to an award of compensation. The Special Master adopted the stipulation. The award was $50,532.58. The public decision does not describe the specific mechanism of injury, onset, symptoms, diagnostic tests, treatments, or expert witnesses. The case was resolved by stipulation, not by litigation of the causation theory. Petitioner was represented by Leah Durant, and respondent was represented by Voris E. Johnson. Special Master Daniel T. Horner issued the decision on February 23, 2022.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_18-vv-01977-0
Date issued/filed: 2021-05-14
Pages: 10
Docket text: PUBLIC ORDER/RULING (Originally filed: 4/19/2021) regarding 44 Findings of Fact & Conclusions of Law. Signed by Special Master Daniel T. Horner. (tkp) Service on parties made.
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Case 1:18-vv-01977-UNJ Document 45 Filed 05/14/21 Page 1 of 10
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1977V
Filed: April 19, 2021
PUBLISHED
MICHAEL MEZZACAPO,
Special Master Horner
Petitioner,
v.
Finding of Fact; Shoulder Injury
Related to Vaccine
SECRETARY OF HEALTH AND
Administration (SIRVA);
HUMAN SERVICES,
Tetanus Diphtheria Pertussis
Vaccine (Tdap)
Respondent.
Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
petitioner.
Voris Edward Johnson, U.S. Department of Justice, Washington, DC, for respondent.
FINDING OF FACT1
On December 27, 2018, petitioner, Michael Mezzacapo, filed a petition under the
National Childhood Vaccine Injury Act, 42 U.S.C. §300aa-10-34 (2012), alleging that he
suffered a Shoulder Injury Related to Vaccine Administration (“SIRVA”) following the
receipt of a tetanus/diphtheria/pertussis vaccine (“Tdap”) in his right arm at a Rite Aid
pharmacy on August 29, 2017. (ECF No. 1, p. 1.) Although petitioner alleged that the
injection site was in his right arm, an immunization information summary provided by
Rite Aid to petitioner’s primary care physician and contained in petitioner’s medical
records notes that the injection site was the left arm, a fact that, if true, would be fatal to
petitioner’s claim. (Ex. 4, p. 21.)
On January 21, 2021, petitioner moved for a ruling on the record finding that the
injection site of his Tdap vaccination was his right arm. (ECF No. 40.) For the reasons
discussed below, I find that petitioner’s Tdap vaccination was more likely than not
administered in his right arm.
1 Because this finding contains a reasoned explanation for the special master’s action in this case, it will
be posted on the United States Court of Federal Claims’ website in accordance with the E-Government
Act of 2002. See 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the finding 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 the special master, upon review, agrees that the identified material fits within this definition, it will be
redacted from public access.
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Case 1:18-vv-01977-UNJ Document 45 Filed 05/14/21 Page 2 of 10
I. Procedural History
This case was initially assigned to the Special Processing Unit (“SPU”). (ECF
No. 5.) Petitioner filed medical records and a statement of completion on January 7,
2019. (ECF Nos. 6, 7.) Included in petitioner’s filing was a hand-written, unsigned
“immunization record card” which stated that petitioner received a Tdap booster in his
right arm. (Ex. 1, p. 2.) However, petitioner also filed primary care records that
included a Rite Aid immunization summary sent to his treating physician noting that he
had received both a flu vaccination and a Tdap and vaccination at the same visit and
both were administered in his left arm. (Ex. 4, p. 21.) That document is not itself an
administration record. Rather, it indicates that “[a]n immunization record was completed
and given to the patient.” (Id.)
On March 4, 2019, then Chief Special Master Dorsey issued a scheduling order
indicating that petitioner had submitted medical records which conflict on the issue of
injection site and specific vaccines received. (ECF No. 9.) Petitioner was ordered to file
a motion for authority to issue a subpoena upon Rite Aid Pharmacy in order to obtain
his complete vaccination records, including a “Screening Questionnaire and Consent
Form” which would indicate the correct injection site and vaccines received. (Id.)
Petitioner was also ordered to file an affidavit addressing additional elements required
by §11(c)(1) of the Vaccine Act and explaining the facts and circumstances surrounding
the creation of petitioner’s immunization record card, and any other evidence that would
authenticate the immunization record card.
On April 3, 2019, petitioner filed a motion to issue a subpoena to Rite Aid of
Delaware. (ECF No. 10.) Petitioner’s motion for subpoena authorization was granted
on April 4, 2019. (ECF No. 11.) On August 19, 2019, petitioner filed additional medical
records, an affidavit, and a status report explaining that Rite Aid had failed to provide
any records in response to petitioner’s subpoena, and that due to the acquisition of
“nearly two thousand” Rite Aid locations by Walgreens, there was “much confusion”
regarding the location of petitioner’s medical records. (ECF Nos. 20, 21; Exs. 8-10.)
Respondent filed his Rule 4 report on January 24, 2020, noting the discrepancy
between petitioner’s immunization record documenting both injection sites as being in
his left arm, and the handwritten, unsigned immunization card stating that petitioner
received the Tdap vaccine in his right arm. (ECF No. 26, p. 7.) Respondent argued
that the immunization summary was more reliable than the card, and that it is more
likely that petitioner received the Tdap vaccine in his left arm. (Id.) This case was
assigned to my docket on August 14, 2020. (ECF No. 34.)
On August 5, 2020, petitioner filed a written statement from Rite Aid pharmacist
Vera Perkucin explaining that she administered petitioner’s flu vaccine in his left deltoid
and his Tdap vaccine in his right deltoid. (ECF No. 31.) Respondent’s counsel emailed
my chambers on August 17, 2020, indicating that respondent wished to depose Ms.
Perkucin. The same day, I issued a non-pdf scheduling order directing respondent to
file a motion to issue a subpoena or otherwise indicate how he intended to proceed. On
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September 22, 2020, respondent filed a motion to issue a subpoena to depose Ms.
Perkucin, which I granted on the following day. (ECF Nos. 37, 38.) Respondent filed
Ms. Perkucin’s deposition transcript on November 24, 2020. (ECF No. 39-1.)
During the deposition, in addition to providing substantive testimony Ms. Perkucin
confirmed that a consent form documenting petitioner’s vaccination does exist, but
indicated that she could not volunteer a copy. She advised that such a request would
need to be addressed to Rite Aid corporate offices. Although the parties initially
suggested they would cooperate to pursue that discovery, they apparently reached an
impasse regarding the burden and usefulness of seeking the discovery in light of
petitioner’s prior unsuccessful attempt to subpoena that document. (Compare ECF No.
39-1, p. 6-7, 10 and ECF Nos. 42-43.)
No request for formal discovery was filed by either party subsequent to the
deposition; however, on January 21, 2021, petitioner filed a motion for a finding of fact.
(ECF No. 40.) Respondent filed a response to petitioner’s motion on February 19,
2021. (ECF No. 42.) Petitioner filed a reply on February 26, 2021. (ECF No. 43.)
Accordingly, petitioner’s motion is ripe for resolution.
II. Factual History2
a. As reflected in petitioner’s medical records
During the relevant period, petitioner received his primary care from Dr. Victor A.
Shada. (See Ex. 4, pp. 8-10, 11-18.) Prior to his vaccination, petitioner underwent a
variety of gastrointestinal exams and surgeries related to a condition called barret’s
esophagus. (See generally Ex. 5, pp. 19-117.) Beyond his gastrointestinal procedures,
petitioner’s medical history included a hernia surgery, head trauma from a motor vehicle
accident in 1994, and a 2011 colonoscopy and polyp removal. (Ex. 4, p. 5.)
Petitioner received flu and Tdap vaccinations on August 29, 2017. (Ex. 1, pp. 1-
2; Ex. 4, p. 21.) Petitioner filed a vaccine immunization card noting that the Tdap
vaccine was administered in his upper right arm (with no record of the flu vaccination),
while a Rite Aid immunization summary sent to Dr. Shada notes that both petitioner’s flu
and Tdap vaccines were administered in his upper left deltoid. (Id.)
On September 23, 2017, petitioner reported to the Hallmark Health System
Emergency Department (“ED”) with a chief complaint of “right shoulder pain after
tetnus[sic] injection 8/29/17.” (Ex. 7, p. 4.) The ED physician noted that petitioner
experienced pain on palpation to his deltoid but had full range of motion. Petitioner
reported that his level of pain was zero. (Id.) Petitioner’s shoulder x-ray was negative,
and he was discharged with recommendations to contact an orthopedic specialist and
continue taking ibuprofen for pain management. (Id. at 7, 10-11.)
2 Although I have reviewed the entirety of the record compiled to date, including petitioner’s complete
medical history, the factual history discussed in this decision is limited to describing the evidence bearing
on the correct administration site of petitioner’s 2017 Tdap vaccination.
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Case 1:18-vv-01977-UNJ Document 45 Filed 05/14/21 Page 4 of 10
Petitioner was next seen by Dr. Shada on November 15, 2017 for “shoulder
trouble.” (Ex. 4, p. 5.) Petitioner reported that his right shoulder pain began in August
after his tetanus vaccination. (Id.) Dr. Shada diagnosed petitioner with acute right
shoulder pain and recommended an MRI. (Id. at 6.)
On November 27, 2017, petitioner was seen by Dr. Shada to discuss his
upcoming MRI and additional treatment for his shoulder issue. (Ex. 4, p. 3.) Dr. Shada
again noted that petitioner’s pain began after he received an injection in his right deltoid.
(Id.) Dr. Shada recommended an MRI and physical therapy. (Id.)
Petitioner began physical therapy at the Advanced Rehabilitation Center on
November 27, 2017. (Ex. 2, p. 38.) He again reported that his pain began after
receiving a Tdap vaccine in his right arm. (Id.) Petitioner’s physical therapy evaluation
revealed a pain level of 8 out of 10, but no limitations in his range of motion. (Id. at pp.
35, 38.) Petitioner’s physical therapist noted “[t]enderness into supraspinatus tendon . .
. .” and suspected that the tetanus shot “may have irritated [the] tendon causing [a]
localized inflammatory response with scar tissue built up in deltoid.” (Id. at 36, 38, 39.)
Petitioner continued physical therapy from November 27, 2017 until December 27,
2017, attending ten sessions in all. (see Ex. 2, pp. 4-38.) During these visits, petitioner
continually improved and was ultimately discharged with a pain level of 2 out of 10. (Id.
at 5.)
Petitioner underwent a right shoulder MRI without contrast on January 3, 2018.
(Ex. 3, p. 17.) The technician observed a “[l]arge tear in the superior and posterior
glenoid labrum. Mild tendinosis of the supraspinatus tendon. . .” and “[d]egenerative
changes in both the glenohumeral and acromioclavicular joints.” (Id. at 17-18.)
On February 16, 2018, petitioner saw Dr. G.B. Holloway for an orthopedic
consultation. (Ex. 3, pp. 4-8.) Dr. Holloway noted that petitioner’s pain began after
receiving a tetanus vaccine in his right deltoid. (Id. at 4.) Petitioner saw Dr. Holloway
twice more on February 28 and April 4 of 2018 where he reiterated that his pain began
following an Tdap injection in his right arm. (Id. at 9-13, 23-26; Ex. 6, pp. 1-4.)
Petitioner was also examined by Physicians Assistant Megan E. Huddleston on
February 28, 2018 for his annual physical. (Ex. 8, pp. 1-3.) PA Huddleston did not
mention petitioner’s vaccination on this visit. (Id.)
On April 12, 2019, petitioner returned to physical therapy to reevaluate his home
exercise program and maintain his shoulder function when he left town for work. (Ex. 9,
p. 3.) During this evaluation, petitioner reported that his pain began following a Tdap
vaccination in his right shoulder. (Id.) Petitioner returned to physical therapy on May 7,
2019. (Id. at 11.) He again reported during his physical therapy exam that his pain
began after a tetanus shot was administered in his right arm. (Id.)
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Case 1:18-vv-01977-UNJ Document 45 Filed 05/14/21 Page 5 of 10
b. As described in testimony
i. Petitioner’s affidavit
On August 19, 2019, petitioner filed an affidavit detailing his vaccine
administration, onset of pain, and subsequent medical treatment. (Ex. 10.) Petitioner
stated “I received a tetanus shot in my upper right arm and I experienced pain
immediately, pain I’ve never felt before.” (Id. at 1.) Petitioner further indicated that
when he reported to the emergency department for his shoulder pain, his treating
physician recommended an x-ray “to see if there was perhaps a broken needle in my
[right] arm.” (Id.) Petitioner concluded his affidavit by stating that “[t]here is no doubt
that on August 29, 2017, I was injured in my right arm by this tetanus vaccination. I do
not have any independent recollection of the creation of my vaccine administration
card.” (Id. at 2.)
ii. Vera Perkucin’s testimony
Petitioner initially filed a written statement from Pharmacist Vera Perkucin on
August 5, 2020. (Ex. 11.) Ms. Perkucin’s statement reads, “My name is Vera Perkucin.
I am the pharmacist who administered influenza and tetanus vaccines to [petitioner] on
August 29, 2017. [Petitioner] received the Tetanus vaccine in the upper right deltoid.
The flu vaccination was administered in the left deltoid.” (Ex. 11, p. 1.) Ms. Perkucin
was later deposed on October 22, 2020. (ECF No. 39-1) (“Tr.”.)
During the deposition, Ms. Perkucin confirmed that she had no independent
recollection of petitioner or of administering his vaccinations. (Tr. 5, 9.) However, she
indicated that the basis for her previously submitted written statement was a review of a
“clinic questionnaire” that gets filled out in connection with the administration of
vaccinations. (Id. at 5-6.) During the deposition this was also referred to as a “consent
form.” (Id.) Because Rite Aid did not produce documents in response to petitioner’s
subpoena, this document is not a part of the record of this case. Ms. Perkucin indicated
that she could not volunteer a copy of the document, noting that such a request would
have to go “through corporate.” (Id. at 10.) As noted above, subsequent to the
deposition, neither party sought further discovery to obtain this document.
Respondent’s counsel asked Ms. Perkucin to review the Rite Aid immunization
summary contained in petitioner’s medical records and filed at Exhibit 4, page 21, which
shows that both of petitioner’s vaccinations had been administered in his left shoulder.
(Id. at 7-8; see also Ex. 4, p. 21.) Ms. Perkucin explained that that form was generated
based on what she preliminarily put into the system to process petitioner’s vaccination
through his insurance. She indicated it is generated in advance of determining the
injection site. She confirmed that it is her habit and practice of inputting “left” for the
injection site at this stage because the majority of people are right-hand dominant.
However, in petitioner’s case she subsequently documented on petitioner’s consent
form that his Tdap vaccination was administered in his right shoulder. (Id. at 8-9.) Ms.
Perkucin also testified that her usual practice for administering two vaccines is to
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administer one in each arm. (Tr. at 11.) Ms. Perkucin denied any knowledge of the
“Immunization Record Card” filed as Exhibit 1. (Id. at 10.)
III. Legal Standard
Pursuant to Vaccine Act § 13(a)(1)(A), a petitioner must prove their claim by a
preponderance of the evidence. A special master must consider the record as a whole,
but is not bound by any diagnosis, conclusion, judgment, test result, report, or summary
concerning the nature, causation, and aggravation of petitioner’s injury or illness that is
contained in a medical record. § 13(b)(1). However, the Federal Circuit has held that
contemporaneous medical records are ordinarily to be given significant weight due to
the fact that “the records contain information supplied to or by health professionals to
facilitate diagnosis and treatment of medical conditions. With proper treatment hanging
in the balance, accuracy has an extra premium. These records are also generally
contemporaneous to the medical events.” Cucuras v. Sec’y of Health & Human Servs.,
993 F.2d 1525, 1528 (Fed. Cir. 1993).
Additionally, medical records that are created contemporaneously with the events
they describe are presumed to be accurate and “complete” (i.e., presenting all relevant
information on a patient’s health problems.) Curcuras, 993 F.2d at 1528; Doe v. Sec’y
of Health & Human Servs., 95 Fed. Cl. 598, 608 (2010) (“[g]iven the inconsistencies
between petitioner’s testimony and his contemporaneous medical records, the special
master’s decision to rely on petitioner’s medical records was rational and consistent with
applicable law.”) This presumption is based on the propositions that (i) sick people visit
medical professionals; (ii) sick people honestly report their health problems to those
professionals; and (iii) medical professionals record what they are told or observe when
examining their patients in as accurate a manner as possible, so that they are aware of
the relevant facts to make appropriate treatment decisions. Sanchez v. Sec'y of Health
& Human Servs., No. 11–685V, 2013 WL 1880825, at *2 (Fed. Cl. Spec. Mstr. Apr. 10,
2013), mot. for rev. denied, 142 Fed. Cl. 247, 251-52 (2019), vacated on other grounds
and remanded, 809 Fed. Appx. 843 (Fed Cir. 2020); Cucuras v. Sec'y of Health &
Human Servs., 26 Cl.Ct. 537, 543 (1992), aff'd, 993 F.2d 1525 (Fed. Cir. 1993) (“[i]t
strains reason to conclude that petitioners would fail to accurately report the onset of
their daughter's symptoms. It is equally unlikely that pediatric neurologists, who are
trained in taking medical histories concerning the onset of neurologically significant
symptoms, would consistently but erroneously report the onset of seizures a week after
they in fact occurred”).
Thus, where medical records are clear, consistent, and complete, they should be
afforded substantial weight. Lowrie v. Sec’y of Health & Human Servs., No. 03-1585V,
2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, this rule is
not absolute. In Lowrie, the special master wrote that “written records which are,
themselves, inconsistent, should be accorded less deference than those which are
internally consistent.” Lowrie, 2005 WL 6117474 at *19. Importantly, the Court of
Federal Claims observed that “[i]f a record was prepared by a disinterested person who
later acknowledged that the entry was incorrect in some respect, the later correction
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must be taken into account.” Murphy v. Sec’y of Health & Human Servs., 23 Cl. Ct.
726, 733 (1991) (quoting the decision below), aff’d per curiam, 968 F.2d 1226 (Fed. Cir.
1992).
When witness testimony is offered to overcome the presumption of accuracy
afforded to contemporaneous medical records, such testimony must be “consistent,
clear, cogent, and compelling.” Sanchez, 2013 WL 1880825, at *3 (citing Blutstein v.
Sec'y of Health & Human Servs., No. 90–2808V, 1998 WL 408611, at *5 (Fed. Cl. Spec.
Mstr. June 30, 1998)). Further, the Special Master must consider the credibility of the
individual offering the testimony. Andreu v. Sec’y of Health & Human Servs., 569 F.3d
1367, 1379 (Fed. Cir. 2009); Bradley v. Sec’y of Health & Human Servs., 991 F.2d
1570, 1575 (Fed. Cir. 1993). In determining whether to afford greater weight to
contemporaneous medical records or other evidence, such as testimony, there must be
evidence that this decision was the result of a rational determination. Burns v. Sec'y of
Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993). The special master is
obligated to consider and compare the medical records, testimony, and all other
“relevant and reliable evidence contained in the record.” La Londe v. Sec'y Health &
Human Servs., 110 Fed. Cl. 184, 204 (2013) (citing § 12(d)(3); Vaccine Rule 8), aff'd,
746 F.3d 1334 (Fed. Cir. 2014); see also Burns, 3 F.3d at 417.
IV. Party Contentions
In his motion, petitioner acknowledges the inconsistency reflected by his
immunization record. (ECF No. 40, p. 9.) He notes the importance of
contemporaneous medical records, but also stresses the limitations on the weight given
to inconsistent records. (Id. at 7-8 (citing Curcuas, 993 F.25 at 1528; Lowrie, 2005 WL
6117475 at *20; Camery v. Sec’y of Health & Human Servs., 42 Fed. Cl. 381, 391
(1998); La Londe, 110 Fed. Cl. at 203-04, Murphy, 23 Cl. Ct. at 733).)
Petitioner argues that Ms. Perkucin was a reliable witness and that she
persuasively explained why petitioner’s immunization record was incorrect. (Id. at 9-10
(citing ECF No. 39-1, pp. 8, 12).) Petitioner further notes that Ms. Perkucin
corroborated his own account, testifying that it was not her habit to administer two
vaccines in the same arm. (ECF No. 40, p. 10 (citing ECF No. 39-1, p. 11).) Petitioner
emphasizes that he consistently reported to his treating physicians that his Tdap
vaccine was administered in his right arm, and that this account is consistent with the
petition, affidavit, and Ms. Perkucin’s testimony. Petitioner asks me to disregard the
immunization record and instead, rely on his consistent reports to treating physicians,
his petition and sworn affidavit, and Ms. Perkucin’s corroborating testimony. (ECF No.
40, p. 8.)
In response, respondent stresses that petitioner bears the burden to prove the
prima facie elements of her SIRVA claim and primarily contends that Ms. Perkucin’s
testimony should hold less weight than petitioner suggests because it is uncorroborated,
specifically because petitioner failed to obtain and file his vaccine consent form. (ECF
No. 42, p. 2.) Respondent “leaves it to the discretion of the Special Master to determine
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whether Ms. Perkucin’s testimony, absent corroboration by the consent form, is
sufficient to meet petitioner’s burden of providing the site of vaccine administration.” (Id.
at 3.)
V. Discussion
Although the Rite Aid immunization summary contained in petitioner’s medical
records states that petitioner received his Tdap and flu vaccinations in the left arm, (see
Ex. 4, p. 21), the record as a whole indicates otherwise. This is an issue that arises
repeatedly in the specific context of SIRVA, both because SIRVA is a localized injury
occurring near the site of injection and because experience litigating SIRVA claims has
shown that pharmacy vaccine administration records are not necessarily reliable in
documenting injection site.
In this case, Ms. Perkucin, the pharmacist that administered petitioner’s
vaccinations and who created the administration records at issue, testified that Rite Aid
pharmacy immunization records of the type available at Exhibit 4, p. 21, stem from
inputs completed prior to vaccination because the order for vaccination must be
processed through the vaccinee’s insurance before a vaccine is administered. (Tr. 8.)
She explained that because the majority of people are right-handed, she “always [tries]”
to list a left arm injection site on the pre-administration immunization records even
before she speaks to the patient about where to complete the injection. (Id. at 8, 11-
12.) Ms. Perkucin testified that this is the specific reason the record provided to
petitioner’s physician incorrectly indicates both vaccinations were administered in the
left arm. (Id.)
This testimony is consistent with testimony from a prior case. In Stoliker v.
Secretary of Health & Human Services, testimony by a store manager and pharmacist
indicated that CVS pharmacy likewise inputs the site of injection, typically assuming left,
into their electronic forms in advance of vaccination but keeps a paper copy of the
vaccinee’s consent form at the individual location. No. 17-990V, 2018 WL 6718629
(Fed. Cl. Spec. Mstr. Nov. 9, 2018). In that case, the pharmacist indicated that CVS
policy resulted in about 10% of vaccine administration records needing to be amended
as to injection site upon vaccine administration. (Id. at *4.) Thus, Ms. Perkucin’s
testimony credibly suggests that, with other record evidence indicating administration in
the right arm, the contradictory notation on petitioner’s pharmacy-generated vaccine
administration form should be given less weight.
In this case, Ms. Perkucin also specifically testified that a separate consent form,
completed after vaccination but not a part of this record, correctly indicates petitioner’s
Tdap vaccine was administered in his right arm. (Tr. 5-6, 10.) However, even without
considering the fact of that missing record, Ms. Perkucin’s testimony regarding the way
in which Rite Aid records injection site information provides good reason for discounting
the reliability of the “left” notation on the record at Exhibit 4, p. 21. Importantly,
however, Ms. Perkucin’s testimony calls into question only the “left” notation. The
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immunization summary contained at Exhibit 4, p. 21 is otherwise sufficiently reliable to
constitute evidence as to the fact of petitioner’s two vaccinations.
Also important, petitioner consistently reported to his treating physicians, from
September of 2017 through May of 2019, that his pain began following a right-arm Tdap
vaccination. (See Ex. 2, pp. 4-40; Ex. 3, pp. 4-13, 23-26; Ex. 4, pp. 3-7, 34-35; Ex. 6,
pp. 1-4; Ex. 7, pp. 4-11; Ex. 9, pp. 6-20.) Petitioner’s statements to treating physicians
are consistent with those made in his petition and sworn affidavit. (ECF No. 1, p. 1; Ex.
10, p. 1-2.) Prior cases by other special masters have held that consistent reporting to
treating physicians that a shoulder injury was associated with a specific vaccination in
the same shoulder constitutes probative evidence that can overcome a contradictory
vaccine administration form. See e.g., Desai v. Sec’y of Health & Human Servs., No.
14-811V, 2020 WL 4919777, at *13-14 (Fed. Cl. Spec. Mstr. July 30, 2020); Mogavero
v. Sec’y of Health & Human Servs., No. 18-1197V, 2020 WL 4198762 (Fed. Cl. Spec.
Mstr. May 12, 2020). In this case, considering both the reduced weight of petitioner’s
administration records and the consistency of the contemporaneous treatment records
for his subsequent injury, the record as a whole preponderates in favor of a finding that
petitioner’s Tdap vaccine was administered in his right shoulder.3
Contrary to what respondent suggests in his response and for the reasons stated
above, this conclusion does not turn on Ms. Perkucin’s specific testimony that she
vaccinated petitioner in his right arm. Nonetheless, this outcome is further corroborated
by, though not dependent upon, her statement indicating that “[petitioner] received the
Tetanus vaccine in the upper right deltoid. The flu vaccination was administered to the
left deltoid.” (Ex. 11.) Ms. Perkucin later stated at her deposition that she did not
specifically recall petitioner but testified that her statement was based on her review of
petitioner’s contemporaneously created consent form. (Tr. 5-6.) Ms. Perkucin also
testified that it is her usual habit to administer one vaccine in each arm when a patient
receives two vaccines. (Id. 11-12.) Although the consent form was not filed, Ms.
Perkucin is a disinterested witness with personal knowledge of petitioner’s vaccinations
and the documentation of those vaccinations. Her testimony that she had access to
petitioner’s contemporaneously created consent form explains the basis for her
testimony regarding the site of injection; however, her testimony relates to a fact that
exists independently of the consent form. Accord Travelers Ins. Co. V. U.S., 46 Fed. Cl.
458, 462-63 (2000) (noting that the best evidence rule “does not, however, prevent the
introduction in evidence of facts about the document, or facts that exist independently of
the document that are not given legal consequence by the terms of the document.”);
Wonish v. Sec’y of Health & Human Servs., No. 90-667V, 1991 WL 83959, at *4 (Cl. Ct.
Spec. Mstr. May 6, 1991)(stating with regard to § 300aa-13(a)(1) that “it seems obvious
3 Petitioner also filed an additional “Immunization Record Card” as Exhibit 1. That record indicates
petitioner received his Tdap vaccination in his right arm; however, the provenance of that document is not
clear on this record. Ms. Perkucin denied that this is a document she would have given petitioner. (Tr. 9-
10.) Petitioner also had no recollection regarding the creation of this card. (Ex. 10, p. 2.) Notably, this
card is unsigned and does not document the flu vaccine petitioner received at the same time. Because
the remainder of the record evidence supports the finding that petitioner’s Tdap vaccine was administered
in his right arm, I do not rely on the Immunization Record Card in reaching this conclusion and it is
therefore not necessary to resolve its origin.
9

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then that not all elements must be established by medical evidence” and that
“vaccination is an event that in ordinary litigation could be established by lay testimony.
Medical expertise is not typically required.”)
In his response, respondent indicates that “in respondent’s view, the failure to
obtain the consent form should result in a negative inference against petitioner’s
arguments.” (ECF No. 42, p. 3.) In requesting an adverse inference, respondent relies
on Omni Moving & Storage of Virginia, Inc. v. United States, 27 Fed. Cl. 677, 693
(1993), on reconsideration (June 2, 1993), dismissed, No. 93-5203, 1994 WL 745410
(Fed. Cir. Jan. 25, 1994). Omni Moving & Storage is inapposite. In that case, the Court
of Federal Claims imposed the “adverse inference” sanction due to the failure to call two
witnesses, observing that “[u]nexplained failure to call any known non-hostile person
who has direct knowledge of the facts being developed by the party raises the inference
that the testimony would be unfavorable or at least would not support the case.” Id. at
693. However, in this case petitioner did initially locate Ms. Perkucin as a relevant
witness and she did ultimately testify at respondent’s request. Moreover, petitioner
previously attempted to subpoena the document at issue and was unsuccessful. (ECF
Nos. 10-11, 21.)
Although respondent believes the missing consent form constitutes significant
outstanding evidence, adverse inferences relative to documentary evidence typically
arise in the context of allegations regarding spoliation of evidence within a party’s
control and respondent has not substantiated that this or any sanction is warranted in
the instant context. Vaccine Rule 8(b) provides that in receiving evidence, the special
master “must consider all relevant and reliable evidence governed by principles of
fundamental fairness to both parties.” Although petitioner bears the initial burden of
proof regarding the injection site, the document at issue is not under petitioner’s control
and petitioner has previously attempted in seeming good faith to secure the discovery at
issue via subpoena. To the extent respondent believes the outstanding document could
aid his defense or doubts petitioner’s diligence, he has not articulated why Vaccine Rule
7 itself, which allows either party to seek formal discovery and request subpoena
authority, is not an adequate remedy for respondent’s concern regarding the absence of
this document from the record.
VI. Conclusion
In light of the above, the record as a whole preponderates in favor of the finding that
petitioner’s August 29, 2017 Tdap vaccine was administered in his right arm.
IT IS SO ORDERED.
s/Daniel T. Horner
Daniel T. Horner
Special Master
10

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DOCUMENT 2: USCOURTS-cofc-1_18-vv-01977-1
Date issued/filed: 2022-02-23
Pages: 7
Docket text: PUBLIC DECISION (Originally filed: 1/25/2022) regarding 58 DECISION Stipulation/Proffer. Signed by Special Master Daniel T. Horner. (tkp) Service on parties made.
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Case 1:18-vv-01977-UNJ Document 62 Filed 02/23/22 Page 1 of 7
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1977V
Filed: January 25, 2022
UNPUBLISHED
MICHAEL MEZZACAPO,
Petitioner,
Joint Stipulation on Damages;
v.
Influenza (“Flu”) vaccine; Tetanus,
diphtheria, acellular pertussis
SECRETARY OF HEALTH AND
(“Tdap”) vaccine; Shoulder Injury
HUMAN SERVICES,
Related to Vaccine Administration
(“SIRVA”)
Respondent.
Leah Durant, Law Offices of Leah V. Durant, PLLC, Washington, D.C., for petitioner.
Voris E. Johnson, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION1
On December 27, 2018, petitioner filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the
“Vaccine Act”). Petitioner alleges that he suffered a right Shoulder Injury Related to
Vaccine Administration (“SIRVA”). Petition at 1; Stipulation, filed January 25, 2022, at ¶
4. Petitioner further alleges that he has experienced the residual effects of his condition
for more than six months, that there has been no prior award or settlement of a civil
action for damages as a result of his condition, and that his vaccines were administered
in the United States. Petition at 2; Stipulation at ¶¶ 3-5. “Respondent denies that
petitioner sustained a Table SIRVA within the Table timeframe, and denies that the
Tdap vaccine and/or flu vaccine in fact caused his alleged shoulder injury and residual
effects, or any other injury.” Stipulation at ¶ 6.
Nevertheless, on January 25, 2022, the parties filed the attached joint stipulation,
stating that a decision should be entered awarding compensation. I find the stipulation
1 Because this decision contains a reasoned explanation for the special master’s action in this case, it will
be posted on the United States Court of Federal Claims’ website in accordance with the E-Government
Act of 2002. See 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 the special master, upon review, agrees that the identified material fits within this definition, it will be
redacted 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).

Case 1:18-vv-01977-UNJ Document 62 Filed 02/23/22 Page 2 of 7
reasonable and adopt it as the decision of the Court in awarding damages, on the terms
set forth therein.
Pursuant to the terms stated in the attached Stipulation, I award the following
compensation:
A lump sum of $50,532.58 in the form of a check payable to petitioner.
Stipulation at ¶ 8. This amount represents compensation for all items of
damages that would be available under § 15(a). Id.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the
clerk of the court is directed to enter judgment in accordance with this decision.3
IT IS SO ORDERED.
s/Daniel T. Horner
Daniel T. Horner
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.
2

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