VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-00186
Package ID: USCOURTS-cofc-1_19-vv-00186
Petitioner: Diana Schmauder
Filed: 2019-01-31
Decided: 2021-05-24
Vaccine: Prevnar 13
Vaccination date: 2016-07-13
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 72500

AI-assisted case summary:
Diana Schmauder filed a petition on January 31, 2019, seeking compensation for a shoulder injury related to vaccine administration (SIRVA) following her Prevnar 13 vaccination on July 13, 2016. The respondent is the Secretary of Health and Human Services. A fact hearing was held on January 28, 2021, to determine the onset of Ms. Schmauder's injury. On February 1, 2021, the Special Master issued a ruling finding that Ms. Schmauder's shoulder pain began within 48 hours of her vaccination. The respondent, in an amended Rule 4(c) report filed on March 30, 2021, stated that they would not defend against the claim, conceding that based on the Special Master's factual finding regarding the onset of injury, Ms. Schmauder was entitled to compensation. The Special Master, Christian J. Moran, issued a ruling on April 16, 2021, finding that Ms. Schmauder was entitled to compensation. A decision was issued on April 26, 2021, awarding compensation. Ms. Schmauder's counsel confirmed on April 13, 2021, that Ms. Schmauder's damages claim was limited to compensation for past pain and suffering, and she was waiving any claims for unreimbursed out-of-pocket expenses or future pain and suffering. The Special Master had previously issued a tentative finding on February 1, 2021, for damages for pain and suffering totaling $72,500. This tentative finding was based on factors including the severity of the injury and interference with daily activities, presence of range of motion issues, whether cortisone injections were received, whether physical therapy was undergone, and whether surgery was performed. Ms. Schmauder experienced significant interference with daily activities and some range of motion issues in the first month post-vaccination, received two cortisone injections, and approximately fifteen physical therapy sessions, with no surgery. Ms. Schmauder accepted the tentative finding of $72,500. The Secretary did not explicitly endorse this amount but did not oppose it. The Special Master awarded Ms. Schmauder a lump sum payment of $72,500 for pain and suffering, payable to Diana Schmauder, representing compensation for all damages available under 42 U.S.C. § 300aa-15(a). Petitioner's counsel was Jeffrey S. Pop of Jeffrey S. Pop & Associates. Respondent's counsel was Adriana R. Teitel of the United States Department of Justice. Special Master Christian J. Moran presided over the case.

Theory of causation field:
Petitioner Diana Schmauder alleged a shoulder injury related to vaccine administration (SIRVA) following a Prevnar 13 vaccination on July 13, 2016. The Special Master, Christian J. Moran, found that the onset of Ms. Schmauder's shoulder pain occurred within 48 hours of the vaccination. The respondent conceded entitlement based on this factual finding. The case proceeded to damages. Ms. Schmauder sought compensation only for past pain and suffering, waiving claims for out-of-pocket expenses and future pain and suffering. The Special Master awarded $72,500 for pain and suffering, considering factors such as injury severity, interference with daily activities, range of motion issues, cortisone injections, and physical therapy. The public decision does not detail the specific mechanism of injury or name medical experts. The theory of causation is based on the "on-Table" nature of the injury, as indicated by the respondent's concession and the Special Master's ruling on entitlement. The award of $72,500 represents compensation for pain and suffering. Petitioner was represented by Jeffrey S. Pop, and respondent by Adriana R. Teitel. The decision date was April 26, 2021, with an entitlement ruling on April 16, 2021, and a tentative damages finding on February 1, 2021.

Public staged source text:

================================================================================
DOCUMENT 1: USCOURTS-cofc-1_19-vv-00186-0
Date issued/filed: 2021-03-01
Pages: 3
Docket text: PUBLIC ORDER/RULING (Originally filed: 02/01/2021) regarding 49 Findings of Fact & Conclusions of Law Signed by Special Master Christian J. Moran. (hh) Service on parties made.
--------------------------------------------------------------------------------
Case 1:19-vv-00186-UNJ Document 55 Filed 03/01/21 Page 1 of 3
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
* * * * * * * * * * * * * * * * * * * * *
DIANA SCHMAUDER, *
*
Petitioner, * No. 19-186V
* Special Master Christian J. Moran
v. *
*
SECRETARY OF HEALTH * Filed: February 1, 2021
AND HUMAN SERVICES, *
* Onset of shoulder pain, fact ruling
Respondent. *
* * * * * * * * * * * * * * * * * * * * *
Jeffrey S. Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA, for petitioner;
Adriana R. Teitel, United States Dep’t of Justice, Washington, DC, for respondent.
FINDING OF FACT
A one-day hearing was held on January 28, 2021. At the hearing, testimony was taken
from petitioner, Ms. Diana Schmauder, and four witnesses, Ms. Judy Adams, Ms. Marianne
Thomson, Mr. Randy Schmauder, and Ms. Jennie Turner. All witnesses appeared remotely via
videoconferencing. At the end of the hearing, the undersigned found that Ms. Schmauder has
met her evidentiary burden of establishing that her shoulder pain started within 48 hours of
receiving her Prevnar 13 vaccine on July 13, 2016. The undersigned additionally made a
tentative finding of fact with respect to the amount of damages for pain and suffering, which is
contained in an order filed concurrently with this fact-finding order. For the purposes of the
record, the bases for finding that Ms. Schmauder’s shoulder pain began within 48 hours of the
vaccination are briefly reviewed below.
* * *
Petitioners are required to establish the elements of their case by a preponderance of the
evidence. 42 U.S.C. § 300aa–13(1)(a). The preponderance of the evidence standard requires a
“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 v. Sec’y of Health & Human Servs., 592 F.3d 1315, 1322 n.2 (Fed. Cir.
2010) (citations omitted).
The process for finding facts in the Vaccine Program generally begins with analyzing the
medical records, which are required to be filed with the petition. 42 U.S.C. § 300aa–11(c)(2).
As a matter of practice, when making findings of facts the undersigned gives substantial weight
to records, such as medical records, that are created contemporaneously with the events they

Case 1:19-vv-00186-UNJ Document 55 Filed 03/01/21 Page 2 of 3
describe. Appellate courts have recognized that factfinders are well-within their discretion when
choosing to give significant weight to contemporaneously created records. See, e.g., Cucuras v.
Sec’y of Health & Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993). Of course, the presence
or absence of medical records is not dispositive or binding on the outcome. Instead, the
undersigned is tasked with evaluating the entirety of the evidence in the record and determining,
based on that evidence, which facts are more likely to be true than not.
* * *
Prior to the hearing, the Secretary contested Ms. Schmauder’s claim that her arm pain
began within 48 hours of her vaccination. See Resp’t’s Status Rep., filed Sept. 24, 2020. In
response, Ms. Schmauder developed additional evidence. Based on the affidavits of Kristy
Major, Jessica Johnson, and Ms. Schmauder herself, the undersigned tentatively found that Ms.
Schmauder’s shoulder pain began no later than September 12, 2016. See order, issued Jan. 21,
2021; exhibits 1 ¶ 8, 12 ¶ 4, 15 ¶ 6. Accordingly, at the hearing, the undersigned evaluated
whether the existence of onset within 48 hours was more probable than not.
Given that the Secretary did not allege any shoulder pain prior to vaccination, the
relevant time period for consideration is July 13, 2016 (the date of vaccination), to September 12,
2016. Notably, Ms. Schmauder did not mention her shoulder pain to medical personnel until
December 19, 2016, when she called the AARP nurse help line, and did not mention the shoulder
pain to one of her ongoing medical providers, Dr. McCoy, until January 6, 2017. She had two
medical appointments between vaccination and these dates – (1) a physical therapy appointment
to address her BPPV on July 19, 2016, and (2) a gynecology appointment on August 26, 2016.
She did not mention shoulder pain at either of these appointments. Preliminarily, the
undersigned finds it reasonable that Ms. Schmauder would not report shoulder pain to a
gynecologist. Additionally, Ms. Schmauder discontinued physical therapy to address her vertigo
after the July 19, 2016 appointment and, therefore, was not attending medical appointments
during the relevant time period, in which she could have reported her shoulder pain. With this
lack of medical records created in the relevant time period, the undersigned considered the
testimonies of the testifying witnesses.
The testimonies from the witnesses other than Ms. Schmauder supported the assertion
that Ms. Schmauder’s shoulder pain began earlier than when she reported it to the AARP nurse’s
line. The testimonies of Ms. Adams and Ms. Thomson support the finding that Ms. Schmauder’s
shoulder pain began in mid-July after her vaccination, and that she began to experience mobility
issues and trouble with physical tasks involved in her volunteer work with both witnesses
approximately 2-3 weeks following the vaccination. The undersigned found both of these
witnesses to be credible and, though their accounts are not dispositive, they tend to reinforce
each other and support Ms. Schmauder’s account. Similarly, the testimonies of Ms.
Schmauder’s children also support Ms. Schmauder’s claim regarding onset, given their
memories of changes in her daily life and activities following vaccination, which she attributed
to the vaccine.
Though Ms. Schmauder’s medical records indicate a significant delay in seeking medical
treatment (she did not see a medical provider specifically for treatment of shoulder pain until
April 25, 2017), she consistently attributed her pain to the vaccination. See exhibit 1 ¶ 10, and
exhibit 26 (call with AARP nurse on December 19, 2016); exhibit 10 at 1 (portal communication
2

Case 1:19-vv-00186-UNJ Document 55 Filed 03/01/21 Page 3 of 3
with Dr. McCoy on January 6, 2017); exhibit 3 at 107 (report to Amanda Pinzon on April 25,
2017). The consistency of these attributions, combined with the consistent testimonies of Ms.
Adams, Ms. Thomson, and Ms. Schmauder’s children, bolster Ms. Schmauder’s claim that her
shoulder pain began immediately following the vaccination and make it unlikely that Ms.
Schmauder is misremembering the date and details of onset.
* * *
Ultimately, the undersigned has reviewed all the medical records and the testimony
provided by Ms. Schmauder and her witnesses. Accordingly, the undersigned finds that
preponderant evidence exists to conclude that, more likely than not, Ms. Schmauder’s shoulder
pain started within 48 hours of her vaccination.
Accordingly, Ms. Schmauder is ORDERED to file a status report regarding proposed
next steps by Monday, March 1, 2021.
Any questions may be directed to my law clerk, Haley Hawkins, at (202) 357-6360.
IT IS SO ORDERED.
s/ Christian J. Moran
Christian J. Moran
Special Master
3

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_19-vv-00186-1
Date issued/filed: 2021-05-03
Pages: 2
Docket text: PUBLIC ORDER/RULING (Originally filed: 04/16/2021) regarding 59 Ruling on Entitlement. Signed by Special Master Christian J. Moran. (hh) Service on parties made.
--------------------------------------------------------------------------------
Case 1:19-vv-00186-UNJ Document 61 Filed 05/03/21 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
* * * * * * * * * * * * * * * * * * * * * * *
DIANA SCHMAUDER, *
*
* No. 19-186V
* Special Master Christian J. Moran
Petitioner, *
*
v. * Filed: April 16, 2021
*
SECRETARY OF HEALTH * Entitlement; On-Table injury.
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * * * * * * * * *
Jeffrey S. Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA, for Petitioner;
Adriana R. Teitel, United States Department of Justice, Washington, DC, for Respondent.
UNPUBLISHED RULING FINDING ENTITLEMENT1
On January 31, 2019, Diana Schmauder sought compensation for shoulder injury related
to vaccine administration (“SIRVA”) following her Prevnar 13 vaccination on July 13, 2016.
Ms. Schmauder seeks compensation pursuant to the National Vaccine Injury Compensation
Program, 42 U.S.C. § 300aa-10 through 34 (2012).
On January 28, 2021, a fact hearing was held to determine the onset of Ms. Schmauder’s
injury. A ruling was then issued on February 1, 2021, finding that Ms. Schmauder’s shoulder
pain began within 48 hours of her vaccination. Also, on February 1, 2021, the undersigned
issued a tentative finding regarding the amount of damages for pain and suffering totaling
$72,500.
In an amended Rule 4(c) report filed on March 30, 2021, respondent stated that he will
not continue to the defend against Ms. Schmauder’s claim. Respondent stated that the Division
of Vaccine Injury Compensation, Department of Health and Human Services, has reviewed the
1 The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services), requires that the Court post this ruling on its
website. This posting will make the ruling available to anyone with the internet. Pursuant to
Vaccine Rule 18(b), the parties have 14 days to file a motion proposing redaction of medical
information or other information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions
ordered by the special master will appear in the document posted on the website.

Case 1:19-vv-00186-UNJ Document 61 Filed 05/03/21 Page 2 of 2
facts of this case and have concluded that “[r]ecognizing that the Special Master’s factual
finding, that the onset of petitioner’s shoulder pain occurred within forty-eight hours of her
vaccination, is the law of the case, respondent advises that he will not defend the case on other
grounds during further proceedings before the Office of Special Masters.” Resp’t’s Am. Rep.,
filed Mar. 30, 2021, at 2.
Special masters may determine whether a petitioner is entitled to compensation based
upon the record. A hearing is not required. 42 U.S.C. § 300aa-13; Vaccine Rule 8(d). Based
upon a review of the record as a whole, the undersigned finds that petitioner has established that
she is entitled to compensation for her injury.
Accordingly, Ms. Schmauder is entitled to compensation.
Any questions may be directed to my law clerk, Haley Hawkins, at (202) 357-6360.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
2

================================================================================
DOCUMENT 3: USCOURTS-cofc-1_19-vv-00186-2
Date issued/filed: 2021-05-24
Pages: 3
Docket text: PUBLIC DECISION (Originally filed: 04/26/2021) regarding 60 DECISION of Special Master. Signed by Special Master Christian J. Moran. (hh) Service on parties made.
--------------------------------------------------------------------------------
Case 1:19-vv-00186-UNJ Document 62 Filed 05/24/21 Page 1 of 3
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
* * * * * * * * * * * * * * * * * * * * *
DIANA SCHMAUDER, *
* No. 19-186V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: April 26, 2021
*
SECRETARY OF HEALTH * Damages; Prevnar 13 vaccine;
AND HUMAN SERVICES, * SIRVA; shoulder injury.
*
Respondent. *
* * * * * * * * * * * * * * * * * * * * *
Jeffrey S. Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA, for petitioner;
Adriana R. Teitel, United States Dep’t of Justice, Washington, DC, for respondent.
UNPUBLISHED DECISION AWARDING COMPENSATION1
On January 31, 2019, Diana Schmauder sought compensation for shoulder
injury related to vaccine administration (“SIRVA”) following her Prevnar 13
vaccination on July 13, 2016. Ms. Schmauder seeks compensation pursuant to the
National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 through 34
(2012).
A fact hearing was held on January 28, 2021. In advance of the hearing, the
undersigned reviewed all documentary evidence. The parties highlighted the most
important documents during the hearing through the oral testimony of Ms.
Schmauder and other percipient witnesses.
1 The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services), requires that the Court post this decision on its
website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing
redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4).
Any redactions ordered by the special master will appear in the document posted on the website.

Case 1:19-vv-00186-UNJ Document 62 Filed 05/24/21 Page 2 of 3
The undersigned issued two documents on February 1, 2021. First, the
undersigned issued a ruling finding the onset of Ms. Schmauder’s shoulder pain
began within two days of her vaccination. Second, the undersigned issued a
tentative finding indicating a reasonable amount of damages for pain and suffering
totaled $72,500. This tentative finding was based on the facts and circumstances
of Ms. Schmauder’s case. In reaching this tentative finding, the undersigned
considered other roughly analogous cases in the Vaccine Program. Factors
considered in comparing Ms. Schmauder’s case included: (1) severity of the injury
and interference with daily activities, (2) presence of range of motion issues, (3)
whether petitioner received cortisone injections, (4) whether petitioners underwent
physical therapy, and (5) whether petitioners had surgery related to the injury. Ms.
Schmauder experienced significant interference with daily and routine activities,
and some range of motion issues in the first month following her vaccination. She
also received two cortisone injections, approximately fifteen physical therapy
sessions, and no surgery.
The ruling regarding onset altered the Secretary’s assessment of the case.
The Secretary conceded that based upon the finding of fact, Ms. Schmauder was
entitled to compensation. Resp’t’s Am. Rep., filed Mar. 30, 2021.
A status conference was held on April 13, 2021. In this status conference,
Ms. Schmauder’s counsel confirmed that Ms. Schmauder’s damages claim is
limited to compensation for past pain and suffering. She was waiving any minimal
unreimbursed out-of-pocket expenses. She also was not claiming any
compensation for future pain and suffering.
The undersigned then issued a ruling finding entitlement on April 16, 2021.
The remaining question is the amount of compensation to which Ms. Schmauder is
entitled.
For the reasons explained in the February 1, 2021 order presenting a
tentative finding regarding the amount of compensation, Ms. Schmauder’s pain
and suffering merits an award of $72,500. In the April 13, 2021 status conference,
Ms. Schmauder accepted this tentative finding. While the Secretary did not
explicitly endorse this tentative finding, the Secretary also did not oppose it. The
Secretary has not presented any reason why the tentative finding is not reasonable.
See Vaccine Rule 8(f).
Accordingly, Ms. Schmauder’s damages are as follows:
2

Case 1:19-vv-00186-UNJ Document 62 Filed 05/24/21 Page 3 of 3
A lump sum payment of $72,500 representing compensation for pain
and suffering, in the form of a check payable to petitioner, Diana
Schmauder. This amount represents compensation for all damages
available under 42 U.S.C. § 300aa-15(a).
In the absence of a motion for review filed pursuant to RCFC, Appendix B,
the clerk is directed to enter judgment according to this decision.2
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
2 Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgment by each
party filing a notice renouncing the right to seek review by a United States Court of Federal
Claims judge.
3