VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-01442
Package ID: USCOURTS-cofc-1_19-vv-01442
Petitioner: Michael G. McCarty
Filed: 2019-07-18
Decided: 2025-08-21
Vaccine: influenza
Vaccination date: 2018-10-03
Condition: pain and abscesses
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Michael G. McCarty filed a petition for compensation under the National Vaccine Injury Compensation Program on September 19, 2019, alleging that an influenza vaccine he received on October 3, 2018, caused adverse effects, including pain and abscesses. Mr. McCarty was 38 years old at the time of vaccination. The respondent opposed the claim, arguing that the statutory six-month severity requirement could not be met. The public decision does not describe the petitioner's counsel or the respondent's counsel. The Special Master, Chief Special Master Brian H. Corcoran, reviewed the submissions and found a lack of preponderant evidence that the alleged injury persisted for at least six months post-vaccination. The petition was dismissed for failure to establish entitlement. Mr. McCarty first noticed a knot and experienced pain at the vaccine site in mid-December 2018, approximately three months after vaccination. He was treated by Dr. William Sutherland on January 24, 2019, for a tender, draining abscess, which involved incision and drainage. Fluid samples were positive for bacteria. On February 15, 2019, he saw infectious disease specialist David Dougherty, M.D., for a "mycobacterium fortuitum right arm abscess following a vaccine administration." Dr. Dougherty observed an open wound and prescribed antibiotics. Later that month, the wound had healed, though tenderness and swelling remained, and Mr. McCarty was advised to continue antibiotics for at least one month. In mid-March 2019, approximately three months after the reported onset, Mr. McCarty returned to Dr. Dougherty, denying tenderness, with the wound completely healed. Dr. Dougherty instructed him to continue antibiotics for another two weeks, possibly ceasing thereafter. No further treatment records were filed. The petitioner argued that the abscess might take three to six months to resolve and that he experienced residual effects. The respondent argued that the onset was December 12, 2018, requiring severity through June 12, 2019, but the last documented treatment was March 13, 2019, with anticipated cessation of treatment by the end of March, totaling approximately three and a half months. The Special Master agreed, finding the injury resolved well within the six-month timeframe. The petitioner also claimed a persistent scar, but provided no corroborating evidence such as a photograph. The Special Master noted that while a scar could establish sequelae, the petitioner had not offered proof despite ample time. The petition was dismissed, and the Clerk of the Court was ordered to enter judgment.

Theory of causation field:
Petitioner Michael G. McCarty, age 38, received an influenza vaccine on October 3, 2018. He alleged adverse effects including pain and abscesses. The alleged onset of symptoms, including a knot and pain at the vaccine site, was mid-December 2018. Treatment for a shoulder abscess, including incision and drainage, occurred in January 2019, with follow-up by an infectious disease specialist, David Dougherty, M.D., in February and March 2019. The abscess was reported as healed by mid-March 2019, approximately three and a half months after onset. The Special Master, Brian H. Corcoran, dismissed the petition, finding that the petitioner failed to meet the National Vaccine Injury Compensation Program's six-month severity requirement, as the injury and treatment concluded well within this period. The petitioner's claim of a persistent scar was unsubstantiated by evidence. The public decision does not detail the specific theory of causation, expert testimony, or mechanism of injury beyond the general allegation of an abscess following vaccination, nor does it specify award details as the case was dismissed.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_19-vv-01442-0
Date issued/filed: 2025-08-21
Pages: 5
Docket text: PUBLIC DECISION (Originally filed: 07/18/25) regarding 32 DECISION of Special Master. Signed by Chief Special Master Brian H. Corcoran. (ers) Service on parties made.
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Case 1:19-vv-01442-UNJ Document 34 Filed 08/21/25 Page 1 of 5
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1442V
* * * * * * * * * * * * * * * * * * * * * * * * * Chief Special Master Corcoran
MICHAEL G. MCCARTY, *
* Filed: July 18, 2025
Petitioner *
*
v. *
*
SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
*
Respondent *
*
* * * * * * * * * * * * * * * * * * * * * * * * *
ENTITLEMENT DECISION1
On September 19, 2019, Michael McCarty filed a petition for compensation under the
National Vaccine Injury Compensation Program (the “Vaccine Program”).2 Petitioner alleges that
an influenza vaccine he received on October 3, 2018, caused “adverse effects,” including
“symptoms of pain and abscesses.” See generally Petition, dated Sep. 19, 2019 (ECF No. 1). The
vaccine he received was administered by a Kentucky mobile vaccination entity that was later
determined to have exercised inadequate safety control over its vaccines, resulting in numerous
vaccinated individuals experiencing comparable abscess injuries.
Respondent opposes Petitioner's claim, arguing that the Act's “severity” requirement
cannot be met. After a careful review of the entirety of the parties’ submissions, I find there is a
lack of preponderant evidence that the alleged injury persisted for at least six months post-
vaccination. See 42 U.S.C. § 300aa-11(c)(1)(D). Accordingly, entitlement cannot be found in
Petitioner’s favor, and the case is appropriately dismissed.
1 Under Vaccine Rule 18(b), each party has fourteen (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). Otherwise, the whole Ruling will be available to the public in
its present form. Id.
2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”).
Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).

Case 1:19-vv-01442-UNJ Document 34 Filed 08/21/25 Page 2 of 5
I. Relevant Procedural History
This matter was initiated at the same time as a number of related petitions brought by
similarly-situated claimants.3 Respondent raised an overarching objection to these claims—that
they did not fall within the ambit of the Program due to third-party negligence that resulted in the
subsequent abscess injuries. The parties consented to resolution of entitlement in one “test case,”
the results of which could then be applied to the related cases. On April 25, 2024, I ruled in favor
of the petitioner in the test case, finding that the administration of the influenza vaccine had caused
him to experience a right shoulder skin abscess associated with a bacterial infection. See Silvers v.
Sec'y of Health & Hum. Servs., No. 20-1V, 2024 WL 2799285 (Fed. Cl. Spec. Mstr. Apr. 25,
2024).
On September 17, 2024, I held a telephonic status conference (under the auspices of the
test case matter) to discuss the remaining cases. I proposed at that time that Respondent evaluate
the related matters and determine if entitlement could be conceded in light of my ruling, or if facts
specific to the remaining cases required different treatment. I later ordered the parties in the fall of
2024 to resolve damages, or to propose a briefing schedule for their dispute. After some delay,
Petitioner filed a motion for ruling on the record in this matter. See Motion, dated June 13, 2025
(ECF No. 30) (“Mot.”). Respondent opposed it (combining his brief with a Rule 4(c) Report) on
July 11, 2025, arguing therein that the Act’s six-month severity requirement could not be met.
Rule 4(c) Report, dated July 11, 2025 (ECF No. 31) (“Opp.”). The matter is now ripe for decision.
II. Factual Background
Petitioner was 38 years old at the time of vaccination, and received the vaccine in issue on
October 3, 2018, from the same mobile vaccination entity discussed in Silvers. Ex. 10 at 1–2.
Petitioner has alleged that “sometime following the administration” of the vaccine he began to
experience shoulder pain. Affidavit, dated October 30, 2019, previously filed as ECF No. 10-4.4
On January 24, 2019 (approximately three months after vaccination), Petitioner saw Dr.
William Sutherland, reporting concerns that he had an arm abscess that was tender, causing some
drainage, and that resulted in mild pain. Ex. 3 at 1. Exam revealed fluid under the skin of the
3 See generally Silvers v. Secretary of Health & Hum. Services, No. 20-1V, 2024 WL 2799285 (Fed. Cl. Spec. Mstr.
Apr. 25, 2024); Mynhier v. Sec'y of Health & Hum. Servs., No. 19-1441 (Fed. Cl. filed Sep. 19, 2019); Helton v. Sec'y
of Health & Hum. Servs., No. 19-1440 (Fed. Cl. filed Sep. 19, 2019); Thomas v. Sec'y of Health & Hum. Servs., No.
19-1443 (Fed. Cl. filed Sep. 19, 2019); Lykins v. Sec'y of Health & Hum. Servs., No. 19-1444V (Fed. Cl. filed Sep.
19, 2019). Silvers involved different counsel (who represented a different group of petitioners), but raised the same
causation theory, and counsel in this matter agreed to be bound by the Silvers determination.
4 This affidavit, along with several other documents initially offered in the case, was stricken from the record in
October 2020 (ECF No. 19) due to filing irregularities, and does not appear to have been refiled later.
2

Case 1:19-vv-01442-UNJ Document 34 Filed 08/21/25 Page 3 of 5
affected area (which appeared somewhat inflamed), and Dr. Sutherland assessed Petitioner with
an abscess. Id. at 2. He performed an incision, drained the impacted area, and sent out fluid samples
from the procedure for testing (which were later found positive for a bacterium). Id. at 12.
On February 15, 2019, Mr. McCarty saw an infectious disease specialist (David Dougherty,
M.D.), regarding his “mycobacterium fortuitum right arm abscess following a vaccine
administration.” Ex. 2 at 24. He identified December 12, 2018, as when “he noticed the
development of a knot at the vaccine site following a sharp pain in his right arm.” Id. Dr. Dougherty
deemed the abscess to be “part of the possible mass contaminated vaccine administration.” Id. On
exam, he observed an “open wound overlying [the right] deltoid less than 1 cm in diameter and
about 1 cm deep into fat layer with some surrounding ongoing induration and tenderness to
palpation.” Id. at 26.
Based on exam evidence that some active infection was occurring, Dr. Dougherty
prescribed antibiotics. Ex. 2 at 27. Later on that February, Petitioner returned to Dr. Dougherty,
and it was noted that since starting on the antibiotics the “wound ha[d] completely healed up,”
although some tenderness and swelling remained. Id. at 13. Petitioner was advised to continue
taking antibiotics “for at least one month.” Id. at 16.
In mid-March 2019 (now about three months since Petitioner’s reported mid-December
2018 onset), Mr. McCarty went back to Dr. Dougherty. Ex. 2 at 1. He now denied any arm
tenderness, and Dr. Dougherty opined that Petitioner’s “[p]rior wound remains completely
healed,” with lab work also suggesting no lingering issues. Id. at 1, 5. He instructed Petitioner to
remain on his antibiotic regimen for another two weeks, but to possibly cease it thereafter, given
his improvement. Id. at 5.
No further records regarding Petitioner’s treatment in the time period afterward have been
filed.
III. Parties’ Arguments
Petitioner claims that he experienced residual effects and/or complications for more than
six months after the administration of the vaccine. Mot. at 2. In particular, he emphasizes that
although in March 2019 Petitioner was informed that he would not likely need to treat the abscess
more than a month beyond, he was also told by Dr. Dougherty that an abscess due to a bacterial
infection of this kind might take a total of three to six months to resolve. Id. (citing Ex. 3 at 16).
Petitioner also acknowledged he first observed the lump on his arm that proved to be an abscess
in December 2018. Id. at 1. He offered no additional evidence to establish treatment or injury
persistence beyond March 2019, however.
3

Case 1:19-vv-01442-UNJ Document 34 Filed 08/21/25 Page 4 of 5
Respondent maintains that Petitioner has not satisfied the statutory “severity” requirement
for his vaccine injury, by demonstrating that sequelae from his abscess persisted at least through
April 2019 (assuming an immediate onset at the time of vaccination). Opp. at 6. The record in this
case demonstrates an onset of December 12, 2018—meaning severity must be shown through June
12, 2019. Id. at 5. However, Petitioner’s last documented treatment visit for the abscess occurred
on March 13, 2019. Id. at 6. And even if Petitioner had continued to receive antibiotics for the
abscess beyond this date, Dr. Dougherty did not anticipate that such treatment would go beyond
the end of March (two weeks beyond March 13th). Id. at 6 n.4 (citing Ex. 2 at 5). Thus, Petitioner’s
course of treatment lasted approximately three and a half months from approximately December
12, 2018, to the end of March 2019—well inside the six-month timeframe defined by the Act. And
Petitioner has otherwise not corroborated contentions that the abscess resulted in a permanent scar.
Id. at 6.
IV. Statutory Severity Requirement
Petitioners carry the burden of establishing the matters required in the petition by a
preponderance of the evidence. §13(a)(1)(A). One such requirement is “documentation
demonstrating severity—generally, that the petitioner “suffered the residual effects or
complications of such [vaccine-related] illness, disability, injury, or condition for more than 6
months after the administration of the vaccine.” § 11(c)(1)(D)(i)9; see also Black v. Sec'y of Health
& Hum. Servs., 33 Fed. Cl. 546, 550 (1995) (reasoning that the “potential petitioner” must not only
make a prima facie case, but clear a jurisdictional threshold, by “submitting supporting
documentation which reasonably demonstrates that a special master has jurisdiction to hear the
merits of the case”), aff'd, 93 F.3d 781 (Fed. Cir. 1996) (internal citations omitted).
Congress has stated that the severity requirement was designed “to limit the availability of
the compensation system to those individuals who are seriously injured from taking a vaccine.”
H.R. REP. 100-391(I), at 699 (1987), reprinted in 1987 U.S.C.C.A.N. 2313–1, 2313–373, cited in
Cloer v. Sec'y of Health & Hum. Servs., 654 F.3d 1322, 1335 (Fed. Cir. 2011), cert. denied, 132
S.Ct. 1908 (2012); Wright v. Sec'y of Health & Hum. Servs., 22 F.4th 999, 1002 (Fed. Cir. 2022).
The Act prohibits finding a petition requirement “based on the claims of a petitioner alone,
unsubstantiated by medical records or by medical opinion.” §13(a)(1). Medical records must be
considered, see §13(b)(1), and are generally afforded substantial weight. Cucuras v. Sec'y of
Health & Hum. Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993); Murphy v. Sec'y of Health & Hum.
Servs., No. 90-882V, 1991 WL 74931, *4 (Fed. Cl. Spec. Mstr. April 25, 1991), quoted with
approval in decision denying review, 23 Cl. Ct. 726, 733 (1991), aff'd per curiam, 968 F.2d 1226
(Fed.Cir.1992)). However, the Federal Circuit has recently “reject[ed] as incorrect the presumption
that medical records are accurate and complete as to all the patient's physical conditions.” Kirby v.
Sec'y of Health & Hum. Servs., 997 F.3d 1378, 1383 (Fed. Cir. 2021).
4

Case 1:19-vv-01442-UNJ Document 34 Filed 08/21/25 Page 5 of 5
Factual matters required to prove elements of a Vaccine Act claim may be established by
a mix of witness statements and record proof, with the special master required to fully consider
and compare the medical records, testimony, and all other “relevant and reliable evidence
contained in the record.” La Londe v. Sec'y of Health & Hum. Servs., 110 Fed. Cl. 184 (2013)
(citing §12(d)(3); Vaccine Rule 8), aff'd, 746 F.3d 1335 (Fed. Cir. 2014).
ANALYSIS
The medical records do not support a finding that Petitioner’s injury persisted for more
than six months post-vaccination. The Petitioner’s acknowledged onset occurred in mid-December
2018. But his treatment largely concluded in mid-March 2019—successfully. And even if he
continued on a prescribed antibiotics course for a bit longer, the treater responsible for that course
did not anticipate the need for it to extend beyond the end of March. Accordingly, Petitioner’s
injury had largely resolved well within the six-month severity timeframe.
Petitioner alleges he has a scar from the abscess that persists. A scar left by a vaccine injury
could establish an injury sequela sufficient to cross the severity “line.” See, e.g., Skinner-Smith v.
Sec’y of Health & Hum. Servs., No. 14-1212V, 2023 WL 3043904, at *4 (Fed. Cl. Spec. Mstr.
Apr. 21, 2023) (existence of residual scar tissue “knot” due to resolved cellulitis deemed basis for
at least a de minimis damages award); Yost v. Sec’y of Health & Hum. Servs., No. 18-288V, 2022
WL 4593029, at *11–12 (Fed. Cl. Spec. Mstr. Aug. 29, 2022) (awarding damages for small
permanent scar due to SIRVA). But Petitioner has not offered proof of the scar, in the form of a
photograph or something comparable—despite ample time to do so. This action was initiated
nearly six years ago, and although the resolution of the parallel Silvers case took some time to
occur, the claim has been active since the start of this calendar year.
CONCLUSION
Because Petitioner has failed to meet the severity requirement, he cannot establish
entitlement, and the claim is dismissed. In the absence of a motion for review filed pursuant to
RCFC Appendix B, the Clerk of the Court SHALL ENTER JUDGMENT in accordance with
the terms of this Decision.5
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
5 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment if (jointly or separately) they file notices
renouncing their right to seek review.
5