VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-01519
Package ID: USCOURTS-cofc-1_19-vv-01519
Petitioner: Maryann Daugherty
Filed: 2019-10-01
Decided: 2024-10-08
Vaccine: influenza
Vaccination date: 2016-10-06
Condition: right shoulder injury
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Maryann Daugherty filed a petition on October 1, 2019, alleging a right shoulder injury from an influenza vaccine she received on October 6, 2016. The Chief Special Master previously found that the vaccine was administered in her left arm, which led to the dismissal of her Table claim for a right-sided SIRVA. The petitioner was then given an opportunity to pursue an off-Table, causation-in-fact claim. However, she failed to provide sufficient evidence to establish that the vaccine caused her right shoulder injury. Medical records did not contain specific assessments of the complaint, and an orthopedist found no structural abnormalities. A neurologist also found no evidence of brachial neuritis, axillary nerve injury, or complex regional pain syndrome. Furthermore, no provider believed the vaccine caused the injury, and the petitioner did not request medical expert support. The case was also dismissed for failure to prosecute, as the petitioner did not respond to court orders or deadlines after the initial dismissal of her Table claim. Therefore, the case was dismissed for insufficient evidence and failure to prosecute.

Theory of causation field:
Off-Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_19-vv-01519-0
Date issued/filed: 2024-07-15
Pages: 10
Docket text: PUBLIC DECISION (Originally filed: 06/05/2024) regarding 31 Findings of Fact & Conclusions of Law,, Order to Show Cause, Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made.
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Case 1:19-vv-01519-UNJ Document 32 Filed 07/15/24 Page 1 of 10
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1519V
MARYANN DAUGHERTY, Chief Special Master Corcoran
Petitioner,
v. Filed: June 5, 2024
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Daniel James Leeper, St. Petersburg, FL, for Petitioner.
Jennifer Leigh Reynaud, U.S. Department of Justice, Washington, DC, for Respondent.
FINDINGS OF FACT AND CONCLUSIONS OF LAW DISMISSING TABLE CLAIM1
On October 1, 2019, Maryann Daugherty filed a Petition for compensation under
the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”), alleging that she suffered a right-sided shoulder injury related to vaccine
administration (“SIRVA”) as the result of an influenza (“flu”) vaccine received on October
6, 2016. Petition (ECF No. 1). The case was assigned to the Special Processing Unit of
the Office of Special Masters (the “SPU”). Based on Respondent’s opposition and an
independent review of the evidence, I conclude that Petitioner has not established the
1 Because this unpublished 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 1:19-vv-01519-UNJ Document 32 Filed 07/15/24 Page 2 of 10
alleged vaccine administration site. Therefore, her Table SIRVA claim is not tenable, and
must be dismissed.
I. Procedural History
Over 18 months after the claim’s initiation, Petitioner obtained and filed a required
record which reflected a contemporaneous, handwritten notation of her left (non-injured,
non-dominant) arm as the vaccine administration site. Ex. 11 (ECF No. 20). Respondent
subsequently objected that Petitioner could not preponderantly establish her alleged site
(and secondarily, onset within the 48-hour timeframe required for a Table SIRVA). Resp.
Status Report filed July 8, 2021 (ECF No. 24) (signaling his opposition); Rule 4(c) Report
filed Mar. 1, 2022 (ECF No. 25).
The parties were afforded a final opportunity to file “briefs and any additional
evidence they wished to have considered.” Scheduling Order filed July 26, 2022 (ECF
No. 26) (emphasis added). Only briefing was received. Pet. Response filed Sept. 12, 2022
(ECF No. 27) (hereinafter “Brief”); Respondent’s Response filed Nov. 15, 2022 (ECF No.
29) (hereinafter “Response”). The matter is now ripe for adjudication.
II. Authority
Before compensation can be awarded under the Vaccine Act, a petitioner must
demonstrate, by a preponderance of evidence, all matters required under Section
11(c)(1), including the factual circumstances surrounding his claim. Section 13(a)(1)(A).
In making this determination, the special master or court should consider the record as a
whole. Section 13(a)(1). Petitioner’s allegations must be supported by medical records or
by medical opinion. Id.
To resolve factual issues, the special master must weigh the evidence presented,
which may include contemporaneous medical records and testimony. See Burns v. Sec'y
of Health & Hum. Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (explaining that a special
master must decide what weight to give evidence including oral testimony and
contemporaneous medical records). Contemporaneous medical records are presumed to
be accurate. See Cucuras v. Sec’y of Health & Hum. Servs., 993 F.2d 1525, 1528 (Fed.
Cir. 1993). To overcome the presumptive accuracy of medical records testimony, a
petitioner may present testimony which is “consistent, clear, cogent, and compelling.”
Sanchez v. Sec'y of Health & Hum. Servs., No. 11–685V, 2013 WL 1880825, at *3 (Fed.
Cl. Spec. Mstr. Apr. 10, 2013) (citing Blutstein v. Sec'y of Health & Hum. Servs., No. 90–
2808V, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998)).
2

Case 1:19-vv-01519-UNJ Document 32 Filed 07/15/24 Page 3 of 10
In addition to requirements concerning the vaccination received, the duration and
severity of petitioner’s injury, and the lack of other award or settlement,3 a petitioner must
establish that she suffered an injury meeting the Table criteria, in which case causation
is presumed, or an injury shown to be caused-in-fact by the vaccination she received.
Section 11(c)(1)(C).
The most recent version of the Table, which can be found at 42 C.F.R. § 100.3,
identifies the vaccines covered under the Program, the corresponding injuries, and the
time period in which the particular injuries must occur after vaccination. Section 14(a).
Pursuant to the Vaccine Injury Table, a SIRVA is compensable if it manifests within 48
hours of the administration of a flu vaccine. 42 C.F. R. § 100.3(a)(XIV)(B). The criteria
establishing a SIRVA under the accompanying QAI are as follows:
Shoulder injury related to vaccine administration (SIRVA). SIRVA manifests
as shoulder pain and limited range of motion occurring after the
administration of a vaccine intended for intramuscular administration in the
upper arm. These symptoms are thought to occur as a result of unintended
injection of vaccine antigen or trauma from the needle into and around the
underlying bursa of the shoulder resulting in an inflammatory reaction.
SIRVA is caused by an injury to the musculoskeletal structures of the
shoulder (e.g., tendons, ligaments, bursae, etc.). SIRVA is not a
neurological injury and abnormalities on neurological examination or nerve
conduction studies (NCS) and/or electromyographic (EMG) studies would
not support SIRVA as a diagnosis (even if the condition causing the
neurological abnormality is not known). A vaccine recipient shall be
considered to have suffered SIRVA if such recipient manifests all of the
following:
(i) No history of pain, inflammation or dysfunction of the affected shoulder
prior to intramuscular vaccine administration that would explain the alleged
signs, symptoms, examination findings, and/or diagnostic studies occurring
after vaccine injection;
(ii) Pain occurs within the specified time frame;
3 In summary, a petitioner must establish that he received a vaccine covered by the Program, administered
either in the United States and its territories or in another geographical area but qualifying for a limited
exception; suffered the residual effects of his injury for more than six months, died from his injury, or
underwent a surgical intervention during an inpatient hospitalization; and has not filed a civil suit or collected
an award or settlement for her injury. See Section 11(c)(1)(A)(B)(D)(E).
3

Case 1:19-vv-01519-UNJ Document 32 Filed 07/15/24 Page 4 of 10
(iii) Pain and reduced range of motion are limited to the shoulder in which
the intramuscular vaccine was administered; and
(iv) No other condition or abnormality is present that would explain the
patient’s symptoms (e.g., NCS/EMG or clinical evidence of radiculopathy,
brachial neuritis, mononeuropathies, or any other neuropathy).
42 C.F.R. § 100.3(c)(10) (2017).
III. Finding of Fact and Conclusions of Law – Vaccine Administration Site
I have reviewed all of the filings submitted by both parties to date. The below
summary focuses on the vaccine administration site.
• Medical records from three years prior to the date of vaccination reflect that
Petitioner’s medical history was non-contributory, and that she is right-handed.
See generally Exs. 2, 6.
• Petitioner was 75 years old upon receiving the subject Fluzone vaccine on October
6, 2016, at a local Walgreens pharmacy location. The Walgreens “Vaccine
Administration Record (VAR) – Informed Consent for Vaccination” form, includes
the following section, which indicates a left-sided vaccine administration site. Ex.
11 at 2.
• On an insurance “payment notice” dated October 17, 2016, a handwritten notation
indicates that on October 21, 2016, Petitioner called the insurance provider
“questioning overpayment to Walgreens for flu shot,” and was informed that the
apparent overpayment instead represented an “administration fee for giving shot.”
Ex. 1 at 4.4
4 Petitioner filed the payment notice as initial proof of receiving the vaccination, Ex. 1, prior to obtaining and
filing the contemporaneous vaccine administration record including site, Ex. 11.
4

Case 1:19-vv-01519-UNJ Document 32 Filed 07/15/24 Page 5 of 10
• On October 24, 2016, Petitioner followed up with an established orthopedist for
her chronic hip and foot pain. No complaints or findings relating to the above
vaccination, or the shoulders, were noted. Ex. 6 at 21 – 24.
• Thirty-four (34) days post-vaccination, on November 9, 2016, Petitioner saw her
primary care provider (“PCP”) Dr. Minnix for a routine six-month follow-up
evaluation, and discussed subjects including her right ear, right hip, and
hypothyroidism. Ex. 2 at 10. A physical exam was positive for hip tenderness. Id.
at 11. No complaints or findings relevant to the right shoulder were noted. But Dr.
Minnix recorded: “Immunization: Flu3V (Fluzone High Dose), 65 YRS+, NO PRES
– ALL PAYORS: 0.5 ML (Dose No:1) on Right Deltoid.” Id. 5
• On December 12, 2016, and January 17, 2017, Petitioner attended orthopedics
evaluations for her lower extremity complaints. Ex. 6 at 18 – 19, 14 – 17 (ordered
chronologically).6
• On February 9, 2017 – now four months post-vaccination – Dr. Minnix recorded
that Petitioner’s complaints included chronic right shoulder pain since “around the
time of a flu shot in October of last year.” Ex. 2 at 7. The pain was “not in the
shoulder joint, but in the proximal humerus near the insertion of the deltoid
muscle.” Id. An exam of the shoulder was unremarkable (specifically noting normal
range of motion), except for tenderness at the reported site of vaccination. Id. Dr.
Minnix assessed non-specific “right arm pain,” and planned an x-ray. Id.
• On February 15, 2017, an x-ray of the right shoulder visualized a down-sloping
acromion” and degenerative changes in the acromioclavicular joint. Ex. 3 at 1. The
x-ray indication was “pain in upper third of humerus since flu shot 10/2016.” Id.
• On May 9, 2017, Dr. Minnix recorded Petitioner’s report of ongoing “arm pain which
she relates to a flu shot,” and her waiver of an orthopedic referral. Ex. 2 at 4 – 5.
• On June 5, 2017, an examiner at Sedgwick Claims Management Services Inc.,
emailed that based on Petitioner’s report of injury persisting for over six months,
5 Petitioner has not addressed this notation. However, no other evidence suggests that Dr. Minnix
administered a repeat administration of Fluzone – which involves only one dose. Ex. 2 at 10 – 11; see also
Food & Drug Administration, Fluzone Intradermal Quadrivalent 2016 – 2017 Package Insert, available at
https://www.fda.gov/media/90251/download&ved=2ahUKEwj3z6eKlLGGAxV3M1kFHdm3AQcQFnoECB
wQAQ&usg=AOvVaw0-Gr6zUif05npiuCFHFQY1 (last accessed May 28, 2024).
6 Subsequent orthopedics records have been reviewed but are omitted from this factual summary.
5

Case 1:19-vv-01519-UNJ Document 32 Filed 07/15/24 Page 6 of 10
she would “need to file a claim with the National Vaccine Injury Compensation
Program.” Ex. 7 at 1.
• In a July 17, 2017, letter addressed to the Vaccine Program, Petitioner reported a
right-sided vaccine administration on October 6, 2016, followed by right shoulder
pain and weakness. Ex. 8 at 1. Petitioner reported that she had followed up
repeatedly with the pharmacy until she was referred to Sedgwick and notified of
the Program. Id. Petitioner asked the Vaccine Program to “loo[k] into this situation
and advis[e] her how to proceed,” specifically noting concern about how long the
injury would last and potential long-term effects. Id.
• In October 2017, upon establishing care with a new PCP, Lauren Natoli, D.O.,7
Petitioner’s complaints included right shoulder pain since her receipt of a flu shot
at Walgreens the previous year. Ex. 5 at 21. Dr. Natoli did not record a physical
exam or any specific assessment of the shoulder, but recorded that an unnamed
lawyer had requested MRIs before proceeding with Petitioner’s case. Id.
• In November 2017, Dr. Natoli ordered MRIs of the right shoulder and humerus,
which visualized a large partial tear of the undersurface of the anterior
supraspinatus tendon; a small labrum tear; and moderate subacromial bursitis. Ex.
5 at 31 – 34; see also id. at 6 (Dr. Natoli’s subsequent note that Petitioner was
scheduled for an orthopedic evaluation of her shoulder).
• At a November 14, 2017, initial evaluation, orthopedist David Braun, M.D.,
recorded Petitioner’s history of injury stemming from a flu shot. Ex. 9 at 5; see also
id. at 7 – 9 (new patient form). On exam, the right shoulder had full ROM, normal
strength, and no muscle atrophy – only point tenderness to palpation over the
inferior lateral deltoid. Id. at 5. In Dr. Braun’s view, the MRIs revealed only “slight
degenerative changes” and no fracture, dislocation, or structural abnormalities. Id.
Dr. Braun discussed that he had seen previous cases of flu shots associated with
“severe subacromial bursitis,” but Petitioner’s case was more suggestive of a nerve
injury. Id. Thus, Dr. Braun referred Petitioner to a colleague specializing in
neurology. Id.
• On November 28, 2017, the neurologist, Adam DiDio, M.D., recorded a similar
history from Petitioner, and an unremarkable exam with the exception of right
supraspinatus weakness. Ex. 9 at 2 – 3. Dr. DiDio found no current evidence of
brachial neuritis/plexopathy, injury to the axillary nerve (running underneath the
7 Petitioner’s last encounter with Dr. Minnix was in September 2017. It does not address shoulder pain, or
any information regarding Petitioner’s subsequent switch to a new PCP. Ex. 2 at 1 – 2.
6

Case 1:19-vv-01519-UNJ Document 32 Filed 07/15/24 Page 7 of 10
deltoid), or complex regional pain syndrome. Id. at 3. He provided a trial of
Lidoderm patches and also offered neuropathic pain medications, while deferring
to Dr. Braun regarding further orthopedic work-up, such as for a rotator cuff tear.
Id. But there are no further records from Drs. Braun and DiDio’s practice.8
• In her October 2019 affidavit, Petitioner attests that that a Walgreens employee
administered the subject flu vaccine into her right shoulder. Ex. 10 at ¶ 6. She
recalls developing right shoulder pain and difficulty with movement “the same day,”
which she initially “assumed to be a normal after effect of the vaccine.” Id. at ¶ 7.
After these symptoms persisted for some unspecified period, she “returned to
Walgreens on multiple occasions, and made them put it in their records,” but the
staff instructed Petitioner to “expect pain and discomfort,” apply ice, and rub the
painful areas. Id. at ¶ 8. After those measures did not alleviate her injury, she
presented to her PCP Dr. Minnix in February 2017. Id. at ¶ 9. Petitioner also attests
that her complaints to Walgreens led to her discovery of the Vaccine Program, and
to her letter written in July 2017. Id. at ¶¶ 8, 21.
• Petitioner avers that there is no additional evidence of her communications with
Walgreens, Sedgwick, and/or the Vaccine Program. Pet. Status Report filed Apr.
19, 2021 (ECF No. 21).
The most contemporaneous record – the initial vaccination administration record
(Ex. 11 at 2) - is not in Petitioner’s favor. In reaction, Petitioner avers that in general,
“pharmacy employees are not perfect, and mistakes happen when entering information
into a record.” Brief at 1. However, she does not offer any case-specific arguments, or
reference any evidence beyond her own affidavit. Id. at 1 – 2. In contrast, Respondent
contends that the contemporaneous record should receive a high presumption of
accuracy, especially as it contains a handwritten notation. Rule 4(c) Report at 6 – 7.
Based upon my experience with SIRVA cases (over 2,000 within SPU since my
appointment as Chief Special Master, additional cases handled within chambers, and
review of opinions issued by other special masters), I observe that it is not unusual for
information regarding the vaccine administration site to be incorrect – especially
information contained in computerized records, which may feature a ‘dropdown’ menu
which may not be updated each time a separate vaccine is administered.9 Thus, although
8 I have also considered, but find less relevant to the situs determination, further medical records from the
PCP Dr. Natoli. See generally Ex. 5.
9 See, e.g., Mezzacapo v. Sec’y of Health Servs., No. 18-1977, 2021 WL 1940435, at *2 (Fed. Cl. Spec.
Mstr. Apr. 19, 2021); Desai v. Sec’y of Health & Human Servs., No 14-0811V, 2020 WL 4919777, at *14
(Fed. Cl. Spec. Mstr. July 30, 2020); Rodgers v. Sec’y of Health & Human Servs., No. 18-0559V, 2020 WL
7

Case 1:19-vv-01519-UNJ Document 32 Filed 07/15/24 Page 8 of 10
such records are unquestionably the first-generated documents bearing on issues
pertaining to situs, they are not per se reliable simply because they come first – and in
fact the nature of their creation provides some basis for not accepting them at face value.
But information which requires specific action on the part of the vaccine administrator
(often at the very time of administration), such as a handwritten notation on a printed form,
generally warrants more significant weight.10
Such handwritten notations can be rebutted of course, by additional, case-specific
evidence and circumstances. For instance, in one case a petitioner’s history of
vaccination and subsequent injury in the same shoulder was medically documented just
13 days post-vaccination, and consistently thereafter. That petitioner also explained that
she requested vaccination in her non-dominant arm. Rizvi v. Sec’y of Health & Hum.
Servs., No. 21-0881V, 2022 WL 2284311 at * 3 (Fed. Cl. Spec. Mstr. May 13, 2022). In
another more recent matter, the petitioner’s history was medically documented 23 days
post-vaccination, and in numerous later records. And the site notation was found on “an
otherwise haphazardly-completed form (containing entries listed diagonally and not in the
allotted space)” – constituting a specific reason to doubt its reliability. Toothman v. Sec’y
of Health & Hum. Servs., No. 22-0207V, 2024 WL 2698520, at *4 (Fed. Cl. Spec. Mstr.
Apr. 19, 2024).
Here, Petitioner has not raised any specific reason to question the accuracy of the
handwritten notation on the initial vaccination record – and it appears to have been
completed correctly (rather than “haphazardly,” as in Toothman, 2024 WL 2698520, at
*4). Moreover, the record is consistent with avoidance of Petitioner’s dominant right arm
(recognized in prior cases as a “reasonable request that vaccinated individuals often
make.” Rizvi, 2022 WL 2284311, at *4; see also Ex. 6 at 5 (indicating that Petitioner is
right-handed). Thus, the contemporaneous, handwritten vaccine administration record in
this case has some facial reliability that Petitioner has not undermined.
While a subsequent, PCP computerized record indicates a right-sided vaccine
administration, that was not based on any medical provider’s personal knowledge of what
transpired at the retail pharmacy location. Rather, it was created later in time, and likely
represents either the PCP’s assumption, or Petitioner’s own report of situs. It also lacks
any context – such as Petitioner’s complaints or any findings of a shoulder injury
potentially attributable to vaccination at that time.
1870268, at *5 (Fed. Cl. Spec. Mstr. Mar. 11, 2020); Stoliker v. Sec’y of Health & Human Servs., No. 17-
0990V, 2018 WL 6718629, at *4 (Fed. Cl. Spec. Mstr. Nov. 9, 2018).
10 See, e.g., Schmidt v. Sec’y of Health & Hum. Servs., No. 17-1530V, 2021 WL 5226494, at *8 (Fed. Cl.
Spec. Mstr. Oct. 7, 2021); Marion v. Sec’y of Health & Hum. Servs., No. 19-0495V, 2020 WL 7054414 at
*8 (Fed. Cl. Spec. Mstr. Oct. 27, 2020).
8

Case 1:19-vv-01519-UNJ Document 32 Filed 07/15/24 Page 9 of 10
The subsequent medical records, beginning roughly four months post-vaccination,
are consistent with Petitioner’s contentions that the vaccine was administered in her right
shoulder. But that belief is weakly supported by the available non-medical documentation,
which indicates that Petitioner complained to Walgreens and was referred to its claims
examiner by eight months post-vaccination, leading to her discovery of the Vaccine
Program by nine and one-half months post-vaccination.11 Such evidence, “no matter how
sincere, is not sufficient to meet her burden of proof,” Response at 11, particularly in the
face of the contemporaneous handwritten record compelling a different result. I therefore
find that the vaccine was more likely than not administered in Petitioner’s left deltoid.12
Conclusion and Order to Show Cause
The factual finding of a left-sided vaccine administration renders the claim of a
right-sided SIRVA untenable. See 42 C.F.R. § 100.3(c)(10)(iii) (providing that a SIRVA is
limited to “the shoulder in which the intramuscular vaccine was administered”).
Petitioner’s Table SIRVA claim is therefore DISMISSED.
It is therefore unnecessary to resolve whether Petitioner’s shoulder pain began
within the 48-hour post-vaccination timeframe that would be required for a Table SIRVA
claim. 42 C.F.R. §§ 100.3(a), (c)(10)(ii); Rule 4(c) Report at 7, Response at 10 - 14
(challenging this criteria).
Instead at this stage, the remaining question is whether any off-Table, causation-
in-fact claim might be feasible. See generally Petition (alleging only a Table SIRVA); but
see Brief at 3 (requesting the opportunity to pursue causation-in-fact); but see Rule 4(c)
Report at 7 – 8, Response at 15 - 17 (averring that Petitioner’s treating providers did not
endorse a vaccine injury). Respondent’s briefing and my preliminary review of the
evidence has not identified any obvious onset date, or alternative cause, for the injury
11 But the available non-medical evidence is notably sparse – in particular, lacking any contemporaneous
documentation or later recollections of the timing, or substance, of Petitioner’s complaints directly to
Walgreens prior to being referred to its claims administrator Sedgwick. This stands in contrast to Petitioner’s
contemporaneous documentation of concern, and prompt action, regarding her insurance provider’s
potential overpayment to Walgreens for the vaccination.
12 Petitioner (and Respondent) received a full and fair opportunity to present her case – including an
opportunity to file any additional evidence in conjunction with the briefing. Scheduling Order filed July 26,
2022 (ECF No. 26).
It is also recognized that Petitioner had “no objection” to a hearing. Brief at 1. But Petitioner herself
seemingly would have been the only witness to testify, based on the lack of affidavits from any other
witnesses. Thus, I find it appropriate to resolve the claim on the filed record. Section 12(d)(2)(D); Vaccine
Rule 8(d); Kreizenbeck v. Sec’y of Health & Hum. Servs., 945 F.3d 1362, 1366 (Fed. Cir. 2020) (affirming
the decision to rule on the record in lieu of hearing).
9

Case 1:19-vv-01519-UNJ Document 32 Filed 07/15/24 Page 10 of 10
discussed herein. Therefore, Petitioner will be afforded one brief and final opportunity to
determine whether she would like to pursue any remaining causation-in-fact claim
centering on an injury in the non-vaccinated shoulder/arm. However, it is reiterated that
Petitioner may not formally retain an expert, or order any expert’s written report, without
prior consultation with Respondent and the Court. Any request for experts, when
combined with this case’s age, would likely support the case’s transfer out of SPU for
further proceedings.
Petitioner’s failure to respond to this or other orders issued in this action, as well
as failure to file evidence required to support his claim, will be interpreted as a failure to
prosecute resulting in dismissal of Petitioner’s claim. Tsekouras v. Sec’y of Health & Hum.
Servs., 26 Cl. Ct. 439 (1992), aff’d, 991 F.2d 810 (Fed. Cir. 1993) (per curiam); Sapharas
v. Sec’y of Health & Hum. Servs., 35 Fed. Cl. 503 (1996); Vaccine Rule 21(b).
Accordingly, within 30 days, by no later than Monday, July 8, 2024, Petitioner
shall show cause why her claim should not be dismissed for insufficient proof of
causation-in-fact.
In the alternative, if Petitioner wishes to exit the Vaccine Program, counsel shall
file the appropriate motion, Stipulation, or Notice. See
http://www.uscfc.uscourts.gov/sites/default/files/autism/EXITING GUIDANCE TO PRO
SES.pdf.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
10

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DOCUMENT 2: USCOURTS-cofc-1_19-vv-01519-1
Date issued/filed: 2024-10-08
Pages: 4
Docket text: PUBLIC DECISION (Originally filed: 09/03/2024) regarding 33 DECISION of Special Master Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made.
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Case 1:19-vv-01519-UNJ Document 34 Filed 10/08/24 Page 1 of 4
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1519V
MARYANN DAUGHERTY, Chief Special Master Corcoran
Petitioner,
v. Filed: September 3, 2024
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Daniel James Leeper, St. Petersburg, FL, for Petitioner.
Jennifer Leigh Reynaud, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION1
On October 1, 2019, Maryann Daugherty filed a Petition for compensation under
the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”), alleging a right shoulder injury. In light of my previous finding that the at-
issue vaccine was administered in Petitioner’s left arm,3 and the lack of any further
submissions from Petitioner, any remaining causation-in-fact claim is hereby dismissed
for insufficient proof and for failure to prosecute.
1 Because this unpublished 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).
3 See Findings of Fact and Conclusions of Law Dismissing Table SIRVA Claim filed June 5, 2024 (ECF
No. 31) (containing a longer discussion of the procedural history, and the underlying evidence, which is
fully incorporated and relied upon herein).

Case 1:19-vv-01519-UNJ Document 34 Filed 10/08/24 Page 2 of 4
Insufficient Proof
Under Section 13(a)(1)(A) of the Act, a petitioner must demonstrate, by a
preponderance of the evidence, that all requirements for a petition set forth in section
11(c)(1) have been satisfied. A petitioner may prevail on her claim if the vaccinee for
whom she seeks compensation has “sustained, or endured the significant aggravation of
any illness, disability, injury, or condition” set forth in the Vaccine Injury Table (the Table).
Section 11(c)(1)(C)(i).
If, however, the vaccinee suffered an injury that either is not listed in the Table or
did not occur within the prescribed time frame, petitioner must prove that the administered
vaccine caused injury to receive Program compensation on behalf of the vaccinee.
Section 11(c)(1)(C)(ii) and (iii). In such circumstances, petitioner asserts a “non-Table or
[an] off-Table” claim and to prevail, petitioner must prove her claim by preponderant
evidence. Section 13(a)(1)(A). This standard is “one of . . . simple preponderance, or
‘more probable than not’ causation.” Althen, 418 F.3d at 1279-80 (referencing Hellebrand
v. Sec’y of Health & Hum. Servs., 999 F.2d 1565, 1572-73 (Fed. Cir. 1993). The Federal
Circuit has held that to establish an off-Table injury, petitioners must “prove . . . that the
vaccine was not only a but-for cause of the injury but also a substantial factor in bringing
about the injury.” Shyface v. Sec’y of Health & Hum. Servs., 165 F.3d 1344, 1351 (Fed.
Cir 1999). Id. at 1352. The received vaccine, however, need not be the predominant
cause of the injury. Id. at 1351.
The Circuit Court has indicated that petitioners “must show ‘a medical theory
causally connecting the vaccination and the injury’” to establish that the vaccine was a
substantial factor in bringing about the injury. Shyface, 165 F.3d at 1352-53 (quoting
Grant v. Sec’y of Health & Hum. Servs., 956 F.2d 1144, 1148 (Fed. Cir. 1992)). The Circuit
Court added that "[t]here must be a ‘logical sequence of cause and effect showing that
the vaccination was the reason for the injury.’” Id. The Federal Circuit subsequently
reiterated these requirements in its Althen decision. See 418 F.3d at 1278. Althen
requires a petitioner:
to show by preponderant evidence that the vaccination
brought about her injury by providing: (1) a medical theory
causally connecting the vaccination and the injury; (2) a
logical sequence of cause and effect showing that the
vaccination was the reason for the injury; and (3) a showing
of a proximate temporal relationship between vaccination and
injury.
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Id. All three prongs of Althen must be satisfied. Id.
Finding a petitioner is entitled to compensation must not be “based on the claims
of a petitioner alone, unsubstantiated by medical records or by medical opinion.” Section
13(a)(1). Further, contemporaneous medical records are presumed to be accurate and
complete in their recording of all relevant information as to petitioner’s medical issues.
Cucuras v. Sec’y of Health & Hum. Servs., 993, F.2d 1525, 1528 (Fed. Cir. 1993).
Testimony offered after the events in questions is considered less reliable than
contemporaneous reports because the need for accurate explanation of symptoms is
more immediate. Reusser v. Sec’y of Health & Hum. Servs., 28 Fed. Cl. 516, 523 (1993).
I previously determined that the flu vaccine received by the Petitioner on October
6, 2016, was more likely than not administered in her left deltoid. That finding required
dismissal of her right-sided Table SIRVA claim, but she was permitted to consider
whether any off-Table, causation-in-fact claim might be feasible. However, she has not
made any representation to that effect – within the specified 30-day timeframe, or in the
two months thereafter.
The medical records do not establish causation-in-fact. In particular, the initial
evaluations by primary care providers do not contain any specific medical assessment of
Petitioner’s right shoulder complaint. See generally Exs. 2, 5. An orthopedist reviewed
that the MRIs and clinical evidence were not consistent with a fracture, dislocation,
structural abnormalities, or bursitis. Ex. 9 at 5. A neurologist found no evidence of brachial
neuritis/ plexopathy, an axillary nerve injury, or complex regional pain syndrome. Id. at 3.
In addition, no provider recorded the belief, let alone proposed a theory, that the
vaccine’s administration or any of its components caused Petitioner’s right shoulder
complaint. Any mere references to the vaccine in the record are based on Petitioner’s
history, centering on a right-sided administration – which, I have found, has inadequate
evidentiary support. See also Snyder v. Sec’y of Health & Hum. Servs., No. 01–0162V,
2009 WL 332044, at *187 n.523 (Fed. Cl. Spec. Mstr. Feb. 12, 2009), mot. for review
den’d, 88 Fed. Cl. 706 (2009) (discussing the importance of an accurate factual basis for
any treating provider or expert opinion); Burns v. Sec'y of Health & Hum. Servs., 3 F.3d
415, 417 (Fed. Cir. 1993) (holding that a special master may reject an opinion that is
“based on facts not substantiated by the record”).
Petitioner was also instructed to consult with Respondent if she wished to seek
medical expert support for her claim, and then seek authorization in the context of this
matter. Findings of Fact at 10 (noting that any request for experts would likely support the
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case’s transfer out of SPU). But she has not requested expert involvement. Accordingly,
there is insufficient evidence of causation-in-fact to proceed with the claim.
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
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.”).
My June 5, 2024, filing specifically warned Petitioner that any remaining causation-
in-fact claim risked dismissal, and therefore it was critical that she took steps to bulwark
the claim. But she did not respond by the 30-day deadline or at any time thereafter,
without offering any justification or explanation. As previously warned, this lack of
response is hereby interpreted as a failure to prosecute.
Conclusion
Accordingly, this case is DISMISSED for insufficient evidence and for failure to
prosecute. The Clerk of Court shall enter judgment accordingly.4
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
4 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