VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-01651
Package ID: USCOURTS-cofc-1_19-vv-01651
Petitioner: Robert R. Jodoin
Filed: 2019-10-24
Decided: 2023-02-13
Vaccine: influenza
Vaccination date: 2016-10-26
Condition: Shoulder Injury Related to Vaccine Administration (SRIVA)
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Robert R. Jodoin filed a petition alleging he sustained a Shoulder Injury Related to Vaccine Administration (SIRVA) from an influenza vaccine received on October 26, 2016. The case was initially in a special processing unit due to the possibility of settlement. However, on December 19, 2022, the Table claim was dismissed because certain elements specific to a flu vaccine-SIRVA Table claim could not be preponderantly established. The court allowed for the possibility of a causation-in-fact claim and transferred the case from the special processing unit. Subsequently, Mr. Jodoin filed a motion to dismiss his claim. The court noted that while the rules for voluntary dismissal had passed, a petitioner could request dismissal. The court found that Mr. Jodoin had not offered sufficient evidence to meet his burden of proof for a non-Table claim and, by moving for dismissal, indicated no intention to proceed. Therefore, the court dismissed the case.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_19-vv-01651-0
Date issued/filed: 2023-01-24
Pages: 10
Docket text: PUBLIC ORDER/RULING (Originally filed: 12/19/2022) regarding 40 Findings of Fact & Conclusions of Law, ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made.
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Case 1:19-vv-01651-UNJ Document 45 Filed 01/24/23 Page 1 of 10
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1651V
UNPUBLISHED
ROBERT R. JODOIN, Chief Special Master Corcoran
Petitioner, Filed: December 19, 2022
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Findings of Fact; Onset; Influenza
HUMAN SERVICES, (Flu) Vaccine; Shoulder Injury
Related to Vaccine Administration
Respondent. (SIRVA)
Christine M. Smith, Law Office of Christine M. Durant, PLLC, Manchester, NH, for
Petitioner.
Debra A. Filteau Begley, U.S. Department of Justice, Washington, DC, for Respondent.
FINDINGS OF FACT AND CONCLUSIONS OF LAW DISMISSING TABLE CASE1
On October 24, 2019, Robert R. Jodoin 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 sustained a shoulder injury related to vaccine
administration (“SIRVA”), as a direct and proximate result of an influenza (“flu”)
vaccination he received on October 26, 2016. Petition at 1. The case was assigned to the
Special Processing Unit of the Office of Special Masters (the “SPU”).
1 Because this unpublished fact ruling 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 fact ruling 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-01651-UNJ Document 45 Filed 01/24/23 Page 2 of 10
For the reasons stated below, I conclude that Petitioner has not established by
preponderant evidence that the onset of his shoulder pain occurred within 48 hours of his
October 26, 2016 vaccination.
I. Relevant Procedural History
Mr. Jodoin filed his petition for compensation on October 24, 2019. ECF No. 1.
Petitioner filed relevant medical records and a Statement of Completion by July 31, 2020.
ECF Nos. 22, 25, 27. On March 29, 2021, Respondent filed his Rule 4(c) Report
concluding that compensation was not appropriate in this case. Respondent’s Report at
1. ECF No. 32. First, Respondent asserted that Petitioner’s “vaccination record states that
his October 26, 2017 flu vaccination was administered in his left shoulder, but he is
alleging that the flu vaccine caused a right shoulder injury.” Id. at 6 citing Ex. 1 at 2
(emphasis in original). Next, Respondent maintained that “[P]etitioner’s records similarly
do not show that his shoulder pain started within forty-eight hours of vaccination.” Id.
Finally, Respondent indicated that “[w]hile a petitioner can also proceed on a causation-
in-fact basis for an alleged non-Table injury, [P]etitioner has not alleged a causation-in-
fact claim.” Id. at 7 citing 42 U.S.C. § 300aa-11(c)(1)(C). Respondent recommended that
the petition be dismissed. Id. at 7.
On April 8, 2021, Mr. Jodoin subsequently filed two additional affidavits, from his
daughter and his own supplemental affidavit. ECF Nos. 34-35. Also on April 8, 2021,
Mr. Jodoin filed a Motion for a Ruling on the Record (Motion). ECF No. 36. Petitioner
moved for a “ruling on the written record finding that his right shoulder injury and its
sequela were the result of his flu vaccination.” Motion at 2. On April 22, 2021, Respondent
filed a response to Petitioner’s motion. (Resp.) ECF No. 37. On April 27, 2021, Mr.Jodoin
filed a reply to Respondent’s response. (Reply) ECF No. 39.
The matter is now ripe for adjudication.
II. Authority
Pursuant to Vaccine Act Section 13(a)(1)(A), a petitioner must prove, by a
preponderance of the evidence, the matters required in the petition as set forth in Section
11(c)(1). A special master must consider, 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. Section
13(b)(1). “Medical records, in general, warrant consideration as trustworthy evidence.
The records contain information supplied to or by health professionals to facilitate
diagnosis and treatment of medical conditions. With proper treatment hanging in the
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Case 1:19-vv-01651-UNJ Document 45 Filed 01/24/23 Page 3 of 10
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).
Accordingly, 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 does not always apply. 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, at *19.
The United States Court of Federal Claims has recognized that “medical records
may be incomplete or inaccurate.” Camery v. Sec’y of Health & Human Servs., 42 Fed.
Cl. 381, 391 (1998). The Court later outlined four possible explanations for
inconsistencies between contemporaneously created medical records and later
testimony: (1) a person’s failure to recount to the medical professional everything that
happened during the relevant time period; (2) the medical professional’s failure to
document everything reported to her or him; (3) a person’s faulty recollection of the events
when presenting testimony; or (4) a person’s purposeful recounting of symptoms that did
not exist. La Londe v. Sec’y of Health & Human Servs., 110 Fed. Cl. 184, 203-04 (2013),
aff’d, 746 F.3d 1335 (Fed. Cir. 2014).
The Court has also said that medical records may be outweighed by testimony that
is given later in time that is “consistent, clear, cogent, and compelling.” Camery, 42 Fed.
Cl. at 391 (citing Blutstein v. Sec’y of Health & Human Servs., No. 90-2808, 1998 WL
408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998). The credibility of the individual
offering such testimony must also be determined. 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).
A special master may find that the first symptom or manifestation of onset of an
injury occurred “within the time period described in the Vaccine Injury Table even though
the occurrence of such symptom or manifestation was not recorded or was incorrectly
recorded as having occurred outside such period.” Section 13(b)(2). “Such a finding may
be made only upon demonstration by a preponderance of the evidence that the onset [of
the injury] . . . did in fact occur within the time period described in the Vaccine Injury
Table.” Id.
The special master is obligated to fully consider and compare the medical records,
testimony, and all other “relevant and reliable evidence contained in the record.” La
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Londe, 110 Fed. Cl. at 204 (citing Section 12(d)(3) and Vaccine Rule 8); see also Burns
v. Sec’y of Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (holding that it is
within the special master’s discretion to determine whether to afford greater weight to
medical records or to other evidence, such as oral testimony surrounding the events in
question that was given at a later date, provided that such determination is rational).
III. Relevant Factual Evidence
I have fully reviewed the evidence pertaining to the onset question, including all
medical records, affidavits, Respondent's Rule 4(c) Report, and the parties’ briefs, and
find most relevant the following:
• Mr. Jodoin was administered a flu vaccine on October 26, 2016. Ex. 2 at 1. The
vaccine administration record states that the vaccination was administered
intramuscularly in Petitioner’s left upper arm. Id. In his affidavit, Petitioner asserts
that “[t]he medical record states that I received the injection in my left arm but this
is incorrect. I received it in my right arm.” Petitioner’s Affidavit at 1.
• At the time of the vaccination, Mr. Jodoin asserts that he had a noncontributory
past medical history or any other condition that would explain his symptoms.
Petition at 2.
• In his affidavit, Mr. Jodoin avers that on October 26, 2016, he started having a
deep ache in his right deltoid muscle shortly after the injection. Petitioner’s Affidavit
at 1. He states, “[i]t was a pain I thought would go away in a few days. I continued
to have the dull ache in my arm for several weeks but it did not interfere with my
life so I did not seek medical care. I still believed that it would go away.” Id.
• On November 15, 2016 (now approximately twenty days after vaccination), Mr.
Jodoin contacted his primary care provider (PCP), Advanced Practice Registered
Nurse (APRN) Kendra Cline. Ex. 3 at 22. According to the phone note, “[Petitioner]
dropped off paperwork that he needs filled out for the Coast Guard.” Id.
• An “Application for Merchant Mariner Medical Certificate” was furnished to Nurse
Cline for completion. Ex. 3 at 22, 54-58. Certain sections of the form were to be
completed by the Applicant (Mr. Jodoin) and certain sections of the form were to
be completed by the Medical Practitioner. See id. at 54-58. On that form, Mr.
Jodoin represented that he did not have any “[f]ractures, recurrent dislocations or
limitation of motion of any joint” or “[a]ny diseases, surgeries, cancers, or
disabilities not listed on this form.” Id. at 54.
• By signature dated November 15, 2016, Nurse Cline conducted a physical
examination and completed the “Physical Examination” portion of the form. Ex. 3
at 57-58. Nurse Cline indicated that all systems/organs were “normal,” including
“upper/lower extremities” and “spine/musculoskeletal.” Id. at 57. The instructions
on the form state that “the Medical Practitioner shall require that the applicant
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Case 1:19-vv-01651-UNJ Document 45 Filed 01/24/23 Page 5 of 10
demonstrate the ability to meet the guidelines contained within Section VII of the
CG-719K.” Id. Respondent included the instructions for the form as Respondent’s
Exhibit A. Nurse Cline affirmatively checked that “Applicant has the physical
strength, agility, and flexibility to perform all of these items listed in the instruction
table.” Ex. 3 at 58.
• On January 3, 2017, ten weeks after his flu vaccination, Mr. Jodoin called his PCP
stating, “He needs to be seen for right arm pain that has been going on since he
got a flu shot 8 weeks ago. He feels he is losing strength and has had lots of deep
pain with certain movements of the arm.” Ex. 3 at 20 (emphasis added).
• The next day, on January 4, 2017, Mr. Jodoin saw his PCP with a chief complaint
of “[right] arm losing strength and deep pain w/ certain moves x 8 weeks.” Ex. 3 at
3. Petitioner’s history states, “This is a pleasant 64 year old male patient who
presents with c/o pain to his upper right arm. He states he had a flu shot given
there about 6 weeks ago and has caused him pain and decreased strength and
decreased ROM since the shot. He does have some tingling in his hand, but has
it bilaterally and believes it may be unrelated.” Id. Petitioner was instructed to use
heat and anti-inflammatories for pain and start physical therapy for evaluation and
strengthening, and if his symptoms continued to consider a referral to orthopedics
or other imaging. Id. at 6. Petitioner was referred to physical therapy (PT) for “right
arm pain and weakness post flu shot 6 weeks ago.” Ex. 4 at 34.
• On January 7, 2017, Mr. Jodoin completed an Outpatient Rehabilitation Services
Medical History form. Petitioner indicated that he presented for treatment for “pain
in right arm muscle - SIRVA,” and indicated that he was experiencing pain with
“certain arm movements.” Ex. 4 at 32-33.
• Mr. Jodoin received a PT evaluation on January 9, 2017. Ex.4 at 35. He began PT
on January 9, 2017, where the physical therapist observed signs of impingement
and tenderness along the right biceps. Petitioner’s primary diagnosis was right arm
pain, and the assessment states, “[patient] is a 64 y/o male who reports
progressive [right] shoulder pain following a flu shot on 10/26. He presents [with
positive] impingement signs, [illegible] [at] bicep origin and decreased strength.”
Id. Petitioner’s “Problem List” indicates decreased ROM, decreased strength, pain,
disturbed sleep, impaired reaching, lifting, carrying, poor postural alignment/
scapular stability, increased risk of reoccurrence, impaired ADLs and/or home
management, DASH/UEFS score. Id. Additionally, Petitioner’s chief complaint is
noted as: “Oct. 26th [patient] has a flu shot [at] Rite Aid. [Patient] reports injection
was high on shoulder. Since injection [patient] has had continued pain [with] daily
tasks.” Id. at 36. PT services were ordered for two times per week for six weeks.
Id. at 43.
• According to a Physical Therapy Progress Report, dated February 20, 2017,
Mr. Jodoin reported that his pain was still the same since the initial evaluation at
3-4/10 with complaints of deep muscle pain. Id. at 46. The recommendation was
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for a “follow up visit to see if the [patient] is appropriate for cortisone injection to
the right shoulder at this time.” Id.
• On March 17, 2017, Mr. Jodoin presented to Scott Evans, P.A. at New Hampshire
Orthopaedic Center for “right shoulder pain that he has been having for the past
six months.” Ex. 6 at 12. It was further noted that Petitioner had gone through
therapy and continued to have right shoulder pain with no improvement. Id. P.A.
Evans’ assessment was “right shoulder pain, unspecified chronicity and
recommended that Petitioner obtain an MRI. Id.
• On May 17, 2017, Petitioner presented to Gary Perlmutter, M.D., an orthopedist at
Massachusetts General Hospital, for further evaluation. Ex. 5 at 16. The progress
notes from that visit states, “[i]n October of last [year] the patient had a flu shot and
noted acute onset of right shoulder pain following the shot. He denies any shoulder
symptoms prior to the vaccine. Pain is located laterally throughout the arm, worse
with use, improve with rest. Deep aching and sharp at times.” Id. Dr. Perlmutter’s
assessment was right rotator cuff tendinitis/bursitis/impingement, and
recommended performing a right subacromial steroid injection, and the injection
was performed in office. Id. at 17.
• On October 27, 2017, Mr. Jodoin presented to Dr. Robert J. Larkin for a Welcome
to Medicare visit. Ex. 7 at 23. Petitioner noted several concerns including being
“plagued by sore right shoulder with limited range of motion for the past year. He
has associates [sic] with a flu injection that he got last year and he thinks got [sic]
into the bursa and is causing problems. He was seen by Ortho in Boston who
wants an MRI done.” Id. An MRI for his right shoulder pain was ordered at this visit.
Ex. 4 at 176.
• Mr. Jodoin underwent an MRI on his right shoulder on November 20, 2017. Ex. 4
at 116. The MRI revealed: “1. Tear along the supraspinatus footprint. Although the
tear primarily resides within the intrasubstance and bursal surface, portions of the
tear extending to the articular surface. 2. Partial tear of the distal superior
subscapularis. 3. Linear split-thickness tear of the distal intra-articular biceps
tendon. Partial intrasubstance tear of the proximal extra-articular biceps tendon.
4. Tears of the glenoid labrum as described above. 5. Mild to moderate narrowing
of the lateral outlet. 6. No abscess seen.” Id. at 117.
• On January 3, 2018, Petitioner returned to Dr. Perlmutter for acute bursitis of the
right shoulder. Ex. 5 at 5. The progress note from that visit states, “Patient returns
following an injection 8 months ago which offered him several weeks of
improvement. However his pain is returning. The pain is located anterolaterally
with radiation laterally down his arm. Worse with use improve with rest. Deep
aching. Limits his ability to sleep. Moderate in intensity. Recently underwent an
MRI scan as ordered by his primary care physician.” Id. Dr. Perlmutter’s
assessment was right rotator cuff tendinitis/bursitis and partial biceps tendon tear.
Id. at 6. The Plan states, “Given his symptoms and the fact that he is a
snowboarder, he wishes to hold off for any further treatment at this point in time. I
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do not believe any further injections. Predictably afford him long-term
improvement. The next step would be to consider surgery. He will return to my
office with a MRI disc that opens up so I can see the images myself. Based on the
report, surgical procedure of choice should be a right shoulder arthroscopy,
debridement, acromioplasty, and possible biceps tenotomy. He agrees with this
plan.” Id.
• Mr. Jodoin filed an affidavit from his daughter, who is a licensed physical therapist.
See Ex. 10. Petitioner daughter asserts that “in October 2016, my father told me
that he had pain in his right arm after receiving a flu vaccination. My medical advice
to my father at that time was that pain can be normal after a vaccination, that it
should resolve, and that at this time it did not require medical attention. In late
December of 2016 my father had difficulty using his right arm and it impacted his
activities of daily living. At that time, I told him it was time to seek medical care.”
Id.
IV. Findings of Fact
I acknowledge that the standard applied to resolving onset for an alleged SIRVA
is liberal, and will often permit a determination in a petitioner's favor, especially in the
absence of fairly contemporaneous and direct statements within the petitioner's medical
records to the contrary. However, not every case can be so preponderantly established.
Ultimately, the resolution of such fact issues involves weighing different items of evidence
against the overall record.
This case presents several issues regarding Petitioner’s success in establishing
onset consistent with the Table’s 48-hour requirement. First, there is a ten-week records
gap from vaccination to first efforts to treat Petitioner’s alleged shoulder pain. While a
delay in seeking treatment is not a bar to a favorable onset finding (and more often than
not is only relevant to severity), it can be a significant issue clouding the picture, since
time has passed without treatment.
Second, the gap herein is compounded by varying reports of onset at the time
Petitioner initially reported his injury on January 4, 2017. Thus, it was initially noted that
Petitioner’s office visit was for “[right] arm losing strength, deep pain w/ certain
movements x 8 weeks.” Ex. 3 at 76 (emphasis added). Then, under the “History of
Present Illness” it is documented that Petitioner “states he had a flu shot given there
about 6 weeks ago and has caused him pain and decreased ROM since the shot.” Id.
(emphasis added). Neither is consistent with the actual date of vaccination. While these
statements alone are not disproving, they are not fully consistent with Table onset.
More significantly, however, the treatment gap features an intervening medical visit
between vaccination and Petitioner’s first report of post-vaccination shoulder pain. On
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November 15, 2016, approximately two weeks post vaccination, Nurse Cline completed
Petitioner’s Application for Merchant Mariner Medical Certificate, in which she certified
that Petitioner had the physical strength, agility, and flexibility to perform the items listened
on the instruction table. Ex. 3 at 58. Some of the items listed on the instruction table
include, “[i]s able, without assistance, to climb up and down vertical ladders and
stairways”; “[i]s able, without assistance, to open and close watertight doors that may
weigh up to 55 pounds (25 kilograms); should be able to move hands/arms to open and
close valve wheels in vertical and horizontal directions; rotate wrists to turn handles; able
to reach above shoulder height”; “Is able, without assistance, to lift at least a 40 pound
(18.1 kilograms) load off the ground, and to carry, push, or pull the same load”; “Is able,
without assistance, to pull an uncharged 1.5 inch diameter, 50' fire hose with nozzle to
full extension, and to lift a charged 1.5 inch diameter fire hose to fire fighting position.”
Respondent’s Ex. A at 2.
Petitioner’s medical condition, as documented on this form, undermines
contentions that he was then experiencing shoulder pain associated with vaccination.
Some of the abilities mentioned on the table require sound shoulder strength, agility, and
range of motion, and are not consistent with the immediate and acute onset of pain as
reported by Petitioner. See Petitioner’s Affidavit at 1; Ex. 4 at 34-35, Ex. 6 at 12. Moreover,
Petitioner represented on that form that he did not have any “Fractures, recurrent
dislocations or limitation of motion of any joint” or “Any diseases, surgeries, cancers, or
disabilities not listed on this form” and his PCP indicated that all systems/organs were
“normal,” including “upper/lower extremities” and “spine/ musculoskeletal” systems. Id. at
54, 57.
Petitioner has attempted to remedy what appears to be a discrepancy on the form
(i.e., the form does not mention any abnormalities or conditions, but at the same time
Petitioner is experience acute pain from the flu vaccine two weeks prior) stating, “he
believed that the pain was muscular in nature and that it would take time to resolve. He
did not believe the pain to be related to a joint as he was not yet experiencing arm
weakness or a decrease range in motion . . . . The Coast Guard application was answered
honestly that at that point in time he did not experience joint pain or limitation in the use
of his arm.” Motion at 2.
Respondent, by contrast, argues that Petitioner’s explanation “ignores that
[P]etitioner was asked to identify all conditions on the Merchant Mariner form, not just
those impacting his range of motion, and Ms. Cline was also required to perform a full
examination and document any conditions present. Indeed, the form requires a medical
examination to address the very argument petitioner now offers, selective reporting of
conditions by an applicant. See Ex. A at 1 (instructions for Section II (a)(b), directing the
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Medical Practitioner to also report any conditions not reported by the applicant but
discovered by the medical practitioner and to describe those conditions). The form also
makes clear that all abnormalities are to be reported, as the Medical Practitioner could
explain whether those abnormalities would actually impact the applicant’s ability to
perform certain tasks. (Sections VI and VII). These forms make clear that [P]etitioner did
not identify any right arm pain, and Ms. Cline did not observe any after conducting a full
and complete examination. See Ex. 2 at 56-58.”
Respondent’s contention on the significance of this intervening record is
persuasive. While Petitioner’s statement may provide an explanation for not reporting joint
pain or a problem with range of motion, it does not explain his upper/lower extremities
and spine/musculoskeletal being noted as “normal,” nor does it explain no other
conditions or abnormalities otherwise being reported on the form. Moreover, the form
does not affirmatively support that Petitioner experienced an immediate onset of shoulder
pain following the flu vaccination.
Additionally, what Petitioner reported to his physicians and medical practitioners,
to some extent, conflicts with the aforementioned form and Petitioner’s statements
regarding onset. Petitioner maintains that he “started having a deep ache in [his] right
deltoid muscle shortly after3 the injection,” and at time of the form’s creation and for weeks
after the vaccination, he only had a “dull ache” in his arm that “did not interfere with [his]
life . . . .” Petitioner’s Affidavit at 1. However, at his January 4, 2017 visit, Petitioner
reported to Nurse Cline that the flu vaccination “has caused him pain and decreased
strength and decreased ROM since the shot.” Ex. 3 at 2 (emphasis added).
Then, at his January 9, 2017 PT evaluation, Petitioner reported that since the
vaccination, “patient has had continued pain with daily tasks.” Ex. 4 at 36. And, on May
17, 2017, at his appointment with Dr. Perlmutter, Petitioner “noted acute onset of right
shoulder pain following the shot.” Ex. 5 at 16. It is noteworthy that at some point on, or
prior to, January 7, 2017, Petitioner learned about SIRVA, which he indicated was his
reason for presenting to PT on the Outpatient Rehabilitation Services Medical History
form. See Ex. 4 at 32. Prior to January 3, 2017, there is no documented evidence of
Petitioner’s shoulder pain, specifically not prior to November 15, 2016, at the time of his
Merchant Mariner Medical certification. In fact, all references to immediate and acute pain
occurred after Petitioner reporting he had a SIRVA.
This evidence in its totality is insufficient to find that Petitioner’s symptoms began
within 48 hours of vaccination. See, e.g., R.K. v. Sec'y of Health & Human Servs., No. 03-
632V, 2015 WL 10936123, at *76 (Fed. Cl. Spec. Mstr. Sept. 28, 2015) (finding that more
3 Petitioner does not provide any specific date or time to define “shortly after.”
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remote histories of illness did not have sufficient indicia of reliability to be credited over
conflicting contemporaneous medical records); see also Vergara v. Sec'y of Health &
Human Servs., 08-882V, 2014 WL 2795491,*4 (Fed. Cl. Spec. Mstr. May 15, 2014)
(“[s]pecial Masters frequently accord more weight to contemporaneously-recorded
medical symptoms than those recorded in later medical histories, affidavits, or trial
testimony.”).
A careful review of the record, supplemented by sworn witness statements, may
permit a determination that a petitioner's shoulder pain began within 48 hours after the
vaccination. However, not every petitioner can make such a showing, particularly in the
face of contemporaneous conflicting medical records reflecting his own endorsements of
no pain after undergoing a full examination and a sworn statement that he did not have
any medical conditions as of November 2016.
I find Petitioner has not preponderantly established that onset of his pain likely
occurred within 48 hours of vaccination – meaning that he cannot proceed in this action
with his Table SIRVA claim.
CONCLUSION
Petitioner’s Table SIRVA claim is dismissed. In light of the instant ruling, I
will proceed with transferring Petitioner's case out of SPU and will randomly
reassign the case to a special master to conduct further proceedings to establish
(1) situs; and (2) whether Petitioner has demonstrated an off-Table case for some
kind of injury. Petitioner may file an amended petition pleading an off-Table injury.
Petitioner’s amended petition is due by no later than Tuesday, February 21, 2023.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
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DOCUMENT 2: USCOURTS-cofc-1_19-vv-01651-1
Date issued/filed: 2023-02-13
Pages: 2
Docket text: PUBLIC DECISION (Originally filed: 01/19/2023) regarding 44 DECISION of Special Master. Signed by Chief Special Master Brian H. Corcoran. (mva) Service on parties made.
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Case 1:19-vv-01651-UNJ Document 47 Filed 02/13/23 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1651V
* * * * * * * * * * * * * * * * * * * * * * * * *
*
ROBERT R. JODOIN, * Chief Special Master Corcoran
*
Petitioner, *
* Filed: January 19, 2023
v. *
*
SECRETARY OF HEALTH AND *
HUMAN SERVICES *
*
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * * *
DECISION DISMISSING PETITION
On October 24, 2019, Robert R. Jodoin filed a Petition under the National Vaccine Injury
Compensation Program1 (the “Vaccine Program”). Petitioner alleged that he sustained a Shoulder
Injury Related to Vaccine Administration (“SRIVA”) as a result of the influenza (“flu”) vaccine
he received on October 26, 2016. Petition (ECF No. 1) at 1.
This matter was originally assigned to the Special Processing Unit (“SPU”), based on the
perceived possibility of settlement given the nature of the claim. However, in December 2022 I
dismissed the Table claim, on the grounds that certain elements specific to a flu vaccine-SIRVA
Table claim could not be preponderantly established. See Findings of Fact and Conclusions of
Law, dated December 19, 2022 (ECF No. 40). I allowed for the possibility, however, that a
causation-in-fact version of the claim could succeed, and therefore transferred the matter from
SPU while setting a date in February 2023 for the filing of an amended petition. ECF No. 40 at 10.
Petitioner has now filed a motion for a decision dismissing the claim. See Motion, dated
Jan. 6, 2023 (ECF No. 43) (“Motion”). The Motion invokes Vaccine Rule 21(b) (which governs
involuntary dismissals) as its basis, but provides no substantiation for the grounds for dismissal.
The Vaccine Rules provide for circumstances in which a pending claim can be dismissed—
but these provisions are largely inapplicable herein. Petitioner may no longer avail himself of
Vaccine Rule 21(a)(1)(A), which governs voluntary dismissals before service of the Rule 4(c)
1 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).
1

Case 1:19-vv-01651-UNJ Document 47 Filed 02/13/23 Page 2 of 2
Report (which has occurred) (see ECF No. 32), and Respondent has not stipulated to dismissal
under Rule 21(a)(1)(B). In addition, Rule 21(b) applies to circumstances in which a claimant fails
to prosecute the claim or comply with orders issued in this case—none of which has yet occurred.
Nevertheless, there is a means for dismissal under the circumstances: a “motion seeking
dismissal.” This is a mechanism for ending cases that other claimants have used, either because
the claim appears unlikely to succeed, or simply because the petitioner prefers not to continue with
the claim, but where dismissal is sought after the time to act under Rule 21(a) has passed. See, e.g.,
Goldie v. Sec’y of Health & Human Servs., No. 18-1476V, 2019 WL 6045647, at *1 (Fed. Cl Spec.
Mstr. Oct. 11, 2019). Dismissal of Vaccine Program cases at this particular stage of the litigation
is not uncommon. Indeed, the rules of the Court of Federal Claims (which are properly applied
herein) permit dismissal of claims at a petitioner/plaintiff’s request and “on terms that the court
considers proper.” RCFC 41(a)(2).
Under the Vaccine Act, a petitioner may not receive a Vaccine Program award based solely
on his claims alone. Rather, the petition must be supported by either medical records or by the
opinion of a competent physician. Section 13(a)(1). In this case, there is insufficient evidence in
the record for Petitioner to meet his burden of proof, because Petitioner has not offered support for
a non-Table claim, and (by making this motion) suggests he has no intention of proceeding with
the claim. Therefore, Petitioner’s claim cannot succeed and must be dismissed. Section
11(c)(1)(A).
Accordingly, I hereby DISMISS Petitioner’s case. 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.2
IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
2 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.
2