VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-01811
Package ID: USCOURTS-cofc-1_19-vv-01811
Petitioner: Claudia Marquez
Filed: 2019-11-26
Decided: 2022-08-31
Vaccine: influenza
Vaccination date: 2017-11-14
Condition: right Shoulder Injury Related to Vaccine Administration (SIRVA)
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Claudia Marquez filed a petition alleging she suffered a right Shoulder Injury Related to Vaccine Administration (SIRVA) after receiving an influenza vaccination on November 14, 2017. The petition was filed on November 26, 2019. However, the evidence presented did not demonstrate that her injury was sufficiently severe, specifically failing to show residual effects lasting more than six months after vaccination. Additionally, the claim did not meet the criteria for a Table Injury. Consequently, Ms. Marquez filed a motion to dismiss her own petition, acknowledging that she would be unable to prove entitlement to compensation. She understood that this dismissal would end her rights within the Vaccine Program but intended to preserve her right to file a civil action. The Special Master granted her motion, dismissing the case for insufficient proof of severity and the alleged Table Injury. The Clerk of the Court was ordered to enter judgment accordingly.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_19-vv-01811-0
Date issued/filed: 2022-05-13
Pages: 12
Docket text: PUBLIC ORDER/RULING (Originally filed: 04/05/2022) regarding 31 Findings of Fact & Conclusions of Law,, Scheduling Order, Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
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Case 1:19-vv-01811-UNJ Document 35 Filed 05/13/22 Page 1 of 12
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1811V
UNPUBLISHED
CLAUDIA MARQUEZ, Chief Special Master Corcoran
Petitioner, Filed: April 5, 2022
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Findings of Fact; Site of Vaccination,
HUMAN SERVICES, Onset, and Statutory Six Month
Requirement Influenza (Flu)
Respondent. Vaccine; Shoulder Injury Related to
Vaccine Administration (SIRVA)
Renee J. Gentry, Vaccine Injury Clinic, George Washington Univ. Law School,
Washington, DC, for Petitioner.
Parisa Tabbassian, U.S. Department of Justice, Washington, DC, for Respondent.
FINDINGS OF FACT1
On November 26, 2019, Claudia Marquez 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 she suffered right shoulder/arm pain caused-in-fact
by the influenza (“flu”) vaccine she received on November 14, 2017, in her right deltoid.
Amended Petition at 1, ¶¶ 2, 16, ECF No. 16.3 Acknowledging that she previously suffered
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).
3 Petitioner filed an amended petition on April 13, 2020, to correct one entry which erroneously listed the
date of vaccination as November 24, 2017. Compare Petition at 1 with Amended Petition at 1.

Case 1:19-vv-01811-UNJ Document 35 Filed 05/13/22 Page 2 of 12
right shoulder bursitis in 2015, Petitioner maintains that her current pain is distinguishable,
began the morning after vaccination, and continued for at least six months. Amended
Petition at ¶¶ 3-4, 18.
For the reasons discussed below, I find that the flu vaccine Petitioner received was
most likely administered in her right deltoid, and that she suffered right shoulder/arm pain
which began the next morning. However, as the record currently stands, there is
insufficient evidence to support Petitioner’s assertions that her post-vaccination pain was
unrelated to the bursitis she previously suffered, or that it continued for more than six
months. It is nonetheless my hope that this fact ruling might facilitate a productive
settlement discussion.
I. Relevant Procedural History
A few days after filing the Petition, Ms. Marquez filed her vaccine record and some
of the medical records required under the Vaccine Act. Exhibits 1-4, ECF No. 5; see
Section 11(c). On February 13, 2020, she filed a status report indicating there were no
outstanding medical records or additional documentation regarding her site of
vaccination. ECF No. 9. Thereafter, the case was activated and assigned to the Special
Processing Unit (OSM’s process for attempting to resolve certain, likely-to-settle claims).
ECF No. 10. Approximately one week later, Petitioner filed a better copy and final report
of Petitioner’s March 12, 2018 orthopedic visit. Exhibit 5, filed Feb. 26, 2020, ECF No. 12.
During a telephonic status conference held on March 16, 2020, the parties
discussed the need for Petitioner’s affidavit, an amended petition to correct one entry
containing an erroneous date of vaccination, the lack of documentation showing the site
of vaccination, and the possibility that earlier chiropractic records were still outstanding.
ECF No. 15. In April 2020, Petitioner filed her amended petition, detailed affidavit, and
additional chiropractic records. Amended Petition, filed Apr. 13, 2020, ECF No. 16;
Exhibits 6-7, filed Apr. 16, 2020, ECF Nos. 17-18.
In June 2021, Respondent provided counsel’s assessment that potential factual
issues exist in this case – specifically regarding site of vaccination and onset of
Petitioner’s pain. ECF No. 20. In September, Petitioner filed a list of her out-of-pocket
medical expenses, and indicated she had forwarded her demand and supporting
documentation to Respondent. Status Report, Sept. 25, 2021, ECF No. 22. Exhibit 8, filed
Sept. 30, 2021, ECF No. 23.
On June 4, 2021, Respondent filed his Rule 4(c) Report, arguing that I should deny
entitlement to compensation in this case. Rule 4(c) Report at 1, ECF No. 26. Specifically,
2

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he maintained that Petitioner has failed to establish that she suffered the residual effects
of her shoulder injury for more than six months, a requirement for both Table and non-
Table claims. Id. at 7; see Section 11(c)(1)(D)(i) (statutory six-month requirement).
Additionally, he insisted that Petitioner’s injury does not meet the Table definition for
shoulder injury related to vaccine administration (“SIRVA”) – due to her prior right
shoulder pain and failure to establish pain onset within 48 hours of vaccination,4 and that
Petitioner could not otherwise establish off-Table causation.5 Rule 4(c) Report at 4-6; In
addition, and although not identified as an issue potentially fatal to Petitioner’s claim,
Respondent mentioned that the vaccine record did not establish the site of vaccination.
Id. at 2.
During a second telephonic status conference held on June 29, 2021, the parties
were informed of my preliminary view – that an informal settlement for an amount which
is proportional to a significant aggravation claim would be appropriate in this case. Order,
issued July 2, 2021, at 1, ECF No. 27. Petitioner was instructed to provide a revised
demand, if needed, and Respondent was ordered to file a status report indicating whether
he was willing to engage in further settlement discussions or wished me to address any
of the factual issues in the case. Id. at 1-2.
On August 18, 2021, Respondent filed a status report indicating that he “is not
interested in settlement negotiations at this time and requests fact-finding regarding the
initial onset, site of vaccination, and severity of [P]etitioner’s shoulder pain.” ECF No. 28.
The matter is now ripe for adjudication.
II. Issues
At issue is whether the following contentions have preponderant record support:
1) that Petitioner received the vaccination alleged as causal in the injured right deltoid; 2)
that she experienced right shoulder/arm pain the morning after vaccination; and 3) that
she continued to suffer the residual effects of vaccine-caused pain for more than six
months.
4 To meet the definition for a Table SIRVA injury, a petitioner must show the lack of prior shoulder pain,
inflammation, or dysfunction which would explain her current symptoms and pain onset within 48 hours of
vaccination. 42 C.F.R. § 100.3(a) XIV.B. (2017) (influenza vaccination); 42 C.F.R. § 100.3(c)(10)(i)-(ii)
(additional requirements set forth in the Qualifications and Aids to Interpretation). Acknowledging her prior
right shoulder pain, Petitioner has not alleged a Table SIRVA injury in this case.
5 To establish causation-in-fact, a petitioner must satisfy the three-pronged test set forth in Althen v. Sec’y
of Health & Hum. Servs., 418 F.3d 1274, 1278 (Fed. Cir. 2005). Because Petitioner has alleged that the flu
vaccine caused her right shoulder/arm pain, she must provide preponderant evidence to satisfy this test.
3

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III. 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 by Vaccine Act
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 balance, accuracy has an extra premium. These records are also generally
contemporaneous to the medical events.” Cucuras v. Sec’y of Health & Hum. 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 & Hum. Servs., No. 03-
1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, this rule
does not always apply. “Written records which are, themselves, inconsistent, should be
accorded less deference than those which are internally consistent.” 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)). And the Federal Circuit 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).
The United States Court of Federal Claims has 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 & Hum. 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 v. Sec’y
of Health & Hum. Servs., 42 Fed. Cl. 381, 391 (1998) (citing Blutstein v. Sec’y of Health
& Hum. Servs., No. 90-2808, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998).
The credibility of the individual offering such fact testimony must also be determined.
4

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Andreu v. Sec’y of Health & Hum. Servs., 569 F.3d 1367, 1379 (Fed. Cir. 2009); Bradley
v. Sec’y of Health & Hum. 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
Londe, 110 Fed. Cl. at 204 (citing Section 12(d)(3); Vaccine Rule 8); see also Burns v.
Sec’y of Health & Hum. 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).
IV. Findings of Fact: Site and Six-Month Severity
I make findings regarding site of vaccination, onset, and severity after a complete
review of the record to include all medical records, affidavits, Respondent’s Rule 4(c)
Report, and additional evidence. Specifically, I highlight the following:
• Prior to vaccination on November 19, 2015, Petitioner visited her primary
care provider (“PCP”) complaining of right arm pain which she thought may
be due to a pinched nerve. Exhibit 4 at 15-16. Reporting that the pain had
started five days earlier, she described it as sharp, “radiat[ing] down the
right deltoid and up the right neck, most painful with abduction,” and “better
with rest.” Id. at 15. Observing no swelling, the PCP diagnosed Petitioner
with bursitis, prescribed a Medrol dose pack, and instructed Petitioner to
return if she experienced any swelling or warmth. Id. at 15, 17.
• On January 29, 2016, Petitioner visited a chiropractor for neck pain –
described by Petitioner as a new problem exacerbated by “poor posture
while working on her computer for extended periods of time” and rated at a
level of five out of ten. Exhibit 7 at 4. Reporting sharpness and tightness in
her mid-back and neck, she indicated that the problem improved with rest
and stretching. Id. Petitioner visited the chiropractor with the same
5

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complaint on nine more occasions during February through November
2016. Id. at 5-15.
• Petitioner next visited her PCP for preventive care on June 14, 2016. Exhibit
4 at 8. Petitioner reported that her anxiety was well-controlled by taking
sertraline6 and that she was currently experiencing no pain. Exhibit 4 at 8,
10. The PCP discussed Petitioner’s current medication, diet, and need for
a pap smear, colonoscopy, PPD test, and flu vaccine. Id. at 11-13. Petitioner
declined the flu vaccine and referral for a pap smear, but was administered
a PPD test and accepted the referral for a colonoscopy. Id. at 12-13.
• By her second to last chiropractic appointment on July 26, 2016, Petitioner
reported that her pain was occurring less frequently. Exhibit 7 at 12. She
rated its severity as three out of ten. Id.
• However, at her last chiropractic appointment on November 28, 2016,
Petitioner reported that her neck had become aggravated. Exhibit 7 at 15.
She rated her pain at a level of six in her neck and five in her back. Id. Upon
examination, Petitioner’s chiropractor observed that she exhibited
moderately tender and taut muscles in her back and neck, a finding
indicative of a left muscle strain when turning her head and applying
resistance, and some pain and limitations during cervical rotation testing.
Id. at 13. There are no records of any medical treatment during the year
prior to vaccination - from late November 2016 appointment until mid-
November 2017.
• Petitioner received the flu vaccine at her workplace – Medstar Washington
Health Center, Occupational Health Department, on November 14, 2017.
Exhibit 1 at 4. The vaccine record does not indicate the site or manner of
vaccination. Id. at 1-4.
• On January 8, 2018 – approximately seven to eight weeks after vaccination
- Petitioner was seen by her PCP for an annual physical. Exhibit 4 at 6-7.
Noted to be 51 years old at the time, Petitioner reported receiving the flu
vaccine in November, never having had colon cancer screening, and
undergoing an eye exam the previous year. Id. at 6. Under pain
assessment, it was noted that Petitioner was experiencing no pain. Id. at 7.
6 Sertraline hydrochloride “is selective serotonin reuptake inhibitor, used to treat depressive, obsessive-
compulsive, and panic disorders.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY at 1699 (32th ed. 2012).
6

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Petitioner underwent a pap smear, but declined colon cancer screening and
an ECG. The PCP provided her with a referral for a mammogram, ordered
bloodwork, and instructed Petitioner to continue taking sertraline.
• On March 12, 2018, Petitioner visited an orthopedist, complaining of
constant right shoulder pain for three months. Exhibit 2 at 8. She indicated
that her symptoms started after receiving the flu vaccine three months
earlier. Acknowledging that she had a history of shoulder bursitis, Petitioner
described her current pain as constant. An examination revealed Petitioner
exhibited impingement but normal range of motion (“ROM”). The
orthopedist diagnosed Petitioner with tendinosis of the rotator cuff and
prescribed physical therapy (“PT”) and a cortisone injection. Id. Petitioner
declined the PT but agreed to a cortisone injection which was administered
at that appointment. Id. at 6, 8, 13-14.
• On June 4, 2018, Petitioner visited a different chiropractor than seen in
2016,7 complaining of bilateral neck pain mostly on the right side of her neck
and upper trapezius. Exhibit 3 at 2-8. On the intake form, the area between
Petitioner’s neck and shoulder, over her trapezius, is marked as the location
of her pain. Id. at 7. Petitioner now identified December 1, 20188 as the date
of onset but also indicated (inconsistently) that her pain began the day after
she received the flu shot. Id. at 2. Describing her pain as constant, dull, and
aching, Petitioner added that it was now radiating, occurred “mostly with
movement like moving the computer mouse,” increased when lifting or
laying upon her arm, decreased with stretching, and interrupted her sleep.
Id. at 2, 7. She indicated that she was currently working 40 hours per week.
Id. at 2. Responding to a query about past treatment of her condition,
Petitioner indicated she had tried massage and that her “last chiropractic
treatment was one year ago.” Id.
• At her next chiropractic appointment on June 12, 2018, Petitioner again
described dull and aching neck pain mostly on the right side. Exhibit 3 at
12. Rating the level of her pain as four to five out of ten, Petitioner reported
that her discomfort “occur[ed] approximately 30% of the time,” “increase[d]
with sitting for too long,” and “[wa]s better since the last visit.” Id. The
treatment provided is described as palpitation of trigger points in the
7 Petitioner indicated her previous chiropractor, last seen in 2016, had retired. Exhibit 6 at ¶ 11.
8 Given that the visit occurred on June 14, 2018, the year provided by Petitioner is clearly a mistake. It can
be reasonably concluded that she meant December 1, 2017.
7

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muscles from the base of the neck down along the spine and of the cervical
joints. Id.
• These same descriptive paragraphs of Petitioner’s complaint and treatment
are repeated during seven additional visits to the chiropractor from late June
2018 through April 2019. Exhibit 3 at 13-19. By her sixth visit on December
12, 2018, Petitioner “was able to lateral[ly] bend her neck to the right side
without pain and at a full range.” Id. at 17.
• In her affidavit, executed on March 27, 2020, Petitioner indicated that her
right shoulder pain began the day after vaccination. Exhibit 6 at ¶ 3.
Stressing that the pain she experienced post-vaccination was excruciating,
radiated into her shoulder and arm, was not relieved by stretching, and
affected every aspect of her life, Petitioner distinguished it from the pain she
experienced in 2015. Id. at ¶ 6. She maintained that her 2015 pain, due to
mouse overuse at her full-time job, had resolved before fall 2017. Id. at ¶¶
1, 6.
• Petitioner asserted that she did not mention the right shoulder pain which
began in November 2017 at her physical several months later,
characterized by Petitioner as a well-women visit, “because it wasn’t the
purpose/focus of the visit . . . [and she] was also still considering whether
this pain might have been related to [her] previous diagnosis.” Id. at ¶ 7.
After purchasing a correction device in late February 2018 (id. at ¶ 8),
Petitioner “recognized that this pain was different,” and wondered if she was
“suffering a pinched nerve or an issue with [her] clavicle” – issues she had
not experienced with her 2015 pain. Id. at ¶ 9.
• Petitioner also maintained that her pain did not dissipate after the cortisone
injection she received in March 2018. Exhibit 6 at ¶ 10. Reporting that her
prior chiropractor had retired, Petitioner indicated that the chiropractic
treatment she pursued beginning in June 2018 was for her vaccine-related
injury and pain. Id. at ¶ 11. Describing the exacerbation of her shoulder pain
when moving and lifting boxes in 2019, Petitioner insisted that she
continued to suffer from her injury in late 2020, when her affidavit was
executed. Id. at ¶¶ 12, 14.
A. Nature of Petitioner’s Injury
The medical records show that Petitioner complained of neck, shoulder, and/or
arm pain on the following occasions (some of which predated vaccination):
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1) sharp right shoulder pain to her PCP in November 2015,
2) neck and mid-back pain and tightness to her chiropractor from late-January
2016 through November 2016,
3) constant right shoulder pain to an orthopedist since her vaccination in
November 2017 through March 2018, and
4) dull and aching neck pain – mostly on the right side of her neck and shoulder
to her current chiropractor in June 2018 through April 2019.
Due to similarities related to the descriptions contained throughout the medical records,
it is difficult to characterize the symptoms Petitioner experienced throughout 2015 to 2019
as originating from unrelated injuries or conditions. Indeed, Petitioner treated at least the
last three instances of right shoulder, arm, and neck pain as a continuation of the same
condition when completing the chiropractic intake form in early June 2018. Exhibit 3 at 2.
And Petitioner’s later attempts to distinguish the pain she experienced post-vaccination
from that suffered previously, and to connect all later pain to the same, vaccine-related
injury, are not supported by the information contained in the contemporaneously created
medical records.
In her affidavit, Petitioner maintained that the symptoms she suffered post-
vaccination were distinguishable from those she suffered in November 2015, because the
later symptoms included pain that radiated in her right shoulder and arm. Exhibit 6 at ¶ 6.
She insisted that the earlier, bursitis-related pain, by contrast, “was easily relieved with
some stretching, weight exercises, and over the counter medication . . . [and] neither
radiated nor prevented [her] from lifting her arm.” Id. However, this description of
Petitioner’s 2015 pain (provided in 2020) more closely resembles the more
contemporaneously provided information regarding the symptoms suffered in 2016 and
treated by her chiropractor. See, e.g., Exhibit 7 at 4 (describing 2016 pain). The medical
records regarding Petitioner’s complaint in November 2015 clearly show that she
described pain which “hurts with motion . . . [and] radiated down the right deltoid and up
the right neck” and required oral steroids. Exhibit 4 at 15, 17-18. Additionally, Petitioner
proposed the same possible pinched nerve injury for both the pain she felt in 2015 and
post-vaccination in 2017. Compare Exhibit 4 at 16 with Exhibit 6 at ¶ 9. These similarities
undercut Petitioner’s attempts to distinguish her post-vaccination pain from the bursitis
she suffered in 2015.
Additionally, Petitioner has insisted that the neck and shoulder pain she
experienced in June 2018 and later was a continuation of the pain she reported in March
2018. Exhibit 11-12, 14. And there is some evidence to support this assertion – when
completing the intake form on June 4, 2018, Petitioner linked her June 2018 pain to the
9

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flu vaccine she received. Exhibit 3 at 2. However, on that same the intake form, Petitioner
indicated her pain was last treated by a chiropractor a year ago. Id. And the medical
records reveal that this later pain more closely resembles the pain Petitioner suffered in
2016. Compare Exhibit 7 with Exhibit 3. Both instances of pain were attributed to extended
computer and mouse use and described as improving with stretching and rest. E.g.,
Exhibit 3 at 2; Exhibit 7 at 4. In that respect, even the pain Petitioner experienced in 2015,
which was also attributed to computer and mouse overuse, is more closely connected to
this later 2018 neck and shoulder pain. See Exhibit 6 at ¶ 6 (describing the 2015 bursitis-
related pain as due to long hours at the computer). By June 2018, Petitioner again
reporting working full-time – 40 hours per week. Exhibit 7 at 2.
Considering all medical records and other evidence, the pain Petitioner
experienced in June 2018 and later appears to be a continuation of the condition(s) which
caused her earlier pain, especially that experienced in 2016 – and thus her claim is best
understood as one alleging significant aggravation of a pre-vaccination condition. As
such, Petitioner would be able to satisfy the statutory six-month requirement and would
not be required to distinguish her post-vaccination pain from her earlier bursitis. However,
to prevail, Petitioner would be required to satisfy the six-pronged Loving test – constituting
of the three-prongs of Althen with additional requirements establishing the significant
aggravation of a petitioner’s prior condition. Loving v. Sec'y of Health & Human Servs.,
86 Fed. Cl. 135, 144 (Fed. Cl. 2009).
Because Petitioner has alleged only a causation-in-fact claim, I will address the
issues of site, onset, and six-month severity in that context. However, I make no definitive
findings regarding the associations between the above instances of pain. And my onset
finding applies only to the pain for which Petitioner first sought treatment in March 2018.
B. Site and Onset
Despite the above discussion and other instances of pain, it is evident from the
record that the constant right shoulder/arm pain Petitioner reported in March 2018 likely
began the day after vaccination. When she first sought treatment, Petitioner described
the duration of her pain as only having existed for three months. Exhibit 2 at 8. Although
this description would effectively place onset a month after the November 2017
vaccination, Petitioner repeated this same erroneous timing when discussing the date of
vaccination as well. She reported this information – incorrect timing for both her pain onset
and vaccination when seeking chiropractic treatment in June 2018. Exhibit 3 at 2. Thus,
the repeated error regarding the timing of Petitioner’s vaccination and pain onset reflects
Petitioner’s lack of precision when describing these events. It does not diminish the
impact of her statements tying the onset of her pain to the flu vaccine she received.
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In addition, besides providing important, contemporaneous information regarding
the onset of Petitioner’s right shoulder/arm pain, these statements provide evidence that
Petitioner received the vaccine in her right deltoid as alleged. It would be illogical for
Petitioner to attribute her pain to the flu vaccine she received if the vaccine had been
administered in her opposing, left deltoid. And other than the silence of the vaccine record
on the situs issue, there is no other record proof suggesting a different administration
situs.
To further counter Petitioner’s assertions regarding onset, Respondent has argued
that Petitioner’s failure to mention her pain at the physical she attended in January 2018,
undercuts her claims of an immediate onset. Rule 4(c) Report at 4-5. However, Petitioner
made a similar omission during her June 2016 physical, despite being treated for neck
and upper back pain throughout 2016. Exhibit 4 at 10-14; see Exhibit 7 at 7-10
(chiropractic records from visits on April 20, June 23, and June 30, 2016). This earlier
omission is evidence which supports Petitioner’s claim that she was experiencing right
shoulder/arm pain in January 2018, but did not mention it during her January 2018
physical because she believed it outside the focus of the PCP visit. See Exhibit 6 at ¶ 7.
Although a close call, Petitioner’s descriptions of immediate pain the day after
vaccination provided to the orthopedist in March 2018 and to the chiropractor in June
2018 constitutes sufficient evidence to establish that Petitioner received the flu vaccine in
her right deltoid, and suffered pain beginning the next day, as alleged.
C. Six-Month Severity
More problematic is the question of severity. To establish that she suffered the
residual effects of her injury for more than six months, Petitioner must show that her
symptoms continued beyond mid-May 2018. She must link the symptoms she
experienced in June 2018 and later to the shoulder injury she alleges.
In her affidavit, Petitioner insisted that the pain she reported during the orthopedic
appointment on March 12, 2018, did not dissipate after the cortisone injection she
received at that visit and was the reason she sought chiropractic care in June 2018.
Exhibit 6 at ¶ 10. However, the June 2018 pain was located in her neck and right
trapezius, and appears to be similar to the muscle strain she experienced in 2016. Like
in 2016, the pain Petitioner reported in June 2018, and later, worsened with overuse and
improved with stretching. Exhibit 3 at 2, 7. It does not appear to be related to pain she
reported in March 2018, and described more fully in her affidavit, which may or may not
be vaccine caused.
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V. Conclusion and Scheduling Order
I have determined that the record contains the preponderant evidence needed to
establish that Petitioner received the flu vaccine alleged as causal in her right, injured
arm, and that she experienced pain which began the day after vaccination which may
constitute a new injury or aggravation of a pre-vaccination injury. However, for Petitioner’s
currently alleged causation-in-fact claim, there is insufficient evidence to satisfy the
Vaccine Act’s six-month severity requirement.
For Petitioner’s causation-in-fact claim to succeed, she must provide preponderant
evidence establishing that the pain she experienced in March 2018 was caused by the
flu vaccine she received on November 14, 2017. She also must provide preponderant
evidence establishing that symptoms related to her shoulder injury continued beyond mid-
May 2018 – that the later pain she experienced in June 2018 was related to her vaccine
injury. If Petitioner chooses to proceed under a significant aggravation claim, she must
establish that the vaccine significantly aggravated her prior condition. As it currently
stands, Petitioner is unable to satisfy these requirements.
As I previously stated, I believe this case is appropriate for informal settlement
based upon an amount lower than that which would be awarded if entitlement to
compensation was established. I encourage the parties to engage in informal settlement
discussions to determine if an agreement can be reached. Otherwise, Petitioner will be
required to provide an expert report and any additional evidence needed to prove
causation and six months of sequelae or significant aggravation, and the case will likely
need to be transferred out of SPU. Having reviewed the medical records and current
evidence in this case, I am not convinced that Petitioner’s claim can succeed. However,
a final attempt at a litigative risk settlement is warranted.
The parties shall file a joint status report indicating whether they have
engaged in additional settlement discussions, and believe the case can be
informally resolved within SPU sometime before the end of the summer, by no later
than Tuesday, May 10, 2022. If the parties believe an informal resolution can be
reached, they should provide an estimate of the amount of time needed. Otherwise,
the matter will be transferred out of SPU.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
12

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DOCUMENT 2: USCOURTS-cofc-1_19-vv-01811-1
Date issued/filed: 2022-08-31
Pages: 2
Docket text: PUBLIC DECISION (Originally filed: 08/05/2022) regarding 39 DECISION of Special Master. Signed by Special Master Thomas L. Gowen. (hs) Service on parties made.
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Case 1:19-vv-01811-UNJ Document 40 Filed 08/31/22 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: August 5, 2022
* * * * * * * * * * * * *
CLAUDIA MARQUEZ, *
*
Petitioner, * No. 19-1811V
*
v. * Special Master Gowen
*
SECRETARY OF HEALTH * Dismissal; Insufficient Proof;
AND HUMAN SERVICES, * Severity.
*
Respondent. *
* * * * * * * * * * * * *
Renee J. Gentry, Vaccine Injury Clinic, George Washington Univ. Law School, Washington,
D.C., for petitioner.
Parisa Tabassian, U.S. Dept. of Justice, Washington, D.C., for respondent.
DECISION DISMISSING PETITION1
On November 26, 2019, Claudia Marquez (“petitioner”) filed a petition for compensation
under the National Vaccine Injury Compensation Program (“Vaccine Program or Program).2
Petitioner alleged that she suffered from a right Shoulder Injury Related to Vaccine
Administration (“SIRVA”) after receiving an influenza (“flu”) vaccination on November 14,
2017. Petition (ECF No. 1). The information in the record, however, does not show entitlement
to an award under the Program.
On August 5, 2022, petitioner filed a motion for a decision dismissing the petition.
Petitioner’s Motion (“Pet. Mot.”) (ECF No. 38). Petitioner states that “an investigation of the
facts and science supporting the claim has demonstrated to the petitioner that she will be unable
1 In accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012), because this opinion contains a
reasoned explanation for the action in this case, this opinion will be posted on the website of the United States
Court of Federal Claims. This means the opinion will be available to anyone with access to the internet. As
provided by 42 U.S.C. § 300aa-12(d)(4)B), however, the parties may object to the published Decision’s inclusion of
certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has 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). If neither
party files a motion for redaction within 14 days, the entire opinion will be posted on the website and available
to the public in its current form. Id.
2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine
Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-1 to -34 (2012)
(Vaccine Act or the Act). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. §
300aa.

Case 1:19-vv-01811-UNJ Document 40 Filed 08/31/22 Page 2 of 2
to provide that she is entitled to compensation in the Vaccine Program.” Pet. Mot. at ¶ 1. In
these circumstances, to proceed any further would be unreasonable and would waste the
resources of the Court, the respondent and the Vaccine Program. Id. at ¶ 2. Petitioner
understands that a decision by the Special Master dismissing her petition will result in a
judgment against her. She has been advised that such a judgment will end all of her rights in the
Vaccine Program. Id. at ¶ 3. Petitioner also understands that her attorney may apply for
attorneys’ fees and costs once his case is dismissed and judgment is entered against her. Id. at ¶
4. Petitioner intends to protect her rights to file a civil action in the future, and therefore,
pursuant to 42 U.S.C. §300aa-21(a)(2), she intends to elect to reject the Vaccine Program
judgment against her and elect to file a civil action. Id. at ¶ 5.
To receive compensation in the Vaccine Program, petitioners have the burden of proving
either: (1) that the vaccinee suffered a “Table Injury,” i.e., an injury beginning within a specified
period of time following receipt of a corresponding vaccine listed on the Vaccine Injury Table or
(2) that the vaccinee suffered an injury that was caused-in-fact by a covered vaccine.
§§13(a)(1)(A); 11(c)(1). In this case, petitioner was alleging a Table Injury. A prerequisite for
eligibility to proceed in the Vaccine Program, is that a petitioner establish she suffered an injury
that is sufficiently severe. The petition, affidavit, and supporting evidence must demonstrate that
the individual “(i) suffered the residual effects or complications of such illness, disability, injury,
or condition for more than six months after the administration of the vaccine.” §11(c)(1)(D).
Under the Vaccine Act: “The special master or court may not make [a finding of entitlement]
based on the claims of a petitioner alone.” Rather, the petition must be “[s]ubstantiated by
medical records or by medical opinion.” 13(a)(1)(A). Petitioner has been unable to demonstrate
that she has suffered an injury to her right shoulder after the administration of the November 14,
2017, flu vaccine for more than six months. Therefore, it is appropriate to dismiss petitioner’s
claim for insufficient proof of the severity requirement, as well as the alleged Table Injury.
Thus, petitioner’s motion is GRANTED. This matter is DISMISSED for insufficient
proof. The Clerk of the Court shall enter judgment accordingly.3
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
3 Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule
11(a).
2