VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-00020
Package ID: USCOURTS-cofc-1_20-vv-00020
Petitioner: KEVIN HARRIS
Filed: 2020-01-08
Decided: 2023-01-03
Vaccine: influenza
Vaccination date: 2018-09-11
Condition: left shoulder injury related to vaccination (SIRVA)
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Kevin Harris filed a petition alleging a left shoulder injury related to vaccine administration (SIRVA) from a flu vaccine he received on September 11, 2018. The initial ruling in December 2021 determined that Mr. Harris could not establish Table onset for his SIRVA claim because evidence showed he was experiencing shoulder pain approximately one month before the vaccination. This finding led to the dismissal of his Table claim. The case was then transferred to afford Mr. Harris the opportunity to pursue an off-Table claim. However, after the dismissal of his Table claim, Mr. Harris was unable to retain an expert to support his off-Table claim. Consequently, he filed a motion to dismiss his petition, acknowledging that proceeding further would be unreasonable and would waste resources. In January 2023, the Special Master granted Mr. Harris's motion, dismissing the petition and entering judgment accordingly.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_20-vv-00020-0
Date issued/filed: 2022-01-06
Pages: 10
Docket text: PUBLIC ORDER/RULING (Originally filed: 12/02/2021) regarding 33 Findings of Fact & Conclusions of Law, Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
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Case 1:20-vv-00020-UNJ Document 35 Filed 01/06/22 Page 1 of 10
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-0020V
UNPUBLISHED
KEVIN HARRIS, Chief Special Master Corcoran
Petitioner,
v. Filed: December 2, 2021
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Table Injury Dismissal; Influenza
(Flu); Shoulder Injury Related to
Respondent. Vaccine Administration (SIRVA);
Prior Shoulder Pain; Rotator Cuff
Tear.
Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Madelyn E. Weeks, U.S. Department of Justice, Washington, DC, for Respondent.
FINDINGS OF FACT AND CONCLUSIONS OF LAW DISMISSING TABLE CLAIM1
On January 8, 2020, Kevin Harris filed a petition for compensation in the National
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine
Act”). Petitioner alleges that as a result of receiving an influenza (“flu”) vaccine on
September 11, 2018, he suffered a right shoulder injury related to vaccination (“SIRVA”)
as defined on the Vaccine Injury Table (the “Table”). Petition (ECF No. 1) at Preamble.
The case was assigned to the Special Processing Unit (“SPU”) of the Office of Special
Masters.
1 Because this unpublished opinion 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 opinion 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 1:20-vv-00020-UNJ Document 35 Filed 01/06/22 Page 2 of 10
For the reasons discussed below, a preponderance of the evidence supports the
conclusion that Petitioner was experiencing pain in his right shoulder approximately one
month before receiving the flu vaccine – meaning he cannot establish Table onset for his
Table SIRVA claim, and therefore the Table claim must be dismissed. Nonetheless,
Petitioner will be afforded the opportunity to pursue a non-Table claim (to which
Respondent may likewise respond) following transfer out of the SPU.
I. Relevant Procedural History
As noted above, the claim was filed and the records were deemed to be
substantially complete in early 2020. ECF Nos. 1, 11-12. On March 28, 2021, Respondent
filed his report pursuant to Vaccine Rule 4(c), in which he asserted that Petitioner could
not establish that his onset of shoulder pain occurred within 48 hours after vaccination.
Rather, Petitioner had endorsed left shoulder pain at two chiropractic appointments in the
prior month. Respondent also noted that Petitioner initially attributed his pain to weight
training, and that he had a “long orthopedic history” including a left shoulder injury leading
to a surgical repair of a labral tear in 2009, which may have caused or contributed to the
post-vaccine findings on MRI and repeat surgery. Resp. Report (ECF No. 26) at 5-6.
On June 24, 2021, I ordered Petitioner to show cause why his claim should not be
dismissed for the aforementioned reasons. Show Cause Order (ECF No. 27). Petitioner
filed his brief on August 24, 2021 (ECF No. 29). Respondent filed a response on
September 23, 2021 (ECF No. 30). Petitioner did not file a reply. Therefore, this matter is
now ripe for adjudication.
II. Issue
At issue is whether Petitioner experienced the new onset of shoulder pain within
48 hours after his September 11, 2018 vaccination, as required for a Table SIRVA injury
based upon the relevant Qualifications and Aids to Interpretation (“QAI”). 42 C.F.R. §
100.3(c)(10)(ii).
III. Authority
Pursuant to Vaccine Act § 13(a)(1)(A), a petitioner must prove, by a
preponderance of the evidence, the matters required in the petition by Vaccine Act
§ 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
2

Case 1:20-vv-00020-UNJ Document 35 Filed 01/06/22 Page 3 of 10
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 & 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.
Nevertheless, it is also the case that “medical records may be incomplete or
inaccurate.” Camery v. Sec’y of Health & Human Servs., 42 Fed. Cl. 381, 391 (1998). The
Court of Federal Claims 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
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). 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 & Human Servs., 997 F.3d 1378, 1383 (Fed.
Cir. 2021).
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 § 12(d)(3); 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
3

Case 1:20-vv-00020-UNJ Document 35 Filed 01/06/22 Page 4 of 10
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).
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.
IV. Relevant Factual Evidence
I have reviewed all of the records filed to date. This ruling, however, is limited to
determining facts pertaining to the onset of Petitioner’s shoulder pain in 2018.
Accordingly, I will only summarize or discuss evidence that directly pertains to this issue.
• Petitioner was born in 1967. The medical records reflect that at the relevant time,
he was employed as a schoolteacher and track coach, and resided with his wife in
Oklahoma. He is right-hand dominant.
• Over nine years before the subject vaccination, on August 4, 2009, Petitioner
presented to orthopedic surgeon Jimmy Conway Jr., M.D., seeking treatment for
left shoulder pain and weakness since falling off his mountain bike two weeks
earlier. Dr. Conway’s initial assessment was a SLAP tear.3 Ex. 8 at 6.
• On August 24, 2009, an MRI visualized potential tears in the labrum as well as the
supraspinatus tendon.4 Ex. 8 at 6-8, 9.
• On August 31, 2009, Dr. Conway undertook arthroscopic surgery. He performed
an “extensive bursectomy” and “excellent repairs” of tears of the anterior and
superior labrum. Ex. 8 at 12-13. However, Dr. Conway failed to identify “any
significant problem with the rotator cuff on the underneath surface… or the bursal
surface,” or any “significant subacromial spur.” Id. at 14.
3 SLAP stands for “superior labrum from anterior to posterior.” The labrum is the “attachment site for the
shoulder ligaments and supports the ball-and-socket joint as well as the rotator cuff tendons and muscles.”
Stephen Fealey, M.D., Shoulder Labrum Tears: An Overview, Hospital for Special Surgery,
https://www.hss.edu/conditions shoulder-labrum-tears-overview.asp (last accessed October 29, 2021).
4 The supraspinatus, infraspinatus, teres minor, and subscapularis tendons form the rotator cuff. Dorland’s
Illustrated Medical Dictionary (33 ed. 2019), https://www.dorlandsonline.com (hereafter “Dorland's”).
4

Case 1:20-vv-00020-UNJ Document 35 Filed 01/06/22 Page 5 of 10
• On September 29, 2009, Dr. Conway summarized that Petitioner had undergone
an “anterior capsulolabral reconstruction” and “superior labral repair.” Ex. 8 at 15.
After one incident in which a “kid ran into his shoulder causing immediate pain and
popping initially,” he was “doing great.” Id. at 15-16.
• On December 10, 2009, Dr. Conway recorded that Petitioner’s left shoulder had
“no pain, some soreness.” Id. at 31.
• On December 23, 2009, upon Petitioner’s discharge from physical therapy, his left
shoulder pain level ranged from 0 – 2 out of 10. Ex. 9 at 51. He had achieved 90%
of his goals, but still had “slightly limited” range of motion and reduced strength (5-
/5) on forward flexion. Id. He would perform home exercises focused on additional
pain relief, range of motion, and muscle function. Id.
• The subsequent medical records do not address the left shoulder again until
January 29, 2015, when Petitioner was recorded to have bilateral full range of
motion and “good” strength on the right but only “satisfactory” strength on the left.
Ex. 8 at 53.5
• On May 23, 2017, Petitioner established care at a new primary care practice. There
were no complaints or abnormal findings at the left shoulder. He was “overall very
healthy” and reported working out regularly in addition to his employment as a
schoolteacher and track coach. Ex. 10 at 1-4; see also id. at 5-45 (subsequent
primary care and urgent care encounters).
• On July 24, 2018, Petitioner began seeing a chiropractor for the treatment of
“chronic, severe pain” in his right leg. Ex. 2 at 1. At each chiropractic appointment,
Petitioner hand-wrote his own assessment of his health status, affected areas of
the body, and corresponding pain rated from 0 – 10. The chiropractor then
completed a separate record of treatment. See, e.g., Ex. 2 at 6-7.6
• For approximately the first month, Petitioner and his chiropractor focused on his
right leg pain. Ex. 2 at 6-22. Then on August 27, 2018, Petitioner newly endorsed
pain in his left shoulder and upper to mid-back. Id. at 45. He rated this pain at 4-
5/10. Id. But it is not addressed in the chiropractor’s record. Id. at 46.
• In the records from the next encounter, on August 30, 2018, Petitioner and the
chiropractor address only his right leg. Ex. 2 at 43-44.
5 This appointment focused on assessing Petitioner’s recovery after surgery on his right shoulder in late
2015. I have reviewed the relevant records, but I find them insignificant towards resolving the onset of
Petitioner’s left shoulder pain in 2018.
6 Respondent correctly referred to the chiropractor’s records as SOAP notes. SOAP is a format for medical
records. “S indicates subjective data obtained from the patient and others close to him; O designates
objective data obtained by observation, physical examination, diagnostic studies, etc.; A refers to
assessment of the patient’s status through analysis of the problem, possible interaction of the problems,
and changes in the status of the problems; P designates the plan for patient care.” Dorland’s.
5

Case 1:20-vv-00020-UNJ Document 35 Filed 01/06/22 Page 6 of 10
• On September 4, 2018, Petitioner reported left shoulder pain of 6-7/10. Ex. 2 at
41. But again, the chiropractor did not address this complaint. Id. at 42.7
• On September 7, 2018, Petitioner and the chiropractor addressed only his right
leg. Ex. 2 at 39-40.
• On September 11, 2018, Petitioner received the flu vaccine in his left arm, in the
context of his employment. Ex. 1 at 2; Ex. 3 at 12.8
• Six days later, on September 14, 2018, Petitioner returned to his chiropractor,
reporting left shoulder pain of 6-7/10. Ex. 2 at 37. But again, the chiropractor did
not address this complaint. Id. at 38.
• At the next appointment on September 21, 2018, the chiropractor undertook a
“shoulder regional examination.” Ex. 2 at 24. Petitioner reported left shoulder pain
and weakness “due to weightlifting.” Id. On physical exam, the shoulder was
rounded on rotation of the scapula and humerus, and tender at multiple areas on
painful palpation. Id. Range of motion was abnormal and painful. Id. The
chiropractor checked off findings corresponding to impingement, biceps tendonitis,
and labral tear. Id.; see also id. at 35 (Petitioner’s form on that date, reporting a
“new complaint” of “left shoulder impingement” rated at 8 out of 10).
• On September 21, 2018, and on subsequent dates, the chiropractor treated
Petitioner for a left rotator cuff tear. Ex. 2 at 26, 28, 30, 32, 34, 36.
• On October 1, 2018, Petitioner’s wife contacted their primary care practice,
reporting his pain since receiving a flu vaccine “@ school 2 wks ago.” Ex. 3 at 12.9
• On October 2, 2018, Petitioner presented to the primary care practice. He reported
that after receiving the flu shot at school on September 11, 2018, he developed
left shoulder pain and a “small knot.” Id. at 8. Petitioner reported that he had seen
his chiropractor “3 times.” Id.10
• Later on October 2, 2018, at the Onecore Orthopedics practice, a physician
assistant (“PA”) recorded that Petitioner had left shoulder pain with a “gradual and
insidious onset,” “present for 2 weeks,” and currently rated at 8 out of 10. Ex. 4 at
11. The PA’s tentative impression was that Petitioner was suffering from a partial
7 Petitioner “requested billing records from Sports Medicine to verify that there was in fact an appointment
on September 4, 2018.” Brief at n. 1. The billing records indicate that there was. Ex. 14 at 2.
8 This case does not involve a workers’ compensation claim. Status Report filed May 18, 2020 (ECF No.
17).
9 The vaccine was in fact 20 days (just shy of 3 weeks) before this date.
10 While Petitioner only saw the chiropractor three times after the vaccination, he had multiple appointments
beforehand, including two appointments where he endorsed left shoulder pain.
6

Case 1:20-vv-00020-UNJ Document 35 Filed 01/06/22 Page 7 of 10
incomplete rotator cuff tear, for which he administered a steroid injection and
prescribed Mobic. Id.; see also Ex. 8 at 8-9 (follow up appointment).
• On December 4, 2018, Petitioner sought a second opinion at McBride Orthopedic
Hospital. A PA took down the history including “left shoulder labral repair and
possible rotator cuff repair by Dr. Conway in April 2010.” Ex. 5 at 146; see also id.
at 150.11 Petitioner reported that he had done well postoperatively, then
experienced new left shoulder pain beginning in mid-September 2018, at work. Id.
at 146, 149. Petitioner could not “recall any specific injury or trauma” and reported
a “gradual increase” in pain. Id. at 146. The PA obtained and reviewed imaging,
then recorded an impression of left shoulder pain with impingement, “AC DJD”
[acromioclavicular joint degenerative joint disease], rotator cuff tendonitis versus
tear, and possible labral tear. Id. at 147.
• On December 18, 2018, an orthopedist, Robert A. German, M.D., concurred that
the MRI of Petitioner’s left shoulder suggested “a large rotator cuff tear involving
the entire supraspinatus extending into the infraspinatus.” Ex. 5 at 148. Dr. German
added: “There are some changes around the labrum likely related to his previous
procedure, but the lion share of his problems are related to this rotator cuff injury.”
Id. Dr. German and Petitioner agreed to proceed with corrective surgery. Id.
• Upon undertaking the surgery on December 26, 2018, Dr. German recorded that
the indication included: “several-year history of increasing left shoulder pain.” Ex.
5 at 189. Dr. German first observed that at the site of the previous surgery, there
was “suture material and instability of the biceps anchor.” Id. He “removed the
suture material… used arthroscopic scissors to release the biceps tendon… [and]
debrided the torn labral tissue back to stable tissue.” Id. Dr. German then moved
to the rotator cuff, where he repaired a full-thickness tear “extending from the
rotator interval back into the infraspinatus with a split between the supa- and
infraspinatus.” Id.
• On February 14, 2019,12 upon beginning a post-operative course of physical
therapy (“PT”), Petitioner recounted that he had received “a flu shot in the middle
of the month and he had pain associated with that. Was wondering if the shot had
gotten in the bursa or something. Had gone to the chiropractor for his knee and
asked him [the chiropractor] to do something with his shoulder, and the
chiropractor referred him to another doctor.” Ex. 6 at 2.13 He underwent fifteen (15)
PT sessions and was discharged on April 1, 2019. See generally Ex. 6.
11 But see Ex. 8 at 12-15 (reflecting that the surgery did not address the rotator cuff, and actually took place
in August 2009).
12 Respondent says the initial PT appointment was on February 2, 2019. Rule 4(c) Report at 3. But the
medical record says February 14, 2019.
13 This chronology omits Petitioner’s reports to his chiropractor, of pain in and around his shoulder, prior to
the vaccination.
7

Case 1:20-vv-00020-UNJ Document 35 Filed 01/06/22 Page 8 of 10
• On April 23, 2019, Dr. German summarized that Petitioner had suffered a “massive
tear,” and the surgery had consisted of “a four anchor repair as well as a biceps
tenodesis.” Ex. 5 at 193. Petitioner had achieved a good recovery and was
following with a home exercise program. Id. at 193-96.
• In his affidavit (dated January 3, 2020), Petitioner recalls that he underwent
surgery on his left shoulder, followed by a course of physical therapy which ended
on December 23, 2009. Ex. 12 at ¶¶ 3-4. He avers: “On September 11, 2018, I
was completely recovered from my prior injury had no left shoulder pain.” Id. at ¶
5. He states: “Following vaccination on September 11, 2018, I felt left shoulder
soreness and weakness. By September 15, 2018, I felt sharp left shoulder pain.”
Ex. 12 at ¶ 6. However, he does not address the August 22, and September 4,
2018, records, in which he reported shoulder pain to his chiropractor.
V. Parties’ Arguments
Petitioner contends that his left shoulder had recovered completely after the 2009
surgery. He also does not deny his own contemporaneous reports of left shoulder pain
on two occasions before the vaccine, but emphasizes the fact that his chiropractor did not
record any left shoulder symptoms or treatment on those same dates. Id. 14
Respondent argues that weight should be afforded to Petitioner’s reports of pre-
vaccination shoulder pain despite his chiropractor’s failure to record or treat those
complaints. Response at 1-2. Respondent adds that Petitioner did not consistently report
that his pain began after the vaccination. Id. (citing Ex. 2 at 24; Ex. 4 at 11; Ex. 5 at 146,
189). Finally, Respondent suggests that Petitioner’s prior left shoulder injury caused or
contributed to the injury at issue. Id. 2-3.
VI. Findings of Fact and Dismissal of Table Claim
The above medical records contain preponderant evidence that Petitioner
developed left shoulder pain prompting a labral repair in August 2009. This surgery
delivered significant relief to Petitioner and he did not require ongoing treatment.
However, he was documented to have minor pain and soreness, slightly limited range of
motion, and diminished strength in December 2009. He was noted to have only
“satisfactory” left shoulder strength in January 2015. Limited complaints of this nature,
several years prior to a vaccination, are probative but do not necessarily preclude a
finding of onset of new acute shoulder pain consistent with a Table SIRVA.
14 Petitioner also requested billing records to verify that there was in fact an appointment on September 4,
2018. Brief at 3. at n. 1. Petitioner was indeed billed for the appointment. Ex. 14 at 2.
8

Case 1:20-vv-00020-UNJ Document 35 Filed 01/06/22 Page 9 of 10
The more significant issue is that Petitioner himself endorsed left shoulder pain,
on hand-written forms, twice in the month before his vaccination. He did not dispute the
existence of these records, arguing only that the chiropractor’s failure to address the pain
should minimize their significance. That argument is unavailing. Respondent is correct
that Petitioner’s own handwritten accounts of shoulder pain, created in an effort to seek
treatment, are entitled to greater weight than the fact of the treating provider’s omission.
If petitioners can successfully establish facts relevant to a vaccine injury claim by offering
after-the-fact contentions regarding issues that the records are silent on, then their own
pre-vaccination assertions also should carry evidentiary weight.
Moreover, Petitioner did not distinguish his pain before versus after the
vaccination. Indeed, the medical records support Petitioner’s later characterization of a
“gradual and insidious onset” of left shoulder pain, which he first rated as 4-5/10 on August
22nd; 6/10 on September 4th and 14th; and 8/10 on September 21st. Ex. 2 at 35, 37, 42,
45; Ex. 4 at 11.
I acknowledge that it is often easy for claimants to establish Table onset in SIRVA
cases, using their own sworn statements to supplement a thin and non-contradictory
record. It is not uncommon for a petitioner to have an unremarkable prior medical history.
and for the subsequent medical records to be somewhat lacking in detail with regard to
onset. 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 medical records reflecting his own endorsements of left
shoulder pain before the vaccination.
VII. Potential for Off-Table Claim
A petitioner’s failure to establish a Table injury does not necessarily constitute the
end of the case, because he or she might well be able to establish a non-Table claim for
either causation-in-fact or significant aggravation. See Althen v. Sec’y of Health & Human
Servs., 418 F.3d 1274 (Fed. Cir. 2005); W.C. v. Sec’y of Health & Human Servs., 704
F.3d 1352, 1357 (Fed. Cir. 2013) (citing Loving v. Sec’y of Health & Human Servs., 86
Fed. Cl. 135, 144 (2009)).
Here, Petitioner argues that the flu vaccine caused a “subjectively and objectively
distinct” injury, pointing to the new “large rotator cuff tear involving the entire
supraspinatus into the infraspinatus [tendons].” Brief at 2-3. Petitioner may be proposing
that the flu vaccine caused direct trauma to the rotator cuff. I also recognize that in past
cases, certain petitioners have established, via expert testimony, that the flu vaccine can
9

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cause new inflammation and pain in the setting of a preexisting, albeit asymptomatic,
rotator cuff tear. See, e.g., Lesher v. Sec’y of Health & Human Servs., No. 17-1076v,
2020 WL 4522381, at *12-13 (Fed. Cl. Spec. Mstr. July 2, 2020); Sandoval v. Sec’y of
Health & Human Servs., No. 16-304V, 2019 WL 3820075, at *14-16 (Fed. Cl. Spec. Mstr.
July 12, 2019).
Respondent counters that during the December 2018 surgery, Dr. German noted
that the biceps anchor placed as part of Petitioner’s previous anterior labral repair was
unstable and needed further correction. Response at 2. However, Dr. German did not
clearly endorse that Petitioner’s earlier left shoulder injury caused the new, “massive”
rotator cuff tear. He also opined that the rotator cuff tear caused “the lion’s share” of
Petitioner’s problems. Ex. 5 at 148. This issue remains unresolved.
Both parties have presented colorable arguments for Petitioner’s worsening
shoulder pain in 2018. However, formal resolution of this issue will likely require further
review and most likely the retention of experts, which I am not inclined to authorize in the
SPU. Moreover, this case has already been pending in the SPU for over nineteen (19)
months. To that end, I urge the parties to briefly attempt a litigative risk settlement – as I
anticipate that if the case is transferred out of SPU, Petitioner may be able to further
develop an off-Table claim (although it may take a significant amount of additional time
to do so).
Conclusion
Petitioner has not established the onset of new shoulder pain within 48 hours after
the September 11, 2018, flu vaccine. Accordingly, his Table SIRVA claim is dismissed.
It is hereby ORDERED that Petitioner shall file a status report confirming that he
has conveyed a demand for his off-Table claim15 by Thursday, December 16, 2021.
Respondent shall file a status report reporting on the likelihood of a prompt litigative risk
settlement in the SPU by Tuesday, January 17, 2022.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
15 Petitioner conveyed an initial demand on July 15, 2020. ECF No. 20.
10

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DOCUMENT 2: USCOURTS-cofc-1_20-vv-00020-1
Date issued/filed: 2023-01-03
Pages: 3
Docket text: PUBLIC DECISION (Originally filed: 11/10/2022) regarding 46 DECISION Dismissing Petition. Signed by Special Master Katherine E. Oler. (sl) Service on parties made.
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Case 1:20-vv-00020-UNJ Document 50 Filed 01/03/23 Page 1 of 3
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-20V
(Unpublished)
* * * * * * * * * * * * * * * * * * * * * * * * * *
*
*
KEVIN HARRIS,
* Special Master Katherine E. Oler
*
Petitioner, *
*
v. Filed: November 10, 2022
*
*
SECRETARY OF HEALTH AND *
HUMAN SERVICES, * Petitioner’s Motion for a Decision;
*
Dismissal of Petition; Vaccine Act.
*
Respondent.
*
*
* * * * * * * * * * * * * * * * * * * * * * * * * *
Amy Senerth, Muller Brazil, LLP, Dresher, PA, for Petitioner
Madelyn Weeks, U.S. Department of Justice, Washington, DC, for Respondent
DECISION DISMISSING PETITION1
I. Procedural History
On January 8, 2020, Kevin Harris (“Petitioner”) filed a petition for compensation under the
National Vaccine Injury Compensation Program,2 alleging a left shoulder injury related to vaccine
administration (“SIRVA”) Table injury from the flu vaccination he received on September 11,
2018. Pet. at 1, ECF No. 1. Petitioner filed a statement of completion on January 9, 2020. ECF No.
6.
1 Although this Decision has been formally designated “not to be published,” it will nevertheless be posted
on the Court of Federal Claims’ website in accordance with the E-Government Act of 2002, 44 U.S.C. §
3501 (2012). This means the Decision 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 Decision’s inclusion of
certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen
days within which to request redaction “of any information furnished by that party: (1) that is a trade secret
or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files
or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.”
Vaccine Rule 18(b). Otherwise, the Decision in its present form will be available. Id.
2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L.
No. 99-660, 100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine
Act” or “the Act”). Individual section references hereafter will be to § 300aa of the Act (but will omit that
statutory prefix).

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On May 27, 2021, Respondent filed a Rule 4(c) Report stating that entitlement should be
denied. Resp’t’s Rep. at 1, ECF No. 26. More specifically, Respondent stated that
Petitioner had a significant pre-vaccination orthopedic history related to his left
shoulder, which is the same shoulder at issue in this claim…. SIRVA is a
presumptive injury for injectable vaccines, including flu vaccine, if the first
symptom or manifestation of onset of the injury occurs within forty-eight hours of
an intramuscular vaccine administration. See 42 C.F.R. § 100.3(a)(VIII)(B).
Moreover, as the Qualifications and Aids to Interpretation specify:
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;
(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). To be eligible for compensation, the Act also requires
petitioner to have “suffered the residual effects or complications of such illness,
disability, injury, or condition for more than 6 months after the administration of
the vaccine.” 42 U.S.C. § 300aa-11(c)(1)(D)(i). Here, the evidence establishes that
petitioner’s shoulder pain began prior to vaccination and was attributed to weight
training, and he is therefore not entitled to compensation.
Id. at 2, 4-5.
On December 2, 2021, Chief Special Master Corcoran issued Findings of Fact and
Conclusions of Law stating that “a preponderance of the evidence supports the conclusion that
Petitioner was experiencing pain in his [left] shoulder approximately one month before receiving
the flu vaccine – meaning he cannot establish Table onset for his Table SIRVA claim, and therefore
the Table claim must be dismissed.” ECF No. 33 at 2. This case was transferred to me to afford
Petitioner the opportunity to pursue a non-Table claim. ECF No. 37. Petitioner was given time to
file an expert report or indicate how he would like to proceed. ECF Nos. 40-43.
Petitioner filed the instant motion to dismiss his Petition on November 10, 2022, stating
based on CSM Corcoran’s Decision dismissing his Table claim, Petitioner was
unable to retain an expert to support his off-table claim. In these circumstances, to
proceed further would be unreasonable, and would waste the resources of this
Court, Respondent, and the Vaccine Program. Petitioner understands that a decision
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dismissing his Petition will result in a judgment against him. Petitioner has been
advised that such a judgment will end all of his rights in the Vaccine Program.
ECF No. 45 at 2.
II. Conclusion
To receive compensation in the Vaccine Program, a petitioner must prove either (1) that he
suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table – corresponding
to his vaccination, or (2) that he suffered an injury that was actually caused by a vaccine. See §§
13(a)(1)(A) and 11(c)(1). Moreover, 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 medical expert. § 13(a)(1). In this case, however,
there is insufficient evidence in the record for Petitioner to meet his burden of proof. Petitioner’s
claim therefore cannot succeed and, in accordance with his motion, must be dismissed. §
11(c)(1)(A).
As such, IT IS ORDERED THAT,
Petitioner’s motion for a decision dismissing his petition is GRANTED and the petition is
hereby DISMISSED. The Clerk shall enter judgment accordingly.
Any questions regarding this Order may be directed to my law clerk, Sydney Lee, by
telephone at 202-357-6347, or by email at Sydney_Lee@cfc.uscourts.gov.
IT IS SO ORDERED.
s/ Katherine E. Oler
Katherine E. Oler
Special Master
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