N.B. v. HHS - Tdap, left shoulder injury related to vaccine administration (SIRVA) (2023)

N.B. filed a petition on February 13, 2020, seeking compensation under the National Vaccine Injury Compensation Program. The petitioner alleged a left shoulder injury related to vaccine administration (SIRVA), a condition listed on the Vaccine Injury Table, after receiving a tetanus-diphtheria-acellular pertussis (Tdap) vaccine on August 9, 2018.

The respondent was the Secretary of Health and Human Services. The petitioner was represented by Kathleen Margaret Loucks of Lommen Abdo Law Firm, and the respondent was represented by Mark Kim Hellie of the U.S.

Department of Justice. Chief Special Master Brian H.

Corcoran issued the decision on July 17, 2023. Initially, the petitioner filed an affidavit and medical records.

During a status conference, the parties discussed evidence that appeared contrary to the petitioner's claim of pain onset within 48 hours of vaccination, and the respondent noted a prior fall the petitioner experienced in February 2018. The petitioner later filed additional evidence, including a letter from an orthopedist seen approximately one year post-vaccination, corrections to medical records, and declarations from herself, her husband, three children, and a paralegal.

The respondent filed a report arguing that the petitioner had not provided sufficient evidence of symptom onset within 48 hours of vaccination and that medical records showed the petitioner did not attribute her shoulder pain to the Tdap vaccine until July 2019, eleven months post-vaccination. The respondent also noted that the petitioner related her shoulder pain to the vaccination only after reading an article on SIRVA provided by her attorney.

In response, the petitioner filed supplemental declarations alleging pain on the night of vaccination and a note from her primary care provider clarifying the vaccination date. The Special Master had previously determined that the record did not support a finding of onset within 48 hours of vaccination, thus dismissing the Table SIRVA claim.

However, the petitioner was given an opportunity to provide additional evidence for an off-Table claim. The petitioner stated she had no further evidence to present for her off-Table claim and relied on the existing briefing and evidence.

The Special Master noted that the petitioner's own admission and contemporaneous medical records indicated she did not attribute her left shoulder pain to the Tdap vaccine until almost a year after vaccination, and she did not mention the vaccine as a potential cause until July 10, 2019. Medical records from earlier appointments showed no known cause for her pain, and treating physicians diagnosed conditions such as bursitis and osteoporosis, ordering therapies and an MRI, without mentioning the Tdap vaccination as a cause.

The only evidence supporting a causation-in-fact claim was the opinion of the second orthopedist seen in August 2019. However, this opinion relied on the petitioner's assertion of pain since the time of vaccination, which contradicted the Special Master's prior finding regarding onset.

The Special Master found that this orthopedist's opinion lacked probative value because it was based on incorrect facts and an assumption previously rejected, and it was not established that the orthopedist reviewed all relevant evidence, including the petitioner's complete medical records. The Special Master concluded that the petitioner failed to provide preponderant evidence that the Tdap vaccine caused her left shoulder injury, either as a Table SIRVA claim due to lack of timely onset or as an off-Table claim due to a lack of established causation-in-fact.

Consequently, the petition was dismissed for failure to prosecute and insufficient evidence.