VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-00482
Package ID: USCOURTS-cofc-1_20-vv-00482
Petitioner: Chris McMullen
Filed: 2020-04-21
Decided: 2023-08-03
Vaccine: Tdap
Vaccination date: 2018-11-07
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: denied
Award amount USD: 

AI-assisted case summary:
Chris McMullen filed a petition alleging that a Tdap vaccine administered on November 7, 2018, caused a shoulder injury related to vaccine administration (SIRVA). The initial special master found that Mr. McMullen's shoulder pain began in late November 2018, which was outside the 48-hour window required for an on-Table SIRVA claim. This finding meant he did not qualify for automatic compensation under the Vaccine Injury Table. The case was reassigned, and Mr. McMullen sought compensation by arguing for an off-Table, causation-in-fact claim. He submitted medical articles and argued that his injury met the Althen prongs for causation. However, his argument for the temporal proximity prong relied on an assertion of immediate onset, which contradicted the prior finding of onset in late November. The court found that Mr. McMullen failed to establish the necessary temporal relationship for an off-Table claim, as his alleged onset was too distant from the vaccination date. Consequently, the court denied his petition for compensation, and no award was granted. The decision was issued on August 3, 2023, following the petition filed on April 21, 2020.

Theory of causation field:
Off-Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_20-vv-00482-0
Date issued/filed: 2023-05-12
Pages: 9
Docket text: PUBLIC ORDER/RULING (Originally filed: 07/08/2022) regarding 32 Findings of Fact & Conclusions of Law, ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made.
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Case 1:20-vv-00482-UNJ Document 46 Filed 05/12/23 Page 1 of 9
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-0482V
UNPUBLISHED
CHRIS MCMULLEN, Chief Special Master Corcoran
Petitioner,
v. Filed: July 8, 2022
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Table Injury Dismissal; Tetanus,
Diphtheria, acellular Pertussis (Tdap)
Respondent. Vaccine; Shoulder Injury Related to
Vaccine Administration (SIRVA);
Onset of Shoulder Pain
Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Mallori Browne Openchowski, U.S. Department of Justice, Washington, DC, for
Respondent.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
DISMISSING TABLE CLAIM1
On April 21, 2020, Chris McMullen 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 alleged that he suffered a left shoulder injury related to vaccine
administration (“SIRVA”), a defined Table Injury, after receiving a tetanus-diphtheria-
acellular pertussis (“Tdap”) vaccine on November 7, 2018. Petition at 1, ¶ 3. He further
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 1:20-vv-00482-UNJ Document 46 Filed 05/12/23 Page 2 of 9
alleged that his “symptoms began within forty-eight (48) hours of vaccination and lasted
for more than six (6) months.” Id. at 1; accord. Id. at ¶ 14.
For the reasons discussed below, a preponderance of the evidence supports the
conclusion that the onset of Petitioner’s left shoulder pain occurred later than 48 hours
post-vaccination – meaning he cannot establish the onset required for his Table SIRVA
claim, and therefore the Table claim must be dismissed (although a causation-in-fact
version of the claim could succeed).
I. Relevant Procedural History
Along with the Petition, Mr. McMullen filed a vaccine record showing he received
a Tdap vaccine intramuscularly on November 7, 2018, and an affidavit addressing the
basic requirements for compensation under the Act. Exhibits 1-2, ECF Nos. 1-4 through
1-5. Approximately two weeks later, he filed the medical records required under the
Vaccine Act. Notice of Filing for Exhibit 3, filed by CD on May 4, 2020, ECF No. 5; see
Section 11(c). These medical records contained a more comprehensive vaccine record,
indicating the Tdap vaccine was administered in Petitioner’s left deltoid as alleged. Exhibit
3 at 2. After the certification for these records was filed on July 30, 2020 (Exhibit 4, ECF
No. 11), the case was activated and assigned to SPU. ECF No. 13.
On December 9, 2020, Petitioner forwarded a demand and supporting
documentation to Respondent as instructed. Status Report, filed Feb. 19, 2021, ECF No.
19. On August 19, 2021, Respondent agreed to engage in settlement discussions. ECF
No. 21. However, after three months, the parties informed me they had reached an
impasse. ECF No. 26.
Approximately one month later, on December 21, 2021, Respondent filed his Rule
4(c) Report, opposing compensation in this case. ECF No. 27. Specifically, Respondent
argued that “[P]etitioner has not demonstrated that his pain began within 48 hours of
vaccination” as required for a Table SIRVA injury. Id. at 5. In reaction, on January 18,
2022, I issued an order to show cause, allowing Petitioner a final chance to obtain and to
file the evidence needed to support his allegations regarding the onset of his alleged
SIRVA injury. ECF No. 28. I also “instruct[ed] the parties to make one last attempt to
engage in settlement discussions.” Id. at 7.
On February 22, 2022, the parties filed a joint status report indicating they “[we]re
unlikely to reach a settlement agreement, . . . [and] Petitioner intends to submit additional
evidence and a response to the Order to Show Cause.” ECF No. 29. Petitioner provided
2

Case 1:20-vv-00482-UNJ Document 46 Filed 05/12/23 Page 3 of 9
his response on April 20, 2022. Petitioner’s Brief in Response to Order to Show Cause
(“Pet. Response”), ECF No. 31.
II. Issue
At issue is whether Petitioner’s first symptom or manifestation of onset after
vaccine administration (specifically pain) occurred within 48 hours as set forth in the
Vaccine Injury Table and Qualifications and Aids to Interpretation (“QAI”) for a Table
SIRVA. 42 C.F.R. § 100.3(a) I.C & II.C. (2017) (Tdap vaccination); 42 C.F.R. §
100.3(c)(10)(ii) (required onset for pain listed in the QAI).
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
3

Case 1:20-vv-00482-UNJ Document 46 Filed 05/12/23 Page 4 of 9
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.
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. Relevant Factual Evidence
A review of the medical records and other evidence filed in this case shows
Petitioner suffered a right shoulder SLAP3 tear in 2010 which continued to cause him pain
as late as 2016 (Exhibit 3 at 29-45) and complaints of neck and upper back pain less than
six months prior to vaccination in May and August 2018 (id. at 100-11, 126-40).4 There is
3 SLAP stands for Superior Labrum Anterior Posterior. MEDICAL ABBREVIATIONS at 552 (16th ed. 2020).
4 Prior to vaccination, Petitioner also suffered from depression (Exhibit 3 at 3-45, 112-25), neck pain in 2015
(Id. 418-45), and right hand and wrist pain in late 2016 and early 2017 (id. at 46-99).
4

Case 1:20-vv-00482-UNJ Document 46 Filed 05/12/23 Page 5 of 9
no evidence that he suffered any prior left shoulder pain, however. As noted, he received
the Tdap vaccine on November 7, 2018.
Petitioner first sought treatment for left shoulder pain from his primary care provider
(“PCP”) more than two months post-vaccination on January 14, 2019. Exhibit 3 at 141-
44. At that initial visit, he complained of “moderately severe left shoulder pain,” “present
for 1.5 months ‘s/p[5] flu[6] shot.’” Id. at 141. He reported that the pain was “aggravated by
abduction and rotation.” Id. Upon examination, the PCP observed no swelling, redness,
or tenderness but “[l]imited abduction and internal rotation.” Id. at 142. He prescribed
Tylenol with codeine and provided referrals for physical therapy (“PT”) and to a pain
management clinic. Id. at 143.
The same description of Petitioner’s left shoulder pain is found in the medical
record from his January 26th visit to the pain management clinic. Exhibit 3 at 158. Under
consultation, “progressive L shoulder pain and weakness s/p flu shot” is listed. Id.
Referencing Petitioner’s earlier right shoulder SLAP tear diagnosis, the treating physician
noted that Petitioner now ha[d] symptoms on the left side and is worried about having a
rotator cuff tear of slap lesion.” Id. at 161. The treating physician ordered an MRI, agreed
Petitioner should begin PT, and administered a cortisone injection. Id. at 160-62. The
MRI, performed on February 9th, showed mild tendinopathy without tearing, slight
arthrosis, and mild degeneration of the biceps anchor, but “no significant bursal fluid
and/or inflammation.” Id. at 164.
At his first PT session on February 1, 2019, Petitioner reported “developing L shld
pain since TDAP shot in November.” Exhibit 3 at 177. After three sessions, Petitioner was
discharged from PT on March 1st, for a failure to return for treatment. Id. at 212. It was
noted that Petitioner’s PCP had authorized PT through April 1, 2019. Id.
Following two of the three PT sessions he attended and two days prior to his
discharge from PT, Petitioner visited an orthopedist, complaining of “left shoulder pain
since November.” Exhibit 3 at 199. At this February 28th visit, he described “[m]inimal pain
at rest” in his lateral shoulder which radiated down his arm and was worse with abduction.
Id. After reviewing Petitioner’s February 9th MRI, the orthopedist diagnosed him with a
“ligament injury possibl[y] a bucket handle tear.” Id. at 198. Mentioning his “prior history
5 S/P stands for status post. MEDICAL ABBREVIATIONS at 552.
6 In his affidavit, Petitioner insists that he was misquoted, maintaining that he indicated the Tdap, rather
than the flu, vaccine. Exhibit 6 at ¶ 4. The medical records show that Petitioner also received an influenza
(“flu”) vaccine on September 4, 2018, two months prior to receiving the Tdap vaccine alleged as causal.
Exhibit 3 at 1. It also was administered in his left deltoid. Id.
5

Case 1:20-vv-00482-UNJ Document 46 Filed 05/12/23 Page 6 of 9
of right shoulder having a slap lesion,” he recommended Petitioner undergo an
arthrogram. Id.
Approximately one month later, on April 3, 2019, Petitioner was seen at the urgent
care clinic, complaining of back pain for two days after recent heavy lifting. Exhibit 3 at
220. It was noted that he had a “[p]rior history of back problems: recurrent self-limited
episodes of low back pain in the past.” Id. He was diagnosed with lumbar muscle strain
and instructed to apply heat and to take muscle relaxers. Id. at 221. He was seen by his
PCP for his lower back pain two times in May 2019. Id. at 230, 245.
Petitioner returned to the orthopedist on May 30, 2019. Exhibit 3 at 257. At that
visit, he again described moderate left shoulder pain since November 2018. However,
next to “[m]echanism of injury,” it is noted that Petitioner had “no hx of trauma.” Id.
Petitioner reported that the January cortisone injection “helped [for] about 2.5 months and
his shoulder is now about the same as it was before the injection.” Id. After reviewing the
earlier MRI, performed on February 9, 2019, the orthopedist amended his earlier opinion,
now stating that he believed a “[d]isplaced bucket-handle tear is thought to be less likely,”
but reiterated his belief that an MRI arthrogram would be helpful. Id. at 260. The
orthopedist administered a second cortisone injection and recommended that Petitioner
continue his home exercise program. Id.
A few weeks later, Petitioner was seen at the pain management clinic for his lower
back pain. Exhibit 3 at 270. It appears that he received multiple trigger point injections.
Id. at 274. At his next orthopedic visit on August 30, 2019, Petitioner reported that he
obtained two months of relief from the second cortisone injection. Exhibit 3 at 285-86.
Although interested in surgery, he indicated that it currently was not a good time due to
his work. Id. at 286. Petitioner eventually underwent surgery in late November 2019.
Exhibit at 328-37. He attended follow-up orthopedic appointments and PT during
December 2019 through mid-January 2020. Id. at 339-415.
In addition to the information contained in his medical records, Petitioner has
provided a second affidavit and a one-page screen shot of written communications with
his finance during the morning of January 3, 2019, approximately two months post-
vaccination. Exhibits 5-6. In the affidavit, executed on September 28, 2021, Petitioner
described receiving the Tdap vaccine on November 7, 2018, indicating it was
administered “high up on [his] left deltoid” while seated and reporting that he “immediately
felt pain in [his] upper deltoid.” Exhibit 6 at ¶ 1. In the January 9th message to his finance,
Petitioner wrote the following:
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Case 1:20-vv-00482-UNJ Document 46 Filed 05/12/23 Page 7 of 9
Yeah, just tired. I’ve been looking up my shoulder pain and
I’m pretty sure it was caused by my last immunization. I got a
Tdap shot in November and it has hurt ever since. I’m finding
several things online about vaccine related shoulder injuries.
Going to see my doctor in a few weeks.
Exhibit 5 at 1. In this one-page screen shot, containing only a portion of the entire
conversation, the word Tdap is highlighted. Id.
V. Parties’ Arguments
When asserting that Petitioner has failed to establish the onset required for a Table
SIRVA injury, Respondent emphasizes the following:
1. the two-month delay between vaccination and the date he first complained of
left shoulder pain;
2. the January 2019 entries describing his left shoulder pain as present for one
and a half months and occurring after the flu, rather than Tdap, vaccine; and
3. the lack of specific language in the medical records identifying exactly when
onset occurred.
Rule 4(c) Report at 5. He stresses that “Petitioner did not advise a medical provider that
his pain began after a Tdap vaccination until he presented to PT on February 1, 2019.”
Id. (emphasis added). Regarding the screenshot of the Facebook Message
communication between Petitioner and his finance, Respondent observes that it was
produced with a date stamp, but no accompanying metadata to confirm its date of
creation. Id. at 5 n.7.
Countering Respondent’s arguments, Petitioner insists that “[t]he record, as a
whole, supports immediate onset.” Pet. Response at 9. He contends that “the only record
that suggests a non-immediate onset of symptoms” is the entry regarding onset contained
in the medical record from the January 14, 2019 visit to his PCP. Id. at 10. Mentioning
several entries describing left shoulder pain since vaccination (id. at 10-11), Petitioner
maintains the record from January 14th “is ambiguous at best, and wholly inconsistent
with the other descriptions of onset in the record.” Id. at 11.
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Case 1:20-vv-00482-UNJ Document 46 Filed 05/12/23 Page 8 of 9
VI. Findings of Fact and Dismissal of Table Claim
As I stated in my previous order, a two-month delay in treatment is, by itself,
unremarkable. In vaccine injury cases, it is common for individuals who have experienced
a vaccine-caused SIRVA to delay treatment, thinking his/her injury will resolve on its own.
However, when treatment is sought, these individuals usually provide detailed
descriptions of the onset of their pain, and display a conviction that their pain was linked
to the vaccination they received.
In this case, Petitioner showed some hesitancy regarding the cause of his pain –
indicating in early January, for example, that he was “pretty sure” it was caused by the
Tdap vaccine after performing research on the internet. Exhibit 5 at 1. It is illogical to
believe he would have not reached that conclusion earlier if he had experienced the
immediate pain he described in his later affidavit. Exhibit 6 at ¶ 1. More significantly, when
he first sought treatment on January 14, 2019 – approximately ten days later and two
months post-vaccination - Petitioner reported that the pain had been present for only 1.5
months, placing onset at the end of November 2018. Exhibit 3 at 141, 158.
Petitioner argues that this initial report is an outlier, inconsistent with the remainder
of the evidence, but that characterization is incorrect. Although the medical records
contain some entries referring to pain since or post status vaccination – including the
record in question - none provide a more detailed or earlier depiction of pain onset. And
there are multiple entries showing that the onset of Petitioner’s pain was gradual. Thus,
it was described as “progressing” in late January 2019, and then “developing” at his first
PT session on January 1, 2019. Id. at 158, 177. Petitioner’s January 14th report of pain
which began in late November 2018 aligns with these later medical records.
The record in this case supports a finding that the onset of Petitioner’s pain
developed gradually, beginning in late November 2018. It does not support Petitioner’s
assertion of an immediate pain onset close-in-time to his receipt of the Tdap vaccine.
Petitioner has thus failed to provide evidence to establish onset within 48 hours of
vaccination as required for a Table SIRVA injury.
VII. Potential for Off-Table Claim
A petitioner’s failure to establish a Table injury does not necessarily constitute the
end of a case under all circumstances, 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
8

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& 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, it is conceivable that Petitioner may be able to prove that the Tdap vaccine
caused his left shoulder pain injury, despite the delayed and gradual onset described in
the medical records. However, he must establish a causal link and appropriate time frame
between the Tdap vaccine he received and his left shoulder pain. 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 almost two years – meaning it is inadvisable to allow it to stay in SPU any
longer. Thus, the claim may go forward as a causation-in-fact claim – but it may no longer
remain in SPU.
VIII. Conclusion
Petitioner has not established the onset of his left shoulder pain occurred within 48
hours of his receipt of the Tdap vaccine on November 7, 2018. Accordingly, his Table
SIRVA claim is dismissed. Pursuant to Vaccine Rule 3(d), I will issue a separate order
reassigning this case randomly to a Special Master.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
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DOCUMENT 2: USCOURTS-cofc-1_20-vv-00482-1
Date issued/filed: 2023-08-03
Pages: 6
Docket text: PUBLIC DECISION (Originally filed: 07/11/2023) regarding 47 DECISION of Special Master Signed by Special Master Christian J. Moran. (ceo) Service on parties made.
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Case 1:20-vv-00482-UNJ Document 48 Filed 08/03/23 Page 1 of 6
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
* * * * * * * * * * * * * * * * * * * * * * * * *
CHRIS MCMULLEN, *
* No. 20-482v
Petitioner, * Special Master Christian J. Moran
*
v. *
* Filed: July 11, 2023
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * * * * * * * * * * *
Maximilian Mueller, Muller Brazil, Dresher, PA, for petitioner;
Mallori B. Openchowski, United States Dep’t of Justice, Washington, DC, for respondent.
DECISION DENYING COMPENSATION1
Chris McMullen alleges that a tetanus-diphtheria-acellular pertussis (“Tdap”) vaccine
injured his left shoulder. Pet., filed Apr. 21, 2020. The chief special master found that Mr.
McMullen had not persuasively established he suffered a shoulder injury related to vaccine
administration (“SIRVA”) and then reassigned the case. After reassignment, Mr. McMullen
submitted medical articles and sought a ruling that he was entitled to compensation. Mr.
McMullen remains not entitled to compensation as the evidence shows that his shoulder injury
started too long after the vaccination.
1 Because this Decision contains a reasoned explanation for the action taken in this case,
it must be made publicly accessible and will be posted on the United States Court of Federal
Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in
accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal
Management and Promotion of Electronic Government Services). This means the Decision will
be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), the
parties have 14 days to identify and move to redact medical or other information, the disclosure
of which would constitute an unwarranted invasion of privacy. Any changes will appear in the
document posted in the website.

Case 1:20-vv-00482-UNJ Document 48 Filed 08/03/23 Page 2 of 6
I. Procedural History
Mr. McMullen filed his petition on April 21, 2020, and medical records by July 30, 2020,
and the case was assigned to the chief special master. After reviewing this material, the
Secretary recommended that compensation be denied because Mr. McMullen had not established
that his shoulder pain began within 48 hours of the vaccination as required by the implementing
regulations. Resp’t’s Rep., filed Dec. 21, 2021, at 5.
The parties submitted the question of onset to the chief special master. The chief special
master found that Mr. McMullen’s shoulder pain started in late November 2018. Findings of
Fact and Conclusions of Law Dismissing Table Claim, 2023 WL 3409215 (posted May 12,
2023) (originally filed July 8, 2022). Because Mr. McMullen received the Tdap vaccine on
November 7, 2018, he did not qualify for SIRVA. See 42 C.F.R. § 100.3(c)(10) (requiring that
shoulder pain start within 48 hours). Thus, the chief special master dismissed Mr. McMullen’s
claim that he suffered an on-Table injury. Findings of Fact at *5-6. However, the chief special
master noted that Mr. McMullen might succeed on a causation-in-fact claim with the assistance
of an expert. The case was then transferred to the undersigned.
To guide the parties’ experts, the undersigned issued a set of instructions. Order, issued
July 18, 2022. In an August 11, 2022 status conference, Mr. McMullen expressed dissatisfaction
with the Findings of Fact. Mr. McMullen expressed an intention to file a motion for a ruling on
the record. Order, issued Aug. 11, 2022.
Mr. McMullen submitted two types of material on October 13, 2022. One set of material
was a collection of medical articles addressing how a vaccination can cause a shoulder injury.
Exhibits 7-16. The other submission was a motion for a ruling on the record. Mr. McMullen
argued that he fulfilled the first prong of Althen v. Sec’y of Health & Hum. Servs., 418 F.3d
1274 (Fed. Cir. 2005) because the Vaccine Table associates Tdap vaccines with a shoulder injury
and because he submitted articles. Pet’r’s Mot. at 9. Mr. McMullen next argued that he met the
second prong of Althen due to the “absence of any shoulder injury prior to the vaccination, onset
of post-vaccination symptoms and Petitioner’s physical examinations and diagnoses.” Id. at 10.
Finally, for the third Althen prong, Mr. McMullen maintained that his shoulder pain started
immediately following the Tdap vaccine. Id. at 12. In doing so, Mr. McMullen indicated that he
“is contemplating filing a Motion for Review” of the chief special master’s fact ruling. Id. at 12
n.2.
The Secretary opposed Mr. McMullen’s motion. Resp’t’s Resp., filed Nov. 14, 2022.
The Secretary argued that Mr. McMullen cannot qualify for an on-Table SIRVA due to the
finding of the chief special master. Id. at 6-7. The Secretary also contended that Mr. McMullen
did not establish that he satisfied the elements of a causation-in-fact claim. Id. at 7-10.
Mr. McMullen declined to file a reply. Pet’r’s Status Rep., filed Jan. 3, 2023. The case
is ready for adjudication.
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Case 1:20-vv-00482-UNJ Document 48 Filed 08/03/23 Page 3 of 6
II. Relevant Facts
The chief special master’s Findings of Fact summarize the evidence, including Mr.
McMullen’s medical records and other evidence reflecting the onset of his shoulder pain. For
purposes of the present decision two facts are dispositive. First, Mr. McMullen received the
Tdap vaccine on November 7, 2018. Second, Mr. McMullen began experiencing shoulder pain
“in late November 2018.” Findings of Fact at *6.
III. Standards for Adjudication
The Vaccine Act authorizes two means of recovery. The simpler way is for petitioners to
demonstrate that they received a vaccine and suffered an injury within the time listed on the
Vaccine Injury Table. 42 U.S.C. § 300aa–11(c)(1)(C)(i). Alternatively, petitioners may
establish that a covered vaccine was the cause-in-fact of an injury. 42 U.S.C. § 300aa–
11(c)(1)(C)(ii). For causation-in-fact claims (also known as off-Table cases), the Federal Circuit
has defined petitioners’ burden. Petitioners bear a burden “to show by preponderant evidence
that the vaccination brought about [the vaccinee’s] injury by providing: (1) a medical theory
causally connecting the vaccination and the injury; (2) a logical sequence of cause and effect
showing that the vaccination was the reason for the injury; and (3) a showing of a proximate
temporal relationship between vaccination and injury.” Althen, 418 F.3d at 1278.
A petitioner is required to establish his case by a preponderance of the evidence. 42
U.S.C. § 300aa–13(1)(a). The preponderance of the evidence standard requires a “trier of fact to
believe that the existence of a fact is more probable than its nonexistence before [he] may find in
favor of the party who has the burden to persuade the judge of the fact's existence.” Moberly v.
Sec'y of Health & Human Servs., 592 F.3d 1315, 1322 n.2 (Fed. Cir. 2010) (citations omitted).
Proof of medical certainty is not required. Bunting v. Sec'y of Health & Human Servs., 931 F.2d
867, 873 (Fed. Cir. 1991).
Petitioners may not receive compensation “based upon the claims of a petitioner alone,
unsubstantiated by medical records or by medical opinions.” 42 U.S.C. § 300aa–13(a)(1).
IV. Analysis
The pending motion raises at least two issues. First, what is the permanence of the chief
special master’s finding that Mr. McMullen’s shoulder pain started in late November? Second,
how does that finding affect the remainder of the case?
A. What is the Value of An Earlier Finding by a Special Master?
On the topic of whether the chief special master’s finding of onset is binding on the
undersigned, the parties’ briefs could have been better. Mr. McMullen directly argues that the
“finding that onset likely began gradually in late November of 2018 is not supported by the
evidence.” Pet’r’s Mot. at 12. However, Mr. McMullen does not cite any cases regarding the
effect of the earlier finding. See id. On the other hand, the Secretary maintains that “under the
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law of the case doctrine, the Chief Special Master’s findings control.” Resp’t’s Resp. at 7, citing
Gould, Inc. v. United States, 67 F.3d 925, 927-28 (Fed. Cir. 1995) and Suel v. Sec’y of Health &
Hum. Servs., 192 F.3d 981 (Fed. Cir. 1999).
The Secretary appears to overlook the role appellate courts play in the law of the case
doctrine.
The law of the case is a judicially created doctrine, the purposes of
which are to prevent the relitigation of issues that have been
decided and to ensure that trial courts follow the decisions of
appellate courts. The doctrine requires a court to follow the
decision on a question made previously during the case.... When a
judgment of a trial court has been appealed, the decision of the
appellate court determines the law of the case, and the trial court
cannot depart from it on remand.
Exxon Corp. v. United States, 931 F.2d 874, 877 (Fed. Cir. 1991), quoting Jamesbury Corp. v.
Litton Indus. Prod., Inc., 839 F.2d 1544, 1550 (Fed. Cir. 1988). Consequently, the law of the
case doctrine “has long been held not to require the trial court to adhere to its own previous
rulings if they have not been adopted, explicitly or implicitly, by the appellate court's judgment.”
Exxon Corp., 931 F.3d at 877.
Exxon Corp. presents an example in which one judicial officer could reconsider a finding
made by another judicial officer. Initially, Judge Alex Kozinski found that a company (Essosa)
became insolvent on a particular date, although the date of insolvency was not necessary to
resolve the case. 931 F.3d at 876. The case was appealed, and the Federal Circuit reversed the
outcome without addressing the date of insolvency. Id. Eventually, the successor to Judge
Kozinski, Judge Loren Smith, found a different date of insolvency. Id.
On this appeal, the Federal Circuit ruled that because its earlier rulings did not consider
the date of insolvency, Judge Smith “remained free to amend its earlier finding of fact relating to
the date of [the] insolvency.” Id. at 878. The Federal Circuit also addressed the relationship
between Judge Kozinski (the original judge) and Judge Smith (the successor judge): “A
successor judge steps into the shoes of his or her predecessor, and is thus bound by the same
rulings and given the same freedom, as the first judge. To the extent that a trial judge can alter a
previous ruling, so too can a successor judge." Id. “At least to the extent it was not dependent
upon weighing conflicting testimony and evaluation of witness credibility, Chief Judge Smith
had authority to amend his predecessor’s finding as to the date of insolvency as he deemed
appropriate.” Id.
The two cases the Secretary cites discuss the law of the case doctrine in the context of
appellate remands. In Gould, the Federal Circuit held that an intervening Supreme Court opinion
did not allow the Court of Federal Claims to depart from the Federal Circuit’s earlier ruling that
the Court of Federal Claims possessed jurisdiction. 67 F.3d at 931. In Suel, the Federal Circuit
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ruled that a special master could not reopen entitlement after a judge from the Court of Federal
Claims found that the petitioners were entitled to compensation. 192 F.3d at 984.
The present case contrasts with Exxon Corp., Gould, and Suel in that an appellate
tribunal has not considered any aspect of the chief special master’s finding. Without this
appellate review, the chief special master’s finding is subject to reconsideration just as any other
finding is subject to reconsideration. Thus, if the Secretary, in arguing that the chief special
master’s findings “control”, were contending that the finding is binding, then the Secretary’s
argument is not in accord with precedent. A special master to whom a case has been reassigned
without any appellate review possesses the ability to reconsider an earlier factual ruling.
While, as a matter of law, special masters possess authority to reconsider previous
rulings, this exercise of discretion is appropriately limited to narrow circumstances. See Vaccine
Rule 10(e); Leming v. Sec’y of Health & Hum. Servs., 161 Fed. Cl. 744, 757 (2022) (indicating
that a special master may decline to entertain a motion for reconsideration when the evidence is
not new), appeal filed, No. 23-1032 (Fed. Cir. Oct. 12, 2022). These circumstances are even
more limited in a case, which is not Mr. McMullen’s case, in which the findings were made after
a hearing in which a special master observed a witness’s demeanor.
Although Mr. McMullen has not stylized his October 13, 2022 motion as requesting
reconsideration of the chief special master’s finding, the motion does argue in favor of finding an
immediate onset of Mr. McMullen’s shoulder pain. However, this argument resembles the
argument Mr. McMullen presented to the chief special master and the evidence is same. Thus,
Mr. McMullen has not demonstrated that the “interest of justice” requires a different outcome.
In short, the chief special master’s finding of an onset in late November is reasonable and
supported by substantial evidence.
B. How the Chief Special Master’s Finding Affects Mr. McMullen’s Off-Table Claim
Mr. McMullen has argued that he has met his burden regarding a causation-in-fact claim.
Pet’r’s Mot. at 9-13. His argument regarding the appropriate temporal interval is based upon an
(erroneous) argument that his shoulder pain started within 48 hours of the vaccination. Id. at 12-
13. Mr. McMullen has not presented any argument that the appropriate time of onset for a
shoulder injury following a vaccination might extend more than two weeks. Accordingly, Mr.
McMullen has failed to establish the third prong of Althen.
This finding means that Mr. McMullen is not entitled to compensation. Thus, an
examination of the other Althen prongs is not necessary.2
2 For the first Althen prong, Mr. McMullen argued that the Secretary’s recognition that the administration of some
vaccines can cause shoulder injuries and various articles from medical journals support a finding that he presented a
theory. Pet’r’s Mot. at 9. However, the Secretary did not answer this argument. See Resp’t’s Resp. at 8-9.
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V. Conclusion
Mr. McMullen has not established that he is entitled to compensation via
either an on-Table or off-Table claim. Therefore, the Clerk’s Office is instructed
to issue a judgment in accord with the decision unless a motion for review is filed.
Information about a motion for review, including the deadline, is found in the
Vaccine Rules, which are available on the website for the Court of Federal Claims.
IT IS SO ORDERED.
S/Christian J. Moran
Christian J. Moran
Special Master
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