VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-00873
Package ID: USCOURTS-cofc-1_20-vv-00873
Petitioner: Elaine Montana
Filed: 2020-07-17
Decided: 2024-10-08
Vaccine: influenza
Vaccination date: 2017-11-21
Condition: Shoulder Injury Related to Vaccine Administration (SIRVA)
Outcome: compensated
Award amount USD: 73704

AI-assisted case summary:
Elaine Montana, an adult, received an influenza vaccine on November 21, 2017. Within days, she developed pain and stiffness in her left shoulder that became severe, limiting her range of motion and ability to perform daily activities. She was diagnosed with Shoulder Injury Related to Vaccine Administration (SIRVA). Montana submitted medical records documenting her symptoms, including MRIs showing rotator cuff tears and inflammation in her left shoulder, and her own affidavit detailing the onset and progression of her pain. She also provided affidavits from her long-term partner and a former co-worker. The respondent initially challenged the timing of her symptom onset, but ultimately did not contest entitlement. The court found that Montana's injury qualified as a Table Injury under the Vaccine Injury Table, presuming causation. The case proceeded to damages, and the parties stipulated to an award. Special Master Horner awarded Montana $73,704.50, comprising $72,500.00 for pain and suffering and $1,204.50 for past unreimbursable expenses.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_20-vv-00873-0
Date issued/filed: 2023-11-07
Pages: 15
Docket text: PUBLIC ORDER/RULING (Originally filed: 10/16/2023) regarding 55 Ruling on Entitlement. Signed by Special Master Daniel T. Horner. (sh) Service on parties made.
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Case 1:20-vv-00873-UNJ Document 57 Filed 11/07/23 Page 1 of 15
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-873V
Filed: October 16, 2023
Special Master Horner
ELAINE MONTANA,
Petitioner,
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for petitioner.
Matthew Murphy, U.S. Department of Justice, Washington, DC, for respondent.
RULING ON ENTITLEMENT1
On January 12, 2021, petitioner filed a petition under the National Childhood
Vaccine Injury Act, 42 U.S.C. § 300aa-10, et seq. (2012),2 alleging that she suffered the
Table Injury of Shoulder Injury Related to Vaccine Administration (“SIRVA”) in her left
shoulder following an influenza (“flu”) vaccination that she received on November 21,
2017. (ECF No. 1.) For the reasons set forth below, I conclude that petitioner is entitled
to compensation for her alleged Table Injury.
I. Applicable Statutory Scheme
Under the National Vaccine Injury Compensation Program, compensation
awards are made to individuals who have suffered injuries after receiving vaccines. In
1 Because this document 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 document 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 Within this decision, all citations to § 300aa will be the relevant sections of the Vaccine Act at 42 U.S.C.
§ 300aa-10, et seq.
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general, to gain an award, a petitioner must make a number of factual demonstrations,
including showing that an individual received a vaccination covered by the statute;
received it in the United States; suffered a serious, long-standing injury; and has
received no previous award or settlement on account of the injury. § 300aa-11(c).
Finally – and the key question in most cases under the Program – the petitioner must
also establish a causal link between the vaccination and the injury. In some cases, the
petitioner may simply demonstrate the occurrence of what has been called a “Table
Injury.” That is, it may be shown that the vaccine recipient suffered an injury of the type
enumerated in the “Vaccine Injury Table,” corresponding to the vaccination in question,
within an applicable time period following the vaccination, which is also specified in the
Table. If so, the Table Injury is presumed to have been caused by the vaccination, and
the petitioner is automatically entitled to compensation, unless it is affirmatively shown
that the injury was caused by some factor other than the vaccination. See § 300aa-
13(a)(1); § 300 aa-11(c)(1)(C)(i); § 300aa-14(a).
As relevant here, the Vaccine Injury Table lists a SIRVA as a compensable injury
if it occurs within 48 hours of vaccine administration. See § 300aa-14(a), amended by
42 CFR § 100.3. Table Injury cases are guided by statutory “Qualifications and aids in
interpretation” (“QAIs”), which provide more detailed explanation of what should be
considered when determining whether a petitioner has actually suffered an injury listed
on the Vaccine Injury Table. 42 CFR § 100.3(c). To be considered a “Table SIRVA,”
petitioner must show that her injury fits within the following definition:
SIRVA manifests as shoulder pain and limited range of motion occurring
after the administration of a vaccine intended for intramuscular
administration in the upper arm. These symptoms are thought to occur as a
result of unintended injection of vaccine antigen or trauma from the needle
into and around the underlying bursa of the shoulder resulting in an
inflammatory reaction. SIRVA is caused by an injury to the musculoskeletal
structures of the shoulder (e.g. tendons, ligaments, bursae, etc.). SIRVA is
not a neurological injury and abnormalities on neurological examination or
nerve conduction studies (NCS) and/or electromyographic (EMG) studies
would not support SIRVA as a diagnosis . . . . 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).
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Case 1:20-vv-00873-UNJ Document 57 Filed 11/07/23 Page 3 of 15
42 CFR § 100.3(c)(10).
Vaccine Program petitioners must establish their claim by a “preponderance of
the evidence.” § 300aa-13(a). That is, a petitioner must present evidence sufficient to
show “that the existence of a fact is more probable than its nonexistence.” Moberly ex
rel. Moberly v. Sec’y of Health & Human Servs., 592 F.3d 1315, 1322 n.2 (Fed. Cir.
2010). However, a petitioner may not receive a Vaccine Program award based solely
on her assertions; rather, the petition must be supported by either medical records or by
the opinion of a competent physician. See § 300aa-13(a)(1). Once a petitioner has
established their prima facie case, the burden then shifts to respondent to prove, also
by preponderant evidence, that the alleged injury was caused by a factor unrelated to
vaccination. Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274, 1278 (Fed. Cir.
2005); § 300aa-13(a)(1)(B).
II. Procedural History
This case was initially assigned to the Special Processing Unit (“SPU”) on August
21, 2020. (ECF No. 14.) Petitioner filed her medical records between July of 2020 and
May of 2021. (ECF Nos. 6-8, 16, 23; Exs. 1-24, 28-38.) During that time, she also filed
affidavits by herself and Mark Maugans, with whom she has lived for over twenty years.
(ECF No. 9; Exs. 25-27.) While the case was in the SPU, the parties attempted
settlement, but were unable to resolve the case. Respondent filed his Rule 4 Report on
August 2, 2022. (ECF No. 39.) Respondent primarily challenged petitioner’s Table
Injury claim of SIRVA on the basis of timing of onset. He also indicated that an
alternative cause-in-fact claim was unsupported. (Id. at 9-13.)
The case was reassigned to the undersigned on January 9, 2023. (ECF Nos.
44.) After the case was reassigned, I instructed the parties to advise as to any further
steps they wished to take to develop the record. Thereafter, petitioner filed additional
evidence, consisting of witness statements and several letters, marked as Exhibits 39-
44. (ECF Nos. 46-49.) Petitioner then filed a motion for a ruling on the written record
on April 10, 2023. (ECF No. 51.) The motion primarily addressed onset of her
condition; however, because she contended onset was the only issue raised in
respondent’s Rule 4 Report, petitioner also requested a finding that she is entitled to
compensation for SIRVA. (Id. at 3, n.3.) Respondent filed a response to the motion on
June 22, 2023. (ECF No. 53.) Respondent confirmed that he does not oppose a ruling
on the written record; however, he cross-moves for a ruling dismissing the petition. (Id.
at 1.) Petitioner filed a reply on July 11, 2023. (ECF No. 54.)
In light of the above, I have determined that the parties have had a full and fair
opportunity to present their cases and that, given the parties’ assent, it is appropriate to
resolve entitlement on the existing record. See Vaccine Rule 8(d); Vaccine Rule
3(b)(2); see also Kreizenbeck v. Sec’y of Health & Human Servs., 945 F.3d 1362, 1366
(Fed. Cir. 2020) (noting that “special masters must determine that the record is
comprehensive and fully developed before ruling on the record”). Accordingly, this
matter is now ripe for resolution.
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III. Factual History
a. As Reflected in the Medical Records
Petitioner’s prior medical history includes the following conditions: breast cancer,
a benign tumor of the right bronchus and lung, chronic obstructive pulmonary disease
(“COPD”), injury to the brachial plexus of her right shoulder, right shoulder rotator cuff
tear, a left foot and ankle fracture, empyema, asthma, gastroesophageal reflux disease
(“GERD”), lymphedema, and trigger finger of the left thumb. (See Exs. 2-7, 10, 13-15,
18, 20-22, 31, 35.) On November 21, 2017, petitioner received the subject flu vaccine
at her annual wellness visit. (Exs. 1, p. 1; 10, p. 28.)
On November 30, 2017, petitioner saw Dr. Madhu Chaudhry for an oncology
follow up appointment. (Exs. 2, p. 9; 20, p. 38.) During this visit, she did not report any
shoulder pain. Her musculoskeletal physical exam was limited to noting “[n]o
inflammation or deformity of the joints” with extremities further noted as “[w]arm, well-
perfused, no lower extremity edema.” (Ex. 2, p. 11.) On the same day, petitioner saw
Dr. Neri M. Cohen, a cardiovascular and thoracic surgeon, for a follow up regarding her
carcinoid tumor. (Exs. 4, p. 47; 35, p. 278.) She reportedly denied having any pain
symptoms broadly. (Ex. 4, p. 48.) Petitioner’s physical exam noted that she could not
raise her arm beyond 180 degrees; however, the record does not specify which arm.
(Id. at 51.)
On December 27, 2017, petitioner saw Dr. Paul J. Meissner, Jr., a podiatrist, for
a vasospastic episode where all her toes were cyanotic and cold to the touch. (Ex. 9, p.
5.) She was diagnosed with vasospastic disease, and Dr. Meissner recommended
applying 20% urea cream and taking aspirin to improve blood flow. (Id. at 6.)
Petitioner, again, did not mention any shoulder pain at this appointment. No physical
exam was recorded beyond noting xerosis of her skin and a corn on her toe. (Id. at 5.)
On January 10, 2018, petitioner had a follow up appointment for her asthma with Dr.
Marie D. Chatham, a pulmonologist. (Exs. 3, p. 20; 35, p. 274.) She again did not
mention any shoulder pain. Her physical exam was limited to noting that her extremities
were “warm without clubbing, cyanosis, or edema.” (Ex. 3, p. 23.)
Petitioner’s medical records show that she first mentioned her left shoulder pain
during an appointment with PA-C Ana Beard and Edward George McFarland, M.D., on
February 16, 2018. (Ex. 5, p. 73-75.) During this appointment, PA-C Beard noted that
petitioner reported she began having pain and stiffness in her left shoulder following her
flu shot.3 (Id. at 73.) During this appointment petitioner reported that “[s]he had the
usual soreness for a couple of days, but then the pain persisted and became much
more severe. Her arm started to feel weak and she was not able to do simple daily
activities.” (Id.) (This history also states that petitioner stopped working due to her
shoulder pain; however, petitioner has filed other evidence refuting that notation.) PA-C
3 In the medical records, PA-C Beard’s notes incorrectly report that petitioner received the flu vaccine in
October, not November. (Ex. 5, p. 73.) This error appears to have originated from petitioner’s own
handwritten intake form. (Id. at 77.)
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Beard recommended an updated MRI of both shoulders, physical therapy, and a
“Medrol Dosepak.” (Id. at 74.) In light of her prior history of right shoulder dysfunction,
she was assed as having “bilateral shoulder pain,” despite specifically having presented
for care for left shoulder pain that was identified as a “new problem.” (Id. at 73-74.)
On February 22, 2018, petitioner had an MRI of her right shoulder without
contrast. (Ex. 5, p. 88.) The MRI showed evidence of a partial tear. (Id.) On this same
day, petitioner also had an MRI of her left shoulder without contrast. (Id. at 90.) This
MRI showed “evidence of a small focal insertional tear involving the supraspinatus
tendon” and a “partial tear involving the infraspinatus tendon.” (Id. at 90-91.) On
February 26, 2018, PA-C Beard discussed the results of petitioner’s MRI. (Id. at 129.)
She reported to petitioner that petitioner did not have a tear in her right shoulder but did
have a small full thickness tear in her left shoulder. (Id.)
On that same day, petitioner saw Nicole M. Blake, PT, to begin physical therapy
for her left shoulder. (Ex. 21, p. 3.) Petitioner reported increased pain with doing her
hair, carrying things, and getting dressed. (Id.) She also reported more than four
disturbances a night due to her increased pain. (Id.) Petitioner reported her pain was
1/10 at this appointment and 8/10 at its worst. (Id.) Petitioner was able to reach above
her head but had increased pain when reaching around her back. (Id.) PT Blake notes
that petitioner reported pain and stiffness in her left shoulder following her November
2017 flu shot. (Id.) She continued physical therapy through October of 2018, showing
improvement. (Id. at 12-121.)
On April 2, 2018, petitioner saw James P. Higgins, M.D., for trigger thumb in her
right hand and chronic carpal tunnel syndrome in her left hand. (Ex. 6, p. 12.) Dr.
Higgins gave her a cortisone shot. (Id.) Petitioner saw PA-C Beard for a follow up on
her bilateral shoulder pain on April 13, 2018. (Ex. 5, pp. 96, 138.) It was noted that
petitioner was improving and continued physical therapy was recommended. (Id. at 97,
138.) Neither surgery nor any therapeutic injection was considered necessary at that
time. (Id. at 97.)
On April 19, 2018, petitioner saw CRNP Megan Wood for a pre-operative
appointment before an endoscopic carpal tunnel release procedure on her left arm to
relieve some of her carpal tunnel symptoms. (Ex. 35, p. 261.) Petitioner reported
“‘frozen shoulder’ of the left side due to vaccine she received in Nov[ember] 2017.” (Id.)
Petitioner noted that she had been improving slowly with physical therapy. (Id.)
Petitioner saw Dr. Higgins on May 7, 2018. (Ex. 6, p. 10.) During this
appointment, she complained of pain in the ulnar boarder of her right wrist. (Id.) Dr.
Higgins concluded this is a sign of carpal tunnel syndrome. (Id.) After discussing
various treatment options, petitioner decided to proceed with a nerve conduction study.
(Id.) On May 15, 2018, petitioner saw Lynn Staggs, M.D., at the referral of Dr. Higgins
for an electrodiagnostic consultation. (Id. at 13.) Dr. Staggs confirmed Dr. Higgins’
diagnosis of carpal tunnel syndrome and found “no evidence of left acute cervical
radiculopathy, nor ulnar compression.” (Id. at 15.)
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On July 20, 2018, petitioner saw PA-C Beard to discuss a complete tear of her
rotator cuff in her left shoulder. (Ex. 5, p. 179.) PA-C Beard recommended petitioner
continue physical therapy and return for a repeat MRI in three months. (Id.)
On September 11, 2018, petitioner had an initial evaluation with CRNP David
Kitchen at the Greater Baltimore Lymphedema Center. (Ex. 35, p. 234-41.) CRNP
Kitchen noted that petitioner was diagnosed with SIRVA in her left shoulder following
her flu shot in 2017. (Id. at 235.) He noted that petitioner had recently experienced
decreased range of motion in her left arm. (Id.) Petitioner described that 10 days
earlier she began experiencing swelling in her left chest and arm. (Id.) CRNP Kitchen
diagnosed petitioner with cellulitis of the chest wall and lymphedema of her left upper
extremity, and he recommended that petitioner would benefit from decongestive therapy
and told petitioner to wear compression garments as instructed. (Id. at 240-41.)
Petitioner began occupational therapy with OT Michelle R. Frazier for her lymphedema
on September 13, 2018. (Id. at 227-35.) It was noted that petitioner had a moderate
amount of soft swelling in her chest and left breast. (Id. at 230.) OT Frazier
recommended that petitioner continue occupational therapy two times a week for 12
weeks. (Id. at 232.)
Thereafter, petitioner continued both her physical therapy and her occupational
therapy throughout September and into October. On September 17, 2018, petitioner
had both physical therapy for her arm and occupational therapy for her lymphedema.
(Exs. 21, p. 106; 35, p. 223.) During her physical therapy appointment, it was noted that
petitioner presented “with mild loss of motion and increase in shoulder stiffness
following cellulitis/lymphedema” and a further one to two more sessions was
recommended to improve symptoms. (Ex. 21, p. 109.) Petitioner was ultimately
discharged from physical therapy on October 16, 2018. (Id. at 115-19.) The focus of
petitioner’s occupational therapy with OT Frazier was drainage and compression
garments. (Ex. 35, pp. 225-26.)
On October 26, 2018, petitioner received an MRI of her left shoulder, which
revealed no evidence of a rotator cuff tear but did reveal mild osteoarthritis. (Exs. 19,
pp. 7-8; 24, pp. 16-17.) PA-C Beard noted the rotator cuff tear had not changed, but “a
little bit more” arthritis was present. (Ex. 28, p. 67.) Surgery was still not indicated. On
January 9, 2019, petitioner saw PA-C Beard for a further evaluation of her left shoulder.
(Ex. 28, p. 40.) She noted that petitioner was using a “non gradient lymphedema pump”
called LymphoPress to treat her lymphedema. (Id.) Petitioner reported that since she
started using the pump, she has experienced a flare of her left rotator cuff symptoms.
(Id.) On January 11, 2019, petitioner followed up with CRNP Kitchen. (Ex. 35, p. 155.)
Petitioner reported that using the pump caused her “severe, sometimes excruciating,
pain, especially on [her] wrist, where [she has] carpal tunnel, and worse, on [her] injured
shoulder.” (Id. at 156.) CRNP Kitchen instructed patient to stop using the pump and
switched her to a Flexitouch pump. (Id. at 163.)
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After reporting the exacerbation of her shoulder pain, petitioner went back to
physical therapy on January 28, 2019. (Ex. 21, p. 122.) Petitioner went to physical
therapy again on January 30, February 6, February 13, February 18, and February 25,
2019. (Id. at 129-43.) On February 26, 2019, petitioner saw CRNP Kitchen for a follow
up. (Ex. 35, 135.) Petitioner reported that she had been using her compression
clothing more frequently. (Id. at 137.) In addition, petitioner was fitted for her Flexitouch
pump. (Id. at 138.) Petitioner continued to attend physical therapy for her shoulder
once a week throughout the month of March. (Ex. 21, p. 144-57.) She was discharged
on April 8, 2019. (Id. at 160-63.)
Petitioner had a follow up appointment with CRNP Kitchen on July 2, 2019. (Ex.
35, p. 114.) She reported that her lymphedema is “well controlled.” (Id. at 119.) She
was instructed to continue wearing compression garments and using the Flexitouch
pump. (Id.) On July 18, 2019, petitioner saw PA-C Beard for chronic pain in both
shoulders. (Ex. 24, p. 21.) An x-ray of both shoulders showed no fracture or dislocation
of either shoulder, but moderate osteoarthrosis in both shoulders. (Id. at 26; Ex. 28, p.
9.)
Petitioner saw PA-C Beard on September 30, 2020, for a follow up evaluation of
her chronic bilateral shoulder pain. (Ex. 37, p. 145.) She reported at this time that her
right shoulder was worse. (Id.) On October 10, 2020, petitioner underwent an MRI that
showed a small tear in her right shoulder and bicep muscle. (Ex. 32, p. 2; Ex. 37, pp.
114, 134.) Petitioner attempted to treat these tears through physical therapy throughout
October 2020 until January 2021. (Ex. 38, pp. 14-72.) On January 19, 2021, petitioner
saw Phillip Stetler, D.O., and Dr. MacFarland who recommended surgery to repair these
right shoulder tears. (Ex. 37, p. 46-48.)
b. As Reflected in the Affidavits
i. Elaine Montana
Petitioner submitted two affidavits. (ECF Nos. 9-1, 47 (Exs. 25, 40).) Petitioner
worked as a nurse in geriatric and rehab units, usually with patients suffering from
dementia, for 40 years. (Ex. 25, ¶ 4.) She notes that this work required “intense
physical exertion, balance and upper body strength i.e., heavy lifting and transferring of
patients and supplies, using both arms to lift, upper body mobility and agility, and
reaching overhead and balancing while squatting.” (Id.)
In her first affidavit, petitioner started by describing some of her medical history.
(Ex. 25.) She describes herself as “in relatively good health” from November 2014 to
November 2017. (Id. ¶ 1.) She states that she “stayed active, fit, and able to perform
[her] job responsibilities through aerobic and weight training exercise, by swimming and
by doing the physical labor needed to maintain [her] home.” (Id. ¶ 4.) She describes
how she had a prior history of brachial plexus in her right shoulder and developed
frozen shoulder on her right side after a surgery in 2013. (Id. ¶ 1.) She notes that,
before this incident, she always had full use of her left hand and arm, and that she
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became more dependent on her left arm after she developed frozen shoulder on her
right side. (Id.) Her frozen shoulder began to improve in 2015. (Id.)
Since 2017, petitioner describes seeing various physicians, including her primary
care physician; an oncologist for stage one breast cancer; a surgeon to remove a
benign growth in her lung; a pulmonologist, an allergist, and an otolaryngologist for
asthma, allergies, and reactive upper airway issues; an orthopedic specialists for a
stress fracture in her left foot and for trigger thumb; a gynecologist; and a podiatrist. (Id.
¶ 2.) She notes that she was involved in a car accident in 2012 but had since resumed
all normal activities. (Id.) She states that she has always “attended the necessary
preventative and follow up care visits and [has] complied with prescribed self-care.” (Id.
¶ 3.)
Petitioner reports that she received a flu vaccine in her left arm at her annual
checkup on November 21, 2017. (Id. ¶ 5.) She describes a “mild soreness at the
injection site” following her vaccination. (Id.) “In the days following the injection, [she]
noticed the mild soreness had progressed.” (Id. ¶ 6.) She states that this soreness
became a more “noticeable pain” and began to “spread over [her] entire left arm and
radiate down from [her] left shoulder.” (Id.) By December, petitioner began to avoid
raising her left arm due to the pain. (Id.)
During this time, petitioner reports that she had resigned from her job on
November 8, 2017, and she was not actively lifting patients or performing any other
activities that may injure her shoulder. (Id.) She continued to exercise during this time,
but she had to switch up her routine in late December 2017 to accommodate her pain.
(Id.) She also began waking up in the middle of the night due to the pain. (Id.)
Petitioner initially assumed that she had pulled a muscle and that the pain would
eventually subside, so she did not mention it during any of her follow up appointments
through 2017-2018. (Id. ¶¶ 6-7.)
By January 2018, petitioner started to become aware that something was wrong.
(Id. ¶ 7.) Her pain became more and more intolerable as 2018 continued. (Id. ¶ 8.)
She was unable to raise her left arm without excruciating pain. (Id.) Simple tasks like
reaching to get something from a cabinet, getting dressed, styling her hair, or lifting
anything became nearly impossible. (Id.) She describes one incident where she was
unable to screw in a light bulb because it was too painful and her arm was too weak.
(Id.) After this, petitioner “called her shoulder physician and took the next available
appointment.” (Id.)
On February 16, 2018, petitioner notes that she saw Dr. McFarland, her shoulder
physician, and PA-C Beard. (Id. ¶ 9.) At this appointment, petitioner notes she was
diagnosed with a shoulder injury due to the flu vaccine. (Id.) She underwent an MRI
that revealed rotator cuff tears and inflammation in her left shoulder. (Id.) She states
that she started physical therapy and was prescribed a Medrol dose pack. (Id.)
Since her diagnosis, petitioner has continued to have regular appointments with
her physical therapist and her orthopedic surgeon. (Id. ¶ 11.) In August 2018,
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petitioner notes that she was diagnosed with cellulitis of her left breast as a result of
lymphedema. (Id.) “[L]ymphedema is a condition triggered by an injury to the affected
side.” (Id.) She states that her doctor “felt [her] left shoulder injury likely triggered the
lymphedema,” rather than her breast surgery, because her breast surgery was four
years earlier and without complications. (Id.) This condition requires lifelong treatment
with compression garments and “other treatment modalities.” (Id.) Petitioner states that
the lymphedema led to increased inflammation in her left shoulder and required
additional physical therapy. (Id.)
In her second affidavit, petitioner clarifies that she received her flu vaccine on
November 21, 2017, not in October 2017 as “erroneously recorded in the progress note”
from her initial appointment regarding her left shoulder pain. (Ex. 40, ¶ 1.) She states
that her left shoulder pain did not exist at the time of her resignation on November 8,
2017, and therefore, it was not the reason for her resignation. (Id. ¶ 2.) She further
clarifies that she “did not resign because [she] was having problems lifting patients.”
(Id.) Instead, she claims that she resigned due to “concerns [she] had about changes
that came with new management after [her] facility was purchased by another
company.” (Id.) Her reasons for resigning were recorded in her November 30, 2017,
visit with her lung surgeon. (Id.) She attempted to rescind this resignation and claims
she would not have attempted to do this if she was experiencing pain. (Id. ¶ 3.)
Petitioner also clarifies why she did not discuss her shoulder pain in subsequent
doctors’ appointments between November 2017 and February 2018. (Id. ¶ 7.) She
states that she “did not, and would not even now, mention a pain in her shoulder and
arm during a routine follow up assessment for other conditions.” (Id.) She attributes
this to her time as a nurse and states that she only discusses the conditions that
prompted her to see that specific doctor, not other conditions. (Id.) She states that
“[t]hese appointments were only to discuss serious conditions that had been, and could
still be, potentially life-threatening.” (Id.) She claims, “As a medical professional, when I
see each doctor, I am narrowly focused on the specialized area they are treating.” (Id.)
ii. Mark Maugans
Mark Maugans also submitted an affidavit in this case. (ECF No. 9-3; Ex. 27.)
Mr. Maugans has lived with petitioner for the past 22 years. (Ex. 27, ¶ 1.) He states
that petitioner has always “led an active, healthy life, and has been passionate about
both health and fitness.” (Id.) He describes how petitioner “worked a physically
demanding job” and “has always been responsible for maintaining [their] home and
large property.” (Id.)
Mr. Maugans describes how petitioner told him she was going for her annual
checkup and planned to receive her annual flu shot at the end of November 2017. (Id. ¶
2.) Mr. Maugans describes how petitioner mentioned soreness in her left shoulder
where she had received the shot in the week following her appointment. (Id.) He notes
that she “talked about her pain routinely and how it began shortly following the flu shot.”
(Id.) He recalls her “saying that the pain was becoming stronger” and that “both her left
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shoulder and left arm hurt” between late November 2017 and early December 2017.
(Id.)
Mr. Maugans states that petitioner continued to talk about the pain in her left
shoulder and arm throughout the rest of December 2017 and January 2018. (Id. ¶ 3.)
He notes that she was having trouble sleeping due to the pain and required him to help
more around the house. (Id.) Mr. Maugans describes one incident where petitioner
“had been trying to change a light bulb,” however, she “was so weak and was in so
much pain [that] she could not lift the bulb, even to her shoulder level.” (Id.) He states
that after two months of this pain, petitioner “decided to seek medical treatment.” (Id. ¶
4.)
Mr. Maugans reports that, since petitioner’s “first visit with her orthopedic
physician for her left shoulder pain, [he has] watched her diligently perform her
recommended therapies.” (Id. ¶ 5.) However, he notes that “[h]er pain continues to this
day, and she now has to contemplate surgery as part of her recovery process.” (Id.)
iii. Rhonda Torian
Rhonda Torian, petitioner’s co-worker, also submitted an affidavit in this case.
(ECF No. 49; Ex. 44.) Ms. Torian worked with petitioner at CommuniCare Healthcare
Center, which was previously known as Golden Living. (Ex. 44, ¶ 1.) She states that,
when they worked together, petitioner’s job required her to lift and transfer patients and
reach overhead. (Id.) She noted that petitioner “performed all of the physical work
required by her job without any difficulty.” (Id.)
Ms. Torian states that when Golden Living was bought by CommuniCare, “many
changes followed.” (Id. ¶ 2.) She notes that there were changes in “pay, work hours,
staffing, policies, and the types of patients” accepted by the facility. (Id.) She describes
how a lot of people, including petitioner, resigned and the company eventually had to
hire temporary workers. (Id.) Ms. Torian opines that petitioner’s “resignation had
nothing to do with her physical abilities” and suggests that petitioner “resigned because
she felt a lot of changes were compromising safety, and the quality and continuity of
care.” (Id.) She explains that petitioner did not talk about her problems with her left
shoulder until after she had resigned. (Id. ¶ 3.)
IV. Discussion
For the reasons discussed below, I conclude that petitioner has met her prima
facie burden of proof with respect to each of the four QAI criteria for establishing a
Table Injury of SIRVA. I further conclude that respondent has not met his burden of
proof with respect to whether petitioner’s condition was caused by any factor unrelated
to vaccination. Accordingly, petitioner is entitled to compensation for a Table SIRVA.
a. Petitioner’s Prima Facie Showing of a Table SIRVA
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i. No history of pain, inflammation or dysfunction of the affected
shoulder
The first SIRVA criterion requires “[n]o 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.” 42 CFR § 100.3(c)(10)(i). Petitioner argues in
her motion that she has satisfied this requirement. (ECF No. 51, p. 24.) Respondent
has not raised any argument to the contrary. (ECF No. 53.)
In his Rule 4 Report, respondent argued that a notation in petitioner’s medical
records associating her shoulder pain to her employment necessarily placed onset prior
to the date of vaccination. (ECF No. 39, p. 10 (citing Ex. 5, p. 73).) Petitioner later filed
additional evidence clarifying the circumstances of her resignation as well as a letter
from her physician indicating the notation at issue was made in error. (Exs. 39-44.)
Thereafter, respondent did not raise this argument in his response to the instant motion
for a ruling on the written record. (ECF No. 53.) Without further explanation, the
argument that petitioner had preexisting left shoulder pain cannot be harmonized with
respondent’s argument in response to the instant motion (made relative to SIRVA
criterion ii as discussed below) that her November 30, 2017 oncology record
demonstrates an absence of shoulder pain. In any event, I find the evidence
subsequently filed by petitioner (Exhibits 39-44) sufficient to refute that she resigned
from her job due to left shoulder pain predating the vaccination at issue.
Based on my review of the record as a whole, although petitioner had other prior
medical concerns, including longstanding limitations in her opposite shoulder, I find
petitioner has satisfied this requirement by preponderant evidence.
ii. Pain occurs within 48 hours of vaccination
The second SIRVA criterion requires that the “[p]ain occurs within the specified
time-frame,” i.e., within 48 hours of vaccination. 42 CFR § 100.3(c)(10)(ii); 42 CFR §
100.3(a). This is the primary issue addressed by the parties. Based on my review of
the record as a whole, I find that, for the reasons discussed below, petitioner has
satisfied this requirement by preponderant evidence.
The Vaccine Act instructs that a special master may find the time period for the
first symptom or manifestation of onset required for a Table Injury is satisfied “even
though the occurrence of such symptom or manifestation was not recorded or was
incorrectly recorded as having occurred outside such period.” § 300aa-13(b)(2).
However, consistent with petitioner’s burden of proof overall, that finding must be
supported by preponderant evidence. Id. A special master must consider the medical
record as a whole and is not bound by any particular diagnosis, conclusion, judgment,
test result, report, or summary concerning the nature, cause, and aggravation of
petitioner’s injury or illness that is contained in a medical record. § 300aa-13(b)(1).
However, the Federal Circuit has held that contemporaneous medical records are
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ordinarily to be given significant weight due to the fact that “[t]he 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). Nonetheless, there is no presumption that medical records are complete and
accurate. Kirby v. Sec’y of Health & Human Servs., 997 F.3d 1378, 1383 (Fed. Cir.
2021).
There is no dispute that when petitioner first sought care for her left shoulder
pain, she specifically attributed her pain to her flu vaccine. (ECF No. 53, p. 2.)
Moreover, respondent does not dispute that petitioner suffered left shoulder pain “at
some point” after her vaccination. (Id. at 10.) However, respondent disputes that there
is preponderant evidence that petitioner suffered shoulder pain within 48 hours of
vaccination. (Id. at 9-10.) Respondent stresses that petitioner did not seek treatment
for her shoulder pain until nearly three months after vaccination. (Id. at 9.) Therefore,
he contends that there are no objective findings from any physician confirming shoulder
pain within days of vaccination. (Id. at 10.) Respondent suggests this is particularly
concerning because petitioner had other medical appointments in the interim (especially
a November 30 oncology encounter and a January 10 pulmonology encounter) where
her shoulder pain was not documented. (Id. at 9.) Respondent stresses petitioner’s
November 30 oncology encounter, which occurred approximately a week post-
vaccination, and which documented an absence of joint inflammation or arthritis. (Id.
(citing Ex. 2, pp. 9-10).) Respondent suggests that this musculoskeletal exam was of
particular importance to the oncologist given petitioner’s left-side lumpectomy and
lymph node removal. Moreover, the oncologist documented petitioner’s left shoulder
complaints in later records. (Id. (citing Ex. 2, pp. 13, 17).)
Standing alone, the fact that petitioner waited more than three months to seek
treatment is not significant. See, e.g., Lang v. Sec’y of Health & Human Servs., No. 17-
995V, 2020 WL 7873272, at *10 (Fed. Cl. Spec. Mstr. Dec. 11, 2020) (explaining that
“prior decisions by myself and other Special Masters have found that postponing
treatment for a limited number of months is not per se dispositive of whether onset of
shoulder pain occurred within the specified time period for a SIRVA”); Smallwood v.
Sec’y of Health & Human Servs., No. 18-0291V, 2020 WL 2954958, at *10 (Fed. Cl.
Spec. Mstr. Apr. 29, 2020) (explaining that it is common for SIRVA petitioners to delay
treatment “thinking his/her injury will resolve on its own”). Moreover, when petitioner did
present for care of her shoulder condition, the history she provided not only attributed
her injury to her vaccination, but also specifically confirmed onset within 48 hours of
vaccination. (Ex. 5, p. 73.) Although the record misstates the month of vaccination, the
recorded history indicates that “her left shoulder problem started with a flu shot . . . .
She had the usual soreness for a couple of days, but then the pain persisted and
became much more severe.” (Id. (emphasis added).) Thereafter, her subsequent
records are consistent with this history, though generally less specific. (See, e.g., Ex.
21, pp. 3-4 (noting pain “following getting a flu shot”); Ex. 35, p. 261 (noting frozen
shoulder “due to vaccine she received in Nov 2017”).) Thus, onset occurring within 48
12

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hours of vaccination is supported by the relevant treatment records. Cucuras, 993 F.3d
at 1528 (“With proper treatment hanging in the balance, accuracy has an extra
premium.”)
As respondent contends, petitioner’s medical records as a whole include more
contemporaneous encounters that require further scrutiny given that they may tend to
cast doubt on the accuracy of the onset reported in the later treatment records.
Respondent goes too far, however, in asserting that these records carry a “presumptive
accuracy.” (ECF No. 53, p. 10; but see Kirby, 997 F.3d at 1383 (“We reject as incorrect
the presumption that medical records are accurate and complete as to all the patient’s
physical conditions.”).) Ultimately, I conclude that these encounters, though closer in
time to the vaccination, do not indicate that the shoulder treatment records are
inaccurate with respect to onset. Neither of the encounters highlighted by respondent
was with a primary care provider or a relevant specialist. Instead, they related to
specific ongoing concerns relative to oncology and pulmonology respectively. (Exs. 2,
pp. 9-12; 3, pp. 20-25.) Neither record includes any in depth assessment of petitioner’s
musculoskeletal condition.
Respondent is unpersuasive in contending that a musculoskeletal exam was “of
particular importance to [petitioner’s] oncologist.” (ECF No. 53, p. 9.) Although
respondent is correct that petitioner’s alleged SIRVA is on the same side as her
lumpectomy and lymph node removal, respondent has not explained why this would
prompt the oncologist to be monitoring for left shoulder musculoskeletal dysfunction
specifically. Respondent notes that a later oncology exam of September 6, 2018, did
document “left upper arm swelling.” (Id. (quoting Ex. 2, p. 17).) However, that was
documented in relation to the lymphatic system. Although the Review of Systems notes
a denial of joint pain and inflammation generally, the musculoskeletal physical exam is
limited to noting “[n]o inflammation or deformity of the joints,” with no indication of what
joints were examined and in what manner. (Ex. 2, pp. 17-19.) This lack of attention or
detail is not consistent with that exam being of “particular importance.” Accord Kirby,
997 F.3d at 1383 (explaining that a notation of “No Present – Dizziness” does not
necessarily evidence a complete neurologic exam). Dr. Cohen’s examination of the
same date did include some reference to reduced range of motion. (Ex. 4, p. 51.)
More importantly, review of the complete medical records suggests that the
oncologist’s recordkeeping with respect to petitioner’s musculoskeletal complaints was
not reliable. Respondent stresses that the oncologist did later record as of July 9, 2018,
that petitioner had been “undergoing physical therapy on her bilateral rotator cuff tears.”
(ECF No. 53, p. 9 (quoting Ex. 2, p. 13).) However, despite recording that petitioner
was actively treating bilateral shoulder symptoms, the oncologist still recorded a
musculoskeletal Review of Systems and Physical Examination that was identical to the
November 30, 2017 encounter record. (Compare Ex. 2, pp. 9-11, with Ex. 2, pp. 13,
15.) The same assessments are repeated a third time at the September 6, 2018
encounter despite again noting the ongoing treatment of bilateral shoulder symptoms
and also separately observing left arm lymphatic swelling. (Ex. 2, pp. 16-19.) Thus,
given that these negative assessments for shoulder pain were included by the
13

Case 1:20-vv-00873-UNJ Document 57 Filed 11/07/23 Page 14 of 15
oncologist verbatim at encounters where he otherwise separately confirmed ongoing
shoulder symptoms, they do not reliably evidence the absence of shoulder symptoms
during the earlier November 30, 2017 encounter.
iii. Pain and reduced range of motion are limited to the affected
shoulder
The third SIRVA criterion requires that the “[p]ain and reduced range of motion
are limited to the shoulder in which the intramuscular vaccine was administered.” 42
CFR § 100.3(c)(10)(iii). Petitioner asserts that there is no evidence that she had
complaints beyond her affected shoulder. (ECF No. 51, p. 37-39.) Respondent argues,
however, that petitioner’s bilateral shoulder pain is evidence that her pain was not
limited to her left shoulder (ECF No. 53, p. 11; see also ECF No. 39, p. 11 (citing Exs. 2,
p. 13; 5, pp. 73, 86, 179; 20, p. 21; 28, p. 48).) Petitioner counters that “[t]o suggest
petitioner’s left shoulder vaccine injury involves some aspect of a bilateral process is a
misrepresentation of the plain reading of petitioner’s medical records.” (ECF No. 54, p.
6.)
Although respondent is correct that some of petitioner’s medical records indicate
that she presented with “bilateral” shoulder pain, the medical records do explicitly
distinguish the etiology and history of the pain she experienced in each shoulder. (See,
e.g., Exs. 5, p. 179 (noting that petitioner presented “for follow up evaluation of her
bilateral shoulder pain, left worse than right” with “a history of a plexopathy on the right
side from birth” and “left shoulder pain [that] started with a flu shot”); 28, p. 48
(assessing “a history of brachial plexus injury from birth on the right side and a partial-
thickness rotator cuff tear on the left”).) There is no readily apparent reason to doubt
that a person with a preexisting right shoulder complaint could subsequently suffer an
unrelated left shoulder injury. Moreover, there is no indication from the medical records
that any of petitioner’s treating physicians considered her right and left shoulder pain to
be a part of the same condition. Nor has respondent provided any medical opinion or
other explanation indicating why two separate shoulder complaints in opposite
shoulders would be suspicious for a unifying etiology given the facts of this case.
Accordingly, based on my review of the record as a whole, I find petitioner has
satisfied this requirement by preponderant evidence. Accord Grossman v. Sec’y of
Health & Human Servs., No. 18-00013V, 2022 WL 779666, at *15 (Fed. Cl. Spec. Mstr.
Feb. 15, 2022) (explaining that SIRVA QAI criterion iii looks for “patterns of pain or
reduced range of motion indicative of a contributing etiology beyond the confines of a
musculoskeletal injury to the affected shoulder”).
iv. No other condition or abnormality is present that would explain the
patient’s symptoms
Finally, the fourth SIRVA criterion requires that “[n]o 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
14

Case 1:20-vv-00873-UNJ Document 57 Filed 11/07/23 Page 15 of 15
neuropathy).” 42 CFR § 100.3(c)(10)(iv). Petitioner argues that she has satisfied this
criterion based on her medical history and medical records. (ECF No. 51, p. 39.)
Respondent has not raised any argument to the contrary. Based on my review of the
record as a whole, although petitioner had other medical concerns, I find petitioner has
satisfied this requirement by preponderant evidence.
b. Factor Unrelated
Once petitioner has satisfied her own prima facie burden, respondent has the
opportunity to demonstrate, also by a preponderance of the evidence, that petitioner’s
injury was nonetheless caused by a factor unrelated to vaccination. § 300aa-13(a)(2); §
300aa-13(a)(1)(B); Deribeaux ex rel. Deribeaux v. Sec’y of Health & Human Servs., 717
F.3d 1363, 1367 (Fed. Cir. 2013). In this case, respondent has not raised any such
argument.
V. Conclusion
For all the reasons discussed above, after weighing the evidence of record within
the context of this program, I find by preponderant evidence that petitioner suffered a
Table Injury of SIRVA resulting from her November 21, 2017 flu vaccination. A
separate damages order will be issued.
IT IS SO ORDERED.
s/Daniel T. Horner
Daniel T. Horner
Special Master
15

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_20-vv-00873-1
Date issued/filed: 2024-10-08
Pages: 5
Docket text: PUBLIC DECISION (Originally filed: 9/13/2024) regarding 72 DECISION Stipulation/Proffer. Signed by Special Master Daniel T. Horner. (ksb) Service on parties made.
--------------------------------------------------------------------------------
Case 1:20-vv-00873-UNJ Document 76 Filed 10/08/24 Page 1 of 5
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-873V
Filed: September 13, 2024
ELAINE MONTANA, Special Master Horner
Petitioner,
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for petitioner.
Matthew Murphy, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
On July 17, 2020, Elaine Montana 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 a Table shoulder injury related to
vaccine administration (“SIRVA”) as result of a flu vaccine received on November 21,
2017. (ECF No. 1.)
On October 16, 2023, a ruling on entitlement was issued, finding petitioner
entitled to compensation for her SIRVA. (ECF No. 55.) On September 13, 2024,
respondent filed a proffer on award of compensation (“Proffer”) indicating petitioner
should be awarded $73,704.50, representing $72,500.00 in pain and suffering and
$1,204.50 in past unreimbursable expenses related to her vaccine-related injury. (ECF
No. 71.) In the Proffer, respondent represented that petitioner agrees with the proffered
award. (Id.) Based on the record as a whole, I find that petitioner is entitled to an
award as stated in the Proffer.
1 Because this document 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 document 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.

Case 1:20-vv-00873-UNJ Document 76 Filed 10/08/24 Page 2 of 5
Pursuant to the terms stated in the attached Proffer, I award petitioner a lump
sum payment of $73,704.50.00, representing $72,500.00 in compensation for pain
and suffering and $1,204.50 in compensation for past unreimbursable expenses,
in the form of a check payable to petitioner. This amount represents compensation
for all damages that would be available under § 15(a).
The clerk of the court is directed to enter judgment in accordance with this
decision.3
IT IS SO ORDERED.
s/Daniel T. Horner
Daniel T. Horner
Special Master
3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
2

Case 1:20-vv-00873-UNJ Document 76 Filed 10/08/24 Page 3 of 5
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
ELAINE MONTANA, )
)
Petitioner, )
) No. 20-873V
v. ) Special Master Horner
) ECF
SECRETARY OF HEALTH AND HUMAN )
SERVICES, )
)
Respondent. )
)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On July 17, 2020, Elaine Montana (“petitioner”) filed a petition for compensation under
the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (“Vaccine Act”
or “Act”), alleging that she suffered a Shoulder Injury Related to Vaccine Administration
(“SIRVA”), as defined in the Vaccine Injury Table, following administration of an influenza
vaccine she received on November 21, 2017. Petition at 1. On October 16, 2023, the Special
Master issued a Ruling on Entitlement finding petitioner entitled to compensation. ECF No. 55.
I. Items of Compensation
A. Pain and Suffering
Respondent proffers that petitioner should be awarded $72,500.00 in pain and suffering.
See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees.
B. Past Unreimbursable Expenses
Evidence supplied by petitioner documents that she incurred past unreimbursable
expenses related to her vaccine-related injury. Respondent proffers that petitioner should be

Case 1:20-vv-00873-UNJ Document 76 Filed 10/08/24 Page 4 of 5
awarded past unreimbursable expenses in the amount of $1,204.50. See 42 U.S.C. § 300aa-
15(a)(1)(B). Petitioner agrees.
These amounts represent all elements of compensation to which petitioner is entitled
under 42 U.S.C. § 300aa-15(a). Petitioner agrees.
II. Form of the Award
Petitioner is a competent adult. Evidence of guardianship is not required in this case.
Respondent recommends that the compensation provided to petitioner should be made through a
lump sum payment as described below and requests that the Special Master’s decision and the
Court’s judgment award the following1: a lump sum payment of $73,704.50, in the form of a
check payable to petitioner.
III. Summary of Recommended Payments Following Judgment
Lump sum payable to petitioner, Elaine Montana: $73,704.50
Respectfully submitted,
BRIAN M. BOYNTON
Principal Deputy Assistant Attorney General
C. SALVATORE D’ALESSIO
Director
Torts Branch, Civil Division
HEATHER L. PEARLMAN
Deputy Director
Torts Branch, Civil Division
ALEXIS B. BABCOCK
Assistant Director
Torts Branch, Civil Division
1 Should petitioner die prior to entry of judgment, the parties reserve the right to move the Court
for appropriate relief. In particular, respondent would oppose any award for future lost earnings
and future pain and suffering.
2

Case 1:20-vv-00873-UNJ Document 76 Filed 10/08/24 Page 5 of 5
/s/ Matthew L. Murphy
MATTHEW L. MURPHY
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
(202) 598-3895
matthew.murphy@usdoj.gov
DATED: September 13, 2024
3