VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01641
Package ID: USCOURTS-cofc-1_20-vv-01641
Petitioner: William Plummer, Jr.
Filed: 2020-10-23
Decided: 2023-11-30
Vaccine: influenza
Vaccination date: 2019-10-05
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
William Plummer, Jr. filed a petition alleging he suffered a shoulder injury related to vaccine administration (SIRVA) as a result of an influenza vaccine he received on October 5, 2019. The case was initially processed as a Table claim, meaning the injury was presumed to be vaccine-related if it met certain criteria, including onset within 48 hours of vaccination. However, the respondent argued that the petitioner's medical records did not demonstrate onset within this timeframe. The court reviewed medical records and affidavits, noting that the first medical record documenting shoulder pain to a physician was 48 days post-vaccination, and that record stated onset occurred three days after vaccination. Subsequent medical records described the pain as having an 'insidious onset' without mention of the vaccine. While the petitioner asserted immediate pain, the court found this testimony less persuasive than the contemporaneous medical records. Ultimately, the court determined that the petitioner failed to preponderantly establish that his pain onset occurred within the 48-hour window required for a Table SIRVA claim. Therefore, the Table SIRVA claim was dismissed. The court noted that a non-Table claim might still be viable and urged the parties to attempt settlement before the case would be transferred out of the Special Processing Unit.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_20-vv-01641-0
Date issued/filed: 2023-11-30
Pages: 6
Docket text: PUBLIC ORDER/RULING (Originally filed: 10/23/2023) regarding 24 Findings of Fact & Conclusions of Law, Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made.
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Case 1:20-vv-01641-UNJ Document 26 Filed 11/30/23 Page 1 of 6
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1641V
UNPUBLISHED
WILLIAM PLUMMER, JR., Chief Special Master Corcoran
Petitioner, Filed: October 23, 2023
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Leigh Finfer, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Tyler King, U.S. Department of Justice, Washington, DC, for Respondent.
FINDINGS OF FACT AND CONCLUSIONS OF LAW DISMISSING TABLE CLAIM1
On November 23, 2020, William Plummer, Jr., filed a petition for compensation
under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2
(the “Vaccine Act”). Petition, ECF No. 1. On February 4, 2021, he filed an amended
petition containing the correct date of vaccination. Amended Petition, ECF No. 12.
Petitioner alleges that he suffered a shoulder injury related to vaccine administration
(“SIRVA”) as a result of an influenza (“flu”) vaccine administered on October 5, 2019.
Amended Petition at 1. The case was assigned to the Special Processing Unit (“SPU”) of
the Office of Special Masters.
1. Because this unpublished opinion contains a reasoned explanation for the action in this case, 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 opinion will be available to anyone with access to the internet. In accordance
with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information,
the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that
the identified material fits within this definition, I will redact such material from public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).

Case 1:20-vv-01641-UNJ Document 26 Filed 11/30/23 Page 2 of 6
On July 20, 2021, Petitioner was ordered to show cause why this case should not
be dismissed, because it appeared that the onset of his symptoms did not meet the
Table’s requirements. ECF No. 18. In reaction, Petitioner filed his response (“Response”)
on September 3, 2021. ECF No. 21. Respondent filed his reply (“Reply”) on October 4,
2021. ECF No. 22.
For the reasons discussed below, I find Petitioner cannot establish onset within the
48 hours following the administration of vaccination, as required for a Table SIRVA. This
leaves a causation-in-fact claim that, if not promptly settled, will require adjudication
outside of SPU.
I. Relevant Procedural History
As noted, the case was filed in the fall of 2020. ECF No. 1. On April 2, 2021,
Respondent filed a status report indicating that, based on his counsel’s review of the file,
it did not appear that Petitioner was capable of establishing a Table SIRVA injury. ECF
No. 13. In particular, Respondent claimed that “[P]etitioner’s most contemporaneous
medical records potentially fail to demonstrate that the onset of his shoulder pain occurred
within forty-eight hours of vaccination.” Id. at 1. Respondent further argued that although
Petitioner submitted written testimony averring receipt of the flu vaccine on October 14,
2019, “the amended petition and [P]etitioner’s medical records indicate that [he] was
vaccinated on October 5, 2019.” Id. at 2.
I issued an Order to Show Cause directing Petitioner to file a response to
Respondent’s status report explaining why his Table claim should not be dismissed (and
also how any non-Table claim could be substantiated, given the onset of his symptoms).
ECF No. 18. The parties have now briefed the matter as indicated above, and this case
is now ripe for a determination.
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(c)(10)(ii).
III. Authority
Pursuant to Section 13(a)(1)(A), a petitioner must prove, by a preponderance of
the evidence, the matters required in the petition by Section 11(c)(1). I have discussed
2

Case 1:20-vv-01641-UNJ Document 26 Filed 11/30/23 Page 3 of 6
the factors to be considered in determining whether a petitioner has met their burden in
several recent decisions. I fully adopt and hereby incorporate my prior discussion in
section III of the following decisions: Marrow v. Sec’y of Health & Hum. Servs., No. 17-
1964V, 2020 WL 3639775 (Fed. Cl. Spec. Mstr. June 2, 2020); Robinson v. Sec’y of
Health & Hum. Servs., No. 17-1050V, 2020 WL 3729432 (Fed. Cl. Spec. Mstr. June 5,
2020); Decoursey v. Sec’y of Health & Hum. Servs., No.18-870V, 2020 WL 4673228
(Fed. Cl. Spec. Mstr. July 9, 2020).
In sum, 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 the petitioner’s injury or illness that is contained in a medical record.
Section 13(b)(1). Moreover, a special master may find that the first symptom or
manifestation of onset of an injury occurred “within the time period described in the
Vaccine Injury Table even though the occurrence of such symptom or manifestation was
not recorded or was incorrectly recorded as having occurred outside such period.” Section
13(b)(2). “Such a finding may be made only upon demonstration by a preponderance of
the evidence that the onset [of the injury] . . . did in fact occur within the time period
described in the Vaccine Injury Table.” Id.
IV. Findings of Fact
I make the following finding regarding onset after a complete review of the record
to include all medical records, affidavits, and briefing by the parties. Specifically:
• Petitioner was administered a flu vaccine in his left arm on October 5, 2019 at Costco
Pharmacy. Ex. 1.
• In his affidavit, signed on November 13, 2020, Petitioner erroneously states that that
the flu vaccine was administered on October 14, 2019. Ex. 5 at 1. In his amended
affidavit, signed on April 15, 2021, Petitioner avers that the vaccine was administered
on October 5, 2019, and that he “experienced significant pain” in his left shoulder
immediately following vaccination. Ex. 6 at 1.
• In an August 25, 2021 affidavit, Petitioner’s wife, Leticia Llamas, avers that she
received a flu vaccine with her husband on October 5, 2019. Ex. 7 at 1. Ms. Llamas
states that although they both experienced immediate soreness, her own symptoms
subsided while “[d]ays and weeks passed and [Petitioner’s] pain persisted . . . he told
his provider . . . that he still had pain on the third day post-vaccination.” Ex. 7 at 1.
• On November 22, 2019 (48 days post-vaccination), Petitioner attended a medical
appointment with Dr. Phillip Chan at Optum Primary Care-Glenora “for [l]eft shoulder
3

Case 1:20-vv-01641-UNJ Document 26 Filed 11/30/23 Page 4 of 6
pain x5weeks after receiving a flu shot.” Ex. 2 at 11-12. The medical note indicates
that Petitioner “ha[d] flu vaccination in middle of October, [three] days later he has left
shoulder pain radiated down form [sic] left shoulder to left elbow.” Id. at 11 (emphasis
added).3
• Three months later, Petitioner saw Dr. Leslie K. Shokes at Caduceus Medical Group
on February 6, 2020, for left shoulder pain. Ex. 3 at 12-13. Dr. Shokes noted that
Petitioner’s symptoms “developed spontaneously, and developed approximately [four]
months ago.” Id. at 12. Petitioner was assessed with impingement syndrome of the
left shoulder, paresthesia of arm, and limited range of motion. Id. at 13. There is no
indication in this record that Petitioner’s October 5, 2019 flu vaccine was discussed.
• Petitioner returned to Caduceus Medical Group on February 29, 2020, for an MRI of
his left shoulder and cervical spine Ex. 3 at 14-19. The left shoulder MRI revealed (a)
a focal full-thickness tear of the rotator cuff involving the anterior distal fibers of the
supraspinatus tendon; (b) tendonitis of the untorn portions of the supraspinatus
tendon; (c) diastasis of the left acromioclavicular joint associated with mild arthrosis
of the left acromioclavicular joint; (d) synovitis of the tendon sheath of the long head
biceps; and (e) glenohumeral joint effusion. Id. at 15.
• Petitioner returned to Dr. Shokes on March 6, 2020 to review his MRIs. Ex. 3 at 20-
21. The medical note again reflects that Petitioner’s symptoms developed
“spontaneously.” Id. at 20. In addition to being assessed with “paresthesia of arm” and
“[l]imited range of motion,” it was also determined that Petitioner had a herniated disc
and a “[t]raumatic complete tear of left rotator cuff.” Id. at 21. Petitioner’s October 5,
2019 flu vaccine is not discussed in this record.
• On June 15, 2020, Petitioner underwent surgery to repair his left rotator cuff. Ex. 3 at
40.
• Petitioner attended post-operative appointments with Dr. Shokes on June 24 and July
1, 2020. Ex. 3 at 24-27. There is no indication that Petitioner’s October 5, 2019 flu
vaccine was discussed during either appointment.
3 In a footnote, Respondent argues that “[P]etitioner’s description of pain that ‘radiated down from the left
shoulder to [the] left elbow’ is another reason that his Table claim fails. Response at 4, n. 3 (citing 42 C.F.R.
§ 100.3(c)(10)(iii)). However, this point was not previously raised, and Petitioner was not given an
opportunity to address this argument. While this ruling does not turn on this particular matter, I note that
Petitioner’s description of pain that radiated to his elbow appear to have been incidental to his left shoulder
pain, and that his post-vaccination treatment focused on his shoulder.
4

Case 1:20-vv-01641-UNJ Document 26 Filed 11/30/23 Page 5 of 6
• Petitioner went to his third post-operative appointment on July 22, 2020. Ex. 3 at 35-
36. Despite reporting shoulder “tightness,” Dr. Shokes noted that he was “otherwise
doing well.” Id. at 35. There is no indication that Petitioner’s October 5, 2019 flu
vaccine was discussed.
• Petitioner attended an initial physical therapy evaluation on July 24, 2020. Ex. 3 at 37-
39. Petitioner reported “experienc[ing] an onset of LEFT SHOULDER PAIN beginning
approximately October 2019 with insidious onset.” Id. at 37. There is no indication that
Petitioner’s October 5, 2019 flu vaccine was discussed.
• By September 17, 2020, Petitioner had completed a total of eight sessions of physical
therapy. Ex. 3 at 37-39, 41-46, 51-59.
There are several reasons to doubt Petitioner can establish onset consistent with
the Table’s forty-eight hour requirement. The initial medical note documenting Petitioner’s
first report of shoulder pain to Dr. Chan (48 days after vaccination) reflects that Petitioner
“ha[d] flu vaccination in middle of October, [three] days later he has shoulder pain.” Ex. 2
at 11. In addition to an incorrect approximation of when the vaccine was administered,4
this direct statement places onset outside of the timeframe specified for a Table SIRVA.
Moreover, all subsequent medical records reflect that Petitioner’s pain “developed
spontaneously,” without mention of vaccination at all. See, e.g., Ex. 3 at 12, 20. And
although a physical therapy note reflects Petitioner’s report of left shoulder pain that
began “approximately [in] October 2019,” it is noted that the onset of his symptoms was
insidious. See Ex. 3 at 37.
While Petitioner does not dispute telling Dr. Chan that his shoulder pain began
“[three] days” after vaccination, he argues that this statement should be interpreted to
mean that “the particular type of pain described was present three (3) days post-
vaccination.” Response at 2 (emphasis in original). However, Petitioner also points to his
wife’s affidavit (signed almost two years after vaccination) in which she not only
corroborates his report of an immediate onset, but also asserts that Petitioner did, in fact,
tell his physician that “he still had pain on the third day post-vaccination.” In addition to
not aligning with Petitioner’s recollection of his report to Dr. Chan, it is not clear whether
she was present during this examination. There are situations in which compelling
testimony may be more persuasive than written records, such as where records are
deemed to be incomplete or inaccurate. Campbell v. Sec'y of Health & Human Servs., 69
Fed. Cl. 775, 779 (2006) (“like any norm based upon common sense and experience, this
rule should not be treated as an absolute and must yield where the factual predicates for
4 Petitioner also cited an incorrect date of administration in the petition and in his first affidavit. See Petition
at 1; Ex. 5 at 1 (stating that the flu vaccine was administered on October 14, 2019).
5

Case 1:20-vv-01641-UNJ Document 26 Filed 11/30/23 Page 6 of 6
its application are weak or lacking”); Lowrie v. Sec'y of Health & Human Servs., No. 03-
1585V, 2005 WL 6117475, at *19 (Fed. Cl. Spec. Mstr. Dec. 12, 2005) (“[w]ritten records
which are, themselves, inconsistent, should be accorded less deference than those which
are internally consistent”) (quoting Murphy v. Sec'y of Health & Human Servs., 23 Cl. Ct.
726, 733 (1991), aff'd per curiam, 968 F.2d 1226 (Fed. Cir. 1992)). But here, Petitioner’s
witness statement does not merit more weight than a specific and far closer-in-time
record.
Accordingly, I find Petitioner has not preponderantly established that the onset of
his pain occurred within 48 hours of vaccination – meaning that he cannot proceed in this
action with a Table SIRVA Claim. However, I also note that the other Table indicia of a
valid SIRVA do seem to exist. Because a non-Table claim based on the same overall set
of records might be viable, the parties are urged to make one final, brief effort at
settlement (although the claim will thereafter be transferred out of SPU if it is not resolved
in short order).
V. Scheduling Order
Petitioner has not preponderantly established that onset of his pain occurred within
48 hours of vaccination. Accordingly, Petitioner’s Table SIRVA claim is dismissed. The
parties shall file a settlement status report on or before Wednesday, November 22,
2023. The matter shall be transferred thereafter if the parties do not report significant
progress in reaching an agreement at that time.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
6