VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-00569
Package ID: USCOURTS-cofc-1_21-vv-00569
Petitioner: Michael Durbin
Filed: 2021-01-11
Decided: 2023-04-24
Vaccine: influenza
Vaccination date: 2020-09-22
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Michael Durbin filed a petition on January 11, 2021, seeking compensation under the National Vaccine Injury Compensation Program. He alleged that he suffered a shoulder injury related to vaccine administration (SIRVA) from an influenza vaccine received on September 22, 2020. Petitioner was represented by Jonathan J. Svitak of Shannon Law Group, P.C. The respondent was the Secretary of Health and Human Services, represented by Heather L. Pearlman of the U.S. Department of Justice. Initially, Mr. Durbin's petition included an affidavit stating he expected his shoulder pain to continue for longer than six months. The court required additional documents, and Petitioner filed some medical records on May 7, 2021, and another set on October 17, 2022. Before filing the current motion, Petitioner sought an extension to obtain more medical records. On April 12, 2023, Petitioner filed a motion for a decision to dismiss his own petition, stating that an investigation of the facts and science supporting his case had demonstrated he would be unable to prove entitlement to compensation. Chief Special Master Brian H. Corcoran noted that to receive compensation, a petitioner must prove either a "Table Injury" or that a non-Table injury was actually caused by a listed vaccine. Petitioner alleged a Table claim for SIRVA. The Special Master observed that compensation cannot be based solely on the petitioner's claims; it must be supported by medical records or a physician's opinion. Furthermore, all petitioners must establish the severity requirement, meaning the injury persisted for more than six months, caused death, or resulted in inpatient hospitalization and surgical intervention. The Special Master found that none of the submitted medical records indicated the shoulder injury persisted for more than six months or required surgical intervention. Additionally, the affidavit filed by Petitioner was submitted less than five months after the injury, thus not supporting the claim of the injury persisting for more than six months. As Petitioner failed to submit sufficient evidence to establish that his shoulder injury persisted for more than six months and admitted he could not establish entitlement to compensation, the case was dismissed for insufficient proof. The decision was issued by Chief Special Master Brian H. Corcoran on April 24, 2023.

Theory of causation field:
Petitioner Michael Durbin alleged a shoulder injury related to vaccine administration (SIRVA) from an influenza vaccine received on September 22, 2020. Petitioner claimed the injury persisted for longer than six months, fitting the Vaccine Injury Table criteria for SIRVA. However, Petitioner later filed a motion to dismiss, stating he could not prove entitlement to compensation. The Special Master, Chief Special Master Brian H. Corcoran, noted that the submitted medical records did not indicate the injury persisted for more than six months, nor did the Petitioner's affidavit, filed less than five months post-vaccination, support this duration. The public decision does not describe the specific mechanism of injury, expert testimony, or detailed clinical findings beyond the duration of the injury. Petitioner failed to establish the severity requirement that the injury persisted for more than six months, resulting in dismissal for insufficient proof. The case was dismissed on April 24, 2023. Petitioner was represented by Jonathan J. Svitak, and Respondent by Heather L. Pearlman.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_21-vv-00569-0
Date issued/filed: 2023-05-23
Pages: 2
Docket text: PUBLIC DECISION (Originally filed: 4/24/2023) regarding 27 DECISION of Special Master. Signed by Chief Special Master Brian H. Corcoran. (abs) Service on parties made.
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Case 1:21-vv-00569-UNJ Document 28 Filed 05/23/23 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-569V
UNPUBLISHED
MICHAEL DURBIN,
Chief Special Master Corcoran
Petitioner,
v. Filed: April 24, 2023
SECRETARY OF HEALTH AND Motion for decision; Dismissal;
HUMAN SERVICES, influenza (“flu”) vaccine; shoulder
injury related to vaccine
Respondent. administration (“SIRVA”)
Jonathan J. Svitak, Shannon Law Group, P.C., Woodridge, IL, for Petitioner.
Heather L. Pearlman, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION1
On January 11, 2021, Michael Durbin filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa—10 through 34,2
(the “Vaccine Act”). Petitioner alleged that he suffered a shoulder injury related to
vaccine administration (“SIRVA”) from an influenza vaccine he received on September
22, 2020. ECF No. 1.
On April 12, 2023, Petitioner filed a motion for a decision dismissing the petition.
ECF No. 26. For the reasons set forth below, Petitioner’s motion is GRANTED, and this
case is DISMISSED.
Petitioner filed an affidavit with the petition which attested that he “expected [his
shoulder pain] to continue for longer than six (6) months.” Exhibit 1 ¶ 17. The PAR Initial
Order required Petitioner to file additional statutorily required documents. ECF No. 5.
On May 7, 2021, Petitioner filed some medical records. ECF No. 10. Petitioner filed one
additional set of medical records on October 17, 2022. ECF No. 21. Before filing the
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), 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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).

Case 1:21-vv-00569-UNJ Document 28 Filed 05/23/23 Page 2 of 2
present motion for a decision, Petitioner most recently moved for an extension of time to
obtain more medical records. ECF No. 25.
On April 12, 2023, Petitioner filed a motion for a decision dismissing the petition
stating that “an investigation of the facts and science supporting his case has
demonstrated to petitioner that he will be unable to prove that he is entitled to
compensation in the Vaccine Program.” ECF No. 26 ¶ 1.
To receive compensation under the National Vaccine Injury Compensation
Program, a petitioner must prove either 1) that the vaccinee suffered a “Table Injury” –
i.e., an injury falling within the Vaccine Injury Table – corresponding to one of the listed
vaccines, or 2) that the vaccinee suffered an injury not on the Table that was actually
caused by a listed vaccine. See §§ 300aa—13(a)(1)(A) and 11(c)(1). Petitioner alleged
a Table claim, i.e., that his shoulder injury following the influenza vaccination fit the
Table criteria for a SIRVA.
Under the Vaccine Act, a petitioner may not receive compensation based solely
on the petitioner’s claims alone. Rather, the petition must be supported by either
medical records or by the opinion of a competent physician. § 300aa—13(a)(1). All
petitioners must establish the severity requirement with evidence that the vaccine
related injury (1) persisted for more than six months, (2) caused the vaccinee’s death, or
(3) resulted in inpatient hospitalization and surgical intervention. 42 U.S.C. § 300aa—
11(c)(1)(D)(i). None of the medical records submitted indicate that Petitioner’s shoulder
injury persisted for more than six months or that the injury required surgical intervention.
Additionally, because Petitioner’s affidavit was submitted less than five months after the
shoulder injury, not even the affidavit supports Petitioner’s shoulder injury persisting for
more than six months.
Petitioner has not submitted sufficient evidence to establish that his shoulder
injury persisted for more than six months. Moreover, Petitioner admitted in his motion
for a decision that he will not be able to establish entitlement to compensation.
Thus, Petitioner has failed to establish entitlement to compensation in the Vaccine
Program. This case is dismissed for insufficient proof. The clerk shall enter
judgment accordingly.3
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3 If Petitioner wishes to bring a civil action, he must file a notice of election rejecting the judgment
pursuant to § 21(a) “not later than 90 days after the date of the court’s final judgment.”
2