VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_22-vv-01329
Package ID: USCOURTS-cofc-1_22-vv-01329
Petitioner: Marcus Howard
Filed: 2022-09-19
Decided: 2024-09-26
Vaccine: Tdap
Vaccination date: 2019-09-20
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Marcus Howard filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging he suffered a shoulder injury related to vaccine administration (SIRVA) from a Tdap vaccine received on September 20, 2019. He sought compensation, but the respondent argued that he failed to establish that his injury resulted in residual effects lasting more than six months, a requirement for entitlement. The medical records indicated that Mr. Howard sought treatment for his shoulder pain shortly after vaccination, with intensive treatment for about one month. However, he did not seek further medical care for his shoulder for nearly three years. During this significant gap in treatment, which spanned the required six-month period, Mr. Howard attended multiple medical appointments for other conditions without mentioning his shoulder. The court found that the evidence, primarily Mr. Howard's affidavit, was insufficient to establish that his condition persisted for the statutory six-month duration. Consequently, the court determined that the case lacked a reasonable basis for filing, especially given the clear deficiencies in the medical record regarding the severity requirement. The court denied the motion for attorney's fees and costs and dismissed the petition for failure to meet the severity requirement.

Theory of causation field:
unclear

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_22-vv-01329-0
Date issued/filed: 2024-09-26
Pages: 8
Docket text: PUBLIC DECISION (Originally filed: 08/05/2024) regarding 36 DECISION of Special Master, Signed by Chief Special Master Brian H. Corcoran. (ppa) Service on parties made.
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Case 1:22-vv-01329-UNJ Document 38 Filed 09/26/24 Page 1 of 8
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 22-1329V
MARCUS HOWARD, Chief Special Master Corcoran
Petitioner, Filed: August 5, 2024
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Jessica Ann Wallace, Siri & Glimstad, LLP, Aventura, FL, for Petitioner.
Benjamin Patrick Warder, U.S. Department of Justice, Washington, DC, for
Respondent.
DECISION (A) DENYING MOTION FOR ATTORNEY’S FEES
AND COSTS, AND (B) DISMISSING PETITION1
On September 19, 2022, Marcus Howard 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 he suffered a shoulder injury related to vaccine
administration (“SIRVA”) resulting from a tetanus diphtheria acellular pertussis (“Tdap”)
vaccine received on September 20, 2019. Petition at 1. The case was assigned to the
Special Processing Unit (“SPU”) of the Office of Special Masters.
The case was activated on February 23, 2023 (ECF No. 16). On December 11,
2023, Respondent filed his Rule 4(c) Report and a motion to dismiss (ECF Nos. 28, 29).
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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C.
§300aa (2018).

Case 1:22-vv-01329-UNJ Document 38 Filed 09/26/24 Page 2 of 8
Respondent argued that Petitioner had failed to establish by preponderant evidence that
he suffered the residual effects of his injury for more than six months, as required by the
Vaccine Act. Respondent’s Report at *9. Instead, the record revealed Petitioner was
treated for a brief period of time well short of the severity cut-off, and then delayed
addressing the shoulder issues for several years thereafter. Id. at *9-10.
Petitioner was directed to respond to Respondent’s dismissal motion by February
12, 2024. Scheduling Order (NON PDF), issued Dec. 11, 2023. Petitioner twice sought,
and received, additional time to respond (ECF Nos. 30, 31). Then, on April 18, 2024,
Petitioner’s counsel filed a motion to withdraw from the matter, along with the present
motion for interim attorney’s fees and costs, and a statement of Petitioner’s personal costs
(ECF Nos. 32-34). On April 30, 2024, Respondent responded to the motion for interim
fees and costs (ECF No. 35). The matter is now ripe for resolution.
I. Applicable Legal Standards
Motivated by a desire to ensure that petitioners have adequate assistance from
counsel when pursuing their claims, Congress determined that attorney’s fees and costs
may be awarded even in some unsuccessful claims. H.R. REP. NO. 99-908, at 22 reprinted
in 1986 U.S.C.C.A.N. 6344, 6363; see also Sebelius v. Cloer, 133 S. Ct. 1886, 1895
(2013) (discussing this goal when determining that attorneys’ fees and costs may be
awarded even when the petition was untimely filed). This is consistent with the fact that
“the Vaccine Program employs a liberal fee-shifting scheme.” Davis v. Sec’y of Health &
Human Servs., 105 Fed. Cl. 627, 634 (2012). Indeed, it may be the only federal fee-
shifting statute that permits unsuccessful litigants to recover fees and costs.
However, Congress did not intend that every losing petition be automatically
entitled to attorney’s fees. Perreira v. Sec’y of Health & Human Servs., 33 F.3d 1375,
1377 (Fed. Cir. 1994). The special master or court may award attorney’s fees and costs
to an unsuccessful claimant only if “the petition was brought in good faith and there was
a reasonable basis for the claim for which the petition was brought.” Section 15(e)(1).
Reasonable basis is a prerequisite to a fee award for unsuccessful cases – but
establishing it does not automatically require an award, as special masters are still
empowered by the Act to deny or limit fees. James-Cornelius on behalf of E. J. v. Sec'y
of Health & Human Servs., 984 F.3d 1374, 1379 (Fed. Cir. 2021) (“even when these two
requirements are satisfied, a special master retains discretion to grant or deny attorneys’
fees”).
As the Federal Circuit has explained, whether a discretionary fees award is
appropriate involves two distinct inquiries, but only reasonable basis is at issue herein.3
3 Claimants must also establish that the petition was brought in good faith. Simmons v. Sec’y of Health &
Human Servs., 875 F.3d 632, 635 (Fed. Cir. 2017) (quoting Chuisano v. Sec’y of Health & Human Servs.,
116 Fed. Cl. 276, 289 (2014)). “[T]he ‘good faith’ requirement . . . focuses upon whether petitioner honestly
believed he had a legitimate claim for compensation.” Turner v. Sec’y of Health & Human Servs., No. 99-
2

Case 1:22-vv-01329-UNJ Document 38 Filed 09/26/24 Page 3 of 8
Reasonable basis is deemed “an objective test, satisfied through objective evidence.”
Cottingham v. Sec’y of Health & Human Servs., 971 F.3d 1337, 1344 (Fed. Cir. 2020)
(“Cottingham I”). The reasonable basis requirement looks “not at the likelihood of success
[of a claim] but more to the feasibility of the claim.” Turner, 2007 WL 4410030, at *6
(quoting Di Roma v. Sec’y of Health & Human Servs., No. 90-3277V, 1993 WL 496981,
at *1 (Fed. Cl. Spec. Mstr. Nov. 18, 1993)). The Federal Circuit recently explained “that a
reasonable basis analysis is limited to objective evidence, and that subjective
considerations, such as counsel’s subjective views on the adequacy of a complaint, do
not factor into a reasonable basis determination.” James-Cornelius, 984 F.3d at 1379.
Although easier to meet than the preponderant standard required for
compensation, “courts have struggled with the nature and quantum of evidence
necessary to establish a reasonable basis.” Wirtshafter v. Sec’y of Health & Human
Servs., 155 Fed. Cl. 665, 671 (Fed. Cl. 2021). “[I]t is generally accepted that ‘a petitioner
must furnish some evidence in support of the claim.’” Id. Citing the prima facie elements
of a successful claim described in Section 11(c)(1), the Federal Circuit recently instructed
that the level of objective evidence sufficient for a special master to find reasonable basis
should be “more than a mere scintilla but less than a preponderance of proof.” Cottingham
I, 971 F.3d at 1345-46. “This formulation does not appear to define reasonable basis so
much as set its outer bounds.” Cottingham v. Sec’y of Health & Human Servs., 159 Fed.
Cl. 328, 333, (Fed. Cl. 2022), aff’d without op., slip op., 2023 WL 754047 (Fed. Cir. Nov.
14, 2023) (“Cottingham II”). “[T]he Federal Circuit’s statement that a special master ‘could’
find reasonable basis based upon more than a mere scintilla does not mandate such a
finding.” Cottingham II, 159 Fed. Cl. at 333 (citing Cottingham I, 971 F.3d at 1346).
Furthermore, the issue of reasonable basis is not a static inquiry. Reasonable
basis may exist when a claim is filed but cease to exist as further evidence is presented.
Perreira, 33 F.3d at 1377. In Perreira, the Federal Circuit affirmed a special master’s
determination that reasonable basis was lost after Petitioner’s “expert opinion, which
formed the basis of the claim, was found to be unsupported by either medical literature
or studies.” Id. at 1376.
At issue here, Vaccine Act Section 11(c)(1)(D)(i) requires the establishment of an
injury and residual effects lasting for over six months after the date of vaccination. This is
a threshold requirement for entitlement. Black v. Sec’y of Health & Human Servs., 33 Fed.
Cl. 546, 550 (1995) (reasoning that the “potential petitioner” must not only make a prima
facie case, but clear a jurisdictional threshold, by “submitting supporting documentation
which reasonably demonstrates that a special master has jurisdiction to hear the merits
of the case”), aff’d, 93 F.3d 781 (Fed. Cir. 1996) (internal citations omitted).
0544V, 2007 WL 4410030, at *5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007). But good faith is not disputed herein,
and I do not ascertain evidence in the record calling it into question.
3

Case 1:22-vv-01329-UNJ Document 38 Filed 09/26/24 Page 4 of 8
II. Review of Submitted Evidence
Petitioner received the Tdap vaccine alleged as causal in his left deltoid on
September 20, 2019. Ex. 2 at 22-23.4 The Tdap was given due to concerns about body
fluid exposure after Petitioner was stuck with a needle with an unknown substance in the
syringe while working on a car. Id. at 10.
Ten days later (September 30, 2019), Petitioner saw Dr. Gavin Gordon at the
Everett Clinic. Ex. 4 at 2. Petitioner reported that at work on September 19, 2019, he
reached under the seat of a car and was stuck by a needle. Id. The next day he was given
a Tdap vaccine high on his left shoulder. Id. Petitioner told Dr. Gordon he was having
significant pain and loss of motion in his left shoulder from the Tdap vaccination. Id. On
examination, his left shoulder range of motion was limited to 90 degrees in flexion and
abduction. Id. at 3. Petitioner was assessed with rotator cuff tendonitis and acute bursitis
of the left shoulder, given oxycodone-acetaminophen, and referred to occupational
medicine. Id.
Petitioner returned to Dr. Gordon a week later (October 7, 2019). Ex. 4 at 4. His
left shoulder pain was worsening. Id. at 5. He was given a cortisone injection in the
subacromial space, which provided partial pain relief. Id. at 6.
Petitioner saw Dr. Gordon again on October 14, 2019, reporting that the cortisone
had helped for two and a half days, but his pain had now returned to its previous levels.
Ex. 4 at 7. An ultrasound showed that his rotator cuff was intact, with no calcific tendonitis,
fluid collections, or partial tears, although a hyperechoic signal was documented. Id. at 8.
He was given amitriptyline for chronic pain and instructed to follow up with occupational
medicine and work on range of motion to avoid a frozen shoulder. Id. at 9.
The following week (on October 21, 2019), Petitioner returned to Dr. Gordon,
complaining that his left arm injury remained painful and was interrupting his sleep. Ex. 4
at 10. He was “getting a little more used to it” and sleeping a little better. Id. On
examination, he had pain with flexion and abduction past 60 degrees. Id. at 11. Dr.
Gordon prescribed amitriptyline and indomethacin. Id.
The next day, October 22, 2019, Petitioner saw Dr. Christopher Hardy. Ex. 4 at 12.
Petitioner continued to have persistent left shoulder pain with movement of his arm away
from his body and overhead reaching. Id. On examination, he was tender to palpation in
his lateral deltoid and subacromial area. Id. at 14. He had positive Neer and Speeds
impingement signs, as well as reduced range of motion. Id. He was assessed with
capsulitis vs tendinitis, secondary to SIRVA. Id. at 15. Dr. Hardy recommended physical
therapy (“PT”) and surveillance. Id.
4 Because most pages in Exhibits 2, 4, 5, and 6 are not paginated, the page number references in this
decision refer to the page numbers added by CM/ECF to the PDF headers.
4

Case 1:22-vv-01329-UNJ Document 38 Filed 09/26/24 Page 5 of 8
The following day (October 23, 2019), Petitioner underwent a PT evaluation for left
shoulder pain. Ex. 6 at 3. He stated he received a Tdap vaccine after a needlestick injury
at work, and the Tdap vaccine was given too high on his shoulder, resulting in significant
pain. Id. He rated his pain between three and nine out of ten. Id. He was assessed with
adhesive capsulitis. Id. at 4. PT exercises were not done that day. Id. A plan was
established for Petitioner to attend PT twice a week for six weeks. Id. at 5. However, the
record does not include any further PT records.
On February 14, 2020, Petitioner saw nurse practitioner (“NP”) Christine
Hendrickson at the Everett Clinic for fatigue with a low grade fever. Ex. 5 at 19. On
examination, his extremities were normal, with no cyanosis or edema. Id. at 21. He was
assessed with cough, fever, and an upper respiratory infection. Id. The record does not
document any left arm or shoulder problems.
On February 19, 2020, Petitioner saw a different NP at the Everett Clinic
requesting a note to clear him to return to work. Ex. 5 at 27. He had gotten worse over
the weekend, but was now improved. Id. A note was provided. Id. at 28. The record is
silent on any concerns with his left arm or shoulder.
Petitioner returned to the Everett Clinic on May 20, 2020 (now more than six
months from the September 2019 vaccination) for right knee pain. Ex. 5 at 25. A
musculoskeletal examination documented only problems with his right knee, and was
silent on his left arm and shoulder. Id. at 31. He was assessed with patellar bursitis of his
right knee, and given naproxen and prednisone. Id. There is no mention of his left arm or
shoulder.
Petitioner saw Dr. Arnold Heng at the Everett Clinic on May 26, 2020 for right knee
pain as well as abdominal upset and headache. Ex. 5 at 37. His right knee examination
revealed mild to moderate edema and tenderness to his right patella. Id. at 39. He was
assessed with right anterior knee pain and prescribed nabumetone. Id. at 40. The record
does not mention his left arm or shoulder.
Petitioner returned to the Everett Clinic for right knee pain on June 1, 2020. Ex. 5
at 48. He was assessed with infrapatellar bursitis of the right knee, and referred to an
orthopedist. Id. at 51. The record is silent on concerns with his left arm or shoulder.
Petitioner saw Dr. Jared Anderson on June 9, 2020 for right knee pain. Ex. 5 at 53.
A detailed examination of his right knee was done, but the record does not indicate that
his left shoulder was examined or discussed. Id. at 55. He was assessed with patellar
tendonitis and given exercises to do. Id. at 56.
The record indicates that Petitioner was a “no show” on July 21 and August 7,
2020, with no indication of the reason for the appointments. Ex. 5 at 57-58. The next
medical record is from over two years later – nearly three years after he received the
Tdap vaccine alleged as causal, and three days before filing the petition in this case –
5

Case 1:22-vv-01329-UNJ Document 38 Filed 09/26/24 Page 6 of 8
when Petitioner returned to the Everett Clinic on September 16, 2022 complaining of left
shoulder pain. Id. at 58. Petitioner reported that he had an injury to his shoulder “a few
years ago,” with intermittent pain since his injury that had worsened in the past week. Id.
at 59. His symptoms were mild, but worse in the afternoon. Id. On examination, his left
shoulder had no gross deformity. Id. at 60. His acromioclavicular joint, greater tuberosity,
and bicipital groove were nontender, and he had active shoulder elevation to 90 degrees.
Id. He was assessed with left shoulder pain and right rotator cuff tendinosis.5 Id. at 60-61.
He was given amitriptyline and recommended to continue shoulder exercises. Id. at 61.
Petitioner filed an affidavit in support of his claim. Ex. 1. Petitioner states that he
felt immediate pain when he received the Tdap vaccine, which was administered higher
than he recalls with previous vaccines. Id. at ¶ 4. He opened a worker’s compensation
case after his on the job injury being stuck with a hypodermic needle, and the worker’s
compensation carrier agreed to pay for his medical treatment. Id. at ¶ 5.
Petitioner states that after an October 23, 2019 appointment with Dr. Gordon, he
began PT, and received PT treatment “[o]ver the course of the next month.” Ex. 1 at
¶¶ 10-11.6 He adds that he had one more follow up with Dr. Gordon on November 20,
2019.7 Id. at ¶ 11. However, the worker’s compensation carrier stopped paying his
medical expenses after only a few PT visits, having determined that his injury was
unrelated to his work injury. Id. He did not have health insurance and was unable to afford
continued treatment, and thus learned to live with the pain. Id. His pain gradually
improved, though he continued to experience some pain and loss of mobility. Id.
Petitioner again sought care on September 16, 2022 because his shoulder was
still bothering him. Ex. 1 at ¶ 12. He asserts that his shoulder injury “has lasted for more
than 6 months and I continue to suffer from this vaccine-related injury.” Id. at ¶ 13.
III. Reasonable Basis and Severity Analysis
Petitioner received the Tdap at issue in this case on September 20, 2019. Thus,
to satisfy the statutory severity requirement, he would need to demonstrate that his
symptoms continued until at least through late March 2020.
The record does support the existence of a SIRVA-like presentation, close in time
to vaccination. Petitioner sought care promptly and treated his shoulder pain intensively
for one month, attending five medical appointments in less than a month followed by a
5 The record does not indicate that Petitioner reported any problems with his right shoulder. Thus, the
reference to right – rather than left – rotator cuff tendonitis likely is a typo.
6 The record contains only one PT visit on October 23, 2019.
7 The record does not contain documentation of this appointment.
6

Case 1:22-vv-01329-UNJ Document 38 Filed 09/26/24 Page 7 of 8
PT evaluation on October 23, 2019 – just over a month after his September 20, 2019
Tdap vaccination.
After that, however, Petitioner did not seek care for his left shoulder until nearly
three years later. In the interim – and, importantly, spanning the relevant six month time
period – Petitioner sought care for other conditions six times, without ever mentioning any
concerns about his left shoulder. Such a record greatly undermines any contention that
Petitioner’s shoulder-related concerns persisted through this period.
The only evidence suggesting that Petitioner may have experienced residual
effects of his left shoulder injury through late March 2020 are conclusory statements in
his affidavit, plus a single medical record three years after his injury. However, these
records are insufficient to outweigh the aforementioned evidence. Petitioner’s affidavit
does not address why he did not mention shoulder pain at any of his six appointments
between February and June 2020, or provide any details on how his injury affected his
ability to engage in usual activities. His affidavit also does not address specifically whether
he experienced residual effects during the relevant time period or, if so, how he was able
to recall such specifics two and a half years later.8
Respondent asserted that this case is similar to Black v. Sec’y of Health & Human
Servs., No. 21-09V, 2023 WL 4446500 (Fed. Cl. Spec. Mstr. May 22, 2023) (finding
severity requirement not met where Petitioner treated for only three months, followed by
seventeen month gap in treatment). Respondent’s Report at *10-12. Respondent argued
that compared to Black, the present case involves a shorter initial treatment period (one
month versus three months) and a much longer treatment gap (35 months versus 17
months) – making dismissal even more appropriate in this case. Id. The only evidence
that would support a finding that the statutory severity requirement is satisfied is
Petitioner’s affidavit, and that a special master cannot make findings based on the claims
of a petitioner alone, unsubstantiated by medical records or medical opinion. Id. at *12
(citing Vaccine Act § 13(a)(1)).
Although Petitioner’s affidavit suggests that he continued PT for a month after his
October 2019 evaluation, and saw Dr. Gordon for his shoulder problem one more time on
November 20, 2019 (Ex. 1 at ¶ 11), there are not medical records documenting this care.
Even if such records had been filed, they would support, at best, a finding that Petitioner’s
condition lasted for two months – still far short of the statutory requirement.
The medical records thus demonstrate that Petitioner’s symptoms continued only
for just over one month. The evidence does not come close to supporting a finding that
Petitioner’s condition continued for six months, a threshold requirement to proceed in the
8 Petitioner signed the affidavit on October 19, 2022. Ex. 1 at 4.
7

Case 1:22-vv-01329-UNJ Document 38 Filed 09/26/24 Page 8 of 8
Vaccine Program. Accordingly, severity cannot be established – and this finding would
apply to any form of the claim, Table or causation-in-fact. This case is simply not tenable.
Under such circumstances, I cannot find that the case possessed sufficient
reasonable basis to have been filed. The severity deficiencies should have been evident
to counsel by review of the medical record – especially since the case was filed three
years after the vaccination event. In such circumstances, the Vaccine Act places the risk
of filing the claim on counsel, and does not allow an award of fees.
Conclusion
The Vaccine Act permits an award of reasonable attorneys’ fees and costs even
to an unsuccessful litigant as long as the litigant establishes the Petition was brought in
good faith and there was a reasonable basis for the claim for which the Petition was
brought. Section 15(e)(1). In this case, Petitioner has failed to provide evidence
establishing there was a reasonable basis for filing his claim.
Petitioner’s motion for interim attorneys’ fees and costs is therefore DENIED.
And the matter is DISMISSED for failure to meet the severity requirement. The motion to
withdraw as counsel is therefore MOOT.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk
of the Court SHALL ENTER JUDGMENT in accordance with the terms of this Decision.9
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
9 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment if (jointly or separately) they
file notices renouncing their right to seek review.
8