VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_23-vv-00411
Package ID: USCOURTS-cofc-1_23-vv-00411
Petitioner: Joanne Costello
Filed: 2023-03-24
Decided: 2026-03-25
Vaccine: influenza
Vaccination date: 2020-09-29
Condition: right shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 49426.91

AI-assisted case summary:
On March 24, 2023, Joanne Costello filed a petition alleging that an influenza vaccination administered on September 29, 2020 caused a right shoulder injury related to vaccine administration. The entitlement and damages decisions identify the case caption as Cunningham v. Secretary of HHS, but the petitioner's curated name remains Joanne Costello. She was 56 years old at vaccination.

Respondent opposed entitlement. The record showed that Ms. Costello received the flu vaccine intramuscularly in her right deltoid at a CVS pharmacy and alleged same-day right shoulder symptoms. Chief Special Master Brian H. Corcoran found entitlement on May 23, 2025, concluding that the record supported a Table SIRVA claim.

Damages were decided after briefing. The Special Master found the injury relatively modest compared with more severe SIRVA cases, noting limited proof of reduced range of motion and a clinical course that supported a lower award. On March 25, 2026, he awarded $49,426.91: $48,000.00 for actual pain and suffering and $1,426.91 to satisfy a State of Maryland Medicaid lien.

Theory of causation field:
Influenza vaccine on September 29, 2020, at age 56, causing right Table SIRVA; COMPENSATED. Respondent opposed entitlement; Chief SM Corcoran found Table SIRVA proven. Damages ruling found a relatively modest SIRVA course with limited ROM proof. Award $49,426.91 ($48,000 pain/suffering + $1,426.91 Maryland Medicaid lien). Petition filed March 24, 2023; entitlement May 23, 2025; damages March 25, 2026.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_23-vv-00411-0
Date issued/filed: 2025-07-01
Pages: 10
Docket text: PUBLIC ORDER/RULING (Originally filed: 05/23/2025) regarding 25 Ruling on Entitlement ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made.
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Case 1:23-vv-00411-UNJ Document 27 Filed 07/01/25 Page 1 of 10
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 23-0411V
JOANNE COSTELLO, Chief Special Master Corcoran
Petitioner, Filed: May 23, 2025
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Leigh Finfer, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Alyssa M. Petroff, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT1
On March 24, 2023, Joanne Costello 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 right shoulder injury related to
vaccine administration (“SIRVA”), a defined Table injury, after receiving an influenza
(“flu”) vaccine on September 29, 2020. Petition at 1, ¶ 1, 16.
The parties dispute whether Petitioner suffered any reduction in range of motion
(“ROM”). For the reasons discussed below, I find that Petitioner suffered at least a minimal
1 Because this Ruling 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 Ruling will be available to anyone with access to the internet. In accordance
with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information,
the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that
the identified material fits within this definition, I will redact such material from public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2018).

Case 1:23-vv-00411-UNJ Document 27 Filed 07/01/25 Page 2 of 10
reduction in ROM, and she has satisfied the other requirements of a compensable Table
SIRVA injury. Petitioner is thus entitled to compensation under the Vaccine Act.
I. Relevant Procedural History
Along with the Petition, Ms. Costello filed the declaration3 and medical records
required under the Vaccine Act. Exhibits 1-7; see Section 11(c). On June 8, 2023, the
case was activated and assigned to the “Special Processing Unit” (OSM’s adjudicatory
system for resolution of cases deemed likely to settle). ECF No. 8.
Approximately six months later, Respondent expressed a willingness to engage in
settlement discussions. Status Report, filed Dec. 7, 2023, ECF No. 14. Over the
subsequent six months, the parties attempted to reach an informal resolution. See, e.g.,
Status Report, filed Feb. 21, 2024, ECF No. 17. On May 31, 2024, they informed me they
had reached an impasse. Joint Status Report, ECF No. 20.
On June 24, 2024, Respondent filed his Rule 4(c) Report opposing compensation
in this case. ECF No. 21. Emphasizing the failure of Petitioner’s orthopedist to document
any abnormal ROM and only one mention of mild internal ROM loss in a physical therapy
(“PT”) record from more than nine months post-vaccination, Respondent insists Petitioner
“has not demonstrated that she suffered ‘limited or reduced range of motion following
receipt of a covered vaccine.’” Id. at 6 (citing Bolick v. Sec’y of Health & Hum. Servs., No.
20-893V, 2023 WL 8187307, at *6 (Fed. Cl. Spec. Mstr. Oct. 19, 2023)).
On January 27, 2025, I ordered Petitioner to identify any medical record evidence
that shows she suffered limitations in her ROM. ECF No. 22. In response, she referenced
an earlier PT record, from June 2021, showing her right shoulder adduction was only 25
degrees. Status Report, filed Feb. 28, 2025, ECF No. 23. The matter is now ripe for
adjudication.
II. Finding of Fact Regarding ROM
At issue is whether Petitioner ever suffered a reduction in ROM, which I have
determined is an element of a Table SIRVA claim. See Bolick, 2023 WL 8187307, at *6
(finding reduced ROM is required under 42 C.F.R. § 100.3(c)(10)).
3 The declaration was signed under penalty of perjury as required by 28 U.S.C.A. § 1746. Ex. 7.
2

Case 1:23-vv-00411-UNJ Document 27 Filed 07/01/25 Page 3 of 10
A. Authority
Pursuant to Vaccine Act Section 13(a)(1)(A), a petitioner must prove, by a
preponderance of the evidence, the matters required in the petition by Vaccine Act
Section 11(c)(1). A special master must consider, but is not bound by, any diagnosis,
conclusion, judgment, test result, report, or summary concerning the nature, causation,
and aggravation of petitioner’s injury or illness that is contained in a medical record.
Section 13(b)(1). “Medical records, in general, warrant consideration as trustworthy
evidence. The records contain information supplied to or by health professionals to
facilitate diagnosis and treatment of medical conditions. With proper treatment hanging in
the balance, accuracy has an extra premium. These records are also generally
contemporaneous to the medical events.” Cucuras v. Sec’y of Health & Hum. Servs., 993
F.2d 1525, 1528 (Fed. Cir. 1993).
Accordingly, where medical records are clear, consistent, and complete, they
should be afforded substantial weight. Lowrie v. Sec’y of Health & Hum. Servs., No. 03-
1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, this rule
does not always apply. “Written records which are, themselves, inconsistent, should be
accorded less deference than those which are internally consistent.” Murphy v. Sec’y of
Health & Hum. Servs., No. 90-882V, 1991 WL 74931, *4 (Fed. Cl. Spec. Mstr. April 25,
1991), quoted with approval in decision denying review, 23 Cl. Ct. 726, 733 (1991), aff'd
per curiam, 968 F.2d 1226 (Fed.Cir.1992)). And the Federal Circuit recently “reject[ed] as
incorrect the presumption that medical records are accurate and complete as to all the
patient’s physical conditions.” Kirby v. Sec’y of Health & Hum. Servs., 997 F.3d 1378,
1383 (Fed. Cir. 2021).
The United States Court of Federal Claims has outlined four possible explanations
for inconsistencies between contemporaneously created medical records and later
testimony: (1) a person’s failure to recount to the medical professional everything that
happened during the relevant time period; (2) the medical professional’s failure to
document everything reported to her or him; (3) a person’s faulty recollection of the events
when presenting testimony; or (4) a person’s purposeful recounting of symptoms that did
not exist. La Londe v. Sec’y of Health & Hum. Servs., 110 Fed. Cl. 184, 203-04 (2013),
aff’d, 746 F.3d 1335 (Fed. Cir. 2014).
The Court has also said that medical records may be outweighed by testimony that
is given later in time that is “consistent, clear, cogent, and compelling.” Camery v. Sec’y
of Health & Hum. Servs., 42 Fed. Cl. 381, 391 (1998) (citing Blutstein v. Sec’y of Health
& Hum. Servs., No. 90-2808, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998).
The credibility of the individual offering such fact testimony must also be determined.
3

Case 1:23-vv-00411-UNJ Document 27 Filed 07/01/25 Page 4 of 10
Andreu v. Sec’y of Health & Hum. Servs., 569 F.3d 1367, 1379 (Fed. Cir. 2009); Bradley
v. Sec’y of Health & Hum. Servs., 991 F.2d 1570, 1575 (Fed. Cir. 1993).
A special master may find that the first symptom or manifestation of onset of an
injury occurred “within the time period described in the Vaccine Injury Table even though
the occurrence of such symptom or manifestation was not recorded or was incorrectly
recorded as having occurred outside such period.” Section 13(b)(2). “Such a finding may
be made only upon demonstration by a preponderance of the evidence that the onset [of
the injury] . . . did in fact occur within the time period described in the Vaccine Injury
Table.” Id.
The special master is obligated to fully consider and compare the medical records,
testimony, and all other “relevant and reliable evidence contained in the record.” La
Londe, 110 Fed. Cl. at 204 (citing Section 12(d)(3); Vaccine Rule 8); see also Burns v.
Sec’y of Health & Hum. Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (holding that it is within
the special master’s discretion to determine whether to afford greater weight to medical
records or to other evidence, such as oral testimony surrounding the events in question
that was given at a later date, provided that such determination is rational).
B. Analysis
I make the ROM finding after a complete review of the record to include all medical
records, affidavits or declarations, and additional evidence filed. Specifically, I base the
findings on the following evidence:
• Prior to vaccination, Petitioner suffered common conditions such as high
cholesterol and menopause. Ex 2. She experienced episodes involving
pelvic pain, a lump in her abdominal area, and temporary numbness from
her knee to her foot. Id. at 17, 144, 153, 156, 169. And she received
chiropractic care on multiple occasions in 2019 and 2020 for lower back
pain, which she attributed to lifting. Ex. 5.
• On September 29, 2020, Petitioner (age 56 years) received the flu vaccine
intramuscularly in her right deltoid at a CVS pharmacy. Ex. 1. Petitioner also
received the Shingles vaccine on the same day, in her opposing left deltoid.
Ex. 2 at 139.
• Two days post-vaccination, on October 1, 2020, Petitioner visited her
primary care provider (“PCP”), complaining of pain in the upper portion of
her right arm since receiving the flu shot. Ex. 2 at 139. Noting that her left
4

Case 1:23-vv-00411-UNJ Document 27 Filed 07/01/25 Page 5 of 10
arm (in which she received the Shingles vaccine) was “just sore, not
painful,” Petitioner described constant, and progressively worsening, pain,
estimated at a level of ten out of ten, in her right arm. Id. Upon examination,
she was assessed as having normal ROM with moderate pain (id. at 141).
Opining that her condition was “[l]ikely secondary to receiving flu shot,” the
PCP instructed Petitioner to apply ice, referred her to an orthopedist, and
prescribed a trial of Naproxen for her pain. Id. at 142.
• Six days later, on October 6, 2020, Petitioner was seen by an orthopedic
surgeon, for upper right arm pain, described as “acute and . . . occurring in
[a] persistent pattern for 1 week.” Ex. 3 at 16. She described dull, aching,
and sharp pain, aggravated by physical activity, with “intermittent episodes
of pain as bad as 8 or 9 out of 10.” Id.
• Upon examination, the orthopedic surgeon observed “[s]ome mild
tenderness over the lateral aspect of the deltoid,” but normal ROM. Ex. 3 at
17. Characterizing her arm function as excellent, and her pain as well
controlled,” he encouraged Petitioner “to go about her daily activities and
follow up if things ha[d] not improved.” Id. at 16.
• On October 19, 2020, Petitioner returned to the orthopedic surgeon for a
follow-up appointment. Ex. 3 at 14. She reported that “her shoulder ha[d]
not gotten better,” that she had “symptoms with flexion and abduction,” and
had been unable to perform her usual exercise routines. Id. Again observing
normal ROM, the orthopedic surgeon administered a steroid injection. Id. at
14-15.
• A month later, on November 6, 2020, Petitioner returned to the orthopedic
surgeon, reporting that “she has 75% pain relief, but [her shoulder] still
bothers her.” Ex. 3 at 12. Normal ROM was again noted in the record from
this visit. Id. at 13. Stating that “her symptoms are worse when she is
carrying stress and tightness in her traps,”4 Petitioner requested to begin
PT (id. at 12), and the orthopedic surgeon made that referral (id. at 13).
4 The trapezius is “a large muscle in your back, . . . commonly refer[red] to . . . as traps or trap muscles.”
https://my.clevelandclinic.org/health/body/21563-trapezius-muscle (last visited on May 14, 2025).
Like the rest of [the] back muscles, your traps are skeletal (superficial) muscles and are
part of your musculoskeletal system. The upper section connects to your skull and neck
(cervical spine). The middle and lower sections attach to bones in your thoracic spine.
They’re also connected to the back (lateral) sides of your shoulder blade (scapula) and
collarbone (clavicle).
Id.
5

Case 1:23-vv-00411-UNJ Document 27 Filed 07/01/25 Page 6 of 10
• At her next orthopedic visit (five months later, on April 29, 2021), Petitioner
reported that she had been doing exercises as part of a home exercise
program, but “[h]as avoided formal [PT] due to concerns with covid.” Ex. 3
at 10. She was described as having “good range of motion, full flexion and
full abduction, but pain with abduction in internal/external rotation.” Id. The
orthopedic surgeon administered another steroid injection, this time guided
by ultrasound imaging. Id. at 10-11.
• On May 27, 2021, Petitioner returned to the orthopedic surgeon for
additional treatment. Ex. 3 at 8. Noting her “lack of progress with
conservative treatment,” the orthopedic surgeon ordered an MRI. Id.
• Performed on June 3, 2021, the MRI showed no evidence of a rotator cuff
tear or significant glenohumeral osteoarthritis. Ex. 3 at 18. However, there
was “[m]inimal fluid . . . seen within the right subacromial/subdeltoid bursa.”
Id.
• Six days later, on June 9, 2021, the orthopedic surgeon administered a third
steroid injection to Petitioner’s right shoulder and provided her with a PT
referral. Ex. 3 at 6-7.
• At her first PT session on June 28, 2021, it was noted that Petitioner was
being treated for ten months of right shoulder pain, developed after a flu
shot in September 2020. Ex. 4 at 9-10. She reported that the three steroid
injections she received “have helped reduce discomfort.” Id. at 10. Although
her ROM was characterized as normal, the specific numeric degrees (noted
for each type of movement) included 25 degrees of adduction. Id. at 10-11.
It was noted that Petitioner “remain[ed] hesitant to use her R arm for fear of
irritating it.” Id. at 9.
• Petitioner attended three more PT sessions in July 2021. Ex. 4 at 10-21. At
her second session on July 13, 2021, the therapist noted mild internal
rotation loss. Id. at 14.
• At her last PT session on July 22, 2020, the therapist stated that Petitioner
had “completed a month in PT to restore full mobility and strength.” Id. at
19. Her end range was characterized as “now better.” Id. Petitioner was
instructed to continue with home exercises. Id.
6

Case 1:23-vv-00411-UNJ Document 27 Filed 07/01/25 Page 7 of 10
I have previously determined that a petitioner must be able to establish some
limitation in ROM as part of his SIRVA Table claim showing. Bolick, 2023 WL 8187307,
at *6. This requirement is not fulfilled by establishing pain with motion, but rather a
demonstrated outright reduction of ROM. Petty v. Sec’y of Health & Hum. Servs., No. 19-
1332V, 2024 WL 5381961, at *5 (Fed. Cl. Spec. Mstr. Sept. 24, 2024). However, even a
slight reduction in ROM will suffice. Stamm v. Sec’y of Health & Hum. Servs., No. 20-
1590V, 2024 WL 4678224, at *5 (Fed. Cl. Spec. Mstr. Oct. 1, 2024). And the reduced
ROM need not be shown to have begun within 48-hours of vaccination (as with pain), or
even to have persisted for any specific, longer period. McNally v. Sec’y of Health & Hum.
Servs., No. 20-1763V, 2024 WL 4024429, at *4 (Fed. Cl. Spec. Mstr. July 31, 2024);
Silacci v. Sec’y of Health & Hum. Servs., No. 21-1265V, 2024 WL 5295093, at *6-7 (Fed.
Cl. Spec. Mstr, Dec. 5, 2024).
When arguing that Petitioner had failed to meet this requirement, Respondent
acknowledges a PT record notation from July 2021 that documents mild internal ROM
loss. Rule 4(c) Report at 6. But he seems to discount the probative value of this evidence
due, in part, to its timing – more than nine months post-vaccination. Id. As I determined
in Silacci, however, ROM reduction can be established even when based upon findings
observed more than one-year post-vaccination. 2024 WL 5295093, at *6-7.
And there is an additional entry in the record from Petitioner’s first PT session in
June 2023, showing her adduction ROM was measured at 25 degrees - one-half the
maximum value of 50 degrees.5 Although adduction is not often measured, due to the
difficulty obtaining accurate and consistent values,6 because the recorded value is 25
degrees lower than the usual maximum, it still provides some evidence of at least a slight
ROM reduction. Additionally, both PT entries are buttressed by the therapist’s later
statement – that one purpose of the PT was to restore full mobility.
Furthermore, the observations of normal ROM made by the PCP and orthopedic
surgeon who treated Petitioner’s condition during the first eight months of her injury, do
not undermine the later created PT record entries. Petitioner’s treatment advanced in a
linear fashion – with her seeing only one provider at a time. Thus, these earlier
observations do not directly counter the therapist’s later findings of mildly limited ROM.
5 DORLAND’S ILLUSTRATED MEDICAL DICTIONARY at 26 (32th ed. 2012). This diagram illustrates abduction: the
movement of a straight arm from the side to above the shoulder – shown with a maximum range of 180
degrees; and adduction: the straight arm’s movement from the same starting position across the front of
the body – shown with a maximum range of 50 degrees. Id.
6 Cynthia C. Norkin and D. Joyce White, MEASUREMENT OF JOINT MOTION: A GUIDE TO GONIOMETRY, 84 (F.A.
Davis Co., 5th ed. 2016) (showing the lack of a numeric range for this particular movement).
7

Case 1:23-vv-00411-UNJ Document 27 Filed 07/01/25 Page 8 of 10
As is the case when assessing six-month sequela, the mildness and intermittent
nature of the reduced ROM exhibited by Petitioner are highly relevant to damages, but
do not prevent a favorable limited ROM finding. Nor does the late timing of observed
reduction prevent Petitioner from satisfying this Table SIRVA requirement. Accordingly,
there is preponderant evidence to establish Petitioner suffered at least a minimal
reduction in ROM, approximately nine months post-vaccination.
III. Additional Requirements for Entitlement
A. Legal Standards
In addition to requirements concerning the vaccination received, the duration of
petitioner’s injury, and the lack of other award or settlement,7 a petitioner must establish
that she suffered an injury meeting the Table criteria, in which case causation is
presumed, or an injury shown to be caused-in-fact by the vaccination she received.
Section 11(c)(1)(C).
The most recent version of the Table, which can be found at 42 C.F.R. § 100.3,
identifies the vaccines covered under the Program, the corresponding injuries, and the
time period in which the particular injuries must occur after vaccination. Section 14(a).
Pursuant to the Vaccine Injury Table, a SIRVA is compensable if it manifests within 48
hours of the administration of a flu vaccine. 42 C.F. R. § 100.3(a)(XIV)(B). The criteria
establishing a SIRVA under the accompanying Qualifications and Aids to Interpretation
(“QAI”) are as follows:
Shoulder injury related to vaccine administration (SIRVA). 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
7 In summary, a petitioner must establish that he received a vaccine covered by the Program, administered
either in the United States and its territories or in another geographical area but qualifying for a limited
exception; suffered the residual effects of his injury for more than six months, died from his injury, or
underwent a surgical intervention during an inpatient hospitalization; and has not filed a civil suit or collected
an award or settlement for her injury. See Section 11(c)(1)(A)(B)(D)(E).
8

Case 1:23-vv-00411-UNJ Document 27 Filed 07/01/25 Page 9 of 10
studies (NCS) and/or electromyographic (EMG) studies would not support
SIRVA as a diagnosis (even if the condition causing the neurological
abnormality is not known). 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).
42 C.F.R. § 100.3(c)(10) (2017).
B. Analysis
Respondent has stated no further objections to compensation, and I find Petitioner
has otherwise satisfied all other criteria for a Table SIRVA injury following receipt of the
flu vaccine. There is no evidence of prior right shoulder pain, inflammation, or dysfunction
or an alternative cause for Petitioner’s symptoms. See 42 C.F.R. § 100.3(c)(10)(i), (iv)
(first and fourth QAI criteria). And Petitioner experienced pain within 48 hours of
vaccination and exhibited pain and limitations in ROM solely in her right, injured shoulder.
E.g., Ex. 2 at 139; Ex. 3 at 16; Ex. 4 at 9-10; see 42 C.F.R. § 100.3(c)(10)(ii) & (iii) (second
and third QAI criteria).
As I have determined in this ruling, the record supports a finding that Petitioner
suffered mild reduction of her right shoulder ROM. See supra Section II.B. Additionally,
the medical records show Petitioner suffered the residual effects of her injury for more
than six-months. Ex. 3 at 10 (April 29, 2021 orthopedic visit); see Section 11(c)(1)(D)(i)
(the Vaccine Act’s six-month severity requirement). And the vaccine record shows
Petitioner received the flu vaccine at a CVS pharmacy. Ex. 2; see Section 11(c)(1)(A)
(requiring receipt of a covered vaccine); Section 11(c)(1)(B)(i) (requiring administration
within the United States or its territories). And there is no evidence that Petitioner has
9

Case 1:23-vv-00411-UNJ Document 27 Filed 07/01/25 Page 10 of 10
collected a civil award for his injury. See Section 11(c)(1)(E) (lack of prior civil award).
Thus, Petitioner has satisfied all requirements for entitlement under the Vaccine Act.
IV. Appropriate Amount of Compensation
Although I have found Petitioner entitled to compensation, I expect the amount to
be awarded for her past pain and suffering to be on the lower end for a SIRVA. Despite
reporting severe pain levels, Petitioner required only minimal treatment, exhibited the
slightest reduction in ROM, and obtained at least temporary relief from the steroid
injections she received. Furthermore, there is no evidence in the record as it currently
stands that Petitioner required treatment beyond late July 2021, only ten-months post-
vaccination. Thus, Petitioner should not expect a substantial pain and suffering
compensation.
Conclusion
Based on the entire record in this case, I find that Petitioner has provided
preponderant evidence satisfying all requirements for a Table SIRVA. Petitioner is
entitled to compensation in this case.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
10

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DOCUMENT 2: USCOURTS-cofc-1_23-vv-00411-1
Date issued/filed: 2026-04-10
Pages: 9
Docket text: PUBLIC DECISION (Originally filed: 03/25/2026) regarding 38 DECISION of Special Master ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made.
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Case 1:23-vv-00411-UNJ Document 42 Filed 04/10/26 Page 1 of 9
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 23-0411V
JO ANNE CUNNINGHAM,
Chief Special Master Corcoran
Petitioner,
Filed: March 25, 2026
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Leigh Finfer, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Nina Ren, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On March 24, 2023, Jo Anne Cunningham filed a petition for compensation under
the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleged that she suffered a right shoulder injury related to
vaccine administration (“SIRVA”), a defined Table injury, after receiving an influenza
(“flu”) vaccine on September 29, 2020. Petition at 1, ¶ 1, 16. The matter was assigned to
the “Special Processing Unit” (the “SPU”). ECF No. 8. I determined that Petitioner was
entitled to compensation, but the parties were unable to resolve damages on their own,3
so I ordered briefing on the matter.
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).
3 Although the parties disputed whether Petitioner suffered any reduction in range of motion (“ROM”), I
found that Petitioner suffered at least a minimal reduction in ROM, and she also satisfied the other

Case 1:23-vv-00411-UNJ Document 42 Filed 04/10/26 Page 2 of 9
For the reasons set forth below, I find that Petitioner is entitled to an award of
damages in the amount of $48,000.00 for actual pain and suffering, plus $1,426.91 for
satisfaction of the Medicaid lien in this case.
I. Legal Standard
Compensation awarded pursuant to the Vaccine Act shall include “[f]or actual and
projected pain and suffering and emotional distress from the vaccine-related injury, an
award not to exceed $250,000.” Section 15(a)(4). Additionally, a petitioner may recover
“actual unreimbursable expenses incurred before the date of judgment award such
expenses which (i) resulted from the vaccine-related injury for which petitioner seeks
compensation, (ii) were incurred by or on behalf of the person who suffered such injury,
and (iii) were for diagnosis, medical or other remedial care, rehabilitation . . . determined
to be reasonably necessary.” Section 15(a)(1)(B). The petitioner bears the burden of proof
with respect to each element of compensation requested. Brewer v. Sec’y of Health &
Hum. Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18,
1996).
There is no mathematic formula for assigning a monetary value to a person’s pain
and suffering and emotional distress. I.D. v. Sec’y of Health & Hum. Servs., No. 04-1593V,
2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013) (“[a]wards for emotional
distress are inherently subjective and cannot be determined by using a mathematical
formula”); Stansfield v. Sec’y of Health & Hum. Servs., No. 93-0172V, 1996 WL 300594,
at *3 (Fed. Cl. Spec. Mstr. May 22, 1996) (“the assessment of pain and suffering is
inherently a subjective evaluation”). Factors to be considered when determining an award
for pain and suffering include: 1) awareness of the injury; 2) severity of the injury; and 3)
duration of the suffering. I.D., 2013 WL 2448125, at *9 (quoting McAllister v. Sec’y of
Health & Hum. Servs., No 91-1037V, 1993 WL 777030, at *3 (Fed. Cl. Spec. Mstr. Mar.
26, 1993), vacated and remanded on other grounds, 70 F.3d 1240 (Fed. Cir. 1995)).
I may also consider prior pain and suffering awards to aid my resolution of the
appropriate amount of compensation for pain and suffering in this case. See, e.g., Doe
34 v. Sec’y of Health & Hum. Servs., 87 Fed. Cl. 758, 768 (2009) (finding that “there is
nothing improper in the chief special master’s decision to refer to damages for pain and
suffering awarded in other cases as an aid in determining the proper amount of damages
in this case.”). And, of course, I may rely on my own experience (along with my
requirements of a compensable Table SIRVA injury. Ruling on Entitlement, filed May 23, 2025, ECF No.
25. Less than three months later, the parties informed me that they had reached an impasse in their
damages discussions and requested that I set a briefing schedule. Status Report, filed Aug. 8, 2025, ECF
No. 29.
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predecessor Chief Special Masters) adjudicating similar claims. Hodges v. Sec’y of
Health & Hum. Servs., 9 F.3d 958, 961 (Fed. Cir. 1993) (noting that Congress
contemplated the special masters would use their accumulated expertise in the field of
vaccine injuries to judge the merits of individual claims).
Although pain and suffering in the past was often determined based on a
continuum, as Respondent argues, that practice was cast into doubt by the Court several
years ago. Graves v. Sec’y of Health & Hum. Servs., 109 Fed. Cl. 579 (Fed. Cl. 2013).
Graves maintained that to do so resulted in “the forcing of all suffering awards into a global
comparative scale in which the individual petitioner’s suffering is compared to the most
extreme cases and reduced accordingly.” Id. at 590. Instead, Graves assessed pain and
suffering by looking to the record evidence, prior pain and suffering awards within the
Vaccine Program, and a survey of similar injury claims outside of the Vaccine Program.
Id. at 595. Under this alternative approach, the statutory cap merely cuts off higher pain
and suffering awards – it does not shrink the magnitude of all possible awards as falling
within a spectrum that ends at the cap. Although Graves is not controlling of the outcome
in this case, it provides reasoned guidance in calculating pain and suffering awards.
II. Prior SIRVA Compensation Within SPU4
A. Data Regarding Compensation in SPU SIRVA Cases
SIRVA cases have an extensive history of informal resolution within the SPU. As
of January 1, 2026, 5,397 SPU SIRVA cases have resolved since the inception of SPU
more than ten years before. Compensation has been awarded in the vast majority of
cases (5,194), with the remaining 203 cases dismissed.
2,946 of the compensated SPU SIRVA cases were the result of a ruling that the
petitioner was entitled to compensation (as opposed to an informal settlement), and
therefore reflect full compensation.5 In only 351 of these cases, however, was the amount
of damages determined by a special master in a reasoned decision or ruling.6 As I have
4 All figures included in this decision are derived from a review of the decisions awarding compensation
within the SPU. All decisions reviewed are, or will be, available publicly. All figures and calculations cited
are approximate.
5 The remaining 2,248 compensated SIRVA cases were resolved via stipulated agreement of the parties
without a prior ruling on entitlement. These agreements are often described as “litigative risk” settlements,
and thus represent a reduced percentage of the compensation which otherwise would be awarded.
Because multiple competing factors may cause the parties to settle a case (with some having little to do
with the merits of an underlying claim), these awards from settled cases do not constitute a reliable gauge
of the appropriate amount of compensation to be awarded in other SPU SIRVA cases.
6 The rest of these cases resulting in damages after concession were either reflective of a proffer by
Respondent (2,561 cases) or stipulation (34 cases). Although all proposed amounts denote some form of
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previously stated, the written decisions setting forth such determinations, prepared by
neutral judicial officers (the special masters themselves), provide the most reliable
guidance in deciding what similarly-situated claimants should also receive.7
The data for all categories of damages decisions described above reflect the
expected differences in outcome, summarized as follows:
Damages Proffered Stipulated Stipulated8
Decisions by Damages Damages Agreement
Special Master
Total Cases 352 2,560 34 2,248
Lowest $25,000.00 $4,000.00 $37,013.60 $1,000.00
1st Quartile $66,994.13 $58,000.79 $87,750.00 $30,000.00
Median $91,163.89 $77,500.00 $112,119.37 $47,951.60
3rd Quartile $125,000.00 $105,276.51 $160,376.79 $73,477.50
Largest $1,569,302.82 $1,845,047.00 $1,500,000.00 $550,000.00
B. Pain and Suffering Awards in Reasoned Decisions
In the 352 SPU SIRVA cases in which damages were determined via reasoned
decision or ruling, compensation for a petitioner’s actual or past pain and suffering varied
from $25,000.00 to $215,000.00, with $89,500.00 as the median amount. Only ten of
these cases involved an award for future pain and suffering, with yearly awards ranging
from $250.00 to $1,500.00.9 In one of these cases, the future pain and suffering award
was limited by the statutory pain and suffering cap.10
agreement reached by the parties, those presented by stipulation derive more from compromise than
instances in which Respondent formally acknowledges that the settlement sum itself is a fair measure of
damages.
7 Of course, even though all independently-settled damages issues (whether by stipulation/settlement or
proffer) must still be approved by a special master, such determinations do not provide the same judicial
guidance or insight obtained from a reasoned decision. But given the aggregate number of such cases,
these determinations nevertheless “provide some evidence of the kinds of awards received overall in
comparable cases.” Sakovits v. Sec’y of Health & Hum. Servs., No. 17-1028V, 2020 WL 3729420, at *4
(Fed. Cl. Spec. Mstr. June 4, 2020) (discussing the difference between cases in which damages are agreed
upon by the parties and cases in which damages are determined by a special master).
8 Two awards were for an annuity only, the exact amounts which were not determined at the time of
judgment.
9 Additionally, a first-year future pain and suffering award of $10,000.00 was made in one case. Dhanoa v.
Sec’y of Health & Hum. Servs., No. 15-1011V, 2018 WL 1221922 (Fed. Cl. Spec. Mstr. Feb. 1, 2018).
10 Joyce v. Sec’y of Health & Hum. Servs., No. 20-1882V, 2024 WL 1235409, at *2 (Fed. Cl. Spec. Mstr.
Feb. 20, 2024) (applying the $250,000.00 statutory cap for actual and future pain and suffering set forth in
Section 15(a)(4) before reducing the future award to net present value as required by Section 15(f)(4)(A));
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In cases with lower awards for past pain and suffering, many petitioners commonly
demonstrated only mild to moderate levels of pain throughout their injury course. This
lack of significant pain is often evidenced by a delay in seeking treatment – over six
months in one case. In cases with more significant initial pain, petitioners usually
experienced this greater pain for three months or less. Most petitioners displayed only
mild to moderate limitations in range of motion (“ROM”), and MRI imaging showed
evidence of mild to moderate pathologies such as tendinosis, bursitis, or edema. Many
petitioners suffered from unrelated conditions to which a portion of their pain and suffering
could be attributed. These SIRVAs usually resolved after one to two cortisone injections
and two months or less of physical therapy (“PT”). None required surgery. Except in one
case involving very mild pain levels, the duration of the SIRVA injury ranged from six to
30 months, with most petitioners averaging approximately nine months of pain. Although
some petitioners asserted residual pain, the prognosis in these cases was positive.
Cases with higher awards for past pain and suffering involved petitioners who
suffered more significant levels of pain and SIRVAs of longer duration. Most of these
petitioners subjectively rated their pain within the upper half of a ten-point pain scale and
sought treatment of their SIRVAs more immediately, often within 30 days of vaccination.
All experienced moderate to severe limitations in range of motion. MRI imaging showed
more significant findings, with the majority showing evidence of partial tearing. Surgery or
significant conservative treatment, up to 133 PT sessions - occasionally spanning several
years, and multiple cortisone injections, were required in these cases. In nine cases,
petitioners provided sufficient evidence of permanent injuries to warrant yearly
compensation for future or projected pain and suffering.
III. The Parties’ Arguments
The parties agree that I should award $1,426.91 in satisfaction of a Medicaid lien
in this case. Petitioner’s Brief in Support of a Damages Decision (“Brief”) at 1, 7, ECF No.
31; Respondent’s Brief on Damages (“Opp.”) at 2, 10, ECF No. 32. Thus, the only area
of disagreement is the amount of compensation which should be awarded for Petitioner’s
past pain and suffering. Petitioner seeks $85,000.00, and Respondent argues for an
award of $45,000.00. Id.
Emphasizing her initial complaint of severe pain (rated ten out of ten) for which she
sought treatment only two days post-vaccination, Petitioner insists that she gained
see Youngblood v. Sec’y of Health & Hum. Servs., 32 F.3d 552, 554-55 (Fed. Cir.1994) (requiring the
application of the statutory cap before any projected pain and suffering award is reduced to net present
value).
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significant relief only after her third steroid injection (administered approximately eight
months post-vaccination), and subsequent physical therapy (“PT”) attended two months
thereafter. Brief at 6. Additionally, she attributes a more than five-month treatment gap
following the administration of her first steroid injection and PT referral (from early
November 2020 to late April 2021) to concerns related to the worldwide COVID-19
Pandemic,11 rather than any symptom improvement. Id.
Petitioner favorably compares the facts and circumstances in her case to those
experienced by the petitioners in Colucci and Bruegging12 - decisions featuring past pain
and suffering awards of $80,000.00 and $90,000.00, respectively. Brief at 6-7.
Acknowledging the Colucci petitioner attended a greater number of PT sessions, Ms.
Cunningham insists her past pain and suffering award should be greater due to her quick
initial complaint, longer injury duration, and greater number of steroid injections. Id. at 6.
Petitioner maintains that her overall symptom duration was similar to that of the Bruegging
petitioner, but her MRI findings were more significant, and she required multiple steroid
injections. Id. at 7.
Citing language in my entitlement ruling regarding the mildness and intermittent
nature of Petitioner’s range of motion (“ROM”) limitation, Respondent contends that
Petitioner’s award “should be on the lower end for a SIRVA.” Opp. at 5. He also
emphasizes the limited duration of Petitioner’s SIRVA and the overall improvement she
gained from only four months of active treatment. Id. at 5-6. Countering Petitioner’s
argument that fears related to the COVID pandemic prevented her from pursuing PT
during the almost six-month gap in treatment following the first steroid injection she
received, Respondent observes that Petitioner “sought care for other medical concerns”
during this time. Id. at 6 (citing Ex. 2 at 125-27; Ex. 5 at 21-23).
Respondent also distinguishes the cases cited by Petitioner, contrasting the longer
durations of moderate to severe pain and greater limitations in ROM experienced by those
petitioners, as well as the more significant MRI findings for the Bruegging petitioner, and
greater amount of PT in Colucci. Opp. at 7-8. Instead, for better comparable cases
Respondent references Goatee and Piccolotti13 - decisions involving past pain and
suffering awards of $43,000.00 and $45,000.00, respectively. Opp. at 8-9.
11 See https://www.cdc.gov/museum/timeline/covid19.html (last visited Mar. 23, 2026) (For a timeline
related to the pandemic and availability of COVID vaccines).
12 Colucci v. Sec’y of Health & Hum. Servs., No. 19-1684V, 2022 WL 17849579 (Fed. Cl. Spec. Mstr. Nov.
14, 2022); Bruegging v. Sec’y of Health & Hum. Servs., No. 17-0261V, 2019 WL 2620957 (Fed. Cl. Spec.
Mstr. May 13, 2019).
13 Goatee v. Sec’y of Health & Hum. Servs., No. 22-0827V, 2024 WL 5295109 (Fed. Cl. Spec. Mstr. Dec.
2, 2024); Piccolotti v. Sec’y of Health & Hum. Servs., No. 20-0135V, 2023 WL 3165383 (Fed. Cl. Spec.
Mstr. May 1, 2023).
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IV. Appropriate Compensation for Petitioner’s Pain and Suffering
In this case, awareness of the injury is not disputed. The record reflects that at all
times Petitioner was a competent adult with no impairments that would impact her
awareness of her injury. Therefore, I analyze principally the severity and duration of
Petitioner’s injury.
When performing this analysis, I review the record as a whole to include the filed
medical records, affidavits, and sworn declarations and all assertions made by the parties
in written documents. I consider prior awards for pain and suffering in both SPU and non-
SPU SIRVA cases and rely upon my experience adjudicating these cases. However, I
base my determination on the circumstances of this case.
A thorough review of the medical records reveals that Ms. Cunningham (age 56)
suffered a mild SIRVA involving severe pain levels for less than one-month post-
vaccination, little to no limitations in ROM, and significant relief following her first steroid
injection administered on October 19, 2020. Ex. 2 at 139-43; Ex. 3 at 12-17. Although she
required additional treatment from late April through July 2021 - consisting of two more
steroid injections, an MRI revealing only minimal subacromial/subdeltoid bursal fluid, and
3 PT sessions, Petitioner reported only mild symptoms during this time. Ex. 3 at 5-11, 18;
Ex. 4 at 10-21.
Additionally, Petitioner’s almost six-month gap in treatment (from early November
2020 through April 2021) appears to have been due to the symptom relief she gained
from her first steroid injection, rather than to fears related to the COVID Pandemic, as she
contends.14 During this time, Petitioner visited the chiropractor twice for treatment of back
pain and left rhomboid spasms. Ex. 5 at 22-23. And in 2020 (when the risk of contracting
COVID was greater and the COVID vaccine was not yet available), Petitioner attended
twelve chiropractic appointments (Ex. 5 at 10-21), and visited her primary care provider
for routine care of her chronic conditions such as hyperlipidemia and perimenopausal
symptoms (Ex. 2 at 144-51).
The cases cited by Petitioner are not helpful comparisons due to the much longer
acute phases of significant pain - approximately six months for the Colucci petitioner and
eight months for the Bruegging petitioner. Colucci, 2022 WL 17849579, at *1-2, 4-5;
Bruegging, 2019 WL 2620957, at *1-3, 9-10. Additionally, the Ross, Berberich, and Russo
cases - featuring awards ranging from $59,000.00 to $63,000.00, and involving initial
14 When she returned to the orthopedist for treatment in late April 2021, Petitioner reported that she had
not attended PT as prescribed due to concerns related to COVID. Ex. 5 at 10.
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acute phases of severe pain more than twice the duration suffered by Petitioner (from two
to three months) – support the conclusion that Petitioner’s award should be lower.15
The Goatee case cited by Respondent is similarly deficient, albeit in the opposite
extreme – showing a lack of any acute initial phase of more intense shoulder pain.
Goatee, 2024 WL 5295109, at *1-2, 5. However, the facts and circumstances experienced
by the Piccolotti petitioner were similar to those in this case. Although the severity of the
Piccolotti petitioner’s pain is not clearly stated, he sought treatment only ten days post-
vaccination – signifying more severe initial symptoms. Piccolotti, 2023 WL 3165383, at
*5. And his overall duration was close to that experienced by Petitioner, albeit with slightly
less treatment – only two steroid injections and no PT. Id.
I also find the Mejias16 case - featuring the same pain and suffering amount of
$45,000.00 - offers a good comparison. The Mejias petitioner sought treatment within two
days of vaccination and suffered a SIRVA with similar overall duration, albeit a longer (yet
slightly less intense) acute phase of three months. Mejias, 2021 WL 5895622, at 6-7. Still,
because the Meijas petitioner required only oral medication and lidocaine patches (id.), I
will award slightly more for Petitioner’s past pain and suffering - $48,000.00.
Conclusion
For all of the reasons discussed above and based on consideration of the record
as a whole, I find that $48,000.00 represents a fair and appropriate amount of
compensation for Petitioner’s actual pain and suffering.17 Additionally, I will award
the agreed upon Medicaid lien amount, $1,426.91.
Based on the record as a whole and arguments of the parties, I award $49,426.91
as follows:
15 Ross v. Sec’y of Health & Hum. Servs., No. 20-1674V, 2023 WL 9424777 (Fed. Cl. Spec. Mstr. Dec. 18,
2023) (awarding $59,000.00 for past pain and suffering in a short-form decision following expedited Motions
Day argument); Berberich v. Sec’y of Health & Hum. Servs., No. 20-0010V, 2021 WL 4823551, at *7-8
(Fed. Cl. Spec. Mstr. Sept. 14, 2021) (awarding $60,000.00 for past pain and suffering); Russo v. Sec’y of
Health & Hum. Servs., No. 20-1491V, 2022 WL 4717927, at *1-2, 4 (Fed. Cl. Spec. Mstr. Aug. 31, 2022)
(awarding $63,000.00 for past pain and suffering).
16 Mejias v. Sec’y of Health & Hum. Servs., No. 19-1994V, 2021 WL 5895622 (Fed. Cl. Spec. Mstr. Nov.
10, 2021); Merwitz v. Sec’y of Health & Hum. Servs., No. 20-1141V, 2022 WL 17820768 (Fed. Cl. Spec.
Mstr. Oct. 11, 2022).
17 Since this amount is being awarded for actual, rather than projected, pain and suffering, no reduction to
net present value is required. See Section 15(f)(4)(A); Childers v. Sec’y of Health & Hum. Servs., No. 96-
0194V, 1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health &
Hum. Servs., 32 F.3d 552 (Fed. Cir. 1994)).
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A. A lump sum payment of $48,000.00, representing compensation for actual
pain and suffering, to be paid through an ACH deposit to Petitioner’s
counsel’s IOLTA account for prompt disbursement to Petitioner; and
B. A lump sum of $1,426.91, representing compensation for satisfaction of
the State of Maryland Medicaid lien, to be paid through an ACH deposit
to Petitioner’s counsel’s IOLTA account for prompt disbursement to the
appropriate agency.
This amount represents compensation for all damages that would be available under
Section 15(a).
The Clerk of Court is directed to enter judgment in accordance with this Decision.18
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
18 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.
9