VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_23-vv-00440
Package ID: USCOURTS-cofc-1_23-vv-00440
Petitioner: Wendy Hubbard
Filed: 2023-03-29
Decided: 2024-12-16
Vaccine: influenza
Vaccination date: 2021-08-18
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: entitlement_granted_pending_damages
Award amount USD: 

AI-assisted case summary:
Wendy Hubbard filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging she suffered a shoulder injury related to vaccine administration (SIRVA) from an influenza vaccine received in August 2021. The petition stated that the vaccine was administered in the United States, she suffered residual effects for more than six months, and no other civil action had been filed. The court issued findings of fact on September 26, 2024, establishing that Ms. Hubbard received a flu vaccine in her left arm on August 18, 2021. Respondent subsequently filed an amended Rule 4(c) report, acknowledging the court's findings of fact as the law of the case. Respondent conceded that the evidence supported a finding of a left-sided SIRVA as defined by the Vaccine Injury Table, noting the absence of prior shoulder issues and no other identified condition to explain the pain. Respondent also agreed that Ms. Hubbard suffered residual effects for more than six months and did not dispute that she met the legal prerequisites for compensation, subject to Respondent's right to appeal the findings of fact. Based on Respondent's position and the record evidence, the court found that Ms. Hubbard is entitled to compensation.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_23-vv-00440-0
Date issued/filed: 2024-10-28
Pages: 6
Docket text: PUBLIC ORDER/RULING (Originally filed: 09/26/2024) regarding 25 Findings of Fact & Conclusions of Law,,, Scheduling Order,, Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made.
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Case 1:23-vv-00440-UNJ Document 26 Filed 10/28/24 Page 1 of 6
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 23-0440V
WENDY HUBBARD, Chief Special Master Corcoran
Petitioner, Filed: September 26, 2024
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Richard Gage, Richard Gage, P.C., Cheyenne, WY, for Petitioner.
Katherine Edwards, U.S. Department of Justice, Washington, DC, for Respondent.
FINDINGS OF FACT1
On March 29, 2023, Wendy Hubbard 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 shoulder injury related to vaccine
administration (“SIRVA”) resulting from an influenza (“flu”) vaccine received in August
2021. Petition at 1. The case was assigned to the Special Processing Unit of the Office
of Special Masters.
1 Because this Fact 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 Fact 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-00440-UNJ Document 26 Filed 10/28/24 Page 2 of 6
For the reasons discussed below, I find that Petitioner’s flu vaccine was likely
administered in her left arm.
I. Relevant Procedural History
After the case was activated, Petitioner filed additional evidence addressing the
situs of vaccine administration (ECF No. 20). On August 16, 2024, Respondent filed his
Rule 4(c) Report asserting that compensation is not appropriate in this case (ECF No.
23). Respondent’s sole objection was that the vaccination record states that Petitioner
received the flu vaccine in her right deltoid, while her claim is for an injury to her left
deltoid. Thus, Respondent argued that Petitioner had not preponderantly established that
her pain and reduced range of motion were limited to the shoulder in which the vaccine
was administered. On the same day, Respondent filed a status report requesting that I
determine in which arm Petitioner’s August 2021 flu vaccine was administered (ECF No.
24).
II. Issue
At issue is whether Petitioner received the vaccination alleged as causal in her
injured left arm. Additionally, some records suggest that the vaccine was administered on
August 18, 2021, while others suggest a date of August 20th.
III. 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 & Human 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 & Human 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
2

Case 1:23-vv-00440-UNJ Document 26 Filed 10/28/24 Page 3 of 6
Health & Human 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 & Human 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 & Human 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 & Human Servs., 42 Fed. Cl. 381, 391 (1998) (citing Blutstein v. Sec’y of Health
& Human 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. Andreu v. Sec’y of Health & Human Servs., 569 F.3d 1367, 1379 (Fed. Cir.
2009); Bradley v. Sec’y of Health & Human 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 & Human 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).
3

Case 1:23-vv-00440-UNJ Document 26 Filed 10/28/24 Page 4 of 6
IV. Finding of Fact
I find that the evidence preponderantly supports a finding that Petitioner’s flu
vaccine was administered on August 18, 2021 in her left arm. I make these findings after
a complete review of the record to include all medical records, testimonial evidence,
Respondent’s Rule 4 report, and additional evidence filed. Specifically, I base the findings
on the following evidence:
• The Walgreens vaccine administration record, on which an “R” is
handwritten for the “Site of Administration,” and which lists a vaccine
administration date of August 18, 2021 (Ex. 1 at 4);
• A Walgreens vaccine consent form for a flu vaccine signed by Petitioner on
August 18, 2021 (Ex. 1 at 7);
• A Walgreens “Insurance Profile” for Petitioner listing a flu vaccine with an
“Entered Date” of August 20, 2021 (Ex. 1 at 2);
• Petitioner’s September 9, 2021 appointment with Dr. Wanika Williams, at
which she complained of left arm pain for three weeks after her flu
vaccination and explained that she “believes the injection was too low and
it is on the back of her arm.” Ex. 2 at 99-100. Dr. Williams noted that the
“[l]ocation of wound did appear posterior and lower than where it should
have been given, if that was the original injection site.” Id. at 103. Petitioner
was diagnosed with adhesive capsulitis of her left shoulder and an adverse
effect of vaccine (Id.);
• Petitioner’s November 10, 2021 appointment with orthopedist Dr. Christina
Walker for left shoulder pain that “began immediately after her flu injection”
that she “receive[d] in an abnormal location.” Ex. 2 at 116-120;
• Petitioner’s March 10, 2022 appointment with orthopedist Dr. Mohammed
Qureshi for left shoulder pain and weakness, at which she stated she
“initially was injected with a flu shot which triggered her symptoms” (Ex. 2
at 125);
• Petitioner’s affidavits and declaration stating that she received a flu vaccine
in her left shoulder on August 20, 2021 at her place of employment in Texas.
Ex. 8 at ¶ 2; Ex. 9 at ¶ 2; Ex. 10 at ¶ 2. Petitioner explains that she asked
the person administering vaccines to inject the vaccine in her right arm,
which that person marked on her paperwork. Ex. 10 at ¶ 3. However,
another member of the Walgreens team then appeared and told the person
who had marked the form to take her lunch break and that an intern would
take over administering vaccines. Id. at ¶ 4. Petitioner states that “[t]he
4

Case 1:23-vv-00440-UNJ Document 26 Filed 10/28/24 Page 5 of 6
intern that took over for the woman who wrote on my paperwork did not look
at the paperwor[k], or even ask me which arm I preferred. Before I knew it,
she was prepping my left arm, and quickly administered the vaccine in my
left shoulder.” Id. at ¶ 5.
The above-referenced evidence allows for the conclusion that, more likely than
not, Petitioner’s August 2021 flu vaccine was administered (1) in her left arm and (2) on
August 18, 2021. Although the vaccine administration record has an “R” for the situs,
supporting the determination that the vaccine was in fact administered in Petitioner’s right
arm, there is no other evidence that would support that situs. All of the remaining evidence
supports a conclusion that the vaccine was injected into Petitioner’s left arm. Thus, when
seeking medical care, Petitioner consistently reported to her treaters that her left shoulder
pain resulted from a vaccination. The short period of time between vaccine administration
and Petitioner’s first medical treatment for vaccine-related shoulder pain – approximately
three weeks – also bolsters her claim that her left shoulder pain was due to a recent
vaccination in that arm.
There is record evidence suggesting that the vaccination date could be either
August 18 or August 20, 2021. The Petition, as well as Petitioner’s affidavits and
declaration, assert that the vaccination was administered on August 20, 2021. Pet. at 1;
Exs 8, 9, 10. And a Walgreens insurance profile indicates that the vaccine information
was “entered” on August 20, 2021. Ex. 1 at 2. However, the vaccine administration record
lists an administration date of August 18, 2021, and Petitioner signed the consent form
on August 18th. Id. at 4, 7.
I find that the evidence supports a more likely vaccination date of August 18, 2021.
The best evidence of the vaccination date is the vaccination record itself, which has a
vaccination date of August 18th. Ex. 1 at 4. But it is supported by Petitioner’s consent
form, which is also dated August 18th. Id. at 7. Although another Walgreens document
has a date of August 20th (Ex. 1 at 2), that is listed as an “entered date” rather than a
vaccination date, suggesting it could be the date when the vaccination information was
entered into a system for insurance billing purposes rather than the vaccination date.
Although Petitioner’s affidavits and declaration state she received the vaccine on August
20th, that could be based on the Walgreens “entered date,” or imperfect memory. That
Petitioner’s testimonial statements appear to contain incorrect information does
somewhat reduce their evidentiary value. But I find her statements reliable enough to
support the medical record evidence as to the situs of vaccine administration.
The most specific and contemporaneous records are the vaccine administration
record and Petitioner’s consent form. And both of those records list a date of August 18,
2021. Thus, I find a preponderance of the evidence supports a finding that Petitioner’s flu
vaccine was administered on August 18, 2021 in her left arm.
5

Case 1:23-vv-00440-UNJ Document 26 Filed 10/28/24 Page 6 of 6
V. Scheduling Order
Respondent shall file, by no later than Wednesday, November 06, 2024, either
an amended Rule 4(c) Report or a status report stating how Respondent wishes to
proceed in this case in light of my fact ruling herein.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
6

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DOCUMENT 2: USCOURTS-cofc-1_23-vv-00440-1
Date issued/filed: 2024-12-16
Pages: 2
Docket text: PUBLIC ORDER/RULING (Originally filed: 11/05/2024) regarding 28 Ruling on Entitlement Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made.
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Case 1:23-vv-00440-UNJ Document 30 Filed 12/16/24 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 23-0440V
WENDY HUBBARD, Chief Special Master Corcoran
Petitioner, Filed: November 5, 2024
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Richard Gage, Richard Gage, P.C. (WY), Cheyenne, WY, for Petitioner.
Katherine Edwards, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT1
On March 29, 2023, Wendy Hubbard 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 shoulder injury related to vaccine
administration (“SIRVA”) resulting from an influenza (“flu”) vaccine received in August
2021. Petition at 1. Petitioner further alleges that the flu vaccine was administered in the
United States, she suffered the residual effects of her injury for more than six months,
and Petitioner has not, nor has anyone to her knowledge, filed, participated in, or collected
an award or settlement from any civil action for her vaccine-related injury. Petition at ¶¶ 1,
9, 10. The case was assigned to the Special Processing Unit of the Office of Special
Masters.
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-00440-UNJ Document 30 Filed 12/16/24 Page 2 of 2
On September 26, 2024, I issued findings of fact, finding that preponderant
evidence supported a finding that Petitioner received a flu vaccine in her left arm on
August 18, 2021 (ECF No. 25). On November 5, 2024, Respondent filed an amended
Rule 4(c) report in which he states that, recognizing that my fact ruling is law of the case,
he will not defend the case on other grounds during proceedings in the Office of Special
Masters, although he reserves the right to appeal my fact ruling. Respondent’s Amended
Rule 4(c) Report at 2. However, in light of my fact ruling, Respondent states that the
record evidence supports a finding that Petitioner suffered a left-sided SIRVA as defined
by the Vaccine Injury Table, in that “petitioner had no recent history of pain, inflammation,
or dysfunction of her shoulder; the pain was limited to the shoulder in which the vaccine
was administered; and no other condition or abnormality, such as brachial neuritis, has
been identified to explain petitioner’s shoulder pain.” Id. at 5. Respondent further agrees
that Petitioner suffered residual effects of her condition for more than six months and,
subject to Respondent’s right to appeal the findings of fact, he does not dispute that
Petitioner has satisfied all legal prerequisites for compensation under the Vaccine Act. Id.
In view of Respondent’s position and the evidence of record, I find that
Petitioner is entitled to compensation.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
2