In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
*********************
DIANA SCHMAUDER, *
*
Petitioner, * No. 19-186V
* Special Master Christian J. Moran
v. *
*
SECRETARY OF HEALTH * Filed: February 1, 2021
AND HUMAN SERVICES, *
* Onset of shoulder pain, fact ruling
Respondent. *
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Jeffrey S. Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA, for petitioner;
Adriana R. Teitel, United States Dep’t of Justice, Washington, DC, for respondent.
FINDING OF FACT
A one-day hearing was held on January 28, 2021. At the hearing, testimony was taken
from petitioner, Ms. Diana Schmauder, and four witnesses, Ms. Judy Adams, Ms. Marianne
Thomson, Mr. Randy Schmauder, and Ms. Jennie Turner. All witnesses appeared remotely via
videoconferencing. At the end of the hearing, the undersigned found that Ms. Schmauder has
met her evidentiary burden of establishing that her shoulder pain started within 48 hours of
receiving her Prevnar 13 vaccine on July 13, 2016. The undersigned additionally made a
tentative finding of fact with respect to the amount of damages for pain and suffering, which is
contained in an order filed concurrently with this fact-finding order. For the purposes of the
record, the bases for finding that Ms. Schmauder’s shoulder pain began within 48 hours of the
vaccination are briefly reviewed below.
* * *
Petitioners are required to establish the elements of their case by a preponderance of the
evidence. 42 U.S.C. § 300aa–13(1)(a). The preponderance of the evidence standard requires a
“trier of fact to believe that the existence of a fact is more probable than its nonexistence before
[he] may find in favor of the party who has the burden to persuade the judge of the fact’s
existence.” Moberly v. Sec’y of Health & Human Servs., 592 F.3d 1315, 1322 n.2 (Fed. Cir.
2010) (citations omitted).
The process for finding facts in the Vaccine Program generally begins with analyzing the
medical records, which are required to be filed with the petition. 42 U.S.C. § 300aa–11(c)(2).
As a matter of practice, when making findings of facts the undersigned gives substantial weight
to records, such as medical records, that are created contemporaneously with the events they
describe. Appellate courts have recognized that factfinders are well-within their discretion when
choosing to give significant weight to contemporaneously created records. See, e.g., Cucuras v.
Sec’y of Health & Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993). Of course, the presence
or absence of medical records is not dispositive or binding on the outcome. Instead, the
undersigned is tasked with evaluating the entirety of the evidence in the record and determining,
based on that evidence, which facts are more likely to be true than not.
* * *
Prior to the hearing, the Secretary contested Ms. Schmauder’s claim that her arm pain
began within 48 hours of her vaccination. See Resp’t’s Status Rep., filed Sept. 24, 2020. In
response, Ms. Schmauder developed additional evidence. Based on the affidavits of Kristy
Major, Jessica Johnson, and Ms. Schmauder herself, the undersigned tentatively found that Ms.
Schmauder’s shoulder pain began no later than September 12, 2016. See order, issued Jan. 21,
2021; exhibits 1 ¶ 8, 12 ¶ 4, 15 ¶ 6. Accordingly, at the hearing, the undersigned evaluated
whether the existence of onset within 48 hours was more probable than not.
Given that the Secretary did not allege any shoulder pain prior to vaccination, the
relevant time period for consideration is July 13, 2016 (the date of vaccination), to September 12,
2016. Notably, Ms. Schmauder did not mention her shoulder pain to medical personnel until
December 19, 2016, when she called the AARP nurse help line, and did not mention the shoulder
pain to one of her ongoing medical providers, Dr. McCoy, until January 6, 2017. She had two
medical appointments between vaccination and these dates – (1) a physical therapy appointment
to address her BPPV on July 19, 2016, and (2) a gynecology appointment on August 26, 2016.
She did not mention shoulder pain at either of these appointments. Preliminarily, the
undersigned finds it reasonable that Ms. Schmauder would not report shoulder pain to a
gynecologist. Additionally, Ms. Schmauder discontinued physical therapy to address her vertigo
after the July 19, 2016 appointment and, therefore, was not attending medical appointments
during the relevant time period, in which she could have reported her shoulder pain. With this
lack of medical records created in the relevant time period, the undersigned considered the
testimonies of the testifying witnesses.
The testimonies from the witnesses other than Ms. Schmauder supported the assertion
that Ms. Schmauder’s shoulder pain began earlier than when she reported it to the AARP nurse’s
line. The testimonies of Ms. Adams and Ms. Thomson support the finding that Ms. Schmauder’s
shoulder pain began in mid-July after her vaccination, and that she began to experience mobility
issues and trouble with physical tasks involved in her volunteer work with both witnesses
approximately 2-3 weeks following the vaccination. The undersigned found both of these
witnesses to be credible and, though their accounts are not dispositive, they tend to reinforce
each other and support Ms. Schmauder’s account. Similarly, the testimonies of Ms.
Schmauder’s children also support Ms. Schmauder’s claim regarding onset, given their
memories of changes in her daily life and activities following vaccination, which she attributed
to the vaccine.
Though Ms. Schmauder’s medical records indicate a significant delay in seeking medical
treatment (she did not see a medical provider specifically for treatment of shoulder pain until
April 25, 2017), she consistently attributed her pain to the vaccination. See exhibit 1 ¶ 10, and
exhibit 26 (call with AARP nurse on December 19, 2016); exhibit 10 at 1 (portal communication
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with Dr. McCoy on January 6, 2017); exhibit 3 at 107 (report to Amanda Pinzon on April 25,
2017). The consistency of these attributions, combined with the consistent testimonies of Ms.
Adams, Ms. Thomson, and Ms. Schmauder’s children, bolster Ms. Schmauder’s claim that her
shoulder pain began immediately following the vaccination and make it unlikely that Ms.
Schmauder is misremembering the date and details of onset.
* * *
Ultimately, the undersigned has reviewed all the medical records and the testimony
provided by Ms. Schmauder and her witnesses. Accordingly, the undersigned finds that
preponderant evidence exists to conclude that, more likely than not, Ms. Schmauder’s shoulder
pain started within 48 hours of her vaccination.
Accordingly, Ms. Schmauder is ORDERED to file a status report regarding proposed
next steps by Monday, March 1, 2021.
Any questions may be directed to my law clerk, Haley Hawkins, at (202) 357-6360.
IT IS SO ORDERED.
s/ Christian J. Moran
Christian J. Moran
Special Master
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