In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-1999V
UNPUBLISHED
ANGELA LYNCH, Chief Special Master Corcoran
Petitioner, Filed: May 21, 2021
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Findings of Fact; Site of Vaccination
HUMAN SERVICES, Influenza (Flu) Vaccine; Shoulder
Injury Related to Vaccine
Respondent. Administration (SIRVA)
Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
Petitioner.
Emilie Williams, U.S. Department of Justice, Washington, DC, for Respondent.
FINDINGS OF FACT1
On December 21, 2017, Angela Lynch 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”) as a result of an influenza (“flu”) vaccine received on November
4, 2016. Petition at 1. The case was assigned to the Special Processing Unit of the Office
of Special Masters (the “SPU”).
1
Because this unpublished fact ruling contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002. 44 U.S.C. § 3501 note (2012) (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 (2012).
Respondent states that he is unable to formulate a position on the merits of this
case because there is a lack of evidence establishing that the vaccine at issue in this
case was administered in Petitioner’s right arm, as alleged. Respondent’s Report (“Resp.
Rpt.”) at 1-2. For the reasons discussed below, I find that the flu vaccine Petitioner
received in November 2016 was more likely than not administered in her right arm.
I. Relevant Procedural History
As noted, the case was initiated in December 2017, and Petitioner spent the initial
months of its existence filing medical records. On October 9, 2018, Respondent filed a
status report requesting clarification on whether the vaccine at issue was in fact
administered in Petitioner’s right shoulder. (ECF No. 19). Respondent noted that
Petitioner’s proof of vaccination was either illegible (Exhibit (“Ex.”) 1) or identified
Petitioner’s left shoulder as the site of vaccination (Ex. 11 at 3). Former Chief Special
Master Dorsey ordered Petitioner to investigate whether there were any additional
documents or evidence to establish that she received the November 4, 2016 flu
vaccination in her right shoulder. (ECF No. 20)
On November 21, 2018, Petitioner filed a status report stating that despite
numerous attempts, she had been unable to obtain additional clarification regarding the
injection site of the flu vaccine. (ECF No. 21). Petitioner maintained that the vaccine
administration record that noted that the vaccine was administered to her left shoulder
was an error, and she noted that all treatment records consistently identify her right arm
as the vaccinated shoulder. Id. Petitioner requested that a ruling be made based on the
evidence available in the record. Id.
On June 18, 2019, a telephonic status conference was held. (ECF No. 22).
Petitioner’s counsel requested authorization to issue a subpoena to the pharmacy or to
the parent company to obtain any and all information related to Petitioner’s record of
vaccination. Id. The parties discussed how to proceed and agreed that resolution of the
administration issue on the papers would be appropriate after all additional information
was obtained and filed into the record. Id.
Petitioner served the subpoena on Rite Aid Corporation (“Rite Aid”), but despite
her numerous and diligent efforts, she was unable to obtain any further documentation.
Petitioner’s counsel was informed by in-house counsel for Rite Aid that “for whatever
reason the records are not available.” (ECF No. 28). Counsel for Rite Aid also indicated
“that Rite-Aid no longer operates any stores in the State of Tennessee.” Id. The attorney
for Rite-Aid did provide Petitioner with a screenshot of its “Medication History” record
request for Petitioner which shows “No records found for the date range 01/01/1999-
11/05/2019.” Pet. Ex. 13 at 1.
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On March 20, 2020, Respondent filed his report pursuant to Vaccine Rule 4(c).
(ECF No. 33). In it, Respondent states that although the Petition and accompanying
documents have been reviewed by medical personnel of the Division of Injury
Compensation Programs, Department of Health and Human Services, “they have been
unable to formulate a position on the merits of the case given the lack of evidence
establishing the administration of a vaccination.” Id. at 1. Respondent stated that because
Petitioner had not substantiated that the vaccination was given in her right arm, the
petition should be dismissed. Id. at 7. In the alternative, Respondent requested a ruling
regarding the site of administration. Id.
On March 31, 2020, Petitioner filed a “Motion to Compel and to Set Briefing
Schedule.” (ECF No. 34). Petitioner argued that the Rule 4(c) report was “entirely non-
responsive” as Respondent failed to provide a position on the case and state whether
Petitioner had met the criteria for a Table SIRVA injury. Petitioner further argued that
Respondent provided no medical analysis as is required under Vaccine Rule 4(c). Id. at
2. Petitioner moved for an order striking the Rule 4(c) report and compelling Respondent
to file a more substantive report. Id. at 3.
On July 13, 2020, Petitioner filed a motion for a factual ruling regarding the site of
administration of the November 4, 2016 flu vaccination. (ECF No. 38). On August 12,
2020, Respondent filed a response (ECF No. 39) simply stating that he joins in Petitioner’s
request for a ruling on the site of administration based on the record. On August 27, 2020,
Petitioner filed a reply. (ECF No. 40). The issue of the site of vaccine administration is
now ripe for resolution.
II. Issue
At issue is whether Petitioner received the vaccination alleged as causal in her
right arm. 42 C.F.R. § 100.3(a) XIV.B. (2017) (influenza vaccination).
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
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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. In Lowrie, the special master wrote that “written records which
are, themselves, inconsistent, should be accorded less deference than those which are
internally consistent.” Lowrie, at *19.
The United States Court of Federal Claims has recognized that “medical records
may be incomplete or inaccurate.” Camery v. Sec’y of Health & Human Servs., 42 Fed.
Cl. 381, 391 (1998). The Court later 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, 42 Fed.
Cl. at 391 (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 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 § 12(d)(3); Vaccine Rule 8); see also Burns v. Sec’y of
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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).
IV. Finding of Fact
I make these findings after a complete review of the record, including all medical
records, affidavits, the motion and response, and other evidence filed. Specifically, I rely
upon the following evidence:
Ex. 1 at 1-6, is a vaccination record from Rite Aid establishing that a flu
vaccine was administered to Petitioner on November 4, 2016. This record,
while difficult to read due to the copying of the document, has “R” circled,
suggesting Petitioner’s right deltoid as the administration situs. A note from
Pharmacist, Anthony R. Blair, states that “Immunization Consent forms
won’t print off any darker than this. Patient received flu shot on 11/04/2016
at the Rite Aid Pharmacy on 1128 Fort Campbell Blvd, Clarksville 37042
(Tennessee) Anthony R Blair Pharmacist.” Id. at 4.
Ex. 11 at 1, a Rite Aid Pharmacy Prescription Form confirms that a “flu shot”
was administered to Ms. Lynch on November 4, 2016. However, the
prescription details form indicates that the site of administration is “Left
Upper Arm.” Id. at 3. I note that this is the only document in the entire record
that indicates or even suggests that Petitioner received the vaccine in her
left arm.
Ex. 8 at 3, a certified record from Maxwell Clinic dated November 17, 2016,
less than two weeks following vaccination, documents that Petitioner
complained of “right deltoid area pain after having a flu shot on 4 November.
P[atien]t states she had pain down the arm at the time of injection. An
assessment of “Arm pain” was made. Id. at 5. Petitioner was prescribed
medication for pain and inflammation and encouraged to use heat on the
affected area. Id.
Ex. 6 at 59. On November 30, 2016, less than four weeks after the
November 4, 2016 vaccination, Petitioner had a follow-up appointment for
her knee surgery with Dr. Cabrera. Pet. Ex. 6 at 59. She reported pain in
her right shoulder following her flu shot. Id. She reported problems moving
her shoulder and rated her pain as 10/10. Id. On exam, she had good
mobility but pain with shoulder abduction. Id. Dr. Cabrera diagnosed
Parsonage-Turner syndrome and prescribed a Medrol Dosepak. Id. Dr.
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Cabrera noted: “[I]t sounds like she has developed some inflammation from
the injection of the flu shot.” Id.
Ex. 5 at 1, On December 15, 2016, Petitioner presented to a physician
assistant (“PA”) at the Bone and Joint Group complaining of right
shoulder/arm pain for approximately six weeks. Pet. Ex. 5 at 1. She reported
pain since receiving her flu shot and described it as located in the lateral
shoulder and radiating down the right arm. Id. The PA diagnosed right
shoulder pain and subacromial bursitis, administered a steroid injection,
prescribed Pennsaid (a nonsteroidal anti-inflammatory), and referred
Petitioner to physical therapy. Id. at 1-2.
Ex. 5 at 2, dated December 26, 2016, from Bone & Joint Group states that
Petitioner reported that the pain in her right shoulder has decreased since
receiving the steroid injection.
Ex. 4 at 2, a certified record from Star Physical Therapy dated December
30, 2016, reports that Petitioner stated that she was injured by a flu shot on
November 4, 2016. She reported an onset of symptoms “immediately
following injection. Pt states she felt a sharp pain radiate from R shoulder
to R elbow.” Petitioner received treatment to her right shoulder.
Ex. 12 at 1, a record from Covenant Family Practice dated March 16, 2018,
notes that Petitioner complained of right shoulder pain. The note states “The
location of the pain is deep. It radiates to the arm. The pain initially started
2 years ago. The apparent precipitating event was started since flu shot in
2016.” On exam, Petitioner had decreased range of motion of her right
shoulder and noted pain. Id. at 3.
Ex. 13 at 1. Rite Aid provided a screenshot of its search for records for
Petitioner and it is noted “No records found for the date range of 01/01/1999
– 11/05/2019.”
Ex. 14 at 1-2. Rite Aid provided a certification of records confirming that
there are no records related to Petitioner.
Ex. 9, Petitioner’s affidavit, at ¶1, where Petitioner recalls receiving the flu
shot in her right arm from a Rite Aid Pharmacy. Petitioner stated:
When the pharmacist administered the shot, I felt pain that traveled
down my arm all the way to my elbow. Right after receiving the
shot, my arm was sore and ached in pain. A few hours later, it hurt
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to move my arm in all directions. That night I could not sleep
without the pain waking me up. My arm hurt when I tried to reach
across my body, and when reaching overhead…
Lastly, it was extremely difficult obtaining my flu shot record from
Rite Aid. At first they said they did not have a record. Then they
said they threw the hard copy away and all they had was a scanned
copy on file. I have had to go to the pharmacy at least 4 times and
have talked to the pharmacist over the phone a couple of times.
They also told me that the person who gave me the shot no longer
works for Rite Aid.
Ex. 9 at ¶¶ 1, 6.
Petitioner filed a supplemental affidavit, as well as several witness
declarations from her co-worker, mother, and husband, who all describe
Petitioner as having no right arm pain prior to her November 4, 2016. Each
describes observing Petitioner complaining about right shoulder pain as a
result of her November 4, 2016 flu vaccination. (Exs. 15-18). Notably, David
Lynch, Petitioner’s husband, accompanied Petitioner to Rite-Aid and
received a flu vaccination at the same time as Petitioner. He averred that
right after Petitioner’s received the vaccine, Petitioner told him that “she had
felt the vaccine go down her right arm and it hurt to move.” Ex. 18 at 1.
The above records and witness statements preponderantly support the conclusion
that the November 4, 2016 flu vaccine Ms. Lynch received was likely administered in her
right arm. Although Ex. 11 records the site of vaccination as Petitioner’s left deltoid, the
preponderance of the evidence indicates that the vaccine was more likely administered
in Petitioner’s right arm. Indeed – virtually all evidence in the record temporally thereafter
supports that allegation. In particular, in seeking treatment Petitioner consistently related
her right shoulder pain to her November 2016 flu vaccination. I agree and confirm
Petitioner’s observation that the ten medical record exhibits, created by five different
medical providers, consistently associate Petitioner’s right shoulder pain with the flu shot
she received on November 4, 2016. Petitioner’s Motion for Factual Ruling (“Pet. Mot.”) at
8. (ECF No. 38). I also find significant that many of these records were created close in
time to the administration of the vaccination. The very first medical record created two
weeks after vaccination (November 17, 2016) specifically notes that Petitioner was
experiencing pain to her right shoulder immediately after the injection. Ex. 8 at 3.
By contrast, there is limited evidence suggesting the left arm was the situs of
administration. The sole record from Rite Aid which indicates the vaccination at issue was
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administered in Petitioner’s left upper arm cannot even be corroborated by other records
from Rite Aid - namely the Vaccine consent prepared by Rite Aid, which has the letter “R”
circled on the form, further supporting the conclusion that Petitioner’s right arm was
vaccinated. “Written records which are, themselves, inconsistent, should be accorded
less deference than those which are internally consistent.” Murphy v. Sec’y of Health &
Human Servs., 968 F.2d 1226 (Fed. Cir. 1992).
Accordingly, I find there is preponderant evidence to establish that the vaccination
alleged as causal in this case was, more likely than not, administered in Petitioner’s right
arm on November 4, 2016. Thus, Petitioner’s motion for a fact ruling is granted.
V. Scheduling Order
Petitioner should proceed with preparing a settlement demand, with supporting
documentation, for Respondent’s consideration.
Accordingly, the following is ORDERED:
(1) Petitioner shall file all updated medical records by Friday, June 25,
2021.
(2) Respondent shall file, by no later than Friday, June 25, 2021, a status
report indicating his position in light of this ruling. I strongly
encourage the parties to discuss an informal resolution of this case.
(3) Additional proceedings will be set after the information in this Order
is filed.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
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