Borris v. Secretary of Health and Human Services
18-1518
| Fed. Cl. | Jun 25, 2021Background
- Petitioner Sharon Borris alleged she suffered a left-shoulder SIRVA from an influenza vaccine administered October 8, 2015, and filed a petition in the Vaccine Program.
- Medical records show documented left shoulder/upper-arm pain beginning in 2014, treatment with PT in early 2015, and a diagnosis of adhesive capsulitis in January 2016.
- Petitioner did not attribute her later shoulder problems to the October 2015 vaccine until 2018 after consulting an attorney; contemporaneous records consistently link her post‑vaccine condition to the earlier shoulder problems.
- Petitioner submitted late affidavits and treating‑provider letters asserting a distinct post‑vaccine injury but did not produce an expert report despite being instructed to do so.
- Respondent disputed causation; the Chief Special Master found the record contradicted petitioner’s narrative, concluded Table SIRVA requirements were unmet, found Althen causation unsupported, and dismissed the petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Petitioner meets the Table SIRVA requirement of "no prior shoulder pain" | Borris: prior 2014–15 pain resolved before vaccine; new pain began after Oct 8, 2015 | Sec'y: contemporaneous records show prior and ongoing shoulder pathology predating vaccine | Not a Table SIRVA; Table requirement not satisfied |
| Whether vaccine is a cause‑in‑fact (Althen test) | Borris: vaccine caused later adhesive capsulitis; supported by treating letters and affidavits | Sec'y: no expert proof; contemporaneous records point to continuity from pre‑existing bursitis to capsulitis | Failed Althen prong two (logical causal sequence); causation not shown |
| Proper weight of contemporaneous medical records vs later affidavits/treating letters | Borris: later statements and treating‑provider letters support vaccine causation | Sec'y: contemporaneous records are more reliable and contradict later assertions | Court credited contemporaneous records; later affidavits/letters insufficient to overcome them |
| Procedural adequacy / failure to produce expert evidence | Borris: elected not to file expert, relied on record and treating statements | Sec'y: requested expert; argued record insufficient | Case dismissed for failure to provide preponderant evidence of causation (and for failure to prosecute evidence) |
Key Cases Cited
- Althen v. Sec'y of Health & Human Servs., 418 F.3d 1274 (Fed. Cir. 2005) (sets three‑pronged test for proving causation in off‑Table vaccine claims)
- Shyface v. Sec'y of Health & Human Servs., 165 F.3d 1344 (Fed. Cir. 1999) (vaccine must be a substantial factor and a logical sequence of cause and effect is required)
- Grant v. Sec'y of Health & Human Servs., 956 F.2d 1144 (Fed. Cir. 1992) (medical theory connecting vaccine and injury required)
- Cucuras v. Sec'y of Health & Human Servs., 993 F.2d 1525 (Fed. Cir. 1993) (contemporaneous medical records are presumed accurate and carry substantial weight)
- Hellebrand v. Sec'y of Health & Human Servs., 999 F.2d 1565 (Fed. Cir. 1993) (discusses burden and preponderance standard in Vaccine Program claims)
- Capizzano v. Sec'y of Health & Human Servs., 440 F.3d 1317 (Fed. Cir. 2006) (treating physician opinions are given substantial weight when contemporaneous and detailed)
- Reusser v. Sec'y of Health & Human Servs., 28 Fed. Cl. 516 (1993) (examines weight of contemporaneous records versus later testimony)