Duda v. Secretary of Health and Human Services
19-31
| Fed. Cl. | Oct 12, 2021Background:
- Petitioner Debra L. Duda received a flu vaccine on December 6, 2017 and later alleged it caused adhesive capsulitis of the left shoulder.
- The main factual dispute is when her shoulder pain began: petitioner later reported onset December 6, 2017; contemporaneous records place onset in mid-January 2018.
- Key contemporaneous evidence: Feb. 5, 2018 urgent-care note (reports pain began ~2.5 weeks earlier) and Feb. 5, 2018 patient-portal message stating a burning dull ache developed over the prior couple weeks.
- Other contemporaneous material: January 29, 2018 chiropractor note describing "new" and intense pain; Facebook posts from Jan.–Mar. 2018 describing pain beginning in January and worsening thereafter.
- Later statements (March–June 2018 VAERS report, patient-portal messages, clinic histories, affidavits) assert onset at the time of vaccination; the Special Master found these later accounts potentially influenced by litigation and less reliable than contemporaneous records.
- Ruling: by preponderance of the evidence petitioner’s shoulder pain began around January 10, 2018 and worsened about January 18, 2018 (i.e., ~35 days after vaccination); this timing precludes a SIRVA finding under the 48-hour regulatory definition, though petitioner did not pursue a SIRVA claim.
Issues:
| Issue | Plaintiff's Argument (Duda) | Defendant's Argument (HHS) | Held |
|---|---|---|---|
| Onset timing of shoulder pain | Pain began at/soon after vaccination (Dec. 6, 2017) | Contemporaneous records show mid-Jan. onset (~Jan. 10–18) | Pain began ~Jan. 10, worsened ~Jan. 18 (preponderance) |
| Weight of contemporaneous records vs later statements | Later statements and testimony reflect true memory of Dec. onset | Contemporaneous medical records and early portal messages are more reliable | Contemporaneous Feb. 5 records (urgent care and portal) given greater weight; later reports discounted as potentially litigation-influenced |
| SIRVA (shoulder injury related to vaccine administration) timing requirement | (Not alleged) | Onset not within regulatory 48 hours, so cannot meet SIRVA definition | Finding of Jan. 10 (35 days post-vaccine) precludes SIRVA as defined; petitioner did not assert SIRVA |
| Causation next steps given timing gap | Vaccine caused adhesive capsulitis despite later onset | Timing undermines SIRVA; causation requires expert analysis | Causation not resolved here; parties ordered to give this factual ruling to any retained expert and a status conference was set |
Key Cases Cited
- Moberly v. Sec'y of Health & Human Servs., 592 F.3d 1315 (Fed. Cir. 2010) (explaining the preponderance standard for Vaccine Program factfinding)
- Cucuras v. Sec'y of Health & Human Servs., 993 F.2d 1525 (Fed. Cir. 1993) (contemporaneously created medical records are presumptively accurate)
- Kirby v. Sec'y of Health & Human Servs., 997 F.3d 1378 (Fed. Cir. 2021) (medical records may not list every problem a patient is experiencing)
- Doe 11 v. Sec'y of Health & Human Servs., 601 F.3d 1349 (Fed. Cir. 2010) (a special master's factfinding may rely on preponderant evidence despite some inconsistent items)
- Reusser v. Sec'y of Health & Human Servs., 28 Fed. Cl. 516 (1993) (contemporaneous documentation by disinterested persons is generally more reliable than later recollections)