Smith v. Secretary of Health and Human Services
19-1109
| Fed. Cl. | Apr 11, 2022Background
- Petitioner Stacy Smith received an influenza vaccination in her right deltoid on October 2, 2018 and alleges she felt immediate, sharp right-shoulder pain at the time.
- Petitioner filed a Vaccine Program petition on July 30, 2019; Respondent disputed that onset occurred within 48 hours.
- Multiple medical records (including primary care notes, orthopedics intake, MRI history, and PT/clinic notes) consistently document shoulder pain beginning after the October 2018 flu shot; MRI (Feb 2020) showed a full-thickness supraspinatus tear and other shoulder pathology.
- Two chiropractor records from December 2018 state Petitioner injured her shoulder in a fall while painting; Petitioner swore those entries were mistaken and that she told the chiropractor her pain began after the vaccine.
- Petitioner explained she did not mention shoulder pain at brief October 31 and November 13, 2018 visits because those visits were for unrelated issues and she hoped the pain would resolve.
- Special Master Oler found, based on the record and affidavits, that onset of right-shoulder pain was the day of vaccination (Oct 2, 2018) and ordered Respondent to file an amended Rule 4 report reflecting that finding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timing of onset (within 48 hours / day-of vaccination) | Smith: immediate sharp pain at vaccination; affidavits + multiple medical records say pain began after flu shot | HHS: medical records do not show onset within 48 hours; petitioner failed to report pain at two early visits; chiropractor records report a fall-related injury | Onset found to be Oct 2, 2018 (day of vaccination); preponderance favors petitioner |
| Weight/credibility of contemporaneous records vs later affidavits | Smith: affidavits explain omissions and deny the chiropractor’s account; later contemporaneous records corroborate vaccine-onset | HHS: contemporaneous records generally presumptively reliable; inconsistent chiropractor entries undermine petitioner’s timeline | Special Master credited the bulk of contemporaneous records and petitioner’s affidavits as consistent and persuasive; two chiropractor entries found inconsistent with the overall record |
Key Cases Cited
- Moberly v. Secretary of Health & Human Services, 592 F.3d 1315 (Fed. Cir.) (discusses preponderance standard for Vaccine Program claims)
- Cucuras v. Secretary of Health & Human Services, 993 F.2d 1525 (Fed. Cir.) (contemporaneous medical records are generally trustworthy)
- Doe/70 v. Secretary of Health & Human Services, 95 Fed. Cl. 598 (Fed. Cl.) (contemporaneous records presumptively accurate)
- Murphy v. Secretary of Health & Human Services, 23 Cl. Ct. 726 (Ct. Cl.) (oral testimony conflicting with contemporaneous records is entitled to little weight)
- United States v. United States Gypsum Co., 333 U.S. 364 (U.S.) (documentary evidence typically outweighs conflicting oral testimony)
- La Londe v. Secretary of Health & Human Services, 110 Fed. Cl. 184 (Fed. Cl.) (explains possible reasons for inconsistencies between records and later testimony)
- Burns by Burns v. Secretary of Health & Human Services, 3 F.3d 415 (Fed. Cir.) (special masters must provide rationale when weighing competing evidence)
- In re Winship, 397 U.S. 358 (U.S.) (sets the standard that a fact must be shown more likely than not to meet the preponderance threshold)