Zebofsky v. Secretary of Health and Human Services, 15-1084

Petitioner Steven Zebofsky filed a Vaccine Program petition alleging right shoulder injury (SIRVA) from an influenza vaccination received October 18, 2014; medical records show he received two injections that day in the right arm (influenza and adult pneumococcal).
The influenza vaccine is covered by the Vaccine Program; the adult pneumococcal vaccine (Pneumovax 23) is not.
Parties engaged in settlement discussions but disagreed because both vaccines were administered in the injured arm, leaving causation between the two vaccines in dispute.
Petitioner moved for subpoena authority to obtain Walgreens’ Immunization Policy and Procedures; the special master denied the subpoena request as having limited probative value.
The special master reviewed contemporaneous medical records and found preponderant evidence that petitioner attributed his pain and swelling to the flu shot in records nearest the vaccination date.
The special master issued a factual ruling that the influenza vaccination, not the pneumococcal vaccination, caused the right shoulder injury and ordered a status report on settlement by January 31, 2017.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Which vaccine caused the shoulder injury?	Zebofsky’s medical records (near-term) identify the flu shot as causing pain/swelling.	Respondent disputed causation between two injections; sought further proof.	Preponderant evidence supports that the influenza vaccine caused the injury, not the pneumococcal vaccine.
Probative value of Walgreens’ immunization policy/procedures	Petitioner sought subpoena to show how injections are administered.	Respondent/Court: policy would show procedures, not what actually occurred; limited probative value.	Motion for subpoena denied; records would not materially affect causation finding.
Weight of contemporaneous medical records vs. later statements	Petitioner pointed to later ambiguities admitting he cannot recall which injection was first.	Respondent relied on those ambiguities to contest causation.	Court gives greater weight to medical records created close in time to the event; resolves close calls for petitioner.

Cucuras v. Sec’y of Health & Human Servs., 993 F.2d 1525 (Fed. Cir. 1993) (medical records created near the event are generally trustworthy and may be given greater weight)
Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274 (Fed. Cir. 2005) (close factual questions in vaccine cases should be resolved in favor of petitioners)