In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

No. 19-314V

UNPUBLISHED

RONDA BRUM SMITH,

 Petitioner,

v.

SECRETARY OF HEALTH AND 

HUMAN SERVICES,

 Respondent.

Chief Special Master Corcoran 

Filed: April 26, 2022

Special Processing Unit (SPU); 

Findings of Fact; Onset; Tetanus 

Diphtheria acellular Pertussis (Tdap) 

Vaccine; Shoulder Injury Related to 

Vaccine Administration (SIRVA)

Jeffrey S. Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA, for Petitioner.

Jennifer Leigh Reynaud, U.S. Department of Justice, Washington, DC, for Respondent.

FINDINGS OF FACT1

On February 28, 2019, Ronda Smith 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 a tetanus diphtheria acellular pertussis (“Tdap” or 

“tetanus”) vaccine she received on February 29, 2016, caused her to suffer the Table 

injury of “Shoulder Injury Related to Vaccine Administration” (“SIRVA”). Petition at 1, ECF 

No. 1; Amended Petition filed July 22, 2019, ECF No. 12. The case was assigned to the 

Special Processing Unit of the Office of Special Masters.

1 Because this unpublished Fact Ruling contains a reasoned explanation for the action in this case, I am 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 EGovernment 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).
2

For the reasons discussed below, I find the onset of Petitioner’s SIRVA more likely 

than not occurred within 48 hours of vaccination. 

I. Relevant Procedural History

Respondent filed his Rule 4(c) Report in April 2020, a little more than a year after 

the claim’s initiation. ECF No. 25. Respondent specifically maintained therein that that the 

evidence preponderated against a finding that the onset of Petitioner’s shoulder pain 

occurred within 48 hours of her vaccination as required by the Vaccine Injury Table. Id.

at 6-8 (citing 42 C.F.R. § 100.3(c)(10)(ii) (required onset for pain listed in the QAI)). 

Respondent further argued that Petitioner had not provided evidence sufficient to 

establish causation-in-fact under the relevant standard. Id. at 8-9.

I subsequently ordered Petitioner to file any additional evidence in support of her 

claim she could identify. In response, Petitioner filed sworn declarations from 12 

individuals asserting knowledge in regard to the onset of her injury, among other things. 

Exhibits 25-38. I convened a status conference on January 27, 2021, and strongly 

encouraged the parties to settle this case given the significant litigative risk that existed

on both sides. ECF No. 33. Subsequently, Petitioner provided a demand to Respondent, 

but Respondent advised that his position was unchanged and that he was “not interested 

in [an] informal resolution” of this case. ECF No. 34.

Accordingly, the parties proceeded to brief the issue of onset for my consideration. 

On April 5, 2021, Petitioner filed her brief, ECF No. 36; Respondent filed a brief in 

response on May 20, 2021, ECF No. 38; and Petitioner filed a brief in reply on May 27, 

2021, ECF No. 39. This matter is ripe for adjudication. 

II. Issue

At issue is whether Petitioner’s first post-vaccination symptom or manifestation of 

onset (specifically pain) occurred within 48 hours as set forth in the Vaccine Injury Table 

and Qualifications and Aids to Interpretation (“QAI”) for a Table SIRVA. 42 C.F.R. § 

100.3(a) I.C & II.C. (Tdap vaccination); 42 C.F.R. § 100.3(c)(10)(ii) (required onset for 

pain listed in the QAI).

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, 
3

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 

the balance, accuracy has an extra premium. These records are also generally 

contemporaneous to the medical events.” Cucuras v. Sec’y of Health & Hum. 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 & Hum. Servs., No. 03-

1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, this rule 

does not always apply. “Written records which are, themselves, inconsistent, should be 

accorded less deference than those which are internally consistent.” Murphy v. Sec’y of 

Health & Hum. Servs., No. 90-882V, 1991 WL 74931, *4 (Fed. Cl. Spec. Mstr. April 25, 

1991), quoted with approval in decision denying review, 23 Cl. Ct. 726, 733 (1991), aff'd 

per curiam, 968 F.2d 1226 (Fed.Cir.1992)). And the Federal Circuit recently “reject[ed] as 

incorrect the presumption that medical records are accurate and complete as to all the 

patient’s physical conditions.” Kirby v. Sec’y of Health & Hum. Servs., 997 F.3d 1378, 

1383 (Fed. Cir. 2021).

The United States Court of Federal Claims has 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 & Hum. 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 v. Sec’y 

of Health & Hum. Servs., 42 Fed. Cl. 381, 391 (1998) (citing Blutstein v. Sec’y of Health 

& Hum. Servs., No. 90-2808, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998). 

The credibility of the individual offering such fact testimony must also be determined. 

Andreu v. Sec’y of Health & Hum. Servs., 569 F.3d 1367, 1379 (Fed. Cir. 2009); Bradley 

v. Sec’y of Health & Hum. 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 
4

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 Section 12(d)(3); Vaccine Rule 8); see also Burns v. 

Sec’y of Health & Hum. 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 to include all medical 

records, affidavits or declarations, Respondent’s Rule 4 report, the parties’ briefs, and 

additional evidence filed. Specifically, I note the following facts from the medical record:

• Petitioner established care with a new physician, Camellia Babaie, M.D., on 

February 29, 2016. Ex. 11 at 10-13. At that visit, Petitioner received a Tdap 

vaccination in her left deltoid. Ex. 10 at 1.

• Petitioner returned to see Dr. Babaie on March 15, 2016, to follow-up 

regarding her lab results. Ex. 11 at 33. The record from March 15, 2016 

contains no mention of shoulder pain or Petitioner’s Tdap vaccination.

• On April 15, 2016, Petitioner was seen again by Dr. Babaie for a complaint 

of “left shoulder pain x 3 weeks.3 Noted the onset when waking one 

morning. States it hurts to lift her arm at the shoulder, limit[s] her motions. . 

. . Does not recall any particular trauma.” Ex. 11 at 38. Dr. Babaie assessed 

Petitioner with left shoulder pain, specifically indicating “possible left 

shoulder impingement syndrome vs rotator cuff tear” and advised Petitioner 

to take ibuprofen as needed. Id. at 40.

• Petitioner underwent an MRI on April 26, 2016, Ex. 11 at 42-43, and 

returned to see Dr. Babaie on April 29, 2016, Id. at 44. Petitioner 

complained that her shoulder pain had become more severe “after reaching 

behind her for her sunhat” and experiencing “searing pain radiating from her 

3 Three weeks prior to April 15, 2016 would have been approximately March 25, 2016.
5

shoulder.” Id. at 44. Petitioner was assessed with a labral shoulder tear. Id.

at 45.

• Petitioner was seen again by Dr. Babaie for her shoulder injury on May 16 

and May 31, 2016, and had a second MRI on May 25, 2016. These 

appointments do not discuss the initial onset of Petitioner’s injury. Ex. 11 at 

47-54. However, on May 31, 2016, Dr. Babaie referred Petitioner to see an 

orthopedist for further evaluation and management of her shoulder injury. 

Id. at 53-54.

• Prior to seeing orthopedist, Robert Mazurek, M.D, Petitioner completed a 

patient history form dated June 8, 2016. Ex. 13 at 13. The form asks if the

“problem” was due to an injury. Id. Petitioner indicated that she was “not 

sure orig[inally] then later yes.” Id. The form also requests the patient 

indicate how the injury happened. Petitioner indicated: “2/29/2016 Had 

Tdap booster – shoulder/arm became extremely sore + limited ROM. 

4/27/16 Jerked both arms over head to catch hat flying off + hurt 

arm/shoulder badly. Shoulder became even more sore w[ith] waves of pain 

down arm, limited ROM etc.” Id.

• Petitioner was first seen by Dr. Mazurek on June 9, 2016. Dr. Mazurek’s

record of this visit notes that Petitioner had “a several month history of left 

shoulder pain and loss of function [which] she states it all started with an 

intramuscular injection [and] then she had a reinjury trying to catch her ha[t] 

as the wind below [it] off her head.” Ex. 13 at 3. 

• Petitioner was referred to physical therapy and underwent an initial 

examination on June 17, 2016. The intake examination record provides a 

history that Petitioner received a “Tetanus booster in Feb[uary] – L[eft] 

shoulder became very painful – couldn’t move – started improving – then 

wind blew hat off – made quick grab – felt tearing in shoulder – severe pain 

since.” Ex. 14 at 6. 

• Shortly thereafter, in July 2016, Petitioner sought chiropractic treatment for 

her shoulder pain and completed associated patient intake information 

forms. Under the “Patient Condition” section of these forms Petitioner 

reported complaints of “shoulder pain, weakness, limited range of motion.” 

Ex. 15 at 8. Petitioner recorded February 29, 2016 as the date she “first 

noticed symptoms” in regard to her complaints and when asked to describe 

how the symptoms began Petitioner reported as follows: “2/29/16 received 
6

booster tetanus shot + symptoms began. Then on 4/27/16 hat flew off + 

tried to catch – symptoms increased.” Ex. 15 at 8.

• Petitioner underwent her first chiropractic treatment with Aaron Ayala, D.C. 

on July 5, 2016. Dr. Ayala indicates that Petitioner presented “with a new 

complaint of left anterior shoulder discomfort that she says began since 

Tdap vaccination.” Ex. 15 at 11. 

• On November 7, 2016, Petitioner sought treatment from a new orthopedist, 

Sumit Rana, M.D. for her left shoulder pain. Ex. 16 at 2. Dr. Rana’s history 

of Petitioner’s left shoulder pain indicates that “[o]n 2/29/16 patient received 

Tdap vaccine and shoulder became painful and frozen. Patient jerked arm 

to catch hat on 4/27/16 and caused extreme pain in left shoulder. The 

problem is improving especially with the active release from the 

chiropractor.” Id.

• Petitioner began a second round of physical therapy for her left shoulder

with a new provider on April 17, 2017. Ex. 17 at 4. The reason for the referral 

indicates the “onset [of shoulder pain] was 2/29/16 shortly after she received 

a tetanus booster update. The shot hurt at the time of inject[ion] and then 

she had a strong reaction with swelling.” Id.

As the preceding facts demonstrate, the records corresponding to Petitioner’s 

March 15, 2016 visit with Dr. Babaie – the first after vaccination - fail to document any 

report of shoulder pain. In addition, the records from Petitioner’s subsequent April 15, 

2016 visit with Dr. Babaie document a report of shoulder pain for three weeks – placing 

onset in late March, nearly a month after Petitioner’s vaccination. And the first record 

setting forth Table onset is from June 2016 – more than three months post-vaccination, 

and despite prior opportunities to seek treatment for alleged pain. Based on these records

alone, it could reasonably be concluded that onset occurred more than 48 hours postvaccination.

On the other hand, Petitioner has filed numerous sworn declarations, including her 

own, in support of her position that the onset of her shoulder pain began within 48 hours 

of her vaccination. Petitioner’s declaration describes the administration of a Tdap

vaccination in her left shoulder, and a flu vaccination in her right shoulder, on February 

29, 2016. Ex. 1, ¶ 5. Petitioner indicates that she observed that her left shoulder “felt 

strange almost immediately,” and that “[b]y the time I walked to my car my left shoulder 

was already hurting.” Id., ¶ 6. Petitioner adds that she telephoned Dr. Babaie’s office a 
7

day or two later, since her pain continued, but was advised by the nurse answering the 

phone to “give it time” and her “pain would go away.” Id, ¶ 7. 

Thereafter, at a follow-up appointment with Dr. Babaie on March 15, 2016, to 

discuss her lab work, Petitioner asserts that she reported to Dr. Babaie that she had 

experienced shoulder pain since immediately following her tetanus shot. Ex. 1, ¶ 8. But

she maintains that Dr. Babaie was not concerned with her complaint, informing her that

she should give it more time and “the soreness was just due to the shot.” Id. Then, at the 

April 15th return visit, Dr. Babaie told her that “a vaccine could not cause a shoulder

injury,” asked whether she could have injured her shoulder another way, adding that many 

people with “frozen shoulder just woke up with it like that one day.” Id., ¶ 9. Petitioner

also contests the accuracy of the record’s note that she “woke up” with the injury. Id, ¶

10.

Besides her own declaration, Petitioner has also offered sworn declarations from

her family, friends, and acquaintances, all of whom recall Petitioner experiencing shoulder 

pain and describing the onset of the pain as closely following her vaccination. Exs. 26-

27, 29-37. Several of the declarants are family members who indicate that they saw 

Petitioner the day of her February 29, 2016 vaccination, and specifically recall her

immediate complaints of shoulder pain from the shot. Exs. 26-27, 31,33.4

The declarations discussed above would not have been sufficient alone to 

overcome the contemporaneous medical records. However, the witness statements

corroborate, and are consistent with, the contemporaneous medical records from the five

other treaters (aside from Dr. Babaie).

The Vaccine Act specifically contemplates that in some cases 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)(emphasis added). The Act elaborates 

that “[s]uch 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.

4 I also note that Petitioner has filed purported text messages and personal notes memorializing her 

February 29, March 15, April 15, and April 29, 2016 medical appointments in support of a 48-hour onset.

Exs. 25, 28. Petitioner maintains in her brief that it is her “custom and habit” to make notes about what was 

discussed following her medical appointments and describes the text messages as communications with 

her daughter from May 29, 2016 documenting that her pain began with her vaccination. ECF No. 36 at 20-

21. However, this evidence was not corroborated by way of affidavit or other means, accordingly while I 

have no reason to dispute the veracity of this evidence, I afford it substantially less weight.
8

When Petitioner’s medical records are viewed as a whole, it is readily observable 

that Dr. Babaie’s onset records are inconsistent with the onset records of every other 

provider with whom Petitioner treated for her shoulder injury. Beginning with orthopedist, 

Dr. Mazurek, who Petitioner saw on June 9, 2016 – a little more than three months after 

her vaccination – each subsequent provider’s records describe the onset of Petitioner’s

injury as occurring on February 29, 2016 (the date of her vaccination), or “since” or 

concurrent with her Tdap vaccination. Ex. 13 at 3, 13; Ex. 14 at 6; Ex. 15 at 8, 11; Ex. 16 

at 2; Ex. 17 at 4. This includes the contemporaneous records of two orthopedic offices, 

two physical therapy offices, and a chiropractic practice. Three of these five providers’ 

onset histories were recorded within five months of Petitioner’s February 29, 2016 

vaccination and thus were also reasonably contemporaneous to the onset of Petitioner’s 

pain. Ex. 13 at 3, 13; Ex. 14 at 6; Ex. 15 at 8, 11.

In sum, while the most contemporaneous records (Dr. Babaie’s) do not support a 

finding of Table onset, I find that those records5 are outweighed (and outnumbered) by 

the consistent onset histories contained in Petitioner’s subsequent treatment records –

the most persuasive of which – are collectively dated within 128 days (or less than five 

months) of Petitioner’s February 29, 2016 vaccination. Ex. 13 at 3, 13; Ex. 14 at 6; Ex. 15 

at 8, 11. Onset in these later records is further corroborated by the declarations of 

Petitioner and the 12 other witness declarations offered in support of Petitioner’s case. 

The fact that several of these treatment-related records were generated within five

months of vaccination is also relevant to this inquiry; this is not a case where a petitioner 

relies on records long after the immediate timeframe to prove onset.

Thus, the totality of the evidence preponderantly supports the conclusion that 

Petitioner’s shoulder pain occurred within 48 hours of her vaccination, and likely began 

the same day – February 29, 2016 – that her Tdap vaccination was administered.

6 I 

reiterate, however, that this is an especially weak preponderant showing – enough to 

barely cross the “fifty percent and a feather” line, but not enough to fully remove all doubt 

that onset was possibly later. If it becomes necessary for me to determine damages in 

this matter, I will take into consideration the fact that Petitioner’s alleged shoulder pain is 

not documented in her medical records until nearly seven weeks following her vaccination

5 Petitioner’s February 29, 2016 Tdap vaccination was administered by Dr. Babaie’s office and under her 

supervision. Ex. 10 at 1. Petitioner, in her Reply brief, argues that “it is possible and probable that Dr. Babaie 

did not include Petitioner’s complaints about her shoulder pain stemming from the tetanus vaccination 

because she feared litigation since the vaccination was administered in her office.” ECF No. 39 at 2-3. 

While this contention is not facially unreasonable, it does not find corroboration in the evidentiary record, 

and thus I do not deem it an additional reason to doubt the accuracy of Dr. Babaie’s records-keeping.

6 While I have not specifically addressed every medical record, or all arguments presented in the parties’ 

briefs, I have fully considered all records as well as arguments presented by both parties. 
9

– indicating that Petitioner’s shoulder pain (even if reported to Dr. Babaie on March 15, 

2016) was not severe enough to warrant mention close-in-time to vaccination, or to 

compel Petitioner to make an earlier medical appointment to address her shoulder pain. 

And the exacerbation of that pain was attributable to an independent injury in late April, 

by Petitioner’s own admission.

V. Scheduling Order

Respondent shall file a Supplemental Rule 4(c) Report, taking into 

consideration the above fact finding, by no later than Monday, May 25, 2022.

IT IS SO ORDERED.

s/Brian H. Corcoran

Brian H. Corcoran

Chief Special Master