KENNEDY v. SECRETARY OF HEALTH AND HUMAN SERVICES

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 23-0511V
JAMES KENNEDY,
Petitioner,
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Chief Special Master Corcoran
Filed: December 1, 2025
Brian L. Cinelli, Schiffmacher Cinelli Adoff, LLP, Buffalo, NY, for Petitioner.
Elizabeth Andary, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT1
On April 13, 2023, James Kennedy 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 he suffered a shoulder injury related to vaccine
administration (“SIRVA”) after an influenza ("flu”) vaccine he received on October 2, 2020.
Petition at 1. The case was assigned to the Special Processing Unit of the Office of
Special Masters.
For the reasons set forth below, I find that Petitioner more likely than not suffered
the residual effects of his injury for more than six months, that he has provided
preponderant evidence of onset within 48 hours, and that he has satisfied all of the
1 Because this Ruling contains a reasoned explanation for the action taken in this case, it must be made
publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or
at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government
Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government
Services). This means the 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 (2018).
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requirements of a Table SIRVA claim. Petitioner is therefore entitled to compensation
under the Vaccine Act.
I. 	Relevant Procedural History
On January 30, 2024, Respondent filed a Rule 4(c) Report contending that
Petitioner has not met the statutory severity requirement due to a gap in treatment, and
that he cannot show that the onset of his pain occurred within forty-eight hours of
vaccination. Rule 4(c) Report at 7-10. Respondent also argued that Petitioner had not
proven that he had no history of left shoulder symptoms because pre-vaccination medical
records had not been filed. Id. at 10. Petitioner then filed a Motion for Ruling on the Record
(“Mot.”) on July 2, 2024. ECF No. 23. Respondent filed a response (“Resp.”) on August
30, 2024 and Petitioner filed a reply (“Repl.”) on October 7, 2024. ECF No. 24, 27.
The matter is now ripe for adjudication.
II. 	Relevant Facts
Petitioner received a flu vaccine in his left deltoid on October 2, 2020. Ex. 2 at 1.
He recalled that he “felt a sharp pain in [his] shoulder as soon as the shot was given.” Id.
at ¶6. He “decided to wait a while to see if the pain went away” and took ibuprofen for
pain. Id. at ¶8.
Mr. Kennedy saw his primary care provider (“PCP”) nineteen days later, on
October 21, 2020. Ex. 4 at 2. He complained of left shoulder pain that “started after getting
a flu shot in that arm about 3 weeks ago.” 3 Id. An x-ray was ordered, which was normal.
Id. at 3.
On November 30, 2020, Petitioner saw an orthopedist for “left shoulder pain after
getting his flu shot in September 2020.” Ex. 6 at 11. On exam, he displayed reduced range
of motion and positive impingement testing. Id. He was diagnosed with impingement
syndrome, prescribed Celebrex and referred to physical therapy. Id. at 12. A steroid
injection was “deferred.” Id.
Petitioner began physical therapy on December 8, 2020. Ex. 7 at 84. He reported
that his left shoulder symptoms “began after getting a flu shot,” and specified that the
“pain began immediately.” Id. He had less than functional range of motion and positive
impingement testing. Id. at 85-86. Treatment was planned for six weeks and Petitioner
was given a home exercise program. Id. at 87.
Petitioner returned to the orthopedist on January 11, 2021. Ex. 6 at 8. He reported
no change in left shoulder symptoms. Id. The doctor ordered an MRI and advised
3 The records from Petitioner’s PCP are handwritten, with some illegible portions. See Ex. 4.
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Petitioner to continue physical therapy. Id. at 9. The MRI revealed “[s]train of teres minor
myotendinous junction and subjacent chronic cystic erosion of tuberosity margin and
subjacent marrow signal heterogeneity,” “[s]mall para labral cysts . . . indicating labral tear
with scarring,” and “[m]ild acromioclavicular joint degenerative disease.” Id. at 15-16.
During a follow-up appointment on January 29, 2021, the orthopedist prescribed a Medrol
dosepak and referred Petitioner back to physical therapy. Id. at 6.
Petitioner attended his last physical therapy session of this course on March 2,
2021. Ex. 7 at 48. He reported continued difficulty with overhead activities. Id. He had
made progress toward, but had not reached, his short- or long-term treatment goals. Id.
Petitioner stated that he “felt [he] had to discontinue physical therapy at that time” due to
his campaign for reelection to the Nassau County legislature. Ex. 1 at ¶3, 11. He stated
that he continued with his home exercise program and used Advil for pain. Id. at ¶11.
Petitioner returned to the orthopedist on March 26, 2021, five months and 24 days
after vaccination. Ex. 6 at 2. He reported no change in symptoms. Id. The record notes
that Petitioner had travel plans the following day and planned to receive a steroid injection
in two weeks. Id. at 3.
That same day, Petitioner sought a second opinion from a different orthopedist.
Ex. 9 at 2. He reported left shoulder pain “starting following [sic] getting a flu shot on
10/2/2020.” Id. The doctor assessed Petitioner with a rotator cuff strain. Id. at 3. He
recommended continued physical therapy, home exercises, and ice treatment. Id. He
stated that he would recommend a cortisone injection if Petitioner’s pain did not improve.
Id. He advised Petitioner to follow-up in four weeks. Id.
Petitioner (who was apparently then running for office) returned to treatment “after
[the] election concluded in November 2021.” Ex. 1 at ¶14. He saw his orthopedist on
December 21, 2021 – about nine months after his last appointment. Ex. 9 at 11. He
reported “sharp pain with lifting heavy objects,” and “stiffness and pain that wakes him up
at night.” Id. Petitioner was encouraged to return to physical therapy and to return in four
weeks. Id. at 12.
Petitioner returned to physical therapy on March 2, 2022. Ex. 7 at 117. He reported
worsening pain and muscle strength “over the past year despite performing [an HEP].” Id.
He attended nine sessions through April 4, 2022. Id. at 88, 91. At his last session,
Petitioner reported improvement, but continued trouble lifting above shoulder height. Id.
at 91.
Petitioner followed up with his orthopedist twice more, on April 15, 2022 and May
20, 2022. Ex. 9 at 6-10. The doctor considered a repeat MRI or arthroscopic surgery if
Petitioner’s symptoms continued. Id.
There are no additional treatment records filed in this matter.
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Petitioner’s wife submitted an affidavit in support of Petitioner’s claim. See Ex. 3.
Ms. Kennedy received a flu vaccine at the same time as Petitioner. Id. at ¶4. After the
injection, she recalled she and Petitioner talked about “how high up on our shoulders the
shot was given and about how much they hurt compared to prior shots.” Id. at ¶5. She
remembered that Petitioner “appeared to be in significant pain and discomfort over the
next couple weeks.” Id. at ¶6. Ms. Kennedy stated that Petitioner “decided to continue
with just a home exercise plan” in the “springtime” due to his campaign. Id. at ¶7. She
stated that his arm was “definitely still bothering him” and she would “observe him being
in pain and discomfort on a regular basis.” Id. at ¶8. She recalled that Petitioner returned
to treatment after the election in November. Id.
Petitioner’s 	mother-in-law, 	Lois 	Schmitt, 	who 	resides 	in 	an 	in-law 	suite 	in
Petitioner’s home, also filed an affidavit. See Ex. 17 at ¶2. She recalled talking to
Petitioner on the evening of his vaccination about the pain he experienced from the
injection. Id. at ¶4. She remembered that she volunteered to care for Petitioner’s children
that evening as he “could barely lift his arm.” Id. at ¶5.
Petitioner’s campaign manager, Tom Sullivan, submitted an affidavit in which he
described Petitioner’s schedule during the election in 2021. Ex. 18. He recalled that
Petitioner would visit 50-100 houses per day speaking to constituents from the “beginning
of March up until the first Tuesday of November (Election Day).” Id. at ¶7. He remembered
Petitioner working “from the morning until late at night, five to six times a week during this
time period.” Id.
Jillian DiPreta, the mother of Petitioner’s son’s friend, also submitted an affidavit.
Ex. 21. She stated that Petitioner coached her son’s baseball team during the spring and
summer of 2021. Id. at ¶5. She remembered that, during that season, Petitioner “would
mostly be in charge of keeping score in the book in the dugout,” because he was “not
able to actively coach or participate the way her did before.” Id.
III. 	Applicable Legal Standards
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). The Vaccine Act also requires that a petitioner demonstrate that “residual effects
or complications” of a vaccine-related injury continued for more than six months. Vaccine
Act §11(c)(1)(D)(i). A petitioner cannot establish the length or ongoing nature of an injury
merely through self-assertion unsubstantiated by medical records or medical opinion.
§13(a)(1)(A). “[T]he fact that a petitioner has been discharged from medical care does not
necessarily indicate that there are no remaining or residual effects from her alleged
injury.” Morine v. Sec’y of Health & Human Servs., No. 17-1013V, 2019 WL 978825, at
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*4 (Fed. Cl. Spec. Mstr. Jan. 23, 2019); see also Herren v. Sec’y of Health & Human
Servs., No. 13-1000V, 2014 WL 3889070, at *3 (Fed. Cl. Spec. Mstr. July 18, 2014).
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 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, 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 & Human 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 & Human Servs., No. 03-
1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, this rule
does not always apply. In Lowrie, the special master wrote that “written records which
are, themselves, inconsistent, should be accorded less deference than those which are
internally consistent.” Lowrie, at *19. 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 & Human Servs., 997 F.3d 1378,
1383 (Fed. Cir. 2021).
The United States Court of Federal Claims has recognized that “medical records
may be incomplete or inaccurate.” Camery v. Sec’y of Health & Human Servs., 42 Fed.
Cl. 	381, 	391 	(1998). 	The 	Court 	later 	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 & Human 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, 42 Fed.
Cl. at 391 (citing Blutstein v. Sec’y of Health & Human Servs., No. 90-2808, 1998 WL
408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998). The credibility of the individual offering
such testimony must also be determined. Andreu v. Sec’y of Health & Human Servs., 569
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F.3d 1367, 1379 (Fed. Cir. 2009); Bradley v. Sec’y of Health & Human Servs., 991 F.2d
1570, 1575 (Fed. Cir. 1993).
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 & Human 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).
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). “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.
IV. 	Findings of Fact
A. Severity
To satisfy the statutory severity requirement, Petitioner must demonstrate that his
SIRVA symptoms continued until at least April 2, 2021 (six months after immediate onset
of Petitioner’s pain). There is no dispute that Petitioner sought treatment for his shoulder
pain through March 26, 2021 (five months and 24 days after vaccination), and then did
not seek treatment again for nine months. Respondent argues that this gap in treatment
defeats severity, and that Petitioner’s attempts to explain it should be disregarded
because they were “made in the context of litigation.” Resp. at 8.
Respondent seems to suggest that a petitioner must prove continuous symptoms
through the entirety of a gap in treatment. But the Act requires only that he prove that his
symptoms lasted up to the cut-off date – here, seven days after Petitioner’s two
orthopedist appointments on March 26, 2021. The records of both visits that day
document ongoing symptoms and contemplated ongoing care, including cortisone
injections. Ex. 6 at 2-3 (plan for a steroid injection in two weeks); Ex. 9 at 2-3 (plan to
continue physical therapy and follow up in four weeks). Thus, at that time Petitioner
continued to experience symptoms that required ongoing treatment, and at least one
orthopedist believed that he required treatment for at least an additional month, if not
more. It is reasonable on this record to conclude that Petitioner more likely than not
suffered continuing symptoms for at least seven days after the orthopedist appointments.
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Petitioner has also provided a credible explanation for the gap in treatment
between March and December 2021. Petitioner stated that he was running for reelection
to the county legislature in 2021, and that he felt he had to stop treatment due to his
campaign duties. Ex. 1 at ¶3. Petitioner’s campaign manager corroborated Petitioner’s
statements, by providing details about Petitioner’s schedule during that period. Ex. 18 at
¶7. He recalled that Petitioner would visit 50-100 houses per day speaking to constituents
from the “beginning of March up until the first Tuesday of November (Election Day)”,
working “from the morning until late at night, five to six times a week during this time
period.” Id. Petitioner returned to treatment not long after the election in November, when
he felt “able to start treating again.” Ex. 1 at ¶14. Petitioner’s testimony is corroborated in
the records as well. When he returned to physical therapy treatment, he reported that his
pain had worsened despite performing his home exercises during the interim. Ex. 7 at
117.
Thus, 	after 	consideration 	of 	the 	entire 	record, 	I 	find 	that 	the 	evidence
preponderates in Petitioner’s favor on this issue. Of course, any gaps in treatment, no
matter the reason, will be properly considered when determining damages in this case.
B. Onset
Respondent next argues that “the medical records do not establish that Petitioner
suffered the first symptoms or manifestation of onset of a shoulder injury within forty-eight
hours of his October 2, 2020 flu vaccination.” Resp. at 13.
But Respondent’s argument ignores several medical records that either relate
Petitioner’s pain directly to his flu shot, or explicitly state onset occurred within 48 hours
of vaccination. See Ex. 4 at 2 (left shoulder pain that “started after getting a flu shot in
that arm about 3 weeks ago”); Ex. 6 at 11 (“left shoulder pain after getting his flu shot”);
Ex. 7 at 84 (left shoulder symptoms “began after getting a flu shot,” and specified that the
“pain began immediately”). It is well settled that Petitioners need not be perfectly precise
in their reporting to satisfy the onset requirement. See Flowers v. Sec’y of Health &
Human Servs., 2024 WL 2828211 at *11 (Fed. Cl. Spec. Mstr. May 8, 2024). Petitioner’s
medical records corroborate onset beginning within 48 hours after vaccination, and there
is no evidence suggesting a longer onset.
Further, Petitioner provided affidavit testimony that corroborates Table onset. Both
Petitioner 	and 	his 	wife 	recalled 	discussing 	shoulder 	pain 	immediately 	after 	the
vaccination. Ex. 1 at ¶6; Ex. 3 at ¶5. Petitioner also explained that he decided to wait for
the pain to resolve, and when it did not, he sought treatment. Ex. 1 at ¶8. Petitioner’s
mother-in-law, who lives with Petitioner, also stated that she volunteered to watch his
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children on the evening of the vaccination because of his left shoulder pain. Ex. 17 at ¶4.
Accordingly, I find there is preponderant evidence to conclude that the onset of
Petitioner’s pain began within forty-eight hours of his vaccination.
C. Prior History of Left Shoulder Pain
Respondent finally argues that “there is not adequate medical documents in the
records to address” the first QAI requirement that there be no history of prior left shoulder
pain, inflammation, or dysfunction. Resp. at 13. Respondent alleges that Petitioner had
not filed sufficient records from three years prior to vaccination and therefore, the QAI
requirement cannot be determined. Id.
Petitioner filed his pre-vaccination primary care records on November 18, 2024.
See Ex. 25. Further, although Respondent observed in his Rule 4(c) Report that there
were “notes in PT records referencing medical history,” he has not pointed to any specific
medical records suggesting that Petitioner suffered from pre-vaccination left shoulder
symptoms. Rule 4(c) Report at 10. Thus, I find that Petitioner has preponderantly
established the first QAI for a Table SIRVA.
V. 	Ruling on Entitlement
A. 	Requirements for Table SIRVA
I have found that Petitioner has preponderantly established that his pain began
within 48 hours of his vaccination and that he had no pain, inflammation, or dysfunction
in his left shoulder prior to vaccination. 42 C.F.R. § 100.3(c)(10)(i-ii). Respondent has not
contested Petitioner’s proof on the remaining elements of a Table SIRVA. See 42 C.F.R.
§ 100.3(c)(10)(i), (iii-iv). Accordingly, I find that Petitioner has provided preponderant
evidence to establish that he suffered a Table SIRVA injury.
B. 	Additional Requirements for Entitlement
Because Petitioner has satisfied the requirements of a Table SIRVA, he need not
prove causation. Section 11(c)(1)(C). However, he must satisfy the other requirements of
Section 11(c) regarding the vaccination received, the duration and severity of injury, and
the lack of other award or settlement. Section 11(c)(A), (B), and (D).
The vaccine record shows that Petitioner received an influenza vaccine in his left
deltoid on October 2, 2020 in New York. Ex. 2 at 1; Section 11(c)(1)(A) (requiring receipt
of a covered vaccine); Section 11(c)(1)(B)(i) (requiring administration within the United
States or its territories). Additionally, Petitioner has stated that he has not filed any civil
action or received any compensation for his vaccine-related injury, and there is no
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evidence to the contrary. See Ex. 1 at ¶1; Section 11(c)(1)(E) (lack of prior civil award).
And as noted above, I have found that severity has been established. See Section
11(c)(1)(D)(i) (statutory six-month requirement). Therefore, Petitioner has satisfied all
requirements for entitlement under the Vaccine Act.
Conclusion
Based on the entire record in this case, I find that Petitioner has provided
preponderant evidence satisfying all requirements for a Table SIRVA. Petitioner is
entitled to compensation in this case. A separate damages order will be issued.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
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