Celuch v. Secretary of Health and Human Services ( 2021 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-544V
UNPUBLISHED
LORI CELUCH, Chief Special Master Corcoran
Petitioner, Filed: May 10, 2021
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Decision Awarding Damages; Pain
HUMAN SERVICES, and Suffering; Influenza (Flu)
Vaccine; Shoulder Injury Related to
Respondent. Vaccine Administration (SIRVA)
Paul R. Brazil, Muller Brazil, LLP, Dresher, PA, for petitioner.
Ryan Daniel Pyles, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
On April 16, 2018, Lori Celuch 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 she suffered a Shoulder Injury Related to Vaccine
Administration (“SIRVA”) as a result of an influenza (“flu”) vaccine administered on
October 17, 2016. Petition at 1. The case was assigned to the Special Processing Unit of
the Office of Special Masters.
For the reasons described below, I find that Petitioner is entitled to an award of
damages in the amount of $71,120.00, representing compensation in the amount of
1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am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 E-
Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the decision 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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
$70,000.00 for actual pain and suffering and $1,120.00 for past unreimbursable
expenses.
I. Relevant Procedural History
As indicated above, this matter was filed in April 2018. On March 4, 2019,
Respondent filed a status report stating that he would be willing to engage in discussions
regarding a potential settlement of this case. ECF No. 19. The parties were thereafter
ordered to file recurring status reports regarding the progress of their settlement
discussions. See generally ECF Nos. 20, 22, 24, 26, 29.
On August 22, 2019, Petitioner filed a status report indicating that the parties had
reached an impasse in their discussions. ECF No. 30. Respondent thereafter filed a Rule
4(c) Report opposing compensation on November 12, 2019. ECF No. 32. Respondent
asserted that Petitioner had not established all of the elements necessary for a SIRVA
Table claim, including onset of the shoulder pain within 48 hours of the vaccination. Res.
Report at 3-4. Respondent additionally argued that there was evidence indicating
Petitioner’s symptoms were not limited to the shoulder in which the vaccine was
administered. Id. at 4.
On January 27, 2020, I issued a fact ruling finding that Petitioner’s left shoulder
pain occurred within 48 hours of her October 17, 2016 flu vaccination. ECF No. 37. At a
status conference held on March 12, 2020, Petitioner agreed to file an expert report
addressing Respondent’s remaining objections to compensation as set forth in the Rule
4(c) Report. ECF No. 40.
Petitioner filed an expert report and accompanying medical literature on August
17, 2020. ECF Nos. 44-45. On September 17, 2020, Respondent filed an Amended Rule
4(c) Report3 (ECF No. 46) conceding entitlement, and l issued a ruling finding Petitioner
entitled to compensation on September 24, 2020. ECF No. 48. The next month, on
October 26, 2020, Petitioner filed a status report indicating that the parties had again
reached an impasse in their discussions to informally resolve damages. ECF No. 50. I
subsequently set a briefing schedule to resolve the disputed damages issue.
Petitioner filed her brief (“Br.”) in support of damages on January 8, 2021 (ECF No.
52), and Respondent responded (“Opp.”) on February 23, 2021. ECF No. 53. Petitioner
filed a reply brief on March 9, 2021. ECF No. 54. I thereafter proposed that the parties be
given the opportunity to argue their positions at a motions hearing, at which time I would
3 Respondent indicated that he reserved the right to a potential appeal of the January 27, 2020 factual
ruling, and maintained that a finding of entitlement to compensation could not be sustained if the ruling were
vacated or overturned on appeal. See Amended Res. Report at 2 n.1.
2
decide the disputed damages issues. ECF No. 55. The parties confirmed that they were
amenable to this proposal (ECF No. 56), and the hearing was held on April 30, 2021. This
written decision memorializes my resolution of the matter.4
The parties are in agreement as to Petitioner’s entitlement to $1,120.00 for past
unreimbursable medical expenses (ECF No. 56), leaving only the determination of a pain
and suffering award in dispute.
II. Legal Standard
Compensation awarded pursuant to the Vaccine Act shall include “[f]or actual and
projected pain and suffering and emotional distress from the vaccine-related injury, an
award not to exceed $250,000.” Section 15(a)(4). Additionally, a petitioner may recover
“actual unreimbursable expenses incurred before the date of judgment award such
expenses which (i) resulted from the vaccine-related injury for which petitioner seeks
compensation, (ii) were incurred by or on behalf of the person who suffered such injury,
and (iii) were for diagnosis, medical or other remedial care, rehabilitation . . . determined
to be reasonably necessary.” Section 15(a)(1)(B). The petitioner bears the burden of proof
with respect to each element of compensation requested. Brewer v. Sec’y of Health &
Human Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18,
1996).
There is no mathematic formula for assigning a monetary value to a person’s pain
and suffering and emotional distress. I.D. v. Sec’y of Health & Human Servs., No. 04-
1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013) (“[a]wards for
emotional distress are inherently subjective and cannot be determined by using a
mathematical formula”); Stansfield v. Sec’y of Health & Human Servs., No. 93-0172V,
1996 WL 300594, at *3 (Fed. Cl. Spec. Mstr. May 22, 1996) (“the assessment of pain and
suffering is inherently a subjective evaluation”). Factors to be considered when
determining an award for pain and suffering include: 1) awareness of the injury; 2) severity
of the injury; and 3) duration of the suffering. I.D., 2013 WL 2448125, at *9 (quoting
McAllister v. Sec’y of Health & Human Servs., No 91-1037V, 1993 WL 777030, at *3 (Fed.
Cl. Spec. Mstr. Mar. 26, 1993), vacated and remanded on other grounds, 70 F.3d 1240(Fed. Cir. 1995)).
4 At the end of the hearing, I issued an oral ruling from the bench on damages in this case. That ruling is
set forth fully in the transcript from the hearing, which is yet to be filed with the case’s docket. The transcript
from the hearing is, however, fully incorporated into this Decision.
3
I may also consider prior pain and suffering awards to aid my resolution of the
appropriate amount of compensation for pain and suffering in this case. See, e.g., Doe
34 v. Sec’y of Health & Human Servs., 87 Fed. Cl. 758, 768 (2009) (finding that “there is
nothing improper in the chief special master’s decision to refer to damages for pain and
suffering awarded in other cases as an aid in determining the proper amount of damages
in this case.”). And I may of course rely on my own experience (along with my predecessor
Chief Special Masters) adjudicating similar claims. Hodges v. Sec’y of Health & Human
Servs., 9 F.3d 958, 961 (Fed. Cir. 1993) (noting that Congress contemplated the special
masters would use their accumulated expertise in the field of vaccine injuries to judge the
merits of individual claims).
Although pain and suffering in the past was often determined based on a
continuum, as Respondent argues, that practice was cast into doubt by the Court several
years ago. Graves v. Sec’y of Health & Human Servs., 109 Fed. Cl. 579, 489-90 (2013).
In Graves, Judge Merrow rejected a special master’s approach of awarding compensation
for pain and suffering based on a spectrum from $0.00 to the statutory $250,000.00 cap.
Judge Merrow maintained that to do so resulted in “the forcing of all suffering awards into
a global comparative scale in which the individual petitioner’s suffering is compared to the
most extreme cases and reduced accordingly.” Graves, 109 Fed. Cl. at 590. Instead,
Judge Merrow assessed pain and suffering by looking to the record evidence, prior pain
and suffering awards within the Vaccine Program, and a survey of similar injury claims
outside of the Vaccine Program. Id. at 595. Under this alternative approach, the statutory
cap merely cuts off higher pain and suffering awards – it does not shrink the magnitude
of all possible awards as falling within a spectrum that ends at the cap.
III. Appropriate Compensation in this SIRVA Case
Ms. Celuch’s awareness of her injury is not disputed, leaving only its severity and
duration to be considered. In determining an appropriate pain and suffering award, I have
carefully reviewed the complete record in this case. I have also considered prior awards
for pain and suffering in both SPU and non-SPU SIRVA cases, and relied upon my
experience adjudicating such cases. However, my determination is ultimately based upon
the specific circumstances of this case.
In his brief, Respondent argues that an award of $45,000.00 is appropriate for pain
and suffering based on the documented severity of Petitioner’s pain, her treatment
course, and record evidence suggesting pre-vaccination shoulder pathology. Opp. at 2,
6. Respondent also references two prior reasoned SIRVA decisions within the Program
4
– Bossenbroek5 and Knauss6 – in support of his proposed award. However, Respondent
asserts that pain and suffering awards outside the Program (often arising in state court
tort actions) should also be considered, and he provides a list of such cases as a
comparison to the present matter. Id. at 7-8. I have considered Respondent’s arguments
but find that awards issued within the Program (especially as set forth in reasoned
decisions) are most persuasive. It is important to bear in mind the policy purposes of the
Program – that it is a no-fault system intended to be generous in many regards, resulting
in a slightly different scale (that admittedly may produce higher award values than the
non-Program comparables pointed to by Respondent). Thus, other reasoned decisions
in the Vaccine Program provide the most useful guidance in reaching an award amount
in this case.7
For her part, Ms. Celuch requests an award of $85,000.00 for pain and suffering
and cites four prior SPU damages determinations – Attig,8 Marino,9 Kim,10 and
Bordelon.11 Br. at 1, 4-6. Petitioner argues that of these four cases, Attig and Bordelon
are the most comparable to the present matter due to similarities in the petitioners’ overall
treatment course, although some factors (e.g., the amount of physical therapy) actually
establish a greater degree of severity in this case. Id. at 5-6.
5Bossenbroek v. Sec’y of Health & Human Servs., No. 17-122V, 2020 WL 2510454 (Fed. Cl. Spec. Mstr.
April 3, 2020) (awarding $50,000.00 for past pain and suffering).
6Knauss v. Sec’y of Health & Human Servs., No. 16-1372V, 2018 WL 3432906 (Fed. Cl. Spec. Mstr. May
23, 2018) (awarding $60,000.00 for pain and suffering).
7 I reject Respondent’s argument, however, that the amounts awarded in proffered cases are a more
accurate gauge of the appropriate amount to be awarded than reasoned decisions from the court and
special masters. A proffer is simply Respondent’s assessment of the appropriate amount to be awarded,
and a special master’s approval of an award at a proffered level does not provide a reasoned instance,
produced by a judicial neutral that can be looked to when evaluating the damages to be awarded – even if
settled cases and proffers provide some evidence of the kinds of awards received overall in comparable
cases.
8Attig v. Sec'y of Health & Human Servs., No. 17-1029V, 2019 WL 1749405 (Fed. Cl. Spec. Mstr. Feb. 19,
2019) (awarding $75,000.00 for pain and suffering).
9Marino v. Sec'y of Health & Human Servs., No. 16-0622V, 2018 WL 2224736 (Fed. Cl. Spec. Mstr. Mar.
26, 2018) (awarding $75,000.00 for pain and suffering).
10Kim v. Sec'y of Health & Human Servs., No. 17-418V, 2018 WL 3991022 (Fed. Cl. Spec. Mstr. July 20,
2018) (awarding $75,000.00 for pain and suffering).
11Bordelon v. Sec'y of Health & Human Servs., No. 17-1892V, 2019 WL 2385896 (Fed. Cl. Spec. Mstr.
April 24, 2019) (awarding $75,000.00 for pain and suffering).
5
Pursuant to my oral ruling on April 30, 2021 (which is fully adopted herein), I find
that $70,000.00 represents a fair and appropriate amount of compensation for
Petitioner’s actual pain and suffering. My decision has several bases.12
The overall severity of the injury at issue is not high enough to warrant the
magnitude of the award requested by Ms. Celuch. Indeed, the evidence in this case
establishes that Petitioner experienced a relatively mild SIRVA which did not necessitate
immediate care, surgery, or lengthy overall treatment. Thus, Petitioner first sought
treatment for her left shoulder pain on December 19, 2016 – 63 days following
vaccination. Ex. 2 at 6. At that time, Petitioner rated her pain as “5” out of “10” and was
observed to have reduced shoulder range of motion, positive impingement sign, and mild
weakness. Id. at 7. She was prescribed Voltaren gel for symptom relief, authorized to
obtain an MRI, and referred to physical therapy. Id. A subsequent MRI of Petitioner’s left
shoulder completed on December 30, 2016, revealed only mild findings, including mild
tendinopathy of the supraspinatus and infraspinatus tendons. Id. at 2-3.
The next month, on January 10, 2017, Ms. Celuch underwent an initial physical
therapy evaluation. Ex. 4 at 1. Petitioner rated her pain as “6” or “7” out of “10” and stated
that she was unable to perform overhead activities due to pain.13 Id. at 1, 53. On
examination, Petitioner presented with 105 degrees of active shoulder flexion; 95 degrees
of active shoulder abduction; 70 degrees of active external rotation; and 45 degrees of
active internal rotation. Id. at 1. Petitioner was also observed to have positive
impingement signs and weakness of the shoulder. Id. at 2.
Over the next four months, Ms. Celuch underwent 24 total physical therapy
sessions with gradual improvement of her symptoms. Id. at 3-48. At her final appointment
on May 4, 2017, Petitioner reported that her shoulder felt “great,” and that she had
“recovered 100% since [her] initial visit.” Id. at 47. Petitioner indicated that she would
continue treatment with a home exercise program. Id.At an orthopedic appointment the next month, on June 16, 2017, Ms. Celuch
reported continuing left shoulder pain that worsened with lifting. Ex. 2 at 4. She rated her
pain as “2” out of “10.” Id. On examination, Petitioner presented with positive impingement
sign and mild weakness. Id. at 5. Her orthopedist administered a corticosteroid injection
and advised Petitioner to continue activities as tolerated. Id. There are no records of any
subsequent treatment
12A more complete recitation of the facts can be found in the Petition, Respondent’s Rule 4(c) Report, and
the parties’ briefing.
13Petitioner’s medical record documents a handwritten mark on a line reflecting pain levels ranging from
“0” to “10.” Ex. 4 at 53. It appears Petitioner rated her pain as “6” or “7” out of “10.” Id.6
Based on the above, I find that Petitioner was largely recovered by June 16, 2017
(approximately eight months post-vaccination), as reflected by her mild reported pain and
the lack of any subsequent treatment. My award for pain and suffering has accounted for
the cumulative record evidence documenting Petitioner’s pain and functional limitations,
her MRI findings, her physical therapy, and her overall treatment course.
I have considered the reasoned damages decisions cited by the parties but find
that the cases most analogous to the matter at hand, and hence providing appropriate
benchmarks for what the award in this case should be, are Bordelon and George.14 These
cases share many relevant characteristics with the present matter, including the total
duration of injury (approximately eight months), the generally mild findings on MRI
imaging, and the administration of one corticosteroid injection. Bordelon, 2019 WL
2385896, at *5-6. George, 2020 WL 4692451, at *2-3. As with Ms. Celuch, the petitioners
in these cases were additionally recorded as having good prognoses at the conclusion of
their treatment with physical therapy.
Nevertheless, a slightly higher award is warranted in this case compared to
George, given the more severe documented levels of pain recorded throughout Ms.
Celuch’s treatment course. George, 2020 WL 4692451, at *2. Conversely, Petitioner’s
course was less severe than the claimant in Bordelon, who sought post-vaccination
treatment within two weeks, rated her most severe pain as “8” or “9” out of “10,” and was
the single mother of three children during the period she was injured. Bordelon, 2019 WL
2385896, at *1, 5-6. $70,000.00 is a reasonable outcome, falling in the range between
these two otherwise-comparable cases.
IV. Conclusion
For all of the reasons discussed above and based on consideration of the record
as a whole, I find that $70,000.00 represents a fair and appropriate amount of
compensation for Petitioner’s actual pain and suffering.15 I also find that Petitioner
is entitled to $1,120.00 in actual unreimbursable expenses.
14George v. Sec'y of Health & Human Servs., No. 18-0426V, 2020 WL 4692451 (Fed. Cl. Spec. Mstr. July
10, 2020) (awarding $67,000.00 for pain and suffering).
15Since this amount is being awarded for actual, rather than projected, pain and suffering, no reduction to
net present value is required. See § 15(f)(4)(A); Childers v. Sec’y of Health & Human Servs., No. 96-0194V,
1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health & Human
Servs., 32 F.3d 552 (Fed. Cir. 1994)).
7
Based on the record as a whole and arguments of the parties, I award Petitioner
a lump sum payment of $71,120.00 in the form of a check payable to Petitioner. This
amount represents compensation for all damages that would be available under § 15(a).
The clerk of the court is directed to enter judgment in accordance with this
decision.16
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
16Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
8