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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: December 18, 2020
*********************
KAVITA DESAI, * PUBLISHED
*
* No. 14-811V
Petitioner, *
v. * Special Master Gowen
*
* Motion for Reconsideration;
SECRETARY OF HEALTH * Vaccine Rule 10(e)(1); Ruling on
AND HUMAN SERVICES, * Damages.
*
Respondent. *
*********************
Richard Gage, Richard Gage, P.C., Cheyenne, WY, for petitioner.
Camille M. Collett, Department of Justice, Washington, D.C., for respondent.
ORDER DENYING PETITIONER’S MOTION FOR RECONSIDERATION1
On September 4, 2014, Kavita Desai (“petitioner”), filed a petitioner for compensation
under the National Vaccine Injury Compensation Program.2 Petitioner alleged that she suffered
a right shoulder injury related to vaccine administration (“SIRVA”) as a result of receiving an
influenza (“flu) vaccination on November 15, 2012. Petition at Preamble. (ECF No. 1).
On July 30, 2020, I issued a ruling on entitlement, granting compensation to petitioner.
Desai v. Sec’y of Health & Human Servs., No. 14-811, 2020 WL 4919777 (Fed. Cl. Spec. Mstr.
July 30, 2020). The entitlement ruling included a summary of the procedural history, summary
1
Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this opinion contains a
reasoned explanation for the action in this case, I am required to post it on the website of the United States Court of
Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. This means the
opinion will be available to anyone with access to the Internet. Before the opinion is posted on the court’s
website, each party has 14 days to file a motion requesting redaction “of any information furnished by that party:
(1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that
includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of
privacy.” Vaccine Rule 18(b). An objecting party must provide the court with a proposed redacted version of the
opinion. Id. If neither party files a motion for redaction within 14 days, the opinion will be posted on the
court’s website without any changes. Id.2
The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine
Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended 42 U.S.C. §§ 300aa-10 to 34 (2012)
(hereinafter “Vaccine Act” or “the Act”). Hereinafter, individual section references will be to 42 U.S.C. § 300aa of
the Act.
of medical facts and petitioner’s submission of an expert report from Dr. Marko Bodor and
respondent’s submission of expert reports and testimony from Dr. David Ring. Desai, 2020 WL
4919777.
On August 10, 2020, I issued a ruling on damages, awarding petitioner $125,000.00 for
past pain and suffering; $1,772.60 for past unreimbursable medical expenses; $1,000.00 per year
for petitioner’s life expectancy of thirty years for future pain and suffering; and $60,886.60 for
life care plan items. Ruling on Damages (issued on August 10, 2020). In this ruling, I
summarized the facts relevant to petitioner’s damages, petitioner’s submissions and testimony
and respondent’s submissions related to damages. Id. at 2-4.
I concluded that petitioner was entitled to an award of past pain and suffering, based on
petitioner’s testimony, a review of the objective medical evidence, the parties’ briefs, as well, as
my own knowledge and experience in evaluating SIRVA claims. Id. at 9. I also concluded that
petitioner was entitled to an award of future pain and suffering of $1,000.00 per year for her life
expectancy of 30 years, based on her birthdate. Ruling on Damages at 12. Petitioner had cited to
two SIRVA cases, Anthony v. Sec’y of Health & Human Servs.,and Schettl v. Sec’y of Health &
Human Servs., to support her position that she should receive the full $250,000.00 award for pain
and suffering. Id. at 11. In her post-hearing reply brief, petitioner cited to Binette v. Sec’y of
Health & Human Servs., and Young v. Sec’y of Health & Human Servs., as SIRVA cases where
future pain and suffering was awarded upon a decision of special master. Pet. Post-Hearing
Reply at 3. Petitioner argued that Binette and Young provide “little guidance because there is no
factual background to allow for a comparison of specific circumstances.” Id. at 3.3 Petitioner
then identified Anthony v. Sec’y of Health & Human Servs., to support her argument that awards
of $250,000.00 for a SIRVA injury are not “unusual.” Id.
In the ruling, I differentiated Anthony from the petitioner’s case, noting that the petitioner
in Anthony had surgical intervention for his post-vaccination shoulder injury. I also observed that
the Schettl case was a complex regional pain syndrome case and not a SIRVA. Ruling on
Damages at 12. Instead, I compared petitioner’s injury, resulting pain, duration of injury and
interventions to two other SIRVA cases with reasoned decisions, Dhanoa and Binette where
awards for past and future pain and suffering awards were made. Ruling on Damages at 12. I
concluded that because petitioner had made great progress in improving her range of motion and
reducing her pain, but still had some mobility limitations and the injury was to her dominant arm,
she was entitled to some future pain and suffering, but not at the amount that petitioner
requested. Id. at 12.
I ordered the parties to reduce future damages to net present value and file a status report
within thirty days to provide the appropriate figure in order for a decision on damages to be
entered. Id. at 16. No judgment was entered.
3
In her post-hearing brief, petitioner stated that this case “provide[d] little guidance because there is no factual
background to allow for a comparison of specific circumstances.” Pet. Reply at 3. However, Chief Special Master
Dorsey did provide the factual basis for her award of pain and suffering in a Ruling on Damages, which petitioner
did not cite.
2
On August 19, 2020, petitioner filed a motion for reconsideration of the ruling on
damages. Petitioner’s Motion for Reconsideration (“Pet. Mot.”) (ECF No. 150). Petitioner
requested that the court “reconsider its Ruling [on] August 10, 2020,” and reiterated the request
for “$250,000.00 for the almost eight years of past pain and suffering [petitioner] has already
endured,” and, “If this Special Master awards an amount less than $250,000.00 for past pain and
suffering, then [petitioner] asks that this Special Master to award at least $25,000.00 per year for
future pain and suffering.” Pet. Mot. at 10. Petitioner did not file any additional evidence for
consideration to accompany this motion, but instead cited to other cases both in and outside the
Vaccine Program which will be discussed below.
Petitioner’s motion was granted to the extent that original decision was withdrawn for
further review. A ruling determining whether petitioner is entitled to any additional relief (a
substantive change in outcome) was deferred to allow respondent to file a response. Order on
Motion, filed Aug. 20, 2020 (ECF No. 151). On September 3, 2020, respondent filed a response
to petitioner’s motion. Respondent’s Response (Resp. Response) (ECF No. 153).
Accompanying respondent’s response was a summary of 55 cases involving shoulder injuries
and awards of pain and suffering. Resp. Response, Appendix A (ECF No. 154). Petitioner did
not file a reply.
The parties’ additional arguments have been considered. For the reasons discussed
below, petitioner’s motion for reconsideration is DENIED.
I. Legal Standard for Reconsideration
Vaccine Rule 10(e) governs motions for reconsideration of a special master’s decision. It
provides that “[e]ither party may file a motion for reconsideration of the special master’s
decision within 21 days after the issuance of the decision….” Vaccine Rule 10(e)(1). Within the
Vaccine Program, special masters have the discretion to grant a motion for reconsideration if to
do so would be in the “interest of justice.” Vaccine Rule 10(e)(3); see also Hall v. Sec’y of
Health & Human Servs., 93 Fed. Cl. 239, 251 (2010), aff’d 640 F.3d 1351 (Fed. Cir. 2011).
A party seeking reconsideration “must support the motion by a showing of extraordinary
circumstances which justify relief.” Fru-Con Constr. Corp. v. United States, 44 Fed. Cl. 298,
300 (1999). “A court may grant such a motion when the movant shows ‘(1) that an intervening
change in the controlling law has occurred; (2) that previously unavailable evidence is now
available; or (3) that the motion is necessary to prevent manifest injustice.’” System Fuels, Inc.
v. United States, 79 Fed. Cl. 182, 184 (2007), quoting Amber Resources Co. v. United States, 78
Fed. Cl. 508, 514 (2007). Many decisions state that the standard for reconsideration is congruent
with the “manifest injustice” standard utilized under Rule 59(a) of the Rules of the Court of
Federal Claims, which has been defined to be unfairness that is “clearly apparent or obvious.”
Amex Inc. v. United States, 52 Fed. Cl. 555, 557 (2002); see also See Krakow v. Sec’y of Health
& Human Servs., No. 03-632V, 2010 WL 5572074, at *3 (Fed. Cl. Spec. Mstr. Jan. 10, 2011)
(granting reconsideration of motion to dismiss case for failure to prosecute). A motion for
reconsideration “is not intended to give an unhappy litigant an additional chance to sway the
court.” Prati v. United States, 82 Fed. Cl. 373, 376 (2008) (quoting Fru-Con Constr. Corp., 44
Fed. Cl. at 300); see also Hall v. Sec’y of Health & Human Servs., 93 Fed. Cl. 239, 251 (2010).
3
As noted above, Special Masters have the discretion to grant a motion for reconsideration
if to do so would be in the “interest of justice.” Vaccine Rule 10(e)(3). There is little guidance
interpreting Vaccine Rule 10(e)(3) beyond the conclusion that is within the special master’s
discretion to decide what constitutes the “interest of justice” in a given case. See Krakow v. Sec’y
of Health & Human Servs., 2010 WL 5572074 at *3; Kottenstette v. Sec’y of Health & Human
Servs., No. 15-1016, 2020 WL 3579995 (Fed. Cl. Spec. Mstr. June 2, 2020).
II. Parties’ Arguments
a. Petitioner’s Motion
Petitioner, without citing to Vaccine Rule 10(e) or RCFC 59(a), asserts that “…the record
as a whole supports a greater pain and suffering award and requests this Court reconsider its
decision in light of the record as a whole and non-program tort awards.” Pet. Mot. at 1.
Petitioner argues that the award of $125,000.00 for past pain and suffering was too low
and that she should be awarded $250,000.00 for past pain and suffering. Pet. Mot. at 1.
Petitioner stated that “for the first few years the pain was severe and the loss of range of motion
made activities of daily living almost impossible. She continues to suffer limited range of
motion and pain, especially at certain times of the year.” Id. Petitioner stated, “Under the
circumstances, there is nothing generous about this Court’s past and future pain and suffering
awards.” Id. at 2.
Petitioner correctly acknowledges that I accepted the approach Judge Merow outlined in
Graves in that I evaluated her pain and suffering damages without regard to the statutory cap, as
part of the appropriate legal analysis for awarding compensation for pain and suffering. Pet.
Mot. at 2.4 Petitioner also acknowledges that assessing damages for pain and suffering is
inherently subjective and endorsed the factors to be considered when determining an award for
pain and suffering outlined in I.D. v. Sec’y of Health & Human Servs., No. 04-1593, 2013 WL
2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013); Pet. Mot. at 4.
However, petitioner argues that looking at Vaccine Program awards for guidance
generally represents an undervaluation of pain and suffering damages. Pet. Mot. at 4. Petitioner
states that, “When looking at SPU settlement numbers, this Court was looking at artificially low
numbers. Settlement figures do not represent fair and just compensation for injuries.” Id.Petitioner asserted, “By looking at settlement figures, this Special Master is doing what Judge
Merow counseled against in Graves. This Special Master is looking at a Vaccine Program
continuum, one established in large measure by Respondent.” Id. Petitioner stated, “Cases must
4
However, in the Vaccine Program’s subsequent history, special masters have of course not been bound by Graves,
however, they have found it persuasive. See Hanlon v. Sec’y of Health & Human Servs., 40 Fed. Cl. 625, 630
(1998) (decisions of special masters and the U.S. Court of Federal Claims constitute persuasive but not binding
authority); see also Reed v. Sec’y of Health & Human Servs., No. 16-1670V, 2019 WL 1222925, at * 12 (Fed. Cl.
Spec. Mstr. Feb. 1, 2019) (it must be stressed that pain and suffering is not based on a continuum”); Selling v. Sec’y
of Health & Human Servs., No. 166-588V, 2019 WL 3425224, at *5 (Fed. Cl. Spec. Mstr. May 2, 2019) (Pain and
suffering is not, however, determined based on a continuum); W.B. v. Sec’y of Health & Human Servs., No. 18-
1364V, 2020 WL 5509686, at *3 (Fed. Cl. Spec. Mstr. Aug. 7, 2020).
4
be reviewed based on their individual facts and circumstances, leading to unique damage awards
based on justness, fairness and generosity, not respondent’s continuum.” Id.Petitioner argues that “The specific cases looked at by this Special Master do not support
this low pain and suffering award.” Pet. Mot. at 5. Petitioner specifically takes issue with
discussion of Cooper v. Sec’y of Health & Human Servs., in the ruling on damages. Pet. Mot. at
6. Petitioner states that, “In other words, Special Master Dorsey felt that $110,000.00 was an
appropriate amount for eight months of pain and a little residual pain. [Petitioner] has suffered
almost eight years of pain and loss of range of motion at this point. The $125,000.00 awarded in
this Court’s Ruling grossly undervalues [petitioner’s] injury compared to petitioner in Cooper.”
Id. Interestingly, petitioner did not discuss Binette v. Sec’y of Health & Human Servs., which
was discussed in both the Ruling on Damages and in petitioner’s post-hearing reply brief. See
Ruling on Damages at 12 (citing Binette v. Sec’y of Health & Human Servs., No. 16-731, 2019
WL 1552620 (Fed. Cl. Spec. Mstr. March 20, 2019); Pet. Post-Hearing Reply at 3.
Petitioner offers cases outside the program, which she asserts, “provide a discussion of
reasonable compensation for a shoulder injury.” Pet. Mot. at 6. Petitioner cites to Garrow v.
Rosettie Assoc., LLC, where a plaintiff diagnosed with thoracic outlet syndrome and scapula
thoracic disassociation and found to have a permanent and significantly limited use of her right
arm and shoulder was awarded $50,000.00 in past pain and suffering and $450,00.00 in future
pain and suffering. Id. at 6; Garrow v. Rosettie Assocs. LLC, 875 N.Y.S.2d 307, 308-09, 2009
WL 537065 at *1126-27 (N.Y.A.D. 3 Dept. March 5, 2009). She argues that Griffin v. Univ. of
Pittsburgh Med. Center-Braddock Hosp., is also instructive because a jury awarded
$2,277,131.00 to a plaintiff who suffered a severe shoulder fracture in the course of an unrelated
surgical procedure and then needed four corrective surgeries to address the problem. Griffin v.
Univ. of Pittsburgh Med. Center-Braddock Hosp.,950 A.2d 996, 2008 PA Super. Ct. 104 (2008)
(rev’d on other grounds). Petitioner also referenced Dawes v. Kinnett, a medical malpractice suit
in which plaintiff was permanently damaged during a rotator cuff repair surgery, needed
additional corrective surgeries and was awarded $400,00.00 in general damages. Dawes v.
Kinnett, 779 So.2d 978 (La. App. 4 Cir. 2001). Finally, petitioner cites Pollak v. Goldman,
another medical malpractice claim where the plaintiff underwent three corrective surgeries but
still had an “obvious….tear” in the infraspinatus tendon and was awarded $57,000.00 in past
pain and suffering and $70,000.00 in future pain and suffering. Pollak v. Goldman, 2008 WL
5452132 (Cal. App. 2 Dist., 2008). While these cases present interesting factual scenarios and,
given that they were cited in support of petitioner’s argument, not surprisingly large awards, they
are distinguishable from the petitioner’s case. Petitioner does not indicate why these cases
should represent better estimates of pain and suffering than that reached in this case other than
that they were verdicts in shoulder injury cases rendered outside of the Vaccine Program.
Petitioner then repeats her request for a full award of future pain and suffering if she is
not awarded the maximum amount for past pain and suffering. Pet. Mot. at 9. She states, “The
permanent injury to her right, dominant arm will have to be a consideration in every decision she
makes, every day, for the rest of her life.” Id. Petitioner states that she cited to Anthony v. Sec’y
of Health & Human Servs., as the “appropriate guide” for future pain and suffering. Anthony v.
Sec’y of Health & Human Servs., No. 14-680V, 2016 WL 7733084 (Fed. Cl. Spec. Mstr. Dec.
15, 2016) (Decision Awarding Attorneys’ Fees and Costs). Petitioner argues that the
5
undersigned found Anthony not applicable because the petitioner in Anthony underwent an
unsuccessful surgery. Pet. Mot. at 10. Petitioner argues that surgical intervention in Anthony
was only a factor considered by the special master and the more relevant factors are a petitioner’s
ongoing pain, ongoing limitation of mobility and general impact on daily living. Id. Petitioner
concludes, “Given the severity of her injury, $25,000.00 per year for future pain and suffering is
a just award.” Id. Petitioner concludes by asking me to reconsider the Ruling on Damages and
requests the maximum award amount for pain and suffering. Id. at 10.
b. Respondent’s Response
Respondent first argues that petitioner’s motion for reconsideration is premature. Resp.
Response at 3. Respondent stated that the Ruling on Damages was a preliminary ruling and not a
final decision. Id.
Substantively, respondent also argues that petitioner’s motion is legally deficient and has
failed to meet the legal standards for a motion for reconsideration. Id. at 4. Respondent states,
“Petitioner simply disagrees with the special master’s discretionary award of pain and suffering
in this case.” Id. at 4.
Then respondent addresses petitioner’s arguments about the award of pain and suffering
in the damages ruling. Respondent states that Graves calls for an individualized assessment of
damages based on the specific facts of a petitioner’s case, “ ‘which is the analysis that this Court
performed in its Ruling on Damages.’ ” Id. at 4 (citing Graves v. Sec’y of Health & Human
Servs., 109 Fed. Cl. 579 (2013)). Respondent avers that the plain text of § 300aa-15(a)(4)
contemplates that at least some petitioners would be awarded less than the statutory minimum
and this logic is consistent with the legislative history of the Vaccine Act. Id. at 5-8. Further,
respondent stated, “Congress arrived at the $250,000 limit as an amount that was sufficient to
induce claimants who often had devastating injuries, to accept it in lieu of pursuing civil
remedies and also to provide the special maters latitude to compensate injuries ranging from
relatively minor to very serious.” Id. at 7-8.
Respondent states that special masters employed objective factors including: 1) the
ability of the injured individual to understand the injury; 2) the severity of the injury; and 3) the
potential number of years the individual is subjected to the injury. Id. at 10 (citing Hocraffer v.
Sec’y of Health & Human Servs., 2007 WL 914914 * 4. Additionally, respondent also
acknowledges that special masters may draw on their own experience with similar program cases
as well as their overall judgment when making an award for pain and suffering. Id. at 10.
However, respondent agreed with petitioner that cases outside the Vaccine program may
be relevant to determining pain and suffering damages. Id. at 12. But, according to the
respondent, outside cases demonstrate that the Vaccine Program’s pain and suffering awards for
straight shoulder injuries are substantially higher than what is typically awarded in the traditional
tort system. Id. at 12-13. Respondent argues that the cases cited by petitioner “are not
representative nor are their facts relevant to the instant case.” Id. at 13. Instead, respondent
submitted an appendix of fifty-five cases involving “shoulder impingement” and “shoulder
bursitis” from the civil tort system which were resolved by either jury verdict, arbitration or
6
settlement over the past five years. Resp. Response Appendix A (ECF No. 154). Respondent
states that the average pain and suffering award in the cases identified in the appendix is
$33,089.93. Resp. Response at 13. Respondent argued that, “Nearly seventy-five percent of the
pain and suffering awards…are for $30,000 or less, several of which went to plaintiffs who
underwent surgery, and nearly half of the awards are for $10,00 or less. All of the awards over
$30,000.00 involve concurrent knee or back injuries.” Id. at 13. Respondent stated that, “this
review of awards for comparable injuries suggests that the Vaccine Program’s pain and suffering
awards for straight shoulder injuries are substantially higher than what is typically awarded in the
traditional tort system.” Id.
Respondent concludes, “Notwithstanding which case law is used in the award of pain and
suffering, the award is discretionary, and the special master has exercised his discretion in
awarding the amount at issue here.” Id. at 13.
III. Discussion
Vaccine Rule 10(e) typically applies only to final decisions and is not available as a
means to reopen entitlement. See Resp. Post-Hearing Brief at 2. However, it has also been
observed that special masters have discretion in revisiting entitlement decisions. See e.g. Hanlon
v. Sec’y of Health & Human Servs., 40 Fed. Cl. 625, 629 (Fed. Cl. 1998) (stating that “[w]hether
or not to reconsider, prior to issuance of a final decision, an announced finding of entitlement in
a vaccine case is left to the discretion of the special master.”). A final decision on damages
awaited only on the reduction to present value of future damages, essentially a ministerial
function, given that the Ruling on Damages set forth the variables to be used, I determined that
that is appropriate to address the substantive issues raised by petitioner’s motion.
However, I agree with the respondent that the petitioner’s motion for reconsideration has
failed to meet the legal standard for a motion for reconsideration. Instead, petitioner’s motion
reflects simply a disagreement with the amount of the pain and suffering award made in the
Ruling on Damages, which is an insufficient basis for reconsideration. As respondent correctly
observed, the petitioner has not asserted that any intervening change in the controlling law has
occurred, but “simply disagrees with the special master’s discretionary award of pain and
suffering in this case.” Resp. Reply at 4. Additionally, petitioner has not introduced any new
evidence that was previously unavailable at the time of the decision. Finally, there is nothing
manifestly unfair about the award of $125,000.00 in past pain and suffering and $1,000.00 per
year for life in future pain and suffering that is clearly or apparently obvious on the facts of this
case.
In her motion, petitioner states that the award of $125,000.00 in past pain and suffering
and $1,000.00 per year for life is “nothing generous.” Pet. Mot. at 1. However, petitioner
acknowledged that the award for past and future pain and suffering is discretionary and is
“inherently subjective.” Pet. Mot. at 4; see also I.D. v. Sec’y of Health & Human Servs., No.
011-1593, 2013 WL 22448125, at *9 (Fed. Cl. Spec. Mstr. Apr. 19, 2013). As I articulated in
the Ruling on Damages, factors to be considered in determining an award of pain and suffering
include: 1) awareness of the injury; 2) severity of the injury; and 3) duration of the suffering.
Ruling on Damages at 8; see also I.D., 2013 WL 22448125, at *9.
7
Petitioner’s main complaint appears to be that I only evaluated her claim by looking at
past pain and suffering awards within the Vaccine program, which led to an “artificially low,”
award. Pet. Mot. at 5. Petitioner argued that SIRVA awards of compensation, especially those
resolved in the SPU, are artificially low because the respondent is unwilling to negotiate once the
government has determined an amount reasonable. Pet. Mot. at 4. Thus, petitioners are put in a
precarious financial situation where they can either take the amount offered or wait longer until a
damages hearing can be held. Id. at 5. Therefore, according to petitioner, the cases internal to
the Vaccine Program establish a continuum for pain and suffering and that I assessed petitioner’s
pain and suffering along that continuum, in violation of the standard established by Judge Merow
in Graves v. Sec’y of Health & Human Services. Pet. Mot. at 5.
Petitioner’s assertion fails to recognize that she only cited to cases internal to the program
in her post-hearing briefs and only in her motion for reconsideration does she submit cases
outside the program as examples of pain and suffering awards that exceed the statutory cap. See
Pet. Post-Hearing Brief (ECF No. 142); Pet. Post-Hearing Reply (ECF No. 147). As with all
elements of damages, the petitioner carries the burden of proof to establish his or her pain and
suffering. See, e.g. Brewer v. Sec’y of Health & Human Servs., No. 93-0092V, 1996 WL
147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18, 1996); Shapiro v. Sec’y of Health & Human
Servs., 101 Fed. Cl. 532, 537-38 (2011). Petitioners seeking an assessment of their pain and
suffering must submit supporting evidence, which can include citations to past reasoned
opinions that he or she believes to be helpful comparisons to his or her own case. It is not
incumbent upon the Court to research every civil tort case involving shoulder injuries and
compare those cases to the case it is currently considering. In this case, petitioner made no
reference to cases outside the program in her case-in-chief, and only through her motion for
reconsideration does she seek these cases to be considered with little explanation as to why these
cases are comparable to her own injury.
I do not find the submissions of cases outside of the Vaccine Program as references for
the valuation of SIRVA cases to be particularly helpful for several reasons. Approximately
ninety per cent (90%) of personal injury cases are settled and rarely appear in reports of verdicts.
The vast majority of jury verdicts are not appealed and thus are not discussed in appellate
opinions such as those cited by petitioner. And as noted above, the cases cited by petitioner here
are readily distinguishable in terms of severity. Each case reported injuries, disabilities and
surgeries that appeared to far exceed the comparable injury at issue in this case. Tort claims also
involve considerations of fault which may serve to increase or decrease the awards at issue.
On the other hand, the respondent’s summaries of fifty-five (55) selected cases involving
shoulder injury are not very helpful either. Each of the short case summaries, nearly all of which
arose from automobile accidents, contains a “JVR” number. JVR stands for Jury Verdict
8
Research which is a voluntary reporting service with which I am familiar.5,6 It has some of the
same limitations as the cases cited by petitioner, in that it contains reports of verdicts by juries or
arbitrators and not the larger data set of settlements. Additionally, the JVR data set also suffers
from its sourcing in that it tends to contain reports from plaintiff’s lawyers anxious to publicize
large verdicts and defense lawyers wanting to show particularly small ones. Given the brief
descriptions7 of seemingly significant injuries preceding the awards, which as respondent noted
were in the majority under $10,000.00, the low verdicts appear likely to have come from an
insurance defense source. They appear to greatly undervalue the described injuries and likely
involved considerations not at issue in vaccine cases.
Further, the amounts of civil verdicts are greatly affected by the geographic location of
the trial. Verdicts vary significantly from county to county within a given state and even more so
from state to state. In contrast, the Vaccine Program has national jurisdiction and the assessment
of a petitioner’s damages, particularly pain and suffering, is based on the evidence submitted
without regard to the petitioner’s location.
Nevertheless, special masters may consider pain and suffering awards, especially for
similar injuries from both inside and outside the Vaccine program to aid in the resolution of the
appropriate amount of compensation for pain and suffering. 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).
I agree that looking at cases resolved by proffer where respondent has conceded
entitlement, are often unhelpful as a point of comparison when the underlying facts are not
available to a non-party. Which is precisely why I considered reasoned decisions that awarded
both past and future pain and suffering awards for SIRVA injuries. See Ruling on Damages at
11-12. I am not the only special master that holds this view. In Blanco v. Sec’y of Health &
Human Servs., Chief Special Master Corcoran stated, “I find that awards issued within the
Program are most persuasive. It is important to bear in mind the policy purposes of the Program-
that is no-fault and is intended to be generous in many regards, resulting in slightly different
5
In my prior career in civil litigation, I subscribed to this service for a period of time and was able to assess its
usefulness. For the reasons described above, I found this service to be a source of anecdotal information but an
unreliable indicator of case values.
6
Thomson Reuters has acquired JVR. Thomson Reuters also owns the legal research database Westlaw.
Respondent used the Westlaw Jury Verdicts and Settlements Database, which houses the Jury Verdict Research
data, to prepare its Appendix A of cases with JVR numbers.
7
For example, for case 4, in which the plaintiff was awarded $1,500, the summary is: “Car accident, injury to
passenger. Type II glenoid labral tear, rotator cuff tear and bursitis of left shoulder which required surgery and
resulted in permanent impairment, as well as cervical, rotator, and lumbar strains.” Resp. Post-Hearing Brief,
Appendix A at 2. For case 7, in which the plaintiff was awarded $3,000, the summary is: “Car accident. Cervical
disc protrusion, acquired loss of cervical lordosis, concussion leading to post-concussion syndrome, shoulder AC
joint separation with impingement, and cervical, thoracic, and lumbar strains.” Id. For case 4, in which the plaintiff
was awarded $4,000, the summary is: “Car accident. A proximal humerus fracture, left shoulder impingement, and
cervical disc herniations at C4-C7”. Id. at 3.
9
scale.” Blanco, No. 18-1361V, 2020 WL 4523473, at *2 (Fed. Cl. Spec. Mstr. July 6, 2020).
Reasoned opinions in the Vaccine program provide significantly more detail about the duration,
severity and treatment of an injury than cases resolved by proffer within the Vaccine program or
even the outside cases referenced to by both parties in this case. Additionally, all SIRVAs occur
by the same mechanism and injuries generally resemble one another. The main difference is the
severity and duration of the injury and how that injury affects individual petitioners.
There are increasingly more reasoned opinions determining the appropriate amount of
compensation for pain and suffering for SIRVA cases within the Vaccine program. See Wallace
v. Sec’y of Health & Human Servs., 16-1472, 2019 WL 4458393 (Fed. Cl. Spec. Mstr. June 27,
2019); Wilt v. Sec’y of Health & Human Servs., No. 18-446, 2020 WL 1490757 (Fed. Cl. Spec.
Mstr. Feb. 24, 2020); Smallwood v. Sec’y of Health & Human Servs., No. 18-291V, 2020 WL
295495 (Fed. Cl. Spec. Mstr. Apr. 29, 2020); Kuhn v. Sec’y of Health & Human Servs., No. 18-
91V, 2020 WL 3750994 (Fed. Cl. Spec. Mstr. June 5, 2020); Meyers v. Sec’y of Health &
Human Servs., No. 18-909V, 2020 WL 3755335 (Fed. Cl. Spec. Mstr. June, 5, 2020); Murray v.
Sec’y of Health & Human Servs., No. 18-534V, 2020 WL 4522483 (Fed. Cl. Spec. Mstr. July 6,
2020); Blanco v. Sec’y of Health & Human Servs., No. 18-1361, 2020 WL 4523473 (Fed. Cl.
Spec. Mstr. July, 6, 2020); Magee v. Sec’y of Health & Human Servs., No. 18-185V, 2020 WL
5031971 (Fed. Cl. Spec. Mstr. July, 21, 2020); Robertson v. Sec’y of Health & Human Servs.,
No. 19-90V, 2020 WL 5512542 (Fed. Cl. Spec. Mstr. Aug. 7, 2020); Tumolo v. Sec’y of Health
& Human Servs., No. 16-343, 2020 WL 6279711 (Fed. Cl. Spec. Mstr. Oct. 1, 2020); Gunter v.
Sec’y of Health & Human Servs., No. 17-1941, 2020 WL 6622141 (Fed. Cl. Spec. Mstr. Oct. 13,
2020). There are also increasingly more SIRVA cases where special masters are awarding future
pain and suffering damages, in addition to past pain and suffering awards. See Dawson-Savard
v. Sec’y of Health & Human Servs., No. 17-1238V, 2020 WL 4719291 (Fed. Cl. Spec. Mstr. July
14, 2020); Dhanoa v. Sec’y of Health & Human Servs., No. 15-1011V, 2018 WL 1221922 (Fed.
Cl. Spec. Mstr. Feb. 1, 2018); Binette v. Sec’y of Health & Human Servs., No. 16-731V, 2019
WL 1552620 (Fed. Cl. Spec. Mstr. Mar. 20, 2019); Schoonover v. Sec’y of Health & Human
Servs., No. 16-1324, 2020 WL 5351341 (Fed. Cl. Spec. Mstr. Aug. 5, 2020); and Curri v. Sec’y
of Health & Human Servs., No. 17-4332V, 2018 WL 6273562 (Fed. Cl. Spec. Mstr. Oct. 31,
2018); and Hooper v. Sec’y of Health & Human Servs., No. 17-12V, 2019 WL 2442880 (Fed. Cl.
Spec. Mstr. Apr. 3, 2019).
Regrettably, counsel for petitioner repeatedly cites to the decision in Anthony in which
the sum of $248,540.00 in pain and suffering was awarded following a proffer. Anthony, 2016
WL 1169147 (Fed. Cl. Spec. Mstr. Mar. 2, 2016) (awarding damages based on a joint proffer).
As counsel in this case was also counsel in Anthony, he is privy to facts in the case that
contributed to the large award, but these facts are not available to non-parties. As other special
masters and I have observed, citing to Anthony as a comparable case to support a claim for the
maximum pain and suffering award has its limitations and appears only to be useful to say that in
at least one SIRVA case $250,000 in past and future pain and suffering was awarded. See
Goldman v. Sec’y of Health & Human Servs., No. 16-1523V, 2020 WL 6955394, at n.6 (Fed. Cl.
Spec. Mstr. Nov. 2, 2020). n. 6; see also Reed v. Sec’y of Health & Human Servs., No. 16-1670,
2019 WL1222925, at n. 14 (Special Master Dorsey observed that the decision issued in Anthony
did not address the factors that contributed to the special master’s award.); and see also Cooper
v. Sec’y of Health & Human Servs., No. 16-1387, 2018 WL 6288181, at n. 35 (Fed. Cl. Spec.
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Mstr. Nov. 7, 2018) (observing that the factors that contributed to the award in Anthony was not
disclosed because the special master in Anthony ruled from the bench following a damages
hearing.). Importantly, Anthony was a SIRVA case where the government conceded entitlement
in a Rule 4(c) report and damages were resolved by a proffer after a damages hearing. See
Anthony v. Sec’y of Health & Human Servs., No. 14-6680V, 2014 WL 6480427 (Fed. Cl. Spec.
Mstr. Oct. 28, 2014) and Anthony v. Sec’y of Health & Human Servs., 2016 WL 1169147 (Fed.
Cl. Spec. Mstr. Mar. 2, 2016). Additionally, the proffer decision in Anthony only provides a
lump sum award for pain and suffering and therefore, it is difficult to discern what Special
Master Moran awarded in past pain and suffering and what was awarded in future pain and
suffering. See Anthony, 2016 WL 1169147, at *1 (awarding $248,540.00 in pain and suffering).
Thus, it is difficult to assess the relevance of the Anthony case to the case at hand aside from the
fact of the amount awarded, because the individual facts and circumstances of the Anthony case
are not discussed in the final damages decision, nor in the ruling on entitlement. The only fact
relating to the petitioner’s SIRVA in Anthony, that he had surgery, was provided in Special
Master Moran’s decision on attorneys’ fees and costs. See Anthony, 2016 WL 77330084 (Fed.
Cl. Spec. Mstr. Dec. 15, 2016).
Lastly, as I explained in the Ruling on Damages, the award of $125,000.00 in past pain
and suffering was consistent with other SIRVA awards where the facts were relatively similar to
the facts in this case. Ruling on Damages at 11. I explained that the petitioner in Cooper was
awarded $110,000.00 in past pain and suffering because Special Master Dorsey found the
petitioner had suffered severe to moderate pain following the SIRVA, followed by a longer
period of residual pain and reduced range of motion with no surgical intervention. Id. Based on
the description of petitioner’s pain, the extensive physical therapy she underwent, receipt of a
steroid injection, but also her progress in regaining mobility in her right shoulder and the lower
residual pain she described, an award of $110,000.00 was too low, therefore I awarded petitioner
$125,000.00 in past pain and suffering. Id. at 11.
In assessing an award for petitioner’s future pain and suffering, I explained that the facts
and circumstances in petitioner’s case, were closer in comparison to the petitioner in Binette than
in Dhanoa. Id. at 12. In Dhanoa, the petitioner was awarded $85,000.00 for past pain and
suffering and $10,000.00 for one year of future pain and suffering. Dhanoa, 2018 WL 1221922,
at *7. Special Master Dorsey found that the petitioner in Dhanoa had significant relief from
steroid injections and had reduced pain level and improved mobility after ten physical therapy
appointments. Dhanao¸ at *6. In Binette, the petitioner was awarded $130,000.00 in past pain
and suffering and $1,000.00 per year for her life expectancy in future pain and suffering, reduced
to present value. Ruling on Damages at 11; Binette v. Sec’y of Health & Human Servs., No. 16-
713, 2019 WL 1552620 (Fed. Cl. Spec. Mstr. Mar. 20, 2019). Special Master Dorsey observed
that petitioner suffered moderate to severe pain for two years following the vaccination and then
an additional fourteen months of “increased level of pain.” Binette, 2019 WL 1552620 at *14.
Special Master Dorsey also acknowledged that the petitioner in Binette had five cortisone
injections that only provided temporary relief and the petitioner’s pain level never dropped
below a five. Id. at *13.
Although the Ruling on Damages in this case made reference to several similar cases
from the Vaccine Program awarding damages for SIRVA injuries, I consider the reference to
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cases useful, but not determinative to the value awarded in pain and suffering in this case, or any
other. As I articulated in the Ruling on damages, 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; Ruling on Damages at 8. Impairment of
function and loss of activities, including any effect on a petitioner’s lifestyle are also considered.
The Ruling on Damages acknowledged and documented the history of petitioner’s pain and
suffering, the treatments she pursued, including extensive physical therapy in the U.S. and in
India, and the impair of function in her right shoulder.
The Ruling on Damages states, “Petitioner pursued a very extensive course of physical
therapy over a period of approximately 3.5 years and continues to consistently do a course of
home exercises as prescribed by her physicians.” Ruling on Damages at 10. However, the
record made clear that petitioner’s pain decreased over time and her mobility increased. Id. For
example, less than one year after the vaccination, on August 16, 2013, petitioner reported she
had much improved pain in her right shoulder and indicated that her pain level was a 2 out of 10
while at rest. Pet. Ex. 2 at 47-9; Ruling on Damages at 4. On October 11, 2013, petitioner
reported her pain level at one out of ten. Pet. Ex. 2 at 52; Ruling on Damages at 4. On May 22,
2014, less than two years after her vaccine-related injury, petitioner expressed that she had a
“significant reduction in pain and improved range of motion, strength and mobility.” See Pet. Ex.
7 at 25; Ruling on Damages at 4. Petitioner testified that by 2017 she had a dull continuous,
aching pain and some sleep disturbance, but it was not as severe as in 2013 and 2014. Tr. 120;
Ruling on Damages at 5. In May 2018, petitioner again reported her pain at a 2 out of 10 to
orthopedist, Dr. Gregory Difelice. Pet. Ex. 27 at 5; Ruling on Damages at 5. Dr. DiFelice
observed that since he last saw petitioner in 2013, she had “noted improvement with range of
motion but still struggles with symptoms with damp and cold weather.” Id. at 1. He observed
that she was able to abduct her right arm to 160 degrees (full is 180 degrees), externally rotate
her to 60 degrees (full rotation at 90 degrees), and actively internally rotate her arm to T-12 “
with good kinematics.” Pet. Ex. 27 at 2; Id. at 5. Dr. DiFelice recommended petitioner continue
at home exercises and treat with over the counter medication for pain control. Id.
Each shoulder case is different in degree and extent of injury. In this case the petitioner
continued to have symptoms particularly during the rainy season in India, and had some
limitation in flexion, external and internal rotation of her dominant arm. Petitioner did not
undergo surgery and had only one steroid injection but did pursue extensive physical therapy.
Notably, she had a significant reduction in pain levels from the first-year post vaccination and
was able to improve her range of motion. Petitioner testified that she had some increased pain
level with some activities of daily living, but she can compensate with devices like a shopping
cart and because of her medical education she is able to continue her profession as she chooses.
While the award of $125,000.00 in past pain and suffering and $1,000.00 per year for her 30-
year life expectancy for future pain and suffering is somewhat consistent with other SIRVA
cases, my subjective determination of the value of pain and suffering in this case was based on
the evaluation of the evidence in this case, including the medical records, the testimony,
treatments involved, duration of petitioner’s injury, description of her pain and whether the
injury was to her dominant arm.
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Petitioner has failed to demonstrate any basis for granting reconsideration in this case.
Petitioner has not identified an intervening change in the law or any new evidence that was
unavailable when I issued the Ruling on Damages. Denial of petitioner’s motion for
reconsideration does not result in a manifest injustice. Accordingly, petitioner’s motion is
hereby DENIED.
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
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