Berge v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1474V
UNPUBLISHED
MICHAEL BERGE, Chief Special Master Corcoran
Petitioner, Filed: August 17, 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)
Jessica Olins, Maglio Christopher & Toale, PA, Washington, DC, for Petitioner.
Christine Mary Becer, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On September 25, 2019, Michael Berge 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 left shoulder injury related to vaccine
administration (“SIRVA”) causally related to the influenza (“flu”) vaccine he received on
November 13, 2018. Petition at 1, ¶¶ 1, 14. The case was assigned to the Special
Processing Unit of the Office of Special Masters.
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Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
For the reasons described below, I find that Petitioner is entitled to an award of
damages in the amount $116,343.57, reflecting $115,000.00 for his past pain and
suffering plus $1,343.57 for his past unreimbursed medical expenses.
I. Relevant Procedural History
Shortly after filing the Petition in September 2019, Mr. Berge filed an affidavit and
some of the medical records required under the Vaccine Act. Exhibits 1-18, ECF Nos. 6-
7; see Section 11(c). Over the subsequent nine-month period, Petitioner filed the
remainder of the required medical records. Exhibits 19-35. ECF Nos. 11, 13, 19, 22, 29,
31.
On March 30, 2021, Respondent filed his Rule 4(c) Report, conceding Petitioner
was entitled to compensation for his SIRVA, and I issued a Ruling on Entitlement a few
days later. ECF Nos. 38-39. Approximately one month thereafter, Petitioner filed a joint
status report indicating the parties had reached an impasse in their efforts to agree upon
the appropriate amount of damages. ECF No. 41.
The parties filed simultaneous briefs on June 28, 2021. Memorandum of Law in
Support of Petitioner’s Motion for Findings of Fact and Conclusions of Law Regarding
Damages (“Brief”), ECF No. 44; Respondent’s Brief on Damages (“Opp.”), ECF No. 45.
Petitioner filed a responsive brief three weeks thereafter. Petitioner’s Reply to Opp.
(“Reply”), ECF No. 46. The issue is now ripe for adjudication.
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
2
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)).
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, of course, I may rely on my own experience (along with my
predecessor Chief Special Masters) adjudicating similar claims.3 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. In Graves, Judge Merow 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. Graves v. Sec’y of Health & Human Servs., 109 Fed. Cl. 579 (Fed. Cl.
2013). Judge Merow maintained that 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.” Id. at 590. Instead, Judge Merow
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.
3
From July 2014 until September 2015, the SPU was overseen by former Chief Special Master Vowell.
For the next four years, until September 30, 2019, all SPU cases, including the majority of SIRVA claims,
were assigned to former Chief Special Master Dorsey, now Special Master Dorsey. In early October 2019,
the majority of SPU cases were reassigned to me as the current Chief Special Master.
3
III. Prior SIRVA Compensation Within SPU4
A. Data Regarding Compensation in SPU SIRVA Cases
SIRVA cases have an extensive history of informal resolution within the SPU. As
of July 1, 2021, 2,097 SPU SIRVA cases have resolved since the inception of SPU on
July 1, 2014. Compensation was awarded in 2,036 of these cases, with the remaining 61
cases dismissed.
Of the compensated cases, 1,187 SPU SIRVA cases involved a prior ruling that
petitioner was entitled to compensation. In only 69 of these cases was the amount of
damages determined by a special master in a reasoned decision. As I have previously
stated, the written decisions setting forth such determinations, prepared by neutral judicial
officers (the special masters themselves), provide the most reliable precedent setting
forth what similarly-situated claimants should also receive.5
1,093 of this subset of post-entitlement determination, compensation-awarding
cases, were the product of informal settlement - cases via proffer and 25 cases via
stipulation. Although all proposed amounts denote an agreement reached by the parties,
those presented by stipulation derive more from compromise than any formal agreement
or acknowledgment by Respondent that the settlement sum itself is a fair measure of
damages. Of course, even though any such informally-resolved case must still be
approved by a special master, these determinations do not provide the same judicial
guidance or insight obtained from a reasoned decision. But given the aggregate number
of such cases, these determinations nevertheless “provide some evidence of the kinds of
awards received overall in comparable cases.” Sakovits, 2020 WL 3729420, at *4
(emphasis in original).
The remaining 849 compensated SIRVA cases were resolved via stipulated
agreement of the parties without a prior ruling on entitlement. These agreements are often
described as “litigative risk” settlements, and thus represent a reduced percentage of the
compensation which otherwise would be awarded. Due to the complexity of these
settlement discussions, many which involve multiple competing factors, these awards do
4
All figures included in this decision are derived from a review of the decisions awarding compensation
within the SPU. All decisions reviewed are, or will be, available publicly. All figures and calculations cited
are approximate.
5
See, e.g., Sakovits v. Sec’y of Health & Human Servs., No. 17-1028V, 2020 WL 3729420, at *4 (Fed. Cl.
Spec. Mstr. June 4, 2020) (discussing the difference between cases in which damages are agreed upon by
the parties and cases in which damages are determined by a special master).
4
not constitute a reliable gauge of the appropriate amount of compensation to be awarded
in other SPU SIRVA cases.
The data for all groups described above reflect the expected differences in
outcome, summarized as follows:
Damages Proffered Stipulated Stipulated6
Decisions by Damages Damages Agreement
Special Master
Total Cases 69 1,093 25 849
Lowest $40,757.91 $25,000.00 $45,000.00 $5,000.00
st
1 Quartile $75,000.00 $70,000.00 $90,000.00 $45,000.00
Median $97,500.00 $90,100.00 $115,772.83 $65,000.00
rd
3 Quartile $125,360.00 $119,381.38 $160,502.39 $90,000.00
Largest $265,034.87 $1,845,047.00 $1,500,000.00 $550,000.00
B. Pain and Suffering Awards in Reasoned Decisions
In the 69 SPU SIRVA cases which required a reasoned damages decision,
compensation for a petitioner’s actual or past pain and suffering varied from $40,000.00
to $210,000.00, with $95,500.00 as the median amount. Only five of these cases involved
an award for future pain and suffering, with yearly awards ranging from $250.00 to
$1,000.00.7
In cases with lower awards for past pain and suffering, many petitioners commonly
demonstrated only mild to moderate levels of pain throughout their injury course. This
lack of significant pain is often evidenced by a delay in seeking treatment of 40 days to
over six months. In cases with more significant initial pain, petitioners experienced this
greater pain for three months or less. All petitioners displayed only mild to moderate
limitations in range of motion (“ROM”), and MRI imaging showed evidence of mild to
moderate pathologies such as tendinosis, bursitis, or edema. Many petitioners suffered
from unrelated conditions to which a portion of their pain and suffering could be attributed.
These SIRVAs usually resolved after one to two cortisone injections and two months or
less of PT. None required surgery. The duration of the injury ranged from six to 29 months,
with petitioners averaging approximately nine months of pain. Although some petitioners
asserted residual pain, the prognosis in these cases was positive.
6
Two awards were for an annuity only, the exact amounts which were not determined at the time of
judgment.
7
Additionally, a first-year future pain and suffering award of $10,000.00 was made in one case. Dhanoa v.
Sec’y of Health & Human Servs., No. 15-1011V, 2018 WL 1221922 (Fed. Cl. Spec. Mstr. Feb. 1, 2018).
5
Cases with higher awards for past pain and suffering involved petitioners who
suffered more significant levels of pain and SIRVAs of longer duration. Most of these
petitioners subjectively rated their pain within the upper half of a ten-point pain scale and
sought treatment of their SIRVAs more immediately, often within 30 days of vaccination.
All experienced moderate to severe limitations in range of motion. MRI imaging showed
more significant findings, with the majority showing evidence of partial tearing. Surgery or
significant conservative treatment, up to 95 PT sessions over a duration of more than two
years and multiple cortisone injections, was required in these cases. In four cases,
petitioners provided sufficient evidence of permanent injuries to warrant yearly
compensation for future or projected pain and suffering. In the fourth case involving an
award of future pain and suffering, the petitioner provided evidence of an ongoing SIRVA
expected to resolve within the subsequent year.
IV. Appropriate Compensation for Petitioner’s Pain and Suffering
In this case, awareness of the injury is not disputed. The record reflects that at all
times Petitioner was a competent adult with no impairments that would impact her
awareness of her injury. Therefore, I analyze principally the severity and duration of
Petitioner’s injury.
When performing this analysis, I review the record as a whole to include the
medical records and affidavits filed and all assertions made by the parties in written
documents. I consider prior awards for pain and suffering in both SPU and non-SPU
SIRVA cases and rely upon my experience adjudicating these cases. However, I base
my determination on the circumstances of this case.
A. The Parties’ Arguments
The parties agree Petitioner should be awarded $1,343.57 for his unreimbursed
medical expenses. Brief at 2; Opp. at 1. Thus, the only area of disagreement is regarding
the amount of compensation which should be awarded for Petitioner’s pain and suffering.
Petitioner requests $140,000.00 for this damages component. Brief at 12. Alleging
a one-year period of conservative treatment8 and need for a surgical intervention
thereafter, Petitioner emphasizes the constant and severe levels of pain he reported
during this time. Id. at 6-7. He maintains that he attempted physical therapy (“PT”) but
could not complete it. Id. at 7 (citing the only PT record filed, from an initial evaluation on
February 5, 2019). He also claims pain and disruption which continued post-surgery,
8
The correct time frame is slightly less than ten months. Petitioner was administered the flu vaccine on
November 13, 2018. Exhibit 1. He underwent surgery on September 5, 2019. Exhibit 31 at 4-5.
6
interfering with his ability to perform his job, to engage in past hobbies, to perform routine
household chores, and to care for his disabled brother. Id. at 8.
While referencing the greater amounts (ranging from $110,000.00 to $160,000.00)
awarded in SPU cases involving SIRVAs of longer durations which often have required
surgery, Petitioner discusses in detail five of these cases9 which he believes are closer
to the circumstances in his case. Brief at 9-11. In particular, Petitioner asserted that the
severity and duration of his symptoms were most similar to those suffered by the Rafferty,
Dobbins, and Wilson. Id. at 11-12.
In reaction, Respondent maintained Petitioner should be awarded only $80,000.00
for his past pain and suffering. Opp. at 1. While acknowledging the impact of the pain
Petitioner suffered during the initial year following vaccination, Respondent argues that
Petitioner has failed to provide evidence establishing that his SIRVA symptoms continued
after his last visit to his orthopedic surgeon, on September 11, 2019. Id. at 13. He stresses
the improvement Petitioner reported at that time, and the lack of significant treatment prior
to Petitioner’s arthroscopic surgery, performed on September 5, 2019. Id. at 13.
In his brief, Respondent devotes a significant amount of his argument to a
discussion of the Vaccine Act’s $250,000.00 cap on awards for pain and suffering. Opp.
at 5-13. Respondent also criticizes comparisons between reasoned damages decisions
(which, at present, have been issued in more than 71 SPU SIRVA cases) and the
“meeting-in-the-middle” method that he believes is sometimes being utilized to split the
difference between each side’s pain and suffering figure. Id. at 13 n.6. Respondent
asserts instead that the large number of proffered cases in SPU is a more accurate
representation of the appropriate of damages to be awarded. Id.Petitioner’s reply reiterates his previously stated arguments regarding the severity
and effects of his SIRVA. Reply at 2-3. He also criticizes Respondent’s extensive
discussion of the Vaccine Act’s $250,000.00 cap (id. at 1-2) and failure to “refer to any
Court awarded decisions as a basis for [his proposed] figure on pain and suffering.” (id.
at 2).
9
The amounts awarded for actual pain and suffering in these cases range from $120,000.00 to
$130,000.00: Stoliker v. Sec’y Health & Human Servs., No. 17-0990V, 2020 WL 5512534 (Fed. Cl. Spec.
Mstr. Aug. 7, 2020) (awarding $120,000.00 for actual pain and suffering); Meyers v. Sec’y of Health &
Human Servs., No. 18-0909V, 2020 WL 3755335 (Fed. Cl. Spec. Mstr. June 5, 2020) (awarding
$122,500.00 for actual pain and suffering); Dobbins v. Sec’y of Health & Human Servs., No. 16-0854V,
2018 WL 4611267 (Fed. Cl. Spec. Mstr. Aug. 15, 2018) (awarding $125,000.00 for actual pain and
suffering); Rafferty v. Sec’y of Health & Human Servs., No. 17-1906V, 2020 WL 3495956 (Fed. Cl. Spec.
Mstr. May 21, 2020) (awarding $127,500.00 for actual pain and suffering); Wilson v. Sec’y Health & Human
Servs., No. 19-0035V, 2021 WL 1530731 (Fed. Cl. Spec. Mstr. Mar. 18, 2021) (awarding $130,000.00 for
actual pain and suffering).
7
B. Analysis
The guidance provided by the Graves decision is clear,10 and I have previously
addressed the more general arguments about calculation of pain and suffering damages
made by Respondent during expedited motions days and in other damages decisions.
While noting that this end result may occur in some cases (and disappoint both sides as
a result), I have in fact rejected the “meeting-in-the-middle” method Respondent claims is
being used, based on the proposition that “each petitioner deserves an examination of
the specific facts and circumstances in her or his case.” Sakovits, 2020 WL 3729420, at
*3. But I also have rejected Respondent’s argument 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. Id. at *4. While “settled cases
and proffers provide some evidence of the kinds of awards received overall in comparable
cases,” they are not as persuasive as reasoned decisions from a judicial neutral. Id.(emphasis in original). Taken as a whole, the data from these decisions can be a helpful
gauge of the compensation being awarded in SPU SIRVA cases.
A thorough review of the medical records reveals that, except for a period of three
to four weeks in July 2019 - when he experienced temporary pain relief from a cortisone
injection (see Exhibit 5 at 17), Petitioner reported severe pain, often at a level of ten out
of ten, from the first time he sought treatment for his SIRVA injury - thirteen days post-
vaccination on November 26, 2018, until he underwent arthroscopic surgery on
September 5, 2019. E.g., Exhibit 3 at 12, 8; Exhibit 6 at 15; Exhibit 3 at 8; Exhibit 5 at 7
(listed chronologically); see Exhibit 31 at 4-5. In fact, Petitioner’s level of pain was so
great that it prevented him from undergoing a complete PT evaluation on February 15,
2019. The record from this evaluation indicated that some testing was “[i]nconclusive due
to the fact that the slightest movement [wa]s reported [to be] painful.” Exhibit 5 at 8.
There are, however, entries that counter Petitioner’s claims of persistently severe
levels of pain prior to surgery. For example, during the attempted PT evaluation in
February 2019, the physical therapist noted that Petitioner informed her he was attending
PT at his lawyer’s behest. Exhibit 5 at 7. In the record from that visit, the therapist opined
that Petitioner’s “subjective complaints . . . appear to outway [sic] his objective findings.”
Id. at 9. Additionally, Petitioner declined cortisone injections offered to him on two
separate occasions (January 8 and February 11, 2019). Exhibit 12 at 59; Exhibit 7 at 10.
In briefing, Petitioner offered no rationale for his decision. Although not indicative of a
complete lack of pain and suffering, Petitioner’s decision to decline the offered treatment
does support the proposition that his pain may not have been as constant and severe as
10
See supra Section II (for further discussion).
8
he claims.
Regarding the duration of Petitioner’s symptoms, the record clearly indicates he
experienced significant improvement after undergoing arthroscopic surgery -
approximately ten months post-vaccination on September 5, 2019. See Exhibit 25 at 3;
Exhibit 31 at 4-5 (surgical records). At his post-surgical visit on September 11, 2019,
Petitioner reported that his “shoulder pain [wa]s significant[ly] better.” Exhibit 25 at 3.
Observed as having “pretty good motion” and no significant stiffness, he was provided a
home exercise program and informed that “he does not need a sling.” Id. There is no
indication that Petitioner required further treatment thereafter.
It also is important to note that Petitioner suffered from chronic and significant
back, neck, and knee pain since at least 2013, and was being treated at a pain
management clinic with a multitude of medication and treatments, including opioids, from
at least September 2016. E.g. Exhibit 3 at 17, 26; Exhibit 9 at 2; Exhibit 29 at 8. According
to his earlier medical records, these other conditions sometimes prevented Petitioner from
working and performing certain tasks. E.g., Exhibit 24 at 2, 34. Two weeks before his
vaccination - at an October 29, 2018 visit to his pain management clinic, Petitioner
reported severe back pain, describing the level of his pain as between eight to ten out of
ten. Exhibit 3 at 17. Petitioner’s prescription for Percocet was continued. Id.
Petitioner fails to mention these other sources of pain in his petition, affidavit, or
briefs. See generally, Petition; Exhibit 2; Brief; Reply. This omission is most profound
when considering Petitioner’s argument that he continues to suffer the effects of his
SIRVA injury. He describes tasks which, at a minimum, would have been difficult to
perform, given the prior condition of his back, neck, and knees, and attributes his inability
to perform these tasks exclusively to the shoulder injury he suffered. Additionally, he also
does not address the significant improvement he reported on September 11, 2019, six
days post-surgery (Exhibit 25 at 3) or the lack of documentation showing any treatment
of any symptoms of his SIRVA after that date. Petitioner has not substantiated the alleged
continued effects of his SIRVA.
I find that there is sufficient evidence to establish that the symptoms of Petitioner’s
SIRVA, from vaccination until the date of his surgery, were severe enough to warrant a
larger award for pain and suffering than what Respondent proposes. Although Petitioner
may have exaggerated some of his reports of pain and initially declined two cortisone
injections, he later agreed to an injection and underwent arthroscopic surgery to alleviate
his pain. Thus, the appropriate award in this case should reflect the factors of severity
and duration which Petitioner emphasizes.
9
Nevertheless, while the cases cited by Petitioner are useful references for the pain
and suffering award in this case, I find that the award in this case should be slightly less
than what was awarded in those cases. Petitioner’s claims of ongoing symptoms and
difficulties attributed solely to his SIRVA are not substantiated in this case. Petitioner had
unrelated sources of pain prior to vaccination which limited his ability to work and perform
specific tasks. Additionally, he experienced significant improvement following
arthroscopic surgery, performed ten months post-vaccination, and required no PT or other
thereafter.
V. Conclusion
For all of the reasons discussed above and based on consideration of the record
as a whole, I find that $115,000.00 represents a fair and appropriate amount of
compensation for Petitioner’s actual pain and suffering.11 I also find that Petitioner
is entitled to $1,343.57 in actual unreimbursable expenses.
I thus award Petitioner a lump sum payment of $116,343.57, representing
$115,000.00 for his actual pain and suffering and $1,343.57 for his actual
unreimburseable expenses in the form of a check payable to Petitioner. This amount
represents compensation for all damages that would be available under Section 15(a).
The clerk of the court is directed to enter judgment in accordance with this
decision.12
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
11
Since this amount is being awarded for actual, rather than projected, pain and suffering, no reduction to
net present value is required. See Section 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)).
12
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
10