M. v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Originally Filed: December 19, 2022
Refiled in Redacted Form: January 23, 2023
* * * * * * * * * * * * * * **
T.M., * PUBLISHED
*
Petitioner, * No. 19-119V
*
v. * Special Master Nora Beth Dorsey
*
SECRETARY OF HEALTH * Ruling Awarding Damages; Table Injury;
AND HUMAN SERVICES, * Pain and Suffering; Influenza (“Flu”)
* Vaccine; Guillain-Barré Syndrome
Respondent. * (“GBS”); Carpal Tunnel Syndrome
* (“CTS”).
* * * * * * * * * * * * * * **
Anne Carrion Toale, Maglio Christopher & Toale, P.A., Sarasota, FL, for Petitioner.
Lynn Christina Schlie, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON DAMAGES 1
I. INTRODUCTION
On January 23, 2019, T.M. (“Petitioner”) filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10, et seq., (“the Vaccine
Act”). 2 Petitioner alleged that she suffered Guillain-Barré Syndrome (“GBS”) as a result of an
influenza (“flu”) vaccine administered to her on October 19, 2017. Petition at 1-2 (ECF No. 1).
1
Because this Ruling contains a reasoned explanation for the action in this case, the undersigned
is 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 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, the undersigned agrees that the
identified material fits within this definition, the undersigned will redact such material from
public access.
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). All citations in this Ruling to individual sections of the
Vaccine Act are to 42 U.S.C. § 300aa.
1
On September 3, 2020, Respondent conceded that Petitioner satisfied the criteria for a
Table injury of GBS following flu vaccination, and a Ruling on Entitlement was issued.
Respondent’s Amended Report (“Resp. Am. Rept.”) at 2 (ECF No. 33); Ruling on Entitlement
dated Sept. 3, 2020 (ECF No. 34). The parties were unable to resolve the amount of
compensation Petitioner should be awarded for pain and suffering and requested the undersigned
to resolve the issue. Order dated Mar. 3, 2021 (ECF No. 46).
For the reasons set forth below, the undersigned finds that $180,000.00 represents a fair
and appropriate amount of compensation for Petitioner’s actual pain and suffering and emotional
distress. The undersigned also awards $500.00 per year for Petitioner’s life expectancy for
future pain and suffering. The parties have agreed that Petitioner is entitled to $3,614.45 for
unreimbursable expenses. 3
II. PROCEDURAL HISTORY
Petitioner filed her petition on January 23, 2019. Petition. Medical records were filed
from February 2019 to August 2020. Petitioner’s Exhibits (“Pet. Exs.”) 1-15. On September 3,
2020, Respondent conceded that Petitioner satisfied the criteria for a Table injury of GBS
following flu vaccination, and a Ruling on Entitlement was issued. Resp. Am. Rept. at 2; Ruling
on Entitlement.
Thereafter, the parties began discussing damages. In March 2021, the parties reported
they disagreed as to the appropriate award for pain and suffering and requested the undersigned
to resolve the issue after the parties were given the opportunity to brief the issue. Order dated
Mar. 3, 2021. In April 2021, the parties agreed that Petitioner is entitled to $3,614.45 for
unreimbursable expenses. Pet. Status Rept., filed Apr. 5, 2021 (ECF No. 48).
Petitioner filed medical records, declarations, and expert reports from Dr. Kazim A.
Sheikh, and Respondent filed an expert report from Dr. Brian Callaghan. Pet. Exs. 16-38; Resp.
Ex. A. Petitioner filed her brief on the outstanding issue of the appropriate pain and suffering
award on April 25, 2022. Pet. Motion for Findings of Fact and Conclusions of Law Regarding
Damages (“Pet. Mot.”), filed Apr. 25, 2022 (ECF No. 68). Respondent filed his brief on July 7,
2022, and Petitioner filed a reply on July 18, 2022. Resp. Brief on Damages (“Resp. Br.”), filed
July 7, 2022 (ECF No. 72); Pet. Reply in Support of Pet. Mot. (“Pet. Reply”), filed July 18, 2022
(ECF No. 73).
The issue of pain and suffering damages is ripe for adjudication.
3
See Petitioner’s (“Pet.”) Status Rept., filed Apr. 2, 2021 (ECF No. 48); Pet. Motion for
Findings of Fact and Conclusions of Law Regarding Damages (“Pet. Mot.”), filed Apr. 25, 2022,
at 1 (ECF No. 68); Resp. Brief on Damages (“Resp. Br.”), filed July 7, 2022, at 1 (ECF No. 72).
2
III. MEDICAL TERMINOLOGY
A. Guillain-Barré Syndrome
GBS “is an immune-mediated polyneuropathy characterized by an acute onset of
symptoms progressing over a few days to weeks followed in most patients by a progressive
recovery.” Pet. Ex. 23 at 1. 4 Symptoms include “rapidly progressive, generalized weakness,
limb paresthesias,[5] and areflexia.” Pet. Ex. 25 at 1. 6 “[L]ow back and proximal muscle pain,
radicular limb pain, . . . and burning and arthralgias” may also be present. Id.
While most patients have a good physical recovery after GBS and can walk without
assistive devices, the illness may leave residual effects that impact activities of daily living,
employment, and lifestyle. Pet. Ex. 26 at 2. 7 A study of 70 patients who had GBS found that in
the majority of those who had a functional recovery, a substantial number (27%) five years later
had made significant changes in their employment, social, and leisure activities due to the
residual effects of their illness. Id. Many (62%) of the patients reported an “ongoing detrimental
impact” in their lives three to six years after GBS onset. Id. Additional studies have shown that
68% of GBS patients experience severe fatigue, even if they have a good recovery. Pet. Ex. 27
at 3. 8 Fatigue, anxiety, depression, and pain all impact quality of life and can continue for years
after the acute phase of GBS. Id. at 7.
B. Carpal Tunnel Syndrome
Carpal tunnel syndrome (“CTS”) is an “entrapment neuropathy” caused by compression
of the median nerve in the carpal tunnel located at the level of the wrist. Resp. Ex. A, Tab 1 at
1. 9 Signs and symptoms include “numbness, tingling, burning, and/or pain associated with
4
A. Bersano et al., Long Term Disability and Social Status Change After Guillain-Barré
Syndrome, 253 J. Neurology 214 (2006).
5
Paresthesia is “an abnormal touch sensation, such as burning, prickling, or formication, often in
the absence of an external stimulus.” Paresthesia, Dorland’s Med. Dictionary Online,
https://www.dorlandsonline.com/dorland/definition?id=37052 (last visited Dec. 1, 2022).
6
Kenneth C. Gorson, This Disorder Has Some Nerve: Chronic Pain in Guillain-Barré Syndrome,
75 Neurology 1406 (2010).
7
F. Khan et al., Factors Associated with Long-Term Functional Outcomes and Psychological
Sequelae in Guillain-Barré Syndrome, 257 J. Neurology 2024 (2010).
8
Ingemar S.J. Merkies & Bernd C. Kieseier, Fatigue, Pain, Anxiety and Depression in Guillain-
Barré Syndrome and Chronic Inflammatory Demyelinating Polyradiculoneuropathy, 45 Eur.
Neurology 199 (2016).
9
Kirsten Pugdahl et al., Electrodiagnostic Testing of Entrapment Neuropathies: A Review of
Existing Guidelines, 37 J. Clinical Neurophysiology 299 (2020).
3
localized compression of the median nerve at the wrist.” Id. Clinical criteria for the diagnosis of
CTS are as follows:
Resp. Ex. A, Tab 1 at 3 tbl.2. Electromyography (“EMG”)/nerve conduction study (“NCS”) 10
has been shown to confirm the “clinical diagnosis of CTS with a high degree of sensitivity
(>85%) and specificity (>95%).” Id. at 1.
IV. FACTUAL HISTORY
A. Summary of Medical Records 11
Between May 2014 and August 2016, Petitioner saw her primary care physician, Dr.
Dvinder Kaur, one to two times per year for follow-up of her chronic medical conditions,
including elevated cholesterol and obesity. See generally Pet. Ex. 5. In October 2016, Petitioner
developed right knee pain and was diagnosed with right knee arthritis. Pet. Ex. 7 at 12. On
February 15, 2017, she underwent arthroscopic surgery on the right knee with removal of the
10
EMG is “an electrodiagnostic technique for recording the extracellular activity (action
potentials and evoked potentials) of skeletal muscles at rest, during voluntary contractions, and
during electrical stimulation.” Electromyography, Dorland’s Med. Dictionary Online,
https://www.dorlandsonline.com/dorland/definition?id=15854 (last visited Dec. 1, 2022). NCS,
or electroneurography, measures “the conduction velocity and latency of peripheral nerves.”
Electroneurography, Dorland’s Med. Dictionary Online, https://www.dorlandsonline.com/
dorland/definition?id=15860 (last visited Dec. 1, 2022).
11
This section is primarily taken from Respondent’s Amended Rule 4(c) Report. See Resp. Am.
Rept. at 2-9. Additional factual summaries are set forth in the parties’ briefs. See Pet. Mot. at 8-
20; Resp. Br. at 1-8.
4
menisci, and subsequently received physical therapy for her right knee through March 2017. Id.
at 7, 59.
On October 19, 2017, Petitioner received a flu vaccine in her left shoulder at 54 years
old. Pet. Ex. 1 at 1. Later that month, on October 27, 2017, she saw Dr. Kaur for a routine
annual examination with no reported complaints. Pet. Ex. 5 at 41. She was 5’8” tall and
weighed 264 pounds at the visit. Id. Petitioner conveyed she had received a flu shot at work. Id.
On review of systems, she denied neurological symptoms including paresthesias and muscle
weakness. Id. at 42. A limited neurological exam was normal with “no focal deficits.” Id. at 43.
Petitioner received a tetanus-diphtheria-acellular pertussis (“Tdap”) vaccination in her left
shoulder. Id. at 41, 43.
On November 9, 2017, 21 days after her flu vaccination and 11 days after her Tdap
vaccination, Petitioner presented to Brunswick Urgent Care with complaints of bilateral upper
and lower extremity weakness and numbness with tingling in her hands, which had begun two
days earlier. Pet. Ex. 4 at 12. She also noted some problems walking. Id. Strength, sensation,
and gait were normal on examination. Id. She was diagnosed with upper and lower extremity
weakness and paresthesias, and referred to the emergency room (“ER”) for a lumbar puncture to
rule out GBS. Id. at 13.
Petitioner reported to the ER triage nurse at Princeton Medical Center that she had
bilateral arm weakness and numbness since “this past Tuesday” (November 7, 2017) and
bilateral leg weakness and numbness since the morning of November 9, with trouble walking.
Pet. Ex. 8.1 at 124. The ER physician, Dr. Joseph Portale, recorded complaints of bilateral arm
and leg tingling over the past 24 hours and more recent problems with bilateral leg weakness. Id.
at 108. Petitioner reported her recent flu and Tdap vaccinations, and denied having recent
illness, fever, or diarrhea. Id. On examination, she had 4/5 proximal leg weakness, normal arm
strength, decreased sensation in the arms and legs in a stocking-glove distribution, and absent
deep tendon reflexes (“DTRs”). Id. at 109. Dr. Portale indicated Petitioner’s symptoms were
consistent with a symmetric polyneuropathy and questioned if Petitioner had GBS. Id. He
ordered diagnostic and lab studies to further evaluate. Id. Petitioner’s cervical spine magnetic
resonance imaging (“MRI”) showed degenerative disc disease with no cord lesions, and a head
computed tomography (“CT”) was normal with the exception of mild mucosal thickening in the
right maxillary sinus. Id. at 139-40, 143-44. Petitioner’s cerebrospinal fluid (“CSF”) analysis
showed a mildly elevated protein of 49 (normal 15-40) with normal (4) white blood cells. Pet.
Ex. 8.0 at 40-42. Petitioner was admitted to the hospital, with an assessment of acute
inflammatory demyelinating polyneuropathy (“AIDP”), “likely [GBS]” to receive IVIG and
additional treatments. Id. at 114.
Petitioner was hospitalized at the Princeton Medical Center from November 9 to
November 14, 2017. Pet. Ex. 8.1 at 42. The critical care admission history by Dr. Erwin Moy
reported that Petitioner developed an intermittent tingling sensation in her hands on November 7,
which became constant on November 8, and that on November 9, she had tingling in her hands
and feet and problems walking due to decreased strength. Id. at 12. On examination, Petitioner
had 4/5 proximal leg weakness, normal arm strength, and decreased DTRs. Id. at 13. Dr. Moy
5
noted that GBS could possibly be caused by “vaccinations such as the [flu] vaccine . . . and the
Tdap vaccine.” Id. at 14. Petitioner was to receive her first IVIG treatment that evening. Id.
On November 9, 2017, she was seen by neurologist Dr. Aissa Alexeeva, and conveyed
noticing a little tingling in her fingers and toes which progressed to leg weakness. Pet. Ex. 8.1 at
16. Dr. Alexeeva noted the “slightly elevated” CSF protein and cervical spine MRI with no
evidence of myelopathy. Id. at 17. On examination, Petitioner had 5/5 (normal) upper and lower
extremity strength, decreased light touch sensation in her legs, absent DTRs, and difficulty
walking. Id. Dr. Alexeeva felt Petitioner had GBS, and commented that Petitioner “had two
vaccines within last three weeks which could contribute to this condition.” Id. at 18.
On November 10, 2017, Petitioner told Dr. Moy that she felt improvement “immediately
after receiving IVIG,” but now felt back to her admission baseline. Pet. Ex. 8.1 at 22. On
examination, she had normal strength and decreased extremity sensation. Id.
On November 13, 2017, Petitioner was seen by neurologist Dr. Manuel Vergara. Pet. Ex.
8.1 at 38. She reported feeling stronger, but had continued mild numbness and tingling in a
stocking distribution. Id. On examination, Petitioner had 4/5 weakness in her hands and her
proximal and distal legs, as well as absent DTRs. Id. Dr. Vergara felt that her clinical picture
was most consistent with GBS, which was improving with IVIG. Id.
The next day, November 14, 2017, Petitioner reported to Dr. Vergara that her legs were
stronger and she was able to walk better, although she still had difficulty with numbness in her
toes and fingers. Pet. Ex. 8.1 at 40. She complained of pain in the cervical and scapular region
after IVIG infusions. Id. Her examination was unchanged. Id. Dr. Vergara ordered a thoracic
spine MRI, noting that Petitioner was ready for transfer to rehab if the MRI was normal. Id. The
MRI showed a disc herniation at T2-T3, which did not compress the spinal cord, so Petitioner
was transferred to acute rehabilitation. Id. at 43-44, 147.
Petitioner received treatment at Princeton Medical Center Acute Rehabilitation for gait
and ADL (activities of daily living) dysfunction from November 14 to November 22, 2017. Pet.
Ex. 6 at 289. On admission, Petitioner was examined by Dr. Richard Bach, a physical medicine
and rehab specialist. Id. at 266. Dr. Bach noted that her symptoms had improved after five days
of IVIG, but that she still had tingling and hypersensitivity in both arms. Id. On examination,
she had 4+/5 proximal extremity weakness, decreased sensation, and absent DTRs. Id. at 267.
She was also evaluated by physical therapy and needed a rolling walker when ambulating and
assistance climbing stairs. Id. at 266.
During her rehabilitation, Petitioner continued to be seen by Dr. Vergara. On November
15, 2017, Dr. Vergara noted that Petitioner had improved with IVIG but, over the last two days
of IVIG therapy, had developed significant arthralgias, myalgias, and pain in the cervical region
and shoulder girdle. Pet. Ex. 6 at 271. Petitioner continued to have numbness in her hands and
feet. Id. On examination, she had 4 to 4+/5 hand and lower extremity weakness including 4/5
left deltoid weakness which Dr. Vergara attributed to left shoulder pain. Id. at 272. She had
absent DTRs and decreased sensation in a stocking distribution. Id. On November 20, 2017, Dr.
6
Vergara noted Petitioner continued to complain of tingling in both arms and weakness in her left
arm, and her examination was unchanged. Id. at 285.
On November 22, 2017, Petitioner was discharged to outpatient physical therapy. Pet.
Ex. 6 at 289. The discharge summary noted that during her rehabilitation stay she had
myofascial pain affecting her left shoulder that was treated with Lidoderm (topical analgesic),
Flexeril (muscle relaxant), and Toradol (analgesic). Id. Petitioner was able to ambulate with a
cane and was independent for ADLs. Id.
Five days later, on November 27, 2017, Petitioner presented to neurologist Dr. Nidhi
Modi with a chief complaint of “tingling, numbness in her arm.” Pet. Ex. 2 at 2. Petitioner
reported residual left arm weakness and left shoulder and upper arm discomfort. Id. On
examination, she had normal upper and lower extremity strength, absent DTRs, and normal
sensation with the exception of decreased vibratory sensation in the bilateral toes. Id. at 2-3. Dr.
Modi ordered an EMG to evaluate her ongoing arm tingling. Id. at 2. The study, performed on
January 15, 2018, had findings consistent with severe CTS at both wrists. Id. at 9. Diffuse low
amplitude responses were felt to be “consistent with an axonal motor neuropathy, likely residual
from recent AIDP.” Id.
On January 15, 2018, Petitioner returned to Dr. Modi. Pet. Ex. 2 at 4. She was receiving
physical therapy three times weekly with significant improvement in ambulation. Id. Petitioner
reported she no longer needed a cane, but continued to note bilateral hand numbness, left arm
weakness, transient sensations of pins and needles, and difficulty lifting weights with her left
arm. Id. Dr. Modi noted that EMG/NCS had showed “bilateral CTS along with some residual
signs of demyelinating neuropathy.” Id. The neurological exam findings were unchanged from
November, with the exception of improved ambulation. Id. at 4-5. Petitioner was assessed with
GBS, “[b]ilateral hand tingling/numbness – EMG/NCS shows moderate to severe bilateral CTS,”
and fatigue “likely residual from GBS.” Id. at 5. Petitioner was advised to start using wrist
splints at bedtime and when using the bike at physical therapy. Id. The next day, January 16,
2018, Dr. Modi wrote a letter stating Petitioner could “return to work with no restrictions on
January 29, 2018.” Id. at 6.
From the provided physical therapy records, it appears Petitioner’s last physical therapy
session occurred on January 31, 2018, approximately 3.5 months after receiving her flu
vaccination. Her primary complaint at the session appears to have been upper extremity pain.
Pet. Ex. 3 at 6. On examination, she had bilateral 5-/5 lower and 4+ to 5-/5 upper extremity
weakness. Id. at 7. No records of further physical therapy sessions have been submitted.
Petitioner was formally discharged from physical therapy on March 7, 2018, but it does not
appear that she was seen or evaluated on that date. Id. at 3.
On September 13, 2018, Petitioner presented to Dr. Kaur for “her regular follow up
visit.” Pet. Ex. 5 at 26. At the appointment, Petitioner reported that “she had been following up
with neurology. Overall she is much better. She has occasional tingling in hands and gets a
quick nerve impulse in the left arm.” Id. The review of systems reflected a positive for
“tingling” under neurological, but the location was not specified. Id. at 27. The neurological
portion of Dr. Kaur’s general examination noted “no focal deficits.” Id. at 29. The “plan”
7
section of the visit note, included “History of [GBS] – follow up with neurology” and “[CTS] –
following up with neurology.” Id. at 24. Petitioner was to return to Dr. Kaur in six months. Id.
at 31.
On July 8, 2019, Petitioner presented to Dr. Kaur “for her annual physical exam.” Pet.
Ex. 11 at 20. The review of systems again reported “tingling” under neurological with the
location not specified, and the physical examination listed “no focal deficits” under neurological.
Id. at 21, 23. Similar to the September 13, 2018 visit, in the “plan” section, Dr. Kaur included
“history of [GBS] – follow up with neurology” and “[CTS] – following up with neurology.” Id.
at 24.
Petitioner presented to Dr. Kaur on December 10, 2019, with a chief complaint of
diarrhea. Pet. Ex. 11 at 4. Petitioner continued to report “tingling” of unspecified location on
review of systems, with the neurological exam identifying “no focal deficits.” Id. at 5, 8.
Petitioner was diagnosed with gastroenteritis. Id. at 8.
On March 11, 2020, Petitioner returned to Dr. Modi. Pet. Ex. 13 at 5. Petitioner reported
“shooting pains in her hands and feet, which is intermittent in nature,” lasting “1-2 hours at a
time and then resolve[s].” Id. She also noted balance issues when she walks her dog. Id. On
examination, there was no change from Dr. Modi’s January 15, 2018 examination with 5/5
(normal) upper and lower extremity strength, absent arm and leg DTRs, decreased vibratory
sensation in the toes bilaterally with otherwise normal sensation, a “cautious” gait, and normal
coordination and cranial nerve function. Id. at 6. Dr. Modi ordered an EMG/NCS to “evaluate
for ongoing denervation” given Petitioner’s complains of residual pins and needles sensations,
and prescribed a trial of gabapentin for Petitioner’s neuropathic pain. Id.
Petitioner next saw Dr. Modi on July 16, 2020, to review the results of her EMG/NCS
study. Pet. Ex. 15 at 1. Her June 17, 2020 EMG/NCS study was “abnormal,” with findings
consistent with moderate CTS, moderate sensory axonal neuropathy, and evidence of chronic
cervical and lumbar radiculopathies. Id. at 7. At the visit, Petitioner reported having shooting
pain in her feet. Id. at 1. The examination was unchanged from the prior visit. Id. at 2. The
assessment remained GBS/AIDP, and Dr. Modi discussed care options with Petitioner. Id.
Petitioner did not want further neuropathic pain medicine, nor was she interested in physical
therapy. Id. She was to return for follow-up in six to eight weeks. Id.
On March 12, 2021, Petitioner saw Dr. Modi. Pet. Ex. 17 at 1. Dr. Modi wrote
“[Petitioner] now reports shooting pains in her hands and feet, which is intermittent in nature.”
Id. Petitioner denied major changes since her last appointment in July 2020. Id. “She fe[lt] that
her hands are not as coordinated.” Id. Petitioner also reported wearing her wrist braces and
doing physical therapy exercises at home. Id. Physical examination revealed that Petitioner had
“decreased vibration sense at the toes bilaterally, left worse than right.” Id. at 2. Her gait was
“steady, cautious.” Id. Dr. Modi’s assessment was that Petitioner had GBS in November 2017,
and that “[s]he still ha[d] residual pins and needles sensation in her extremities.” Id. Dr. Modi
wrote, “[a]t this point in time (4 years post episode), I would not expect her symptoms to change
much.” Id.
8
B. Affidavits, Declarations, and Letters
1. Petitioner
In her initial affidavit, Petitioner averred that she received the vaccine at issue in the
United States, and that her vaccine related injuries lasted longer than six months. Pet. Ex. 10 at
¶¶ 1-3. She also acknowledged that she did not receive any money from settlement or judgment
of a prior civil action. Id. at ¶ 4.
Subsequently, on September 15, 2020, Petitioner executed a declaration describing in
detail the course of her GBS and how it has affected her life. Pet. Ex. 16. She was 54 years old
when she became ill. Id. at ¶ 1. Prior to her illness, she was very active, and worked out in a
gym three to five times per week. Id. She and her son bowled together, and she hiked and biked
with her older son. Id. She enjoyed cooking and spending time with her friends and family. Id.
at ¶ 3.
Regarding her employment, she was a banker in the “Treasury Management Group,” a
demanding position where her responsibilities included working with companies to develop
asset-based loans. Pet. Ex. 16 at ¶ 2. She was also a “certified woman’s business advocate” and
participated in numerous activities associated with the organization. Id.
Petitioner described the onset of her GBS. She first developed “a sensitivity to
temperature in her hands,” which lasted two days, followed by an unsteady gait and difficulty
walking. Pet. Ex. 16 at ¶¶ 5-6. She was admitted to the intensive care unit (“ICU”), and became
unable to walk. Id. at ¶ 6. She had “tremendous pain” in her left shoulder and arm, as well as
her back, legs, and feet. Id. The pain was “excruciating” and required “tramadol pain patches
every 12 hours.” Id. Petitioner was hospitalized for two weeks. Id. at ¶ 7. She received
physical therapy three times per day in order to ambulate with a walker. Id. Inpatient
rehabilitation was “demanding and exhausting.” Id. at ¶ 16. After discharge, she attended
outpatient physical therapy to improve her strength and coordination. Id. at ¶ 7. She used a
walker for several weeks and a wheelchair for long trips. Id. at ¶ 14. Although she was able to
drive after a few months, her driving was limited due to numbness and pain. Id. She was unable
to cook or perform housekeeping chores. Id.
Due to her GBS, Petitioner’s relationships with friends and family members changed.
Pet. Ex. 16 at ¶ 10. Her son did not go away to college, but instead attended community college
because he did not want to leave his mother alone. Id. at ¶ 20. Petitioner withdrew from friends
and neighbors. Id. at ¶ 25. She and her husband separated. Id. at ¶ 14. She explained that her
family has suffered because she is no longer the “happy, active[,] and capable” person she was
before her illness. Id. at ¶ 37. She is “frustrated, mad[,] and depressed that . . . [her] life
continues on this path of pain and restricted activities.” Id. at ¶ 25. “GBS took away
[Petitioner’s] ability to be active,” and “ha[s] given [her] a lifetime of daily pain, brain fog[,] and
exhaustion not to mention regular falls and clumsiness.” Id. at ¶ 36. Petitioner feels that “GBS
has taken so much joy from [her] life.” Id. at ¶ 37.
9
2. Amanda Ramchandani
Petitioner filed a letter and declaration signed by Amanda Ramchandani, the owner of
THE MAX Challenge of South Brunswick, the gym that Petitioner attended prior to the onset of
her GBS. Pet. Exs. 19-20. Ms. Ramchandani stated that in 2014, Petitioner began the fitness
program. Pet. Ex. 19 at 1; Pet. Ex. 20 at ¶ 2. Petitioner never missed a class and was so
dedicated that she won “The most transformed member.” Pet. Ex. 19 at 1; Pet. Ex. 20 at ¶ 2. In
2017, when she became ill, Petitioner missed classes for the first time since joining the program.
Pet. Ex. 19 at 1; Pet. Ex. 20 at ¶ 3. After her illness, Petitioner was not able to return to fitness
classes. Pet. Ex. 19 at 1; Pet. Ex. 20 at ¶ 2. Ms. Ramchandani opined that Petitioner’s “physical
abilities have drastically diminished from the onset of [GBS], even 4 years later.” Pet. Ex. 19 at
1; Pet. Ex. 20 at ¶ 3.
3. Vrunda Patel, M.D.
Dr. Vrunda Patel, Petitioner’s OB/GYN physician, wrote a letter dated June 8, 2021, to
correct a statement in her records dated December 13, 2017. Pet. Ex. 18 at 1. In her record from
December 2017, Dr. Patel wrote “[t]he patient states her exercise level is vigorous and frequency
is 5 times/week.” Pet. Ex. 9 at 11.
Dr. Patel stated that “[Petitioner] was not able to exercise at that time due to her diagnosis
of [GBS]. She has not been able to resume her exercise of usual activity since that time.” Pet.
Ex. 18 at 1.
C. Expert Reports Regarding GBS Sequelae
1. Petitioner’s Expert, Dr. Kazim Sheikh 12
Dr. Sheikh is medical doctor, licensed to practice medicine in Texas, and board certified
in neurology with a qualification in muscle pathology and subspecialty certification in clinical
neuromuscular pathology. Pet. Ex. 21 at 1; Pet. Ex. 22 at 2. He is a tenured Professor of
Neurology at the medical school at the University of Texas in Houston, where he is the Director
of the Neuromuscular Program. Pet. Ex. 21 at 1. Dr. Sheikh is also the Director of the
Neuromuscular Disorders Center at the Mischer Neuroscience Institute at Memorial Hermann-
Texas Medical Center as well as Director of the GBS/CIDP Center of Excellence at the
University of Texas Health Science Center at Houston. Id. He has authored numerous
publications, has an active clinical practice in neurology, and teaches medical students, residents,
and fellows. Id. at 1-2.
In preparation for providing his opinions, Dr. Sheikh reviewed Petitioner’s medical
records, Respondent’s Amended Rule 4(c) Report, and relevant medical literature. Pet. Ex. 21 at
1. The focus of his opinions were two-fold: (1) the sequela of Petitioner’s GBS and (2) the cause
of pain and numbness in Petitioner’s hands. Id.
12
Petitioner filed two expert reports from Dr. Sheikh. Pet. Exs. 21, 29.
10
Specifically, Dr. Sheikh opined that Petitioner has the following residual GBS deficits:
“1) Chronic fatigue and exhaustion affecting participation in normal activities; 2) Chronic pain
and paresthesias affecting hands, arms (L>R), and feet; 3) Imbalance and reduced mobility; 4)
Dysautonomic features including brain fog, temperature dysregulation, and sexual dysfunction;
5) Anxiety and depression; [and] 6) Social dysfunction.” Pet. Ex. 21 at 6.
Notably, fatigue is a common problem after GBS. In several articles referenced by Dr.
Sheikh, the issue of fatigue is addressed. Kuitwaard et al. 13 surveyed 245 patients diagnosed
with GBS, and found that even “[s]everal years after the diagnosis, severe fatigue was still
prominent, and 45% . . . experienced fatigue as their most disabling symptom.” 14 Pet. Ex. 24 at
3-4.
Another article cited by Dr. Sheikh was Khan et al., who studied 76 patients with GBS to
determine post-illness restrictions on activity levels. Pet. Ex. 26 at 1. Most patients had a “good
functional recovery.” Id. “However, 16% reported moderate to extreme impact on their ability
to participate in work, family, and social activities; and 22% substantial impact on mood,
confidence[,] and ability to live independently.” Id. Patients also reported moderate to extreme
depression (18%), anxiety (22%), and stress (17%) as compared with the normative population
(13%). Id. “Factors associated with poor[] current level of functioning and wellbeing included:
females, older patients (57+ years), acute hospital stay (>11 days), those treated in intensive
care[,] and those discharged to rehabilitation.” Id. The authors concluded that “GBS is complex
and requires long-term management of psychosocial sequelae impacting activity and
participation.” Id.
Additionally, Dr. Sheikh addressed the question of whether Petitioner’s chronic pain and
numbness of her hands is caused by GBS or bilateral CTS. Specific to the symptoms in her
hands, he opined that Petitioner’s “[m]ild [CTS] is a minor contributor to hand symptoms and
secondary to median nerve injury related to GBS.” Pet. Ex. 21 at 7. Thus, Dr. Sheikh believed
the symptoms were caused by GBS. Id. at 6-7.
He offered three reasons for his opinions. First, he opined that the 2018 EMG/NCS study
“showed both ulnar and median neuropathies” suggesting “a polyneuropathic process” and not
an isolated median neuropathy consistent with CTS. Pet. Ex. 21 at 6. Dr. Sheikh emphasized
that CTS is caused by “compression of the median nerve at the wrist does not affect other
peripheral nerves.” Id. Second, he noted that Petitioner complained of symptoms in her arms
and hands, whereas CTS usually affects just the hands. Id. Third, after her initial EMG/NCS,
Petitioner did not complain of problems with her first 3 fingers which would have been
consistent with CTS. Id. Instead of CTS, Dr. Sheikh believed that Petitioner’s arm and hand
13
Krista Kuitwaard et al., Recurrences, Vaccinations and Long-Term Symptoms in GBS and
CIDP, 14 J. Peripheral Nervous Sys. 310 (2009).
14
Compare Pet. Ex. 24 at 3-4, with Pet. Ex. 27 at 3 (“Across all studies, 68% of patients had
severe fatigue[], emphasizing the fact that fatigue is a serious residual symptom even in patients
with apparent good functional recovery.”).
11
symptoms were caused by “nerve damage to cervical spinal root and peripheral median and ulnar
nerves due to GBS.” Id. at 6-7.
Moving forward to 2020, Petitioner continued to have “sensory symptoms in the hands,
arms, and feet.” Pet. Ex. 21 at 7. EMG/NCS study in 2020 “showed significant improvement in
the median nerve conductions despite ongoing symptoms.” Id. The study also showed “spinal
root injury at the cervical and lumbosacral levels related to GBS.” Id. Dr. Sheikh opined that
Petitioner’s “chronic sensory and pain symptoms are residua of large and small sensory nerve
fiber damage related to GBS in the spinal roots and peripheral nerves of the upper extremities.”
Id. To the extent that she had mild CTS, Dr. Sheikh opined that it was due to “enlargement of
the median nerve . . . at the wrist segment . . . [with] entrapment in the carpal tunnel.” Id. Thus,
he concluded that Petitioner’s CTS was not an independent condition but related to her GBS. Id.
In his first expert report, Dr. Sheikh cited several articles, most of which discuss common
sequela of GBS. 15 Relevant to the effects of GBS on peripheral nerves, Dr. Sheikh cited a paper
by Razali et al., 16 which described serial nerve ultrasound studies in 17 patients with GBS as
compared to the same number of controls. Pet. Ex. 28 at 1. Serial ultrasounds showed
enlargement of the median, ulnar, and sural nerves. Id. at 3. Notably, the median nerve
enlargement was not seen “at typical entrapment sites but at mid-arm in median nerve.” Id. at 4.
Thus, enlargement was not seen at the wrist. See id.
In his second expert report, Dr. Sheikh opined that “the clinical and electrodiagnostic
features of isolated CTS and isolated non-compressive median neuropathy at the wrist would be
indistinguishable.” Pet. Ex. 29 at 1. He also opined that Petitioner did not have symptoms of
CTS before she developed GBS. Id. at 2.
Dr. Sheikh reviewed Petitioner’s EMG/NCS study results and opined that neurologist Dr.
Modi’s interpretation of “severe compression of the median nerves at both wrists (i.e., [CTS])”
was incorrect. 17 Pet. Ex. 29 at 3. Instead, according to Dr. Sheikh, “[t]he abnormalities in the
ulnar nerve conductions [are] compatible with a more diffuse neuropathic process such as GBS.”
Id. Dr. Sheikh also asserted that Petitioner did not have clinical criteria of CTS in 2018 at the
time that Dr. Modi opined that she had CTS based on her EMG/NCS. Id.
Regarding Petitioner’s 2020 EMG/NCS, Dr. Sheikh disagreed with not only Dr. Modi’s
interpretation, but he also disagreed with Respondent’s expert, Dr. Callaghan. Instead of severe
compression of the median nerve at the wrist (CTS), Dr. Sheikh opined that Petitioner had
15
See Pet. Exs. 23-27.
16
Siti Nur Omaira Razali et al., Serial Peripheral Nerve Ultrasound in Guillain-Barré Syndrome,
127 Clinical Neurophysiology 1652 (2016).
17
The 2020 EMG/NCS impression stated the “findings [were] consistent with: 1) Moderate
compression of the median nerve at the left wrist (ie. [CTS]). 2) Chronic left C5-C6, C7-T1
cervical radiculopathies. 3) Moderate sensory axonal neuropathy. 4) Chronic left L2-L4, L4-L5,
L5-S1 lumbosacral radiculopathies.” Pet. Ex. 15 at 7.
12
“prolonged conduction time suggestive of demyelination” but that “the cause of nerve injury i.e.,
compression (CTS) [versus] inflammatory injury to nerve (GBS)” was not specified. Pet. Ex. 29
at 3. In summary, Dr. Sheikh opined that Petitioner’s clinical course and diagnostic tests were
“compatible with a diffuse neuropathic disease [such] as GBS and involvement of median nerves
at the wrist are part of GBS and not due to isolated compression of median nerves at the wrists as
seen in CTS.” Id. at 4.
Further, according to Dr. Sheikh, the segment of the median nerve that passes through the
carpal tunnel at the wrist is prone to injury in GBS. Pet. Ex. 29 at 4. He cited several articles in
support of his opinion. One of the older articles was published in 1969, by Asbury et al., 18 who
described the pathology of peripheral nerves taken at autopsy in 19 patients who succumbed to
idiopathic polyneuritis. 19 Pet. Ex. 33 at 2. Pathology of the median nerve was discussed in two
cases. In the first one (Case 9), the median nerve was described as having “intense
inflammation,” “perivascular focal lesions,” and “zones of diffuse subperineurial infiltrate.” Id.
at 13. However, there was no reference to pathology seen at the wrist, which is the site of
entrapment in CTS. In the second case (Case 14), the proximal portion of the left median nerve
had abnormal lesions, but there was no description of involvement at the wrist. Id. at 19. The
authors noted that the “distal peripheral nerves showed lesser damage” than proximal portions of
peripheral nerves. 20 Id. at 19.
In the 1984 paper by Brown and Feasby, 21 22 patients with GBS were studied, and
conduction was measured in the median nerves at common areas of entrapments, including the
wrist. Pet. Ex. 30 at 3. The authors found “no correlation between the presence or absence of
disproportionate local conduction abnormalities at ‘entrapment’ sites, and the development or
quantity of denervation in muscles in the distribution of these nerves.” Id. at 13. Relative to the
median nerve, “the presence of focal conduction slowing beneath the flexor retinaculum[22] was
suggested by the presence of prolonger terminal motor latencies in 69 [percent] (first two
weeks).” Id. at 14. The authors did not, however, reach any conclusions about this finding and
its relationship, if any, to the development of CTS. Moreover, they stated that “[w]hether the
18
Arthur K. Asbury et al., The Inflammatory Lesion in Idiopathic Polyneuritis: Its Role in
Pathogenesis, 48 Medicine 173 (1969).
19
Idiopathic polyneuritis appears to be a former name for the condition, or some of the
conditions, now known as GBS.
20
This finding, however, was not universal. See Pet. Ex. 33 at 19 (noting “the right femoral
nerve showed more extensive inflammatory infiltrate distally than proximally”).
21
W.F. Brown & T.E. Feasby, Conduction Block and Denervation in Guillain-Barré
Polyneuropathy, 107 Brain 219 (1984).
22
Flexor retinaculum is “a heavy fibrous band continuous with the distal part of the antebrachial
fascia, completing the carpal tunnel through which pass the tendons of the flexor muscles of the
hand and fingers.” Retinaculum Flexorium Manus, Dorland’s Med. Dictionary Online,
https://www.dorlandsonline.com/dorland/definition?id=103850 (last visited Dec. 5, 2022).
13
nerves in GBS are any more vulnerable to physical trauma because of the polyneuritis is
unknown.” 23 Id. at 19.
Although Dr. Sheikh acknowledged that the mechanisms of how GBS causes nerve
injury at common sites of entrapment are not known, he referenced articles to support his opinion
that there can be “synergetic effects of mechanical compression and non-compressive
neuropathic etiologies.” Pet. Ex. 29 at 7. Of the studies he cited, only one involves GBS,
authored by Lambert and Mulder, from 1964. Pet. Ex. 32. Unfortunately, the Lambert and
Mulder article consists of only a brief note. Id. at 1. The authors reported that nerve conduction
of motor fibers of the ulnar, median, and peroneal nerves in patients with GBS showed “diffuse
slowing” that “was often most pronounced at common sites of entrapment.” Id. Additionally,
the methodology was not reported, and no information was provided about any specific sites of
entrapment related to the median nerve.
The other studies cited by Dr. Sheikh to support his opinion about the synergistic effects
of compressive and non-compressive mechanisms relate to findings in diabetic neuropathy or
diphtheritic neuropathy and not GBS. For example, Hopkins and Morgan-Hughes, 24 in 1969,
summarized studies that showed delayed conduction in the median nerve at the wrist in diabetic
patients. Pet. Ex. 37 at 1. Based on this observation, they suggested that “peripheral nerves
which are minimally affected by disease may be rendered more susceptible to the effects of
repeated minor trauma, traction, or mechanical compression.” Id. They found that lesions in the
plantar nerves of guinea pigs was caused by combined effects of diphtheritic neuropathy induced
by diphtheriae toxin and antitoxin and mechanical compression caused from the floor of the
cages on the animals’ plantar nerves. Id. at 8. They did not determine “[t]he mechanism by
which diphtheria toxin renders the plantar nerves more susceptible” to the effects of
weightbearing. Id.
Dr. Sheikh also cited a 1989 paper by Sumner, 25 describing a study where acute
conduction blocks 26 were induced in sciatic nerves of rats with experimental allergic
encephalomyelitis (“EAE”) and experimental allergic neuritis (“EAN”). Pet. Ex. 38 at 1. “This
technique allows one to follow, in a quantitative manner, the evolving sequence of functional
changes in nerve conduction produced by antiserum-mediated attack on myelinated motor
axons.” Id. “Electrophysiological studies in [the rats] revealed findings strikingly similar to
23
The authors noted that such a mechanism was suggested “to contribute to the compression
neuropathies in guinea pigs with experimental diphtheritic neuropathy.” Pet. Ex. 30 at 19.
24
A. P. Hopkins & J.A. Morgan-Hughes, The Effect of Local Pressure in Diphtheritic
Neuropathy, 32 J. Neurology Neurosurgery Psychiatry 614 (1969).
25
Austin J. Sumner, The Physiological Basis for Symptoms in Guillain-Barré Syndrome, 9
Annals Neurology 28 (1981).
26
A conduction block is “a blockage in a nerve that prevents impulses from being conducted
across a given segment although the nerve is viable beyond that segment.” Conduction Block,
Dorland’s Med. Dictionary Online, https://www.dorlandsonline.com/dorland/definition?id=
60759 (last visited Dec. 5, 2022).
14
those encountered in human [GBS] . . . .” Id. at 2. Sumner hypothesized that “common sites of
nerve entrapment . . . where the blood-nerve barrier may be defective, [may] render[] nerve
fibers vulnerable.” Id. at 3.
In conclusion, Dr. Sheikh opined that the cause of Petitioner’s sensory symptoms and
pain in her hands is multifactorial due to a “diffuse neuropathic process such as GBS rather than
isolated compressive median neuropathies at the wrist (CTS).” Pet. Ex. 29 at 8.
2. Respondent’s Expert, Dr. Brian C. Callaghan 27
Dr. Callaghan is licensed medical doctor who is board certified in neurology as well as
electrodiagnostic medicine. Resp. Ex. B at 1. He is an Associate Professor of Neurology at the
University of Michigan, where he is also a neuromuscular specialist. Resp. Ex. A at 1. He is the
Co-Director of the Neuromuscular Division at the University of Michigan Health System. Resp.
Ex. B at 1. Dr. Callaghan has an active clinical practice in neurology and has published
numerous articles. Resp. Ex. A at 1; Resp. Ex. B at 12-21.
The parties’ experts agreed that Petitioner suffered sequelae of GBS. Specifically, Dr.
Callaghan did not refute Dr. Sheikh’s opinions that Petitioner suffered the following residual
deficits of GBS: chronic fatigue and exhaustion; imbalance and reduced mobility, dysautonomia
features including brain fog and temperature dysregulation; anxiety and depression; and social
dysfunction.
The experts disputed whether Petitioner met the formal diagnostic criteria for CTS and
whether her CTS was caused by GBS. Dr. Callaghan opined that Petitioner’s “neurologist
correctly diagnosed her with [CTS].” Resp. Ex. A at 4. This opinion is based on Petitioner’s
EMG/NCS studies from January 15, 2018, “which revealed bilateral [CTS],” and June 17, 2020,
which demonstrated “moderate left [CTS].” Id. In addition, Dr. Callaghan opined that
Petitioner’s symptoms of hand numbness, including “the numbness and tingling on the palmar
surface of the first 3 digits, and shaking her hands out for relief,” were consistent with CTS. Id.
Petitioner also described symptoms of CTS in her petition, noted by Dr. Callaghan as “hands that
become numb when she drives, pain in her hands when working at her computer if it is cold,
wrist braces that help control the numbness, and symptoms that wake her from sleep.” Id.
In support of his opinion that Petitioner was appropriately diagnosed with CTS, Dr.
Callaghan cites clinical criteria published by Pugdahl et al. Resp. Ex. A, Tab 1 at 3 tbl.2. These
criteria are as follows:
Major criteria
(1) Paresthesias in the hand in a median nerve (palmar surface of the first three
digits and lateral half of fourth digit), median nerve and ulnar nerve, or glove
distribution
(2) Paresthesias aggravated by activities such as driving, holding a book or
telephone, or working with the hands raised
27
Respondent filed one expert report from Dr. Callaghan. Resp. Ex. A.
15
(3) Paresthesias and pain in the hand that awaken the patient from sleep
(4) Paresthesias relieved by shaking the hand or holding it in a dependent Position
Minor criteria
(1) Subjective weakness of the hand;
(2) Clumsiness of the hand or dropping objects
(3) Presence of Tinel (reproducible symptoms when tapping median nerve) or
Phalen signs (reproducible symptoms when flexing wrists).
Resp. Ex. A at 4 (quoting Resp. Ex. A, Tab 1 at 3 tbl.2). Since Petitioner had symptoms
consistent with the first three major criteria, Dr. Callaghan opined that her diagnosis of CTS was
correct. Id.
In addition to meeting the clinical criteria for a diagnosis of CTS, Petitioner also met the
EMG/NCS criteria. Resp. Ex. A at 4-5. Dr. Callaghan detailed the specific findings in
Petitioner’s studies consistent with CTS.28 Id. He disagreed with Dr. Sheikh that the EMG/NCS
studies showed involvement of the ulnar nerve and explained that that “the only ulnar nerve
involvement was a decreased amplitude of the right ulnar motor amplitude” in 2018. Id. at 5. In
2020, both right and left ulnar nerves were normal. Id. Therefore, Dr. Callaghan opined that
Petitioner met both the clinical and diagnostic criteria for the diagnosis of CTS. Id.
Moreover, Dr. Callaghan opined that CTS is “caused by compression of the median nerve
within the carpal tunnel.” Resp. Ex. A at 5. He explained that GBS is not known to be a cause
of CTS. Id. Regarding the article cited by Dr. Sheikh that observed enlargement of the median
nerve in patients with GBS, Dr. Callaghan noted that “the nerves that were enlarged were not at
typical sites of entrapment such as the carpal tunnel.” Id. Instead, the median nerve was
enlarged at the “mid-arm level, [] not at the wrist (site of carpal tunnel).” Id. Dr. Callaghan
concluded that “[w]hile GBS and [CTS] can both lead to numbness and tingling in the hands,
only [CTS] specifically affects the first three digits of the hands, causes paresthesia aggravated
by driving, and causes paresthesia relieved by shaking [the] hand.” Id.
In conclusion, Dr. Callaghan opined that “GBS is not known to lead to [CTS] and [CTS]
should not be considered a sequelae of GBS.” Resp. Ex. at 5. Moreover, “the medical records
support two separate diagnoses contributing to the [P]etitioner’s symptoms including GBS and
[CTS].” Id.
V. CONTENTIONS OF THE PARTIES
The parties dispute two issues: (1) whether Petitioner’s “painful and numb hands are a
sequela of her GBS” or due to CTS and (2) the amount of damages that should be awarded to
Petitioner for pain and suffering and emotional distress. Pet. Mot. at 23, 32-36; Resp. Br. at 10.
Regarding the appropriate award for pain and suffering, Petitioner seeks $200,000.00 for
past pain and suffering and $2,000.00 per year, reduced to net present value, for the rest of her
28
For a description of the EMG/NCS criteria, see Resp. Ex. A at 4-5.
16
life expectancy, for future pain and suffering. Pet. Mot. at 36. Petitioner cites several cases in
support of her position. The first is Hood v. Secretary of Health & Human Services, where that
Petitioner’s GBS required a six-day hospital stay followed by ten days of inpatient rehabilitation.
Id. (citing No. 16-1042V, 2021 WL 5755324, at *3 (Fed. Cl. Spec. Mstr. Oct. 19, 2021)). Mr.
Hood also received several courses of IVIG and outpatient physical therapy. Id. (citing Hood,
2021 WL 5755324, at *3). Three years later his EMG/NCS showed residual abnormalities
consistent with his prior GBS. Id. (citing Hood, 2021 WL 5755324, at *3). Due to his illness, he
was unable to continue his job as a butcher. Id. at 33 n.17; Hood, 2021 WL 5755324, at *9.
Further, the evidence established that he continued to have residual symptoms six years after his
illness. Pet. Mot. at 34 (citing Hood, 2021 WL 5755324, at *8).
By comparison, Petitioner asserts that her course has been similar but more severe than
that experienced by Mr. Hood. Pet. Mot. at 34. Petitioner was hospitalized and had a lumbar
puncture and a five-day course of IVIG. Id. Like Mr. Hood, Petitioner also required inpatient
rehabilitation. Id. However, Petitioner argues she had severe pain, necessitating prescription
medication. Id. She also used a cane to ambulate. Id. While Petitioner was able to return to her
job at the bank, she has experienced a separation with her husband, and continues to have fatigue
and depression. Id. at 35. Dr. Sheikh opined that Petitioner has chronic fatigue, chronic pain,
problems with balance and mobility, dysautonomia, anxiety, and depression. Id. at 35-36.
Respondent proposes a total of $115,000.00 for pain and suffering damages. Resp. Br. at
1. In his brief, Respondent recognizes that “GBS cases have historically run the spectrum from
cases involving severe sequelae requiring life care plans to assess prospective damages, to cases
in which the petitioner nearly or completely recovers shortly after the six-month minimum
duration of symptomatology required to qualify for compensation.” Id. at 15. Respondent
explains that Petitioner’s “clinical course documented by her medical records does not
demonstrate a severe course of GBS, comparatively speaking.” Id.Respondent also asserts that Petitioner’s clinical course was less severe than the cases
cited by Petitioner. 29 Resp. Br. at 15-17. In response to Petitioner’s reference to Hood, who was
awarded $200,000.00 in actual pain and suffering and $1,000.00 per year for his life expectancy
in future pain and suffering damages, Respondent noted that Mr. Hood was only 32 years old
when he was diagnosed with GBS. Id. at 16. He suffered four falls resulting in hand and foot
fractures. Id. He was unable to walk without a cane for nine months and did not walk unassisted
for a year. Id. at 17. By comparison, Petitioner’s hospital course was “less severe, her ability to
ambulate was less affected, she attended considerably less [physical therapy], and she was able
to return to work without restriction several months later.” Id. at 17.
29
See Dillenbeck v. Sec’y of Health & Hum. Servs., No. 17-428V, 2019 WL 4072069 (Fed. Cl.
Spec. Mstr. July 29, 2019), aff’d in part, 147 Fed. Cl. 131 (2020) (awarding $170,000.00 in past
pain and suffering); Johnson v. Sec’y of Health & Hum. Servs., No. 16-1356V, 2018 WL
5024012 (Fed. Cl. Spec. Mstr. July 20, 2018) (awarding $180,000.00 in past pain and suffering);
Fedewa v. Sec’y of Health & Hum. Servs., No. 17-1808V, 2020 WL 1915138 (Fed. Cl. Spec.
Mstr. Mar. 26, 2020) (awarding $180,000.00 in past pain and suffering award); Hood, 2021 WL
5755324 (awarding $200,000.00 in past pain and suffering and $1,000.00 per year, reduced to
net present value, for the rest of his life expectancy, for future pain and suffering).
17
The parties agree “that $3,614.45 should be awarded for unreimbursed medical
expenses.” Pet. Mot. at 1; Resp. Br. at 1.
VI. LEGAL FRAMEWORK
There is no 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) (“Awards 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) (“[T]he 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)).
The undersigned may look to prior pain and suffering awards to aid in the resolution of
the appropriate amount of compensation for pain and suffering in this case. See, e.g., Doe 34 v.
Sec’y of Health & Hum. 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”).
The undersigned may also rely on her experience adjudicating similar claims. Hodges v. Sec’y
of Health & Hum. 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). Importantly, however, it must also be stressed that pain and
suffering is not determined based on a continuum. See Graves v. Sec’y of Health & Hum.
Servs., 109 Fed. Cl. 579 (2013).
In Graves, Judge Merow rejected the 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 Merow noted that this constituted “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 589-90. 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.
VII. ANALYSIS
A. Whether Petitioner’s CTS is a Sequela of Her GBS
The undersigned finds that Petitioner had two distinct diagnoses, CTS and GBS, although
both contributed to her symptoms of hand numbness and tingling. Further, the undersigned finds
that Petitioner has not proven by preponderant evidence that her CTS was caused by GBS.
18
There are two principal reasons for these findings. First, Petitioner did not show by
preponderant evidence that GBS can cause CTS. Secondly, Petitioner’s treating physicians did
not attribute her CTS to GBS. Finally, to the extent that there is an overlap of symptoms,
specifically numbness in Petitioner’s hands caused by CTS and GBS, this is acknowledged in the
undersigned’s award for pain and suffering.
In support of Petitioner’s contention that her CTS was caused by her GBS, she filed
expert reports from Dr. Sheikh and accompanying medical literature. He opines that the pain
and numbness in Petitioner’s hands were caused by GBS and to the extent that she had CTS, it
was caused by her GBS. Dr. Sheikh references medical literature that he asserts establish two
propositions. The first is that GBS causes a diffuse neuropathic disease which affects the median
nerve in the arm, causing an inflammatory process of the nerve, and leading to pain and
numbness in the hand. He opines that these symptoms are not caused only by compression of the
median nerve as is seen in CTS. Secondly, he opines that the median nerve, which passes
through the carpal tunnel (at the level of the wrist), is prone to injury in GBS. The papers that
Dr. Sheikh relies on, however, do not provide preponderant evidence of these two propositions.
Of the referenced papers, three discuss the median nerve in the context of GBS. The
most current, published in 2016 by Razali et al., reported on serial ultrasound studies of the
median nerves in 17 patients with GBS. The studies showed significant enlargement of the
median nerve three weeks after onset of GBS. However, the median nerve was not enlarged at
the wrist consistent with CTS. Instead, it was enlarged at the mid-arm level. Therefore, this
study does not support the idea that GBS causes CTS.
The findings published by Razali et al. also cast doubt on a statement made by Brown
and Feasby in an article they published in 1984 about a study of 25 patients with GBS. Specific
to the median nerve, they stimulated the nerve at the wrist and measured maximum motor
conduction velocity and motor terminal latency to assess for a conduction block. Sensory
conduction was also measured, but these results were not included because “conduction block
was much more difficult to assess in sensory [fibers].” Pet. Ex. 30 at 3. The authors reported
“focal conduction slowing beneath the flexor retinaculum was suggested by the presence of
prolonged terminal motor latencies in 69 [percent] [in the first two weeks of GBS] of the median
nerves.” Id. at 14. However, the authors did not reach any conclusions about this finding and its
relationship, if any, to CTS. In fact, CTS was not discussed. Moreover, the study only included
motor fibers (due to the difficultly assessing sensory fibers), and the authors discussed weakness
and paralysis, not pain or numbness of the hands (sensory symptoms).
The third paper cited by Dr. Sheikh that referenced the median nerve was published in
1969 by Asbury et al. and it described the pathology findings of peripheral nerves in patients
who succumbed to GBS. The median nerve was described in two cases. However, there was no
discussion of abnormalities of the nerve at the location of the wrist. In one of the cases (Case
14), the authors specifically observed that the distal peripheral nerves showed less damage.
While the articles include conclusory statements suggesting that GBS can affect the
median nerve at its distal portion (that runs through the carpal tunnel), this conclusion is not
19
supported by the results of the studies. Further, none of the authors of these papers opine that
CTS is caused by GBS. Moreover, none of them establish that GBS contributes to or renders a
patient more susceptible to CTS.
In his expert report, Dr. Callaghan stated that he “was unable to find any article linking
GBS to [CTS].” Resp. Ex. A at 5. Based on the medical literature filed in this case, Dr.
Callaghan’s statement appears to be accurate.
The experts agree that both GBS and CTS can cause numbness in the hands. Petitioner’s
expert Dr. Sheikh opines that “[m]ild [CTS] is a minor contributor to [Petitioner’s] hand
symptoms,” while Respondent’s expert, Dr. Callaghan, opines that “only [CTS] specifically
affects the first three digits of the hands, causes paresthesias aggravated by driving, and causes
paresthesias relieved by [hand] shaking,” all which Petitioner has described. Pet. Ex. 21 at 7;
Resp. Ex. A at 5.
Further, Petitioner’s treating neurologist, Dr. Modi, diagnosed Petitioner with two distinct
conditions, GBS and CTS. On November 27, 2017, Petitioner saw Dr. Modi and her chief
complaint at that visit was “tingling, numbness in her arm.” Pet. Ex. 2 at 2. Dr. Modi ordered an
EMG/NCS to evaluate her complaint. The study was done on January 15, 2018. Dr. Modi
interpreted it as showing “bilateral CTS along with some residual signs of demyelinating
neuropathy.” Id. at 4. Dr. Modi’s diagnoses were (1) GBS and (2) “[b]ilateral hand
tingling/numbness – EMG/NCS shows moderate to severe bilateral CTS.” Id. at 5. In 2020, Dr.
Modi again ordered an EMG/NCS. He interpreted this study as showing (1) moderate CTS and
(2) moderate sensory axonal neuropathy (from GBS). Pet. Ex. 15 at 2, 7.
Here, the undersigned finds Petitioner’s treating neurologist’s opinions to be more
persuasive. See, e.g., Capizzano v. Sec’y of Health & Hum. Servs., 440 F.3d 1317, 1325 (Fed.
Cir. 2006) (noting treating physician statements are typically “favored”); Cucuras v. Sec’y of
Health & Hum. Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993) (finding contemporaneous medical
records, “in general, warrant consideration as trustworthy evidence”). Dr. Modi took a thorough
history, performed physical examinations, and ordered and interpreted diagnostic studies. Dr.
Sheikh opines that Dr. Modi’s interpretation of the diagnostic studies were “incorrect.” Pet. Ex.
29 at 3. However, the undersigned is not willing to adopt such a view, especially given the fact
that Dr. Callaghan agrees with Dr. Modi’s interpretation of the studies.
For all of these reasons, the undersigned agrees with the opinions of Dr. Callaghan, and
finds that Petitioner suffered GBS, which caused numbness of her extremities, including
numbness and tingling of her hands. She also has a distinct diagnosis of CTS, which was not
caused by her GBS. Her CTS affects the first three digits of her hands, causes paresthesias that
are aggravated by driving, and causes paresthesias relieved by shaking her hands.
B. Petitioner’s Award for Pain and Suffering
In determining an award in this case, the undersigned does not rely on a single decision
or case. Rather, the undersigned has reviewed the particular facts and circumstances in this case,
20
giving due consideration to the circumstances and damages in other cases cited by the parties and
other relevant cases, as well as her knowledge and experience adjudicating similar cases.
The parties cited several cases relevant to the issues presented here. The undersigned
finds that several cases, including Johnson, Dillenbeck, and Fedewa, are helpful in evaluating
Petitioner’s case given the similarity in facts. 30 Dillenbeck, 2019 WL 4072069; Johnson, 2018
WL 5024012; Fedewa, 2020 WL 1915138. Each of these are discussed in turn.
Ms. Johnson was 61 years old when she was diagnosed with GBS after receiving a flu
vaccine, and was awarded $180,000.00 for actual pain and suffering. Johnson, 2018 WL
5024012, at *1-2. Ms. Johnson worked as a school bus driver for her local school district and as
a part-time school librarian. Id. at *2. Ms. Johnson received a flu vaccine in November 2015
and was subsequently hospitalized for five days, from December 10 to 15, 2015, for GBS. Id. at
*2-3. She received a lumbar puncture and five rounds of IVIG. Id. at *3. She did not take
gabapentin following her injury because she feared being dependent on medication and suffering
adverse effects of medication. Id. at *7. After three months, she was approved to work half-
days up to three times a week as a librarian, but could still not return to work as a school bus
driver. Id. at *4. Approximately three-and-one-half months after her diagnosis, Ms. Johnson
was cautiously driving again and walking without her walking sticks. Id. Subsequently, Ms.
Johnson passed her physical examination in 2016 and returned as the school bus driver for the
2016-2017 school year. Id. Ms. Johnson had initially completed some in-home therapy and
three sessions of outpatient therapy between March 2016 and June 2016, but she did not partake
in therapy between June 2016 and February 2017. See id. A little over one year after Ms.
Johnson’s hospitalization, she completed 45 personal exercise visits between February 27, 2017
and February 26, 2018. Id.At the time of her damages hearing in January 2018, over two years after her
hospitalization, Ms. Johnson still reported GBS sequela including incontinence, decreased work
duties, fatigue, and residual numbness in her legs. Johnson, 2018 WL 5024012, at *5. She
stated that she could no longer hike with her family and dog like she used to. Id. at *4. She also
testified that incontinence meant that she was unable to tell when she needed to use the bathroom
and traveled with spare clothing. Id. at *5. Finally, Ms. Johnson testified that she still had
numbness in her legs and could not tell when her feet were cold. Id. Based on the facts and
circumstances of the case, Ms. Johnson was awarded $180,000.00 for actual pain and suffering.
Id. at *9.
Ms. Dillenbeck was 61 years old when she was diagnosed with GBS after receiving the
flu vaccine. Dillenbeck, 2019 WL 4072069, at *1. She was awarded $170,000.00 for actual
pain and suffering and $500.00 per year for future pain and suffering damages. Id. at *14-15.
Ms. Dillenbeck was hospitalized, received multiple rounds of IVIG, and attended outpatient
physical therapy multiple times per week. Id. at *2. Ms. Dillenbeck returned to work on March
1, 2016, approximately three months after her hospitalization, though with a 15-pound weight
30
The undersigned does not find Hood to be comparable. Mr. Hood was considerably younger,
and his clinical course was more severe both due to more significant symptoms and a longer
period of recovery. Hood, 2021 WL 5755324.
21
restriction. Id. In April 2016, Ms. Dillenbeck requested to be free of work restrictions despite
still reporting symptoms of paresthesia in hands and feet, chest sensitivity, and an unsteady gait.
Id. Ms. Dillenbeck took gabapentin for the six months following her hospitalization. Id. at *3.
At the time of her testimony over three years later, in February 2019, Ms. Dillenbeck still
reported GBS sequalae, including lack of sensation in hands and feet, increased sensitivity on
chest, abdomen, and back, weakness in her hands, and generalized fatigue. Id. at *3-4.
In Dillenbeck, the special master found that damages for pain and suffering “reflect the
personal cost of having to suffer GBS” and “the lost opportunity to continue to perform vet tech
duties from which she clearly took great pleasure.” Dillenbeck, 2019 WL 4072069, at *14. The
special master accepted Ms. Dillenbeck’s explanation that her quick return to work and release
from restrictions was due to the pressure she felt to return to work rather than a reflection of her
true health or readiness. Id. at *9-10.
Mr. Fedewa was 54 years old when he suffered GBS. Fedewa, 2020 WL 1915138, at *2.
He was awarded $180,000.00 in actual pain and suffering. Id. at *1. Prior to Mr. Fedewa’s
hospital admission for GBS, he sought medical treatment three times, complaining of
progressively worsening numbness and weakness. Id. at *2. Once admitted, he was hospitalized
for eight days, then transferred to inpatient rehabilitation for five days. Id. at *2-3. He reported
terrible experiences with his lumbar puncture and EMG tests, and he had a difficult time with his
five rounds of IVIG treatment. Id. He began physical therapy during inpatient rehabilitation,
and after he was discharged home, he attended 22 sessions of outpatient physical therapy over
the span of three months. Id. at *3. He was unable to drive or work for three months. Id. at *5.
He took gabapentin for three months following his hospitalization. Id. at *6. His depression and
anxiety required Wellbutrin, which he took for approximately 15 months post-hospitalization.
Id.Regarding his employment, Mr. Fedewa, then age 54, worked as a dental equipment
repairman. Fedewa, 2020 WL 1915138, at *2. His job required him to drive to service locations
and to lift and move equipment up to 250 pounds. Id. at *6. He returned to work approximately
three months after his hospitalization, due to the need to support his family, but worked under a
25-pound weight restriction. Id. Working was painful and difficult for many months. Id. GBS
also altered Mr. Fedewa’s family and social life. Id. Prior to GBS, he was physically active on
his farm raising animals, tending to plants, and enjoying outdoor activities with his children. Id.He was also an active member in his church community. Id. After GBS, Mr. Fedewa was
unable to participate in community and family activities, and this affected his relationships with
his friends, family, and especially his children. Id. He dealt with the residual symptoms of his
GBS for over two-and-one-half years. Id. Mr. Fedewa stated that his “greatest loss ha[d] been
the continuing trauma that has made life hard and took the joy out of living.” Id. He continued
to experience depression and fatigue. Id.The factors to consider when determining an award for pain and suffering include
awareness of the injury, severity of the injury, and duration of the suffering. Awareness of
suffering is not typically a disputed issue in cases involving GBS. Here, neither party has raised,
nor is the undersigned aware of, any issue concerning Petitioner’s awareness of suffering and the
22
undersigned finds that this matter is not in dispute. Thus, based on the circumstances of this
case, the undersigned determines that Petitioner had full awareness of her suffering.
Regarding severity and duration, the undersigned finds Petitioner’s clinical course to be
like that of Mr. Fedewa’s clinical course. They both had comparable stays in the acute hospital
setting as well as inpatient rehabilitation. Both received five rounds of IVIG treatment during
their acute hospital stay. Prior to hospitalization, however, Mr. Fedewa had a more dramatic and
difficult presentation. He sought treatment three different times and fell at home prior to hospital
admission. His first lumbar puncture was unsuccessful, and he underwent the difficult procedure
a second time. Both Petitioner and Mr. Fedewa, however, reported particularly painful and
difficult experiences during their hospitalizations. Petitioner had severe pain associated with her
IVIG treatments, similar to Mr. Fedewa. After discharge from inpatient rehabilitation, they both
had outpatient physical therapy. Both attended outpatient physical therapy for three months and
gained significant improvement.
Regarding employment, both Petitioner and Mr. Fedewa returned to work full time after
approximately three months. 31 Petitioner had no work restrictions, while Mr. Fedewa had weight
restrictions.
Both Petitioner and Mr. Fedewa experienced significant fatigue and emotional distress.
Mr. Fedewa’s anxiety and moderately severe depression required him to take Wellbutrin for over
a year. Additionally, he was limited in caring for his children, and as a result, he experienced
considerable suffering. At the time of his injury, two of his children were young, requiring
physical care that Mr. Fedewa could not provide. He was also unable to perform parental duties
for his older children. His limited capacity to play with, care, and support his children resulted in
substantial emotional pain.
Petitioner also experienced significant emotional distress and her relationships with
friends and family members changed as a result of her GBS. She became withdrawn and her
social life was adversely affected. She and her husband separated. Before GBS, Petitioner led a
very active and physical life, enjoying sports and gym classes on a regular basis. After GBS, she
has become frustrated and depressed due to pain and fatigue. Petitioner feels that GBS has taken
so much joy from her life.
Based on a review of the entire record and consideration of the facts and circumstances
presented here, the undersigned finds that $180,000.00 represents a fair and appropriate amount
of compensation for Petitioner’s actual pain and suffering and emotional distress.
The undersigned also finds an award for future pain and suffering reasonable and
appropriate. Petitioner saw her neurologist Dr. Modi for a follow up visit on March 12, 2021.
Physical examination revealed that Petitioner had “decreased vibration sense at the toes
31
Mr. Fedewa returned to work because he was the sole provider for his wife and seven children.
Fedewa, 2020 WL 1915138, at *8. As noted in Dillenbeck, a petitioner returning to work
quickly does not necessarily lessen the severity of their injury. See Dillenbeck, 2019 WL
4072069, at *9-10.
23
bilaterally, left worse than right.” Pet. Ex. 17 at 2. Her gait was “steady, cautious.” Id. Dr.
Modi’s assessment was that Petitioner had GBS in November 2017, and that “[s]he still ha[d]
residual pins and needles sensation in her extremities. At this point in time (4 years post
episode), [Dr. Modi did] not expect her symptoms to change much. EMG/NCS [left lower
extremity] in June 2020 showed moderate sensory axonal neurology.” Id. A reasonable
interpretation of Dr. Modi’s record is that Petitioner’s sensory abnormalities had not changed in
four years and were expected to be permanent.
Respondent’s expert does not disagree. In Dr. Callaghan’s expert report, he references
the visit by Petitioner to see her neurologist in March 2021 and noted at that time that “the
expectation was that her symptoms would not change much from here on.” Resp. Ex. A at 3.
Moreover, Petitioner’s expert, Dr. Sheikh, opined that in addition to paresthesias,
Petitioner also suffers from other GBS sequelae, including chronic fatigue and exhaustion
affecting participation in normal activities, anxiety and depression, and social dysfunction. Pet.
Ex. 21 at 6. These residual effects are corroborated by the declaration of Petitioner.
Based on Petitioner’s medical records, and the evaluation and opinions of Dr. Modi, Dr.
Sheikh, and Dr. Callaghan, the undersigned finds an award of future pain and suffering is
appropriate and reasonable for the residual effects of GBS. The evidence establishes that
although Petitioner had a good physical recovery, she has had sensory symptoms, significant
fatigue, and other residual problems, which have had an impact on her ability to participate in
family and social activities.
In this respect, her residual course is like that of Ms. Dillenbeck. Over three years after
her diagnosis of GBS, Ms. Dillenbeck testified that she continued to experience residual effects,
including decreased sensation and weakness in her hands, increased sensation in her chest,
abdomen, and back, and generalized fatigue which interfered with her enjoyment of life.
Dillenbeck, 2019 WL 4072069, at *3, *14-15. She also lost the opportunity to continue her
position as a veterinary technician, a position that gave her “great pleasure.” Id. at *14.
Petitioner has residual effects of GBS that warrant an award of future pain and suffering,
and thus, the undersigned awards $500.00 per year for her life expectancy, reduced to net present
value.
VIII. CONCLUSION
In determining an award in this case, the undersigned does not rely on a single decision
or case. Rather, the undersigned has reviewed the particular facts and circumstances as well as
her knowledge and experience adjudicating vaccine injury cases.
In light of the above analysis, and in consideration of the record as a whole, the
undersigned finds that Petitioner should be awarded (1) $180,000.00 for actual (or past) pain and
24
suffering; (2) $500.00 per year reduced to net present value, for Petitioner’s life expectancy; 32
and (3) $3,614.45 for unreimbursed medical expenses.
The parties are to file a joint status report within 30 days, by Wednesday, January 18,
2023, (1) converting the undersigned’s award of future pain and suffering to its net present value,
and (2) providing a statement confirming that this ruling reflects all items of damages and that no
issues remain outstanding. If the parties are unable to agree on the amount of the net present
value of the future award, the undersigned will use a one percent net discount rate for the first
fifteen years, followed by a two percent net discount rate for the remaining years. 33
Thereafter, a damages decision will issue.
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Special Master
32
Based on Petitioner’s date of birth, July 9, 1963, Petitioner is expected to live for
approximately 24 additional years based on the data for all females. See Elizabeth Arias &
Jiaquan Xu, Nat’l Ctr. for Health Statistics, Ctrs. for Disease Control & Prevention, United
States Life Tables, 2020, 71 Nat’l Vital Stat. Reps. 1, 2 tbl.A (2022).
33
See Dillenbeck, 2019 WL 4072069, at *15 (applying a one percent net discount rate for the
first fifteen years, followed by a two percent net discount rate for the remaining years), aff’d in
part, 147 Fed. Cl. 131 (2020); Curri v. Sec’y of Health & Hum. Servs., No. 17-432V, 2018 WL
6273562, at *5 (Fed. Cl. Spec. Mstr. Oct. 31, 2018) (same); Petronelli v. Sec’y Health & Hum.
Servs., No. 12-285V, 2016 WL 3252082, at *5-6 (Fed. Cl. Spec. Mstr. May 12, 2016) (analyzing
the appropriateness of a one percent discount for future damages).
25