Dezurik v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1357V
UNPUBLISHED
PAMELA DEZURIK, Chief Special Master Corcoran
Petitioner, Filed: September 6, 2022
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)
Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Voris Edward Johnson, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On October 9, 2020, Pamela Dezurik 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 alleged the Table claim that she suffered a shoulder injury
related to vaccine administration (“SIRVA”) after receiving the influenza vaccine on
October 18, 2018. Petition at 1, ¶¶ 2, 20. The case was assigned to the Special
Processing Unit of the Office of Special Masters (the “SPU”). Although a ruling on
entitlement in Petitioner’s favor was issued in January 2022, the parties have been unable
to resolve damages on their own.
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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.
2National 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 $111,797.01, representing $105,000.00 for actual pain and
suffering, plus $6,797.01 for actual unreimbursed expenses.
I. Relevant Procedural History
Along with her petition, Ms. Dezurik filed the medical records and affidavit required
under the Vaccine Act. Exhibits 1-4; see Section 11(c). On October 21, 2020, the case
was activated and assigned to the SPU (OSM’s adjudicatory system for attempting to
resolve cases deemed likely to settle). ECF No. 8.
On January 4, 2022, Respondent filed his Rule 4(c) Report conceding Petitioner
was entitled to compensation, and I issued a Ruling on Entitlement approximately two
weeks later. ECF Nos. 19, 21. For approximately two months thereafter, the parties
attempted to informally resolve the issue of damages. See, e.g., Status Report, filed Feb.
18, 2022, ECF No. 22. On March 21, 2022, they informed me they had reached an
impasse in their damages discussions. ECF No. 24.
In May 2022, Petitioner filed her supplemental affidavit, and the parties filed their
damages briefs. Exhibit 5, filed May 5, 2022, ECF No. 25; Petitioner’s Brief in Support of
Damages (“Brief”), filed May 27, 2022, ECF No. 27; Respondent’s Brief Regarding
Damages (“Opp.”), filed May 27, 2022, ECF No. 28. Both filed responsive damages briefs
on June 10, 2022. Petitioner’s Reply Brief in Support of Damages (“Pet. Reply”), ECF No.
30; Respondent’s Response to Petitioner’s Damages Brief (Res. Reply”), ECF No. 31.
The matter 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 &
Hum. Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18,
1996).
2
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 & Hum. Servs., No. 04-1593V,
2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013) (“[a]wards for emotional
distress are inherently subjective and cannot be determined by using a mathematical
formula”); Stansfield v. Sec’y of Health & Hum. 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 & Hum. 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 & 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.”). 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 & 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).
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 & Hum. 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, 2022, 2,723 SPU SIRVA cases have resolved since the inception of SPU on
July 1, 2014. Compensation was awarded in 2,651 of these cases, with the remaining 72
cases dismissed.
Of the compensated cases, 1,513 SPU SIRVA cases involved a prior ruling that
petitioner was entitled to compensation. In only 114 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
1,371 of this subset of post-entitlement determination, compensation-awarding
cases, were the product of informal settlement - cases via proffer and 28 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 v. Sec’y of Health & Hum. Servs.,
No. 17-1028V, 2020 WL 3729420, at *4 (Fed. Cl. Spec. Mstr. June 4, 2020) (emphasis in
original).
The remaining 1,138 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 & Hum. 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 114 1,371 28 1,138
Lowest $40,757.91 $25,000.00 $45,000.00 $5,000.00
st
1 Quartile $72,354.81 $67,472.00 $90,000.00 $40,000.00
Median $102,479.12 $86,927.85 $122,886.42 $60,000.00
rd
3 Quartile $125,343.45 $115,000.00 $161,001.79 $115,000.00
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 114 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 $100,000.00 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 $1,500.00.7
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 – over six
months in one case. In cases with more significant initial pain, petitioners usually
experienced this greater pain for three months or less. Most 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 physical therapy (“PT”). Only one required surgery. Except in
one case with an award for pain and suffering slightly below the median amount, the
duration of the SIRVA injury ranged from six to 30 months, with most petitioners averaging
6 Two awards were for an annuity only, the exact amounts which were not determined at the time of
judgment.
7Additionally, a first-year future pain and suffering award of $10,000.00 was made in one case. Dhanoa v.
Sec’y of Health & Hum. Servs., No. 15-1011V, 2018 WL 1221922 (Fed. Cl. Spec. Mstr. Feb. 1, 2018).
5
approximately nine months of pain. Although some petitioners asserted residual pain, the
prognosis in these cases was positive. Only one petitioner provided evidence of an
ongoing SIRVA, and it was expected to resolve within the subsequent year.
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 133 PT sessions, a PT duration of more than
three years, and multiple cortisone injections, were 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.
IV. Appropriate Compensation for Petitioner’s Pain and Suffering
The parties agree Petitioner should be awarded $6,797.01 for past unreimbursed
expenses. Brief at 1, 9; Opp. at 1 n.1. Thus, the only area of disagreement is the amount
of compensation which should be awarded for Petitioner’s pain and suffering. Petitioner
seeks $120,000.00 for her pain and suffering, and Respondent argues for an award of
$85,000.00. Brief at 1, 9; Opp. at 2, 9.
The parties’ disagreement appears to be based upon their differing views of the
weight to be given Petitioner’s symptoms and treatment, rather than any significant
disagreement regarding the facts and circumstances of the case. Both acknowledged
Petitioner suffered a SIRVA injury which involved initially moderate to severe pain levels;
required treatment consisting of 14 PT sessions (4 of which were attended prior to
surgery), a cortisone injection, and arthroscopic surgery, with the injury substantially
resolved within six and one-half to seven months post-vaccination. Brief at 7-8; Opp. at
7-8. However, they offer very different comparable cases to support their damages
positions.
Petitioner favorably compared the facts and circumstances of her SIRVA injury
with those suffered by the petitioners in Vaccaro, Moore, and Collado, who received pain
and suffering awards ranging from $110,000.00 to $120,000.00, respectively.8 Brief at 6-
7. All cases involved petitioners who underwent arthroscopic surgery. Vaccaro, 2022 WL
8Vaccaro v. Sec’y of Health & Hum. Servs., No. 19-1883V, 2022 WL 662550 (Fed. Cl. Spec. Mstr. Feb. 2,
2022); Moore v. Sec’y of Health & Hum. Servs., No. 19-1850V, 2022 WL 962524 (Fed. Cl. Spec. Mstr. Feb.
25, 2022); Collado v. Sec’y of Health & Hum. Servs., No. 17-0225V, 2018 WL 3433352 (Fed. Cl. Spec.
Mstr. June 6, 2018).
6
662550, at *4-5; Moore, 2022 WL 962524, at *3; Collado, 2018 WL 3433352, at *3, 7-8.
In contrast, Respondent initially proposed nine comparable cases, only two of which
involved petitioners who underwent arthroscopic surgery, Shelton and Hayes, in which
petitioners were awarded $97,500.00 and $120,000.00, respectively.9 Opp. at 8-9.
In her responsive brief, Petitioner criticized the utility of non-surgical cases as
comparables. Pet. Brief at 1. She argued that the Shelton case is clearly distinguishable,
but agreed that Hayes involved pain and suffering which is comparable to what Petitioner
endured. Id. at 2-3. She noted that “Respondent cites cases with pain and suffering
awards ranging from $97,500.00 and $120,000.00, yet inexplicably requests an
$85,000.00 proffer, which he deems ‘reasonable, fair, and appropriate compensation in
this case.’” Id. at 3-4.
In his responsive brief, Respondent criticized what he characterized as Petitioner’s
suggestion “that there should be a presumption that every SIRVA case involving a surgery
entitles the petitioner to a pain and suffering award of $100,000.00 or more.” Res. Brief
at 1. He insisted that he was countering this assertion by offering some non-surgical
cases. Maintaining that “the clinical courses experienced by the petitioners in those cases
were comparable to what petitioner here experienced, but-for her surgery,” he reiterated
his belief that a pain of suffering award of $85,000.00 is appropriate in this case. Id. at 2.
I agree as a general matter that an award of at least $100,000.00 is not
automatically appropriate for all SIRVA injuries, simply because arthroscopic surgery was
involved. In fact, I have awarded less than this amount in several cases. See, e.g.,
Shelton, 2021 WL 2550093, at *1, 9; Hunt v. Sec’y of Health & Hum. Servs., No. 19-
1003V, 2022 WL 2826662, at *1, 10 (Fed. Cl. Spec. Mstr. June 16, 2022). However, the
fact that a petitioner resorted to arthroscopic surgery to alleviate her symptoms inherently
reflects a greater level of pain and suffering. In addition, Program goals are generally
served by creation of a few foundational rubrics that can be considered when faced with
a dispute about pain and suffering – a common disagreement that too often obstructs the
speedy resolution of too many SIRVA cases. Thus, it is not unreasonable to apply a
baseline six-figure “yardstick” to SIRVA pain and suffering demands in cases involving
9Shelton v. Sec’y of Health & Hum. Servs., No. 19-0279V, 2021 WL 2550093 (Fed. Cl. Spec. Mstr. May
21, 2021); Hayes v. Sec’y of Health & Hum. Servs., No. 17-0804V, 2021 WL 688628 (Fed. Cl. Spec. Mstr.
Jan. 6, 2021). The remaining seven non-surgical cases are as follows: Norton v. Sec’y of Health & Hum.
Servs., No. 19-1432, 2021 WL 4805231 (Fed. Cl. Spec. Mstr. Sept. 14, 2021); Rayborn v. Sec’y of Health
& Hum. Servs., No. 18-0226V, 2020 WL 5522948 (Fed. Cl. Spec. Mstr. Aug. 14, 2020); Horton v. Sec’y of
Health & Hum. Servs., No. 20-1166V, 2022 WL 1421847 (Fed. Cl. Spec. Mstr. Mar. 25, 2022); Johnson v.
Sec’y of Health & Hum. Servs., No. 18-1486V, 2021 WL 836891 (Fed. Cl. Spec. Mstr. Jan. 25, 2021);
McCabe v. Sec’y of Health & Hum. Servs., No. 19-1916V, 2021 WL 6755494 (Fed. Cl. Spec. Mstr. Dec.
29, 2021); Walker v. Sec’y of Health & Hum. Servs., No. 19-0919V, 2021 WL 6425322 (Fed. Cl. Spec. Mstr.
Dec. 7, 2021); Smith v. Sec’y of Health & Hum. Servs., No. 19-0745V, 2021 WL 2652688 (Fed. Cl. Spec.
Mstr. May 28, 2021).
7
surgery (although one that can be rebutted) – and it is for all these reasons that the best
comparables under the circumstances are those involving surgery.
Here, the comparables offered are not all of equal utility. Although a surgical case,
Shelton involves a unique set of facts and circumstances, including an initial delay of five
months before any complaint of pain and an additional three-month delay before further
treatment was pursued. Shelton, 2021 WL 2550093, at *7. Thus, it does not provide
helpful guidance in this case (or most other cases for that matter).
The remaining surgical cases proposed by the parties involves pain and suffering
awards ranging from $110,000.00 to $120,000.00 and thus, are closer to the amount
proposed by Petitioner - $120,000.00. However, the Vaccaro and Collado petitioners
suffered more demonstrated intensive pain both prior to and after surgery. Vaccaro, 2022
WL 662550, at *5; Collado, 2018 WL 3433352, at *6-7. And the Vaccaro petitioner
attended twice the amount of PT. Vaccaro, 2022 WL 662550, at *5. The overall duration
of the SIRVA injury suffered by the Moore and Hayes petitioners was much longer – more
than twice the length of Petitioner’s injury. Moore, 2022 WL 962524, at *3; Hayes, 2021
WL 688628, at *3. The Hayes petitioner suffered symptoms for three years before
deciding to undergo arthroscopic surgery. Hayes, 2021 WL 688628, at *3.
Instead, I find the facts and circumstances suffered by Petitioner most closely
mirrors those suffered by the petitioner in Cates, who received a pain and suffering award
of $108,000.00. Cates v. Sec’y of Health & Hum. Servs., No. 18-0277V, 2020 WL
3751072 (Fed. Cl. Spec. Mstr. June 5, 2020). The Cates petitioner’s SIRVA injury also
lasted approximately seven months, involved more severe levels of initial pain, and
required a cortisone injection, similar amounts of PT, and arthroscopic surgery performed
a few months post-vaccination. Cates, 2020 WL 3751072, at *3-4. However, the Cates
petitioner’s severe pain levels lasted a few months longer than Petitioner’s.
Thus, Petitioner’s pain and suffering award should be slightly lower than what was
awarded the Cates petitioner. I find that a pain and suffering award of $105,000.00 is
appropriate in this case.
V. Conclusion
For all of the reasons discussed above and based on consideration of the record
as a whole, I find that $105,00.00 represents a fair and appropriate amount of
compensation for Petitioner’s actual pain and suffering.10 I also find that Petitioner
is entitled to $6,797.01 in actual expenses.
10Since 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 & Hum. Servs., No. 96-
8
Based on the record as a whole and arguments of the parties, I award a lump
sum payment of $111,797.01, representing compensation in the amounts of
$105,000.00 for her actual pain and suffering and $6,797.01 for her actual
unreimbursable 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.11
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
0194V, 1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health &
Hum. Servs., 32 F.3d 552 (Fed. Cir. 1994)).
11Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
9