Castellanos v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1710V
UNPUBLISHED
FRANCISCO CASTELLANOS, Chief Special Master Corcoran
Petitioner, Filed: March 30, 2022
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Entitlement to Compensation;
HUMAN SERVICES, Decision Awarding Damages; Pain
and Suffering; Influenza (Flu)
Respondent. Vaccine; Guillain-Barre Syndrome
(GBS)
David John Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner.
Catherine Elizabeth Stolar, U.S. Department of Justice, Washington, DC, for
Respondent.
RULING ON ENTITLEMENT AND DECISION AWARDING DAMAGES1
On November 4, 2019, Francisco Castellanos filed a petition for compensation
under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2
(the “Vaccine Act”). Petitioner alleges that he developed Guillain-Barré syndrome (“GBS”)
as a result of receiving an influenza (“flu”) vaccine on September 28, 2018. Petition, ECF
No. 1 at 1. The case was assigned to the Special Processing Unit of the Office of Special
Masters (the “SPU”).
1 Although I have not formally designated this Decision for publication, I am required to post it on the United
States Court of Federal Claims' website in accordance with the E-Government Act of 2002, because it
contains a reasoned explanation for my determination. 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).
Petitioner has filed a Motion for a Ruling on the Record and Brief in Support of
Damages. For the reasons described below, I find that Petitioner is entitled to
compensation, and I award damages in the amount $125,000.00, solely for his past
pain and suffering.
I. Relevant Procedural History
As noted above, the case was initiated in November 2019. On January 28, 2021,
Respondent filed a Rule 4(c) Report disputing Petitioner’s entitlement to a Vaccine
Program award. Specifically, although Respondent conceded that Petitioner experienced
GBS,3 he asserted that the medical record did not preponderantly support the conclusion
that Petitioner suffered the residual effects of his alleged vaccine-caused injury for more
than six months, and that none of the exceptions to the temporal severity requirement
were met. Rule 4(c) Report at 10-13 (citing Section 11(c)(1)(D)(i)), 13-15 (citing
11(c)(1)(D)(iii)).
On May 6, 2021, Petitioner filed a Motion for Ruling on the Record and Brief in
support of Damages (“Motion”), arguing that he has established entitlement to
compensation for his GBS claim and requesting $125,000.00 in past and future pain and
suffering (without designating specific amounts for each component). ECF No. 31.
Petitioner also argued that evidence in the record preponderantly establishes that he has
suffered the effects of GBS for more than six months.
Respondent filed his Response to Petitioner’s Motion on June 7, 2021
(“Response”) recommending that entitlement to compensation be denied under the terms
of the Vaccine Act. ECF No. 32. Despite acknowledging that Petitioner’s claim meets the
Vaccine Injury Table criteria for GBS, Respondent again argued that Petitioner has not
suffered the residual effects or complications of this injury for more than six months. Id.
at 1, 11-18. And should entitlement be found despite these arguments, Respondent
indicated that an award for actual pain and suffering award of no more than $60,000.00
was appropriate. Petitioner filed his Reply on June 17, 2021. ECF No. 33.
II. Factual Findings and Ruling on Entitlement
A. Legal Standards
Before compensation can be awarded under the Vaccine Act, a petitioner must
demonstrate, by a preponderance of evidence, all matters required under Section
11(c)(1), including the factual circumstances surrounding her claim. Section 13(a)(1)(A).
3Respondent acknowledges that Petitioner has alleged that the influenza vaccine “caused-in-fact” his
GBS, but concedes that Petitioner’s injury falls within the Vaccine Injury Table. Rule 4(c) Report at n.5.
2
In making this determination, the special master or court should consider the record as a
whole. Section 13(a)(1). Petitioner’s allegations must be supported by medical records or
by medical opinion. Id.
To resolve factual issues, the special master must weigh the evidence presented,
which may include contemporaneous medical records and testimony. See Burns v. Sec’y
of Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (explaining that a special
master must decide what weight to give evidence including oral testimony and
contemporaneous medical records). Contemporaneous medical records are presumed to
be accurate. See Cucuras v. Sec’y of Health & Human Servs., 993 F.2d 1525, 1528 (Fed.
Cir. 1993). To overcome the presumptive accuracy of medical records testimony, a
petitioner may present testimony which is “consistent, clear, cogent, and compelling.”
Sanchez v. Sec’y of Health & Human Servs., No. 11–685V, 2013 WL 1880825, at *3 (Fed.
Cl. Spec. Mstr. Apr. 10, 2013) (citing Blutstein v. Sec’y of Health & Human Servs., No.
90–2808V, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998)).
In addition to requirements concerning the vaccination received, the duration and
severity of petitioner’s injury, and the lack of other award or settlement,4 a petitioner must
establish that he suffered an injury meeting the Table criteria, in which case causation is
presumed, or an injury shown to be caused-in-fact by the vaccination he received. Section
11(c)(1)(C).
The most recent version of the Table, which can be found at 42 C.F.R. § 100.3,
identifies the vaccines covered under the Program, the corresponding injuries, and the
time period in which the particular injuries must occur after vaccination. Section 14(a).
Pursuant to the Vaccine Injury Table, GBS is compensable if it manifests within 3-42 days
(not less than three days and not more than 42 days) of the administration of an influenza
vaccination. 42 C.F.R. § 100.3(a)(XIV)(D). (Further criteria for establishing a GBS Table
Injury case be found under the accompanying qualifications and aids to interpretation. 42
C.F.R. § 100.3(c)(15)).
B. Factual Findings Regarding Severity
Petitioners not asserting a vaccine-related death or other injury requiring a surgical
intervention and inpatient care must demonstrate that they suffered the residual effects
or complications from their vaccine-related injury for more than six months. Section
4
In summary, a petitioner must establish that he received a vaccine covered by the Program, administered
either in the United States and its territories or in another geographical area but qualifying for a limited
exception; suffered the residual effects of his injury for more than six months, died from his injury, or
underwent a surgical intervention during an inpatient hospitalization; and has not filed a civil suit or collected
an award or settlement for her injury. See § 11(c)(1)(A)(B)(D)(E).
3
11(c)(1)(D).5 I am mindful that (in keeping with the generosity of the Vaccine Program
generally, and how that policy concern impacts interpretation of the Act’s provisions)
severity is not something that should be so rigidly enforced that claims are dismissed
simply because the claimant’s injury “trails off” toward the conclusion of the six-month
period. See Wright v. Sec’y of Health & Human Servs., No. 16-498V, slip op. at 10–11
(Fed. Cl. July 16, 2019).6 At the same time, Vaccine Act claims are frequently, and
properly, dismissed for failure to satisfy this requirement. See, e.g., Wagner v. Sec’y of
Health & Human Servs., No. 17-1388V, 2019 WL 3297509 (Fed. Cl. Spec. Mstr. May 8,
2019), mot. for review denied, 2019 WL 2866786 (Fed. Cl. June 4, 2019); Gerami v. Sec’y
of Health & Human Servs., 127 Fed. Cl. 299 (2014) (upholding dismissal of case on basis
of failure to meet severity requirement, where record did not establish injury lasted more
than three months, and Petitioner could not persuasively vary record with physician letter
prepared in anticipation of lawsuit that was not otherwise corroborated by record
evidence).
While even mild symptoms that do not require intensive medical care may satisfy
the severity requirement, ongoing medical treatment for conditions unrelated to the
alleged vaccine injury do not. Compare Wyatt v. Sec’y of Health & Human Servs., No. 14-
706V, 2018 WL 7017751, at *22–23 (Fed. Cl. Spec. Mstr. Dec. 17, 2018) (petitioner’s
post-vaccination GBS resolved within three months; subsequent ongoing medical
treatment for upper respiratory and gastrointestinal infections did not satisfy six-month
requirement), with Herren v. Sec’y of Health & Human Servs., No. 13-1000V, 2014 WL
3889070, at *3 (Fed. Cl. Spec. Mstr. July 18, 2014) (ongoing mild GBS symptoms that
did not require active medical care nevertheless satisfied severity requirement).
After consideration of the complete record, I find that Petitioner has offered
preponderant evidence to establish that he more likely than not suffered the residual
effects of GBS for more than six months. My finding is based on the filed medical records,
medical literature, affidavits, Respondent’s Rule 4 Report and the parties’ briefing.
Specifically, I highlight the following:
5
Many decisions measure this time period from the date of vaccination, relying on a plain-language reading
of the Act. Herren v. Sec’y of Health & Human Servs., No. 13-1000V, 2014 WL 3889070, at *2 (Fed. Cl.
Spec. Mstr. July 18, 2014). However, I believe a more reasonable interpretation is that, since the six-month
period measures severity of injury, it cannot begin before the time of injury, and hence is properly measured
from the date of onset. Other special masters have also employed this rule in assessing whether the severity
requirement has been satisfied. Gerami v. Sec’y of Health & Human Servs., 127 Fed. Cl. 299, 305 (2014)
(citing Cloer v. Sec’y of Health & Human Servs., 654 F.3d 1322, 1335 (Fed. Cir. 2011)). This distinction in
interpretation of the Act does not bear on the outcome of this case.
6 The fact that a petitioner will not be able to show extensive residual impact from a vaccine injury can
properly be taken into account in damages calculation, and hence claimants are not “rewarded” for being
able to satisfy the severity requirement with weak proof that the injury’s sequelae extended only a bit beyond
the six-month timeframe.
4
• Petitioner’s pre-vaccination history is significant for diabetes mellitus since at least
2015 with regular diabetic foot exams beginning in March 2016. Ex. 3 at 2-6; 19-
22; 31-34; 40-43; 48-51; 69-72; 77-80; 110-113; Ex. 8 at 95-98. At these
appointments, Petitioner frequently demonstrated bilateral weakness in his ankles
and feet with “loss of protective sensation,” a decreased or absent left and/or right
dorsalis pedis pulse, and a decreased or absent left and/or right posterior tibial
pulse. Ex. 3 at 20, 32, 41, 45, 70, 78, 112.
• On August 7, 2017, Petitioner presented for a follow-up appointment with Dr.
Felipe Gascon, his primary care physician (“PCP”). Ex. 3 at 64. Petitioner’s diabetic
foot screen revealed “[m]ildly decreased lower extremity peripheral pulses.” Id. at
66.
• On June 5, 2018, Petitioner attended an office visit with Dr. Gascon concerning his
complaint of incontinence. Ex. 3 at 106-109. There is no indication that a
musculoskeletal or neurological exam was given or that Petitioner complained of
symptoms related to his diabetes. Id.
• Petitioner was assessed with “type 2 diabetes mellitus with diabetic peripheral
angiopathy without gangrene” on June 8, 2018. Ex. 3 at 112. Petitioner was
“[a]dvised to wear DM shoes and insoles daily.” Id.
• Medical notes documenting Petitioner’s July 11, 2018 laboratory appointment do
not indicate that Petitioner was experiencing abnormal neurological symptoms. Ex.
3 at 114-118.
• Petitioner was administered a flu shot on September 28, 2018. Ex. 1 at 2; Ex. 3 at
249. At the time of vaccination, Petitioner was an 80-year-old retiree. Ex. 4 at 11.
In October 2018, Petitioner’s granddaughter reported that he was “sedentary,
ambulate[d] short distances, like[d] to watch TV” and was able to drive. Id. at 82.
• On October 12, 2018, Petitioner presented to Dr. Gascon for a follow-up visit
regarding laboratory results. Ex. 8 at 90-94. Petitioner was again assessed with
diabetes mellitus with diabetic peripheral angiopathy without gangrene. It was
noted that this condition was “stable.” Id. at 93.
• In his affidavit, Petitioner stated that on October 18, 2018 (almost three weeks
post-vaccination), “I woke up and noticed that all of a sudden I was not able to hold
my own body.” Ex. 2 at 2-3. He noted extreme weakness as well as numbness and
tingling in his legs. Id. Petitioner further stated that he was unable to rise out of
bed, stand, or walk without assistance, and that his condition continued to worsen
over the following days. Id. at 2.
5
• Petitioner testified that by October 20, 2018 “I started to have numbness and
weakness in my hands as well.” Ex. 2 at 3. He was transported to the University of
Miami Hospital’s emergency department later that day. Ex. 4 at 6. Although a CT
of Petitioner’s head was unremarkable, he was admitted for further evaluation and
a neurology consultation. Id.
• Petitioner underwent the recommended neurological examination on October 20,
2018. Ex. 4 at 14. The consult note indicates that Petitioner “present[ed] with 2 day
acute onset bilateral peripheral numbness upper and lower extremities.” Petitioner
was found to have muscle weakness, reduced reflexes in his upper extremities,
and a loss of reflexes in his lower extremities. The consult note also indicates that
Petitioner suffered from bilateral ataxia in both his upper and lower extremities
“congruent with weakness.” Id.
• Petitioner began inpatient physical therapy on October 21, 2018. Ex. 4 at 81-85.
The initial evaluation indicates that Petitioner presented with “bilateral knee
buckling and poor quad control.” Id. at 85. He was only able to take two small steps,
required a gait belt, and was “unable to grip with [his] hands.” Ex. 4 at 84-85.
Petitioner denied pain during this session as well as during a follow-up session on
October 24, 2018. Id. at 72, 82.
• On October 22, 2018, Petitioner began inpatient occupational therapy. Ex. 4 at 77.
He questioned why he was unable to use his hands “like before,” but denied being
in pain. Id. at 78. In addition, Petitioner was seen by neurology resident Dr. Mario
Zamora and attending neurologist Dr. Silvia Delgado. Ex. 4 at 44-48. Dr. Zamora
noted that Petitioner complained of “diffuse weakness,” had minimal sensory
deficits that only involved his fingertips, and was areflexic. Id. at 45.
• Petitioner underwent a lumbar puncture on October 23, 2018 that revealed
elevated protein levels in the cerebrospinal fluid and “albuminocytologic
dissociation consistent with [GBS].” Ex. 4 at 4, 121.
• After undergoing five rounds of intravenous immunoglobulin (“IVIG”) treatment
“with significant improvement in . . . neurological status,” Petitioner was discharged
from hospital care on October 29, 2018. Ex. 4 at 3-6.
• Petitioner received inpatient care at St. Catherine’s West Rehabilitation Hospital
from October 29, 2018, until November 28, 2018. See Ex. 5 at 945, 952, 958. The
admissions note indicates that “the only pertinent recent history was flu vaccine 2
weeks prior.” Id at 7. At the time of his admission, Petitioner required moderate
assistance with bed mobility and maximum assistance with transfers. Id.
• Petitioner presented to Dr. Gascon on November 29, 2018, for a post-discharge
follow-up appointment. Ex. 3 at 130. Although Petitioner denied suffering from any
6
symptoms other than mild weakness in his lower extremities, he used a walker for
ambulation. Dr. Gascon recommended a continuation of physical therapy. Id.
• Petitioner presented for a diabetic foot exam on December 12, 2018. Ex. 8 at 74-
78. Petitioner demonstrated bilateral weakness in his ankles and feet with “loss of
protective sensation,” a decreased right and left dorsalis pedis pulse, and an
absent posterior tibial pulse bilaterally. Id. at 76. These findings are consistent with
the results of Petitioner’s pre-vaccination foot exams. See Ex. 3 at 20, 32, and 112.
• Petitioner attended follow-up appointments with Dr. Gascon on January 15 and
January 29, 2019. Ex. 8 at 69-73; Ex. 6 at 32-37. The medical notes document that
Petitioner was able to walk independently with an assistive device and that he had
“[m]inimal weakness of bilateral lower extremities with significant improvement,
S/P Guillain Barre syndrome.” Ex. 8 at 69; Ex. 6 at 35.
• Petitioner attended physical therapy on an outpatient basis from December 17,
2018 until February 28, 2019, completing 21 sessions. Ex. 5 at 1281-1295. It was
recommended that he continue a home exercise plan to further progress his
rehabilitation. Id. at 1295.
• Petitioner returned to Dr. Gascon on March 12, 2019 (almost five months after
hospitalization). Ex. 8 at 49-53. Petitioner denied any weakness and reported that
he was feeling “very well” and could walk without assistance. Id. at 49. Dr.
Gascon’s assessment was “Guillain-Barre, Stable.” Id. at 52.
• Petitioner again reported to his PCP on May 3, 2019 (over six months after
hospitalization) to review the results of his blood tests. Dr. Gascon noted that
Petitioner “is recovering from [GBS], today is walking without assistance and feels
much better.” Ex. 6 at 15.
• On July 18, 2019, Petitioner reported to Dr. Gascon regarding the results of
laboratory tests. Ex. 8 at 33-37. There is no indication that musculoskeletal or
neurological exams were undertaken. Dr. Gascon’s assessment did not refer to
GBS. Ex. 8 at 33-37.
• On August 12, 2019 – almost ten months after his October 2018 hospitalization,
Petitioner returned to Dr. Gascon with complaints of tingling and an “on/off
numbness sensation on hands and feet.” Ex. 7 at 1. Dr. Gascon noted that
Petitioner was “status post Guillain Barre syndrome . . . underwent i[n]patient
therapy” and that he should continue physical therapy. Id. While Petitioner’s
assessment included type 2 diabetes mellitus with peripheral angiopathy and
chronic kidney disease, it did not include GBS. See Ex. 7 at 4-5.
7
• On October 30, 2019, Petitioner met with Dr. Gascon to review his laboratory
results. There is no indication that musculoskeletal or neurological exams were
undertaken. Dr. Gascon’s assessment did not refer to GBS. Ex. 8 at 15-17.
• Petitioner presented to Dr. Eugenio Moises Guevara at Neurology and Pain
Management on December 9, 2019. Ex. 8 at 104-107. After noting Petitioner’s
previous GBS diagnosis, Dr. Guevara wrote that “months ago,” Petitioner began
experiencing cramps, tingling and [a] sensation of stiffness in both hands . . . refers
numbness, tingling in both feet since 2 years ago, associated to instability to walk.”
Id. at 104. Petitioner reported “a good recovery” after his GBS. Id. Dr. Guevara’s
assessment included bilateral carpal tunnel syndrome, neuropathy involving both
lower extremities, sensory ataxia, and “[h]istory of GBS.” Id. at 105. The medical
note further indicates that the most common causes of neuropathy were
discussed. These causes included, but were not limited to, diabetes mellitus,
alcohol use, nutrition and trauma. GBS was not included on this list. Id. at 105-106.
• Petitioner had a follow-up appointment with Dr. Guevara on January 13, 2020. Ex.
8 at 109-112. The medical note indicates that although Petitioner’s previous
complaints of cramps, tingling and a sensation of stiffness in his hands had
continued, the numbness and tingling in his feet had decreased with gabapentin.
Ex. 8 at 111. Dr. Guevara’s assessment again included a discussion of the most
common causes of neuropathy. Id.
• Petitioner returned to Dr. Gascon for a follow up visit on March 4, 2020 and
engaged in a telephone communication with him on April 28, 2020. Ex. 9 at 12, 17.
Petitioner did not note any new complaints during these interactions. Id. Dr.
Gascon did not perform neurological or musculoskeletal examinations during
Petitioner’s March 4, 2020 visit and GBS was not mentioned. See id. at 17-23.
• Petitioner participated in a telehealth visit with Dr. Guevara on June 10, 2020. Ex.
10 at 11-13. In addition to noting that Petitioner was to stop taking gabapentin due
to its side effects, Dr. Guevara noted Petitioner’s report of continued cramps and
bilateral hand tingling. Id. He further noted that “there are electrophysiological
evidences of bilateral carpal tunnel syndrome” and explained that an EMG “did not
show signs of denervation at rest but the patter contraction is deceased with
increased polyphasism in all examined muscles suggestive of superimposed
cervical diffuse radiculitis.” Id. at 13.
• Petitioner again presented to Dr. Guevara on June 17, 2020 to receive bilateral
carpal tunnel injections. Ex. 10 at 8.
• On December 17, 2020, Petitioner presented to Dr. Gascon for a follow-up visit.
Ex. 9 at 5. Petitioner reported living alone and having the ability to perform “all his
ADL [activities of daily living].” Id. In his review of Petitioner’s neurological
8
symptoms, Dr. Gascon noted that Petitioner had a history of both GBS and carpal
tunnel syndrome and continued to suffer from “BL [bilateral] hand numbness,
tingling sensation and sensation of stiffness.” Id. at 7.
• In his supplemental affidavit, signed on April 9, 2021, Petitioner states that GBS
has impaired his ability to participate in activities of daily living. Ex. 13 at 3.
Petitioner avers that he has difficulty walking, standing and maintaining balance
due to occasional severe numbness and tingling in his lower extremities. Id.
Further, Petitioner states that he has difficulty reaching for and carrying objects,
driving, and taking care of himself. Id.
In this case, because Petitioner received the flu vaccine on September 28, 2018
and claims an onset in mid-October 2018, he must demonstrate that his injuries continued
through at least mid-April.7
Respondent argues that Petitioner did not suffer the residual effects or
complications of his GBS for more than six months. Central to his argument is Petitioner’s
post-discharge denials of symptoms related to GBS other than mild weakness in his lower
extremities. Response at 12 (citing, e.g., Ex. 8 at 79). Respondent appears to reason that
because Petitioner denied suffering from any weakness during an appointment with his
primary care physician on March 12, 2019 – approximately five months after onset – his
GBS had resolved by this date. Respondent at 12 (citing Ex. 8 at 49).
However, the medical note documenting this visit confirms that Petitioner
continued to be assessed with GBS, despite its stabilization. Ex. 8 at 52. Further, on May
3, 2019 – over six months after Petitioner’s October 2018 hospital admission – Petitioner’s
physician stated that Petitioner “is recovering from [GBS].” Ex. 6 at 15. Despite this
language, Respondent argues that the physician’s failure to include GBS in the medical
record’s “assessment” section indicates that it was no longer an ongoing problem.
Response at 15. Respondent also argues that the physician’s decision to forgo
conducting a musculoskeletal or neurological exam further indicates that Petitioner had
no ongoing GBS symptoms. Id.
In response, Petitioner asserts that “usage of the phrase ‘recovering from [GBS]’
indicates that he is in the process of recovering, rather than fully recovered from GBS.”
Reply at 3. I agree. Although the treating physician offers no explanation for this finding
and the medical note is somewhat vague, there is simply no reason for me to doubt this
determination. Moreover, petitioners are afforded the benefit of close calls in the Vaccine
Program. Roberts. v. Sec'y of Health & Human Servs., No. 09-427V, 2013 WL 5314698,
at *10 (Fed. Cl. Spec. Mstr. Aug. 29, 2013).
More significantly (and even if the “recovering” language does not allow for an
interpretation in Petitioner’s favor), the record clearly establishes that Petitioner continued
7 See supra note 5.
9
to suffer some mild GBS sequelae after the formal six-month “deadline.” Thus, Petitioner’s
August 12, 2019 medical record (documenting his complaint of “tingling and on/off
numbness sensation on hands and feet”) and supplemental affidavit both reveal lingering
GBS symptoms. See Ex. 7 at 1; Ex. 13 at 2. Respondent attempts to distinguish them,
arguing that Petitioner’s lower extremity symptoms date “at least as far back as 2015,
secondary to his diabetes” and, therefore “cannot constitute a ‘residual effect’ under the
Vaccine Act.” Response at 11. However, while Petitioner was assessed with diabetic
peripheral angiopathy and frequently demonstrated bilateral weakness in his ankles and
loss of “protective loss sensation” in his feet prior to his September 2018 flu shot, there is
no indication that Petitioner complained of numbness or tingling in the months
immediately preceding the onset of his GBS, and hence this alternative explanation loses
some strength. See, e.g., Ex. 3 at 106-123.
Respondent also argues that Petitioner’s “upper extremity symptoms are . . . due
to [his] carpal tunnel syndrome.” Response at 14. Petitioner was first assessed with this
injury on December 9, 2019 – over one year after the onset of his GBS. Ex. 8 at 104-107.
It is possible that some of the tingling and numbness in Petitioner’s hands is attributable
to his carpal tunnel syndrome, but prior to this date (as mentioned above) there is record
evidence that Petitioner was still experiencing some likely GBS-related sequelae – so
Petitioner has “crossed” the six-month line even if the symptoms beginning at the end of
2019 have nothing to do with his otherwise-established GBS.
Accordingly, I find that there is preponderant evidence to establish that Petitioner
suffered the residual effects of his injury for more than six months.
III. Other Table Requirements and Entitlement
In light of the lack of other objections and my own review of the record, I find that
Petitioner has established that he suffered the Table injury of GBS following a flu vaccine
within the Table time period. See 42 C.F.R. § § 100.3(a)(XIV)(D). In addition, there is not
preponderant medical evidence demonstrating that Petitioner’s condition was due to a
factor unrelated to the flu vaccine. See Section 13(a)(1). Finally, Petitioner has not
pursued a civil action or other compensation. Ex. 2 at ¶8; Section 11(c)(1)(E). Thus,
Petitioner has satisfied all requirements for entitlement under the Vaccine Act and I find
that Petitioner is entitled to compensation in this case.
IV. Damages
A. The Parties’ Arguments
Petitioner requests $125,000.00 in past and future pain and suffering without
designating specific amounts for each component. Motion at 1. He asserts that the initial
severity of his symptoms, the length and extent of his treatment (which included nine days
10
of hospitalization, thirty days in an inpatient rehabilitation facility, a lumbar puncture, a
five-day course of IVIG, and over 20 physical therapy sessions), warrants an award at
that level. Motion at 21-22. Petitioner also emphasizes that his symptoms have continued
to interfere with his ability to perform activities of daily living for at least two and a half
years. Id. at 21. To support the amount requested for his pain and suffering, Petitioner
compared the circumstances in his case to those in four other published Program
decisions that resulted in pain and suffering awards of $155,000.00 or more: Francesco,
Devlin, W.B., and Dillenbeck.8
Respondent, by contrast, proposes an award of no more than $60,000.00 for
Petitioner’s total pain and suffering. Response at 1.9 Respondent argues that “[P]etitioner
cannot reasonably attribute all, or even the majority, of his claimed pain and suffering to
GBS, given his multiple comorbidities pre-vaccination.” Id. at 20. Respondent also pointed
to differences between the facts and circumstances in Petitioner’s case and those
suffered by the petitioners in Francesco, Devlin, W.B., and Dillenbeck. Respondent does
not cite any reasoned opinions, but avers that a review of past flu/GBS claims – which
were presumably resolved via joint stipulations between the parties or the petitioners’
acceptance of a proffer representing Respondent’s valuation of their cases – supports an
award of $60,000.00 for Petitioner’s past pain and suffering. Id. at 22.
Petitioner objects to Respondent's failure to identify any reasoned opinions
supporting his proposed award of $60,000.00 for a GBS case. Reply at 12-13. He also
notes that Respondent's effective position is that Petitioner's pain and suffering from GBS
is less than the median award for conceded SIRVA claims resolved either by stipulation
or reasoned opinion. Id. at 13. (citing Randazzo v. Sec'y of Health & Human Servs., No.
18-1513V, 2021 WL 829572, at *5 (Fed. Cl. Spec. Mstr. Feb. 1, 2021)).
B. Legal Standards for Damages Awards
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
8 Francesco v. Sec’y of Health & Human Servs., No. 18-1622V, 2020 WL 6705564 (Fed. Cl. Spec. Mstr.
Oct. 15, 2021)($165,000.00 for actual pain and suffering); Devlin v. Sec’y of Health & Human Servs., No.
19-0191V, 2020 WL 5512505 (Fed. Cl. Aug. 7, 2020) ($180,000 for past pain and suffering); W.B. v. Sec’y
of Health & Human Servs., No. 18-1634V, 2020 WL 5509686 (Fed. Cl. Spec. Mstr. Aug. 7,
2020)($155,000.00 for pain and suffering); Dillenbeck v. Sec’y of Health & Human Servs., No. 17-428V,
2019 WL 4072069 (Fed. Cl. Spec. Mstr. July 29, 2019)($170,000.00 for past pain and suffering and
$10,857.15 for future pain and suffering).
9 In footnote 18 of his Response, Respondent “reiterates his position that [P]etitioner is not entitled to
compensation in this case but provides [a] discussion of damages should the Court ultimately find in favor
of [P]etitioner regarding entitlement.”
11
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). Petitioner bears the burden of proof
with respect to each element of compensation requested. Brewer v. Sec'y of Health &
Human Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18,
1996).
There is no 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. See 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)).
Special masters may consider prior pain and suffering awards to aid in the
resolution of the appropriate amount of compensation for pain and suffering in a specific
case. See, e.g., Doe 34 v. Sec'y of Health & Human Servs., 87 Fed. Cl. 758, 768 (2009)
(finding that “there is nothing improper in the chief special master's decision to refer to
damages for pain and suffering awarded in other cases as an aid in determining the
proper amount of damages in this case.”). And, of course, I may also rely on my own
experience adjudicating similar claims. Hodges v. Sec'y of Health & Human Servs., 9 F.3d
958, 961 (Fed. Cir. 1993) (noting that Congress contemplated the special masters would
use their accumulated expertise in the field of vaccine injuries to judge the merits of
individual claims). 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 & Human Servs.,
109 Fed. Cl. 579 (2013).
C. Appropriate Compensation for Pain and Suffering
In this case, awareness of the injury is not disputed. The record reflects that at all
times Petitioner was a competent adult with no impairments that would impact his
awareness of his injury. Therefore, I analyze principally the severity and duration of
Petitioner’s injury.
When performing this analysis, I review the same record relied upon to determine
entitlement, including the filed affidavits, medical records and written briefs. I have also
considered prior awards for pain and suffering in both SPU and non-SPU GBS cases,
12
and rely upon my experience adjudicating these cases.10
Here, the evidence shows that Petitioner, a retiree with a pre-vaccination history
significant for diabetes mellitus, presented on October 20, 2018 (22 days after his flu
vaccination), to the emergency department with a two-day history of progressive
weakness and numbness in his extremities, resulting in difficulty holding objects and an
inability to walk without assistance. Ex. 2 at 2-3; Ex. 4 at 6. He was admitted to the hospital
the same day and, after undergoing a CT of his head and lumbar puncture, was
diagnosed with GBS. Ex. 4 at 6, 121. In addition to participating in inpatient physical and
occupational therapy, Petitioner underwent a five-day course of IVIG. Ex. 4 at 4, 77, 81-
85. After a nine-day hospitalization, Petitioner was transferred to inpatient rehabilitation.
Ex. 5 at 7. He was discharged after 30 days of treatment, on November 28, 2018. Ex. 5
at 958.
At his first follow-up visit with his PCP on November 29, 2018, Petitioner denied
suffering from any pain, but noted mild weakness of his lower extremities. Ex. 3 at 130.
Moreover, he used a walker for ambulation. Id. Indeed, Petitioner was still using a walker
on January 29, 2019, the date of a subsequent primary care appointment. Ex. 6 at 32.
Petitioner was discharged from physical therapy on February 28, 2019 (having completed
over 20 sessions) and, by March 12, 2019, reported feeling “very well.” Ex. 5 at 1281-
1295; Ex. 6 at 21. His GBS was recorded as “stable.” Ex. 6 at 24. At Petitioner’s May 3,
2019 follow-up appointment, his physician noted that Petitioner “is today walking without
assistance,” “recovering from [GBS],” and feeling much better. Ex. 6 at 15.
Petitioner’s GBS was not mentioned during the following medical appointment on
July 18, 2019. Ex. 8 at 33-37. During an August 12, 2019 office visit, Petitioner reported
“on/off numbness sensation on [his] hands and feet.” Ex. 7 at 1. This symptom was not
directly attributed to his vaccine injury. Instead, Petitioner’s physician noted that “patient
is status post [GBS]” and recommended the continuation of physical therapy. Id.Petitioner’s assessments included type 2 diabetes mellitus with peripheral angiopathy and
chronic kidney disease. Id. at 4-5.
In December 2019, Petitioner consulted with a neurologist concerning hand
cramping, tingling, and stiffness as well as numbness and tingling in his feet. Ex. 8 at 104.
It is at this point in Petitioner’s course of treatment that it becomes difficult to disentangle
what may be Petitioner’s lingering GBS symptoms from his comorbidities, which include
diabetes mellitus and carpal tunnel syndrome. See Ex. 8 at 104-107 (December 9, 2019
neurology note indicating that “mo[n]ths ago,” Petitioner began experiencing cramps,
10My summary of facts, as set forth in Section II(B) herein, is fully incorporated and relied upon in my
decision awarding damages.
13
tingling and stiffness in his hands, and “since 2 years ago” experienced numbness and
tingling in his feet); Ex. 8 at 109 (January 13, 2020 neurology note indicating that while
the numbness and tingling in Petitioner’s feet had decreased, his hand symptoms
persisted); Ex. 10 at 11-13 (June 10, 2020 neurology note confirming evidence that
Petitioner suffered from carpal tunnel syndrome). By December 17, 2020 (the date of
Petitioner’s last medical record), Petitioner continued to report “BL [bilateral] hand
numbness, tingling sensation and sensation of stiffness” while also noting his ability to
live alone and perform activities of daily living. Ex. 9 at 7.
The case record overall establishes that Petitioner’s GBS was on the moderate
end of severity in GBS cases. Petitioner did not complain of any pain while hospitalized.
Ex. 4 at 72, 78, 82. Moreover, within about five months of GBS onset, Petitioner reported
that he was feeling “very well.” Ex. 8 at 49.
In addition, Petitioner’s GBS occurred in the shadow of his diabetic peripheral
angiopathy, bilateral ankle weakness and “loss of protective sensation” in his feet. See
Ex. 3 at 20, 32, 41, 45, 46, 70, 78, 112. Adding to this “stew” of comorbidities is Petitioner’s
carpal tunnel syndrome diagnosis, occurring in the winter of 2019 and 2020. See Ex. 8 at
104-107; Ex. 10 at 13. Although the medical records document that Petitioner suffered
from GBS and was still recovering from this condition in May 2019, his diabetes and carpal
tunnel syndrome may partially explain his ongoing reports of cramping, tingling, and
stiffness in his hands and numbness and tingling in his feet.
On the other hand, Respondent does not give sufficient credence to the
seriousness of GBS as a general matter, or to the facts of this specific case. Although
Petitioner did experience a relatively quick recovery, his initial course of treatment was
intense: A nine-day hospital stay with a five-day course of IVIG, followed by a 30-day stay
in an inpatient rehabilitation facility and over 20 sessions of physical therapy. Further,
Petitioner required the use of a walker until at least January 29, 2019 – about four months
after onset.
Petitioner has far better substantiated his demand than Respondent. And the
number he seeks reasonably balances the seriousness of GBS generally and the
relatively invasive nature of Petitioner’s initial course of treatment. However, I do agree
with Respondent’s contention that the present facts are not directly comparable to the
damages determinations cited by Petitioner. In such cases, where pain and suffering
ranged from $155,000.00 to $180,000.00, the injured party was out of work for several
months, experienced significant psychological distress, or endured a subsequent injury
because of GBS. See Dillenbeck 2019 WL 4072069, at *14; Devlin, 2020 WL 5512505 at
14
*3; Francesco, 2020 WL 6705564 at *4; W.B., 2020 WL 5509686 at *5.11 Moreover, while
a six-figure award is justified given the nature of Petitioner’s injury, I do give weight to the
possibility that Petitioner’s comorbidities may partially explain some of the symptoms he
experienced – especially after the spring of 2019. I therefore find that $125,000.00 in
compensation for past/actual pain and suffering is reasonable and appropriate in this
case.
I do not, however, find that a future pain and suffering component is appropriate.
There is no evidence that Petitioner suffered a permanent injury, as corroborated by the
views or opinions of a treater (a factor which I typically give great weight when evaluating
a request for a future component). And the symptoms Petitioner later began to experience
can be distinguished. Accordingly, Petitioner’s award shall be limited to past pain and
suffering.
V. Conclusion
Based on the record as a whole and arguments of the parties, I award Petitioner
a lump sum payment of $125,000.00, representing compensation for actual pain
and suffering.
This amount represents compensation for all damages that would be available
under Section 15(a). The Clerk of the Court is directed to enter judgment in accordance
with this Decision.12
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
11Petitioner appears to account for this difference, as his demand is moderately less than the amounts
awarded in his case comparisons.
12Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
15