In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1622V
UNPUBLISHED
MICHAEL FRANCESCO, Chief Special Master Corcoran
Petitioner, Filed: October 15, 2020
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Decision Awarding Damages; Pain
HUMAN SERVICES, and Suffering; Influenza (Flu)
Vaccine; Guillain-Barre Syndrome
Respondent. (GBS)
Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for petitioner.
Terrence Kevin Mangan, Jr., U.S. Department of Justice, Washington, DC, for
respondent.
DECISION AWARDING DAMAGES 1
On October 19, 2018, Michael Francesco filed a petition for compensation under
the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the
“Vaccine Act”). Petitioner alleges that he suffered Guillain Barré Syndrome (GBS)
resulting from the administration of an influenza (“flu”) vaccination on September 22,
2017. Petition at 1. The case was assigned to the Special Processing Unit of the Office
of Special Masters.
For the reasons set forth below, I find that Petitioner is entitled to an award of
damages in the amount $171,248.72, representing compensation in the amount of
$165,000.00 for actual pain and suffering, $5,222.61 for past unreimbursable
expenses, and $1,026.11 in lost wages.
1
Because this unpublished decision contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the decision will be available to anyone with access to the
internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact
medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy.
If, upon review, I agree that the identified material fits within this definition, I will redact such material from
public access.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
I. Relevant Procedural History
As noted, this case was initiated in 2018. Respondent filed a Rule 4 Report
conceding entitlement on April 14, 2020. ECF 33. Two days later, on April 16, 2020, a
Ruling on Entitlement was issued. ECF 34. At that time, the parties had already previously
informed me that they had “disparate valuation of Petitioner’s damages” and “[would]
require the Court’s involvement” in resolving this issue. ECF 31.
After giving the parties an opportunity to file written briefs, I scheduled this matter
for an expedited hearing and ruling based upon all the evidence filed to date and the
parties’ briefing. ECF 46. The hearing was held on October 2, 2020. 3 Petitioner requests
that I award him $225,000.00 for past and future pain and suffering. ECF 39 and ECF 43.
Respondent proposes that I award the lesser amount of $115,000.00. ECF 42. The
parties do not dispute that $5,222.61 in past unreimbursable expenses and $1,026.11 in
lost wages should be awarded.
II. Legal Standard
Compensation awarded pursuant to the Vaccine Act shall include “[f]or actual and
projected pain and suffering and emotional distress from the vaccine-related injury, an
award not to exceed $250,000.” Section 15(a)(4). Additionally, a petitioner may recover
“actual unreimbursable expenses incurred before the date of judgment award such
expenses which (i) resulted from the vaccine-related injury for which petitioner seeks
compensation, (ii) were incurred by or on behalf of the person who suffered such injury,
and (iii) were for diagnosis, medical or other remedial care, rehabilitation . . . determined
to be reasonably necessary.” Section 15(a)(1)(B). The petitioner bears the burden of proof
with respect to each element of compensation requested. Brewer v. Sec’y of Health &
Human Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18,
1996).
There is no mathematic formula for assigning a monetary value to a person’s pain
and suffering and emotional distress. I.D. v. Sec’y of Health & Human Servs., No. 04-
1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013) (“[a]wards for
emotional distress are inherently subjective and cannot be determined by using a
mathematical formula”); Stansfield v. Sec’y of Health & Human Servs., No. 93-0172V,
1996 WL 300594, at *3 (Fed. Cl. Spec. Mstr. May 22, 1996) (“the assessment of pain and
suffering is inherently a subjective evaluation”). Factors to be considered when
determining an award for pain and suffering include: 1) awareness of the injury; 2) severity
of the injury; and 3) duration of the suffering. I.D., 2013 WL 2448125, at *9 (quoting
McAllister v. Sec’y of Health & Human Servs., No 91-1037V, 1993 WL 777030, at *3 (Fed.
3
An official recording of the proceeding was taken by court reporter. A link to instructions on the court’s
website detailing how to order a certified transcript or audio recording of the proceeding can be found in
the Minute Entry dated October 2, 2020. See also www.uscfc.uscourts.gov/trans (last visited October 14,
2020).
2
Cl. Spec. Mstr. Mar. 26, 1993), vacated and remanded on other grounds, 70 F.3d 1240
(Fed. Cir. 1995)).
Prior pain and suffering awards in comparable cases also bear on the findings
reached herein. See, e.g., Doe 34 v. Sec’y of Health & Human Servs., 87 Fed. Cl. 758,
768 (2009) (finding that “there is nothing improper in the chief special master’s decision
to refer to damages for pain and suffering awarded in other cases as an aid in determining
the proper amount of damages in this case.”). And, of course, I may rely on my own
experience (along with my predecessor Chief Special Masters) adjudicating similar
claims. 4 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).
III. Appropriate Compensation in this Case
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.
In performing this analysis, I have reviewed the record as a whole to include the
medical records and affidavits filed and all assertions made by the parties in written
documents and at the expedited hearing held on October 2, 2020. I also considered prior
awards for pain and suffering in both SPU and non-SPU GBS cases and rely upon my
experience in adjudicating those cases. However, I ultimately base my determination on
the circumstances of this case.
Here, the record shows that Petitioner, an engineer, began to experience tingling
in his fingers and toes and weakness in his knees three days after receiving the flu
vaccine on September 22, 2017. Ex 10 at 1-2. He presented to his primary care physician
(PCP) on September 26, 2017, and physical examination revealed decreased reflexes,
decreased lower extremity strength, and ataxic gait. Ex 9 at 27. He was referred to the
emergency room for suspected GBS. Id. at 28. Petitioner was thereafter admitted to the
hospital and began a five-day course of IVIG. Ex 2 at 1160-1166. After an eight-day
hospitalization, Petitioner was transferred to inpatient rehabilitation. Ex 2 at 1001-1004.
He was discharged after 22 days of treatment, on October 25, 2017. Id. at 131.
At his first follow-up visit with his PCP, on October 27, 2017, Petitioner reported
continued symptoms in his lower extremities (pain, tingling & burning sensation) but his
“hands and arms are just about fully back to normal.” Ex 9 at 7-9. Petitioner also began
physical therapy (PT) in late October, and at his initial evaluation he reported he was still
having pain but was independent with activities of daily living. Ex 2 at 16-17. He continued
4
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
to use a wheelchair at home but was able to stand and walk 300 feet with a walker and
ten feet unassisted. Id. and Ex 9 at 7-9. Petitioner was noted to be “highly motivated” and
made “rather rapid progress” during PT. Ex 2 at 30-87. He was discharged from PT after
approximately two months. Id. at 12-13.
On April 3, 2018, Petitioner returned to his PCP, at which time he reported
continuing easy fatigue and mild pain/tingling, but he also had discontinued all
medications that he had previously been prescribed to treat his GBS and related
symptoms. Ex 9 at 4-5. As of September 7, 2018, Petitioner stated that his only symptom
was numbness/tingling in his toes “at the end of the week when he is more stressed out”
but that “he feels like his strength is better than it was before he had [GBS].” Id. at 1-2.
Subsequent records show that Petitioner remained stable after this visit. Ex 12 at 4-5.
As I informed the parties during the expedited hearing, the question in this case is
not whether Mr. Francesco is entitled to any compensation for his pain and suffering, but
rather what amount of compensation is justified, based upon the facts of the case. This
determination is not an exact science but more of an art. While it is tempting to “split the
difference” and award an amount halfway between the amounts proposed by the parties
(acknowledging that in this case, the parties’ respective positions reasonably “frame” high
and low potential awards), each petitioner deserves an examination of the specific facts
in his or her case. Thus, while amounts ultimately awarded may end up falling somewhere
in the range between the awards proposed by both parties, this result flows from a specific
analysis of Mr. Francesco’s personal circumstances.
In his brief, Petitioner references four prior GBS damages decisions 5 to support
his proposed award of $225,000.00. The petitioners in all four of these cases were
awarded approximately $180,000.00 in pain and suffering, but Mr. Francesco proposes
a higher award, arguing that his total hospitalization (inpatient and rehabilitation) of 31
days was significantly longer than that in the four other cases, which ranged from 5-11
days. Petitioner also alleges that because he was hospitalized during a management
change at his office, he missed out on establishing a relationship with the new leadership.
He estimates that if he had been in the office, he would have been awarded a bonus of
approximately $30,000.00. 6 Finally, Petitioner argues that his inability to receive future flu
shots “puts him at substantial risk, especially as he continues to age.” ECF 39.
Respondent counters that Petitioner should be awarded $115,000.00 in pain and
suffering. Respondent concedes that the duration of Petitioner’s inpatient hospitalization
5
Johnson v. Sec’y of Health & Human Servs., No. 16-135V, 2018 WL 5024012 (Fed. Cl. Spec. Mstr. July,
20, 2018); Dillenbeck v. Sec’y of Health & Human Servs., No. 17-428V, 2019 WL 4072069 (Fed. Cl.
Spec. Mstr. July 29, 2019); Fedewa v. Sec’y of Health & Human Servs., No. 17-1808V, 2020 WL
1915138 (Fed. Cl. Spec. Mstr. March 26, 2020); Presley v. Sec’y of Health & Human Servs., No. 17-
1888V, 2020 WL 1898856 (Fed. Cl. Spec. Mstr. March 23, 2020).
6
Petitioner argues that the court should consider this loss of “renewal stock units” as part of his pain and
suffering rather than lost wages. ECF 39 at 17. However, if this sum were guaranteed, it would
appropriately have been considered as a component of the latter, and speculative amounts cannot be the
basis for lost past or future wages. Regardless, I have given this factor some minor weight in calculating
pain and suffering in this case.
4
and rehabilitation was significantly longer than the stays in the four referenced cases.
However, Respondent argues that Petitioner’s recovery was “significantly faster and more
complete” than those other petitioners. ECF 42.
After reviewing the record in this case and considering the parties’ arguments
during the hearing, I conclude that Petitioner’s condition, while serious, was on the mild
end of severity in GBS cases. 7 As pointed out by Respondent, while Petitioner’s initial
treatment was extensive, he had a straightforward recovery during which most, if not all,
of his symptoms resolved within a year of onset. 8 In contrast, the petitioner in Dillenbeck
“did not feel like she had returned to a baseline level of health” even four years after
vaccination. Dillenbeck 2019 WL 4072069, at *2. In Presley, the petitioner was largely
homebound and unable to care for himself for four months after he was released from the
hospital. Presley 2020 WL 1898856, at *3-4. He also continued to have weakness and
numbness for more than 3 ½ years. Id. at *7.
I acknowledge that Petitioner did have significant symptoms, which clearly caused
psychological distress, as described in his affidavit. Ex 10. Petitioner also exerted
considerable effort in making a successful recovery, as reflected in his inpatient
rehabilitation and physical therapy records, which should be applauded. However, these
factors do not justify an award of the magnitude requested by Petitioner. For example, in
Devlin, 9 the petitioner experienced significant anxiety because it took over a month for
him to receive his GBS diagnosis after the initial onset of his symptoms. In addition, the
petitioner in Fedewa (who was awarded $180,000.00 in pain and suffering) continued to
suffer from moderately severe depression and persistent difficulty with social activities
“years” after his diagnosis. Fedewa 2020 WL 1915138, at *6, 8-9.
In contrast, the record demonstrates that Mr. Francesco continued to engage in
social activities even during his recovery. For example, he attended a six-day self-help
convention at the beginning of November 2017 (less than one month after his discharge
from inpatient rehabilitation) during which he “easily walked over a mile and also walked
over some hot coals and danced.” Ex 2 at 39. He also returned to work part-time later
that same month, working six hours per day. Id at 45 and Ex 9 at 4. As of September 7,
2018, less than one year after the onset of his symptoms, Petitioner reported that he had
returned to playing ice hockey. Ex 9 at 4-5. Petitioner’s recovery can be compared to that
in W. B., 10 where the petitioner returned to part-time work approximately one month after
7
Statistical data for all GBS cases resolved in SPU by proffered amounts from inception through July 31,
2020 reveals a median award amount of $165,000.00. Awards have typically ranged from $125,000.00 to
$270,000.00, representing cases between the first and third quartiles.
8
Petitioner argues in his responsive brief that his occasional tingling in his feet and toes when he is
fatigued should be considered “significant.” However, Petitioner’s own medical records reflect that this
residual symptom was not causing distress.
9
Devlin v. Sec’y of Health & Human Servs., No. 19-191V (Fed. Cl. Spec. Mstr. Aug. 7, 2020) (awarding
$180,000.00 in past pain and suffering).
10
W. B. v. Sec’y of Health & Human Servs., No. 18-1634V (Fed. Cl. Spec. Mstr. Aug. 7, 2020) (awarding
$155,000.00 for actual pain and suffering).
5
the onset of his symptoms and was largely asymptomatic within a year.
In sum, when balancing Petitioner’s extensive initial treatment with his significant
and uncomplicated recovery, and considering the arguments presented by both parties
at the hearing, a review of the relevant caselaw, and the written record, I find that
$165,000.00 in compensation for actual pain and suffering is reasonable in this case. This
sum exceeds in reasonable amount what Respondent proposed, but is properly less than
what some of the other petitioners referenced herein received for comparably worse
circumstances.
IV. Conclusion
For all of the reasons discussed above and based on consideration of the record
as a whole, I find that $165,000.00 represents a fair and appropriate amount of
compensation for Petitioner’s actual pain and suffering. 11 I also find that Petitioner
is entitled to $5,222.61 in actual unreimbursable expenses and $1,026.11 in lost
wages.
Based on the record as a whole and arguments of the parties, I award Petitioner
a lump sum payment of $171,248.72 in the form of a check payable to Petitioner.
This amount represents compensation for all damages that would be available under §
15(a).
The clerk of the court is directed to enter judgment in accordance with this
decision. 12
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
11
Since this amount is being awarded for actual, rather than projected, pain and suffering, no reduction to
net present value is required. See § 15(f)(4)(A); Childers v. Sec’y of Health & Human Servs., No. 96-0194V,
1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health & Human
Servs., 32 F.3d 552 (Fed. Cir. 1994)).
12
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
6