In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1943V
UNPUBLISHED
JESSICA J. HEIN, Chief Special Master Corcoran
Petitioner, Filed: September 14, 2021
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Decision Awarding Damages; Pain
HUMAN SERVICES, and Suffering; Tetanus, Diphtheria,
acellular Pertussis ((Tdap) Vaccine;
Respondent. Shoulder Injury Related to Vaccine
Administration (SIRVA)
Richard H. Moeller, Moore, Heffernan, et al., Sioux City, IA, for Petitioner.
Mollie Danielle Gorney, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On December 23, 2019, Jessica J. Hein 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 she suffered a right shoulder injury related to
vaccine administration (“SIRVA”), a defined Table Injury, after receiving the influenza
(“Tdap”) vaccine on July 3, 2018. Petition at 1-2, ¶ 4. The case was assigned to the
Special Processing Unit of the Office of Special Masters (the “SPU”). Although
Respondent conceded Ms. Hein’s entitlement to a damages award, the parties could not
agree on the amount to be awarded.
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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 $94,263.28, reflecting $93,000.00 for her past pain and
suffering plus $1,263.28 for her past unreimbursed medical expenses.
I. Relevant Procedural History
Along with the Petition, Ms. Hein filed her affidavit and some of the medical records
required by the Vaccine Act. Exhibits 1-14, ECF No. 1; see Section 11(c). Over the
subsequent eleven-month period, Petitioner filed the remainder of the required medical
records. Exhibits 15-19. ECF Nos. 5, 11,13, 18, 23.
On April 15, 2021, Respondent filed his Rule 4(c) Report, conceding Petitioner was
entitled to compensation for her SIRVA, and I issued a Ruling on Entitlement a few days
later. ECF Nos. 27-28. For three months, the parties attempted to informally resolve the
issue of damages. See, e.g., Status Report, June 21, 2021, ECF No. 33. On July 15,
2021, they filed a joint status report indicating they had reached an impasse in their
damages discussions and requesting that I set a briefing schedule. ECF No. 34.
The parties filed their briefs on September 7, 2021. Petitioner’s Damages Brief
(“Brief”), ECF No. 36; Respondent’s Memorandum on Damages (“Opp.”), ECF No. 35.
During informal email communications, the parties agreed to forego filing any reply briefs.
See Informal Remark, dated Sept. 8, 2021. The issue is now ripe for adjudication.
II. Legal Standard
Compensation awarded pursuant to the Vaccine Act shall include “[f]or actual and
projected pain and suffering and emotional distress from the vaccine-related injury, an
award not to exceed $250,000.” Section 15(a)(4). Additionally, a petitioner may recover
“actual unreimbursable expenses incurred before the date of judgment award such
expenses which (i) resulted from the vaccine-related injury for which petitioner seeks
compensation, (ii) were incurred by or on behalf of the person who suffered such injury,
and (iii) were for diagnosis, medical or other remedial care, rehabilitation . . . determined
to be reasonably necessary.” Section 15(a)(1)(B). The petitioner bears the burden of proof
with respect to each element of compensation requested. Brewer v. Sec’y of Health &
Human Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18,
1996).
There is no mathematic formula for assigning a monetary value to a person’s pain
and suffering and emotional distress. I.D. v. Sec’y of Health & Human Servs., No. 04-
1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013) (“[a]wards for
emotional distress are inherently subjective and cannot be determined by using a
2
mathematical formula”); Stansfield v. Sec’y of Health & Human Servs., No. 93-0172V,
1996 WL 300594, at *3 (Fed. Cl. Spec. Mstr. May 22, 1996) (“the assessment of pain and
suffering is inherently a subjective evaluation”). Factors to be considered when
determining an award for pain and suffering include: 1) awareness of the injury; 2) severity
of the injury; and 3) duration of the suffering. I.D., 2013 WL 2448125, at *9 (quoting
McAllister v. Sec’y of Health & Human Servs., No 91-1037V, 1993 WL 777030, at *3 (Fed.
Cl. Spec. Mstr. Mar. 26, 1993), vacated and remanded on other grounds, 70 F.3d 1240
(Fed. Cir. 1995)).
I may also consider prior pain and suffering awards to aid my resolution of the
appropriate amount of compensation for pain and suffering in this case. See, e.g., Doe
34 v. Sec’y of Health & Human Servs., 87 Fed. Cl. 758, 768 (2009) (finding that “there is
nothing improper in the chief special master’s decision to refer to damages for pain and
suffering awarded in other cases as an aid in determining the proper amount of damages
in this case.”). And, of course, I may rely on my own experience (along with my
predecessor Chief Special Masters) adjudicating similar claims.3 Hodges v. Sec’y of
Health & Human Servs., 9 F.3d 958, 961 (Fed. Cir. 1993) (noting that Congress
contemplated the special masters would use their accumulated expertise in the field of
vaccine injuries to judge the merits of individual claims).
Although pain and suffering in the past was often determined based on a
continuum, as Respondent argues, that practice was cast into doubt by the Court several
years ago. In Graves, Judge Merow rejected a special master’s approach of awarding
compensation for pain and suffering based on a spectrum from $0.00 to the statutory
$250,000.00 cap. Graves v. Sec’y of Health & Human Servs., 109 Fed. Cl. 579 (Fed. Cl.
2013). Judge Merow maintained that do so resulted in “the forcing of all suffering awards
into a global comparative scale in which the individual petitioner’s suffering is compared
to the most extreme cases and reduced accordingly.” Id. at 590. Instead, Judge Merow
assessed pain and suffering by looking to the record evidence, prior pain and suffering
awards within the Vaccine Program, and a survey of similar injury claims outside of the
Vaccine Program. Id. at 595. Under this alternative approach, the statutory cap merely
cuts off higher pain and suffering awards – it does not shrink the magnitude of all possible
awards as falling within a spectrum that ends at the cap.
3 From July 2014 until September 2015, the SPU was overseen by former Chief Special Master Vowell. For
the next four years, until September 30, 2019, all SPU cases, including the majority of SIRVA claims, were
assigned to former Chief Special Master Dorsey, now Special Master Dorsey. In early October 2019, the
majority of SPU cases were reassigned to me as the current Chief Special Master.
3
III. Prior SIRVA Compensation Within SPU4
A. Data Regarding Compensation in SPU SIRVA Cases
SIRVA cases have an extensive history of informal resolution within the SPU. As
of July 1, 2021, 2,097 SPU SIRVA cases have resolved since the inception of SPU on
July 1, 2014. Compensation was awarded in 2,036 of these cases, with the remaining 61
cases dismissed.
Of the compensated SPU SIRVA cases, 1,187 cases involved a prior ruling that
petitioner was entitled to compensation. In only 69 of these cases was the amount of
damages determined by a special master in a reasoned decision. As I have previously
stated, the written decisions setting forth such determinations, prepared by neutral judicial
officers (the special masters themselves), provide the most reliable precedent setting
forth what similarly-situated claimants should also receive.5
1,093 of this subset of post-entitlement determination, compensation-awarding
cases, were the product of informal settlement - cases via proffer and 25 cases via
stipulation. Although all proposed amounts denote an agreement reached by the parties,
those presented by stipulation derive more from compromise than any formal agreement
or acknowledgment by Respondent that the settlement sum itself is a fair measure of
damages. Of course, even though any such informally-resolved case must still be
approved by a special master, these determinations do not provide the same judicial
guidance or insight obtained from a reasoned decision. But given the aggregate number
of such cases, these determinations nevertheless “provide some evidence of the kinds of
awards received overall in comparable cases.” Sakovits, 2020 WL 3729420, at *4
(emphasis in original).
The remaining 849 compensated SIRVA cases were resolved via stipulated
agreement of the parties without a prior ruling on entitlement. These agreements are often
described as “litigative risk” settlements, and thus represent a reduced percentage of the
compensation which otherwise would be awarded. Due to the complexity of these
settlement discussions, many which involve multiple competing factors, these awards do
4 All figures included in this decision are derived from a review of the decisions awarding compensation
within the SPU. All decisions reviewed are, or will be, available publicly. All figures and calculations cited
are approximate.
5 See, e.g., Sakovits v. Sec’y of Health & Human Servs., No. 17-1028V, 2020 WL 3729420, at *4 (Fed. Cl.
Spec. Mstr. June 4, 2020) (discussing the difference between cases in which damages are agreed upon by
the parties and cases in which damages are determined by a special master).
4
not constitute a reliable gauge of the appropriate amount of compensation to be awarded
in other SPU SIRVA cases.
The data for all groups described above reflect the expected differences in
outcome, summarized as follows:
Damages Proffered Stipulated Stipulated6
Decisions by Damages Damages Agreement
Special Master
Total Cases 69 1,093 25 849
Lowest $40,757.91 $25,000.00 $45,000.00 $5,000.00
st
1 Quartile $75,000.00 $70,000.00 $90,000.00 $45,000.00
Median $97,500.00 $90,100.00 $115,772.83 $65,000.00
rd
3 Quartile $125,360.00 $119,381.38 $160,502.39 $90,000.00
Largest $265,034.87 $1,845,047.00 $1,500,000.00 $550,000.00
B. Pain and Suffering Awards in Reasoned Decisions
In the 69 SPU SIRVA cases which required a reasoned damages decision,
compensation for a petitioner’s actual or past pain and suffering varied from $40,000.00
to $210,000.00, with $95,500.00 as the median amount. Only five of these cases involved
an award for future pain and suffering, with yearly awards ranging from $250.00 to
$1,000.00.7
In cases with lower awards for past pain and suffering, many petitioners commonly
demonstrated only mild to moderate levels of pain throughout their injury course. This
lack of significant pain is often evidenced by a delay in seeking treatment of 40 days to
over six months. In cases with more significant initial pain, petitioners experienced this
greater pain for three months or less. All petitioners displayed only mild to moderate
limitations in range of motion, 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”). None required surgery. The duration of the injury ranged
from six to 29 months, with petitioners averaging approximately nine months of pain.
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 & Human Servs., No. 15-1011V, 2018 WL 1221922 (Fed. Cl. Spec. Mstr. Feb. 1, 2018).
5
Although some petitioners asserted residual pain, the prognosis in these cases was
positive.
Cases with higher awards for past pain and suffering involved petitioners who
suffered more significant levels of pain and SIRVAs of longer duration. Most of these
petitioners subjectively rated their pain within the upper half of a ten-point pain scale and
sought treatment of their SIRVAs more immediately, often within 30 days of vaccination.
All experienced moderate to severe limitations in range of motion. MRI imaging showed
more significant findings, with the majority showing evidence of partial tearing. Surgery or
significant conservative treatment, up to 95 PT sessions over a duration of more than two
years and multiple cortisone injections, was required in these cases. In four cases,
petitioners provided sufficient evidence of permanent injuries to warrant yearly
compensation for future or projected pain and suffering. In the fourth case involving an
award of future pain and suffering, the petitioner provided evidence of an ongoing SIRVA
expected to resolve within the subsequent year.
IV. Appropriate Compensation for Petitioner’s Pain and Suffering
In this case, awareness of the injury is not disputed. The record reflects that at all
times Petitioner was a competent adult with no impairments that would impact her
awareness of her injury. Therefore, I analyze principally the severity and duration of
Petitioner’s injury.
When performing this analysis, I review the record as a whole to include the
medical records and affidavits filed and all assertions made by the parties in written
documents. I consider prior awards for pain and suffering in both SPU and non-SPU
SIRVA cases and rely upon my experience adjudicating these cases. However, I base
my determination on the circumstances of this case.
A. The Parties’ Arguments
The parties agree Petitioner should be awarded $1,263.28 for her unreimbursed
medical expenses. Brief at 9; Opp. at 4. Thus, the only area of disagreement is regarding
the amount of compensation which should be awarded for Petitioner’s pain and suffering.
Emphasizing the duration and severity of her symptoms, as well as the fact that
she was seven months pregnant at the time of vaccination, Petitioner requests
$95,000.00 for her actual pain and suffering. Brief at 9. She notes that she reported pain
which reached a maximum level of six out of ten approximately two years post-
vaccination. Id. at 5-6. Arguing that any gaps in treatment were “largely due to the
demands of giving birth to her son and caring for a newborn baby and toddler” (id. at 8),
6
Petitioner criticizes Respondent for what she characterizes as an overreliance upon the
amount of formal treatment and volume of medical records in a case (id. at 9).
Petitioner compares the facts and circumstances of her case favorably with those
experienced by the petitioner in Accetta,8 who was awarded $95,000.00 for her pain and
suffering. Additionally, she argues that she faced the same limitations as the Desrosier9
petitioner, who was also pregnant at the time of her injury.
In reaction, Respondent asserts Petitioner should be awarded only $75,000.00 for
her pain and suffering. Opp. at 1, 9. Because Petitioner did not specify that the amount
she seeks is for past pain and suffering only, Respondent included a brief discussion as
to why a future award is not warranted in this case. Id. at 8-9.
As the bases for the amount he proposes, Respondent cites the following cases
which he maintains are comparable: Kim, George, and Gentile,10 in which the petitioners
received $75,000.00, $67,000.00, and $85,000.00, respectively. Opp. at 5-8. Noting
similarities with the circumstances experienced by the Kim petitioner - a similar amount
of PT and difficulties caring for her newborn child - Respondent argues any differences
are countervailing. He maintains that the multiple injections required to treat Petitioner’s
right shoulder pain are offset by the more sustained period of initial severe pain
experienced by the Kim petitioner. Thus, he asserts Petitioner’s pain and suffering award
should be equivalent to what was awarded in Kim. Id. at 6.
When discussing the facts and circumstances of the George case, Respondent
stresses similar countervailing factors. Opp. at 7. However, he does not argue that
Petitioner’s award should be as low as what was awarded in George. Regarding Gentile,
Respondent argues that the duration of the sequela suffered by the Gentile petitioner was
longer. Id. at 7-8.
8Accetta v. Sec’y of Health & Human Servs., No. 17-1731V, 2021 WL 1718202 (Fed. Cl. Spec. Mstr. Mar.
31, 2021).
9Desrosiers v. Sec’y Health & Human Servs., No. 16-0224V, 2017 WL 5507804 (Fed. Cl. Spec. Mstr. Sept.
19, 2017) (awarding $85,000.00 for pain and suffering).
10Kim v. Sec’y Health & Human Servs., No. 17-0418V, 2018 WL 3991022 (Fed. Cl. Spec. Mstr. July 20,
2018); George v. Sec’y of Health & Human Servs., No. 18-0426V, 2020 WL 4692451 (Fed. Cl. Spec. Mstr.
July 13, 2020); Gentile v. Sec’y Health & Human Servs., No. 16-0980V, 2020 WL 3618909 (Fed. Cl. Spec.
Mstr. June 5, 2020) (ruling setting amount to be awarded in final decision).
7
B. Analysis
A thorough review of the medical records reveals that Petitioner suffered an injury
that spanned at least 27 months with pains levels that fluctuated throughout that time.
Petitioner’s right shoulder pain began as severe for one month; abated for three to four
months; returned to a moderate level for at least five months; fluctuated slightly thereafter
until it decreased to a level of one out of ten11 approximately 14 months post-vaccination;
and remained at that mild level until four months later when it increased to five then four
- especially with movement. Petitioner’s symptoms were treated by three injections and
two sets of PT, each time consisting of five sessions during a month-long period. Seven
months pregnant at the time of vaccination, Petitioner’s circumstances were exacerbated
by the need to care for her newborn son, born approximately two months after her
vaccination, and her two-year old daughter.
When first seen by the orthopedist, seventeen days post-vaccination, Petitioner
reported right shoulder pain which first manifested as aching, then worsened for about 48
hours, and then improved. Exhibit 3 at 41. She rated it at a level of eight. Id. The
orthopedist observed normal range of motion (“ROM”), opined that Petitioner was
suffering from bursitis or irritation from the vaccine, and administered a cortisone injection.
Id. at 44.
In her affidavit, Petitioner reported experiencing a two-day reaction to the injection
which prevented her from working the next day. Exhibit 1 at ¶ 13. However, she
acknowledged some pain relief for the three to four months following vaccination. Id. She
also gave birth to her son in September 2018. Id. at ¶ 14.
When Petitioner next sought medical treatment on March 5, 2019, she reported a
“limited response” to the cortisone injection, an increase in her symptoms over the winter,
and current pain at a level of five. Exhibit 3 at 77. She was observed to have limited ROM.
Id. at 78. An MRI, performed on March 15, 2019, revealed a low-grade partial-thickness
tear of bursal surface of supraspinatus tendon, moderate tendinosis, and moderate
bursitis and fluid in the bursa. Exhibit 16.
At her next orthopedic appointment, Petitioner described pain which throbbed at
rest and increased to six to seven with movement. Exhibit 3 at 79. Due to the earlier
reaction, a second cortisone injection was administered a few days later, right before the
weekend. Id. at 79, 82.
11 Unless otherwise noted, all pain levels discussed are based upon a scale of zero to ten.
8
At her initial PT session on March 26, 2019, Petitioner estimated that her current
pain was three out of ten. Exhibit 4 at 20. She described difficulties holding her son and
was observed to have decreased ROM. Id. at 19-20. During four additional sessions in
April, Petitioner reported some slight improvement. E.g., id. at 13 (indicating on April 12,
2019 that “the throbbing has lessened”). However, at her last PT session on April 16,
Petitioner reported “increased pain in the shoulder over the weekend.” Id. at 11. When
seen again by her orthopedist on April 30, Petitioner reported “no relief” after the second
injection, distinguishing it from the first injection she received in July 2018 which “did
provide relief.” Exhibit 3 at 83. She estimated that her current pain was at a level of five.
Id.
Petitioner did not pursue treatment again until late September 2019, when she
began PT at a different clinic. At her initial visit, she reported milder symptoms, level one
pain currently and while at rest which increased to a maximum of five with activity. Exhibit
5 at 5. Petitioner also exhibited improvement in her ROM. Id. at 6. By her fifth and last PT
session on October 25, 2019, Petitioner’s level of pain had decreased to one to two out
of ten. She reported that she “[s]till feels the shoulder once in a while with certain
movements . . . [and] [h]asn’t had the sharp pains.” Id. at 14.
In February 2020, three months after filing her petition, Ms. Hein returned to the
orthopedist. She reported pain at a level of one and “some clicking and catching in her
shoulder.” Exhibit 22 at 12. She underwent an arthrogram MRI in early March 2020, which
showed no tear but tendinosis and findings suggestive of impingement. Exhibit 20; Exhibit
22 at 14. She was administered a different type of injection at this visit. Exhibit 22 at 15.
This third injection provided additional relief, and Petitioner did not seek treatment
again until July 2020. At that visit, she reported pain with movement which ranged from
zero to six. Exhibit 18 at 7. Not seen again until October 23, 2020, Petitioner expressed
frustration with her lack of progress. The orthopedist reassured her that a complete
resolution of her injury would take time. Petitioner’s level of pain was noted to be four.
Exhibit 19 at 7.
Although the circumstances of the George and Kim cases share some similarities
with the Petitioner in this case, those petitioners clearly suffered from symptoms which
were less severe, and which lasted for a shorter duration. For example, the SIRVA
suffered by the petitioner in George was described as mild and resolved within eight
months of vaccination. See George, 2020 WL 4692451, at *2-3. Although her pain was
often more severe, the Kim petitioner suffered this level of pain for only three months, and
her SIRVA substantially resolved within seven months. See Kim, 2018 WL 3991022, at
*7-8. Thus, while these cases are instructive, I find that the award for pain and suffering
in this case should be higher.
9
The last case cited by Respondent, Gentile, provides a better comparison.
However, in that case the special master awarded $85,000.00 for past pain and suffering,
plus an additional future component. See Gentile, 2020 WL 3618909, at *14. Additionally,
the Gentile petitioner simultaneously suffered from severe headaches due to an unrelated
condition, delayed seeking treatment for two months, and had larger later gaps in
treatment. See id. at *1-4.
Instead, I find the facts and circumstances in Ms. Hein’s case more closely
resembles those experienced by the petitioner in Accetta, who suffered similar
fluctuations in her SIRVA symptoms over a period of more than five years. See Accetta,
2021 WL 1718202, at *3-5. Although the overall duration of the SIRVA suffered by the
Accetta petitioner was documented to be almost twice as long as in this case, Ms. Hein
experienced additional difficulties caused by her pregnancy and need to care for her
newborn and toddler. Additionally, the petitioner in Accetta declined treatment on several
occasions, while the Petitioner in this case pursued most treatments available to her. See
id. at *4-5. Still, due to the longer duration of the Accetta petitioner’s SIRVA, I find the
amount awarded to Petitioner should be slightly lower. The amount of $93,000.00 is the
appropriate compensation for Petitioner’s past pain and suffering.
Although Petitioner does not seek an award for her future pain and suffering, I also
have determined one is not warranted in this case. As I stated in Accetta, I find that an
award for future pain and suffering is appropriate “only for cases where a strong showing
is made that the claimant has suffered a permanent disability, or there are other
extenuating circumstances that justify inclusion of a future component.” Accetta, 2021 WL
1718202, at *5.
V. Conclusion
For all of the reasons discussed above and based on consideration of the record
as a whole, I find that $93,000.00 represents a fair and appropriate amount of
compensation for Petitioner’s actual pain and suffering.12 I also find that Petitioner
is entitled to $1,263.28.00 in actual unreimbursable expenses.
I thus award Petitioner a lump sum payment of $94,263.28, representing
$93,000.00 for her actual pain and suffering and $1,263.28 for her actual
12Since this amount is being awarded for actual, rather than projected, pain and suffering, no reduction to
net present value is required. See Section 15(f)(4)(A); Childers v. Sec’y of Health & Human Servs., No. 96-
0194V, 1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health &
Human Servs., 32 F.3d 552 (Fed. Cir. 1994)).
10
unreimburseable expenses in the form of a check payable to Petitioner. This amount
represents compensation for all damages that would be available under Section 15(a).
The clerk of the court is directed to enter judgment in accordance with this
decision.13
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
13Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
11