A. v. Secretary of Health and Human Services ( 2021 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: September 7, 2021
* * * * * * * * * * * * * PUBLISHED
B.A., *
* No. 11-51V
Petitioner, *
v. * Special Master Gowen
*
SECRETARY OF HEALTH * Ruling on Damages; Headaches;
AND HUMAN SERVICES, * Acupuncture; Pain Management;
* Home Health Aide; Case Management;
Respondent. * Pain and Suffering; Lost Wages;
* * * * * * * * * * * * * Work-Life Expectancy.
Lisa A. Roquemore, Law Office of Lisa A. Roquemore, Rancho Santa Margarita, CA, for
petitioner.
Jennifer L. Reynaud, U.S. Department of Justice, Washington, DC, for respondent.1
RULING ON DAMAGES2
A damages hearing was held in the above-captioned matter on May 20 – 21, 2021. At the
conclusion of the hearing, the undersigned issued a bench ruling resolving all categories of
damages. This order memorializes the bench ruling.
I. Procedural History
On January 20, 2011, B.A. filed a claim in the National Vaccine Injury Compensation
Program.3 B.A. received her second dose of the Gardasil vaccine against human papillomavirus
1
Ms. Reynaud has been respondent’s attorney of record throughout the pendency of this claim and she filed
respondent’s response regarding damages. Mr. Tyler King appeared on behalf of respondent at the damages
hearing.
2
Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this opinion contains a
reasoned explanation for the action in this case, I am required to post it on the website of the United States Court of
Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. This means the
opinion will be available to anyone with access to the Internet. Before the opinion is posted on the court’s
website, each party has 14 days to file a motion requesting redaction “of any information furnished by that party:
(1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that
includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of
privacy.” Vaccine Rule 18(b). An objecting party must provide the court with a proposed redacted version of the
opinion. Id. If neither party files a motion for redaction within 14 days, the opinion will be posted on the
court’s website without any changes. Id.3
The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine
Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended 42 U.S.C. §§ 300aa-10 to 34 (2012)
(“HPV”) (hereinafter referred to as “the HPV vaccine”) on January 23, 2008, and a third dose on
June 3, 2008. B.A. alleges that as a result of these vaccines, she suffered severe chronic
headaches and various other sequelae. Amended Petition at 1. After holding an entitlement
hearing, I issued an opinion concluding that B.A. had established her entitlement to
compensation under the Vaccine Act. See Ruling on Entitlement filed on December 6, 2018
(ECF No. 153); refiled in redacted form on January 10, 2019 (ECF No. 159).
Once the case moved into the damages phase, B.A. filed updated medical records from
her established providers. Pet. Exs. 134-44, 147-52, 154, 157-58. Both parties retained life care
planners, who conducted a joint site visit with B.A. and her mother on June 26, 2019. They also
consulted with B.A.’s chiropractor and her acupuncturist. Pet. Ex. 166. B.A. filed the report of
her expert life care planner Liz Kattman, M.S., which incorporated the findings of a vocational
evaluation. Pet. Exs. 145-46.
The parties then requested a status conference to confirm the extent of B.A.’s “vaccine-
related” injuries, see Resp. Status Report (ECF No. 180), which was held on January 8, 2020, see
Scheduling Order (ECF No. 182). Afterwards, B.A. underwent a thorough evaluation at the
Mayo Clinic, which did not shed additional light on the nature of her condition or new treatment
to alleviate her symptoms, but led to the suggestion that she undergo neuropsychological testing
and attend an intensive three-week pain management program (which were both delayed due to
the COVID-19 pandemic). Pet. Exs. 153, 155-56.
On September 17, 2020, respondent conveyed a proffer which represented respondent’s
position on the damages that were supported by the existing record, see Resp. Status Report
(ECF No. 202). On October 13, 2020, another status conference was held at the parties’ request.
They had not resolved the following categories of damages: (1) past unreimbursed expenses; (2)
future unreimbursed expenses in the life care plan; (3) lost earnings, specifically work-life
expectancy; and (4) pain and suffering. See Scheduling Order (ECF No. 205).
B.A. then filed her expert’s revisions to the life care plan, a listing of out of pocket
expenses, and one article on work-life expectancy. Pet. Exs. 159-62. Respondent filed his
expert Laura Fox’s response to the life care plan and out-of-pocket expenses. Resp. Exs. N-Q.
The parties duly briefed the disputed categories of damages. Pet. Brief filed October 22, 2020
(ECF No. 208); Resp. Response filed October 28, 2020 (ECF No. 211) (citing Childers v. Sec’y
of Health & Human Servs., No. 96-194V, 1999 WL 218893 (Fed. Cl. Spec. Mstr. March 26,
1999) in support of applying a work-life expectancy of 35 years). At a status conference on
November 6, 2020, I offered tentative findings and conclusions and encouraged the parties to
reach an informal resolution, see Minute Entry.
Respondent took several months to review the matter, but ultimately did not revise the
proffer. Respondent advised that he had no objection to discussing alternate means of
determining a damages award including having the Court issue a decision awarding damages.
See Status Reports (ECF Nos. 212-15). During a status conference on March 11, 2021, the
(hereinafter the “Vaccine Act” or the “Act”). Hereinafter, individual section references will be to 42 U.S.C. § 300aa
of the Act.
2
parties confirmed that the same four categories of damages remained unresolved. With regard to
work-life expectancy, Ms. Reynaud stated she did not plan to retain an expert economist, which I
agreed did not seem necessary. Scheduling Order (ECF No. 216). A damages hearing was set
for May 19 – 20, 2021. Hearing Order (ECF No. 220).
B.A. filed updated medical records, additional documentation for her life care plan and
out of pocket expenses, and several articles. Pet. Exs. 163-73. B.A. also filed her damages brief.
Pet. Damages Brief filed May 12, 2021 (ECF No. 227).
In email correspondence with my law clerk on May 14, 2021, Ms. Englund advised that
respondent intended to rely on the damages brief respondent filed on October 28, 2021 (ECF No.
211) (noted above and cited herein as “Resp. Response”). On May 19, 2021, respondent filed his
expert’s updated life care plan and several articles. Resp. Exs. R-T.
On May 20 – 21, 2021, a damages hearing took place. Ms. Roquemore presented
testimony from B.A., her mother, her life care planner Ms. Kattman. Mr. Tyler King appeared
on behalf of respondent and presented testimony from respondent’s life care planner Ms. Fox.
All participants appeared via videoconference. See Transcript (“Tr.”) filed June 8, 2021 (ECF
Nos. 235-36). During the hearing, I ruled on the several disputed issues of damages. Tr. 187-
207, 241-56.
Afterwards at my direction, B.A. duly filed a revised spreadsheet of compensable out-of-
pocket expenses, Pet. Ex. 175, and a revised life care plan, Pet. Ex. 178,4 in conformance with
my bench ruling,5 to facilitate the preparation of the following opinion which memorializes the
bench ruling.6 The specific figures included in those exhibits are hereby approved for the reasons
set forth below.
II. Relevant Factual History
The prior ruling on entitlement summarizes the medical records up to June 2014 as well
as the mother’s testimony and my observations of B.A. at the entitlement hearing in March 2016.
That summary is incorporated in full herein. Since the ruling on entitlement, B.A. has filed
updated medical records which confirm that her symptoms have not changed and that her
medical providers do not have an improved understanding as to the nature of her injury. Despite
4
B.A. filed an initial revised life care plan on May 27, 2021. See Pet. Ex. 174. The parties then determined that her
health insurance carrier would not cover costs associated with the Mayo Clinic PRC Program. See Scheduling
Orders filed July 12, 2021 (ECF No. 239) and August 31, 2021 (ECF No. 243). It was agreed that B.A. would file a
final revised life care plan reflecting that lack of coverage and adjusting the out-of-pocket figures. On September 2,
2021, Petitioner filed the final revised life care plan and a status report requesting this ruling. Pet. Ex. 178; Status
Report (ECF No. 245).
5
Respondent noted several times, and I agreed, that these exhibits do not represent any settlement between the
parties or any representation of respondent’s position. See, e.g., Tr. 227.
6
Pursuant to Section 13(a)(1), in order to reach my conclusion, I considered the entire record, including all of the
medical records, statements, testimony, briefs, and literature submitted by both parties. This opinion discusses the
elements of the record I found most relevant to the outcome.
3
trying various medications and treatments, she still receives the most significant – albeit
temporary – relief from the acupuncturist Dr. Wu in Destin, Florida and to a lesser extent, from
chiropractic treatments. See Pet. Ex. 166 at 2, 5, 8 (treating physician statements); Tr. 36-47.
She did not see a neurologist for approximately 3 – 4 years. Then in early 2019, the primary care
provider Dr. Ulrich referred B.A. to Pamela Quinn, M.D., at North Central Neurology Associates
in Cullman, Alabama, for evaluation of continued neurological symptoms. Pet. Ex. 143. Dr.
Quinn did not have access to many of the prior medical records. Id. She did not reach a
definitive diagnosis, ordered certain past medical records, recommended Botox for the
headaches, and considered a referral to neuromuscular specialists at the University of Alabama.
Id. at 3. The mother reported that Botox had been previously ineffective in treating B.A.’s
headaches and that after Dr. Quinn received and reviewed the medical records, she referred B.A.
to the Mayo Clinic. See Resp. Ex. Q at 3.7
In January 2020, B.A. and her mother travelled to the Mayo Clinic’s main campus in
Rochester, Minnesota. Neurologist Joseph Sirven, M.D., after recording B.A.’s history, planned
a video EEG and a movement disorder study to evaluate the dystonic jerking and formal
“neuropsychometric” (e.g., neuropsychological) testing to assess her cognitive function. If those
findings were negative, he would consider migraine monoclonal antibodies, neuromodulation, a
fibromyalgia consultation, and pain management. Pet. Ex. 153 at 8. The video EEG did not find
a correlate but was “contaminated by movement and other external artifact.” Pet. Ex. 155 at 7-8.
The movement study demonstrated “irregular tremulous activity affecting the neck and upper
extremity without definite features of central organization.” Pet. Ex. 156 at 4.8 Dr. Sirven
recommended discontinuing Keppra.
On March 18, 2020, B.A. had an encounter with a psychologist specializing in pain
management, Steven Ames, M.D., who is based at a Mayo Clinic campus in Jacksonville,
Florida. Pet. Ex. 155 at 5. Dr. Ames assessed B.A. with a chronic pain syndrome, with the
hierarchical condition category (“HCC”) of “spells, neurological.” Id. B.A. would benefit from
a rehabilitative pain program to learn self-management strategies to manage pain symptoms,
improve functioning, and reduce reliance on medication. Id. The Mayo Clinic offers this kind of
program, which is three weeks long, at its Pain Rehabilitation Center (hereinafter referred to as
the “PRC program”) in Jacksonville, Florida. Id.9 The following day, on March 19, 2020, Dr.
Sirven also encouraged the PRC program and stated that B.A. could continue on her current
medications (topiramate, tizanidine, ketorolac, diazepam, and cambia). Id. at 3.
7
B.A. first sought an evaluation at the Mayo Clinic in early 2009, but the Mayo Clinic apparently did not accept her
as a patient because she was under 18. (She turned 18 in the fall of 2009.) See Entitlement Ruling at 13; id. at n. 11.
Upon being turned down by the Mayo Clinic, B.A. instead consulted at the Diamond Headache Clinic. Id. at 13-14.
8
The mother gave credible testimony that these tests involved “hitting [B.A.] with all the triggers. She was taken
off her Keppra, sleep deprivation, bright lights, noise… And basically monitoring to see if it would bring on the
involuntary jerking.” Tr. 20. This resulted in “one of the worst episodes that she’s had.” Tr. 21.
9
See also Mayo Clinic, Pain Rehabilitation Center, available at https://www mayoclinic.org/departments-
centers/pain-rehabilitation-center/sections/overview/ovc-20481691 (last accessed June 9, 2021) (providing that the
PRC program is offered at the Mayo Clinic’s campuses in “Arizona, Florida, and Minnesota”).
4
B.A.’s last evaluations at the Mayo Clinic coincided with the dramatic spread of the
COVID-19 pandemic, which caused significant restrictions on travel and gatherings throughout
the United States.10 Therefore, the Mayo Clinic postponed both the recommended
neuropsychological testing and her attendance at the PRC program. See Pet. Ex. 159 at 1-2; Pet.
Ex. 162 at 6.
The Mayo Clinic PRC program generally takes ten patients at a time. Tr. 22. But as of
May 2021, the PRC program was still limited to two patients at a time and B.A. was scheduled to
attend in August. Tr. 22. The mother testified that they tried to get in earlier and had been on a
wait list for any earlier spots that became available. Tr. 22-23, 32.
During the pandemic, B.A. continued with her primary care provider and her local
chiropractor. See Pet. Exs. 154, 157, 164-65. In addition, B.A. and her mother drove from
Alabama to Florida for Dr. Wu’s acupuncture treatments on May 21-22, 2020; November 19-20,
2020; February 11-12, 2021; and April 29-30, 2021. See Pet. Ex. 158 at 3-4; Pet. Ex. 163; Pet.
Ex. 175 at 24-26 (out of pocket costs spreadsheet). The other medical providers acknowledged
the benefits of Dr. Wu’s acupuncture treatments, see, e.g., Pet. Ex. 166 at 2, 5, 8, and I found
credible the mother’s testimony that this is the only thing that has provided temporary relief for
B.A.’s symptoms particularly her headaches, see, e.g., Tr. 36-43.
B.A. was born in 1991. At the time of the damages hearing in May 2021, she was
twenty-nine years old. B.A. lives in her mother’s home, which is outside of the limits of the
nearest city, Piedmont, Alabama. Tr. 24.11
Respondent’s life care planner Ms. Fox characterized the area as “very rural.” Resp. Ex.
Q at 3. Both the mother and the father (who divorced amicably in 2000) obtained a bachelor’s
degree in management and a master’s degree in business administration. Entitlement Tr. (ECF
No. 126) at 6-7. Her mother is an accounting manager – which is “the highest ranking financial
position” – at General Dynamics in Anniston, Alabama. Id. at 6. The mother testified that
approximately two and a half years prior to the damages hearing, she began needing to work
“extremely long hours” (anywhere from 45 to 73 hours a week) and became less able to take
paid time off for B.A.’s medical appointments. Tr. 11. Her normal commute is approximately
45 minutes to an hour each way. Tr. 27. On a normal workday, she is away from home from
7:00 a.m. to either 6:00 p.m. or 7:30 p.m. Tr. 27. The mother will turn 60 years old in August
2021. Tr. 10. She is diabetic, overweight, has high blood pressure, has a family history of stroke
and heart disease, has had knee surgery, and has tendonitis in her shoulders which may require
10
On March 15, 2020, the Centers for Disease Control and Prevention banned gatherings of 50 or more people. On
the following day, the government discouraged groups of more than 10. See Derrick Bryson Taylor, A Timeline of
the Coronavirus Pandemic, N.Y. Times (March 17, 2021), available at
https://www.nytimes.com/article/coronavirus-timeline.html (last accessed June 10, 2021).
11
According to the 2010 census, Piedmont, Alabama had a population of 4,878 people. See Wikipedia, Piedmont,
Alabama, available at https://en.wikipedia.org/wiki/Piedmont, Alabama (last accessed July 7, 2021; see also Census
Bureau, Alabama: 2010, available at https://www.census.gov/prod/cen2010/cph-2-2.pdf (last accessed July 7, 2021)
at 12 - Table 8. According to directions obtained on Google Maps, Piedmont t is approximately a 90-minute drive
to both Birmingham, Alabama and Atlanta, Georgia, and approximately a 20- to 25-minute drive to both Gadsden,
Alabama and Anniston, Alabama.
5
surgery. Tr. 10-12. She does not feel that it is sustainable to continue serving as B.A.’s primary
caregiver and is concerned that B.A. is “neglected at this point.” Tr. 10.
Apart from her mother, B.A. had the closest relationships with her maternal grandparents,
whose home is about half a mile away. Resp. Ex. Q at 3; Tr. 18. However, the grandmother
passed away in September 2017 and the grandfather is turning 87 years old in June 2021. Tr. 18.
The grandfather was in the hospital for major surgery at the time of the damages hearing. Tr. 30.
The mother does not want to move away from him to a bigger metropolitan area, such as
Jacksonville, Alabama, and she cannot afford to maintain a second household for B.A. as she has
spent all of her savings as a result of B.A.’s vaccine injuries. Tr. 33-34, 48-49.
B.A. sees her father – who still lives in Piedmont but has remarried – every other
weekend. Resp. Ex. Q at 3. B.A.’s mother has one sister living in Piedmont and another in
Huntsville, Alabama. Id. at 4. The mother testified that these other family members were either
not available or not willing to help support B.A. Tr. 48-49.
As noted in the ruling on entitlement, B.A. performed well academically and was
involved in extracurricular activities prior to the onset of her vaccine injury in early 2008.
Ruling on Entitlement at 7; see also Pet. Ex. 72 at 2. She was able to complete eleventh and
twelfth grade via home schooling and graduated from high school in 2010. Pet. Ex. 72 at 5. She
scored well on the ACT standardized test, received information from many colleges, and was
really considering attending out of state. Id. However, due to her vaccine injuries, she enrolled
at Jacksonville State University in Jacksonville, Alabama. Id.12 After enrolling in fall 2010,
B.A.’s headaches and other symptoms worsened and she withdrew, in part because her
scholarship was dependent on maintaining a full course load. Id. at 5-7. She attempted to take
one or two college courses online at a time but struggled to keep up. Id. at 7, 10. She is not able
to work because of a lack of transportation as well as her symptoms including short-term
memory difficulties. Id. at 9.
At the damages hearing, the mother confirmed that B.A.’s current symptoms are an
“almost daily” headache; involuntary jerking usually beginning in her neck and extending into
her hands and then her feet (predominantly left-sided); difficulties with short-term memory and
concentration; sensitivity to light, sound, smell, and taste; insomnia; fatigue; and muscle
weakness which has resulted in at least five falls. Tr. 14-16. B.A. has not been able to attend
college in person or online. Id. at 16. She tries to assist with household chores such as laundry,
vacuuming, and caring for her cats but she often forgets to do them or does not finish. Id. at 17-
18. She is not able to drive. Id. at 19. She is not able to cook; she generally eats premade salads
or frozen meals heated in the microwave. Id. at 19, 28-29. B.A. and her mother communicate
several times a day about taking medications and other issues. Id. at 28-29.
At my request, B.A. testified as well. See Tr. 50-51. After the first few sentences
describing her typical day, she lost her train of thought. Id. at 51. When prompted further, she
testified that she generally gets up, goes to the bathroom, takes her medications, and has
12
B.A.’s home is approximately 20.6 miles away from Jacksonville State University, according to directions
obtained on Google Maps.
6
something to eat if she can remember. Id. She has the television on low volume in the
background. Id. Even if she tries to pay attention, she has difficulty understanding what is going
on. Id. She watches “judge shows,” Murder She Wrote, and Midsummer Murders. Id. at 52. Of
particular note, B.A. testified:
I have seen enough of the Murder She Wrotes over the entirety of my life from
the time I was little to the entire time that they’ve been playing while I have been
sick that I can pretty much tell you the ones that when they’re on and what’s
going to happen without ever having to pay any attention to them. So that’s
something I can put on in the background and just kind of let it play.”
Id. In the evenings when her mother is home, they watch other television shows, but B.A.
generally cannot follow the plot. Id. at 52-53. B.A. also testified about her difficulties
completing household tasks. Id. at 54-55. She feels bad that her mother “has to do everything”
for her. Id. at 56. She described how it has been difficult to see her friends move on while her
life has been defined by her medical condition. Id. at 58-59. Before this all happened, she
wanted to go to college, get a job, and have a family. Id. at 59. In high school, she was
interested in agriculture, Future Farmers of America (“FFA”), loved animals, and was interested
in becoming a veterinarian. Id. at 59-60. Before the vaccine injury, she imagined that she would
have gone to college, got a job, and have a family at some point. Id. at 59. She agreed that she
saw herself “holding a job after college like [her] mother or father do.” Id. at 60. But now, she
hopes only to try some “hobby classes”; ceramics may not be “in the cards” but perhaps
something like photo shop. Id. at 62. She could not identify any other goals for the next five
years. Id. at 69.
B.A. confirmed that Dr. Wu’s acupuncture treatment is the only thing that helps with her
symptoms, but if she could go to a doctor closer, she would. Tr. 64, 69.
Of relevance to B.A.’s ability to become more independent, she testified that she has
never taken an Uber or Lyft or have the apps on her phone. Tr. 68-69. She was not aware of any
Ubers or taxis operating in the town of Piedmont. Id. at 72. She has only ridden in taxis while
she was with her mother in bigger cities. Id. at 73. She would not feel comfortable riding in a
taxi out of concern of saying the wrong destination or forgetting something, due to her short-term
memory problems. Id.
Due to B.A.’s sensitivity to light, she wore dark sunglasses for the majority of the
hearing, taking them off only to testify at my request. Tr. 50, 74. I also observed her involuntary
jerking or dystonic movements. These have considerably progressed since I observed B.A. at the
March 2016 entitlement hearing, as is reflected in the medical records.
III. General Legal Standard
The Vaccine Act provides that a petitioner who has established entitlement shall be
awarded compensation for past and projected unreimbursable expenses. Section 15(a)(1). In the
event of a vaccine-related death, $250,000.00 shall be awarded for the estate of the deceased.
Section 15(a)(2). Past and projected lost earnings are also available, but the assessment differs
7
depending on whether the individual sustained the vaccine injury before or after attaining the age
of 18. Section 15(a)(3). The Vaccine Act also provides for actual (past) and projected (future)
pain and suffering from the vaccine-related injury which shall not exceed $250,000. Section
15(a)(4). Each category of damages is discussed further below.
A special master may order a petitioner to “submit… assessments, evaluations, and
prognoses and such other records and documents as are reasonably necessary for the
determination of the amount of compensation to be paid[.]” Section 11(e). But whether or not
the special master orders the submission of specific evidence, the petitioner bears the burden of
proof with respect to each element of damages requested. Gross v. Sec’y of Health & Human
Servs., 2021 WL 2409997, at *2 (Fed. Cl. 2021) (citing Brewer v. Sec’y of Health & Human
Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18, 1996)).
IV. Past Unreimbursed Expenses
A Vaccine Program claimant may recover past unreimbursed expenses which “(i)
resulted from the vaccine-related injury for which the 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, developmental evaluation, special education,
vocational training and placement, case management services, counseling, emotional or
behavioral therapy, residential and custodial care and service expenses, special equipment,
related travel expenses, and facilities determined to be reasonably necessary.” Section
(15)(a)(1)(B).
Here, B.A. requested $99,096.95 in past unreimbursed expenses incurred in the over
thirteen years since her HPV vaccinations. Pet. Brief at 6-7 (citing Pet. Ex. 168 at 1; back-up
documentation at Pet. Ex. 169). Respondent’s position was that B.A. should be awarded roughly
one-third of that amount. Resp. Response at 5.
The most significant category of out-of-pocket expenses ($45,984.60) relate to B.A.’s
treatment with Dr. Wu at Healing Art Acupuncture and Massage in Destin, Florida from 2010 -
2021. Pet. Ex. 168 at 1. Respondent opposed any and all reimbursement for these expenses
because “neither the records… nor the receipts [B.A.] has provided informally show that Dr.
Wu’s services or the herbal remedies he sold [B.A.] were related to the ‘diagnosis and medical or
other remedial care determined to be reasonably necessary.” Resp. Response at 5-6. Respondent
averred that Dr. Wu “is not a medical doctor, but rather is only an acupuncturist, with
certifications in ‘Chinese herbology’ and ‘Oriental medicine.’” Id. at n. 8. Respondent’s only
citation for the denial of acupuncture is to Simmons, in which then-Special Master Millman
stated that she “[would] not pay for acupuncture as it [was] not reasonable or necessary” for a
petitioner who suffered a “hypersensitivity reaction” and was diagnosed with adrenal
insufficiency following a Tdap vaccination. Simmons v. Sec’y of Health & Human Servs., No.
11-216V, 2019 WL 1528281, at *10 (Fed. Cl. Spec. Mstr. March 14, 2019). This opinion is of
course not binding precedent and also lacking context, such as whether the parties had raised
specific arguments about the utility of acupuncture for the individual at issue.
8
Here, B.A., driven by her mother, has repeatedly traveled approximately seven hours
from their home in Piedmont, Alabama for the acupuncture treatment with Dr. Wu in the city of
Destin, in northwest Florida (which area is commonly known as the Panhandle). As noted in the
entitlement ruling, B.A.’s mother learned of Dr. Wu from a coworker. The coworker reported
that Dr. Wu had been uniquely successful in treating her own daughter for certain issues. B.A.,
her mother, several of her more “mainstream” medical providers, the expert neurologists, and the
life care planners have recognized that Dr. Wu’s acupuncture treatment temporarily alleviates
B.A.’s headaches. B.A.’s expert neurologist Dr. Steinman testified that alternative forms of
medicine such as acupuncture undoubtedly work. He “could not provide an explanation for how
acupuncture could shut down headaches transiently” but he was “not knowledgeable to that level
about acupuncture.” Entitlement Transcript (ECF No. 128) at 277-78. Respondent’s expert
neurologist Dr. Leist agreed that acupuncture delivered some degree of relief. Id. at 356-57.13 I
noted that B.A. has tried many different prescriptions and medicines which is not uncommon
with neurological conditions including headaches, which are not well understood. While it is
frustrating that the only treatment that has worked for B.A. is acupuncture with this specific
specialist in Florida, it is clear from the medical records and the testimony at both hearings that
the treatment from Dr. Wu, unlike the treatment from other practitioners, has consistently
provided pain relief for weeks at a time. For these reasons, the acupuncture as performed by Dr.
Wu represents reasonable medical care for her vaccine injury which should be reimbursed. Tr.
193.14 I also award the mileage for the acupuncture trips, but not the request for gasoline on
those same trips as the cost of gasoline is factored into the mileage rate. See Tr. 201, 206, 212,
214, 228.
Respondent disputed the reasonableness of the accommodations on the grounds that
Destin, Florida is marketed as a tourist destination. Resp. Response at n. 8. At the end of the
first hearing day, I agreed that those expenses should be scrutinized. Tr. 205-06, 208-09, 211.
On the second hearing day, the mother provided additional explanation, particularly as to why
certain hotel stays were for more than one or two days. Tr. 222-41. She calculated that the
average cost per night was $206.53. Tr. 241. I concluded that these expenses were reasonable,
see Tr. 241-48, as are the associated meals upon further review.
B.A. also requested reimbursement for the out-of-pocket expenses for chiropractic
treatment for her vaccine-related injuries. I previously noted in the entitlement ruling that B.A.
“periodically went to a chiropractor, Dr. McCurdy, for low back pain and knee pain associated
with cheerleading competitions.” Entitlement Ruling at 6 (citing Pet. Ex. 16). However, after
the HPV vaccinations, she sought chiropractic treatment for her headache pain and muscle
13
Respondent’s counsel suggested that B.A.’s improvement could be attributed to spending sustained time with her
mother and getting to travel to Florida. Respondent’s life care planner Ms. Fox tended to disagree, recognizing that
the seven-hour drive to Florida was “rather arduous” and suggesting that if B.A. and her mother “wanted to spend
quality time and do something fun together… they would probably pick something else,” although upon further
questioning from respondent’s counsel, she agreed that sustained time with a close relative “could improve
somebody’s mood.” Tr. 121-22.
14
This includes not only Dr. Wu’s acupuncture treatment but also Dr. Wu’s billing for items such as “herbs” and
“Bee Red 46%.” In the absence of any specific objection from respondent or other evidence to the contrary, I
presume that these are related to Dr. Wu’s acupuncture treatment.
9
spasms. See, e.g., id. at 8 (citing Pet. Ex. 18 at 6-11); id. at 11 (citing Pet. Ex. 16 at 18, Pet. Ex.
37 at 1-2). The mother testified that chiropractic treatment somewhat helped with B.A.’s vaccine
injuries. Tr. 94. Ms. Kattman also supported ongoing chiropractic treatments. Tr. 99, 175, 182-
83. Therefore, I award the requested costs of chiropractic treatment – as well as the mileage,
which respondent’s life care planner seemed to inadvertently omit. Tr. 193.
B.A. requested four pairs of noise-cancelling headphones to store at her house, her
father’s house, and in both cars. Pet. Brief at 8. Ms. Fox provided for only one pair. I recognize
that the headphones are helpful in addressing B.A.’s noise sensitivity which is related to her
headaches. However, only two pairs of headphones – one to be stored at each of the two houses
– are awarded. Tr. 248-49.
B.A. and her mother explained that due to her headaches and dystonic movements, she
often got so fatigued that she could not walk safely. Therefore, they purchased a scooter. Pet.
Brief at 8; Pet. Ex. 168 at 25. I agree with Ms. Fox that it is not clear that the scooter was not
medically indicated.15
I award the past medical expenses which are medically necessary and reasonable to treat
B.A.’s vaccine injuries, the most predominant of which is a headache disorder. This includes
medications for headaches, muscle pain, and other suspected neurological conditions; massage
therapy which can be reasonably related to her dystonic movements; and treatment for
depression and anxiety following the onset of the vaccine injuries. However, I will not
reimburse for unrelated medical appointments and treatments including those for asthma,
allergies, viral and bacterial infections, rosacea, acne, heartburn, inflammation (specifically
ketorolac, a non-steroidal inflammatory drug (“NSAID”)) polycystic ovary syndrome (“PCOS”),
and oral contraceptives. I also decline to reimburse any costs of chelation and by extension, any
other purported “detox agents.” The costs of foot baths, a weight control program, schoolbooks,
and other unrelated expenses are also denied. See Pet. Ex. 168, passim; Pet. Brief at 8; Tr. 207.
In accordance with the above and as reflected in Pet. Ex. 175, I award a total of
$80,879.44 for past unreimbursed expenses relating to B.A.’s vaccine injuries.
V. Future Unreimbursed Expenses
The Vaccine Act also provides for reimbursement of out-of-pocket expenses which are
“reasonabl[y] projected” to be incurred in the future. Section 15(a)(1)(A)(iii)(II). Such
expenses should be awarded to a degree “beyond that which is required to meet the basic needs
of the injured person…but short of that which may be required to optimize the injured person’s
quality of life. What is reasonably necessary lies somewhere between that which is
‘indispensable’ and that which is ‘advantageous.’” Scheinfeld v. Sec’y of Health & Human
Servs., No. 90-212V, 1991 WL 94360, at *2 (Fed. Cl. Spec. Mstr. May 20, 1991), cited in Curri
v. Sec’y of Health & Human Servs., 2018 WL 6273562, at *4 (Fed. Cl. Spec. Mstr. Oc. 31,
2018).
15
B.A. also referenced buying a wheelchair and/or a walker but she did not request reimbursement for those
expenses. See Pet. Brief at 8; Pet. Ex. 168 at 25.
10
Here, it is undisputed that B.A. has significant ongoing symptoms most predominantly
headaches which are associated with dystonic movements, pain, fatigue, depression, and
cognitive difficulties. She has been recommended for the Mayo Clinic’s PRC program, which
lasts three weeks and is located in Jacksonville, Florida.
Both life care planners supported the costs of B.A. herself attending the PRC program.
However, Ms. Kattman noted that the mother would not be able to accompany B.A. due to her
work commitments and the importance of B.A. beginning to emancipate herself and rely on other
independent caregivers. Id. at 5-6; see also Tr. 107. Therefore, Ms. Kattman recommended that
an aide accompany B.A. to the PRC program (receiving compensation for 16 hours per day). Id.Ms. Fox opposed this cost, suggesting that the “mother will likely come with her.” Resp. Ex. V
at 7; see also Tr. 161. However, the mother confirmed that in light of her job and her elderly
father’s medical issues, it was not feasible for her to travel for this three-week program. Tr. 174-
75. Ms. Fox also suggested that the PRC program could be a first opportunity for B.A. to try
being independent: “One of the things she should learn is to take the shuttle from the hotel to the
Mayo Clinic.” Tr. 161; see also id. at 162, 172. Ms. Kattman countered that B.A. should be
supported while traveling to and from the PRC program as well as outside of the PRC program’s
hours from 8:00 a.m. to 5:00 p.m.: “If she’s already totally stressed because [she] spent the night
alone for the first time in her 29 years… [I]t doesn’t make sense to put her through [the PRC
program] because you’re just going to negate whatever benefits that she would get from it if…
[she’s not] totally supported while she’s there.” Tr. 177-79. I concluded that B.A. should attend
the PRC program, accompanied by an aide to be compensated for 16 hours per day. Tr. 194,
198-99.
Ms. Fox contended that it was “critical” for B.A. to complete the Mayo Clinic PRC
program before damages are awarded. Resp. Ex. Q at 9; see also Resp. Exs. V, W. As an initial
matter, there is no indication that B.A. has intentionally delayed her participation in the three-
week PRC program in Jacksonville, Florida, which had reduced its capacity to only two patients
at a time, continuing until at least May 2021 in light of the pandemic. Over the past year, B.A.
and her mother managed to travel to Dr. Wu in Destin, Florida, a few times, but certainly less
often than they normally would and only because they were able to drive there and back on short
visits.
In the interim, Ms. Fox contacted a nurse care coordinator at the PRC program who
provided information about other patients’ past outcomes. Resp. Ex. Q at 8. Based on this
information, Ms. Fox “assumed” that B.A. would make progress and become more independent
after attending the PRC program, Id. at 9, therefore, she did not support any costs for future
prescription medication. Resp. Ex. V at 2. Ms. Fox also recommended fewer hours for the case
manager and the aide. Id. at 6-8. In contrast, Ms. Kattman reasoned that following completion
of the PRC program, “some of [B.A.’s] symptoms may improve,” but: “Given the time since her
injury, the severity of her symptoms, and her continued constellation of issues, [B.A.] will likely
continue to be disabled and need assistance even after treatment.” Pet. Ex. 159 at 7-8. She
reasoned that these kinds of programs can help individuals to become more independent and can
address reliance on pain medications, however, they are unlikely to fully resolve chronic pain
conditions, particularly in individuals like B.A., who has been dealing with these problems for
over a decade. Tr. 108-09.
11
All participants in this case are optimistic that after B.A. completes the PRC program, she
will be less reliant on medications, have a lower symptom burden, and become more
independent. However, Ms. Kattman has provided a reasonable projection of the care that B.A.
will need even after attending the PRC program.
Ms. Fox also contended that B.A. had “mental health issues” or a “psychological
disorder” prior to the HPV vaccines. Resp. Ex. Q at 2 (citing Pet. Exs. 5, 73); Resp. Ex. V at 4, 5
(citing preexisting mental health issues as the basis for opposing the Vaccine Program’s funding
of annual psychiatry evaluations). However, there is very little evidence in the record for the
proposition that B.A. had preexisting mental health issues. As detailed in the entitlement ruling,
the first psychologist Dr. Carter, suggested the existence of a preexisting psychological disorder,
but this was in the context of Dr. Carter encountering B.A. for the first time several months after
the second HPV dose and without review of her prior medical records. See Pet. Ex. 5 at 15. The
second psychologist Dr. Griffith noted Dr. Carter’s prior suggestion, but somewhat differently,
believed that B.A.’s “catastrophic reaction to the [HPV vaccinations] resulted in the onset of a
somatoform disorder, which has evolved over time into conversion disorder.” Pet. Ex. 73 at 8. I
specifically considered but concluded that there was not preponderant evidence that a psychiatric
component represented an alternative cause of B.A.’s injuries. In reaching this conclusion, I
noted Dr. Steinman’s testimony that B.A. had gone on an exclusive multi-week trip to Europe in
summer 2007 and that she had been doing well academically before receiving the January 23,
2008 HPV vaccination. She then developed disabling symptoms and essentially her life came
apart. Dr. Steinman opined that it was more likely than not that as a result of this significant
disruption in her life, B.A. became depressed and anxious. See Entitlement Ruling at 42-44; Tr.
154, 169-70 (Ms. Fox’s testimony that she in fact read the entitlement ruling). It is reiterated that
there is not preponderant evidence that B.A. had mental health issues prior to the HPV vaccines,
only afterwards and as a result of her vaccine injuries. Therefore, the recommended annual
psychiatric evaluation is compensable.
Ms. Fox noted that the Mayo Clinic recommended that B.A. also undergo a
neuropsychological evaluation which has not taken place. Resp. Ex. Q at 7. Ms. Fox opined that
this evaluation was “critical” for formulating a life care plan because it would “provide insights
on [B.A.’s] current psychological issues and profile.” Id. at 9. However, within the Mayo Clinic
records, neither the neurologist Dr. Sirven nor the psychologist Dr. Ames suggested that B.A.
had a purely psychological disorder either before or after the vaccinations. Dr. Sirven
recommended the neuropsychological evaluation to grasp B.A.’s current cognitive function, see
Pet. Ex. 153 at 8, which Ms. Kattman explained can take place at the Mayo Clinic the day before
the PRC program commences, Pet. Ex. 162 at 6. I conclude that it is not crucial that B.A.
undergo this evaluation before damages are awarded as the evidence is abundantly clear that
B.A. has suffered cognitive decline particularly with regard to memory and executive
functions.16
16
While arguments can always be made for additional evidence on future damages, this case arose from B.A.’s
receipt of vaccinations in 2008 and arose out of a vaccination in and a ruling that B.A. had established entitlement to
compensation which was issued in late 2018. The parties have been locked in damages discussions since that time.
I think that the evidence is sufficient to decide the issues on damages and further delay in this case to obtain
additional evidence is not warranted. See also Vaccine Rule 1(b) (providing that in any matter not specifically
addressed by the Vaccine Rules, the special master shall uphold the purpose of the Vaccine Act “to decide the case
promptly and efficiently”).
12
As stated above in the discussion of past unreimbursed expenses, the acupuncture and
chiropractic treatments have been documented to be helpful for B.A.’s vaccine injuries. Ms.
Kattman has reasonably projected that B.A. will need these treatments going forward.
Therefore, they are awarded.
Ms. Kattman’s recommendation of one neurology evaluation per year is reasonable given
that headaches are a common cause for neurological consultations, and they might be better
understood in the future. Pet. Ex. 170 at 3; Tr. 193-94.
Ms. Kattman recommended $1,399.32 each year to cover costs and drug premiums for
topiramate, tizanidine, ketorolac, diazepam, and cambia. Pet. Ex. 170 at 5. As noted above,
ketorolac is an NSAID which would not address the vaccine injuries. Otherwise, Ms. Fox
opposed any medication costs on the basis that B.A. should be able to discontinue these
medications after participating in the PRC program. As stated above, I find that Ms. Kattman
reasonably projected the medications that B.A. will need even after attending the program.
The life care planners emphasized – and I maintain – the importance of B.A. becoming
less reliant on her mother and more emancipated. Therefore, Ms. Kattman recommended an aide
at an hourly cost is $17.00 for 4 hours per day plus 40 additional hours per month for travel for
treatment (namely the acupuncture with Dr. Wu) until B.A. was 44 years old; 6 hours per day
plus 36 additional hours from age 45 through 64; and 8 hours per day with no additional hours
for travel from age 65 to life. Pet. Ex. 170 at 7-8. Ms. Kattman reasoned that B.A.’s vaccine
injury includes “unpredictable symptoms of headaches, muscle jerking and pain, combine[d]
with issues of depression/mood/anxiety and memory issues” which make it difficult to complete
activities of daily living including showering, running errands, doing laundry, food shopping,
meal preparation, and cleaning. Pet. Ex. 162 at 4. An aide would help with all of these tasks.
Id. Ms. Kattman acknowledged that B.A.’s condition “is not thought to be progressive,”
however, she opined that B.A. will likely have “superimposed” issues of aging which are “more
likely due to her disability.” Id. at 5; see also Pet. Ex. 173 (article on long-term consequences of
chronic pain). In contrast, Ms. Fox recommended 20 hours per week for the first year, followed
by eight hours per week from age 30 to life. Resp. Ex. V at 6. She suggested that B.A. may
become able to drive if her symptoms are better controlled and if not, she “certainly could use
public transportation and/or Uber/Lyft.” Id. However, B.A. provided credible testimony that she
was not aware of any Ubers or taxis operating in her town of Piedmont, Alabama. She has only
ridden in taxis while in larger cities. Currently, she would not feel comfortable riding in a taxi
out of concern of saying the wrong destination or forgetting something due to her short-term
memory problems. See Tr. 72-73. While the life care planners initially discussed the prospect of
B.A. moving to a larger and more metropolitan area, that was not included in their plans. The
mother testified that she cannot afford to maintain two households and they have remained in
Piedmont to be close to her elderly father (B.A.’s grandfather). Tr. 33, 49. I ruled that an aide
would indeed help B.A. to become more emancipated, but that the amount of care recommended
by Ms. Kattman may have the opposite effect. Therefore, I approved Ms. Fox’s recommendation
of 20 hours per week for the first year, but followed by two hours per day, for five days per week
(reasoning that B.A. could be with her mother or on her own during the weekend) from age 30 to
life. Tr. 195-96, 199-200.
13
Ms. Kattman also recommended independent case management at an hourly cost of
$85.00 for three hours per month, for life. Pet. Ex. 170 at 8. She explained that the case
manager will help with insurance, bills and paperwork, finances, managing and recruiting aides,
and generally advocating for B.A. Pet. Ex. 162 at 6. She noted that B.A. has cognitive
difficulties including poor memory. Id. In contrast, Ms. Fox recommended only two hours per
month for the first year; one hour per month for age 31 through 35; and four hours per year from
age 36 to life. Resp. Ex. V at 7. Ms. Fox averred that “[B.A.] has extensive family resources
and support and does not have intellectual challenges. She will need some support but could and
should be involved in management of her own care.” Id. In fact, B.A. lives with and receives
substantial support from her mother, who will turn 60 years old in August 2021, has numerous
chronic health issues, and works long hours as an accountant. Tr. 10. The mother testified that
serving as B.A.’s primary caregiver is not sustainable. Id. There are no other family members
available or willing to support B.A. Tr. 48-49. I concluded, particularly after hearing B.A.’s
testimony, that Ms. Kattman’s recommendations for the case management were reasonable. Tr.
196-97.
The parties and their life care planners agreed on the cost of future insurance premiums
and various other items. Therefore, I award future unreimbursed expenses in accordance with
the above and as reflected in Pet. Ex. 178.
VI. Pain and Suffering
The Vaccine Act provides that “[f]or actual and projected pain and suffering and
emotional distress from the vaccine-related injury,” a petitioner may recover “an award not to
exceed $250,000.” Section 15(a)(4). With regard to pain and suffering and all other elements of
damages, the petitioner bears the burden of proof and the medical records are the most reliable
evidence of her condition. See, e.g., Brewer v. Sec’y of Health & Human Servs., No. 93-0092V,
1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18, 1996); Shapiro v. Sec’y of Health &
Hum. Servs., 101 Fed. Cl. 532, 537-38 (2011).
In an opinion that has proved to be influential within the Vaccine Program, Judge Merow
reasoned that to determine the proper award for pain and suffering in a particular case, the first
step is an evaluation of the record evidence, without regard to the $250,000 cap. Only then as a
second step, if the award would exceed $250,000, it must be reduced to that maximum. See
Graves v. Sec’y of Health and Human Servs., 109 Fed. Cl. 579, 589-90 (2013). I have previously
adopted this prevailing approach. Goldman v. Sec’y of Health & Human Servs., No. 16-1523V,
2020 WL 69553394, at *1-2 (Nov. 2, 2020).
There is no mathematical formula for assigning a monetary value to a person’s pain and
suffering and emotional distress. I.D., 2013 WL 2448125, at *9 (“[a]wards for emotional distress
are inherently subjective and cannot be determined by using a mathematical formula”). 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. Id. at *9 (internal citations
omitted). I find it appropriate to also consider any impairments in function and/or lost ability to
participate in activities which the petitioner previously enjoyed, as a result of the injury.
14
A special master may also consider prior pain and suffering awards, especially for similar
injuries, from both inside and outside of the Vaccine Program to aid the resolution of the
appropriate amount of compensation for pain and suffering in this case. See, e.g., Doe 34 v. Sec’y
of Health & 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.”). A special master
may also rely on his or her 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
that special masters would use their accumulated expertise in the field of vaccine injuries to
judge the merits of individual claims).
Any portion of a pain and suffering award that is found by the special master to be
“future,” must be reduced to net present value. Youngblood v. Sec’y of Health & Human Servs.,
32 F.3d 552, 555 (Fed. Cir. 1994), citing Section 15(a)(4)(a).
Here, B.A. averred that she has already suffered well beyond $250,000 in past pain and
suffering – noting that her injuries began in approximately January 2008; she was fully cognizant
of her injury at the onset – when she was sixteen (16) years old); and that her injuries have
persisted for over ten (10) years and they are expected to persist going forward. Pet. Brief at 2-3.
B.A. averred that but for the statutory cap, she deserves well more than $250,000 past and/or
future pain and suffering. Id. at 3. B.A. also noted that there is no legal proposition that any
portion of a pain and suffering award must be partly attributable to the future. Id. Therefore, “in
any case where the past pain and suffering… is equal to or greater than $250,000, the full
$250,000 is to be paid” without any apportionment to the future, which necessitates a reduction
to present value. Id. at 4 (citing Youngblood v. Sec’y of Health & Human Servs., 32 F.3d 552,
555 (Fed. Cir. 1994)).
In contrast, respondent proffered and maintained in his brief that the evidence submitted
prior to the damages hearing demonstrated $50,000 in past pain and suffering. Respondent
averred that the evidence supported a further award of $125,000 in future pain and suffering, to
be reduced with a discount rate of 1.5%, resulting in a net present value of $86,534.65. Resp.
Brief at 5; see also Pet. Brief at 2.
Respondent correctly recited the three key factors considered in valuing pain and
suffering, but incorrectly suggested that special masters have continued to “reserve the statutory
maximum ‘for those who are both the most severely injured and who actually have suffered or
will suffer the most pain, suffering, or emotional distress.” Resp. Brief at 4 (citing several
opinions from 1990 – 1995, predating Graves); see also Pet. Brief at 4 (noting that the spectrum
approach was rejected in Graves, 109 Fed. Cl. at 590). I reiterate that following the issuance of
Graves, special masters have generally considered an individual petitioner’s actual pain and
suffering as supported by the record alone and not based on a spectrum of all petitioners seen in
the Program. I also take this approach. Of note, respondent does not make any specific
arguments about the degree of B.A.’s pain and suffering to date or going forward or her
awareness thereof.
15
I have heard extensive testimony in both the entitlement and damage hearings in this
case, have closely observed B.A. at both times, and have reviewed thousands of pages of medical
records. There is no question that there is abundant evidence that B.A.’s injury has caused
substantial pain by virtue of severe and persistent headaches. She has also suffered the
occurrence of a demonstrable dystonic movement disorder and apparent cognitive decline. She
was a successful high school student with full expectation of attending college and pursuing a
career as both of her parents have done. She has suffered and continues to suffer significantly
from these injuries.
Upon consideration of all the evidence submitted including the medical records, the
credible testimony from B.A. and her mother, and the life care plan outlined above that is
intended to assist B.A. to better manage her injury and achieve a greater degree of independence,
B.A. is awarded $150,000.00 for past pain and suffering. Tr. 202. She is also awarded
$100,000.00 in future pain and suffering, to be reduced to present value at a discount rate of
1.5%. Tr. 202-03.
VII. Lost Wages
The Act provides that compensation shall include:
In the case of any person who has sustained a vaccine-related injury before
attaining the age of 18 and whose earning capacity is or has been impaired by
reason of such person’s vaccine-related injury for which compensation is to be
awarded and whose vaccine-related injury is of sufficient severity to permit
reasonable anticipation that such person is likely to suffer impaired earning
capacity at age 18 and beyond, compensation after attaining the age of 18 for loss
of earnings determined on the basis of the average gross weekly earnings of
workers in the private-non-farm sector, less appropriate taxes and the average cost
of a health insurance policy, as determined by the Secretary.
Section 15(3)(B) (emphasis added). Here, the parties agreed that as a result of B.A.’s vaccine
injuries which occurred before she was 18 years old, she has never been gainfully employed
since attaining the age of 18 and that will not change going forward. See Resp. Brief at 2.
Therefore, she should be awarded lost earnings.
As the Vaccine Act dictates much of the lost earnings calculation, see Resp. Brief at 2-4,
the parties only dispute the appropriate work-life expectancy to be applied. B.A. averred that 49
years and no less than 47 years was appropriate. Pet. Brief at 6.
Respondent supported a work-life expectancy of 37 years, based on what was apparently
the last reasoned opinion addressing this issue, over two decades ago. Resp. Brief at 4 and n. 6
(citing Childers v. Sec’y of Health & Human Servs., No. 96-194V, 1999 WL 218893 (Fed. Cl.
Spec. Mstr. March 26, 1999). In Childers, then-Special Master Hastings noted that “the statutory
formula does not address [the determination of an appropriate work-life expectancy], so that, in
my view, is a matter left to my discretion, based upon the available evidence.” 1999 WL
16218893, at *16.17 The special master reasoned that: “[The Act] mandates… that the basic
earnings figure be determined by averaging the earnings of all workers, even though historically
female workers have earned somewhat less than male workers. Therefore, just as we do not,
under the formula, use different average earnings figures for males and females, I see no good
reason to use different work-life expectancy figures based on gender.” 1999 WL 218893, at *18
(emphasis in the original). He accepted data from the respondent’s expert economist that the
average work-life expectancy was 31.7 years for women and 37.6 years for men. Id. at *16, 18(referring to the certain data from 1979-80 and certain data through the years of 1992-93).
However, to achieve a “unisex approach,” he recognized data that the workforce was only 46%
female compared to 54% male. Id. at *18.18 The resulting weighted average was 34.88 years,
rounded off to 35 years. Id.Respondent argued that the special master’s approach in Childers was based on
“extensive expert testimony.” Resp. Brief at n. 6. Upon review of the opinion, the experts
apparently presented competing data on work-life expectancy and they debated how to account
for the differing data for women and men. However, the special master did not cite to expert
testimony for his choice to “average the experience of all workers.” 1999 WL 218893, at *18.19
Respondent did not argue that this is required by the Act or any binding case law, Resp. Brief at
n. 6. To the contrary, B.A. averred that the special master in Childers “came up with his own
formula.” Pet. Brief at 5. I agree that the determination of an appropriate work-life expectancy
is within each special master’s discretion. While the Act dictates that a petitioner who sustains a
vaccine injury before attaining the age of 18 shall be awarded lost earnings based on the
“average gross weekly earnings of workers in the private-non-farm sector,” the Act does not
require the application of an average work-life expectancy. An average may be useful as a
starting point, especially when there is insufficient information such as in the case of an infant or
17
Also of note, in Childers, the parties briefed and the special master resolved whether it was more appropriate to
apply statutory principles of sovereign immunity versus a more liberal interpretation to the statutory text addressing
lost earnings. 1999 WL 218893, at *2-12. But importantly, the special master reasoned that the same analysis did
not apply to his determination of work-life expectancy: “There is simply no issue of ‘statutory construction’ here.
The statute rather, gives me discretion to choose an appropriate and reasonable work-life expectancy figure, based
upon the evidence in the record before me. Therefore, as in the case of other discretionary or evidentiary (as
opposed to statutory interpretation) matters, my task is to choose the figure best supported by the evidence of record,
not necessarily the figure that would be most beneficial to respondent.” 1999 WL 218893, at n. 19 (emphasis in the
original).
18
The special master also noted that the Vaccine Act does not require the application of “generally recognized
actuarial principles” that distinguish on the basis of personal characteristics such as gender to determine work-life
expectancy, and that other courts have discouraged this practice. 1999 WL 218893, at n. 20 (citations omitted).
19
The special master cited to Edgar, in which the Federal Circuit held that the Vaccine Act did not make payments
from an annuity – which included compensation for future lost earnings – contingent on an injured child actually
reaching the age of 18. Edgar v. Sec’y of Health & Human Servs., 989 F.2d 473, 477-78 (Fed. Cir. 1993). This case
does support that the Vaccine Act provides for lost earnings to “replace the life-long stream of earned income that
the injured person would likely have enjoyed had she or he not been injured,” 1999 WL 218893, at *18, but it does
not follow that an average work-life expectancy must be applied.
17
very young child.20 But in this case, I find it appropriate to also consider the submitted evidence
about the specific petitioner before me, as well as her family, that is relevant to determining her
work-life expectancy but for the vaccine injury. I agree with Special Master Hastings that work-
life expectancy should not be reduced based on the petitioner’s protected characteristics such as
race and gender.21, 22 But education is relevant. Here, there is credible testimony and other
evidence that prior to the vaccine injury, B.A. earned As and Bs in high school; she was in
extracurricular activities such as Future Farmers of America; and she was selected to attend a
People-to-People trip to Europe. Additionally, each of B.A.’s parents obtained a bachelor’s
degree and each parent in fact went on to obtain a master’s degree in business. Tr. 192. B.A.’s
mother is sixty (60) years old, but she continues to hold a demanding full-time job while caring
for several family members. B.A.’s father is also still employed. B.A. has active relationships
with both parents and she imagined having a job after college like them. Therefore, I find it
more likely than not that but for the vaccine injury, B.A. would have graduated from high school
and obtained a bachelor’s degree. Tr. 191. These findings inform the evaluation of likely work-
life expectancy but for the vaccine injury.
Respondent cited Current Population Survey23 data from 2009 to 2013 which reflects that
for individuals who enter the labor force at 18 years old, the work-life expectancy is 33.97 years
for women and 39.5 years for men. Notice of Filing (ECF No. 229) at 2, citing Resp. Ex. T24 at
1, 3). However, as noted above, B.A.’s likely educational attainment should be taken into
account. She most likely would have graduated from high school at 18 years old, attended
college, obtained a bachelor’s degree, and entered the labor force at 22 years old. Tr. 191. The
appendix cited by respondent does not address educational level. Respondent also filed the
actual article25, in which the authors Krueger and Slesnick identified “the primary working
years” as beginning at age 25 (“essentially after schooling is complete”). Resp. Ex. S at 6. In
20
That may have been true in Childers. While the child’s age is not mentioned, she suffered an encephalopathy
after a measle-mumps-rubella vaccination. 1999 WL 218893, at *1.
21
See, e.g., G.M.M. ex rel. Hernandez-Adams v. Kimpson, No. 13-CV-5059, 116 F.Supp.3d 126, 129 (E.D.N.Y. July
29, 2015) (in which Judge Jack B. Weinstein ruled that “for the purposes of projecting damages, the specific
characteristics of the child and his family, rather than the characterization of the child as a member of a particular
ethnic group, must be used in determining damages”); see also U.S. Courts, Judge Jack Weinstein Mourned as
Champion of Justice (June 25, 2021), available at https://www.uscourts.gov/news/2021/06/25/judge-jack-weinstein-
mourned-champion-justice (noting his impact on mass tort litigation).
22
116 F.Supp.3d at 151 (citing Kenneth Feinberg, Dep't of Justice, Volume 1, Final Report of The Special Master
for the September 11th Victim Compensation Fund of 2001 at 33, n. 109 (2004), available at
https://securitypolicylaw.syr.edu/wp-content/uploads/2012/09/Special-Masters-Final-Report.pdf (last accessed June
22, 2021) (adopting for both men and women the “more generous [work life expectancy] standard for males to avoid
any gender bias in assumed future work life patterns and to ensure consistency,” in awarding compensation to all
victims of the terrorist attack on September 11, 2001).
23
The Current Population Survey (“CPS”) is a “national monthly survey of approximately 60,000 households
conducted by the U.S. Census Bureau for the U.S. Bureau of Labor Statistics.” Resp. Ex. R at 1.
24
Krueger & Slesnick, Table A-1 – Components to Total Work-Life Expectancy by Demographic Characteristic and
Single Age, 2009-2013 [Resp. Ex. T].
25
Krueger & Slesnick, Total Work-Life Expectancy, 25 Journal of Forensic Economics 51-70 (2014) [Resp. Ex. S].
18
the case of initial labor force participation at age 25, all women have an average “labor force,”
e.g., traditional work-life expectancy, of 29.72 years. Resp. Ex. S at 11. However, education
changes the outcome significantly. For example, for women who do not finish high school, the
average is 19.41 years, but for women with bachelor’s degrees, the average is 32.74 years. Id. at
11, 14. The numbers are similar for men.
Also of note, Krueger and Slesnick’s main premise was to address “the gender-related
problems of solely using labor force work-life tables as the determinant of lifetime work” in
assessing damages in tort cases. Resp. Ex. S at 1. They argued that earning capacity should
“focus on what the plaintiff could have earned rather than what plaintiff would have earned”26
and that “economic theory and data reveal that the personal economic value of domestic activity
exceeds the money returns achievable in the labor force.” Id. at 3. Therefore, Krueger and
Slesnick argued that two “active work states”: (1) market work (participation in the labor force);
and (2) non-market work (“taking care of house or family”) should be recognized in a calculation
of “total work-life expectancy.” Id. at 2. Recognizing non-market work increases the total
work-life expectancy.
B.A. argued that upon resolving Childers in 1999, the special master necessarily could
not consider “the realities of work-life expectancy in 2021” and that: “Literature indicates that
the work-life expectancy has increased over the last decade and the trend is expected to continue.
Factors include the increases to the retirement age for social security, little to no cost-of-living
wage increases, improved health requiring more savings to fund a longer life expectancy, etc.”
Pet. Brief at 5, citing Pet. Ex. 16127 at 1. B.A.’s cited article also notes that: “There is a wealth
of research available which demonstrates women participating in the work force for longer
periods of time than their predecessors.” Pet. Ex. 161 at 1. Work-life expectancy tables are but
one source of information which provide only a lower bound on work years and cannot fully
account for these nuances and evolving trends. Id.
At the damages hearing, I noted that labor force numbers are generally computed by
including all people in the population from age 16 to the end of life. Tr. 189-90. Compared to
previous generations, a greater proportion of young people go onto to college and as a
consequence, do not join the labor force until the age of 22. Tr. 190. I also noted that the “baby
boom” generation (defined as people born between 1946 and 1964) have recently retired in
significant numbers. Tr. 190; see also Resp. Ex. R at 1. I also stated that there has been an
“enormous change” in women’s labor force participation over the past 40 years or so. Tr. 191.
More specifically, the article that respondent submitted on women in the work force (Resp. Ex.
R) reflects that while women’s overall share of the workforce has not changed significantly,
women are achieving more. See Resp. Ex. R at 1. Women have become much more likely to
pursue higher levels of education, work full-time and year-round, and work while raising
children. Id. In addition, women’s earnings as a proportion of men’s earnings have grown over
26
Citing Posner, R., Conservative Feminism, 1989 University of Chicago Legal Forum 191, 194-95 (1989)
(analyzing that “a minimum estimate of a disabled housewife’s lost earnings is the wage she would have
commanded in the market…).
27
This appears to be a book or magazine excerpt which cites to various sources including articles published as
recently as 2015.
19
time; women working full time earned 62 percent of what men earned in 1979, but 82 percent in
2019. Id.
In conclusion, the evidence submitted supports that statistics on work-life expectancy are
worthy of consideration, but they also have limitations. I am not persuaded that the Vaccine Act
requires applying an average work-life expectancy (e.g., for all women, all women and men
generally, or all women and men weighted by their participation in the work force) to the
particular petitioner before me, particularly where she was close to reaching the age of majority
when she sustained the vaccine injury and there is credible, relevant evidence about her likely
educational attainment. The submitted evidence supports that higher educational attainment is
correlated with longer work-life expectancy. Consideration of likely educational attainment is
valid and distinguished from consideration of protected classes such as race or gender.
B.A. likely would have obtained a bachelor’s degree and entered the labor force at 22
years old. Tr. 191. While acknowledging the mother’s testimony that she has been continually
employed throughout her life, I allow for the likelihood that B.A. would have spent “a couple
years out of the workforce” either while caring for family members (what Krueger and Slesnick
in fact characterize as compensable “non-market work)” or due to short-term illness, disability,
or unemployment (non-compensable “inactivity”). Tr. 191. I credit B.A.’s arguments that work-
life expectancy is likely to increase along with the increased costs of living, the retirement age
for Social Security, and life expectancy. Accordingly, B.A. likely would have retired at 65 years
old. Id. Therefore, it is reasonable to conclude – based on traditional labor force participation
alone as well as some potential for “non-market work” – that an appropriate work-life
expectancy to be applied in this case is 43 years. Id. at 192.
VIII. Form of Award
Compensation may be awarded by way of an annuity or in another manner “determined
by the special master to be in the best interests of the petitioner.” Section 15(f)(4)(B). Here,
respondent averred that all items should be awarded through a life-contingent annuity, Resp.
Brief at 1, to which B.A. has not objected. I agree that given B.A.’s disabilities, a life-contingent
annuity requiring payments over her lifetime is in her best interest.
Respondent proposed that the reduction to present value for future damages should be
based upon a discount rate of 1.5%. Resp. Brief at 2-4. There having been no argument on this
issue and given that current interest rates for conservative investments such as U.S. Treasury
bonds are less than that figure but that future rates may be expected to rise from their current
historically low levels, I adopt the figure of 1.5% proposed by respondent for the reduction to
present value.
IX. Conclusion
The parties shall file a proffer incorporating this ruling into a proffer that will be the basis
for awarding compensation to B.A. within 30 days, by Thursday, October 7, 2021.
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IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
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