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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-0835V
UNPUBLISHED
ANITA GROSS, Chief Special Master Corcoran
Petitioner, Filed: March 11, 2021
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Decision Awarding Damages; Pain
HUMAN SERVICES, and Suffering; Lost Wages; Influenza
(Flu) Vaccine; Guillain-Barré
Respondent. Syndrome (GBS)
Randall G. Knutson, Knutson & Casey Law Firm, Mankato, MN, for Petitioner.
Mollie Danielle Gorney, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On June 6, 2019, Anita Gross filed a petition for compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine
Act”). Petitioner alleged that she suffered Guillain-Barré syndrome (“GBS”) caused-in-fact
by the influenza (“flu”) vaccine she received on October 25, 2017. Petition at 1, ¶¶ 2, 12.
The case was assigned to the Special Processing Unit (“SPU”) of the Office of Special
Masters. After Respondent conceded entitlement, the parties were unable to resolve
damages on their own, so the disputed damages components were addressed at the
February 2021 SPU Motions Day.
1
Because this Decision contains a reasoned explanation for the action in this case, I am required to post it
on the United States Court of Federal Claims' website in accordance with the E-Government Act of 2002.
44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services).
This means the Decision will be available to anyone with access to the internet. In accordance with
Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the
disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the
identified material fits within this definition, I will redact such material from public access.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
For the reasons set forth below, I find that Petitioner is entitled to an award of
damages in the amount $166,189.85, representing $160,000.00 for her past pain and
suffering, $798.75 for past lost wages, and $5,391.10 for past out-of-pocket
expenses.
I. Relevant Procedural History
Approximately one year after the Petition was filed in this case, Respondent filed
a Rule 4(c) Report conceding that Petitioner’s injury met the Table definition for GBS
following receipt of the seasonal flu vaccine. ECF No. 21; see 42 C.F.R. § 100.3(a) XIV.D.
(2017) (definition of a Table GBS). I issued a Ruling on Entitlement on May 13, 2020.
ECF No. 22. The parties thereafter made some efforts to settle damages but were
unsuccessful. Both sides eventually agreed to my proposal that they participate in an
expedited hearing, completing damages briefing by September 29, 2020. ECF No. 36
(joint status report); ECF Nos. 31-34 (parties’ briefs and additional evidence). The
expedited hearing was held on February 26, 2021,3 and at its conclusion I orally informed
the parties of my determination.
.
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
3
The expedited hearing in this case was originally scheduled for January 15, 2021. EF No. 37. Due to the
past and expected violence in Washington, DC and inaccessibility of the building until January 22, 2021,
the expedited hearing was rescheduled for February 26, 2021. See Informal Remark and Non-pdf Pre-
Hearing Order, issued Jan. 13, 2021. An official recording of the proceeding was taken by court reporter,
and a link to instructions on the court’s website detailing how to order a certified transcript or audio recording
of the proceeding can be found in the minute entries for this proceeding. Minute Entry, dated February 26,
2021; see also www.uscfc.uscourts.gov/trans (last visited June 1, 2020).
2
emotional distress are inherently subjective and cannot be determined by using a
mathematical formula”); Stansfield v. Sec’y of Health & Human Servs., No. 93-0172V,
1996 WL 300594, at *3 (Fed. Cl. Spec. Mstr. May 22, 1996) (“the assessment of pain and
suffering is inherently a subjective evaluation”). Factors to be considered when
determining an award for pain and suffering include: 1) awareness of the injury; 2) severity
of the injury; and 3) duration of the suffering. I.D., 2013 WL 2448125, at *9 (quoting
McAllister v. Sec’y of Health & Human Servs., No 91-1037V, 1993 WL 777030, at *3 (Fed.
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.4 Hodges v. Sec’y of
Health & Human Servs., 9 F.3d 958, 961 (Fed. Cir. 1993) (noting that Congress
contemplated the special masters would use their accumulated expertise in the field of
vaccine injuries to judge the merits of individual claims).
III. The Parties’ Arguments
In her damages brief, Petitioner requested at least $180,000.00 for her past and
future pain and suffering,5 $228,212.70 for her past and future lost wages, and $5,391.10
for her out-of-pocket expenses. Petitioner’s Memorandum for Damages Decision (“Brief”)
at 19, ECF No. 32. At the February 26, 2021 expedited hearing, however, Petitioner’s
counsel indicated that Petitioner was withdrawing her request for $226,342.30 in past and
future lost wages, representing her annual salary for the five years following her January
2020 retirement.6 Thus, Petitioner now seeks only $1,870.40 in past lost wages, which is
the gross amount for two weeks of leave taken during her illness. Of these 80 hours,
4
From July 2014 until September 2015, the SPU was overseen by former Chief Special Master Vowell. For
the next four years, until September 30, 2019, all SPU cases, including the majority of GBS claims, were
assigned to former Chief Special Master Dorsey. In early October 2019, the majority of SPU cases were
reassigned to me as the current Chief Special Master.
5
Petitioner did not specify the portion of this amount which would be attributed to her future pain and
suffering. Any amount awarded for future pain and suffering must be reduced to its net present value.
Section 12(f)(4)(A).
6
Petitioner asserted that, because of her GBS, she “was forced to retire at 65 instead of 70 as originally
planned.” Brief at 10. Petitioner was born on February 28, 1954. Exhibit 1.
3
Petitioner was reimbursed for 74 hours as paid time off pursuant to an employer policy
(“PTO”). Brief at 13. Petitioner asserts she should be compensated for her PTO, as well
as her unpaid leave, because but for her GBS, unused PTO time would have been
reimbursed to her upon departure from her position (given that her employer treated sick
leave and vacation time indistinguishably). Id.To support the amount requested for her pain and suffering, Petitioner compared
the circumstances in her case to those in three other published Program decisions
addressing pain and suffering in comparable circumstances: Fedewa, Johnson, and
Dillenbeck.7 Asserting that the severity and duration of her pain and suffering was at least
that suffered by those petitioners, she maintains that her award should be more than
$180,000.00, the maximum awarded for past pain and suffering in those cases.
Respondent countered that Petitioner should receive a more modest sum -
$82,500.00, for pain and suffering,8 $109.59 for the six hours of unpaid leave she took,
and the full amount of $5,391.10 she seeks for her past out-of-pocket expenses.
Respondent’s Brief on Damages (“Opp.”) at 1, 13, ECF No. 34. To support this lower
amount for pain and suffering, Respondent stressed the short duration of Petitioner’s
hospitalization, the fact that she declined physical therapy (“PT”) thereafter, and the gap
in treatment from July 2018 (nine months after vaccination) until seen again by her
primary care provider (“PCP”) almost two years later. Id. at 11-12. Respondent also
pointed to differences between the facts and circumstances in Petitioner’s case and those
suffered by the petitioners in Johnson, Fedewa, and Dillenbeck. Id. at 12, 12 n.7.
Respondent further argued that the symptoms suffered by Petitioner more than
nine months after her vaccination were attributable to her co-morbid diabetic neuropathy
rather than her GBS. Res. Brief at 11. To support this position, Respondent referenced a
July 2018 entry setting out that opinion from the second neurologist who treated
Petitioner, Dr. Cutsforth-Gregory. Id. In contrast, Petitioner maintained that her later
symptoms were the result of her GBS. Pet. Brief at 1. She relies on the opinion of her
PCP, Dr. Megard, provided in May 2020. Id. at 1-2.
7
Fedewa v. Sec’y of Health & Human Servs., No.17-1808V, 2020 WL 1915138 (Fed. Cl. Spec. Mstr. Mar.
26, 2020) (awarding $180,000.00 for past pain and suffering); Johnson v. Sec’y of Health & Human Servs.,
No. 16-1356V, 2018 WL 5024012 (Fed. Cl. Spec. Mstr. July 20, 2018) (awarding $180,000.00 for actual
pain and suffering); Dillenbeck v. Sec’y of Health & Human Servs., No. 17-0428V, 2019 WL 4072069 (Fed.
Cl. Spec. Mstr. July 29, 2019) (a decision I issued awarding $170,000.00 for past pain and suffering and
$10,857.15, the net present value of payments of $5,000.00 per year for 22 years).
8
Like Petitioner, Respondent does not distinguish between past and future amounts. See supra note 5.
4
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.
In performing this analysis, I have reviewed the record as a whole, including the
medical records, affidavits, and all assertions made by the parties in written documents
and at the expedited hearing held on February 26, 2021. I considered prior awards for
pain and suffering in both SPU and non-SPU GBS cases and rely upon my experience
adjudicating these cases.9 However, I ultimately base my determination on the
circumstances of this case.
The evidence shows that Petitioner’s GBS was quickly diagnosed, after
emergency room (“ER”) visits on November 6 and 7, 2017. Exhibit 4. Following her
second ER trip, she was transferred to Sanford Medical Center and underwent an EMG,
lumbar puncture, and a five-day course of IVIG without complication. See, e.g., Exhibit 5
at 24-25, 33-34, 40, 49. She was still experiencing symptoms, however, and her
Gabapentin dose was increased at her discharge one week later. Id. at 20. At a follow-up
appointment with her PCP on November 21, 2017, it was noted that Petitioner had
difficulty walking upstairs. Exhibit 6 at 24. However, she declined to attend the prescribed
PT because her symptoms were improving. Id.
In early 2018, Petitioner was seen twice by her neurologist, Dr. Mamah. At these
visits, she described some tingling and numbness in her legs and difficulty with balance
which was lessened by the Gabapentin she was taking. Exhibit 12 at 14, 81. She was still
experiencing numbness around her rectum but described it as improved since her
hospitalization. Id. at 14, 81. These symptoms were not as severe as those Petitioner
now alleges. In her damages brief, Petitioner maintained that “[s]he can no longer sit,
stand, or walk without being in immense pain.” Brief at 14. She described a constant state
of unbalance, issues with incontinence and an inability to sleep or drive. Id.; see also
Petitioner’s Second Affidavit10 at ¶¶ 4-17, filed Aug. 27, 2020, ECF No. 33. In her second
affidavit executed on August 25, 2020, Petitioner alleged “a feeling of electric shocks
9
Statistical data for all GBS cases resolved in SPU by proffered amounts from inception through January
1, 2021 reveals the median amount awarded to be $167,499.14. These awards have typically ranged from
$128,072.42 to $269,933.00, representing cases between the first and third quartiles.
10
Petitioner filed a total of three affidavits. In the first and third affidavits, she addressed the basic
requirements of the Vaccine Act and details regarding her employment and PTO, respectively. Exhibits 2,
18. This second affidavit was not assigned an exhibit number.
5
through my feet.” Petitioner’s Second Affidavit at ¶ 5. There is nothing in Petitioner’s
medical records to support these later assertions of more severe symptoms, however.
Additionally, a second EMG performed on February 18, 2018 showed no evidence
of large-fiber neuropathy but indicated that the EMG “assess[ed] only large myelinated
fibers, and a pure small-fiber polyneuropathy cannot be ruled out.” Exhibit 12 at 84; see
Exhibit 7 at 13-24 (specific results). These results also showed “evidence for
demyelinating involvement of motor fibers in the peripheral nerves.” Exhibit 12 at 84.
Thus, it is unclear whether the symptoms Petitioner exhibited in spring 2018 were due to
her GBS or possibly related to her diabetes. Medical records from prior to vaccination
reflected Petitioner’s difficulty controlling her diabetes, and Petitioner’s blood sugar levels
were noted to be high during her hospitalization. Exhibit 5 at 704; Exhibit 9 at 31, 43.
In the summer of 2018, Petitioner sought a second opinion from neurologist Dr.
Cutsforth-Gregory. An EMG performed on July 10, 2018, showed negative results like
those obtained in February of that same year. Exhibit 8 at 48. A thermoregulatory sweat
test performed the same day, however, provided support for small-fiber neuropathy. Id.
at 45. In correspondence sent to Petitioner later in July 2018, Dr. Cutsforth-Gregory
opined that, due to her uncontrolled diabetes, Petitioner most likely had asymptomatic
diabetic neuropathy prior to GBS, but which manifested symptomatically after the “second
hit” of GBS. Id. at 92. He concluded, however, that “her ongoing symptoms are more likely
due to diabetic neuropathy.” Id. (all capitals in the original).
Petitioner received no treatment for her symptoms during the remainder of 2018
and 2019. She continued to work without interruption until her retirement in January 2020.
When seen by her PCP, Dr. Megard, again on May 15, 2020, Petitioner had received no
treatment for almost two years. Because the medical record from this visit contains scant
information, it is difficult to ascertain Petitioner’s condition at that time. See Exhibit 13 at
2.
A few days later Dr. Megard provided a letter, upon which Petitioner relies, stating
his strong opinion that Petitioner’s symptoms were due to her GBS and not diabetic
neuropathy. Exhibit 13 at 1. He based his opinion on Petitioner’s lack of symptoms prior
to vaccination, the sudden onset of her neuropathy, and lack of change in her symptoms
with improved diabetic control. Id. Dr. Megard prescribed PT, but it appears Petitioner
attended only one session, on August 12, 2020. Exhibit 15. In his letter, Dr. Megard
addresses the symptoms Petitioner experienced after vaccination in their totality, opining
that all were related to her GBS. He does not differentiate between the symptoms she
experienced in the fall of 2017 and those she experienced later, however, nor does he
address the results of the two EMGs and Thermoregulatory sweat test performed in 2018.
6
Based upon the record as a whole, I find that the severity and duration of
Petitioner’s GBS symptoms warrant a significant pain and suffering award, but not quite
at the level requested by Petitioner. The record establishes that her treatment and
symptoms course did not rise to the level of what the petitioners in the three cited cases
experienced. For example, although the Johnson petitioner endured a five-day
hospitalization with an uncomplicated treatment similar to that experienced by Petitioner,
that individual was later unable to return to work, even on a limited basis, until almost
three months after her discharge. Johnson, 2018 WL 5024012, at *3. And more than three
months after her hospitalization, the Johnson petitioner was working only half days, three
times a week. Id. at *4. Also unable to drive or work for three months following his illness,
the Fedewa petitioner experienced a hospitalization which was longer in duration and
involved difficulties related to his lumbar puncture, IV drip, and EMG. Fedewa, 2020 WL
1915138, at *2. Following her hospitalization, the Dillenbeck petitioner attended PT for
more than a month. Dillenbeck, 2019 WL 4072069, at *2. Furthermore, the Dillenbeck
petitioner’s termination from a job she enjoyed was found to be partially attributed to her
GBS. Id. at *12-13.
I also do not give the same weight to the opinion of Dr. Megard that Petitioner
urges. Although I credit Petitioner’s argument that as her PCP, Dr. Megard would have
increased familiarity with her overall health, I note that his opinion was provided 30
months after Petitioner’s hospitalization and almost two years since he last treated
Petitioner’s symptoms. Additionally, this later visit with Dr. Megard occurred almost one
year after Petitioner filed her vaccine case and simultaneously with my ruling finding
Petitioner entitled to compensation.
Dr. Cutsforth-Gregory, by contrast, has provided a somewhat more reliable treater
evaluation of Petitioner’s overall condition. Dr. Cutsforth-Gregory does not dispute that
Petitioner had GBS after receiving a flu vaccine in October 2017, or that a portion of her
ongoing symptoms could be attributed to that illness. But he observes that Petitioner
simultaneously experienced diabetic neuropathy, previously asymptomatic, with the
majority of her symptoms in 2018 and later. Dr. Cutsforth-Gregory also provided this
treatment-oriented opinion in July 2018, after reviewing Petitioner’s current test results
and thus not with any eye toward litigation. Additionally, as a neurologist Dr. Cutsforth-
Gregory possesses additional expertise which strengthens the persuasive value of his
assessment, over the opinion provided by Dr. Megard.
As I explained previously to the parties during the expedited hearing, it is my view
that GBS pain and suffering awards generally should be higher than those awarded to
petitioners who have suffered a less frightening and physically-alarming injury, such as
SIRVA. Thus, Petitioner’s pain and suffering award should be greater than the $82,500.00
proposed by Respondent. Weighing all of the above, I deem an award of $160,000.00 to
7
be fair and reasonable.
V. Appropriate Compensation for Petitioner’s for Lost Wages
Respondent agrees that Petitioner should be compensated for the six hours of
unpaid leave she used during her illness, but opposes any award for the 74 additional
hours of PTO. Opp. at 1, 9, 13. In his damages brief, Respondent argued that, because
her employer already paid her for this time, Petitioner would receive compensation twice
if this amount is included in the damages awarded in this case. Id. at 8-9. To support the
argument that she be compensated for the full 80 hours of leave, Petitioner provided a
third affidavit asserting that she would have received the cash value of this time when she
later retired, plus a document suggesting that her employer allows employees to
accumulate leave for a period of 20 years. Exhibit 18 at 6-7; Exhibit 20 at 1.
During the expedited hearing, Respondent’s counsel also argued that it would be
speculative to award any compensation for this time because there was no way to
guarantee that Petitioner would not have used this time for illness or vacation prior to her
retirement. She also asked that I reduce the amount requested to its net present value if
I decided to award any portion of the amount requested for Petitioner’s PTO. The $109.59
Respondent proposed for Petitioner’s six hours of unpaid leave has been reduced to
reflect the actual amount Petitioner would receive (after taxes and other withholding).
Petitioner’s counsel stressed that, in non-vaccine cases, injured parties are routinely paid
the value of any missed work.
As I informed the parties during the expedited hearing, there is little discussion of
this issue in prior vaccine cases. I did determine that in a fairly old case, former Special
Master Hastings had included the value of a petitioner’s sick leave and vacation days
when calculating the amount of lost wages to be awarded. See Davies v. Sec’y of Health
& Human Servs., 92-0800V (Fed. Cl. Spec. Mstr. Jan. 14, 1994). There, it appears to
have been determined that the petitioner had established that she would be allowed to
carryover this time, and thus would have received a cash award for unused time when
she terminated her employment.11
On this matter, both sides have made reasonable points. Respondent correctly
observes that it is speculative to assume Petitioner might not have needed to use the time
she took while absent due to GBS, for vacation or some other illness. But Petitioner also
has offered some credible evidence that her employer likely would reimburse unused
11
As I informed the parties during the expedited hearing, however, because the decision was issued more
than 25 years ago, a full copy of it was never posted to the Court’s website, and it otherwise cannot be
found on any legal services website.
8
sick/vacation time, and Davies suggests that this kind of time lost due to a vaccine-caused
injury is reimbursable as damages in a Program case. Putting all of the above together, I
find that it is reasonable to award Petitioner one-half of the PTO she expended during her
illness. The parties have agreed that $798.75 is a reasonable estimate of the net present
value of the 37 hours of PTO plus hours of unpaid leave I am awarding. See Informal
Remark, dated Mar. 11, 2021 (regarding March 5, 2021 email exchange). I will
incorporate that sum in the final damages total amount.
VI. Conclusion
For all of the reasons discussed above and based on consideration of the record
as a whole, I find that $160,000.00 represents a fair and appropriate amount of
compensation for Petitioner’s past/actual pain and suffering.12 I do not find that an
award for future pain and suffering is warranted in this case. I also find Petitioner
entitled to compensation in the amount of (a) $798.75, reflecting the net amount of
the six hours of unpaid leave and one-half of the other PTO expended by Petitioner,
and (b) the amount of expenses agreed upon by the parties, $5,391.10.
I therefore award Petitioner a lump sum payment of $166,189.85,
representing $160,000.00 for her actual pain and suffering, $798.75 for her actual
lost wages, and $5,391.10 for her actual 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
12
Since 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)).
13
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
9