VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_17-vv-00122
Package ID: USCOURTS-cofc-1_17-vv-00122
Petitioner: Chelsea Bossenbroek
Filed: 2017-01-27
Decided: 2024-07-10
Vaccine: influenza
Vaccination date: 2015-10-22
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 66209

AI-assisted case summary:
On January 27, 2017, Chelsea Bossenbroek filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging that an influenza vaccine administered on October 22, 2015, caused her to suffer a shoulder injury related to vaccine administration (SIRVA). The respondent, the Secretary of Health and Human Services, initially contested the claim, arguing that Ms. Bossenbroek did not meet the six-month severity requirement for compensation. A hearing was held on December 13, 2018, after which the Special Master issued tentative findings that Ms. Bossenbroek had met the six-month duration requirement. Following further proceedings and unsuccessful settlement discussions, the Special Master issued a Ruling Finding Facts and Granting Entitlement to Compensation on April 16, 2019, establishing that Ms. Bossenbroek's injury was caused by the vaccine and met the duration criteria. The case then proceeded to determine the amount of compensation. On April 3, 2020, Special Master Christian J. Moran issued a decision awarding Ms. Bossenbroek $62,901.49, comprising $50,000 for past pain and suffering, $11,692.19 for future pain and suffering, and $1,209.30 for unreimbursed expenses. Ms. Bossenbroek filed a motion for review with the Court of Federal Claims, arguing that the Special Master erred in his calculation of damages, particularly by considering awards from non-vaccine cases and by failing to adequately explain the calculation of future pain and suffering. On January 25, 2024, Senior Judge Victor J. Wolski issued an opinion finding that the Special Master erred only in failing to fully articulate the basis for the future pain and suffering award and remanded the case for further proceedings. On June 18, 2024, Special Master Christian J. Moran issued a decision adopting a joint stipulation between the parties, awarding a total of $66,209.30. This final award resolved all remaining disputes.

Theory of causation field:
Petitioner Chelsea Bossenbroek filed a petition alleging that an influenza vaccine administered on October 22, 2015, caused a shoulder injury related to vaccine administration (SIRVA). The respondent contested entitlement, arguing the injury did not meet the six-month duration requirement. The Special Master, Christian J. Moran, found entitlement, concluding the injury was caused by the vaccine and met the duration criteria, referencing the Qualifications and Aids to Interpretation (QAI) to the Vaccine Injury Table. The case proceeded to damages, where the Special Master initially awarded $62,901.49. This award was challenged, and the Court of Federal Claims remanded for further explanation on future pain and suffering calculations. Ultimately, the parties reached a joint stipulation for a final award of $66,209.30, issued on June 18, 2024.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_17-vv-00122-1
Date issued/filed: 2019-05-23
Pages: 3
Docket text: PUBLIC ORDER/RULING (Originally filed: 4/16/19) regarding 69 Ruling on Entitlement. Signed by Special Master Christian J. Moran. (MRG) Service on parties made.
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Case 1:17-vv-00122-VJW Document 72 Filed 05/23/19 Page 1 of 3
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
* * * * * * * * * * * * * * * * * * * * *
CHELSEA BOSSENBROEK, *
* No. 17-122V
Petitioner, * Special Master Christian J. Moran
v. *
*
SECRETARY OF HEALTH * Issued: April 16, 2019
AND HUMAN SERVICES, *
* SIRVA, flu vaccine, six-month
Respondent. * requirement.
* * * * * * * * * * * * * * * * * * * * *
RULING FINDING FACTS
AND GRANTING ENTITLEMENT TO COMPENSATION1
Ms. Chelsea Bossenbroek claims that a flu vaccine she received on October
22, 2015 caused her to suffer a shoulder injury compensable under the Vaccine
Act. Petition ¶ 3. Respondent contests Ms. Bossenbroek’s claim for compensation
on the basis that the evidence in the record “does not provide a reliable basis upon
which to conclude that the symptoms she experienced in October 2015 continued
for six months.” Resp’t’s Rep., filed Oct. 26, 2017, at 4-5.
To resolve the parties’ dispute, the undersigned set Ms. Bossenbroek’s case
for a hearing. Prior to the hearing, the undersigned sought clarification from
respondent regarding his position in the case. See order, issued Nov. 2, 2018. In
his response clarifying his position, respondent confirmed that preponderant
evidence supported the claim that petitioner suffered from shoulder pain that
1 Because this ruling contains a reasoned explanation for the action in this case, the undersigned
is 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 ruling will be available to
anyone with access to the internet. In accordance with Vaccine Rule 18(b), petitioners have 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, the undersigned agrees that the
identified material fits within this definition, the undersigned will redact such material before
posting the ruling.

Case 1:17-vv-00122-VJW Document 72 Filed 05/23/19 Page 2 of 3
started immediately following vaccination, but that she was precluded from
compensation on the basis that she did not meet the six-month severity requirement
of the Act. Resp’t’s Status Rep., filed Dec. 4, 2018, at 4-5 (referencing 42 U.S.C.
§ 300aa-11(c)(1)(D)(i)).
A one-day hearing was held in Grand Rapids, Michigan, on December 13,
2018, to resolve the dispute regarding the six-month severity requirement. At the
hearing, testimony was taken from petitioner, Ms. Chelsea Bossenbroek, and four
affiants, Mr. Zachary Snyder, Ms. Greta Bossenbroek, Mr. James Bossenbroek,
and Ms. Kyle Dickinson. At the end of the hearing, the undersigned tentatively
found that Ms. Bossenbroek had met her evidentiary burden of establishing that her
shoulder pain lasted longer than six months. The basis for that finding was
expounded upon in an order issued on January 3, 2019. The critical aspect of the
analysis turned on the undersigned’s finding that the respondent incorrectly
interpreted the medical records to mean that Ms. Bossenbroek had no lingering
shoulder issues as of December 15, 2015. See order, issued Jan. 3, 2019, at 2. In
contrast with respondent’s interpretation, the undersigned interpreted the records to
mean that while Ms. Bossenbroek’s shoulder was much improved and that while
she no longer wanted to pursue out-patient physical therapy treatments, she
continued to experience a small amount of continued shoulder pain / discomfort
that was attributable to an underlying pathology that started immediately following
the October 22, 2015 vaccination. Id. at 2-3.
The undersigned issued the findings tentatively to allow the parties to
explore informal resolution while still providing the opportunity for either party to
supplement the record based on information elicited at hearing. Id. at 3.
Since the January order finding tentative facts, the parties have indicated that
settlement remains unlikely at this time. See Pet’r’s Rep., filed Mar. 22, 2019.
During a status conference held on April 9, 2019, respondent confirmed that
without a ruling on entitlement, he would not be able to proceed further. During
the status conference, the parties confirmed that the evidentiary record, for the
purpose of entitlement, was complete. Accordingly, Ms. Bossenbroek’s claim is
ripe for adjudication.
Ms. Bossenbroek has presented preponderant evidence that she suffered a
shoulder injury related to vaccine administration. As the Secretary has conceded,
Ms. Bossenbroek’s shoulder pain started immediately following the administration
of the vaccine on October 22, 2015. See Resp’t’s Status Rep., filed Dec. 4, 2018,
at 1-2. The mechanism by which vaccination can result in injuries of this type are
2

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clearly explained by the Secretary himself in the Qualifications and Aids to
Interpretation (QAI) to the Vaccine Injury Table, promulgated by the Department
of Health and Human Services. See 82 Fed. Reg. 6303 (Jan. 19, 2017). Ms.
Bossenbroek’s injury is, by all accounts, consistent with the mechanism of
causation detailed in the QAI. Cf. Portee v. Sec'y of Health & Human Servs., No.
16-1552V, 2018 WL 5284599, at *5–7, 10 (Fed. Cl. Spec. Mstr. Sept. 14, 2018)
(granting compensation after analyzing petitioner’s claim of compensation for
SIRVA under the standards provided in the QAI). Accordingly, Ms. Bossenbroek
has presented preponderant evidence that her shoulder injury was caused-in-fact by
her vaccine.
Furthermore, for the reasons explained above and in the January 5, 2019
order finding tentative facts, Ms. Bossenbroek has presented preponderant
evidence that she meets the Act’s six-month severity requirement. Accordingly,
Ms. Bossenbroek is entitled to compensation.
Respondent shall file a status report by Friday, May 17, 2019, on progress
made towards resolving the damages aspect of the case.
IT IS SO ORDERED.
s/ Christian J. Moran
Christian J. Moran
Special Master
3

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DOCUMENT 2: USCOURTS-cofc-1_17-vv-00122-2
Date issued/filed: 2020-05-05
Pages: 51
Docket text: PUBLIC DECISION (Originally filed: 4/3/2020) regarding 98 DECISION of Special Master. Signed by Special Master Christian J. Moran. (abs) Service on parties made.
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Case 1:17-vv-00122-VJW Document 101 Filed 05/05/20 Page 1 of 51
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
* * * * * * * * * * * * * * * * * * * * * *
CHELSEA BOSSENBROEK, * No. 17-122V
* Special Master Christian J. Moran
Petitioner, *
v. * Filed: April 3, 2020
*
SECRETARY OF HEALTH * Compensation, SIRVA, pain and
AND HUMAN SERVICES, * suffering, discount rate
*
Respondent. *
* * * * * * * * * * * * * * * * * * * * * *
Leah V. Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
petitioner;
Linda S. Renzi, United States Dep’t of Justice, Washington, DC for respondent.
DECISION AWARDING COMPENSATION1
Chelsea Bossenbroek is entitled to compensation from the Vaccine Program
because a flu vaccination caused her a shoulder injury related to vaccine
administration (SIRVA). The parties dispute the reasonable amount of
compensation, particularly the compensation for pain and suffering. After
considering the Vaccine Act, appropriate precedent inside and outside of the
1 Because this decision contains a reasoned explanation for the action in this case, the
undersigned is 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 (http://www.cofc.uscourts.gov/aggregator/
sources/7). In accordance with Vaccine Rule 18(b), the parties have 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, the undersigned agrees that the identified
material fits within this definition, the undersigned will redact such material before posting the
decision.

Case 1:17-vv-00122-VJW Document 101 Filed 05/05/20 Page 2 of 51
Vaccine Program, as well as evidence here, the undersigned awards Ms.
Bossenbroek $62,901.49.
I. Vaccine Act
Congress enacted the Vaccine Act “[t]o stabilize the vaccine market and
facilitate compensation.” Bruesewitz v. Wyeth LLC, 526 U.S. 223, 228 (2011).
While promoting these goals, this legislation contains a series of limitations and
trade-offs. Zatuchni v. Sec’y of Health & Human Servs., 516 F.3d 1312, 1322
(Fed. Cir. 2008).
Some of those compromises appear in the section defining the scope of
compensation available to petitioners. 42 U.S.C. § 300aa–15. Within section 15,
paragraph (a) authorizes types of compensation available. Heinzelman v. Sec’y of
Health & Human Servs., 681 F.3d 1374, 1379 (Fed. Cir. 2012). Within paragraph
(a), four numbered subparagraphs permit compensation for (1) unreimbursed
expenses, (2) death, (3) lost earnings, and (4) pain and suffering. Other paragraphs
within section 15 limit potential damages. For example, § 15(d)(1) prohibits
punitive or exemplary damages. Section 15(d)(2) restricts, with some exceptions,
compensation to benefit the person who suffered the vaccine-related injury.
Sections 15(g) and 15(h) make the Vaccine Program a secondary payer, except to
Medicaid. “Thus, the Vaccine Act provides a generous compensation program, but
with limits . . . to that generosity.” Griglock v. Sec’y of Health & Human Servs.,
687 F.3d 1371, 1376 (Fed. Cir. 2012).
After Congress enacted the Vaccine Act, special masters in the early years of
the Vaccine Program interpreted many aspects of section 15 to determine whether
and how to compensate petitioners. Today, special masters and the parties
continue to follow these early decisions. For example, to determine the reasonable
amount of compensation for pain and suffering, special masters consider a three-
factor test originally set out in 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). See Pet’r’s Br. at
8; Resp’t’s Br. at 4 (both citing McAllister). These factors are: (1) the ability to
understand an injury, (2) the degree of the injury’s severity, and (3) the anticipated
duration of the injury.
One question requiring resolution was how to interpret § 15(a)(4). The
Vaccine Act states “Compensation . . . shall include the following: . . . (4) For
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actual and projected pain and suffering and emotional distress from the vaccine-
related injury, an award not to exceed $250,000.”
Special masters generally interpreted this provision as presenting a sliding
scale on which people with the most severe pain and suffering received the highest
amounts and people with less severe pain and suffering received relatively lower
amounts. In other words, the damages for pain and suffering were placed on a
continuum. See, e.g., Graves v. Sec’y of Health & Human Servs., No. 02-1211V,
2012 WL 1611578, at *2 (Fed. Cl. Spec. Mstr. Apr. 17, 2012), mot. for rev.
granted, 100 Fed. Cl. 579 (2013).
However, in 2013, petitioners challenged this approach. Judge Merow at the
Court of Federal claims held: “the statutory language speaks of a singular award
not to exceed $250,000, not the forcing of all suffering awards into a global
comparative scale in which the individual petitioner’s suffering is compared to the
most extreme cases and reduced accordingly.” Graves v. Sec’y of Health &
Human Servs., 100 Fed. Cl. 579, 589-90 (2013). As Ms. Bossenbroek points out,
the Secretary “did not file an appeal of Judge Merow’s opinion or challenge it in
any way.” Pet’r’s Br. at 9. Thus, “[a]ll vaccine cases assessing pain and suffering
now employ the Graves analysis.” Id. at 8.
Because the special master in Graves had erred in interpreting the statute, the
judge made his own findings of fact. See 42 U.S.C. § 300aa–12(e)(2)(B). The
Court cited approximately five cases in which judges at the Court of Federal
Claims had determined pain and suffering in various contexts. Graves, 109 Fed.
Cl. at 592-93. The Court also surveyed “other pain and suffering and emotional
distress awards in other non-Vaccine Act cases” and cited nine of them. Id. at 595-
96. Based upon this analysis, the Court found the child-vaccinee’s emotional
distress exceeded $250,000 and therefore awarded that amount. Id. at 596.
II. SIRVA and SPU
By 2014, hundreds of petitioners were claiming a vaccination injured their
shoulder. The Secretary was often conceding that these petitioners were entitled to
compensation, leading special masters to issue short rulings finding entitlement.
See, e.g., Bowman v. Sec’y of Health & Human Servs., No. 13-807V, 2014 WL
3486773 (Fed. Cl. Spec. Mstr. June 17, 2014).
This surge in the number of cases led former Chief Special Master Vowell to
create the special processing unit (SPU). SPU started July 1, 2014. At the
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direction of the chief special master, staff attorneys oversee the parties’
development of relatively simple cases, including those involving shoulder
injuries.
Efficient processing of petitions alleging shoulder injuries became
increasingly vital after the Secretary proposed to modify the Vaccine Table to
recognize SIRVA. 80 Fed. Reg. 45132 (July 29, 2015). Since the table
modification, SIRVA is the most commonly alleged injury, constituting roughly
one-half of all petitions filed.
The chief special master designed SPU to process straightforward cases. For
example, in numerous cases, the Secretary concedes that a petitioner meets the
regulatory definition for SIRVA and the chief special master issues a ruling finding
entitlement. This ruling finding entitlement to compensation does not end the case
because the amount of compensation must be determined.
After a ruling finding entitlement, damages can be determined via three
methods. First, the parties can discuss the various components and agree that the
evidence supports an award of compensation in a particular amount, such as
$100,000. When the parties agree, the Secretary submits a proffer and the special
master issues a decision adopting the proffer. Second, after discussions, the parties
find they disagree about what the evidence shows but find that a compromise is
appropriate. For example, a petitioner could argue that a reasonable amount of
compensation is $100,000, the Secretary could argue that a reasonable amount of
compensation could be $50,000, and the parties would compromise at $75,000. In
this situation the parties submit a stipulation. A stipulation is required because
only the authorized representative of the Attorney General may compromise a
claim involving the United States. 28 U.S.C. § 516. Third, the parties determine
that they both disagree about the amount and are unable or unwilling to
compromise. To continue the example from above, a petitioner might refuse to
reduce her demand below $100,000 and/or the Secretary refuses to increase his
offer above $50,000. In this situation the parties submit the case (or a specific
issue) to a special master for resolution.
Cases in SPU have resolved via all methods. Most commonly, the parties
proffer the case. The use of a proffer means the parties agree that a reasonable
amount of compensation is a specific number.
Here, Ms. Bossenbroek and the Secretary dispute the persuasiveness of
proffers in previous cases. The Secretary sees the relatively widespread use of
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proffers as reflecting the accuracy of his views about the reasonable amount of
compensation. Cases that cannot be proffered, in the Secretary’s view, cannot be
proffered because a petitioner is overreaching. Resp’t’s Br. at 8.
Needless to say, Ms. Bossenbroek disagrees. She thinks that the government
uses the delay that has become unfortunately endemic in the Vaccine Program to
propose unreasonably small amounts. Petitioners, according to Ms. Bossenbroek,
face a difficult choice: either to accept wholesale the small amount that the
government is offering or to reject the Secretary’s meager offer prolonging the
litigation with a hope the special master will award more compensation. See
Pet’r’s Br. at 17; Pet’r’s Reply at 12-13. Unlike a petitioner who might be
desperate for any compensation, Ms. Bossenbroek declined the Government’s offer
to proffer the case.
In theory, the parties’ inability to agree to an amount of compensation would
not preclude them by resolving the case through a stipulation. To repeat, a
stipulation represents a compromise. Some SPU/SIRVA cases have resolved by
stipulation.
However, stipulations are rare. According to statistics that the Department
of Justice presented at a recent judicial conference, in the year beginning October
1, 2018, in the 268 cases Secretary conceded were entitled to compensation, two
cases resolved with a stipulation. More recent statistics that the Department of
Justice delivered to the Advisory Committee on Childhood Vaccines are
consistent. Of the 67 cases that the government conceded were entitled to
compensation and that were adjudicated between November 16, 2019, and
February 15, 2020, zero cases were resolved via a settlement. See appendix 1.
The rarity of stipulations in SPU/SIRVA cases seems to be entirely (or
nearly entirely) due to a policy from the government. As the Deputy Director of
the Torts/Constitutional and Specialized Torts Litigation Section in the Civil
Division of the Department of Justice—essentially the day-to-day leader of the
Vaccine Program litigation for the Department of Justice—explained at the recent
Judicial Conference, the Government is willing to proffer a SIRVA case for the
amount the Government believes is the case’s full value provided the petitioner
agrees. The Government will not stipulate to an amount of pain and suffering
above the amount the Government has determined is reasonable. To refer to the
earlier example, if the Government believes $50,000 is the amount of
compensation for pain and suffering and the petitioner believes $100,000 is the
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amount of compensation for pain and suffering, the government will not
compromise at $75,000.2
For Ms. Bossenbroek’s case, the parties have not resolved the amount of
compensation through a proffer or a stipulation. See Resp’t’s Br. at 4 (asserting
that Ms. Bossenbroek rejected the Secretary’s offer to proffer the case). The
remaining method is a resolution by a special master. This evaluation begins with
a review of the facts.
III. Events in Ms. Bossenbroek’s Life and Procedural History
Ms. Bossenbroek was born in 1986. Exhibit 24 at 160. In 2009, she started
attending law school and began working for a local attorney. Exhibit 20 at 1; Tr.
72.3 In 2013, she was admitted to the bar for the State of Illinois. Exhibit 20 at 17;
exhibit 3 at 2. She then got married. She liked gardening and home repair. Tr. 39,
86.
In August 2015, she gave birth to her first child. Exhibit 2 at 25; exhibit 23
at 1. For the first few weeks, Ms. Bossenbroek breast-fed her baby without any
problems. Exhibit 2 at 47; exhibit 9. She also returned to her work as an attorney.
Exhibit 23 at 9.
Ms. Bossenbroek received the flu vaccine on October 22, 2015. Because of
an error in how the vaccine was administered, Ms. Bossenbroek received two
doses of the vaccine. Exhibit 1 at 1-3; exhibit 2 at 41-43; exhibit 7. These
vaccinations caused Ms. Bossenbroek’s shoulder injury.
Ms. Bossenbroek informed her boss that she was having shoulder pain on
November 2, 2015. She told him that she had consulted “Dr. Google.” Exhibit 13.
The following day, November 3, 2015, Ms. Bossenbroek saw a doctor in the
office of her primary care physician. Ms. Bossenbroek said that she had been
having pain since October 22, 2015, the day of the vaccination. Exhibit 2 at 126-
27. The doctor’s examination revealed minimal swelling. Anterior rotation of the
2 Whether this policy advances the interest of the United States is not for a special master
to decide because Congress authorized the Attorney General and any delegatees to conduct
litigation on behalf of the United States.
3 “Tr.” refers to the transcript from the December 13, 2018 hearing.
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shoulder elicited pain. The doctor ordered an ultrasound and referred Ms.
Bossenbroek to an orthopedist. Id. at 41-44. The November 4, 2015 ultrasound
was normal. Id. at 125. Around this time, Ms. Bossenbroek posted a picture to
social media stating that her son naps only in her arms. Exhibit 23 at 24.
Ms. Bossenbroek saw the orthopedist to whom she had been referred,
Lawrence Lieber, on November 11, 2015. She reported that she was having left
shoulder pain that began with the vaccination. Exhibit 2 at 31, 118. Dr. Lieber
noted tenderness in the shoulder area and pain at extremes of motion. He referred
her to physical therapy. Exhibit 2 at 31-33.
The physical therapy sessions began on November 22, 2015. Ms.
Bossenbroek informed her physical therapist that her left shoulder had been “really
sore” after her flu vaccination. Ms. Bossenbroek also said she had had one episode
of “numbness/tingling/weakness,” which had resolved. Ms. Bossenbroek stated
she was having trouble sleeping and experiencing discomfort when using a
computer during her job. Ms. Bossenbroek rated her pain between 2/10 and 6/10.
Exhibit 2 at 23-25.
In the first physical therapy session, the therapist conducted an examination
finding tenderness in the anterior and lateral aspect of Ms. Bossenbroek’s shoulder.
Ms. Bossenbroek also had decreased range of motion and decreased strength. Her
Neer’s and Hawkin’s impingement tests were positive. Id. at 24. The therapist
recommended additional therapy, one or two times per week for a duration of 10
weeks. Id. at 25
In the second physical therapy session, Ms. Bossenbroek stated that she was
not taking any medication for pain. She also informed the therapist that she had
researched the mechanism of her injury. Exhibit 2 at 20.
In early December, Ms. Bossenbroek had four more physical therapy
sessions, making the total number of physical therapy sessions six. She was
discharged from physical therapy on December 15, 2015, which is approximately
two months after the vaccination. Exhibit 2 at 3.
In the final physical therapy session in 2015, Ms. Bossenbroek reported that
she was having “no pain at all” and rated her pain as 0/10. She could also hold her
child without feeling any pain. The physical therapist rated the range of motion of
her left shoulder as 175 degrees for flexion (increased from 160 degrees) and 180
degrees for abduction (increased from 170 degrees). While the physical therapist
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concluded that Ms. Bossenbroek had reached most of her goals, she did not have
full strength in her mid traps. The therapist discharged her with directions to
maintain her home exercise program. Exhibit 2 at 3-4; see also Tr. 18-20, 48, 53,
150.
By December 20, 2015, Ms. Bossenbroek was purchasing formula to feed
her son. Exhibit 10. As discussed below, Ms. Bossenbroek attributes the use of
formula to pain from her shoulder injury interfering with her ability to breast-feed.
Ms. Bossenbroek attested that the winter of 2015-16 was a very trying time
for her. She was a new mom who was getting very little sleep and she was in pain.
Exhibit 7 (affidavit) ¶ 6. She was able to manage her pain by doing her exercises
or yoga at home 3 to 4 times per week. Exhibit 8 (statement).
Regardless of any pain, Ms. Bossenbroek continued with her life. She
traveled to Philadelphia to visit family. Exhibit 24 at 92; Tr. 96-97. In spring
2016, Ms. Bossenbroek and her husband decided to move from Illinois to Grand
Rapids, Michigan, where they had both grown up. Ms. Bossenbroek joined her
family’s company, which manages campgrounds. Exhibit 8; exhibit 23 at 1; Tr.
77-78.
When Ms. Bossenbroek, her husband, and their friends were packing up the
Illinois residence, Ms. Bossenbroek experienced pain in her shoulder. Others
carried the heavy boxes and painted rooms in their new home. Tr. 23-25, 54.
For about nine months, Ms. Bossenbroek worked at two jobs. She primarily
worked for her family’s business. She also remotely oversaw the completion of a
major project for the law firm in Illinois. Tr. 99; see also exhibit 20 at 4 (weekly
earnings from the Illinois law firm declined).
For her family’s business, Ms. Bossenbroek was very busy. Over the course
of about six weeks from mid-May 2016 to end of June 2016, she traveled on four
different trips to five states. Exhibit 11 ¶ 17; Tr. 66-69. She took one trip in
August and another trip in September in that year as well. Exhibit 11 ¶ 17; Tr. 31.
Ms. Bossenbroek accepted an offer for a free gym membership to attend
yoga classes starting July 18, 2016. She attended yoga about every other day for
approximately two weeks. When the trial membership expired, Ms. Bossenbroek
declined to extend it because it cost too much. Exhibit 14 at 2; Tr. 26, 42, 101-02.
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Through all of 2016, Ms. Bossenbroek did not seek any medical attention.
During the hearing, Ms. Bossenbroek testified that she simply did everything with
pain. Tr. 103. For example, Ms. Bossenbroek attended a family vacation in Key
West, Florida. Tr. 102-03; exhibit 24 at 46. Ms. Bossenbroek’s husband explained
that she did not have any medical appointments because she was really busy. Tr.
156. However, he recognized that she was sufficiently independent that she could
have scheduled an appointment if she wished. Tr. 153.
For the first time in more than a year, Ms. Bossenbroek saw a doctor on
January 4, 2017. The doctor was David Kaminski, an orthopedist. Ms.
Bossenbroek told him that she had a “frozen shoulder” from a flu vaccination in
2015. Ms. Bossenbroek also reported that in the last week she experienced “dull
and intermittent” symptoms. She rated her pain as “2/10 on average, 1/10 at best
and 4/10 at worst.” Exhibit 6 at 1. In her oral testimony, Ms. Bossenbroek
described Dr. Kaminski as “dismissive” of her complaints. Tr. 106; see also Tr.
34, 59.
In Dr. Kaminski’s examination, he found a full range of motion and mild
weakness with infraspinatus testing and minimal discomfort with Spurling’s
maneuver and O’Brien testing. Ms. Bossenbroek had good strength in her deltoid.
Dr. Kaminski diagnosed her with “chronic shoulder pain” and recommended
simple home exercises with a band. Exhibit 6 at 2.
About one week later, Ms. Bossenbroek traveled to California for work.
Exhibit 11 ¶ 17. Then, the following week, she was in Epcot for a vacation.
Exhibit 23 at 74; Tr. 107.
Through her attorney, Ms. Bossenbroek filed her petition on January 27,
2017. She alleged that the October 22, 2015 flu vaccination injured her shoulder.
Ms. Bossenbroek’s case was assigned to SPU until the Secretary filed his report on
October 26, 2017.
Ms. Bossenbroek did not seek medical attention for her shoulder in the
remainder of 2017. She regularly participated in yoga from February 16, 2017,
through June 8, 2017. Exhibit 14 at 2. Ms. Bossenbroek traveled some in 2017,
but, overall, she took fewer trips than in 2016.
In May 2017, Ms. Bossenbroek became pregnant with her second child.
Exhibit 11 ¶ 11.e; Tr. 34, 108. Ms. Bossenbroek’s pregnancy seems not to have
affected her shoulder but the pregnancy caused her to curtail her yoga practice.
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When she was coming close to the end of her pregnancy, Ms. Bossenbroek
told the midwife who was following her that she was concerned about her shoulder
problem interfering with her ability to breast-feed just as it had with her first child.
Accordingly, the midwife referred Ms. Bossenbroek to a physical therapist.
Exhibit 18 ¶ 1; exhibit 12; Tr. 35, 60.
Ms. Bossenbroek gave birth to her second child in February 2018. Because
she was using her left shoulder more frequently, she experienced more pain.
Exhibit 18 (affidavit) ¶ 2; exhibit 23 at 109. In her six-week postpartum
appointment with her obstetrician, Ms. Bossenbroek reported that she was breast-
feeding and doing well. She also requested a referral for physical therapy. Exhibit
19.
This round of physical therapy began on March 23, 2018. In the first
session, Ms. Bossenbroek reported breast-feeding was painful. Ms. Bossenbroek
told the therapist that her “frozen shoulder [was] due to flu shot, wrong spot, in the
bursa. This was in 2015.” Exhibit 15 at 1-4. Over the next few physical therapy
sessions, Ms. Bossenbroek continued to report shoulder pain. However, the
physical therapy treated her for problems associated with giving birth. Ms.
Bossenbroek received little, if any, therapy on her shoulder. See Exhibit 22; Tr.
36, 63, 110.
Ms. Bossenbroek was discharged from physical therapy on August 18, 2018.
The therapist noted that she was doing well with the birth-related problems. The
therapist also recorded that Ms. Bossenbroek “at this time has primary complaint
of L shoulder pain. [She] is welcome back to Good Life Physical Therapy for L
shoulder rehabilitation.” Exhibit 25 at 5; Tr. 63.
Ms. Bossenbroek’s claim in the Vaccine Program progressed throughout
2018 with her periodically filing medical records and other documents. She was
also ordered to produce social media postings for the relevant time. Order, 2018
WL 4790383 (Sept. 4, 2018). After Ms. Bossenbroek filed the relevant documents,
a hearing was held in Grand Rapids, Michigan, on December 13, 2018.
The primary purpose of the hearing was to determine whether Ms.
Bossenbroek’s shoulder injury lasted long enough to fulfill the six-month statutory
requirement. See 42 U.S.C. § 300aa–11(c)(1)(D)(i). At the conclusion of the
hearing, the undersigned preliminarily determined that Ms. Bossenbroek’s
shoulder injury lasted more than six months. The undersigned memorialized this
finding in a Tentative Findings of Fact, issued on January 3, 2019. The
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undersigned linked the finding of six months of injury to the mild amount of pain
Ms. Bossenbroek was experiencing:
Although the medical records are somewhat ambiguous, the
records are consistent with Ms. Bossenbroek experiencing low-
level pain in her shoulder since vaccination. Though ongoing,
the pain does not appear to have significantly affected her
lifestyle since December 2015 and indeed the undersigned’s
findings rely on the premise that the pain Ms. Bossenbroek
continues to experience is, relatively, minor. Accordingly, as
noted in the bench ruling, Ms. Bossenbroek’s damages are
relatively modest. The undersigned hopes that this guidance
will help the parties resolve the case quickly and informally.
Tentative Findings of Fact at 3.
With the Tentative Findings of Fact, the parties attempted to resolve the case
informally. However, they did not. When the parties reached an impasse, the
undersigned issued a Ruling Finding Facts and Granting Entitlement. 2019 WL
2246726 (Apr. 16, 2019). This Ruling advanced Ms. Bossenbroek’s case into a
phase to determine the amount of compensation.
When the parties were attempting to resolve the amount of compensation,
Ms. Bossenbroek went to see another doctor, Matthew Axtman, on July 1, 2019.
Ms. Bossenbroek relayed her history of shoulder problems since the October 2015
flu vaccination and said that “eventually the physical therapy helped with her range
of motion as well as her pain, but she continued to have pain that lingered on into
the shoulder.” Exhibit 31 at 1. Dr. Axtman examined Ms. Bossenbroek and found
tenderness and impingement, but a normal range of motion. For both abduction
and flexion, the range of motion was 180 degrees. Id. at 2-3. Dr. Axtman
requested an MRI. The July 20, 2019 MRI was “unremarkable.” Id. at 6.
Ms. Bossenbroek returned to Dr. Axtman on August 8, 2019. She informed
him that she “has been able to perform all activities without restrictions, but she
will have an underlying nagging pain into the shoulder.” She said that “the
majority of her pain [is] if she is doing overhead activity.” Exhibit 31 at 5. After
Dr. Axtman examined her and reviewed the MRI, he concluded “the majority of
pain is stemming from an impingement syndrome of the shoulder on the
supraspinatus tendon. [He] discussed that there is nothing structurally … that is
damaging so she may continue with activities as tolerated.” Id. Ms. Bossenbroek
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declined a steroid injection because “she is not significantly limited.” Dr. Axtman
encouraged her to maintain her home exercise program. Id.
During Ms. Bossenbroek’s treatment with Dr. Axtman, efforts to conclude
her pending case continued. To resolve the parties’ stalemate with respect to an
appropriate amount of compensation for Ms. Bossenbroek’s pain and suffering, the
undersigned proposed a method of resolution colloquially known as “baseball
arbitration.” In this process, each party would submit one proposal, and the
undersigned would accept either one proposal or the other proposal. This structure
might encourage the parties to moderate their demands and offers. Order, issued
July 5, 2019.
Ms. Bossenbroek supported this proposal. Pet’r’s Mem., filed July 16, 2019.
However, the Secretary did not. Resp’t’s Mem., filed July 26, 2019. After
reviewing the submissions, the undersigned declined to use baseball arbitration and
set a schedule for filing briefs. Order, issued Dec. 20, 2019. Citing Graves, this
order requested that the parties provide information about (i) decisions from
outside the Vaccine Program about compensation for pain and suffering for
shoulder injuries, (ii) reasoned decisions from special masters about compensation
for pain and suffering for shoulder injuries, and (iii) any statistical information
based upon proffers and stipulations.
Both parties filed initial briefs on February 7, 2020.4 The Secretary
provided an appendix, listing cases from outside the Vaccine Program about pain
and suffering; Ms. Bossenbroek did not. Each party filed a reply brief on February
24, 2020. Thus, the case is ready for adjudication.
IV. Analysis
The parties dispute three items of compensation. The most significant area
of dispute is the reasonable amount of compensation for past pain and suffering.
This item is resolved in section A below. The two other areas, the compensation
for future emotional distress and unreimbursed expenses, are evaluated in section
B and C, respectively.
4 Ms. Bossenbroek filed a corrected brief on February 21, 2020, and this decision refers
to the corrected brief.
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A. Past Pain and Suffering
Ms. Bossenbroek argues that the undersigned “should make an independent
judgment of pain and suffering after reviewing the record as a whole and applying
the Graves/McAllister factors.” Pet’r’s Br. at 18. “Independence,” in this context
according to Ms. Bossenbroek, means not considering proffers or stipulations and
not considering cases from outside the Vaccine Program. Id. at 14-18. To Ms.
Bossenbroek, those adjudications are “not relevant.”
Ms. Bossenbroek is mistaken. The primary example contradicting Ms.
Bossenbroek’s assertion is Graves, a case that Ms. Bossenbroek states “has become
the law of the Program.” Id. at 8. In determining a reasonable amount of pain and
suffering for a child-vaccinee who died approximately 40 days after vaccination,
the judge looked to non-Vaccine Act cases in which estates were awarded
compensation for their decedent’s pain and suffering between a negligent act and
the unfortunate death. Graves, 109 Fed. Cl. at 595-96.
Rather than look to this aspect of Graves, Ms. Bossenbroek extracts a
different sentence. Ms. Bossenbroek quotes Graves as stating “it was clear that
Congress intended to be more generous than the civil court system.” Pet’r’s Br. at
9. While Ms. Bossenbroek accurately copies the words from the Graves opinion,
Graves, on this point, is not correct. Graves is quoting from the dissenting opinion
in the en banc Federal Circuit opinion, Cloer v. Sec’y of Health & Human Servs.,
654 F.3d 1322, 1350 (Fed. Cir. 2011) (en banc).5 As part of a dissenting opinion,
this statement carries no legal force. Prometheus Laboratory Inc. v. Mayo
Collaborative Services, 628 F.3d 1347, 1356 n.2 (Fed. Cir. 2017), rev’d on other
grounds, 566 U.S. 66, 70 (2012). Moreover, the Vaccine Act seems to contradict
the dissenting judges’ assertion. As noted above, the Vaccine Act limits recovery
in several ways compared to the civil court system, such as forbidding punitive
damages, restricting compensation only to the person who receives the vaccine,
and, most importantly for this case, capping pain and suffering at $250,000.
Consequently, in determining a reasonable amount of compensation for Ms.
Bossenbroek’s pain and suffering, the undersigned chooses to consider prior cases
that have awarded pain and suffering to people suffering shoulder injuries. See
5 To be fair to Ms. Bossenbroek, Graves did not note that its quotation came from a
dissenting opinion.
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Doe 34 v. Sec’y of Health & Human Servs., 87 Fed. Cl. 758, 767-68 (2009);
Ultimo v. Sec’y of Health & Human Servs., 28 Fed. Cl. 148, 152-53 (1993).
However, this choice does not resolve the issue entirely because a secondary
question is whether to consider cases inside or outside the Vaccine Program.
The short answer is to consider both. But the analysis begins with cases
outside the Vaccine Program. The assessment starts here for two reasons. First,
Ms. Bossenbroek fiercely argues that compensation awarded in Vaccine Program
cases from SPU is “substantially low,” Pet’r’s Br. at 16, or “artificially low.”
Pet’r’s Reply at 11. In Ms. Bossenbroek’s initial brief, she states Chief Special
Master Dorsey failed to account for a “Congressional mandate to compensate
generously.” However, for reasons explained above in connection with Graves,
Ms. Bossenbroek—not the chief special master—misunderstands the Vaccine Act.
While Ms. Bossenbroek essentially repeats her respectful disagreement with the
former chief special master in her reply brief, Ms. Bossenbroek adds a different
reason.
Ms. Bossenbroek argues that the series of cases from former Chief Special
Master Dorsey are built upon a flawed foundation.
Those early cases, which served as building blocks for the
remainder of [former Chief] Special Master Dorsey’s decisions
… were based on faulty data, including litigative risk
settlements in other SPU-SIRVA cases. With all due respect to
[former Chief] Special Master Dorsey, she failed to make any
distinction whatsoever between “settled” cases from one firm
(all three early cases were from the same firm) and cases that
were conceded (full value cases not settled on the basis of
litigative risk). She also failed to look at settlements and
proffers from other law firms, which in many cases were much,
much higher. This is why the cases decided by [former Chief]
Special Master Dorsey are artificially low.
Pet’r’s Reply at 11.
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There may be a grain of truth here.6 However, awards given in the Vaccine
Program, including SPU, are still informative.
One reason for looking at cases outside the Vaccine Program is that the
finder-of-fact is almost always a jury. The Supreme Court has endorsed a jury’s
wisdom. Juries are presumed to find facts competently and thoroughly. Francis v.
Franklin, 471 U.S. 307, 324 n. 9 (1985). The jury’s role is particularly important
in negligence cases. TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 450 (1976).
The collectivity of juries stands in contrast to the Vaccine Program in which
a single special master decides compensation for pain and suffering. The process
for determining pain and suffering is perhaps the most subjective decision a special
master makes. To be sure, special masters are qualified to make this difficult
decision. See Whitecotton v. Sec’y of Health & Human Servs., 81 F.3d 1099,
1104 (Fed. Cir. 1996). And, yet, when special masters could receive assistance,
why decline the help?
The survey of cases the Secretary presents contains useful information.7 As
noted above, in most cases, jurors assessed pain and suffering. In addition, the
number of cases (more than 50) is fair. While it is true that no two cases are
exactly alike, the number of cases tends to even out some differences.8 In this
survey, the mean award is $31,105.89, the median award is $13,000.00, and the
center of the interquartile range is $22,500.00. This information from the survey
tends to show that the former chief special master’s awards are more generous than
6 Ms. Bossenbroek fails to acknowledge that the former Chief Special Master considered
all the information that was available to her and then used that information as a background for
deciding each case individually. Thus, Ms. Bossenbroek’s criticism is worth, perhaps, a
peppercorn.
7 While Ms. Bossenbroek was encouraged to cite cases involving shoulder injuries from
outside the Vaccine Program, order issued Dec. 20, 2019, Ms. Bossenbroek declined. She stated
those cases are “entirely irrelevant.” Pet’r’s Reply at 7.
As explained in the text, cases from outside the Vaccine Program are relevant. Thus, the
survey of cases from the Secretary is reproduced as appendix 2 to this decision.
8 Strangely, but accurately, Ms. Bossenbroek points out “almost none of the cases involve
plaintiffs who have experienced shoulder injuries limited to the shoulder alone.” Pet’r’s Reply at
7. The inclusion of additional injuries suggests that the chart overvalues the pain and suffering
derived from only a shoulder injury.
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those awards made by juries in state-court litigation. See Nute v. Sec’y of Health
& Human Servs., No. 18-140V, 2019 WL 6125008, *8 (Fed. Cl. Spec. Mstr. Sept.
6, 2019) (presenting statistical information).
Within the realm of rulings and decisions from former Chief Special Master
Dorsey, one roughly analogous case is Knauss v. Sec’y of Health & Human Servs.,
No. 16-1372V, 2018 WL 3432906 (Fed. Cl. Spec. Mstr. May 23, 2018). There,
Mr. Knauss suffered pain and restricted movement in his shoulder for
approximately five months. He went to physical therapy 23 times and reported
that he was 94% improved and his pain level was 1.5/10. After considering these
factors, the former chief special master awarded $60,000 in compensation for pain
and suffering. 2018 WL 3432906, at *8.
Collectively, these cases provide a framework for evaluating the individual
circumstances of Ms. Bossenbroek’s case. The undersigned has reviewed all the
evidence, documentary and testimonial. The following points are especially
valuable.
• Ms. Bossenbroek was a new mom who was breast-feeding her child.
Exhibit 2 at 47. Approximately one month after vaccination Ms.
Bossenbroek told a physical therapist that she was having difficulty
holding her son. Exhibit 2 at 23. The pain was interfering with her
ability to breast-feed. Exhibit 7 (affidavit) ¶ 4.
• Within two weeks of the vaccination, Ms. Bossenbroek told her
supervisor that she was having severe shoulder pain. She emailed,
saying she had consulted “Dr. Google.” Exhibit 13.
• The ultrasound on November 4, 2015, was normal. Exhibit 2 at 125.
• In Ms. Bossenbroek’s second physical therapy visit, which was on
November 24, 2015, she stated that she was not taking any pain
medications. Exhibit 2 at 20.
• In Ms. Bossenbroek’s final physical therapy visit, which was on
December 15, 2015, she reported “no pain at all.” Exhibit 2 at 3.
This evidence suggests that the worst phase of Ms. Bossenbroek’s pain and
suffering was between the date of the vaccination (October 22, 2015) and the
discharge from physical therapy (December 15, 2015). Essentially, the worst of
her pain lasted two months.
16

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However, as the April 16, 2019 Ruling Finding Facts and Granting
Entitlement found, Ms. Bossenbroek was not completely recovered when she was
discharged. She continued to exercise at home with stretching bands and to do
yoga 3-4 times per week. Exhibit 8.
During all 2016, Ms. Bossenbroek did not seek any medical treatment. The
lack of treatment suggests, but does not establish absolutely, Ms. Bossenbroek’s
pain was minimal. If Ms. Bossenbroek were experiencing significant pain, she
probably would have sought relief from a medical professional. During 2016, any
shoulder pain did not prevent her from engaging in activities. She traveled for
pleasure. Exhibit 24 at 92 (January trip to Philadelphia), at 46 (October trip to Key
West). She worked as an attorney at two jobs, which overlapped for more than six
months. She traveled on six trips for work. She sold a house and moved. Even if
Ms. Bossenbroek required assistance with luggage (Tr. 30, 45) and could not carry
heavy moving boxes (Tr. 23-24), these inconveniences were relatively minor.
Moreover, while Ms. Bossenbroek said yoga classes helped, her participation at a
yoga studio ended when her free trial membership was not renewed due to
expense. See exhibit 14; Tr. 101.
This list of activities shows Ms. Bossenbroek was busy. She attempts to
explain that her busyness explains why she could not seek medical attention. See
Pet’r’s Reply at 2-3. Ms. Bossenbroek did sometimes place her children’s needs
ahead of her own. See Tr. 189. However, at some point, this argument must yield.
It is reasonable to believe that a person facing moderate pain on a nearly
continuous basis would seek treatment at some point. If Ms. Bossenbroek were
motivated, she could have found the time to see a doctor. See Tr. 153.
When Ms. Bossenbroek finally saw a doctor again, she told the orthopedist
her pain was 2/10. Exhibit 6 at 1. This visit was on January 4, 2017,
approximately three weeks before the petition was filed.
The remainder of 2017 resembled 2016, with one exception. Similarities
include: Ms. Bossenbroek traveled for work and pleasure, Ms. Bossenbroek
participated in yoga, and Ms. Bossenbroek did her home exercises approximately
three days per week for approximately 20 minutes each time. The only exception
was that in 2017, Ms. Bossenbroek became pregnant. Tr. 34.
The birth of Ms. Bossenbroek’s second child prompted Ms. Bossenbroek’s
midwife to refer her to physical therapy for her frozen shoulder. Exhibit 12;
exhibit 18 ¶ 1; Tr. 36, 60. In 2018, Ms. Bossenbroek had physical therapy, but the
17

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emphasis was on the pelvic pain from delivering a baby, not shoulder pain. Tr.
110; exhibit 15 at 1-4; exhibit 22 at 45; see also Resp’t’s Reply at 4. While at
discharge on August 13, 2018, Ms. Bossenbroek was invited to continue
rehabilitating her shoulder, she did not. Exhibit 25 at 5.
At the end of 2018, Ms. Bossenbroek, her husband, her sister, her father, and
a friend testified at a hearing. Although they focused on whether Ms. Bossenbroek
suffered an injury for more than six months, the witnesses testified about her
current pain as well.
After the hearing, there was again about a six-month gap in which Ms.
Bossenbroek did not seek medical attention. Complaining about shoulder pain
from her October 2015 flu vaccination, Ms. Bossenbroek sought treatment from an
orthopedist in July 2019. The orthopedist found tenderness but a normal range of
motion. He recommended an MRI. Exhibit 31 at 1-4. The MRI was
unremarkable. Id. at 6. In follow-up, the orthopedist recognized her pain, but Ms.
Bossenbroek declined a steroid injection, which could bring some relief. Exhibit
31 at 6.
This evidence suggests that $50,000 is a reasonable amount of compensation
for Ms. Bossenbroek’s past pain and suffering.
B. Future Pain and Suffering
In addition to compensating for past pain and suffering, a special master may
compensate for future pain and suffering. Section 15(a)(4). Awards for future
pain and suffering must be discounted to net present value. Section 15(f)(4)(A);
Youngblood v. Sec’y of Health & Human Servs., 32 F.3d 552 (Fed. Cir. 1994).
Ms. Bossenbroek is currently 34 years old. Citing a life expectancy
calculator from the Social Security Administration, Ms. Bossenbroek states her life
expectancy is an additional 52.2 years. Pet’r’s Br. at 9 (stating Ms. Bossenbroek is
expected to live to 85.5 years). Without citing any evidence for life expectancy,
the Secretary’s proposal for future pain and suffering stops after 48 years when
Ms. Bossenbroek is age 82. Resp’t’s Br., appendix A.
Besides the slight difference in life expectancy, the parties offer different
proposals for the other components of an award for future pain and suffering—the
amount per year and the net discount rate.
18

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Ms. Bossenbroek Secretary
Amount per Year $1,200 $300
Net Discount Rate 1% 2%
Ms. Bossenbroek’s ongoing pain is mild. In her most recent medical report,
Dr. Axtman stated that Ms. Bossenbroek declined a steroid injection because “she
is not significantly limited.” Exhibit 31 at 6. Therefore, a reasonable amount of
compensation is $300 per year, as the Secretary proposed.
However, for the net discount rate, the evidence aligns with Ms.
Bossenbroek’s position. Both parties were given an opportunity to present
evidence regarding the net discount rate. Order, issued Dec. 20, 2019. Ms.
Bossenbroek presented a report from Robert Cook, a professor of economics. Dr.
Cook opined that a net discount rate is 1%. Exhibit 32 at 5. The Secretary
declined the opportunity to present evidence. Resp’t’s Br. at 10. Thus, Ms.
Bossenbroek’s evidence is stronger than the Secretary’s (non-existent) evidence.
A reasonable amount of compensation for Ms. Bossenbroek’s future pain
and suffering is $11,692.19.
C. Unreimbursed Expenses
Finally, the parties dispute Ms. Bossenbroek’s out-of-pocket costs. Ms.
Bossenbroek requests $1,209.30. Exhibit 30. The Secretary agrees with $734.68,
disputing $474.62. The amount in dispute represents the cost of baby formula Ms.
Bossenbroek bought due to trouble breast-feeding. This cost is reasonable.
V. Conclusion
The October 22, 2015 flu vaccination injured Ms. Bossenbroek’s left
shoulder. A reasonable amount of compensation for this unfortunate injury is
$62,901.49.
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In the absence of a motion for review filed pursuant to RCFC Appendix B,
the clerk of the court is directed to enter judgment herewith.9
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
9 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.
20

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Appendix 1:
Statistical Information regarding Method of Resolution
Source: Department of Justice Presentations1
1 Information from the Office of Special Masters is either identical or nearly identical.

Case 1:17-vv-00122-VJW Document 101 Filed 05/05/20 Page 22 of 51
U.S. Court of Federal Claims
Judicial Conference
November 14, 2019
Catharine E. Reeves
Deputy Director, Torts Branch
U.S. Department of Justice 42

Case 1:17-vv-00122-VJW Document 101 Filed 05/05/20 Page 23 of 51
Statistics
Reporting Period: 10/1/18 – 9/30/19
II. Total Petitions Adjudicated this reporting period: 791
A. Compensated:
i. Cases conceded by HHS: 268
1. Decision awarding damages: 13
2. Decision adopting Proffer: 253
3. Decision adopting Settlement: 2
ii. Cases not conceded by HHS: 361
1. Decision awarding damages: 10
2. Decision adopting Proffer: 0
3. Decision adopting Settlement: 351
B. Not Compensated/Dismissed: 162
i. Decision dismissing Non-OAP: 159
ii. Decision dismissing OAP: 3
45

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Report from the
Department of Justice
March 6, 2020
Catharine E. Reeves
Deputy Director, Torts Branch
1

Case 1:17-vv-00122-VJW Document 101 Filed 05/05/20 Page 25 of 51
Statistics
Reporting Period: 11/16/19 – 2/15/20
Total Petitions Adjudicated this Reporting Period: 181
A. Compensated: 146
i. Cases conceded by HHS: 67
1. Decision awarding damages: 2
2. Decision adopting Proffer: 65
3. Decision adopting Settlement: 0
ii. Cases not conceded by HHS: 79
1. Decision awarding damages: 0
2. Decision adopting Proffer: 5
3. Decision adopting Settlement: 74
B. Not Compensated/Dismissed: 35
3

Case 1:17-vv-00122-VJW Document 101 Filed 05/05/20 Page 26 of 51
Appendix 2:
Survey of Cases Awarding Compensation for Shoulder Injury
Source: Department of Justice1
1 “[R]espondent searched for ‘shoulder impingement’ and ‘shoulder bursitis’ in the Jury
Verdicts and Settlements database on Westlaw. Respondent limited the search results to cases
from the last five years, and identified pain and suffering awards in which the shoulder was the
main (or one of the main) injuries, and there were no extreme fact patterns or findings of
comparative/contributory fault.” Resp’t’s Br. at 6.

Case 1:17-vv-00122-VJW Document 101 Filed 05/05/20 Page 27 of 51
Age of Type of Finder of
# Name, Cite Date State
Plaintiff accident Fact
Todd‐Krasen v. Barrios,
1 2016 WL 4258300 (Wash. 6/28/16 WA 58 car accident jury
Super.)
Jones v. Ray‐Trigg, 2017 WL
2 3/8/17 TX adult car accident jury
1735346 (Tex. Dist.)
3 *SAME as #1
Millard v. Taylor, 2016 WL
4.1 9023669 (Ohio Com. Pl.) 10/24/16 OH adult car accident jury
*Henry Millard
Millard v. Taylor, 2016 WL
4.2 9023669 (Ohio Com. Pl.) 10/24/16 OH 57 car accident jury
*Malinda Millard
Althouse, Jr. v. Ebert, 2018
5 WL 3726943 (Pa. Com. Pl.) 3/26/18 PA adult car accident arbitration
*Michael Althouse
Page 1

Case 1:17-vv-00122-VJW Document 101 Filed 05/05/20 Page 28 of 51
Pain &
# Name, Cite Claimed Nature of injury Surgery Suffering Notes
Award
facet separation of the cervical spine; cervical and lumbar spinal
stenosis; rotator cuff weakness, subscapularis and biceps
Todd‐Krasen v. Barrios, tendinopathy with partial thickness tearing, medial subluxation of
1 2016 WL 4258300 (Wash. the biceps tendon and shoulder impingement which required yes $1,000
Super.) surgery; and hand and wrist injuries which led to numbness in the
right hand and post‐traumatic arthritis of the right wrist which
required surgery, and headaches
Jones v. Ray‐Trigg, 2017 WL cervical radiculitis, thoracic and lumbar strains and shoulder
2 no $1,000
1735346 (Tex. Dist.) impingement,
3 *SAME as #1
Millard v. Taylor, 2016 WL
4.1 9023669 (Ohio Com. Pl.) cervical and thoracic strains no $500
*Henry Millard
Millard v. Taylor, 2016 WL type II glenoid labral tear, rotator cuff tear and bursitis of left
4.2 9023669 (Ohio Com. Pl.) shoulder which required surgery and resulted in permanent yes $1,500
*Malinda Millard impairment, as well as cervical, thoracic and lumbar strains.
Althouse, Jr. v. Ebert, 2018
5 WL 3726943 (Pa. Com. Pl.) C6 radiculopathy resulting in paresthesias of the left arm no $10,000
*Michael Althouse
Page 2

Case 1:17-vv-00122-VJW Document 101 Filed 05/05/20 Page 29 of 51
Age of Type of Finder of
# Name, Cite Date State
Plaintiff accident Fact
Althouse, Jr. v. Ebert, 2018
6 WL 3726943 (Pa. Com. Pl.) 3/26/18 PA adult car accident arbitration
*Megan Althouse
Canales v. Meiners, 2016
7 3/2/16 TX adult car accident jury
WL 3012067 (Tex .Dist.)
Crawford v. Cho, 2017 WL
8.1 6373610 (Pa. Com. Pl.) 8/7/17 PA adult car accident arbitration
*Flynnell Crawford
Crawford v. Cho, 2017 WL
8.2 6373610 (Pa. Com. Pl.) 8/7/17 PA adult car accident arbitration
*Ann Fox
Lowery v. State Farm, 2016
9 6/14/16 MD adult car accident jury
WL 6083855 (Md. Cir. Ct.)
Page 3

Case 1:17-vv-00122-VJW Document 101 Filed 05/05/20 Page 30 of 51
Pain &
# Name, Cite Claimed Nature of injury Surgery Suffering Notes
Award
Althouse, Jr. v. Ebert, 2018
6 WL 3726943 (Pa. Com. Pl.) multiple level back strains and shoulder impingement no $3,000
*Megan Althouse
cervical disc protrusion, acquired loss of cervical lordosis,
Canales v. Meiners, 2016 concussion leading to post concussion syndrome, shoulder AC
7 no $3,000
WL 3012067 (Tex .Dist.) joint separation with impingement, and cervical, thoracic and
lumbar strains
Crawford v. Cho, 2017 WL cephalgia, cervical, thoracic and lumbar strains, right‐sided
8.1 6373610 (Pa. Com. Pl.) traumatic myofascitis, right shoulder strain and contusions and no $224
*Flynnell Crawford bilateral knee sprains and contusions
Crawford v. Cho, 2017 WL torn supraspinatus tendons with strain, impingement of the
8.2 6373610 (Pa. Com. Pl.) acromioclavicular joint, subacromial bursitis and joint effusion, as no $3,500
*Ann Fox well as cervical, thoracic and lumbar strains.
left shoulder injuries including sprain with impingement *judge reduced
syndrome and subacromial tendinitis that required two surgeries award to $0
Lowery v. State Farm, 2016 including an arthroscopic left shoulder rotator cuff debridement because of pre‐
9 yes $4,000
WL 6083855 (Md. Cir. Ct.) and subacromial decompression, as well as post‐traumatic trial payments
headaches, soft tissue injuries to her neck and back a chest already made to
contusion and mental anguish P
Page 4

Case 1:17-vv-00122-VJW Document 101 Filed 05/05/20 Page 31 of 51
Age of Type of Finder of
# Name, Cite Date State
Plaintiff accident Fact
Spolar v. Schulz, 2016 WL
10 11/9/16 PA adult car accident arbitration
8740261 (Pa. Com. Pl.)
Tripp v. Dacosta, 2019 WL
11 8/6/19 MA adult car accident jury
5197125 (Mass. Super.)
Wilburn v. Leddy, 2019 WL
12 8/1/19 PA 28 car accident jury
5555589 (Pa. Com. Pl.)
Dhingra v. Lemien, 2019
13 4/4/19 CT adult car accident jury
WL 2551625 (Conn. Super.)
Tucker‐Lloyd v. Holiday,
14 2019 WL _____ (Pa. Com. 2/8/19 PA adult car accident jury
Pl.) (JVR no. 170301744)
Stokes v. Watkins, 2016 WL
15 9/1/16 PA adult car accident arbitration
7118685 (Pa. Com. Pl.)
Page 5

Case 1:17-vv-00122-VJW Document 101 Filed 05/05/20 Page 32 of 51
Pain &
# Name, Cite Claimed Nature of injury Surgery Suffering Notes
Award
Spolar v. Schulz, 2016 WL proximal humerus fracture, left shoulder impingement and
10 no $4,000
8740261 (Pa. Com. Pl.) cervical disc herniations at C4‐C7
right shoulder impingement with fraying of the anterior superior
Tripp v. Dacosta, 2019 WL labrum and AC joint arthrosis with signal change about her rotator
11 yes $5,000
5197125 (Mass. Super.) cuff, which required arthroscopic surgery, headaches, and
unspecified injuries to her neck, back and right hip
left shoulder impingement syndrome, aggravation of cervical and
Wilburn v. Leddy, 2019 WL
12 lumbar spondylosis with disc bulging, and cervical, lumbar and no $6,000
5555589 (Pa. Com. Pl.)
left wrist strains
post‐concussion syndrome with headaches and concentration
Dhingra v. Lemien, 2019
13 issues, right shoulder impingement, left knee contusion and no $7,500
WL 2551625 (Conn. Super.)
injuries to her neck, hip and lower back
Tucker‐Lloyd v. Holiday,
14 2019 WL _____ (Pa. Com. shoulder tendinopathy, shoulder bursitis, neck sprain no $7,500
Pl.) (JVR no. 170301744)
Stokes v. Watkins, 2016 WL post traumatic chronic headaches, shoulder bursitis and neck and
15 no $7,500
7118685 (Pa. Com. Pl.) back sprains
Page 6

Case 1:17-vv-00122-VJW Document 101 Filed 05/05/20 Page 33 of 51
Age of Type of Finder of
# Name, Cite Date State
Plaintiff accident Fact
Pham v. Gadelov, 2016 WL
16 7/15/16 NJ adult car accident jury
4537028 (N.J. Super. L.)
Scherzberg v. Reed, 2017
17 WL 6944527 (Minn. Dist. 10/6/17 MN 45 car accident jury
Ct.)
Mier v. Sandoval, 2016 WL
18 1/15/16 CO adult car accident jury
5845816 (Colo. Dist. Ct.)
Ramirez v. Driscoll, 2017
19 11/22/17 CT adult car accident jury
WL 7693776 (Conn. Super.)
Megie v. Kelb, 2015 WL
20 11/5/15 CT adult car accident jury
12746400 (Conn. Super.)
Gehrt v. Nolen, 2017 WL
21.1 5989959 (Tenn. Cir. Ct.) 1/26/17 TN 48 car accident jury
*Brian Gehrt
Page 7

Case 1:17-vv-00122-VJW Document 101 Filed 05/05/20 Page 34 of 51
Pain &
# Name, Cite Claimed Nature of injury Surgery Suffering Notes
Award
C5‐C6 disc herniation with radiculopathy, C3‐C4 and C4‐C5 disc
Pham v. Gadelov, 2016 WL bulges, carpal tunnel syndrome, temporomandibular joint
16 yes $7,500
4537028 (N.J. Super. L.) disorder and left shoulder tendonitis and bursitis which was
treated with arthroscopic surgery
Scherzberg v. Reed, 2017 shoulder impingement syndrome, right arm radicular pain,
17 WL 6944527 (Minn. Dist. cervical spondylosis, SI joint dysfunction, trochanteric bursitis, a no $8,000
Ct.) concussion leading to post‐concussion symptoms
shoulder sprain; cervical, thoracic, and lumbar strains; a sacroiliac
Mier v. Sandoval, 2016 WL strain; post‐traumatic headaches; right shoulder impingement;
18 no $8,000
5845816 (Colo. Dist. Ct.) facet syndrome of the upper cervical facets; disc herniations at T6‐
T7; somatic dysfunction; myofascial pain; and emotional distress
cervical disc protrusion with radicular syndrome, headaches, left
Ramirez v. Driscoll, 2017
19 shoulder bursitis, cervical, thoracic, lumbar and shoulder strains, no $8,791
WL 7693776 (Conn. Super.)
and contusions to her face, head and chest
Megie v. Kelb, 2015 WL left shoulder injuries including rotator cuff tendinitis,
20 no $8,910
12746400 (Conn. Super.) impingement and strain
Gehrt v. Nolen, 2017 WL fractured tooth that required removal, bilateral carpal tunnel
21.1 5989959 (Tenn. Cir. Ct.) syndrome that required surgery, a dislocated left index finger, yes $3,366
*Brian Gehrt aggravation of a prior brain injury, and emotional distress
Page 8

Case 1:17-vv-00122-VJW Document 101 Filed 05/05/20 Page 35 of 51
Age of Type of Finder of
# Name, Cite Date State
Plaintiff accident Fact
Gehrt v. Nolen, 2017 WL
21.2 5989959 (Tenn. Cir. Ct.) 1/26/17 TN 48 car accident jury
*Brandon Gehrt
Brussler v. Borges, 2016 WL
22 12/12/16 NJ 43 car accident jury
8711312 (N.J. Super. L.)
Theis v. Altom, 2016 WL
23 7/19/16 CA 52 car accident jury
8653389 (Cal. Super.)
Lafavor v. Nurre, 2017 WL
24 9/28/17 OR adult car accident jury
10219661 (Or. Cir.)
Page 9

Case 1:17-vv-00122-VJW Document 101 Filed 05/05/20 Page 36 of 51
Pain &
# Name, Cite Claimed Nature of injury Surgery Suffering Notes
Award
cerebral concussion with loss of consciousness, traumatic
Gehrt v. Nolen, 2017 WL tendinitis of his left shoulder with impingement syndrome, an
21.2 5989959 (Tenn. Cir. Ct.) acute cervical strain with radiculopathy and disc syndrome, left no $9,031
*Brandon Gehrt wrist traumatic carpal tunnel syndrome, left subscapular bursitis
with traumatic scapulocostal syndrome, and emotional distress
herniated disc at C5‐C6 with neural impingement, foraminal
Brussler v. Borges, 2016 WL narrowing and radiculopathy, as well as left shoulder
22 no $10,000
8711312 (N.J. Super. L.) impingement syndrome with tendinopathy which required
cortisone injections and for which surgery was recommended
lumbar radiculitis affecting his back and right leg with vertebral
Theis v. Altom, 2016 WL bone spurs at L1‐L4 and spinal stenosis, as well as left shoulder
23 yes $10,000
8653389 (Cal. Super.) impingement syndrome and a complete rotator cuff tear to his
left shoulder which required epidural injections and surgery
Lafavor v. Nurre, 2017 WL left shoulder impingement syndrome and permanent swelling of
24 no $10,000
10219661 (Or. Cir.) her left breast
Page 10

Case 1:17-vv-00122-VJW Document 101 Filed 05/05/20 Page 37 of 51
Age of Type of Finder of
# Name, Cite Date State
Plaintiff accident Fact
Delizo v. Dang, 2015 WL
25 12/1/15 WA 53 car accident jury
10521777 (Wash. Super.)
Pineda v. Wal‐Mart Stores,
26 Inc., 2017 WL 4767043 (Fla. 7/20/17 FL 56 slip and fall jury
Cir. Ct.)
Lewis v. American Family
27 Ins. Co., 2018 WL 2431395 4/5/18 MN 31 car accident jury
(Minn. Dist. Ct.)
Feist v. Taylor, 2017 WL
28 9/28/17 MT adult car accident jury
7689190 (Mont .Dist.)
Lopez v. Li, 2016 WL
29 12/12/16 NY adult car accident jury
8445683 (N.Y. Sup.)
Page 11

Case 1:17-vv-00122-VJW Document 101 Filed 05/05/20 Page 38 of 51
Pain &
# Name, Cite Claimed Nature of injury Surgery Suffering Notes
Award
SLAP tear, tendonitis and rotator cuff injury to his left shoulder
with impingement which required arthroscopic surgery, for which
Delizo v. Dang, 2015 WL he was assigned an 18% permanent impairment rating, as well as
25 yes $10,000
10521777 (Wash. Super.) cervical, thoracic and lumbar strains and aggravation of
preexisting degenerative disc disease, for which he was assigned
a 6% permanent impairment rating
suffered rotator cuff and tendon damage, labral tearing and
Pineda v. Wal‐Mart Stores,
bursitis and inflammation of the left shoulder with permanent
26 Inc., 2017 WL 4767043 (Fla. yes $12,500
loss of range of motion, and cartilage and ligament damage to her
Cir. Ct.)
right knee; surgery for both knee and shoulder
right shoulder impingement, a right shoulder rotator cuff tear that
Lewis v. American Family
required surgery, right upper extremity cervical radiculitis, a right
27 Ins. Co., 2018 WL 2431395 yes $13,000
knee bone contusion with cartilage defect at the lateral tibial
(Minn. Dist. Ct.)
plateau, and emotional distress
* plaintiffs'
Feist v. Taylor, 2017 WL cervical and lumbar strain and left shoulder post‐traumatic motion for a
28 no $13,684
7689190 (Mont .Dist.) impingement new trial
granted
disc herniations at L3‐L4, L5‐S1 and C5‐C6, injuries to her left
knee, including a grade 1 medial collateral ligament sprain, subtle
Lopez v. Li, 2016 WL
29 chondromalacia and internal derangement, injuries to her left no $15,000
8445683 (N.Y. Sup.)
shoulder, including impingement, bursitis and rotator cuff
tendonitis and right ankle internal derangement
Page 12

Case 1:17-vv-00122-VJW Document 101 Filed 05/05/20 Page 39 of 51
Age of Type of Finder of
# Name, Cite Date State
Plaintiff accident Fact
Morris v. Tirado, 2016 WL
30 5/17/16 NY 24 car accident jury
4729415 (N.Y. Sup.)
Johnny v. Cruz, 2015 WL
31 12/15/15 NY adult car accident jury
10644865 (N.Y. Sup.)
Gladysh v. Safeway Inc., floor display
32 5/30/19 OR adult jury
2019 WL 3712142 (Or. Cir.) fell on P
Berry v. Demers, 2018 WL
33 2/9/18 MA adult car accident jury
1367377 (Mass. Super.)
Itzkowitz v. Finkelstein,
34 2016 WL 2748641 (N.Y. 1/26/16 NY 26 car accident jury
Sup.)
Page 13

Case 1:17-vv-00122-VJW Document 101 Filed 05/05/20 Page 40 of 51
Pain &
# Name, Cite Claimed Nature of injury Surgery Suffering Notes
Award
post traumatic headaches, reversal of the normal cervical
Morris v. Tirado, 2016 WL curvature at C5‐C6, cervical and lumbar radiculopathy with
30 no $20,000
4729415 (N.Y. Sup.) numbness and tingling of the hands bilaterally and right foot, as
well as right shoulder rotator cuff tendinitis and impingement
permanent neck and back injuries including disc herniation at L5‐
S1 encroaching on the S1 nerve roots, bulging discs at L4‐L5 and
C3‐C6 deforming the thecal sac and spinal cord, and straightening
Johnny v. Cruz, 2015 WL
31 of the normal cervical curvature, as well as injuries to her left yes $20,000
10644865 (N.Y. Sup.)
shoulder including an acromion avulsion fracture, tears to the
supraspinatus tendon and rotator cuff with impingement which
required surgery
right knee meniscus tear treated with injections and surgery, right
Gladysh v. Safeway Inc.,
32 shoulder impingement, right palm bruising, a right wrist strain yes $21,000
2019 WL 3712142 (Or. Cir.)
and right thigh bruising
Berry v. Demers, 2018 WL left shoulder tendonitis with impingement requiring surgery, and
33 yes $22,530
1367377 (Mass. Super.) neck and back injuries
Itzkowitz v. Finkelstein, bulges at C3‐4, C5‐6, L4‐5 and L5‐S1 that were confirmed by MRI
34 2016 WL 2748641 (N.Y. with right shoulder impingement that was also supported by an no $25,000
Sup.) MRI
Page 14

Case 1:17-vv-00122-VJW Document 101 Filed 05/05/20 Page 41 of 51
Age of Type of Finder of
# Name, Cite Date State
Plaintiff accident Fact
McCole v. Freund, 2017 WL
35 1/26/17 NJ 45 car accident jury
4280749 (N.J. Super. L.)
Lockhart v. The Long Island
work
36 Railroad Co., 2016 WL 5/6/16 NY 38 jury
accident
4761418 (S.D.N.Y.)
Saget v. Saget, 2019 WL
37 2/27/19 NY 16 car accident jury
1977300 (N.Y. Sup.)
Kerames v. Tokay
38 Properties, L.L.C., 2017 WL 10/13/17 CT adult trip and fall judge
7189512 (Conn. Super.)
Carter v. Pilla IV, 2015 WL
39 12/26/15 NJ 55 car accident jury
10553220 (N.J. Super. L.)
Lofton v. James, 2018 WL
40 1/9/18 FL 30 car accident jury
1867016 (Fla. Cir. Ct.)
Page 15

Case 1:17-vv-00122-VJW Document 101 Filed 05/05/20 Page 42 of 51
Pain &
# Name, Cite Claimed Nature of injury Surgery Suffering Notes
Award
torn rotator cuff requiring arthroscopic surgery and distal clavicle
McCole v. Freund, 2017 WL
35 resection and resulting in impingement syndrome, and bulging yes $25,000
4280749 (N.J. Super. L.)
cervical discs
Lockhart v. The Long Island partial thickness tear of the right distal supraspinatus tendon with
36 Railroad Co., 2016 WL tendinitis, impingement syndrome and a partial tear of the right no $25,000
4761418 (S.D.N.Y.) bicep tendon
post concussive syndrome, a fracture of her mid‐left clavicle, left
Saget v. Saget, 2019 WL
37 shoulder bursitis, a left thigh laceration, L5‐S1 herniations, and L1‐ no $25,000
1977300 (N.Y. Sup.)
L5 bulges
Kerames v. Tokay aggravation of pre‐existing left thumb osteoarthritis, a left thumb
38 Properties, L.L.C., 2017 WL sprain, right and left knee abrasions and contusions, left shoulder no $30,000
7189512 (Conn. Super.) impingement, and trauma to the left side of his torso
herniated discs at C3‐C4 and C5‐C6, right shoulder supraspinatus
Carter v. Pilla IV, 2015 WL
39 impingement and tendinitis, and cervical and thoracolumbar no $30,000
10553220 (N.J. Super. L.)
strains
Lofton v. James, 2018 WL right elbow fracture and right shoulder impingement with
40 no $30,000
1867016 (Fla. Cir. Ct.) myofascial pain.
Page 16

Case 1:17-vv-00122-VJW Document 101 Filed 05/05/20 Page 43 of 51
Age of Type of Finder of
# Name, Cite Date State
Plaintiff accident Fact
Wilson v. Liberty Mutual
41 Ins. Co., 2016 WL 10903739 7/8/16 LA adult car accident jury
(W.D. La.)
McNeill v. City of Auburn,
42 2017 WL 4182391 (Wash. 6/2/17 WA adult car accident jury
Super.)
Brown v. Chariton, 2017
43 1/10/17 IN 39 car accident jury
WL 1046031 (Ind. Super.)
Thompson v. Bronchtein,
44 2016 WL 8114434 (N.Y. 11/2/16 NY adult car accident jury
Sup.)
Page 17

Case 1:17-vv-00122-VJW Document 101 Filed 05/05/20 Page 44 of 51
Pain &
# Name, Cite Claimed Nature of injury Surgery Suffering Notes
Award
Wilson v. Liberty Mutual strain to the cervical region of his spine and had exacerbated a
41 Ins. Co., 2016 WL 10903739 pre‐existing right shoulder impingement for which a shoulder no $30,000
(W.D. La.) arthroscopy and open clavicle excision had been recommended
psychomotor slowing with reduced processing, chronic pain
McNeill v. City of Auburn,
syndrome, right and left knee meniscal tears, a left rotator cuff
42 2017 WL 4182391 (Wash. no $45,000
tear of the supraspinatus tendon, right rotator cuff bursitis and
Super.)
inflammation, anxiety and sleep disturbance
C5‐C6 disc herniation, cervical radiculopathy, right shoulder pain
Brown v. Chariton, 2017
43 associated with supraspinatus tendon impingement and no $55,000
WL 1046031 (Ind. Super.)
tendinosis, wrist pain, and emotional distress
partial tear of his distal supraspinatus tendon with bony
impingement, joint space narrowing and joint space effusion,
fraying and tearing of the glenoid labrum, a partial rotator cuff
Thompson v. Bronchtein,
tear, bicep tendinopathy, hypertrophic synovitis, a Type I labral
44 2016 WL 8114434 (N.Y. no $65,000
tear, cervical myofacsitis, cervical and lumbosacral spine
Sup.)
derangement, myofascial neck pain syndrome, right shoulder
derangement and cervical, lumbar and right shoulder
sprain/strains
Page 18

Case 1:17-vv-00122-VJW Document 101 Filed 05/05/20 Page 45 of 51
Age of Type of Finder of
# Name, Cite Date State
Plaintiff accident Fact
Thomas v. NYLL
45 Management Ltd., 2016 WL 11/18/16 NY adult car accident jury
8316934 (N.Y. Sup.)
car accident,
uninsured
Tucci v. Allstate, 2016 WL motorist and
46 9/28/16 NJ adult jury
6883238 (N.J. Super. L.) wrongly
withheld ins.
benefits
Walker v. Calvo, 2017 WL
47 6/2/17 NY 20 car accident jury
3070753 (N.Y. Sup.)
Perry v. Berroa, 2017 WL
48 4/4/17 VA adult car accident jury
6883949 (Va. Cir. Ct.)
Page 19

Case 1:17-vv-00122-VJW Document 101 Filed 05/05/20 Page 46 of 51
Pain &
# Name, Cite Claimed Nature of injury Surgery Suffering Notes
Award
deformity of the posterior glenoid rim of the left shoulder with
traumatic subacromial impingement, requiring surgery;
acromioclavicular joint arthropathy, anterior capsular contracture,
Thomas v. NYLL
glenohumeral reactive hypertrophic injected synovitis, grade 3‐4
45 Management Ltd., 2016 WL yes $65,000
glenoid chondral injury with multiple loose chondral flaps, labral
8316934 (N.Y. Sup.)
fraying, fluid in the subdeltoid bursa and subcapularis bursa, C5‐
C6 stenosis with spurring, and straightening of the cervical
curvature
C5‐C6 disc herniation which resulted in cervical radiculopathy, a
chip fracture of her cervical spine, a concussion leading to post
Tucci v. Allstate, 2016 WL * judge reduced
46 concussion syndrome, left knee internal derangement, right no $75,000
6883238 (N.J. Super. L.) to $50,000
shoulder impingement syndrome, TMJ, thoracic and lumbar
strains, right knee sprain and contusions to her left leg
disc bulges at C4‐C6 and L4‐L5, a sprained right knee ACL, right
Walker v. Calvo, 2017 WL
47 shoulder rotator cuff tears and impingement, right shoulder and no $75,000
3070753 (N.Y. Sup.)
cervical/lumbar strains
post traumatic headaches and left shoulder post‐traumatic
Perry v. Berroa, 2017 WL
48 bursitis and tendinitis, as well as left hand pain and numbness, no $76,000
6883949 (Va. Cir. Ct.)
back, left elbow, and left‐sided neck pain
Page 20

Case 1:17-vv-00122-VJW Document 101 Filed 05/05/20 Page 47 of 51
Age of Type of Finder of
# Name, Cite Date State
Plaintiff accident Fact
Jauregui v. Walgreen, 2017
49 7/21/17 CA adult slip and fall jury
WL 5068477 (Cal. Super.)
Nappa v. Emmons, 2016
50 3/3/16 NJ 60 car accident jury
WL 3461669 (N.J. Super. L.)
Lott v. Bromfield, 2017 WL pedestrian
51 5/3/17 NY adult jury
2560567 (N.Y. Sup.) hit by car
Page 21

Case 1:17-vv-00122-VJW Document 101 Filed 05/05/20 Page 48 of 51
Pain &
# Name, Cite Claimed Nature of injury Surgery Suffering Notes
Award
protruding discs at C3‐C4 and C5‐C6 with encroachment on the
spinal cord which required anterior cervical discectomy with
fusion; post traumatic migraine headaches with dizziness and
Jauregui v. Walgreen, 2017 nausea; left shoulder tendon damage with impingement which
49 yes $87,500
WL 5068477 (Cal. Super.) required glenohumeral arthroscopy and subacromial
decompression surgeries; chin lacerations which required stitches
and resulted in permanent scarring, as well as depression and
anxiety
bilateral carpal tunnel syndrome which required surgery, disc
bulging at C3‐C5 and C6‐C7 and disc herniation with foraminal
Nappa v. Emmons, 2016
50 narrowing at C5‐C6 which required epidural injections, yes $90,000
WL 3461669 (N.J. Super. L.)
aggravation of a preexisting lower back injury and left shoulder
impingement
herniations at L3‐S1, sacroiliac joint infections, traumatic
paracervical and paralumbar myofascitis, right rotator cuff and
glenoid labrum tears, partial thickness tears of the right
supraspinous tendon, and right shoulder impingement. He also
Lott v. Bromfield, 2017 WL allegedly suffered a Hill‐Sachs compression fracture of the right
51 no $90,000
2560567 (N.Y. Sup.) humeral head, fracture of the left radius, joint hypertrophy in his
left shoulder, bowing of the right medial collateral ligament,
lateral and medial meniscus tears, edema within the right medial
femoral condyle, with a chondral defect, and medial and
patellofemoral arthritis of the right knee
Page 22

Case 1:17-vv-00122-VJW Document 101 Filed 05/05/20 Page 49 of 51
Age of Type of Finder of
# Name, Cite Date State
Plaintiff accident Fact
Azoolay v. GEICO, 2016 WL
52 2/23/16 NJ 59 car accident jury
2597554 (N.J. Super. L.)
Johnson, Jr. v. Armstrong,
53 2017 WL 8772007 (Va. Cir. 4/6/17 VA adult car accident jury
Ct.)
Eskridge v. Sutter, 2017 WL
54 12/1/17 MI 43 car accident jury
7410269 (E.D. Mich.)
Daley v. Matthews, 2016
55 5/16/16 NY adult car accident jury
WL 4627014 (N.Y. Sup.)
Page 23

Case 1:17-vv-00122-VJW Document 101 Filed 05/05/20 Page 50 of 51
Pain &
# Name, Cite Claimed Nature of injury Surgery Suffering Notes
Award
Azoolay v. GEICO, 2016 WL herniated discs at C4‐C5, C5‐C6 and C6‐C7, a cervical strain and a
52 no $100,000 reduced to $75,00
2597554 (N.J. Super. L.) left shoulder rotator cuff tear with impingement syndrome
newly developed and/or exacerbated shoulder
Johnson, Jr. v. Armstrong,
impingement syndrome, a cervical spine disc injury, an axial disc
53 2017 WL 8772007 (Va. Cir. no $115,000
injury, emotional injury/anxiety, scarring, disfigurement, and
Ct.)
humiliation
injuries to her left shoulder, including internal derangement,
impingement, AC joint arthrosis, a rotator cuff tear, a SLAP tear,
Eskridge v. Sutter, 2017 WL tendinitis and reactive synovitis, disc herniations, cervical and
54 no $130,000
7410269 (E.D. Mich.) lumbar radiculopathy, stenosis, concussion leading to post
concussion syndrome, adjustment disorder and post traumatic
stress disorder
tear of the left wrist dorsal capsuloligamentous complex, a right
Daley v. Matthews, 2016
55 rotator cuff injury and impingement syndrome, and cervical, no $188,000
WL 4627014 (N.Y. Sup.)
thoracic and lumbar strains
Page 24

Case 1:17-vv-00122-VJW Document 101 Filed 05/05/20 Page 51 of 51
Age of Type of Finder of
# Name, Cite Date State
Plaintiff accident Fact
mean $31,105.89
median $13,000.00
Q1 $7,500.00
Q3 $30,000.00
center of intraquatrile
$22,500.00
range
Page 25

================================================================================
DOCUMENT 3: USCOURTS-cofc-1_17-vv-00122-3
Date issued/filed: 2024-01-25
Pages: 24
Docket text: JUDGE VACCINE REPORTED OPINION (PUBLIC VERSION) re: 110 Order on Motion for Review,, Judge Vaccine Reported Opinion, Signed by Senior Judge Victor J. Wolski. (jad) Service on parties made.
--------------------------------------------------------------------------------
Case 1:17-vv-00122-VJW Document 112 Filed 01/25/24 Page 1 of 24
In the United States Court of Federal Claims
No. 17-122V
(Filed under seal January 10, 2024)
(Reissued January 25, 2024)†
* * * * * * * * * * * * * * * * * * * * * * * *
*
CHELSEA BOSSENBROEK, *
*
Petitioner, *
*
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * *
Leah V. Durant, with whom was Michael P. Milmoe, both of Washington,
D.C., for the petitioner.
Mallori B. Openchowski, Trial Counsel, Torts Branch, Civil Division,
Department of Justice, with whom were Joseph H. Hunt, Assistant Attorney
General, C. Salvatore D’Alessio, Acting Director, Catharine E. Reeves, Deputy
Director, and Gabrielle M. Fielding, Assistant Director, all of Washington, D.C., for
the respondent.
MEMORANDUM OPINION AND ORDER
WOLSKI, Senior Judge.
Petitioner Chelsea Bossenbroek has moved for review of a special master’s
decision awarding her compensation under the National Vaccine Injury
Compensation Program, 42 U.S.C. §§ 300aa-10–300aa-15 (Vaccine Act or Act), for a
shoulder injury related to vaccine administration (SIRVA). Petitioner argues that
† Pursuant to Vaccine Rule 18(b) of the Rules of the United States Court of Federal
Claims, the parties were given fourteen calendar days in which to object to the
public disclosure of information contained in this opinion prior to its publication.
No objection has been filed. Accordingly, the opinion is reissued for publication with
some minor typographical or grammatical corrections.

Case 1:17-vv-00122-VJW Document 112 Filed 01/25/24 Page 2 of 24
the Special Master erred in determining the size of her pain and suffering award
under 42 U.S.C. § 300aa-15(a)(4), principally by considering verdicts in tort suits
and damages awarded by another special master in reaching his decision. See
Pet’r’s Mot. for Review at 1 (Pet’r’s Mot.), ECF No. 99; Pet’r’s Mem. in Supp. of Mot.
for Review at 3–18 (Pet’r’s Mem.), ECF No. 100. She also contends that the Special
Master erred by failing to consider evidence of emotional distress, by not addressing
the effects of inflation, and by not adequately explaining the basis for his
calculation of future pain and suffering compensation. Pet’r’s Mot. at 1–2; Pet’r’s
Mem. at 2, 18–20. For the reasons stated below, the Court finds that the Special
Master erred only in one minor respect, failing to fully articulate the basis for his
award for future pain and suffering. Accordingly, the motion for review is
DENIED-IN-PART and GRANTED-IN-PART and REMANDED to the Special
Master for further proceedings consistent with this opinion.
I. BACKGROUND
In this matter, the basic facts are not in dispute. Petitioner was a 28-year-old
attorney, wife, and mother of a newborn son at the time she was injured by the
administration of a flu vaccine received on October 22, 2015. Tr. (December 13,
2018) (Sp. Mstr. Tr.), ECF No. 64, at 14–16; Ex. 1 at 1–3, ECF No. 7-1. After the
technician at the local pharmacy failed to inject the full dose into Ms. Bossenbroek’s
upper left arm, a second shot was administered at the site. Sp. Mstr. Tr. at 17. The
resulting, immediate soreness in her left shoulder increased to severe pain over the
next few days, and she consulted a doctor about the injury on November 3, 2015.
Id.; Ex. 2 at 41–44, ECF No. 7-2. She was referred to an orthopedist, who in turn
referred her to physical therapy. Ex. 2 at 23–25, 31–33. When she began physical
therapy, she reported pain levels of “2/10 at best” and “6/10 at worst,” difficulties
sleeping and holding her son because of shoulder soreness, and pain when working
at her computer. Ex. 2 at 24. The physical therapist found left shoulder
tenderness, and some reduction in strength and range of motion. Id. On December
15, 2015, at the last of six physical therapy sessions held over three weeks, Ms.
Bossenbroek reported pain as “0/10” and that she could hold her son without pain
increasing in her left shoulder, although she continued to have weakness in the
shoulder. Id. at 3–4. Petitioner’s next medical appointment was with an orthopedic
physician’s assistant on January 4, 2017, at which she reported pain “4/10 at worst”
over the prior week, and was diagnosed as suffering from “[c]hronic left shoulder
pain.” Ex. 6 at 1–2, ECF No. 7-6.
Because of the one-year gap in medical records beginning three months after
the vaccinations, the Secretary of Health and Human Services (Secretary or
respondent) disputed whether petitioner met the severity threshold of having had
an injury lasting more than six months. See Resp’t’s Rule 4(c) Rep., ECF No. 23 at
4–5 (citing 42 U.S.C. § 300aa-11(c)(1)(D)(i)); Resp’t’s Status Rep., ECF No. 56 at 2–
5. To address this matter, a hearing was scheduled to obtain factual testimony
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regarding Ms. Bossenbroek’s injury. See Order (Nov. 2, 2018), ECF No. 50. At the
hearing, Ms. Bossenbroek explained that she ended physical therapy in December
2015, despite continuing pain in her left shoulder, because she was busy with a full-
time job, a baby, and a move from Illinois to Michigan, but that she alleviated the
pain by doing recommended exercises and yoga. Sp. Mstr. Tr. at 20–23; see also Ex.
7, ECF No. 9-1 at 2; Ex. 8, ECF No. 11-1; Ex. 11, ECF No. 28-1 at 3; Ex. 18, ECF No.
34-4 at 1. She explained, however, that the exercises to address the shoulder pain
were time-consuming and unpleasant. Sp. Mstr. Tr. at 37. Petitioner testified that
the injury to her shoulder interfered with her daily life in various ways, including
preventing her from breastfeeding her two children, making the carrying of luggage
and lifting of heavy objects difficult, and hindering her in hobbies such as
gardening. Sp. Mstr. Tr. at 17–18, 24–25, 28–30, 34, 37, 39–40. Petitioner stated
that her inability to breastfeed her children because of the shoulder pain was a
great disappointment which made her feel she was not a good mother. Sp. Mstr. Tr.
at 29; Ex. 18 at 1. That petitioner continued to suffer from shoulder pain after her
physical therapy had ended was corroborated by the testimonies of a friend and
family members. See, e.g., Sp. Mstr. Tr. at 124–26, 132–35 (testimony of husband);
id. at 162–63 (testimony of sister); id. at 179–80 (testimony of father); id. at 192–94
(testimony of family friend); see also Exs. 26–29, ECF Nos. 57-2, 57-3, 57-4 & 61-1
(witness declarations).
Three weeks after the hearing, the Special Master issued his tentative
findings that petitioner’s shoulder injury lasted more than six months but that the
ongoing pain was relatively minor. Tentative Findings of Fact, ECF No. 62 at 2.
After respondent indicated the settlement process could not proceed without a
ruling on entitlement, on April 16, 2019, the Special Master issued his formal
ruling, determining that Ms. Bossenbroek was entitled to compensation under the
Vaccine Act. See Ruling Finding Facts & Granting Entitlement to Comp., ECF No.
69 at 2–3. The Secretary has not moved for review of the entitlement ruling, and
thus petitioner’s entitlement to compensation is no longer disputed.
After unsuccessful attempts to encourage the parties to arbitrate the amount
of compensation which petitioner would be awarded, including the proposed use of a
baseball arbitration approach, see Order (July 5, 2019), ECF No. 76 at 1–2,1 the
Special Master undertook the task of determining the proper amount of
compensation, and requested briefing from the parties to aid him in this effort. See
1 This approach, in which each side makes a proposal and the decisionmaker
selects one (provided it is reasonable), was supported by petitioner even in the
absence of parties’ consent, based on the wide discretion afforded Special Masters.
See Br. Concerning Use of Baseball Arb., ECF No. 78 at 1–3. The Secretary
maintained that such an approach was contrary to law due to statutory caps on
binding arbitration. See Resp’t’s Resp. to Ct.’s Order Re: Baseball Arb., ECF No. 80
at 2–3 (citing 28 U.S.C. § 654(a)(3)).
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Order (Nov. 22, 2019), ECF No. 82 at 1–4. In addition to evidence and arguments
concerning the appropriate discount rate, the Special Master ordered briefing
regarding pain and suffering, informing the parties:
. . . the undersigned is interested in the following information
listed in order of importance, starting with the most important:
i. Any decisions regarding pain and suffering for injuries to
a shoulder from outside the context of the Vaccine
Program. See Graves v. Sec’y of Health & Human Servs.,
109 Fed. Cl. 579, 595-96 (2013) (looking to awards outside
of the Vaccine Program). Cases in which the amount of
pain and suffering is distinguished from amounts for
other types of compensation will be more useful in
resolving petitioner’s case.
ii. Any reasoned decisions from special masters about the
amount of pain and suffering for shoulder injuries.
iii. Any statistical information based upon proffers and
stipulations that explain the amount of pain and suffering
for shoulder injuries.
Id. at 3; see also Order (Dec. 20, 2019), ECF No. 84 at 1–2.
Respondent’s brief included an eleven-page appendix which listed fifty-five
pain and suffering award verdicts, involving shoulder injuries, rendered in state
and federal courts over the prior five years. See App. B to Resp’t’s Br. on Damages,
ECF No. 86-2. This listing identified the case names, the size of the awards, and
thumbnail descriptions of the injuries involved. See id. at 1–11. The text of the
brief did not highlight any verdict, but instead noted that the average award was
$33,089.93; that nearly seventy-five percent of the awards were $30,000 or less; and
that nearly half were $10,000 or less. Resp’t’s Br. on Damages at 6. Respondent
identified two vaccine program cases, Knauss v. Sec’y of Health & Hum. Servs., No.
16-1372V, 2018 WL 3432906 (Fed. Cl. Sp. Mstr. May 23, 2018), and Dagen v. Sec’y
of Health & Hum. Servs., No. 18-442V, 2019 WL 7187335 (Fed. Cl. Sp. Mstr. Nov. 6,
2019), as involving “comparative facts” and recommended “a similar award of
approximately $60,000.00 for past and future pain and suffering.” Resp’t’s Br. on
Damages at 7. He based this on a $50,000 award for past pain and suffering, and
$300 per year for future pain and suffering. Id. at 1, 6. The Secretary also
explained that his recommended award was consistent with his proffers in similar,
conceded SIRVA cases. Id. at 9. He refused, however, to engage the services of an
expert to provide evidence on the appropriate net discount rate, arguing that a two
percent rate was consistent with prior caselaw. Id. at 10.
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In her brief on damages, petitioner requested an award of $125,000 for past
pain and suffering, plus an amount for future pain and suffering of $2,500 per year.
Pet’r’s Mem. on Damages, ECF No. 89 at 7, 14. Petitioner declined to provide data
based on decisions outside of the vaccine program, contending that such information
was irrelevant to the amount of damages to which she was entitled. Id. at 14–15.
She argued that tort-based damages awards would be inapposite because, unlike
state tort law, the no-fault vaccine compensation scheme was intended by Congress
to make awards with “generosity.” Id.; see also Pet’r’s Reply Mem. on Damages,
ECF No. 93 at 7–9. Petitioner also contended that prior damage awards in SIRVA
cases were not relevant, due to the subjective judgment involved, the decisions
primarily being the product of just one special master, and their failure to reflect
the generosity in awards intended by Congress. Pet’r’s Mem. on Damages at 15–17.
She disputed the relevance of awards that were the result of settlements, as these
involve discounts for litigation risks and the desire of petitioners to avoid payment
delays, and involve sealed records which prevent factual comparisons to the injury
she has suffered. Id. at 17–18; Pet’r’s Reply Mem. on Damages at 10–14. Petitioner
also submitted a statement from an economist who found her proposed one percent
net discount rate to be reasonable. Pet’r’s Mem. on Damages at 18–19; see Ex. 32,
ECF No. 87-1 at 4–5.
As we shall see, the Special Master for the most part followed the
government’s recommendations. He began his decision on damages with a short
discussion of the treatment of pain and suffering damages under the Vaccine Act.
Bossenbroek v. Sec’y of Health & Hum. Servs., 2020 WL 2510454, at *1–2 (Fed. Cl.
Sp. Mstr. April 3, 2020). The Special Master described the three-factor test which is
typically employed---considering the injured person’s ability to understand the
injury, the degree of the injury’s severity and its anticipated duration. Id. at *1
(citing McAllister v. Sec’y of Health & Hum. Servs., No. 91-1037V, 1993 WL 777030,
at *3 (Fed. Cl. Sp. Mstr. Mar. 26, 1993), vacated and remanded on other grounds, 70
F.3d 1240 (Fed. Cir. 1995)). He noted that special masters previously interpreted
the statute to restrict awards of the full $250,000 cap amount to only the most
severe cases imaginable, with all others scaled down in relation, a curious practice
which was rejected in Graves v. Secretary of Health and Human Services.
Bossenbroek, 2020 WL 2510454, at *1–2 (citing Graves, 109 Fed. Cl. 579, 589–90
(2013)).
The Special Master next described the Special Processing Unit (SPU)
established by a past Chief Special Master to deal with the large volume of SIRVA
cases, and explained the three routes to resolution---by proffer (when both sides
agree on the damages), stipulation (when both sides can reach a compromise), or
resolution by a special master. Id. at *2–3. He noted that stipulations are rare due
to an apparent government policy of refusing to compromise in these types of cases.
Id. The Special Master then detailed Ms. Bossenbroek’s injury and the medical
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treatment she received for it, including doctor’s appointments occurring after the
date of the hearing. Id. at *4–7.
Turning to the question of damages for past pain and suffering, the Special
Master rejected petitioner’s argument that damages awarded in other cases cannot
be relevant to the determination of her damages. Bossenbroek, 2020 WL 2510454,
at *8. He noted that the Graves decision, highlighted by Ms. Bossenbroek,
considered pain and suffering damages awarded in non-Vaccine Act cases. Id.
(citing Graves, 109 Fed. Cl. at 595–96). He also expressly rejected petitioner’s
suggestion that the Vaccine Act was intended to produce more generous awards
than would result from the tort system, noting the Act’s cap on pain and suffering
awards and prohibition on punitive damages. Id.; see also 42 U.S.C. § 300aa-
15(a)(4), (d)(1). The Special Master thus decided he would consider the pain and
suffering awards from other cases involving shoulder injuries in determining
petitioner’s compensation. Bossenbroek, 2020 WL 2510454, at *8. He reasoned that
awards in tort suits are usually rendered by juries that are presumed to find facts
thoroughly and accurately, id. at *9 (citing Francis v. Franklin, 471 U.S. 307, 324 n.
9 (1985)), and he looked first at decisions from outside of the vaccine program due to
petitioner’s claim that the amounts awarded within the program were
systematically too low, id.
The Special Master found the Secretary’s survey of tort verdicts “contains
useful information” and noted that Vaccine Act awards made through the SPU
process tended to be “more generous” than the tort verdicts.2 Id. He then noted
that the Knauss decision from the SPU involved a” roughly analogous” injury and
resulted in an award of $60,000. Bossenbroek, 2020 WL 2510454, at *10 (citing
Knauss, 2018 WL 3432906, at *8). After stating that the referenced cases both
within and outside the vaccine program “[c]ollectively . . . provide a framework for
evaluating” petitioner’s case,” id. the Special Master focused on Ms. Bossenbroek’s
circumstances.
The Special Master recounted the history of Ms. Bossenbroek’s injury,
including the medical treatments she received for it and the impacts it had on her
daily life. Id. at *10–11. He found “especially valuable” several data points from
the first two months after petitioner was vaccinated, which showed that the injury
had interfered with her ability to breastfeed and required her to visit a physical
therapist, but also that the worst of her pain had resolved within those two months.
2 He calculated the mean award from the tort survey data to be $31,105.89.
Bossenbroek, 2020 WL 2510454, at *9. Reasoned decisions awarding past pain and
suffering damages in the SPU ranged from $60,000 to $160,000, and an award
including future pain and suffering exceeded $200,000. See Nute v. Sec’y of Health
& Hum. Servs., No. 18-0140V, 2019 WL 6125008, at *9–10 & n.15 (Fed. Cl. Sp.
Mstr. Sept. 6, 2019).
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Id. at *10. The Special Master noted that by 2016, Ms. Bossenbroek’s injury was
only limiting her daily activities in minor ways, neither preventing her from
working as an attorney nor interfering with her ability to travel both for pleasure
and for work. Id. She did continue to suffer certain limitations, such as requiring
assistance with luggage and being unable to lift heavy boxes while moving. Id. The
Special Master reasoned that the fact that Ms. Bossenbroek did not seek any
medical attention for her shoulder during 2016 indicated that, though she continued
to suffer to some extent, her discomfort was not particularly great. Id.
The Special Master then summarized petitioner’s subsequent medical
history, including a reported shoulder pain rating of 2 out of 10 in early 2017, and
physical therapy primarily addressing pain incident to childbirth. Bossenbroek,
2020 WL 2510454, at *11. After being discharged from physical therapy in August
2018, petitioner declined the opportunity to continue rehabilitation of her shoulder.
Id. In July of 2019, an MRI of her shoulder was unremarkable, and she
subsequently declined the pain relief of a steroid injection. Id. Based on this
history, the Special Master determined that $50,000 was an appropriate level of
compensation for petitioner’s past pain and suffering. Id.
Regarding future pain and suffering, the Special Master concluded that Ms.
Bossenbroek was entitled to $300 per year, because her ongoing pain was mild. Id.
This was the figure proposed by respondent.3 Id. To convert this stream of
payments for projected pain and suffering to net present value, see 42 U.S.C.
§ 300aa-15(f)(4)(A), the Special Master was required to make findings with respect
both to the proper discount rate and Ms. Bossenbroek’s life expectancy. The
discount rate determination was something of a walkover, as petitioner presented
expert evidence from an economist supporting a 1% rate, and respondent urged a
2%, rate but presented no evidence. Bossenbroek, 2020 WL 2510454, at *11–12.
Accordingly, the Special Master found 1% was the proper rate. Id. at 12. Similarly,
Ms. Bossenbroek cited Social Security Administration data to support her estimate
of 52.2 additional years of life, while the Secretary proposed 48 years without
evidence. Id. at *11. But on this point, the Special Master merely characterized the
disagreement as a “slight difference” and did not expressly select either estimate,
announcing instead the conclusion that the sum of $11,692.19 for future pain and
3 The Special Master reported, incorrectly, that petitioner sought $1,200 per year.
Bossenbroek, 2020 WL 2510454, at *11. She in actuality requested $2,500 per year.
See Pet’r’s Mem. on Damages at 7. As the Special Master simply concluded that the
respondent’s position was correct and did not make a finding splitting-the-difference
between the two positions, this error was non-prejudicial.
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suffering was reasonable.4 The compensation awarded for all elements totaled
$62,901.49.
Petitioner filed a motion for review, challenging the amount of compensation
the Special Master awarded to her. See Pet’r’s Mot. at 1–2. Petitioner raises five
objections to the Special Master’s decision. Id. First, she claims that the Special
Master erred by relying on decisions in non-Vaccine Act cases to support his
decision. Id. at 1; see Pet’r’s Mem.at 3–14. Second, petitioner asserts the Special
Master erred in trying to craft an objective standard to value pain and suffering
instead of relying on his own subjective judgment. Pet’r’s Mot. at 1; Pet’r’s Mem. at
14–18. Third, petitioner contends that the Special Master erred by failing to credit
her evidence of emotional distress in fashioning an award. Pet’r’s Mot. at 1; Pet’r’s
Mem. at 19–20. Fourth, Ms. Bossebroek maintains that the Special Master erred by
not addressing the impact of inflation on pain and suffering awards. Pet’r’s Mot. at
1; Pet’r’s Mem. at 18–19. And finally, petitioner argues that the Special Master
failed to adequately explain or justify his calculation of future pain and suffering.
Pet’r’s Mot. at 2; Pet’r’s Mem. at 20. In defense of the Special Master’s decision,
respondent maintains that the Special Master did not abuse his discretion when he
relied, in part, on other awards both inside and outside the program. Resp’t’s Mem.
Resp. to Pet’r’s Mot. at 7–16 (Resp’t’s Mem.), ECF No. 103. Regarding the
emotional distress issue, respondent contends that the Special Master properly
focused his analysis on the objective medical evidence and evidence concerning the
limitations petitioner’s injury imposed on her activities and did not disregard any
evidence concerning Ms. Bossenbroek’s suffering. Id. at 16–18.
II. DISCUSSION
A. Legal Standards
Under the Vaccine Act, the compensation awarded to a petitioner found to
have suffered a compensable injury shall include an amount for “actual and
projected pain and suffering and emotional distress from the vaccine-related
injury,” up to $250,000. 42 U.S.C. § 300aa-15(a)(4). The Vaccine Act empowers this
court, in reviewing a special master’s decision, to “set aside any findings of fact or
conclusion of law of the special master found to be arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law and issue its own findings of fact
and conclusions of law.” 42 U.S.C. § 300aa-12(e)(2)(B). Findings of fact are to be
reviewed under the “arbitrary and capricious” standard; legal questions are to be
reviewed under the “not in accordance with law” standard; and an abuse of
discretion standard is used for discretionary rulings. See Munn v. Sec’y of Dep’t of
Health & Hum. Servs., 970 F.2d 863, 870 n.10 (Fed. Cir. 1992).
4 The Special Master also awarded $1,209.30 for out-of-pocket costs including, over
respondent’s objection, $474.62 for baby formula. Bossenbroek, 2020 WL 2510454,
at *12. This aspect of the award is unchallenged on review.
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Under the arbitrary and capricious review standard, “[i]f the special master
has considered the relevant evidence of record, drawn plausible inferences and
articulated a rational basis for the decision, reversible error will be extremely
difficult to demonstrate.” Hines ex rel. Sevier v. Sec’y of Dep’t of Health & Hum.
Servs., 940 F.2d 1518, 1528 (Fed. Cir. 1991). “An abuse of discretion occurs if the
decision is clearly unreasonable, arbitrary, or fanciful; is based on an erroneous
conclusion of law; rests on clearly erroneous fact findings; or involves a record that
contains no evidence on which the [special master] could base [his] decision.”
Cottingham ex rel. K.C. v. Sec’y of Health & Hum. Servs., 971 F.3d 1337, 1345 (Fed.
Cir. 2020) (citation omitted).
B. Analysis
Before analyzing the specific objections raised by Ms. Bossenbroek, a few
words first about the appropriate standards of review. Petitioner’s main arguments
are that the Vaccine Act precludes a special master from considering state court
verdicts or the awards of another special master, and as these are questions of
statutory interpretation, she generally invokes de novo review. Pet’r’s Mem. at 3.
This standard applies, however, only to the extent an objection may be determined
by statutory interpretation alone. See Hines, 940 F.2d at 1527.
The Secretary, on the other hand, suggests that since the amount awarded
for pain and suffering is being challenged, this involves a discretionary decision
reviewable for abuse of discretion. Resp’t’s Mem. at 6–7. The authority he cites to
establish the review standard, though, merely employed the standard without
explanation or justification. See Doe*34 v. Sec’y of Health & Hum. Servs., 87 Fed.
Cl. 758, 768 (2009). Respondent, however, also cites cases employing the arbitrary
and capricious standard of review. See Resp’t’s Mem. at 7 (citing Hibbard v. Sec’y of
Health & Hum. Servs., 698 F.3d 1355, 1363 (Fed. Cir. 2012) (citing Hines, 940 F.2d
at 1528)).
The Vaccine Act borrows verbatim the first subparagraph of standards listed
in the Administrative Procedure Act (APA). Compare 42 U.S.C. § 300aa-12(e)(2)(B)
(“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law”) with 5 U.S.C. § 706(2)(A) (same). In explaining when the abuse of discretion
standard applies in Vaccine Act cases, the Federal Circuit initially stated it is
“ordinarily used where the tribunal under review had a finite range of discretion
(e.g. to select a penalty, or to award a specific sum of damages, from within a range
of permissible alternatives).” Hines, 940 F.2d at 1527 (italics in original). The
following year, however, the Circuit added that the standard “will rarely come into
play except where the special master excludes evidence.” Munn, 970 F.2d at 870
n.10. The court also noted that the standards “vary in . . . degree of deference.” Id.
In that opinion, the Federal Circuit also clarified that when our court finds facts in
a Vaccine Act case, these determinations are reviewed “under the same standard by
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which [the Circuit] review[s] trial court fact findings in other contexts,” namely the
“clearly erroneous” standard. Id. at 871–72. This is because the “special statutory
deference” of the arbitrary and capricious standard is given to special masters due
to their expertise but does not extend to our court. Id. at 871.
Concerning whether the “abuse of discretion” standard applies to
determinations of awards for pain and suffering, the undersigned does not believe
that the subjectivity of these determinations makes them discretionary. Indeed, the
Vaccine Act mandates these awards, to the extent a petitioner proves them. 42
U.S.C. § 300aa-15(a), (a)(4) (“Compensation awarded . . . 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.”); see also 42 U.S.C. § 300aa-
13(a)(1) (mandating “[c]ompensation shall be awarded”).5 Accordingly, the approach
taken by the Federal Circuit to review damages determinations generally should
govern, adjusted for the deference the Vaccine Act affords special masters. The
arbitrary and capricious standard should be employed for “findings about the
general types of damages to be awarded, . . . their appropriateness, . . . and rates
used to calculate them.” Home Savings of Am. v. United States, 399 F.3d 1341, 1347
(Fed. Cir. 2005). On the other hand, “[t]he abuse of discretion standard applies to
decisions about methodology for calculating rates and amounts.” Id.
At the end of the day, it may matter little which of the two standards is
applied. When the two tests are discussed in the context of APA review, the Federal
Circuit has acknowledged that they are used “interchangeably.” Japanese Found.
for Cancer Research v. Lee, 773 F.3d 1300, 1304 n.3 (Fed. Cir. 2014). And, as we
have seen above, the abuse of discretion standard adopted for Vaccine Act cases is a
mashup of different standards, including the “clearly” arbitrary, the de novo error of
law, the clearly erroneous, and the substantial evidence tests. See Cottingham, 971
F.3d at 1345.6
5 Although the Federal Circuit has stated “[a]warding compensation for pain and
suffering is a discretionary matter and does not follow as of right when an award of
compensation for vaccine-related injuries is made,” Patton v. Sec’y of Dep’t of Health
& Hum. Servs., 25 F.3d 1021, 1030 (Fed. Cir. 1994), the context of the statement
indicates that what was meant was that such awards are not automatic and
ministerial but rather are the result of a “deliberative” process. That opinion later
noted, “Congress has specifically provided that pain and suffering associated with a
vaccine-related injury should be adequately compensated by means of a monetary
award.” Id. at 1030–31.
6 The Federal Circuit has recognized “[h]ow much difference, if any, these different
articulations of the standard of review would make in actual practice is a matter for
academic debate.” Munn, 970 F.2d at 872. See also Ass’n of Data Processing Serv.
Orgs., Inc. v. Bd. of Governors, 745 F.2d 677, 684 (D.C. Cir. 1984) (noting “the
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1. Does the Vaccine Act Preclude Consideration of Pain and Suffering Awards
from Non-Vaccine Act Cases?
Petitioner argues that the Vaccine Act prohibits special masters from
considering damage awards made in state court proceedings. Pet’r’s Mem. at 3–14.
She bases this argument on the text of the Act, its legislative history, and a
principle of national uniformity enunciated by the Federal Circuit. See id.
Petitioner’s textual argument begins by noting the Federal Circuit’s
explanation, in the Patton opinion, that because special masters are “creature[s] of
statute,” they must derive their powers from the Vaccine Act or the Vaccine Rules
implemented thereunder. Id. at 4 (citing Patton v. Sec’y of Dep’t of Health & Hum.
Servs., 25 F.3d 1021, 1027 (Fed. Cir. 1994)). In that case, a special master was
found to have erred when she relied on “inherent authority” to correct a mistake in
an award decision after final judgment had been entered by our court, as neither
the Act nor the Vaccine Rules in force at that time gave her a power to grant relief
from judgment. See Patton, 25 F.3d at 1024–27.7 The Vaccine Act, however,
expressly requires that a special master “shall issue a decision . . . with respect to
whether compensation is to be provided . . . and the amount of such compensation,”
and in the process a special master must reach “findings of fact and conclusions of
law.” 42 U.S.C. § 300aa-12 (d)(3)(A) & (A)(i). Accordingly, special masters do
plainly have the power to make legal and factual findings and to determine the
amount of compensation due under the various elements.
Focusing on the particular element of compensation at issue, Ms.
Bossenbroek maintains that the requirement to provide “[f]or actual and projected
pain and suffering and emotional distress from the vaccine-related injury, an award
not to exceed $250,000,” 42 U.S.C. § 300aa-15(a)(4), does not “authoriz[e] the
Special Master to look outside the Vaccine Act to determine a pain and suffering
award.” Pet’r’s Mem. at 4–5. She contrasts this with the language governing
another element, lost earnings, which provides decisional rules for two different
categories of claimants. Id. at 5 n.1 (citing 42 U.S.C. § 300aa-15(a)(3)(A)–(B)).
People who were eighteen years old or older when injured have their lost earnings
“determined in accordance with generally recognized actuarial principles and
projections.” 42 U.S.C. § 300aa-15(a)(3)(A). Those injured before turning eighteen
years of age have damages “determined on the basis of the average gross weekly
earnings of workers in the private, non-farm sector” adjusted for taxes and health
distinction between the substantial evidence test and the arbitrary or capricious
test is ‘largely semantic’”) (Scalia, J.) (citations omitted).
7 The rules were subsequently amended to provide this power to special masters.
See Vaccine Rule 36; see also Vessels v. Sec’y of Dep’t of Health & Hum. Servs., 65
Fed. Cl. 563, 567–68 (2005) (upholding the validity of Vaccine Rule 36).
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insurance premia. Id. § 300aa-15(a)(3)(B). Although noting the second rule as a
limit on authority, Mrs. Bossenbroek characterizes the first as a grant of authority
to “look to outside sources.” Pet’r’s Mem. at 5 n.1. But, contrary to petitioner’s
argument, both provisions demonstrate that when Congress wants to direct a
particular approach to the calculation of damages, it knows how to do it. Cf. Marx
v. Gen. Revenue Corp., 568 U.S. 371, 384 (2013) (“These statutes confirm that
Congress knows how to limit a court’s discretion . . . when it so desires.”); Mil.-
Veterans Advoc. v. Sec’y of Veterans Affs., 7 F.4th 1110, 1144 (Fed. Cir. 2021) (“That
Congress did not include an analogous provision . . . suggests that it simply did not
intend to do so.”). No such limitation was placed on special masters in connection
with pain and suffering awards, although these also include projections of future
circumstances. See 42 U.S.C. § 300aa-15(a)(4).
Petitioner maintains that the purpose of the Vaccine Act, as stated in the
legislative history, was to create a more generous alternative to the state tort
system, and that this purpose would be undermined if special masters considered
the size of state law pain and suffering awards in the course of making such awards
under the Act. Pet’r’s Mem. at 8–10 (citing Beck v. Sec’y of Health & Hum. Servs.,
924 F.2d 1029, 1033 (Fed. Cir. 1991) and Graves, 109 Fed. Cl. at 590). The Graves
decision from our court, to be sure, contains dictum borrowed from a Federal Circuit
dissent (representing the views of one-third of that court) that “it is clear from the
legislative history that Congress intended the Vaccine Act’s compensation program
to be more generous than the civil tort system.” Graves, 109 Fed. Cl. at 595
(quoting Cloer v. Sec’y of Health & Hum. Servs., 654 F.3d 1322, 1350 (Fed. Cir.
2011) (en banc) (Dyk, J., dissenting)). But the Court neither agrees with this
dictum nor finds it relevant to interpreting the provision in question.
A committee of one house of Congress stated, in a report concerning the
initial version of the Vaccine Act, that the legislation “establish[ed] a Federal ‘no-
fault’ compensation program under which awards can be made to vaccine-injured
persons quickly, easily, and with certainty and generosity.” H.R. REP. NO. 99-908,
pt. 1, at 3 (1986). It also believed that the no-fault basis of the program made it “an
appealing alternative to the tort system.” Id. at 26. The following year, when
Congress sought to amend the Act and effectuate it with a funding mechanism,
another report of that committee stated its “intention to create a compensation
system that is speedy and generous enough to dissuade petitioners from going on to
court.” H.R. REP. NO. 100-391(1), at 691 (1987) (emphasis added). The conference
report, reflecting the final version of the amendment which gave our court
jurisdiction under the Act, contains no reference to generosity of any kind. See H.R.
CONF. REP. No. 100-495, at 771–73 (1987). From this material, the most one can
say is that Congress intended the combined features of the Act, including its no-
fault basis, see 42 U.S.C. § 300aa-11(c)(1), the provision for attorneys’ fees, id. §
300aa-15(e)(1), (3), and its simplified procedures, see id. § 300aa-12(d)(2), to be
attractive to claimants who might otherwise file a tort suit. Generosity may simply
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be a description of the policy decision to relieve claimants of the need to pay for
attorneys and to prove that a vaccine manufacturer was at fault, as opposed to a
reference to the absolute size of damages awards, consisting of some elements which
are of fixed or capped amounts. See 42 U.S.C. § 300aa-15(a)(2), (4) ($250,000 flat
award for death benefits and cap for pain and suffering); see also Saunders v. Sec’y
of Dep’t of Health & Hum. Servs., 25 F.3d 1031, 1036 (Fed. Cir. 1994) (noting
limitations on recovery may make a Vaccine Act petition less attractive than a tort
suit).
In any event, the provision concerning pain and suffering awards does not
include any ambiguous language from which one might spin a particular limitation
on the special master’s methodology or process for calculating these damages. See
42 U.S.C. § 300aa-15(a)(4). We are not presented with a legislative term of art
which is defined in a conference report, the circumstance in which the use of
legislative history might be understandable. See Balestra v. United States, 119 Fed.
Cl. 109, 114 n.10 (2014), aff’d 803 F.3d 1363 (Fed. Cir. 2015). Instead, we have a
clear statutory provision into which petitioner would inject undefined terms such as
“generosity” or “generous enough.” But see Milner v. Dep’t of Navy, 562 U.S. 562,
574 (2011) (“Legislative history, for those who take it into account, is meant to clear
up ambiguity, not create it.”). Not only are these terms far from evincing a clear
purpose, but the same committee report evoking “generosity” contains language
which counsels restraint rather than generosity in making awards for pain,
suffering and emotional distress. See H.R. REP. NO. 99-908, pt. 1, at 21 (“The
Committee does not intend that all petitions for which compensation is awarded be
given the maximum level, but rather that the Master consider the individual pain
and suffering of the injured person, as well as the benefits conferred by other forms
of compensation within the legislation.”) (emphasis added). But with no ambiguity
in the text itself, the “inquiry thus begins and ends with what [the statute] does
(and does not) say.” Bartels Tr. for the benefit of Cornell Univ. ex rel. Bartels v.
United States, 617 F.3d 1357, 1361 (Fed. Cir. 2010); see also MORI Assocs., Inc. v.
United States, 102 Fed. Cl. 503, 539–40 (2011).
Generic goals, hopes, or aspirations of Congress for a particular program or
law cannot legitimately be employed by a court to add substantive guarantees or
restrictions to the actual text enacted. For instance, if Congress were to raise the
capital gains tax rate with the aim of raising revenue, but the result was a
reduction in taxes collected, a court could not substitute the lower rate necessary to
accomplish the legislators’ purpose, tempting though that course may be.8
The undersigned agrees with the late Justice Scalia’s rejection of the “purposivism”
approach to statutory interpretation, which locates the purpose of legislation not in
8 See Shahira E. Knight, U.S. Congress Joint Economic Committee, The Economic
Effects of Capital Gains Taxation 1, 7 (1997) (“The historical data suggest that the
government could collect more revenue if the capital gains rate were reduced.”).
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its text but in such extrinsic sources as legislative history. See Antonin Scalia &
Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 18–20, 56–58
(2012); see also id. at 376 (“The use of legislative history to find ‘purpose’ in a
statute is a legal fiction that provides great potential for manipulation and
distortion.”). Other than when correcting obvious typographical errors, a non-
textual purpose “cannot be used to contradict text or to supplement it.” Id. at 57;
see also INS v. Cardoza-Fonseca, 480 U.S. 421, 453 (1987) (Scalia, J., concurring in
the judgment) (“Where the language of these laws is clear, we are not free to replace
it with an unenacted legislative intent.”).
The Federal Circuit has recognized that the “overarching purpose” of the
Vaccine Act was for compensation to be awarded “‘quickly, easily, and with
certainty and generosity,’” Cloer v. Sec’y of Health & Hum. Servs. (Cloer II), 675
F.3d 1358, 1362 (Fed. Cir. 2012) (en banc) (quoting H.R. REP. NO. 99-908, pt. 1, at
3), aff’d sub nom. Sebelius v. Cloer, 569 U.S. 369 (2013), in the process of finding its
interpretation of the plain meaning of a provision to be consistent with this purpose.
But a few instances of the Federal Circuit noting that the purpose of the Act is
furthered by interpretations it has otherwise reached, see, e.g., Koston v. Sec’y of
Dep’t of Health & Hum. Servs., 974 F.2d 157, 161 (Fed. Cir. 1992); Beck by Beck, 924
F.2d at 1032–33, does not create any command that this purpose must be used to
graft restrictions onto the Vaccine Act text.9
Moreover, there are numerous decisions of the Federal Circuit in which this
purpose of “generosity” was not enlisted in interpretations of the Act which made
the program less advantageous to claimants. For instance, it would have been more
generous to interpret the pain and suffering cap as applying to future pain and
suffering damages after discounting these to net present value, rather than before.
But see Youngblood v. Sec’y of Dep’t of Health & Hum. Servs., 32 F.3d 552, 554–55
(Fed. Cir. 1994); see also McAllister v. Sec’y of Health & Hum. Servs., 70 F.3d 1240,
1242 (Fed. Cir. 1995). It would have been more generous to allow the estates of
minors who have died from vaccine-related injuries to receive awards for lost future
wages in addition to the death benefit and the pain and suffering award. But see
Tembenis v. Sec’y of Health & Hum. Servs., 733 F.3d 1190, 1194–96 (Fed. Cir. 2013).
Instead of generously finding that a second petition could be filed when a claimant
who had already received compensation for a vaccine injury subsequently died from
the injury, the Federal Circuit rejected this notion, recognizing that the Act
“contains several limitations and trade-offs that restrict recovery” and concluding
“that these limitations prevent certain individuals who have undoubtedly suffered
9 The Court notes that a preoccupation with this purpose of “generosity” had, on
one occasion, contributed to an erroneous judgment requiring correction by the
Supreme Court. See Whitecotton by Whitecotton v. Sec’y of Dep’t of Health & Hum.
Servs., 17 F.3d 374, 378 (Fed. Cir. 1994), rev’d sub nom. Shalala v. Whitecotton, 514
U.S. 268 (1995).
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as a result of a vaccine from receiving full (or any) compensation is beyond
question.” Zatuchni v. Sec’y of Health & Hum. Servs., 516 F.3d 1312, 1322 (Fed.
Cir. 2008).
Indeed, in the first Cloer en banc decision, the Federal Circuit construed the
Vaccine Act as not containing an implicit discovery rule which would have been
more generous to claimants, opting to follow “Congress’s express desire that the
Vaccine Act be ‘simple and easy to administer’ as well as ‘expeditious and fair.’”
Cloer v. Sec’y of Health & Hum. Servs. (Cloer I), 654 F.3d 1322, 1340 (Fed. Cir.
2011) (en banc) (quoting H.R. REP. NO. 99-908, pt. 1, at 7, 12). In so doing, the
Circuit rejected the dissent’s argument that was based, in part, on the remedial
nature and generous purpose of the Act. See Cloer I, 654 F.3d at 1350 (Dyk, J.,
dissenting). And, as the Special Master noted, see Bossenbroek, 2020 WL 2510454,
at *1, the Federal Circuit in Griglock emphasized that “the Vaccine Act provides a
generous compensation program, but with limits . . . to that generosity.” Griglock v.
Sec’y of Health & Hum. Servs., 687 F.3d 1371, 1376 (Fed. Cir. 2012). In that
opinion, issued four months after Cloer II, the Circuit determined as a textual
matter that the longer statute of limitations period for filing petitions for death
benefits could not be used to preserve untimely claims for medical expenses and
pain and suffering damages, finding “overarching policy arguments are not
availing.” Id. The Federal Circuit explained that “[t]he Vaccine Program is more
generous to petitioners than civil tort actions in some ways, e.g., presumption of
causation, less-adversarial proceedings, and relaxed rules of evidence,” but cited the
pain and suffering cap as an example of a limit that does not apply in civil tort
suits, and noted other limiting features such as the single petition rule, the statute
of limitations, and other compensation limits. Id. (citations omitted). Given such
features as the fixed death benefit, 42 U.S.C. § 300aa-15(a)(2), the prohibition on
punitive damages, id. § 300aa-15(d)(1), and, most importantly for this case, the cap
on pain and suffering awards, id. § 300aa-15(a)(4), there is no warrant for
interpreting individual provisions of the Vaccine Act under a gloss of generosity.
Ironically, the purposivism urged by petitioner poses the mirror image of the
practice rejected in Graves¸ one of the primary authorities upon which Ms.
Bossenbroek relies. See Pet’r’s Mem. at 9–11. In that case, at issue was the
approach of special masters to squeeze the entire continuum of pain and suffering to
fit within the zero to $250,000 range allowed by the Vaccine Act, so that pain and
suffering that was viewed to be some percentage of the most severe imaginable
would only merit that percentage of the $250,000 cap, even though it might have
corresponded to an award as much as fifty times that amount without regard to the
cap. See Graves, 109 Fed. Cl. at 581, 583, 588–89, 595–96. This “artificial” limit on
damages was found to be contrary to the proper construction of the cap provision.
See id. at 588, 591. But petitioner would insert into the process an equally artificial
concept, not a squeeze but a stretch---some sort of generosity premium above what a
tort suit award might be for the pain and suffering endured. Such a calculation
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would be impossible, of course, if Ms. Bossenbroek were correct that special masters
are forbidden from even considering the size of state court verdicts. See Tr.
(September 15, 2020) (Tr.), ECF No. 108, at 16. The matter is all the more
confounding, given petitioner’s somewhat counterintuitive suggestion that damage
awards in state tort cases could be systemically on the low side, due to the zeal with
which tortfeasors and their insurance companies will litigate. See Pet’r’s Mem. at
8.10 Fortunately, the text of the Vaccine Act contains no ambiguous “generosity”
provision mandating such an indeterminate award inflator.
Petitioner’s remaining argument against the consideration of damage awards
made in state court proceedings is based on the notion that “the Federal Circuit has
specifically rejected several attempts by parties in Program cases to inject State law
principles to vaccine cases brought in the Vaccine Program.” Id. at 6. The only
decision of the Federal Circuit cited to support this proposition was Shyface v. Sec’y
of Health & Hum. Servs., 165 F.3d 1344, 1351 (Fed. Cir. 1999).11 In that case, the
Circuit declined to base the determination of causation on the laws of the state
where the injury occurred, because doing so would threaten the uniformity and ease
of administration the Vaccine Act seeks to achieve. See id. Instead, the Federal
Circuit adopted the approach taken in the Restatement (Second) of Torts. Id. at
1351–53. Since Restatements are, by their nature, based on a survey of various
state judicial opinions,12 it is hard to see how Shyface can be used to preclude a
10 The conventional wisdom, and some data, seem to be to the contrary. See Honda
Motor Co. v. Oberg, 512 U.S. 415, 424 (1994) (explaining “[c]ommon-law courts in
the United States followed their English predecessors in providing judicial review of
the size of damages awards” because “juries sometimes awarded damages so high as
to require correction”); Theodore Eisenberg & Michael Heise, Judge-Jury Difference
in Punitive Damages Awards: Who Listens to the Supreme Court?, 8 J. EMPIRICAL
LEGAL STUD. 325, 332 (2011) (noting data which “makes clear that, consistent with
conventional wisdom, jury trials involved higher compensatory and punitive
damage awards than judge trials”); Joni Hersch & W. Kip Viscusi, Punitive
Damages: How Judges and Juries Perform, 33 J. LEGAL STUD. 1, 17–20 (2004)
(finding compensatory damages awards higher in jury than in bench trials, when no
punitive damages are involved).
11 Petitioner also cited one dissenting opinion. See Pet’r’s Mem. at 6 (citing
Zatuchni, 516 F.3d at 1330 (Dyk, J., dissenting)).
12 See, e.g., Shyamkrishna Balganesh, Relying on Restatements, 122 COLUM. L. REV.
2119, 2124 (2022) (“The black-letter text of Restatements is drawn directly from the
language and content of actual judicial opinions, which it synthesizes into succinct
directives.”). Concerns have been raised whether modern Restatements have
strayed from the function of describing the current state of common law in America.
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special master from consulting a survey of various state court verdicts. In any
event, damages verdicts are not the substantive law of a state, but rather the
factual determinations of juries concerning how particular amounts of pain and
suffering should be valued. These verdicts may, of course, be influenced by
peculiarities of state law such as differing approaches to contributory or
comparative negligence or local caps on pain and suffering damages. But the
Secretary had represented that none of the cases in the survey he presented
involved “findings of comparative/contributory fault,” Resp’t’s Br. on Damages at 6,
and no pertinent state caps on damages have been identified.
Petitioner argues that verdicts in non-Vaccine Act cases involve different
shoulder injuries than do SIRVA cases, which themselves vary greatly from
petitioner to petitioner. See Pet’r’s Br. at 13. But while these might be
considerations in reviewing how a special master used non-Vaccine Act verdicts,
they cannot justify a blanket ban on using such information. In the exercise of
calculating the monetary value of a particular amount of pain suffered in one part
of the body, the cause of the pain is of little relevance. This use of non-Vaccine Act
damages cannot be distinguished from the consideration of non-Vaccine Act
attorneys’ fees awards in deciding the proper amount to be awarded under the Act,
a practice which the Federal Circuit has affirmed. See Masias v. Sec’y of Health &
Hum. Servs., 634 F.3d 1283, 1292 (Fed. Cir. 2011). And it is the same practice
followed in Graves, where our court conducted a “survey of other pain and suffering
and emotional distress awards in other non-Vaccine Act cases” to determine that
the decedent’s compensation exceeded the cap. Graves, 109 Fed. Cl. at 595–96. For
the reasons stated above, the Court concludes that the Vaccine Act does not prevent
special masters from considering the damages awarded in non-Vaccine Act
proceedings when making award decisions.
2. Did the Special Master Abuse His Discretion in His Consideration of Other
Pain and Suffering Awards?
Even in the absence of a statutory bar on the consideration of damages
awards in other cases, there is still the possibility that the manner in which this
consideration is undertaken---the methodology employed by a special master---could
be an abuse of a special master’s discretion. Petitioner argues that the Special
Master improperly tried to craft an objective standard for determining pain and
suffering damages, rather than relying on his own, personal, subjective judgment.
Pet’r’s Mem. at 14–15. As discussed above, the Vaccine Act does not contain any
limitation on a special master’s process of calculating pain and suffering damages.
Nor can an attempt at objectivity be “clearly unreasonable, arbitrary, or fanciful.”
Cottingham, 971 F.3d at 1345.
See Kansas v. Nebraska, 574 U.S. 445, 475–76 (2015) (Scalia, concurring-in-part
and dissenting-in-part).
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While a requirement for objective evidence is not satisfied by mere subjective
belief, see, e.g., United States v. Mississippi Valley Generating Co., 364 U.S. 520,
560–61 (1961), there is no reason why a decision maker cannot base his subjective
judgment upon objective factors. Indeed, this is the basis for expert testimony, see
Fed. R. Evid. 702(b); General Electric Co. v. Joiner, 522 U.S. 136, 144–45 (1997)
(upholding exclusion of expert testimony which relied upon studies that “were so
dissimilar to the facts presented in th[e] litigation”); Apple Inc. v. Motorola, Inc.,
757 F.3d 1286, 1314 (Fed. Cir. 2014) (explaining that expert testimony may be
excluded when it rests on “legally insufficient facts and data”), and is what allows
our court to evaluate subjective decisions such as procurement choices, see
USfalcon, Inc. v. United States, 92 Fed. Cl. 436, 462 (2010) (review involves
“verifying that objective elements contained in the agency’s analysis . . . correspond
to the evidence in the record”).
Petitioner argues that a special master, in reaching his subjective judgment,
may only rely on the facts of the case before him, and thus cannot consider awards
by other special masters involving the circumstances of other petitioners. Pet’r’s
Mem. at 15. But the experiences of other people are frequently relied upon by
petitioners to prove eligibility for compensation, as these are the bases for
epidemiological studies. See Grant v. Sec’y of Dep’t of Health & Hum. Servs., 956
F.2d 1144, 1148–49 (Fed. Cir. 1992); Lampe v. Sec’y of Health & Hum. Servs., 219
F.3d 1357, 1366 (Fed. Cir. 2000) (noting “[a] study of many individual cases may be
useful evidence as to causation”). While such studies cannot be required proof, they
can be probative of causation. Andreu ex rel. Andreu v. Sec’y of Health & Hum.
Srvs., 569 F.3d 1367, 1379 (Fed. Cir. 2009). This type of evidence is not limited to
aggregate data but can also include case studies of individuals. See Paluck v. Sec’y
of Health & Hum. Servs., 786 F.3d 1373, 1379 (Fed. Cir. 2015). If a petitioner’s
entitlement to any award at all may be based, in part, on facts concerning other
individuals, it is hard to see why the amount of damages awarded cannot similarly
be based on such information. Indeed, petitioner acknowledges, see Pet’r’s Mem. at
15 n.8, that our court had previously found “nothing improper in [a] 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 [a] case.” Doe*34, 87 Fed. Cl. at
768. Paradoxically, Ms. Bossenbroek maintains this finding was “highly dubious,”
because of the large degree of discretion and subjectivity involved in the
determination of a pain and suffering award. Pet’r’s Mem. at 15 n.8.
But what is unreasonable about a special master, in his discretion, consulting
the subjective decisions of others, in reaching his own subjective judgment about the
monetary value of pain and suffering in a particular case? This is an area in which
most people have little to no frame of reference, and might be as at sea as a non-
physicist asked to estimate the weight of an elephant on the moon, or a person who
is not a racing enthusiast trying to guess the length of a Formula One circuit---and
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those queries have objective answers. There is, however, no market-determined
price for pain, suffering, and emotional distress, or even a catalogue containing the
going rate from one source. An expert, perhaps, can be called upon to put a dollar
figure on the loss of enjoyment of life, and derive the measure of what is called
hedonic damages.13 One early case in the vaccine program featured a hedonics
expert, see Wasson v. Sec’y of Dep’t of Health & Hum. Servs., No. 90-208V, 1992 WL
26662, at *4–5 (Fed. Cl. Sp. Mstr. Jan. 2, 1992), aff’d 988 F.2d 131, 1993 WL 18492,
at *2 (Fed. Cir. 1993) (per curiam), but the discipline does not seem to have caught
on.
Alternatively, a trier of fact could engage in the artificial activities of
considering how much he would pay to remove a particular amount of pain and
suffering, or would demand to be paid to endure it. See Jutzi-Johnson v. United
States, 263 F.3d 753, 758 (7th Cir. 2001) (citation omitted).14 Although these might
seem to be two sides of the same coin, academic literature has shown that the
perspective matters, and that good health already enjoyed is dearer than the move
from poor to better health. See Edward J. McCaffery, Daniel J. Kahneman &
Matthew L. Spitzer, Framing the Jury: Cognitive Perspectives on Pain and Suffering
Awards, 81 VA. L. REV. 1341, 1351–54 (1995).15 But since, masochists
notwithstanding, there is no discernible market for such bargains, a more practical
approach might be for the fact-finder to ask how much one would pay to insure
against the risk of pain infliction, or demand in order to assume a similar risk.16
While such an approach might be rooted in real-world circumstances, such as the
13 See Douglas L. Price, Hedonic Damages: To Value a Life or Not to Value a Life?,
95 W. VA. L. REV. 1055, 1056 (1993).
14 Some jurisdictions have apparently not allowed plaintiffs’ lawyers to suggest this
approach to jurors. See Ronen Avraham, Putting a Price on Pain-and-Suffering
Damages: A Critique of the Current Approaches and a Preliminary Proposal for
Change, 100 NW. U. L. REV. 87, 90 (2006); Mark Geistfeld, Placing a Price on Pain
and Suffering: A Method for Helping Juries Determine Tort Damages for
Nonmonetary Injuries, 83 CALIF. L. REV. 773, 831 (1995).
15 Those familiar with economic theory will recognize this as the “endowment
effect” or the difference between exchange and use value. See RICHARD A. POSNER,
ECONOMIC ANALYSIS OF LAW 19 (9th ed. 2014) (explaining the endowment effect);
RICHARD A. EPSTEIN, SUPREME NEGLECT: HOW TO REVIVE CONSTITUTIONAL
PROTECTION FOR PRIVATE PROPERTY 90–91 (2008) (discussing the consequences of
basing just compensation on fair market “exchange value” rather than subjective
“use value” of real property).
16 See Geistfeld, supra note 14, at 818–28.
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premium demanded to perform dangerous work or to insure a dangerous product, it
also relies on artificial factors such as an individual’s determination of the
likelihood of the injury and the size of the premium, and can be unrealistic.17
With these alternative forms of measurement being less than fully baked, the
ready-made measures in existence that fit the subject are awards in other cases. As
one of the more prominent jurists of the last half-century explained concerning pain
and suffering awards, if they are to be treated “as a standardless, unguided exercise
of discretion by the trier of fact,” then “[t]o minimize the arbitrary variance in
awards bound to result from such a throw-up-the-hands approach, the trier of fact
should . . . be informed of the amounts of pain and suffering damages awarded in
similar cases.” Jutzi-Johnson, 263 F.3d at 759 (Posner, J.) (citations omitted).
Writing for the Seventh Circuit, Judge Posner concluded “[i]t would be a wise
practice” for a judicial trier of fact “to set forth in his opinion the damages awards
that he considered comparable,” mirroring how his court reviewed pain and
suffering awards. Id. Thus, the consideration of damages awards in comparable
cases comes well recommended.
There is, of course, the danger that the case (or cases) to which one is
anchoring a damages determination is itself arbitrarily decided.18 Studies of jury
verdicts have shown a wide variance in damages awarded for cases of apparently
similar severity.19 Academic commentary supports the notion of averaging a
suitably large set of comparable cases, to eliminate the variability problem.20 But
determining comparability could be a difficult task, one perhaps better left in the
hands of experts rather than amateurs. Special masters should be particularly
cautious in using unexplained jury verdicts instead of reasoned bench
determinations to inform pain and suffering calculations. See Rafferty v. Sec’y of
Health & Hum. Servs., No. 17-1906V, 2020 WL 3495956, at *18 (Fed. Cl. Sp. Mstr.
17 See Avraham, supra note 14, at 109.
18 See, e.g., Geistfeld, supra note 14, at 792 (“If the system has been providing
overly arbitrary pain-and-suffering awards, and if we have no method for
determining the appropriate award in the first instance, why should we make prior
awards the cornerstone of future awards?”).
19 See id. at 784–85; see also Randall R. Bovberg, Frank A. Sloan & James F.
Blumstein, Valuing Life and Limb in Tort: Scheduling “Pain and Suffering,” 83
NW. U. L. REV. 908, 923–24 (1989).
20 See Hillel J. Bavli, The Logic of Comparable-Case Guidance in the Determination
of Awards for Pain and Suffering and Punitive Damages, 85 U. CIN. L. REV. 1, 18–
31 (2017).
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May 21, 2020) (finding “not helpful” verdict summaries with “no information
regarding the severity and duration of these injuries”).
Although Ms. Bossenbroek argues to the contrary, see Pet’r’s Br. at 11, 13,
here the special master did not rely on the unreasoned jury verdicts from tort cases
to determine the amount of pain and suffering damages he awarded. The Court
recognizes that it might well be an abuse of discretion were a special master to use
the damages awarded in another case, or an average of damages awarded in other
cases, to determine damages in the absence of a finding that the other cases are
comparable in terms of the severity, duration, or impact of the pain and suffering
being compensated. But here, the special master merely used the “useful
information” of pain and suffering awards for non-Vaccine Act shoulder injuries for
the purpose of verifying that SIRVA awards under the program were not less
generous than those awards. Bossenbroek, 2020 WL 2510454, at *9. After reaching
this conclusion, he made no further reference to the tort verdicts data. See id. at
*10–12. Nor did he find that the lower tort damages constituted a reason to depart
downward from past SIRVA awards, a conclusion which could be problematic in the
absence of any findings of comparability. He used the tort verdict data for purposes
of a reality check concerning the size of SIRVA awards generally, a methodology
which the Court finds is not “clearly unreasonable, arbitrary, or fanciful.”
Cottingham, 971 F.3d at 1345.
After noting that the verdicts survey information did not show that awards
under the Act were less generous than jury awards, the Special Master identified
the Knauss case from the program as “roughly analogous” and summarized the
main factors leading to a $60,000 award for pain and suffering in that case.
Bossenbroek, 2020 WL 2510454, at *10 (citing Knauss, 2018 WL 3432906, at *8).
While the Special Master explained, referring to the survey of verdicts and Knauss,
that “[c]ollectively, these cases provide a framework for evaluating the individual
circumstances of Ms. Bossenbroek’s case,” only the Knauss award is specifically
identified in his analysis. See id. at *10–12. He thus followed the unremarkable
approach of considering the damages awarded in the most analogous case from the
program, see, e.g., Doe*34, 87 Fed. Cl. at 768, which is not unreasonable as it
reflects a uniform approach to awarding these damages, see Shyface, 165 F.3d at
1351. The Special Master can hardly be faulted for identifying the case he found
most comparable to petitioner’s. See Jutzi-Johnson, 263 F.3d at 759. In any event,
the award determination is ultimately based on details from Ms. Bossenbroek’s
medical history and evidence of the impact of the injury on her activities, from
which the Special Master concluded “the worst of her pain lasted two months,” and
apparently found less actual pain and suffering than the Knauss injury involved.
See Bossenbroek, 2020 WL 2510454, at *10–11. Under the circumstances, the
Special Master looked to relevant evidence, drew plausible inferences, and
articulated a rational basis for the award, and thus did not act arbitrarily and
capriciously. Sevier, 940 F.2d at 1528.
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3. Was Emotional Distress Evidence Considered?
Petitioner somewhat cursorily argues that the Special Master erred by not
considering her evidence of emotional distress. See Pet’r’s Mem. at 19–20. She
maintains that his decision was based “strictly on petitioner’s level of physical pain
and suffering, relying upon the infrequency of her medical visits to conclude
petitioner suffered a low level of physical pain.” Id. at 19. Petitioner identifies
evidence of emotional distress that she contends was never discussed by the Special
Master, including lack of sleep, feeling like she was not a good mother, interference
with daily activities, time lost to appointments, and uncomfortable rehabilitation
routines. See App. to id. ¶ 18, ECF No. 100-1 at 4; id. at 20 & n.15.
Petitioner, however, concedes that she did not request any specific amount of
damages for emotional distress as such. See Tr. at 42. Her briefing before the
Special Master did not categorize any evidence as pertaining to “emotional
distress,” a phrase that does not even appear in her reply paper, see Pet’r’s Reply
Mem. on Damages at 1–17, and is used in her initial damages brief only in reference
to cases cited, not to evidence, see Pet’r’s Mem. on Damages at 8, 15. The Court
notes that the Special Master did discuss much of what Ms. Bossenbroek now
characterizes as emotional distress evidence in detailing the course of petitioner’s
injury, including trouble sleeping; interference with breastfeeding, and with moving
to a new home; the need to do yoga and stretches; and having to do “everything with
pain.” Bossenbroek, 2020 WL 2510454, at *4–7. He also recounted that “the winter
of 2015-16 was a very trying time for” petitioner. Id. at *5. And in his analysis, the
Special Master highlighted petitioner’s difficulty with breastfeeding and noted her
need to do stretches and yoga, her need for assistance carrying luggage and other
heavy objects, and the testimony of her witnesses about her continuing pain, while
concluding that the “inconveniences were relatively minor.” Id. at *10–11. These
references demonstrate that this type of evidence was not ignored.
The Special Master, to be sure, focused his analysis on relatively objective
measures of suffering, such as interference with Ms. Bossenbroek’s daily activities,
visits to medical professionals, and the pain rating provided to those medical
professionals as part of the treatment process. See id. This was not arbitrary or
erroneous. There was no objective evidence of appreciable emotional distress of
which the Special Master failed to take account, such as visits to a mental health
professional or medical records documenting emotional suffering. Instead,
petitioner points to certain passing references in the testimony of petitioner, or
affidavits executed by her, that mention her unhappiness with this situation. See
App. to Pet’r’s Mem. ¶ 18 (citing, inter alia, Exs. 7, 11, and 18, and Sp. Mstr. Tr. at
29). But even in the small snapshot of all the evidence to which the petitioner
directs the Court, the bulk of that testimony concerned physical pain, rather than
the resulting emotional distress. See Sp. Mstr. Tr. at 17, 19–20, 25, 28–29, 49, 66.
Under these circumstances, in which a case for a separate emotional distress
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component of damages was not attempted by petitioner, the Special Master
provided a detailed recitation of Ms. Bossenbroek’s medical history, and the Special
Master reasonably articulated the basis for his conclusion regarding the amount of
damages to be awarded, the Court can find nothing improper in the Special
Master’s consideration of evidence relating to emotional distress.
4. Should Inflation Have Factored into the Award Calculation?
Petitioner contends the Special Master erred by failing to discuss the effects
of inflation when calculating the award for pain and suffering. See Pet’r’s Mem. at
18–19; Tr. at 57–64, 109. She notes that the price level has more than doubled
since the vaccine program became effective in 1988, Pet’r’s Mem. at 18---a point she
raised before the Special Master, Pet’r’s Reply Mem. on Damages at 8–9---and that
some SIRVA awards were a decade old by the time her award was calculated, Tr. at
57, 60. And Ms. Bossenbroek again references the “generosity” animating the
program, arguing that Congress intended for the caps on pain and suffering awards
to be increased for inflation to keep awards “meaningful” rather than “token
amounts.” Pet’r’s Mem. at 18–19 n.13 (quoting H.R. REP. NO. 99-908, pt. 1, at 24).
But purposivism is even less availing for this topic, as the legislative history cited
concerned an inflation-indexing provision that was repealed by Congress at the time
the program was placed under our jurisdiction. See Pub. L. No. 100-203,
§ 4303(d)(2)(B) (repealing initial 42 U.S.C. § 300aa–18), § 4307 (assigning
jurisdiction to our court).
And while Ms. Bossenbroek is correct regarding the amount of inflation
suffered by our nation since 1988, this phenomenon has no bearing on the Special
Master’s award of damages for past pain and suffering, which was not expressed in
1988 dollars or based on 1988 awards. See Bossenbroek, 2020 WL 2510454, at *10–
11. Nor did the decade’s worth of inflation that accumulated since the advent of
SIRVA claims have any relevance to his decision. The one comparable case the
Special Master identified, which he found “roughly analogous” and presumably
involving greater suffering than Ms. Bossenbroek’s, was from just two years earlier.
See id. at *10 (citing Knauss, 2018 WL 3432906, at *8). With the low inflation
environment at that time, the roughly 2% in inflation need not have been discussed
for the calculation---which in any event did not strictly correspond to the Knauss
award---to be non-arbitrary. The Court recognizes, however, that it may well be
arbitrary for a special master to directly tie a damages calculation to an award in a
comparable case made several years in the past, without adjusting the prior award
for inflation. This, however, is not that case.
5. The Calculation of Future Pain and Suffering Damages
Regarding the final matter, the award for future pain and suffering, the
Special Master seems to have erred in two respects. The first error, which was
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harmless, was to incorrectly recite the per year amount of future pain and suffering
damages sought by petitioner. She requested $2,500 per year, see Pet’r’s Mem. on
Damages at 7, but the Special Master stated Ms. Bossenbroek asked for only
$1,200, Bossenbroek, 2020 WL 2510454, at *11. As the Special Master accepted the
respondent’s figure as appropriate, this error was not prejudicial. See supra note 3.
The Special Master did, however, fail to make a clear finding with respect to Ms.
Bossenbroek’s life expectancy when calculating this portion of the award. After
noting that petitioner used “a life expectancy calculator from the Social Security
Administration” to project another 52.2 years of life at that time, and explaining
that the Secretary’s proposal showed 48 additional years without any supporting
evidence, the Special Master fails to expressly choose either figure. See id. at *11–
12. Given the 1% net discount rate, which is unchallenged, the resulting award
seems to correspond to the 48-year projection. As the Special Master acknowledged
this figure was advanced “[w]ithout citing any evidence for life expectancy,” id. at
*11, a rational basis for this portion of the award has not been articulated, see
Sevier, 940 F.2d at 1528. Because the Court cannot determine the basis for the
award of $11,692.19 for future pain and suffering, this matter must be remanded to
the Special Master for an express determination of the life expectancy figure used to
calculate future pain and suffering. In addition, the Special Master shall adjust the
award for past pain and suffering to reflect the time that has passed since the
award decision was issued. See McAllister, 70 F.3d at 1243 (explaining that, on
remand, “the calculation of the award, including the allocation of compensation for
past and future pain and suffering, should be updated at that time”).
III. CONCLUSION
For the reasons stated above, petitioner’s motion for review is GRANTED-
IN-PART and DENIED-IN-PART. This matter is REMANDED to the Special
Master for an express determination of petitioner’s life expectancy for purposes of
calculating future pain and suffering damages, and an updating of past pain and
suffering damages reflecting the delay in entry of judgment due to the review
proceedings. Pursuant to 42 U.S.C. § 300aa-12(e)(2), the Special Master shall
complete proceedings on remand within 90 days.
IT IS SO ORDERED.
s/ Victor J. Wolski
VICTOR J. WOLSKI
Senior Judge
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================================================================================
DOCUMENT 4: USCOURTS-cofc-1_17-vv-00122-4
Date issued/filed: 2024-07-10
Pages: 7
Docket text: PUBLIC DECISION (Originally filed: 6/18/2024) regarding 127 DECISION Stipulation/Proffer Signed by Special Master Christian J. Moran. (ceo) Service on parties made.
--------------------------------------------------------------------------------
Case 1:17-vv-00122-VJW Document 131 Filed 07/10/24 Page 1 of 7
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
* * * * * * * * * * * * * * * * * * * * * * * * *
CHELSEA BOSSENBROEK, *
* No. 17-122V
Petitioner, * Special Master Christian J. Moran
v. *
*
SECRETARY OF HEALTH * Filed: June 18, 2024
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * * * * * * * * * * *
Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner;
Mallori Browne Openchowski, United States Dep’t of Justice, Washington, DC, for Respondent.
UNPUBLISHED DECISION1
On June 17, 2024, the parties filed a joint stipulation concerning the petition for
compensation filed by Chelsea Bossenbroek on January 27, 2017. This stipulation is adopted as
reasonable.
Petitioner alleged that the influenza vaccine she received on or about October 22, 2015,
which is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. §100.3(a), caused her to
suffer from a shoulder injury related to vaccine administration (“SIRVA”). On April 16, 2019,
the undersigned issued a Ruling on Entitlement, concluding that petitioner is entitled to
compensation.2 Petitioner was awarded compensation. Decision, 2020 WL 2510454, issued
Apr. 3, 2020.
Petitioner challenged the amount of compensation awarded by filing a motion for review.
The Court found an error, which required remand. Opinion and Order, 169 Fed. Cl. 418 (2024).
1 Because this Decision contains a reasoned explanation for the action taken in this case,
it must be made publicly accessible and will be posted on the United States Court of Federal
Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in
accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (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), the
parties have 14 days to identify and move to redact medical or other information, the disclosure
of which would constitute an unwarranted invasion of privacy. Any changes will appear in the
document posted on the website.
2 In the joint stipulation, Respondent maintains his contrary position, but will not seek
review of the decision memorializing entitlement.

Case 1:17-vv-00122-VJW Document 131 Filed 07/10/24 Page 2 of 7
Upon remand, the parties resolved the remaining disputes. Petitioner represents that there
has been no prior award or settlement of a civil action for damages on her behalf as a result of
her condition.
The parties agree to the joint stipulation, attached hereto. The undersigned finds said
stipulation reasonable and adopts it as the decision of the Court in awarding damages, on the
terms set forth therein.
Damages awarded in that stipulation include:
A lump sum of $66,209.30 in the form of a check payable to petitioner. This amount
represents compensation for all damages that would be available under 42 U.S.C.
§ 300aa-15(a).
In the absence of a motion for review filed pursuant to RCFC, Appendix B, the clerk is
directed to enter judgment according to this decision and the attached stipulation.3 The clerk is
further directed to inform the Court about this decision. See Vaccine Rule 28.1(a).
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
3 Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgment by each
party filing a notice renouncing the right to seek review by a United States Court of Federal
Claims judge.
2

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