VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_18-vv-01157
Package ID: USCOURTS-cofc-1_18-vv-01157
Petitioner: Yovanny Alonzo
Filed: 2018-08-09
Decided: 2024-04-04
Vaccine: influenza
Vaccination date: 2016-12-07
Condition: Guillain-Barre Syndrome (GBS)
Outcome: compensated
Award amount USD: 254742

AI-assisted case summary:
Yovanny Alonzo filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging that he suffered Guillain-Barre Syndrome (GBS) as a result of his December 7, 2016 influenza vaccination. The respondent conceded entitlement, agreeing that Mr. Alonzo met the criteria for a Table injury, with GBS onset occurring within the specified timeframe after a seasonal flu vaccination and no apparent alternative cause. The respondent also confirmed that Mr. Alonzo experienced residual effects of GBS for more than six months, satisfying the legal prerequisites for compensation. The case proceeded to damages, where the parties were unable to resolve the amount for some time. After an initial damages ruling, the parties submitted further briefs on the remaining issues, primarily concerning a Medicaid lien and future care needs. The court awarded Mr. Alonzo $170,000.00 for actual pain and suffering and $84,742.92 to satisfy a New York State Medicaid lien. Claims for a separate cash assistance lien and future care items were denied. The court noted that Mr. Alonzo could independently establish a special needs trust to protect his eligibility for government benefits.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_18-vv-01157-0
Date issued/filed: 2020-06-04
Pages: 2
Docket text: PUBLIC ORDER/RULING (Originally filed: 05/05/2020) regarding 65 Ruling on Entitlement Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
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Case 1:18-vv-01157-UNJ Document 67 Filed 06/04/20 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1157V
UNPUBLISHED
YOVANNY ALONZO, Chief Special Master Corcoran
Petitioner, Filed: May 5, 2020
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Ruling on Entitlement; Concession;
HUMAN SERVICES, Table Injury; Influenza (Flu) Vaccine;
Guillain-Barre Syndrome (GBS)
Respondent.
Robert Joel Krakow, Law Office of Robert J. Krakow, PC, New York, NY, for petitioner.
Adriana Ruth Teitel, U.S. Department of Justice, Washington, DC, for respondent.
RULING ON ENTITLEMENT1
On August 9, 2018, Yovanny Alonzo filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the
“Vaccine Act”). Petitioner alleges that he suffered Guillain-Barre Syndrome (“GBS”) as
result of his December 7, 2016 influneza (“flu”) vaccination. Petition at 1. The case was
assigned to the Special Processing Unit of the Office of Special Masters.
On May 1, 2020, Respondent filed his Rule 4(c) report in which he concedes that
Petitioner is entitled to compensation in this case. Respondent’s Rule 4(c) Report at 1.
1 Because this unpublished ruling contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services). This means the ruling will be available to anyone with access to
the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to
redact medical or other information, the disclosure of which would constitute an unwarranted invasion of
privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such
material from public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).

Case 1:18-vv-01157-UNJ Document 67 Filed 06/04/20 Page 2 of 2
Specifically, Respondent indicates that
[b]ased on the medical records outlined above, petitioner has satisfied the
criteria set forth in the revised Vaccine Injury Table and the Qualifications
and Aids to Interpretation,1 which affords petitioner a presumption of
causation if onset of GBS occurs between three and forty-two days after
receipt of a seasonal flu vaccination and there is no apparent alternative
cause. 42 C.F.R. § 100.3(a)(XIV)(D), (c)(15).
Id. at 6. Respondent further agrees that
the medical records demonstrate that petitioner has experienced the
residual effects of his GBS for more than six months. See 42 U.S.C. §
300aa-13(a)(1)(B); 42 U.S.C. § 300aa-11(c)(1)(D)(I). Therefore, based on
the case record as it now stands, petitioner has satisfied all legal
prerequisites for compensation under the Act.
Id.
In view of Respondent’s position and the evidence of record, I find that
Petitioner is entitled to compensation.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
2

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DOCUMENT 2: USCOURTS-cofc-1_18-vv-01157-1
Date issued/filed: 2023-09-11
Pages: 23
Docket text: PUBLIC DECISION (Originally filed: 08/14/2023) regarding 108 Findings of Fact & Conclusions of Law. Signed by Chief Special Master Brian H. Corcoran. (saj) Service on parties made.
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Case 1:18-vv-01157-UNJ Document 109 Filed 09/11/23 Page 1 of 23
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1157V
* * * * * * * * * * * * * * * * * * * * * * * * *
*
YOVANNY ALONZO, * Filed: August 14, 2023
*
Petitioner, *
*
v. *
*
SECRETARY OF HEALTH AND *
HUMAN SERVICES *
*
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * * *
Robert J. Krakow, Law Office of Robert J. Krakow, P.C., New York, NY, for Petitioner.
Lynn C. Schlie, U.S. Dep’t of Justice, Washington, D.C., for Respondent.
FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING DAMAGES
This matter was initiated on August 9, 2018. Petitioner alleged that he experienced
Guillain-Barré syndrome (“GBS”) after receipt of an influenza (“flu”) vaccine in 2016. Petition,
dated August 9, 2018 (ECF No. 1). The case was initially assigned to the “Special Processing Unit”
(“SPU”), since it was assumed the matter might settle easily—and indeed an entitlement ruling
(ECF No. 65) was entered in 2020 in Petitioner’s favor after Respondent’s concession.
Respondent’s Report, dated May 1, 2020 (ECF No. 64). Thereafter, a damages order was issued
on May 5, 2020, in the expectation that the parties could reasonably identify Petitioner’s damages
and agree to at least some common award components. Damages Order, dated May 5, 2020 (ECF
No. 66) (“Damages Order”).
In the ensuing three-plus years, however, the parties have been wholly unable to agree to a
single category of damages—resulting in the claim’s transfer out of SPU. I subsequently
established a briefing schedule affording the parties the opportunity to argue for the damages they
maintain are appropriate, with the hope that perhaps in so doing they might reach agreement on
the easier categories. They have now filed their respective briefs (Petitioner’s Brief, dated
December 16, 2022 (ECF No. 103) (“Br.”); Respondent’s Brief, dated January 20, 2023 (ECF No.
105) (“Opp.”))—and still, damages remain utterly unresolved.

Case 1:18-vv-01157-UNJ Document 109 Filed 09/11/23 Page 2 of 23
For the reasons set forth below, I find that the record is sufficient to decide two damages
components based solely on written submissions and the existing record: (i) pain and suffering,
and (ii) lost earnings. For the reasons stated below, Petitioner shall receive $170,000.00 in actual
pain and suffering, with no future component. Petitioner has not preponderantly demonstrated on
this record that his well-substantiated and pre-vaccination comorbid condition of diabetic
neuropathy does not “more likely than not” account for much of his ongoing/anticipated harm, but
he is still entitled to a substantial award of pain and suffering specific to his GBS, commensurate
with what similarly-situated claimants have received.
I will award no lost wages in this case, however—past or future. In addition to not linking
earning losses to his GBS (as opposed to identified ongoing diabetic neuropathy complications),
Petitioner has (despite having three years to prepare) failed to corroborate his claimed lost wages,
which remain wholly speculative. While the record suggests that Petitioner was employed before
his vaccination, and thus may have had some wage loss during his GBS treatment and recovery,
he has not substantiated these losses with any of the specificity required.
Both sides have also offered life care planner evidence to support their positions on future care
needs. I will decide the scope of future care costs after this Decision, via a hearing (at which time
both sides may offer testimony from their life care planners—although such testimony must not
rely on existing expert opinions on the scope of Petitioner’s harm, but instead the fact findings in
this Decision). The amount of the Medicaid lien (which according to the parties would reflect all
unreimbursed treatment expenses) will be determined later, as well.
I. Factual Summary
A. Pre-Vaccination Diabetes and Other Relevant Comorbidities
Mr. Alonzo’s pre-vaccination history bears significantly on the damages to be awarded
(even though otherwise his history was not an impediment to entitlement). Accordingly, that
history merits more explication than in cases where entitlement was otherwise resolved.
The record reveals that Petitioner experienced many comorbid conditions long before his
2016 vaccination. For example, he had a history of peripheral vascular disease, radiating lumbar
radiculopathy, and lumbar spondylosis, among other things. Ex. 2 at 5–11, 9, 24, 45, 54. More
significantly, he had been diagnosed with uncontrolled diabetes mellitus type II, with well-
documented history of consistently elevated glucose measurements and A1C measurements. And
he had been diagnosed with a peripheral autonomic neuropathy. Ex. 2 at 28–30. Indeed,
prescription records filed in this case for a ten-year period through mid-2017 reveal that Petitioner
had a gabapentin prescription (used for neuropathic pain) since at least January 2012 (six years
2

Case 1:18-vv-01157-UNJ Document 109 Filed 09/11/23 Page 3 of 23
pre-vaccination), although it is unclear how frequently this medication was actually taken. Ex. 1
at 33, 59, 65.
Numerous records filed in this case specifically establish Petitioner’s difficulties in
controlling his type II diabetes—as well as the sequelae he experienced due to it, even before his
vaccine injury. See, e.g., Ex. 2 at 45 (October 2013 treater visit, noting that Petitioner had type II
diabetes and his “blood glucose on today’s visit was 457 non-fasting very uncontrolled”),1 40–47
(2015 physical exam, non-fasting glucose was elevated (at 411), and the treater noted that
Petitioner was not taking his medication, while also observing that Petitioner suffered from
uncontrolled hypertension causing headaches), 30–32 (June 2015 visit revealed elevated fasting
glucose and A1C levels2 consistent with uncontrolled type II diabetes, as well that Petitioner’s
“abnormal responses to autonomic challenges . . . suggest autonomic dysfunction,” which was
later confirmed by testing).
In the summer of 2015, Mr. Alonzo saw a podiatrist for “evaluation of burning, tingling
pain bilateral feet.” Ex. 2 at 28. On physical examination, he displayed decreased light touch and
sharp dull sensation; the treater opined he suffered from idiopathic peripheral autonomic
neuropathy, and Petitioner was advised to continue with his gabapentin. Id. at 28–29. At the end
of 2015, he had a routine check-up with his primary care physician (“PCP”), and again his non-
fasting glucose was elevated at 231. Id. at 22. The treater also referred him to physical therapy for
lumbar radiculopathy. Id. at 24. Petitioner’s diabetes was again characterized as uncontrolled in
2016. Id. at 8–9. More significantly, in 2016 lower extremity arterial testing revealed the
possibility that Petitioner was suffering from “advanced autonomic dysfunction (Diabetic
Autonomic Neuropathy or DAN if the patient has diabetes).” Ex. 2 at 52. Thus, it cannot be
disputed in this case that Petitioner’s GBS occurred in the context of an existing neuropathic injury
attributable to his uncontrolled type II diabetes.
1 A fasting blood sugar level of 99 mg/dL or lower is normal; 100 to 125 mg/dL indicates prediabetes; and 126 mg/dL
or higher indicates diabetes. For a glucose tolerance test, which measures blood sugar two hours after drinking a
sugary drink, a blood sugar level of 140 mg/dL or lower is considered normal; 140 to 199 mg/dL is considered
prediabetes; and 200 mg/dL or higher indicates diabetes. Centers for Disease Control, Diabetes Tests, available at
https://www.cdc.gov/diabetes/basics/getting-testedhtml (last visited August 9, 2023).
2 The A1C test is a blood test that provides information about the average levels of blood glucose, also called blood
sugar, over the past 3 months, which can be used to diagnose type 2 diabetes and prediabetes. Nicholson v. Sec'y of
Health & Hum. Servs., No. 17-1416V, 2022 WL 14437541, at *23 (Fed. Cl. Spec. Mstr. Sept. 22, 2022) (citing The
A1C Test & Diabetes, NIH, National Institute of Diabetes and Digestive and Kidney Diseases,
wwwniddknih.gov/health-information/diagnostic-tests/a1c-test (last visited August 9, 2023)).
3

Case 1:18-vv-01157-UNJ Document 109 Filed 09/11/23 Page 4 of 23
B. Vaccination and GBS Diagnosis
Two weeks after his December 7, 2016 receipt of the flu vaccine, Petitioner presented to
the Emergency Department (“ED”) at New York Presbyterian Hospital for gait instability, bilateral
leg pain, and chest pain. Ex. 3 at 10. He also reported lower back pain that had been present for
“years,” and was able to ambulate with a cane, and once again blood testing revealed a high fasting
glucose level. Id. at 26, 49. Petitioner was released—but two days later (December 23, 2016) was
hospitalized at the Moses Campus of Montefiore Medical Center (“M-MMC”). Ex. 4 at 5.
Records from this hospitalization incorporate earlier records from Petitioner’s medical
history documenting his uncontrolled diabetes and diabetic neuropathy. Indeed, testing performed
at this time relevant to diabetes (such as measuring A1C levels) yielded results consistent with an
existing problem. Ex. 4 at 36, 554. Petitioner’s treating providers thus concluded (based both upon
exam evidence and the medical history) that Petitioner had an “ataxic variant of GBS on top of
chronic severe diabetic neuropathy.” Id. at 45, 94 (emphasis added).
Significantly, even at this early phase of Petitioner’s GBS course, treaters could distinguish
to some degree the impact of his preexisting type II diabetes-caused neuropathy from his more
recent neurologic symptoms. For example, in a December 28, 2016 record, a neurologist noted
that Petitioner’s EMG showed “a severe, distal sensorimotor polyneuropathy with mixed axonal
and demyelinating features, which is likely related to impaired glycemic control in this diabetic
patient.” Ex. 4 at 123 (emphasis added). The neurologist also pointed to “evidence of focal
enlargement of the median nerves at the wrists and ulnar nerves at the elbows when visualized
with ultrasound, suggesting multiple entrapments likely related to his underlying diabetes.” Id.
As a result, by the end of December 2016 another neurologist who encountered Petitioner
had diagnosed him with “[d]iabetic polyneuropathy associated with type 2 diabetes mellitus
(Chronic)” and “[a]xonal GBS.” Ex. 4 at 45 (emphasis added). In particular, the neurologist noted
that Petitioner’s EMG “shows mixed axonal and demyelinating neuropathy most likely due to
diabetes,” and thus such testing results confirmed that his GBS was occurring “on top of chronic
severe diabetic neuropathy.” Id.
After his discharge from in-patient rehabilitation, Petitioner was admitted to a different
facility in January 2017 for further rehabilitation. Ex. 4 at 521. Three months later, in April 2017,
it was noted that he was able to use a rolling walker to ambulate, and the power in his lower
extremities was 4-5/5. Id. at 77. Although he subsequently remained at this facility through
September 2017, the records reveal this was due to his inability to find outside housing, rather than
the ongoing need for rehabilitation therapy, since he had been discharged from all therapies well
before his release. See, e.g., Ex. 6 at 69–70, 76, 233, 527.
4

Case 1:18-vv-01157-UNJ Document 109 Filed 09/11/23 Page 5 of 23
In the fall of 2017, Petitioner continued to display testing results confirming the ongoing
presence of uncontrolled diabetes. Ex. 24 at 22, 28–29. By contrast, he did not reveal significant
ongoing GBS sequela. Thus, after he sought medical treatment in late November for lower back
pain and a lower back abscess, he as noted to be ambulating well (albeit with a cane). Ex. 28 at 27,
52, 61 (emphasis added). Petitioner received another podiatry evaluation in December 2017, but
his main complaints were itchy dry skin and some joint pain—and although he did display some
sensory sensitivities and parasthesias, he was assessed with neuropathy secondary to his type II
diabetes. Ex. 24 at 74–76. At a concurrent visit in early December to his PCP, Mr. Alonzo’s GBS
history was noted, but more concern was expressed about the blood test results consistent with
uncontrolled diabetes, as well as vascular issues and chronic kidney disease. Ex. 24 at 48, 52–54.
A visit around this time with a nephrology specialist confirmed that Petitioner’s kidney issues were
likely a product of his uncontrolled type II diabetes. Ex. 24 at 64, 67–69.
C. Treatment from 2018 to the Present
Petitioner has filed medical records for the ensuing five years, through the end of 2022, but
they all tell the same story: that of an individual with resolved GBS but unresolved type II
diabetes—resulting in many identifiably-related secondary conditions and sequelae.
In February 2018, for example, Petitioner presented to the ED at M-MMC for “kidney
failure,” and was discharged after a five-day hospitalization. Ex. 26 at 5. He was diagnosed with
“renal failure,” and although his prior GBS was noted, he did not display the kinds of neurologic
symptoms associated with it, and his ambulation was deemed reasonable. Id. at 33, 281. He
returned to the ER that summer complaining of lower abdominal and back pain, but displayed full
strength on a neurologic exam. Ex. 10 at 6, 8, 12. He was hospitalized from early June to mid-July,
and was ultimately diagnosed with pneumonia, causing several complications. Id. at 26. But any
weakness or symptoms that might arguably seem comparable to GBS were reported by Petitioner
to be “new to him” (Id. at 114), and he was noted to have no then-existing ambulation or mobility
issues (although he had used a walker). Id. at 152. No treaters involved in this event attributed his
condition in any regard to his prior GBS. See generally Ex. 10.
For the remainder of 2018, Petitioner sought medical care on several occasions—and
although he sometimes reported symptoms that could (in isolation) “look” like GBS sequelae,
more often than not the context suggested no association. Thus, Petitioner had a post-
hospitalization check-up in August 2018, at which time his diabetes-related neuropathy was noted
but not his GBS. Ex. 14 at 2, 5–6. That same month he had an evaluation for a renal transplant.
Ex. 32 at 2. Although it was stated at this time that weakness in his legs obligated him to use a
walker, he had a normal neurologic examination with intact cranial nerves and symmetrical intact
reflexes, and he did not report difficulties otherwise in functioning normally. Id. at 5, 30–31.
Fatigue that was reported during a related cardiology consult in September 2018 was deemed
5

Case 1:18-vv-01157-UNJ Document 109 Filed 09/11/23 Page 6 of 23
“much more prevalent over the past few months” (Ex. 29 at 8)—as opposed to since GBS
treatment, which ended in the spring of 2017—but Petitioner did not at this time display on
physical exam problems like gait abnormality was noted. Ex. 29 at 9. By contrast, Petitioner
received treatment for severe diabetic retinopathy in October (a direct sequela of his type II
diabetes). Ex. 18 at 6.
Records from 2020 are comparable in terms of what is revealed. A PCP visit in January
2020 confirmed elevated glucose and A26 levels—while a neurologic exam performed at the same
time showed normal strength and intact sensation bilaterally. Ex. 34 at 44, 47–48. An exam
Petitioner obtained the following month in connection with his kidney transplant inquiry also noted
mostly normal gait and reflexes, albeit with some weakness (attributed partially to deconditioning).
Ex. 32 at 73–74. In a psychosocial assessment around this time, Petitioner reported “no need for
assistance from a caregiver” and “no need for assistance with ambulation” in the past six months.
Id. at 63.
Later that spring, Petitioner returned to the ED at M-MMC, complaining of symptoms he
attributed to a failure to maintain his hypertension and diabetes medications—but neurologic
evaluations at this time (again) revealed intact sensation and motor function with no weakness. Ex.
30 at 18, 415. Additional visits to the ED that same month (at which times Petitioner complained
of post-dialysis headache) yielded consistent findings. See, e.g., Ex. 30 at 321, 324. Another ED
visit (likely, based on the records, due to pneumonia) in June 2020 also produced a normal
neurologic exam. Id. at 70. And pre-operative evaluations for eye surgery to treat cataracts also
observed intact strength and sensation, bilaterally. Ex. 34 at 16.
Petitioner has filed other medical records reflective of his treatment from 2021 through the
end of 2022. But none are inconsistent with what has already been described for a period more
than two and one-half years after Petitioner’s primary GBS treatment ended. In effect, they
underscore that (a) Mr. Alonzo has received large amounts of medical treatment, (b) his type II
diabetes remains uncontrolled, but (c) his motor/ambulatory functionality remains largely good,
and (d) he has not displayed any significant neurologic symptoms that might be considered
sequelae of his previously-diagnosed GBS, but instead reflect other likely intervening causes or
sources.3
3 One more recent record (signed by a treater around the time Petitioner offered his damages brief in this case) purports
to identify GBS-related sequelae, but it is facially unhelpful. See generally Ex. 50. On December 6, 2022, Petitioner
saw neurologist Casilda Balmaceda, M.D., (whom he first visited in May 2021—more than two years after the case
was filed) for “Dr. Pignaanili, guiollaui baare syndeome [sic].” Ex. 50 at 1. This visit, moreover, occurred in the
context of the parties’ efforts to brief their damages dispute.
Dr. Balmaceda wrote that Petitioner had a flu vaccine in 2016 and developed GBS. Ex. 50 at 1. But the record contains
numerous misspellings, contradictions, and errors. Thus, Dr. Balmaceda writes “12/22 he had GBS 2017.” Id. She
also writes both “he has not been weak” and in the same sentence, “feels week [sic],” and in the following sentence,
“now better when off the pt he notices weakeness [sic].” Id. On physical examination, she notes normal coordination
and no ataxia, and a normal gait, plus notes normal reflexes and a normal sensory exam in the bilateral lower extremity.
6

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II. Expert Input
In order to untangle Petitioner’s concurrent conditions, and provide some understanding of
what future care is appropriate, both sides have offered expert opinions on Petitioner’s medical
history.
A. Petitioner’s Expert – Dr. Justin Willer
Dr. Willer, a neurologist, has offered two reports in this matter pertaining to the disputed
damages issues. Report, dated July 19, 2022, filed as Ex. 40 (ECF No. 99-2) (“First Willer Rep.”);
Report, dated December 14, 2022, filed as Ex. 45 (ECF No. 103-1) (“Second Willer Rep.”). Dr.
Willer also performed an in-person medical exam of Petitioner—albeit in the context of this case
rather than as part of Petitioner’s contemporaneous treatment. See Exam Report, dated June 22,
2022, filed as Ex. 39 (ECF No. 99-1) (“Willer Exam”).
Dr. Willer received his undergraduate degree from Columbia College of Columbia
University and his medical degree from the University of Health Sciences/The Chicago Medical
School. See Curriculum Vitae, dated July 26, 2022, filed as Ex. 42 (ECF No. 99-4) (“Willer CV”)
at 1. Beginning in 1995, he has held hospital appointments at University Hospital, Long Island
College Hospital, Maimonides Hospital Medical Center, and Kings County Medical Center, but
he has not treated pediatric patients since 2000. Willer CV at 1; First Willer Rep. at 1. He has also
held academic appointments as a Neuromuscular Consultant and Assistant Professor of Clinical
Neurology at the State University of New York, HSC at Brooklyn. Willer CV at 1. He is licensed
to practice medicine in New York, New Jersey, and Florida, and is board certified by the American
Board of Psychiatry and Neurology, with added qualifications in clinical neurophysiology, and
American Board of Electrodiagnostic Medicine. Willer CV at 2; First Willer Rep. at 1.
Expert Exam
The in-person exam report is based on an actual visit Dr. Willer held with Petitioner in
June 2022. Willer Exam at 2. In it, Dr. Willer proposes that Petitioner’s neurologic condition
(while normal in several respects) also featured motor deficiencies (unsteady gait, abnormal
Romberg testing), absent ankle reflexes, and sensory issues specific to pinprick testing. Id. He goes
Id. at 2. However, she also appears to further note right foot drop, distal leg weakness (right more than left), right foot
and leg weakness, and persistent pain “likely related” to his GBS. Id. Then, she diagnoses him with chronic
inflammatory demyelinating polyneuritis/polyneuropathy (“CIDP”)—an exclusionary diagnosis for a GBS-flu
vaccine Table claim—but prescribes hydroxyzine, an antihistamine unrelated to GBS or CIDP, and also writes “Notes:
1, tests to lawyer.” Id. Because of the circumstances in which this record was created, and its facial inconsistencies, I
do not give it significant weight.
7

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on to assert (without offering a basis) that “the dysesthetic pain that Mr. Alonzo currently
experienced is causally related to [GBS] as it is identical to the pain that he experienced at the
onset of [his GBS],” that “it is intractable and on a more likely than not basis will not improve
further,” and that ongoing pharmaceutical, psychiatric, and neurologic care are called for as a
result.” Id. at 4.
Notably, however, Dr. Willer’s exam included review of some medical records—but only
those from after vaccination, or around the time Petitioner’s GBS was diagnosed. Willer Exam at
2–3. In addition, the “past medical history” section of the exam report makes only cursory mention
of Petitioner’s pre-existing diabetes, and no mention at all of his previously-diagnosed diabetes-
associated peripheral neuropathy. Willer Exam at 1–2. And it references Petitioner’s claim that
before vaccination, Petitioner “did not experience weakness, pain, numbness or tingling in his arms
and legs,” and was “compliant with diabetes medication, with fasting blood sugars in the 100s”—
assertions that are all rebutted by the actual pre-vaccination medical record in this case. Id. at 1.4
First Report
Dr. Willer’s first expert report spends several pages listing the materials he considered, and
then a few more setting forth Petitioner’s overall medical history (although it omits discussion of
Petitioner’s pre-vaccination health). First Willer Rep. at 3–10. In fact, Dr. Willer unpersuasively
suggests Petitioner’s past medical history was largely uneventful, summarizing it in the length of
a paragraph that only cursorily mentions his documented type II diabetes, and refers not at all to
Petitioner’s well-documented struggles in controlling it (as well as its noted secondary impacts on
his health). Id. at 11. His records summary contains no reference to anything that occurred in
Petitioner’s pre-vaccination history. Id. at 11–12.
From there, Dr. Willer offers the view that Petitioner’s post-vaccination pain and other
impairments are the product of his GBS, rather than established diabetic neuropathy. First Willer
Rep. at 11. These ongoing issues, he opines, support the extensive amounts of future care that
Petitioner is demanding in this case (as addressed below in more detail). In so doing, however, he
largely echoed the conclusory assertions contained in his shorter exam report. Id. at 11–12. Indeed,
he references the exam as support for his opinion. Id. at 12. He also cites some of Petitioner’s prior
witness statements. Id. at 12–13. He does not, however, grapple in any way with pre-vaccination
evidence establishing the severity of Petitioner’s concurrent diabetic neuropathy diagnosis—or the
post-vaccination record of those issues being deemed responsible for his ongoing symptoms rather
than GBS.
4 Perhaps anticipating such criticisms, Dr. Willer states in the introduction to the exam report that Petitioner was a
“poor historian even with a Spanish translator.” Willer Exam at 1. Of course, this is not an excuse for unfounded
medical conclusions, especially given the nature of the pre-vaccination record and what it so consistently establishes.
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Second Report
Dr. Willer’s second report5 endeavors to refute points made by Respondent’s expert, Dr.
Jeffrey Cohen. Although Dr. Willer provides no review of the pre-vaccination history records (and
indeed does not even identify them as having been evaluated as part of the preparation of the
second report), he maintains that Dr. Cohen made errors in that review (at least in opining that
Petitioner had experienced “large fiber diabetic neuropathy”). Second Willer Rep. at 1. In so doing,
he denied there existed a confirmed diagnosis for pre-GBS diabetic neuropathy (a contention, I
will note, that the medical records do not support). Id. at 2.
In so doing, Dr. Willer engaged in a point-by-point effort to rebut each item of evidence
that supported the existence of an ongoing neuropathy concurrent with GBS. For example, he
discounted the significance of Petitioner’s gabapentin prescription, arguing that it is “used for
neuropathic pain other than neuropathy,” or prescribed incorrectly. Second Willer Rep. at 2. He
denied that Petitioner had ever received a “confirmed” diabetic neuropathy diagnosis before, or at
the time of, Petitioner’s GBS hospitalization—citing verbatim records that do associate the results
with diabetes (e.g., Ex. 4 at 40, 90–94) but arguing that the same records were also consistent with
GBS. Id. at 2–3. He deemed Dr. Cohen’s analysis of EMG testing from December 2016 (which as
already noted confirmed the presence of the diabetic neuropathy)as “incorrect,” even though Dr.
Cohen does not dispute the GBS diagnosis (nor is it even in dispute). Id. at 2–3.6
Dr. Willer in particular attempted in his final written report to establish that Petitioner has
consistently reported gait disturbances or ataxia, which he seems to associate with GBS. See
Second Willer Rep. at 2–4. First, he denied the existence of pre-vaccination ataxia, observing some
instances from 2015 records in which neurologic exams were either (in his estimation) incomplete,
or otherwise observed normal motor function. Id. at 2. Second, he noted that normal gait findings
were observed post-vaccination by many treaters—although Dr. Willer contested the medical
reliability of such exams if not performed by neurologists. Id. at 3. When normal gait was observed
5 This report was filed at the same time Petitioner filed his damages brief—and hence was literally not in compliance
with my May 2, 2022 Scheduling Order (ECF No. 91)—which set July 29, 2022, as a hard deadline for filing
documents or expert reports in connection with the damages dispute. I have considered it nevertheless (as well as Dr.
Cohen’s responsive report filed thereafter), although due to its unapproved, eleventh-hour character I give it less
weight than the timely-filed first report from Dr. Willer.
6 In other places in the record (for example, 2021 EMG/NCS testing—notably, performed almost five years post-
vaccination, in a case involving a known acute injury) Dr. Willer quibbles with the results (which confirm the diabetic
neuropathy) directly as “technically unsatisfactory,” maintaining that “it is suspicious for a patient with a
radiculopathy to have zero chronic denervation,” and concluding that it therefore has “zero diagnostic value.”
Compare Second Willer Rep. at 4 with Ex. 36 at 1–5. Respondent, however, also did not deem this testing result as
worthy of weight, albeit for other reasons—and in any event preponderant record evidence strongly supports the
diabetic neuropathy diagnosis, post and pre-vaccination, without the need for this later testing to corroborate it.
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in connection with Petitioner’s renal treatment (which even Dr. Willer did not attempt to
characterize as a GBS-related condition), Dr. Willer opined that “it is not possible for Mr. Alonzo’s
gait to have been normal”—relying on either gait issues displayed at the time of Petitioner’s GBS
acute presentation in December 2016, his in-patient release in January 2017, or at his own exam
of Petitioner more than five years later. Id. at 3–4.
B. Respondent’s Expert – Dr. Jeffrey Cohen
Dr. Cohen, a neurologist like Dr. Willer, prepared two expert reports for Respondent.
Report, dated August 22, 2022, filed as Ex. A (ECF No. 101-1) (“First Cohen Rep.”); Report,
dated January 13, 2023, filed as Ex. F (ECF No. 104-1) (“Second Cohen Rep.”).
Dr. Cohen received his undergraduate degree from Tulane University, master’s degree in
healthcare administration from the University of Denver, and medical degree from the University
of Oklahoma. See Curriculum Vitae, dated August 31, 2022, filed as Ex. B (ECF No. 101-6)
(“Cohen CV”) at 1; First Cohen Rep. at 1. He completed a residency in neurology at Mount Sinai
Hospital in New York, New York, a clinical and research fellowship in neurology at the
Massachusetts General Hospital, and a fellowship in peripheral nerve disease at the Mayo Clinic
in Rochester, Minnesota. Willer CV at 1; First Cohen Rep. at 1. He is the Director of the ALS
Clinic and Diamond Endowment Project/Scientific Review Committee in Neurology at
Dartmouth-Hitchcock Medical Center in Lebanon, New Hampshire. Cohen CV at 2. He has also
held academic positions as a professor of neurology at the Geisel School of Medicine at Dartmouth
in Hanover, New Hampshire. First Cohen Rep. at 1–2. He is licensed to practice medicine in New
Hampshire, and is board certified by the American Board of Psychiatry and Neurology, American
Board of Electrodiagnostic Medicine, American Academy of Pain Management, American Society
of Neurorehabilitation. Cohen CV at 3. He has also authored a number of peer reviewed articles
related to neurology, specifically peripheral nerve disorders. First Cohen Rep. at 2.
First Report
Dr. Cohen’s first report included a review of Petitioner’s medical history—but in contrast
to Dr. Willer’s exam and initial report, he included extensive commentary on Petitioner’s pre-
vaccination record and the history of poorly-controlled diabetes it revealed. First Cohen Rep. at 2–
3. He also opined that the records suggested that Petitioner’s GBS recovery was “excellent,” while
noting that numerous treatment events after January 2017 were demonstrably the product of
diabetes rather than deemed to be GBS-related. Id. at 4–5.
Dr. Cohen next provided a brief description of GBS, contrasting it with the diabetic
neuropathy of the kind Petitioner also suffers from. First Cohen Rep. at 5–6. GBS, he noted, is
typically monophasic, quickly reaching nadir within a few weeks, and “the clinical picture” for
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GBS will be characterized more by weakness and sensory loss than pain. Id. at 5–6. Although
recovery from GBS may not occur until some time after nadir, it is not progressive in character. A
diabetic neuropathy, however, is usually progressive (especially when the product of uncontrolled
diabetes), and can feature renal failure and retinopathies as well as other neuropathic symptoms.
Id. at 5–6; E. Feldman et al., Diabetic Neuropathy, 5 Nature Reviews – Disease Primers 1, 2
(2019), filed as Ex. A Tab 1 (ECF No. 101-2) (“Feldman”). Pain is also more common than with
GBS, although diabetic neuropathy can later impact motor neurons. First Cohen Rep. at 6; Feldman
at 2. Overall, Petitioner’s history post-GBS recovery in 2017 was in Dr. Cohen’s view far more
consistent with the impact of diabetic neuropathy than GBS. Id. at 6, 9.
Next, Dr. Cohen commented on Dr. Willer’s exam and first report. He emphasized the
extent to which Petitioner’s actual medical history had not been discussed (beyond the allowance
by Dr. Willer that Petitioner may not have accurately reported his prior experience with diabetic
neuropathy), and also how Petitioner’s experiences since 2017 were consistent with the effects of
an existing, progressive diabetic neuropathy. First Cohen Rep. at 6–7.
Because, in Dr. Cohen’s view, most of Petitioner’s treatment history from the middle of
2017 onward was not focused on GBS, future care expenses deemed necessary by Petitioner’s life
care planner in fact did not reflect treatment of GBS sequelae. Indeed, other than Dr. Willer (in
2022), Dr. Cohen noted, Petitioner had not even seen a neurologist since the time of his GBS-
related hospitalization. First Cohen Rep. at 7. And other life care plan recommendations, such
transportation to avoid risks posed by an unsteady gait, were inconsistent with evidence of
Petitioner’s actual condition—and in any event reflected diabetes sequelae. Id. at 8. Dr. Cohen
thus opined that the life care plan submitted by Petitioner, which expressly relied on Dr. Willer’s
opinion, was not well-founded, given the extent to which Petitioner’s ongoing issues were
unrelated to his GBS. Id.
Second Report
Dr. Cohen also prepared a supplemental, two-page letter report reacting to Dr. Willer’s
second report. See generally Second Cohen Rep. He reiterated his earlier opinion, but offered some
additional commentary on the nature of diabetes and its complications. Second Cohen Rep. at 1.
In Dr. Cohen’s view, diabetes features three major complications: “neuropathy, nephropathy, and
retinopathy.” Id. And a common subset of diabetic neuropathy is diabetic sensory neuropathy
(“DSN”), which can feature autonomic harm to the small nerve fibers but without motor
involvement. Id. As a result, testing used to evaluate small fiber neuropathies—a skin biopsy—is
useful. Id.
In this case, Mr. Alonzo had been evaluated as having abnormal autonomic responses,
based on EMG and nerve conduction tests. Second Cohen Rep. at 1. That testing, Dr. Cohen
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opined, actually had demonstrated “axonal predominance, a feature of DSN but not usually a
feature of GBS,” where testing more commonly reveals evidence of demyelination. Id.; Ex. 4 at
45, 123 (showing abnormal NCV and EMG studies from December 30, 2016). Thus, given that
Petitioner’s diabetic neuropathy diagnosis predated his vaccine-caused GBS, and given the
progressive nature of diabetic neuropathies (as well as Petitioner’s demonstrated lack of control
over his type II diabetes), the record provided additional support for the conclusion that Petitioner’s
symptoms from 2017 on were largely related to his diabetes. (This also included the pain he
complained of in his feet, which he had experienced even before vaccination). Second Cohen Rep.
at 2.
III. Parties’ Damages Positions
A. Unreimbursed Expenses
Petitioner represents that all previously unreimbursed medical care costs associated with
his injury were covered under Medicaid, meaning they will be wholly captured by a Medicaid
Lien. Br. at 41. As of the time of filing of Petitioner’s damages brief, however, the sum still
remained to be calculated, and Petitioner has not in the ensuing eight months filed anything
establishing what is likely requested (although he allows that untangling in this Decision what
medical costs are specific to GBS versus Petitioner’s other, unrelated neuropathic symptoms would
render this issue “ripe”). Id. Because this number remains unrevealed, Respondent offers no
comment on it. Opp. at 52.
Petitioner also has made a demand for future care, reflected in the life care plan provided
by Nurse Linda Latjerman—a total of $3,246,832.07. Br. at 40; Life Care Plan, dated July 29,
2022, filed as Ex. 43 (ECF No. 100-1) (“Latjerman Plan”). Nurse Latjerman repeatedly
acknowledges in her plan, however, that many of the recommended care provisions are the result
or reflective of Dr. Willer’s opinions. See, e.g., Latjerman Plan at 6–8.
Respondent maintains in reaction that no future care has been justified. Opp. at 47–53.
Relying on the opposing life care plan offered by Nurse Nancy Fox (and the explanatory report
that accompanied it) he argues that the elements of this plan are based on speculative and
unsubstantiated views about the nature of Petitioner’s injury provided by Dr. Willer, ignoring the
degree to which Petitioner’s current and expected sequelae were a product of his preexisting
diabetic neuropathy. Id. at 48–50; Fox Report, dated Aug. 25, 2022, filed as Ex. C (ECF No. 101-
7); Fox Life Care Plan, dated August 25, 2022, filed as Ex. D (ECF No. 101-8). The plan also
lacks insurance offsets, includes care elements that the evidence does not suggest Petitioner
requires given his existing needs, and that the pain and suffering award could be fashioned to take
into account any possible future care issues. Id. at 50–52.
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B. Lost Wages
Petitioner maintains that regardless of his pre-vaccination health, he was then a “fully
functional and able” 46-year old, employed as a barber and earning $12,500.00 per year. To
substantiate this sum, he has offered only two items of proof: his affidavit (Ex. 16) and a co-
worker’s handwritten (in Spanish) affidavit (although the statement as translated makes no
mention whatsoever of the Petitioner’s employment (See Exs. 52–53)). Based on these two items
of evidence, he proposes he should receive past lost wages for six years, from December 2016 to
the time of the filing of the damages brief, or a total of $72,500.00. Br. at 43.
In addition, he calculates that (based on the fact that he is now 52 years old) he could have
expected 18 additional years of work, but for his injury. Br. at 44. He offers an unsworn statement
from Paul Peralta, a construction company manager, who vouches for Petitioner’s competence,
and represents he would have hired him but for his injury. Ex. 38. Petitioner, however, relies on
his assertions of prior work as a barber for the future lost wages sum, calculating them to amount
to $225,000.00, albeit needing to be reduced to present value. Br. at 44.
Respondent denies that Petitioner has substantiated any wage loss in this case. Opp. at 53–
55. He notes that Petitioner has not substantiated his employment claims with any actual evidence
showing he did in fact receive compensation for work in the amounts demanded, and disputes the
value of the two witness statements. Id. at 53–54. Although Respondent does not contest that
Petitioner’s employment was referenced in medical records filed in this case, he notes that the kind
of “hard” evidence (income statements, tax returns, etc.) have never been filed. Id. at 54. In
addition, Respondent deems Petitioner’s future wage loss claim speculative, especially since the
comorbidities that Respondent considers as explanatory of Petitioner’s current sequelae and care
needs are more likely the reason Petitioner could not work. Id. at 54–55.
C. Pain and Suffering
Petitioner demands $250,000.00 in pain and suffering, the full amount allowed under the
Vaccine Act. Br. at 37–39. In so proposing, he relies heavily on Dr. Willer’s assessment of
Petitioner’s post-vaccination condition—and the idea that not only was treatment significant, but
(a) it left him with significant sequelae (including abnormal gait), and (b) that he has not suffered
from an even more severe diabetic neuropathy that explains his ongoing poor health. Id. at 38–39.
As a comparable case, he cites Hood v. Sec’y of Health & Hum. Servs., No. 16-1042V, 2021 WL
5755325 (Fe. Cl. Spec. Mstr. Oct. 19, 2021), where a different special master awarded past pain
and suffering in the amount of $200,000.00 to a petitioner who experienced GBS over a six-year
period, as alleged here. Br. at 38; Hood, 2021 WL 5755324, at *10. In addition, the Hood petitioner
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received a future component in the sum of $1,000.00 per year, since the record showed he had
ongoing debilitating symptoms. Id. Here, Petitioner maintains his condition is even more severe.
Br. at 39–40.
Respondent contends that a total award of $165,000.00 for past pain and suffering is
appropriate. Opp. at 34. He deems Petitioner’s circumstances distinguishable from Hood, where
the claimant had offered substantive evidence of the impact his injury had on his physical job as a
butcher plus his physical health. Id. at 35. By contrast, Respondent noted a number of decisions in
which individuals experiencing GBS due to the flu vaccine received less than $200,000.00 for pain
and suffering. Id. at 36; Presley v. Sec’y of Health & Hum. Servs., No. 17-1888V, 202 WL 1898856
(Fed. Cl. Spec. Mstr. Mar. 23, 2020) ($180,000.00 for worse course and better-documented post-
injury limitations); Bircheat v. Sec’y of Health & Hum. Servs., No. 19-1088V, 2021 WL 3026880
(Fed. Cl. Spec. Mstr. June 16, 2021) ($170,000.00 awarded despite severe course and difficult
rehabilitation); Johnson v. Sec’y of Health & Hum. Servs., No. 16-1356V, 2018 WL 5024012 (Fed.
Cl. Spec. Mstr. July 20, 2018) ($180,000.00 awarded, where ongoing sequelae solely related to
GBS were established). Respondent thus deems his proposed figure to be on such a spectrum, if
lower.
Future pain and suffering, however, is not (in Respondent’s view) justified by this record
or applicable case law. Opp. at 37–46. Some “objective evidence of ongoing neurologic deficits
or symptoms” related to GBS must be demonstrated for a future component, but are absent from
this record. Id. at 37–38. But after his initial care, Petitioner did not even see a neurologist again
before late 2021, and is receiving no GBS-specific treatment. Id. at 38. By contrast, any current
health issues he is experiencing are related solely to his uncontrolled diabetes and diabetic
neuropathy—a through line in his health history since before vaccination. Id. And Dr. Willer’s
efforts to opine otherwise ignore large pieces of the medical history, and the opinion he offers far
less reliable or persuasive than what Dr. Cohen has offered. Id. at 40–45.
IV. Relevant Law on Damages Determinations
A. General Considerations
A petitioner may recover “actual unreimbursable expenses incurred before the date of
judgment awarding such expenses which (i) resulted from the vaccine-related injury for which the
petitioner seeks compensation, (ii) were incurred by or on behalf of the person who suffered such
injury, and (iii) were for diagnosis, medical or other remedial care, rehabilitation . . . determined
to be reasonably necessary.” Section 15(a)(1)(A)(i) – (iii). The petitioner bears the burden of proof
with respect to each element of compensation requested. Brewer v. Sec’y of Health & Hum. Servs.,
No. 93-0092V, 1996 WL 147722, at *22–23 (Fed. Cl. Spec. Mstr. Mar. 18, 1996).
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As noted above, this provision of the Act permits recovery of costs to be incurred for future
care, although such costs must be shown to be “reasonably necessary.” Section 15(a)(1)(A)(iii)(I)
– (II). The meaning of the phrase “reasonably necessary” is somewhat imprecise, as I have
recognized in other cases. Barone v. Sec'y of Health & Hum. Servs., No. 11-707V, 2016 WL
3577540 (Fed. Cl. Spec. Mstr. May 12, 2016) (citing I.D. v. Sec'y of Health & Human Servs., No.
04–1593V, 2013 WL 2448125, at *6 (Fed. Cl. Spec. Mstr. Apr. 19, 2013) (defining “reasonably
necessary” to mean “that which is required to meet the basic needs of the injured person . . . but
short of that which may be required to optimize the injured person's quality of life”); see also
Bedell v. Sec’y of Health & Hum. Servs., No. 90-765V, 1992 WL 266285 (Cl. Ct. Spec. Mstr. Sept.
18, 1992) (defining the term to mean more than merely barely adequate, but less than the most
optimal imaginable). And it goes almost without saying that such costs must also pertain to care
associated with the alleged injury or its sequelae.
B. Pain and Suffering
Compensation awarded pursuant to the Vaccine Act shall include “[f]or actual and
projected pain and suffering and emotional distress from the vaccine-related injury, an award not
to exceed $250,000.00.” Section 15(a)(4). There is no mathematic formula for assigning a
monetary value to a person’s pain and suffering and emotional distress. I.D., 2013 WL 2448125,
at *9 (“[a]wards for emotional distress are inherently subjective”); Stansfield v. Sec’y of Health &
Hum. Servs., No. 93-0172V, 1996 WL 300594, at *3 (Fed. Cl. Spec. Mstr. May 22, 1996).
Factors to be considered when determining an award for pain and suffering include: 1)
awareness of the injury; 2) severity of the injury; and 3) duration of the suffering. I.D., 2013 WL
2448125, at *9 (citing McAllister v. Sec’y of Health & Hum. Servs., No 91-1037V, 1993 WL
777030, at *3 (Fed. Cl. Spec. Mstr. Mar. 26, 1993), vacated and remanded on other grounds, 70
F.3d 1240 (Fed. Cir. 1995)). I may consider prior pain and suffering awards to aid my resolution
of the appropriate amount of compensation for pain and suffering in this case. See, e.g., Doe 34 v.
Sec’y of Health & Hum. Servs., 87 Fed. Cl. 758, 768 (2009). And, of course, I may rely on my
own experience adjudicating similar claims. Hodges v. Sec’y of Health & Hum. Servs., 9 F.3d 958,
961 (Fed. Cir. 1993) (noting that Congress contemplated that the special masters would use their
accumulated expertise in the field of vaccine injuries to judge the merits of individual claims).
Although pain and suffering in the past was often determined based on a continuum, as
Respondent argues, that practice was cast into doubt by a decision from several years ago. Graves
v. Sec’y of Health & Hum. Servs., 109 Fed. Cl. 579 (Fed. Cl. 2013). Graves maintained that to do
so resulted in “the forcing of all suffering awards into a global comparative scale in which the
individual petitioner’s suffering is compared to the most extreme cases and reduced accordingly.”
Graves, 109 Fed. Cl. at 589–90. Instead, Graves assessed pain and suffering by looking to the
record evidence, prior pain and suffering awards within the Vaccine Program, and a survey of
similar injury claims outside of the Vaccine Program. Id. at 593–95. Under this alternative
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approach, the statutory cap merely cuts off higher pain and suffering awards—it does not shrink
the magnitude of all possible awards as falling within a spectrum that ends at the cap. Although
Graves is not controlling of the outcome in this case, it offers a reasoned understanding of the
issues involved in pain and suffering calculations, and underscores the importance of evaluating
pain and suffering first and foremost on the basis of the injured party’s own experience.
Program decisions have generally recognized that GBS is a particularly frightening injury,
given its nature and progression. Enstrom v. Sec'y of Health & Hum. Servs., No. 20-2020V, 2023
WL 345657, at *6 (Fed. Cl. Spec. Mstr. Jan. 20, 2023) (awarding $170,000.00 in pain and
suffering) (citing Gross v. Sec'y of Health & Human Servs., No. 19-0835V, 2021 WL 2666685, at
*5 (Fed. Cl. Spec. Mstr. Mar. 11, 2021)). As a result, it is common to award actual pain and
suffering amounts in such cases in excess of $100,000.00—and typically even more.7 Enstrom,
2023 WL 345657, at *6 n.14 (observing that in the majority of prior decisions, actual pain in
suffering awards made in reasoned decisions involving GBS as the injury did not award less than
$125,000.00).
C. Lost Wages – Past and Future
The Vaccine Act provides for recovery of “actual and anticipated loss of earnings
determined in accordance with generally recognized actuarial principles and projections,” where
the injured party's “earning capacity is or has been impaired by reason of such person's vaccine-
related injury.” Section 15(a)(3)(A). The calculation of lost earnings damages must be performed
in a “cautious manner ‘in accordance with generally recognized principles and projections.’”
Brown v. Sec'y of Health & Hum. Servs., No. 00-182V, 2005 WL 2659073, at *6 (Fed. Cl. Spec.
Mstr. Sept. 21, 2005) (citing Section 15(a)(3)(A)).
Compensation awarded for a petitioner's anticipated loss of earnings may not be based on
speculation. J.T. v. Sec'y of Health & Hum. Servs., No. 12-618V, 2015 WL 5954352, at *7 (Fed.
Cl. Sept. 17, 2015) (indicating Section 15(a)(3)(A) “does not envision that ‘anticipated loss of
earnings’ includes speculation” and denying to calculate lost wages on a planned business
venture); Dillenbeck v. Sec'y of Health & Hum. Servs., 147 Fed. Cl. 131, 139 (2020) (citing J.T.,
2015 WL 5954352, at *7). Accordingly, it is not enough to substantiate such a request with some
7 Statistical data for all GBS cases resolved in SPU by proffered amounts from SPU’s inception through July 1, 2023,
reveals $167,600.00 as the median sum awarded for all damages in such cases. The awards in these cases—totaling
307, have typically ranged from $127,346.66 to $254,153.78, representing cases between the first and third quartiles
and awards comprised of all categories of compensation—including lost wages. 39 cases include the creation of an
annuity to provide for future expenses.
Past pain and suffering amounts awarded in substantive decisions issued in 28 SPU GBS cases range from $125,000.00
to $192,500.00, with an additional case involving annuity payments. The median amount award in these 29 cases was
$171,248.72. Awards in cases falling with the first and third quartiles range from $158,027.98 to $180,000.00.
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evidence, if the submissions offered ultimately rely on speculated (if somewhat informed)
“guesses” about what a claimant might have earned under optimal conditions. See, e.g., Moreland
v. Sec'y of Health & Hum. Servs., No. 18-1319V, 2022 WL 10469047 (Fed. Cl. Spec. Mstr. Sept.
2, 2022) (denying injured real estate agent’s claim of lost commissions; although petitioner
substantiated her claim with evidence, she could not demonstrate her expectation of commissions
or other real estate-related income was more than a reasoned hope).
ANALYSIS
The record preponderantly establishes that Petitioner was appropriately diagnosed with
GBS on top of a preexisting chronic diabetic neuropathy. See ECF No. 66. None of Petitioner’s
treating providers, including his numerous treating neurologists, disagree with this joint
diagnosis—or questioned whether Petitioner had diabetic neuropathy at the time of his GBS onset.
See generally Ex. 4 (M-MMC December 2016 admission records). And Respondent has of course
conceded entitlement, based on the conclusion that the Table elements of a flu vaccine-GBS claim
were met. Thus, some amount of damages are appropriately awarded in this case.
However, even though Petitioner is now entitled to a damages award, the Act only permits
him to recover reasonable damages associated with his injury. 42 U.S.C.A. § 300aa-15(1)(A). And
the parties strongly disagree about the extent to which Petitioner’s damages are primarily
attributable to the vaccine injury, as opposed to his proven preexisting condition. It thus remains
disputed whether the totals requested are reasonable—and also the extent to which certain kinds
of damages are warranted, given the dual nature of Petitioner’s injury.
I. Pain and Suffering
Neither party disputes Mr. Alonzo’s awareness of his injury, leaving only the question of
the duration and severity of the injury. To evaluate that issue, I review the record as a whole,
including the medical records and affidavits filed, and all assertions made by the parties in written
documents.
Here, the record establishes a relatively moderate GBS injury and treatment course.
Petitioner’s GBS onset occurred within two to three weeks of vaccination, in mid-December 2016.
After hospitalization, he was discharged to an in-patient rehabilitation facility, remaining there for
some time, although the record suggests the months-long period he spent there was more
attributable to personal issues independent of his GBS. Indeed, he showed significant improvement
by April 2017. Ex 4 at 77. After the fall of 2017, the record does not corroborate significant GBS
sequelae, or notable secondary symptoms attributable to it that are different from what other,
similarly-situated Program claimants have experienced.
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I do not find that the Hood decision provides a particularly good comparable. That
claimant’s GBS was treated for nearly a year, with greater amounts of necessary rehabilitation,
and he continued to experience significant sequelae in the absence of a demonstrated comorbid
condition like neuropathy attributable to diabetes. Hood, 2021 WL 5755324, at *3–4. Here, Mr.
Alonzo’s direct care lasted no more than four to five months, and as discussed above what occurred
after seems more likely attributable to his diabetic neuropathy. This case is not so severe than an
award around or exceeding $200,000.00 is justified.
Nevertheless, as noted above, the nature of GBS itself is alarming and concerning enough
to make appropriate somewhat larger pain and suffering awards than would be allowed in the
context of other vaccine-related injuries. Hernandez v. Sec’y of Health & Hum. Servs., No. 21-
1572, 2023 WL 3317354, at *5 (Fed. Cl. Spec. Mstr. 2023) (citing Gross, 2021 WL 2666685, at
*5). And I give weight to the fact that Petitioner’s existing and undeniable comorbidities have
increased his suffering in also having to bear the GBS treatment and its impact (even though I also
find that sequelae specific to that different condition cannot be reimbursed in this case, and
ultimately explains Petitioner’s post-GBS suffering).
It is thus appropriate to award Petitioner a sum comparable to the magnitude typically
received by other Program petitioners who have experienced flu vaccine-caused GBS, required
hospitalization and some rehabilitation, but otherwise did not experience demonstrated significant
sequelae beyond what GBS patients commonly see. Respondent’s proposed award is clearly in
that “ballpark,” despite his otherwise-vociferous objections to Petitioner’s demand. Accordingly,
I shall award $170,000.00 for actual pain and suffering. This sum slightly exceeds what
Respondent proposes, but otherwise reasonably fits within the range of awards that comparable
petitioners have received, as illustrated by the case law cited to in Respondent’s brief as well as
other decisions. See, e.g., Schenck v. Sec'y of Health & Hum. Servs., No. 21-1768V, 2023 WL
2534594 (Fed. Cl. Spec. Mstr. Mar. 16, 2023) ($150,000.00 awarded for mild case of GBS mostly
resolving within two months); Merchant v. Sec'y of Health & Hum. Servs., No. 20-450V, 2022
WL 17819548 (Fed. Cl. Spec. Mstr. Nov. 7, 2022) (awarding $170,000.00 in actual pain and
suffering to petitioner who was hospitalized over the Thanksgiving holiday for less than a month,
but who subsequently required several months of physical therapy; citing decisions in which
comparable petitioners received $160,000.00 to $165,000.00). It is a sum of sufficient magnitude
to address and acknowledge Petitioner’s suffering in experiencing GBS due to a vaccination.
However, I will not award any future pain and suffering component. Petitioner simply has
not shown on the basis of this record that his ongoing sequelae are the product of GBS, rather than
attributable to his type II diabetes-related neuropathy. Contemporaneous treaters have consistently
acknowledged his preexisting neuropathy, and (since the fall of 2017) have focused to an almost
exclusive extent on its treatment rather than on addressing what could reflect GBS sequelae. Many
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of his specific treatment requirements, such as kidney issues or his diabetic retinopathy, could not
credibly be deemed GBS-associated. Moreover, GBS is understood to be acute and monophasic;
while some cases (see, e.g., Barone, 2016 WL 4295004) can present ongoing debilitating sequelae,
GBS’s course is not progressive or chronic, and therefore any notable sequelae that persist would
be observed close in time to onset—not months or years after. Tellingly, Petitioner did not even
see (or was directed to see) a neurologist before Dr. Willer, whose involvement was a direct
product of the damages dispute in this case—further underscoring the fact that his post-immediate
GBS treatment had far less to do with it than with other matters.
As a result, any pain and suffering Petitioner experiences going forward is far more likely
to be attributable to his preexisting health issues than to his vaccine injury—the results of which
largely appear to have been successfully treated. Although I acknowledge he may be experiencing
some mild sequela common in GBS, this is taken into account in the actual pain and suffering
award sum, which is significant. He has not otherwise established, however, that his suffering from
the GBS injury itself has either resulted in permanent sequelae or is truly likely to require additional
specific treatment in the future years. Only where this has been demonstrated have I awarded a
future component in flu-GBS cases. See, e.g., Elenteny v. Sec'y of Health & Hum. Servs., No. 19-
1972V, 2023 WL 2447498,at *5–6 (Fed. Cl. Spec. Mstr. Mar. 10, 2023) (denying future pain and
suffering award; petitioner only established the common kinds of minor lingering sequela common
to most GBS patients, as opposed to demonstrating a specific, permanent and substantial
deficiency or impact). Notably, Petitioner’s injury occurred in the fall of 2016—and thus my
determination is based on almost seven years of additional medical record evidence. It is not likely
that an individual with GBS would have an unexpected rush or new, acute symptoms five-plus
years later (and the fact that they were observed in an exam performed in connection with litigation
undermines the credibility of such exam findings even more so).
I make this determination despite Petitioner’s expert offerings from Dr. Willer—for they
do not persuasively establish that Petitioner is suffering from substantial GBS-related sequelae that
merit specific future care or concerns. Dr. Willer stubbornly avoided reckoning with Petitioner’s
amply-documented pre-vaccination history of uncontrolled diabetes and related complications—
and then similarly ignored evidence from the time of the GBS diagnosis onward that Petitioner’s
suffering was not attributable to his GBS. Compare Willer Exam at 1 (reporting that before
vaccination, Petitioner “did not experience weakness, pain, numbness, or tingling in his arms or
legs. He was compliant with diabetes medication with fasting blood sugars in the 100s”) with Opp.
at 2-& (describing numerous instances in the pre-vaccination record in which Petitioner’s diabetes-
related measurements were significantly elevated, and many examples of neuropathic symptoms).
He otherwise ineffectually and unpersuasively argued with the medical record, attempting to pick
out points in support of his view while simply gainsaying items that directly contradict his
narrative. He was wholly unpersuasive in his denial-based approach. By contrast, Dr. Cohen has
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concisely established that Petitioner’s pre-existing diabetic neuropathy explains almost all of his
post-vaccine complications. And that opinion is supported by the weight of the medical record.
There are several examples from the record of how Petitioner unsuccessfully attempted to
show the existence of an ongoing, persistent GBS-related symptom. For example, Petitioner
stresses ongoing ataxia or an uneven gait as a debilitating symptom attributable to his GBS. See,
e.g., Br. at 12, 18. He further contends that the instances of ataxia noted by Dr. Cohen pre-
vaccination are not reliable, or are erroneous. Id. at 27. But ultimately what matters, for purposes
of determining the propriety of a future pain and suffering component, is whether these gait issues
(which I do find were present at the time of Petitioner’s GBS manifestation in December 2016)
persisted or became a chronic, GBS-associated symptoms—and the evidence preponderates
strongly against that determination. See Opp. at 10, 12, 15–20.
Dr. Willer’s conclusory determinations that these findings are “impossible,” merely
because Petitioner did reveal them close-in-time to when his GBS occurred) are wholly
unpersuasive. Again—GBS is an acute and monophasic condition—and in most instances it will
not result in long-term sequelae, even if some sensory or other deficits linger. But the lasting
impact of those sequelae can be taken into account in terms of the magnitude of the actual pain
and suffering award, as I have done here. This simply is not a case in which the claimant has
established a true, ongoing deficit of sufficient degree to justify a future component. Rather, the
persistent “story” the record tells is that Petitioner’s post-GBS health issues are a direct product of
his uncontrolled diabetes.
In the end, I found Dr. Cohen’s succinct opinion, which relied on a comprehensive and
accurate reading of the medical records in their totality, substantially more credible than what Dr.
Willer has offered. In so doing, I am not “hiding” my finding within a credibility determination.
Rather, I am performing my duty as special master, which includes consideration of whether a
particular expert opinion is persuasive or not in light of the overall record. I am not compelled to
accept an opinion that appears poorly-supported by the evidence. Sword v. United States, 44 Fed.
Cl. 183, 188 (1999) (“[n]o judge or jury can be forced to accept or reject an expert’s opinion or a
party’s theory at face value. To require such a choice in this context is to neglect the Special
Master's duty to “vigorously and diligently investigate the factual elements” underlying the
petition”). Having performed that analysis, I conclude that Dr. Willer’s opinion is not persuasive.
II. Lost Wages
The paucity of Petitioner’s lost wages showing generally is facially self-evident. All
Petitioner has offered to establish damages from his lost earnings consists of two witness
statements, without any of the kind of corroborative documentation—pay stubs; tax returns;
indirect evidence of employment as a barber (for example, email or other correspondence with
20

Case 1:18-vv-01157-UNJ Document 109 Filed 09/11/23 Page 21 of 23
employers)—that would make it possible for me to find that any monthly sum, let alone the
$12,500.00 monthly income figure claimed, reflects a fair determination. Thus, and despite the
fact that the record alludes to Petitioner’s work as a barber, I cannot award any past lost earnings.
The same is true for Petitioner’s future lost earnings demand. This component of damages
is even less substantiated, as Petitioner relies solely on an unsworn witness statement about a
possible job opportunity to corroborate his contention that he could not work in the future. Given
that his GBS treatment ended more than six years ago, I cannot base a future lost earnings award
on the fact that he continues to obtain treatment—especially when ongoing treatment seems almost
wholly a function of his existing diabetic neuropathy. He has not otherwise shown a likely business
concern that he has foregone due to his GBS—or, more foundationally, that he cannot find work
comparable in pay or personal satisfaction to what he performed before (a matter that is not itself
substantiated). Thus, it is wholly speculative that Petitioner could have expected to receive in
excess of $10,000 a month in compensation for the remainder of his adult working life—and
therefore no future lost earnings shall be awarded.
In denying entirely this aspect of Petitioner’s damages demand, it should be noted that
Petitioner has had ample opportunity to substantiate damages in this case. A damages order was
issued in this case over three years ago, while the matter was still in SPU, placing Petitioner on
notice that he would need to offer proof to show the basis for the elements of his demand. Damages
Order at 1. The matter left SPU in October 2021, over a year later—without this issue corroborated
any better. Then, I issued an Order (after the case had been reassigned to my regular docket) in
May 2022 warning Petitioner that I would only provide him an additional six months to substantiate
his damages demand, with the record closing by that summer. Order, dated May 2, 2022 (ECF No.
91).
After all that, Petitioner has only been able to provide the three referenced witness
statements. It is clear that he has been given more than enough time to prove damages—and that
fourth, fifth, or sixth chances are not appropriate (and not at all in keeping with the Program’s
policy goal of swift determinations based on reduced adversarial proceedings). While in other
cases it might be appropriate to permit a claimant “one last chance” to act, the circumstances here
do not make that a judicially-acceptable approach.
III. Next Steps
Unfortunately, the present determination leaves two critical damages issues unresolved:
prior unreimbursed expenses and anticipated future care expenses.
The former should not result in further significant disputation by the parties. Petitioner has
stated that he is in the process of calculating the Medicaid lien in this case (which will reflect 100
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Case 1:18-vv-01157-UNJ Document 109 Filed 09/11/23 Page 22 of 23
percent of past unreimbursed expenses—albeit only those related to GBS care). Thus, once the
number is provided to Respondent and the math confirmed, adoption of this sum in a final damages
decision poses no great task (other than agreeing as to what costs are specific to GBS versus those
that were not).
Petitioner also seeks an award of future care, based on determinations by his life care
planner. But (like all other damages components in this case), the parties have hotly disputed the
sums at issue, with Respondent offering a life care planner opinion of his own, and which takes
issue with any such award at all. In order to resolve future care needs, I am prepared to hear
testimony from both life care planners.8 (I do not, however, require live testimony from the
treatment experts who offered the opinions discussed herein). Such testimony (and in fact the life
care plan itself) must take into account, however, the fact findings in this Ruling: that many of
Petitioner’s post-vaccination symptoms are not associated with his GBS, and thus he is not entitled
to future care costs that are not GBS-related.
Because of my determination, many of the requested care costs are likely to be rejected.
Moreover, Petitioner has not also taken into account insurance or Medicare/Medicaid offsets for
future treatment. Accordingly, any testimony or amended life care plan input offered in this matter
at a date to be determined must not only perform the missing offsets, but must be based on the fact
determinations herein—not the rejected opinion of Dr. Willer. Petitioner may of course attempt to
demonstrate that certain life care plan items are reflective of the need for GBS-associated care
(assuming existing insurance or government programs will not cover the costs), but must do so
based on record evidence rather than Dr. Willer’s unconvincing assessment.9
8 This case will under no circumstances be permitted to languish another year. Rather, the parties should anticipate a
hearing date to be scheduled within six months of this ruling, or before April 2024.
9 I urge Petitioner in particular to greatly edit his existing life care plan (or even consider abandonment of it entirely).
It is my experience that only in the most extreme GBS cases, where care is explicitly aimed at treating demonstrated
GBS sequelae, and where a claimant is so disabled as to virtually be unable to care for themselves, is future care a
reasonable consideration. See, e.g., Barone, 2016 WL 4295004 (awarding $661,082.54 in lump sum for prior
expenses, pain and suffering, and some home attendant care; injured party suffered from quadriparesis (muscle
weakness in all limbs) and had to be cared for at skilled nursing facility). I do not award future care simply because a
GBS patient has some lingering vestiges of the condition—and Petitioner risks a disallowance of costs associated with
litigating this matter further if the issue is unnecessarily maintained despite my reasoned and substantiated concerns
about its viability.
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CONCLUSION
Based on the foregoing, and in the exercise of the discretion afforded to me in determining
the propriety of a final fees award, Petitioner is determined to be entitled to $170,000.00 in actual
pain and suffering, but no lost earnings past or future. This sum will be included in the final
damages decision in this case, which will be issued after (a) the amount of the Medicaid lien is
determined, and (b) a means for resolving future care is proposed and adopted.
The parties shall contact chambers immediately to set a status conference to discuss how
all remaining damages components can be resolved.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
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================================================================================
DOCUMENT 3: USCOURTS-cofc-1_18-vv-01157-2
Date issued/filed: 2024-04-04
Pages: 5
Docket text: PUBLIC DECISION (Originally filed: 03/08/2024) regarding 126 DECISION of Special Master. Signed by Chief Special Master Brian H. Corcoran. (mva) Service on parties made.
--------------------------------------------------------------------------------
Case 1:18-vv-01157-UNJ Document 128 Filed 04/04/24 Page 1 of 5
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1157V
* * * * * * * * * * * * * * * * * * * * * * * * *
*
YOVANNY ALONZO, * Chief Special Master Corcoran
*
Petitioner, * Filed: March 8, 2024
*
v. *
*
SECRETARY OF HEALTH AND *
HUMAN SERVICES *
*
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * * *
Robert J. Krakow, Law Office of Robert J. Krakow, P.C., New York, NY, for Petitioner.
Ryan D. Pyles, U.S. Dep’t of Justice, Washington, D.C., for Respondent.
AMENDED DECISION AWARDING DAMAGES1
This matter was initiated on August 9, 2018. Petitioner alleged that he experienced Guillain-
Barré syndrome (“GBS”) after receipt of an influenza (“flu”) vaccine in 2016. Petition, dated Aug. 9,
2018 (ECF No. 1). Although an entitlement ruling (ECF No. 65) was entered in 2020 in Petitioner’s
favor after Respondent’s concession, the parties were unable (for years thereafter) to resolve damages.
In August 2023, I issued a ruling making some initial damages findings (in particular with
respect to pain and suffering and lost earnings) but leaving other matters to be resolved via final
briefing. See Ruling, dated Aug. 14, 2023 (ECF No. 108) (the “Initial Damages Ruling”). The findings
contained in the Initial Damages Ruling are incorporated by reference herein.
The parties have now (after another five months) submitted briefs on the remaining damages
issues in contention. See Petitioner’s brief, dated Feb. 21, 2024 (ECF No. 120) (“Br.”); Respondent’s
Brief, dated Feb. 23, 2024 (ECF No. 121) (“Opp.”). Below, I summarize their positions, and then
resolve damages in their entirety.
1 Under Vaccine Rule 18(b), each party has fourteen (14) days within which to request redaction “of any information
furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or
(2) that includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of
privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public in its present form. Id.

Case 1:18-vv-01157-UNJ Document 128 Filed 04/04/24 Page 2 of 5
I. Final Damages Issues
The sole remaining issues to resolve are (a) the amount of the Medicaid lien, and (b) whether
any future care items, as set forth in the respective life care plans, warrant consideration outside of
Petitioner’s existing life insurance coverage. See Fox Report, dated Aug. 25, 2022, filed as Ex. C (ECF
No. 101-7) at 2; Fox Life Care Plan, dated Aug. 25, 2022, filed as Ex. D (ECF No. 101-8) at 1;
Petitioner’s Brief in Support of Damages, dated Dec. 16, 2022 (ECF No. 103); Respondent’s Response,
dated Jan. 20, 2023 (ECF No. 105); Br. at 3.
A. Medicaid and Other Liens
Petitioner has obtained an interim lien statement with Medicaid payment itemizations, and
represents (accurately) that Respondent, through informal discussions, has indicated that he does not
oppose the Medicaid lien of $84,742.92 because the payment itemizations are appropriately confined
to Petitioner’s GBS hospitalization and the follow-on residency thereafter. Br. at 6. Accordingly, this
amount will be awarded.
However, Petitioner also requests provision be made to repay a lien of $3,860.80 lien for
cash/public assistance, which Respondent contests. Br. at 6; Ex. 54, 56. He maintains that he will be
liable to satisfy any unpaid portion of the Medicaid lien, and that this sum would be included. Id.
However, Petitioner also maintains that the New York City Department of Social Services “has
exercised flexibility in adjusting lien amounts in consideration of objections,” and therefore “[i]t
appears likely that the Respondent’s objection can be resolved considering that the cash assistance
portion of the lien is likely unrelated to the underlying injury, and that the pain and suffering award
does not encompass such a Medicaid payment.” Br. at 7. Therefore, Petitioner has requested an updated
and final Medicaid lien and wishes to transmit Respondent’s objection to the $3,860.80 lien to the New
York City Medicaid authorities.
Respondent confirms that he proffers the Medicaid lien in this matter totaling $84,742.92. Opp.
at 1; Ex. 54–55 (ECF Nos. 113-1, 113-2). But he maintains his objection to reimbursement of a “Cash
Assistance lien” totaling $3,860.80—noting that it is not compensable under the terms of the Vaccine
Act. Ex. 54, 56.; Opp. at 1. Rather, under Section 15(g) of the Act, other types of liens, such as Medicare
liens, are not reimbursable, and Petitioner has not otherwise established that a lien for general cash
assistance payments should legally be deemed to constitute a Medicaid lien. Opp. at 1; Section 15(g).
And there is no evidence showing that the payments are sufficiently tied to expenses that are specifically
vaccine-related for them to be reimbursable injury-associated expenses in any event, as set forth in the
Act. Opp. at 1; Section 15(a)(1)(B) (establishing an exhaustive list of permitted expenses).
Based on the parties’ submissions, I find that Petitioner has not shown either that the cash
assistance sum is properly classified as a “Medicaid lien,” and also that it is not otherwise likely a
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Case 1:18-vv-01157-UNJ Document 128 Filed 04/04/24 Page 3 of 5
vaccine injury-related expense. Accordingly, this additional amount will not be included in the
aforementioned lien sum. I will also not permit additional time for Petitioner to submit an updated and
final Medicaid lien amount, since I do not find otherwise that reimbursement of a “Cash Assistance
lien” totaling $3,860.80 is compensable under the Act.
B. Future Care Needs
Petitioner notes that a revised Life Care Plan proposed by Linda Lajterman, RN, and submitted
herein (see Ex. 58) included “future care for routine annual neurological evaluation and two hours of
care per week for a homemaker.” Br. at 3. However, Petitioner acknowledges that my Initial Damages
Ruling does not allow for provision of such items, since I found that most, if not all, of Petitioner’s
ongoing health problems are related to his concurrent diabetic neuropathy. Id.; Initial Damages Ruling
at 2. Petitioner thus maintains that he is constrained (at this level of determination, at least) from
requesting future care items proposed by Ms. Lajterman’s revised plan without challenging my
findings. Br. at 3. Accordingly, Petitioner’s position is that because he receives Medicaid, “which
covers the cost of most if not all of his medical care needs, it is likely that future medical care such as
routine neurological evaluation would be covered thus, in effect, operating as an offset to any provision
in an award for the component of future medical care.” Id. Respondent contests that any of these
additional, non-insurance covered care needs are justified. Opp. at 2.
As noted in the Initial Damages Ruling, I provided Petitioner the opportunity to demonstrate
that certain requested future care costs potentially exceeding what his existing insurance provides were
more likely than not GBS-related, as opposed to associated with treatment of his comorbidities. Initial
Damages Ruling at 22. But he has not done so. I also observed in my earlier ruling that there appeared
to be a lack of evidence of permanent sequelae from Petitioner’s GBS, and that I would require such
evidence to award these sums. Id. at 22 n.9. This, too, has not been established.
Accordingly, I deny any of the future care life care plan items requested herein. In doing so, I
emphasize the significant amount of time Petitioner has had to establish these points. It cannot be
concluded, based on the procedural record, that Petitioner did not have the opportunity to substantiate
these requests—or that he has failed to do so.
C. Other Issues
The final question to be resolved herein is whether a “special needs trust” is appropriate under
the circumstances, as a mechanism for protecting Petitioner’s right to certain government benefits,
including Medicaid—and whether the damages decision should include those costs. Petitioner stresses
that he risks being ineligible for Medicaid after receipt of the damages to be awarded herein. Br. at 4.
He acknowledges, however, that costs associated with creating a special needs trust have been repeatedly
denied as not being sufficiently related to proceedings on a petition. Id.; L.C. by & through Crumpton
v. Sec’y of Health & Hum. Servs., No. 14-837V, 2023 WL 2594340, at *7 (Fed. Cl. Spec. Mstr. Mar.
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Case 1:18-vv-01157-UNJ Document 128 Filed 04/04/24 Page 4 of 5
22, 2023) (citing Torres v. Sec’y of Health and Hum. Servs., No. 09-867V, 2013 WL 2256136 (Fed. Cl.
Spec. Mstr. Apr. 30, 2013)); J.R. by Revaitis v. Sec’y of Health & Hum. Servs., No. 16-813V, 2018 WL
5629723 (Fed. Cl. Spec. Mstr. Sept. 28, 2018); Alvardo v. Sec’y of Health and Hum. Servs., No. 15-
02V, 2017 WL 4053419 (Fed. Cl. Spec. Mstr. Aug. 7, 2017).
Thus, although he cannot identify any reported case decisions awarding costs for the
establishment of a special needs trust, Petitioner argues that he “cannot accept the pain and suffering
award without establishing a special needs trust that protects his eligibility for Medicaid.” Br. at 5.
Petitioner notes his understanding that Respondent would oppose an award for the costs of establishing
a special needs trust and that he would take the same position that was presented in L.C. Id. Thus,
Petitioner is aware that “he is free on his own accord, without limitation by the Vaccine Program, to
place the pain and suffering award into an appropriate special needs trust after he receives the payment.”
Id.
Accordingly, and in light of the legal posture of the case and the conclusions made in my Initial
Damages Ruling, it is Petitioner’s position that he does not seek an award of costs associated with the
establishment of a special needs trust.
Conclusion
For all of the reasons discussed above, and in the Initial Damages Ruling, and based on
consideration of the record as a whole, I hereby award Petitioner the following:
(1) a lump sum payment of $170,000.00 for actual pain and suffering in the form of a check
payable to petitioner; and
(2) a lump sum payment of $84,742.92, representing compensation for satisfaction of the State
of New York lien, payable jointly to Petitioner and:
Department of Social Services
New York City, Human Resources Administration, Division of Liens and Recovery
P.O. Box 414799
Boston, MA 02241-4799
This amount represents compensation for all damages that would be available under Section 15(a).
The Clerk of the Court is directed to enter judgment in accordance with this Decision.2
2 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.
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Case 1:18-vv-01157-UNJ Document 128 Filed 04/04/24 Page 5 of 5
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
5