VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-00021
Package ID: USCOURTS-cofc-1_19-vv-00021
Petitioner: Dennis Schmitt
Filed: 2019-01-03
Decided: 2021-09-30
Vaccine: influenza
Vaccination date: 2017-11-22
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 120174

AI-assisted case summary:
Dennis Schmitt filed a petition for compensation under the National Vaccine Injury Compensation Program on January 3, 2019, alleging he suffered a shoulder injury related to vaccine administration (SIRVA) as a result of an influenza vaccine he received on November 22, 2017. He was 70 years old at the time of vaccination. Respondent, the Secretary of Health and Human Services, filed a Rule 4(c) report conceding that Petitioner's claim met the Table criteria for SIRVA, including timely filing, vaccination in the United States, and suffering residual effects for more than six months. Based on this concession, Chief Special Master Brian H. Corcoran issued a ruling on entitlement on September 9, 2020, finding Petitioner entitled to compensation. A subsequent decision on August 30, 2021, awarded damages. Petitioner was represented by Leah V. Durant of the Law Offices of Leah V. Durant, PLLC, and Respondent was represented by Claudia Barnes Gangi of the U.S. Department of Justice. The medical records detail Petitioner's shoulder pain, bursitis, rotator cuff tear, and subsequent arthroscopic surgery and physical therapy. Petitioner reported pain initially rated at 8/10, which improved with a steroid injection but returned. An MRI revealed tears in the supraspinatus and biceps tendons and a partial to nearly full-thickness tear in the subscapularis tendon. Petitioner underwent arthroscopic surgery on April 24, 2018, for debridement and rotator cuff repair. Post-operatively, his pain significantly decreased, and he reported being "nearly 100%" after physical therapy. However, he experienced lingering pain and stiffness, which he managed with home exercises. In May 2019, he reported pain of 4/10 at rest and 6/10 with activity, and received another steroid injection. Petitioner averred that he has learned to live with intermittent pain associated with certain activities and has declined jobs due to shoulder pain. Chief Special Master Corcoran awarded a total of $120,174.94, comprising $118,000.00 for pain and suffering and $2,174.94 for out-of-pocket expenses. The Special Master considered prior SIRVA cases and the specific facts of Mr. Schmitt's case, noting his prompt medical attention, initial severe pain, and subsequent good recovery, but also acknowledging the gap in treatment and ongoing discomfort. The Special Master found the award to be fair and appropriate based on the record.

Theory of causation field:
Petitioner Dennis Schmitt, age 70, received an influenza vaccine on November 22, 2017, and subsequently developed Shoulder Injury Related to Vaccine Administration (SIRVA). Respondent conceded that the claim met the Table criteria for SIRVA. Medical records documented shoulder pain, bursitis, and rotator cuff tears, leading to arthroscopic surgery and physical therapy. Petitioner reported initial pain of 7-8/10, which improved after treatment but persisted intermittently. Chief Special Master Brian H. Corcoran issued a ruling on entitlement on September 9, 2020, and awarded damages on August 30, 2021. The award totaled $120,174.94, consisting of $118,000.00 for pain and suffering and $2,174.94 for out-of-pocket expenses. Petitioner was represented by Leah V. Durant and Respondent by Claudia Barnes Gangi. The public decision does not detail the specific mechanism of SIRVA or name medical experts, but it does describe the clinical progression, treatment, and the Special Master's reasoning for the damages award based on the severity and duration of pain, treatment received, and comparison to prior cases.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_19-vv-00021-0
Date issued/filed: 2020-10-13
Pages: 2
Docket text: PUBLIC ORDER/RULING (Originally filed: 09/09/2020) regarding 33 Ruling on Entitlement Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
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Case 1:19-vv-00021-UNJ Document 36 Filed 10/13/20 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-21V
UNPUBLISHED
DENNIS SCHMITT, Chief Special Master Corcoran
Petitioner, Filed: September 9, 2020
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Ruling on Entitlement; Concession;
HUMAN SERVICES, Table Injury; Influenza (Flu) Vaccine;
Shoulder Injury Related to Vaccine
Respondent. Administration (SIRVA)
Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
petitioner.
Claudia Barnes Gangi, U.S. Department of Justice, Washington, DC, for respondent.
RULING ON ENTITLEMENT1
On January 3, 2019, Dennis Schmitt 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 a shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza vaccine administered on November
22, 2017. Petition at 1. The case was assigned to the Special Processing Unit of the
Office of Special Masters.
On September 2, 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. Specifically, Respondent concludes that “[P]etitioner’s claim meets the Table criteria
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 1:19-vv-00021-UNJ Document 36 Filed 10/13/20 Page 2 of 2
for SIRVA.” Id. at 4. Respondent further agrees that “the case was timely filed, that the
vaccine was received in the United States, and that [P]etitioner satisfies the statutory
severity requirement by suffering the residual effects or complications of his injury for
more than six months after vaccine administration.” 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_19-vv-00021-1
Date issued/filed: 2021-09-30
Pages: 8
Docket text: PUBLIC DECISION (Originally filed: 08/30/2021) regarding 48 DECISION of Special Master Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
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Case 1:19-vv-00021-UNJ Document 54 Filed 09/30/21 Page 1 of 8
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-0021V
UNPUBLISHED
DENNIS SCHMITT,
Chief Special Master Corcoran
Petitioner,
v. Filed: August 30, 2021
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Decision Awarding Damages; Pain
and Suffering; Influenza (Flu);
Respondent. Shoulder Injury Related to Vaccine
Administration (SIRVA).
Leah V. Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner.
Claudia B. Gangi, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On January 3, 2019, Dennis Schmitt filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleged that he suffered a shoulder injury related to vaccine
administration (“SIRVA”) caused by the influenza (“flu”) vaccine he received on November
22, 2017. Petition at 1. The case was assigned to the Special Processing Unit (“SPU”) of
the Office of Special Masters. For the reasons set forth below, I find that Petitioner is
entitled to a damages award of $120,174.94 (representing $118,000.00 for actual pain
and suffering, and $2,174.94 for actual out-of-pocket expenses).
1 Because this unpublished opinion 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 opinion will be available to anyone with access to the internet.
In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or
other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon
review, I agree that the identified material fits within this definition, I will redact such material from public
access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).

Case 1:19-vv-00021-UNJ Document 54 Filed 09/30/21 Page 2 of 8
I. Relevant Procedural History
19 months after Petitioner initiated his claim, in September 2020, Respondent
conceded that he was entitled to compensation. Rule 4(c) Report (ECF No. 32). I
thereafter issued a ruling on entitlement and directed the parties to work collaboratively
towards resolving damages. ECF Nos. 33-34.
In February 2021, the parties reached an impasse in their discussions. ECF No.
40. Accordingly, I set a schedule for any additional evidence and briefing. Scheduling
Order (Non-PDF) entered March 2, 2021. Petitioner filed his second affidavit as Ex. 13
on April 1, 2021, followed by a brief arguing for $160,000.00 for actual pain and suffering
on May 21, 2021, ECF No. 43. On July 8, 2021, Respondent countered that Petitioner’s
evidence and a comparison to other conceded cases supported a pain and suffering
award of only $75,000.00. ECF No. 44. The parties agreed, however, that the record
supported actual out-of-pocket expenses totaling $2,174.94.
In July 2019, I informed the parties that this matter appeared to be appropriate for
an expedited hearing and ruling, and they accepted my proposal. Scheduling Order (Non-
PDF) entered July 12, 2021; ECF No. 46. Therefore, at the August 2021 Motions Day, I
heard oral argument3 and issued a bench ruling on the appropriate award of pain and
suffering, which is memorialized below.4
II. Legal Standard
Compensation awarded pursuant to the Vaccine Act shall include “[f]or actual and
projected pain and suffering and emotional distress from the vaccine-related injury, an
award not to exceed $250,000.” Section 15(a)(4). Additionally, a petitioner may recover
“actual unreimbursable expenses incurred before the date of judgment award such
expenses which (i) resulted from the vaccine-related injury for which petitioner seeks
compensation, (ii) were incurred by or on behalf of the person who suffered such injury,
and (iii) were for diagnosis, medical or other remedial care, rehabilitation . . . determined
to be reasonably necessary.” Section 15(a)(1)(B). The petitioner bears the burden of proof
with respect to each element of compensation requested. Brewer v. Sec’y of Health &
Human Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18,
1996).
3 Attorney Christopher Williams presented oral argument on behalf of Petitioner.
4 See Joint Status Report (ECF No. 46); Hearing Order filed July 27, 2021 (Non-PDF); Minute Entry entered
August 27, 2021 (Non-PDF). A court reporter made an official recording of the proceeding. A link to
instructions on the court's website detailing how to order a certified transcript or audio recording of the
proceeding can be found in the minute entry. See also www.uscfc.uscourts.gov/trans (last visited August
27, 2021).
2

Case 1:19-vv-00021-UNJ Document 54 Filed 09/30/21 Page 3 of 8
There is no mathematic formula for assigning a monetary value to a person’s pain
and suffering and emotional distress. I.D. v. Sec’y of Health & Human Servs., No. 04-
1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013) (“[a]wards for
emotional distress are inherently subjective and cannot be determined by using a
mathematical formula”); Stansfield v. Sec’y of Health & Human Servs., No. 93-0172V,
1996 WL 300594, at *3 (Fed. Cl. Spec. Mstr. May 22, 1996) (“the assessment of pain and
suffering is inherently a subjective evaluation”). Factors to be considered when
determining an award for pain and suffering include: 1) awareness of the injury; 2) severity
of the injury; and 3) duration of the suffering. I.D., 2013 WL 2448125, at *9 (quoting
McAllister v. Sec’y of Health & Human Servs., No 91-1037V, 1993 WL 777030, at *3 (Fed.
Cl. Spec. Mstr. Mar. 26, 1993), vacated and remanded on other grounds, 70 F.3d 1240
(Fed. Cir. 1995)).
I may also consider prior pain and suffering awards to aid my resolution of the
appropriate amount of compensation for pain and suffering in this case. See, e.g., Doe
34 v. Sec’y of Health & Human Servs., 87 Fed. Cl. 758, 768 (2009) (finding that “there is
nothing improper in the chief special master’s decision to refer to damages for pain and
suffering awarded in other cases as an aid in determining the proper amount of damages
in this case.”). And, of course, I may rely on my own experience (along with my
predecessor Chief Special Masters) adjudicating similar claims.5 Hodges v. Sec’y of
Health & Human Servs., 9 F.3d 958, 961 (Fed. Cir. 1993).
Although pain and suffering in the past was often determined based on a
continuum, as Respondent argues, that practice was cast into doubt by the Court several
years ago. In Graves, Judge Merow rejected a special master’s approach of awarding
compensation for pain and suffering based on a spectrum from $0.00 to the statutory
$250,000.00 cap. Graves v. Sec’y of Health & Human Servs., 109 Fed. Cl. 579 (2013).
Judge Merow maintained that do so resulted in “the forcing of all suffering awards into a
global comparative scale in which the individual petitioner’s suffering is compared to the
most extreme cases and reduced accordingly.” Id. at 590. Instead, Judge Merow
assessed pain and suffering by looking to the record evidence, prior pain and suffering
awards within the Vaccine Program, and a survey of similar injury claims outside of the
Vaccine Program. Id. at 595. Under this alternative approach, the statutory cap merely
cuts off higher pain and suffering awards – it does not shrink the magnitude of all possible
awards as falling within a spectrum that ends at the cap.
5 From July 2014 until September 2015, the SPU was overseen by former Chief Special Master Vowell. For
the next four years, until September 30, 2019, all SPU cases, including the majority of SIRVA claims, were
assigned to former Chief Special Master Dorsey, now Special Master Dorsey. In early October 2019, the
majority of SPU cases were reassigned to me as the current Chief Special Master.
3

Case 1:19-vv-00021-UNJ Document 54 Filed 09/30/21 Page 4 of 8
III. Appropriate Compensation for Petitioner’s Pain and Suffering
In this case, Petitioner’s awareness of the injury is not disputed, which leaves only
the severity and duration of the injury to be considered. In assessing those factors, I have
reviewed the record as a whole, including the medical records, affidavits, and all
assertions made by the parties in written documents and at the expedited hearing held
on August 27, 2021. I considered prior awards for pain and suffering in both SPU and
non-SPU SIRVA cases and rely upon my experience adjudicating these cases. However,
I ultimately base my determination on the specific circumstances of this case.
Pursuant to my oral ruling on August 27, 2021 (which is fully incorporated herein),
I find that $118,000.00 represents a fair and appropriate amount of compensation
for Petitioner’s past pain and suffering. Petitioner has not sought and I have not
found preponderant evidence to support an award for future pain and suffering.
Upon receiving the flu vaccine in his non-dominant left shoulder on November 22,
2017, Petitioner was 70 years old, had a non-contributory medical history, and was
employed as a residential contractor. He sought medical treatment relatively promptly,
just 22 days later on December 14, 2017, with his primary care provider. He reported a
sore arm and pain with abduction ever since the vaccine. Ex. 7 at 1. He was observed to
have full range of motion except with lateral abduction to the horizontal level, significant
pain over the biceps bursa but no visible redness or swelling. Id. He was assessed with
bursitis, for which he would apply a non-steroidal anti-inflammatory (“NSAID”) topical gel,
take extra-strength acetaminophen as needed, and follow up and seek a steroid injection
in the event of “uncontrolled” pain. Id.
On December 20, 2017, Petitioner presented to an orthopedist for shoulder pain
rated at 8/10, specifically upon lifting his arm away from his body, that also woke him up
but did not keep him up at night, as well as decreased range of motion. Ex. 3 at 18. The
orthopedist assessed subacromial bursitis and recorded that Petitioner “experienced
marked improvement” upon receiving a steroid injection. Id. at 20.
On January 8, 2018, at his initial physical therapy evaluation, Petitioner again
reported shoulder pain of 8/10 that was “intermittent.” Ex. 4 at 14. The cortisone injection
offered 24 hours of relief and he continued to take ibuprofen. Id. He was not using the left
arm much and could not sleep on his left side. Id. After a second physical therapy session
just four days later, Petitioner continued with home exercises. Ex. 3 at 29. Then on
January 31, 2018, upon following up with the orthopedist, he reported pain of 7/10 but
denied taking any pain medication. Id.
4

Case 1:19-vv-00021-UNJ Document 54 Filed 09/30/21 Page 5 of 8
A February 1, 2018, MRI of the left shoulder revealed diffuse labral degeneration;
moderate to severe acromioclavicular joint arthritis, mild glenohumeral joint arthritis;
subacromial/subdeltoid bursitis; tears in the supraspinatus and biceps; and a “partial…
nearly full-thickness tear” in the subscapularis tendon. Ex. 3 at 32.6 On February 14, 2018,
the orthopedist recorded that Petitioner’s pain remained at 7/10 and reviewed the MRI
findings, but was “hesitant for surgery, as [Petitioner] adamantly expressed disbelief that
the flu shot did not cause his rotator cuff tear and symptoms.” Ex. 3 at 34-36.
On March 5, 2018, Petitioner consulted a second orthopedist, Dr. Robert R
Scheinberg, for persistent pain at 7/10 both at rest and with activity, “despite conservative
management” and “some exercises.” Ex. 6 at 16. His assessments were acute bursitis,
articular cartilage disorder, biceps tendinitis, non-traumatic incomplete tear of the rotator
cuff, and pain. Id.
On April 24, 2018, Dr. Scheinberg performed arthroscopic debridement of the
labral tear, synovitis, and abrasion to the humeral head and glenoid; subacromial
decompression and bursectomy; and rotator cuff repair. Ex. 6 at 31. He prescribed a five-
day course of acetaminophen-hydrocodone for post-operative pain. Id. at 22.
On May 11, 2018, at the post-operative physical therapy evaluation, Petitioner
reported that his pain was “deep” and “throbbing,” but only 2-3/10. Ex. 4 at 28. However,
his shoulder rehabilitation potential was good. Id. at 29. The therapist planned one to two
sessions per week for eight weeks, to improve Petitioner’s left shoulder range of motion
and pain as well as right shoulder crepitus and poor postural alignment. Id. Petitioner
attended further sessions on May 14, May 21, May 25, and May 28, 2018. Ex. 12 at 8. At
the sixth post-operative session on June 13, 2018, Petitioner reported that swimming
during a recent vacation had been “very helpful” for his shoulder. Id. at 4. After that last
session, Petitioner had full active range of motion in the left shoulder and he had achieved
all goals except that his ability to lift a 40-pound weight from the floor was not assessed.
Id. at 3. Petitioner reported that he was “nearly 100%”, he was “tolerating all ADLs fully.”
Id. He self-discharged with a home exercise program that emphasized scapular stability,
stretching, and deltoid strengthening. Id.
On August 20, 2018, Dr. Scheinberg recorded that since the surgery, Petitioner
had “a little bit of achiness and stiffness at times, but overall is doing well and pleased
with his progress.” Ex. 6 at 40. He was continuing home exercises. Id. Physical
6 On February 6, 2018, Petitioner telephoned his primary care provider to request prescription medication
to treat the “sharp pain” in his shoulder. Ex. 10 at 77. The primary care provider recommended trying
acetaminophen extra strength (which Petitioner had already been taking”) although he “can have some
Tramadol 50mg 1 q4h prn uncontrolled pain.” Id. However, the record does not corroborate that Petitioner
ever received or filled such a prescription.
5

Case 1:19-vv-00021-UNJ Document 54 Filed 09/30/21 Page 6 of 8
examination of the left shoulder revealed full range of motion and normal strength. Id. Dr.
Scheinberg instructed Petitioner to “call or return if symptoms worsen or persist.” Id. The
records from Petitioner’s next medical encounter – his annual physical on August 20,
2018 – do not specifically address the left shoulder and list numerous medications but not
for pain. Ex. 10 at 48-49.
On May 15, 2019, Petitioner returned to Dr. Scheinberg, reporting current pain of
4/10 at rest and 6/10 with activity, characterized as “a little bit of discomfort and achiness”
at the biceps and subscapularis tendon. Ex. 9 at 1. Dr. Scheinberg reviewed that as of
surgery, Petitioner had “a little bit of fraying” at the subscapularis tendon. Id. The current
impression was “a little bit of tendinitis and partial-thickness tearing of his subscap.” Id. 3.
However, he maintained the five assessments and diagnostic codes that were present in
his 2018 records. Id. at 2. Dr. Scheinberg administered a steroid injection and recorded
that Petitioner would follow up in six to eight weeks, but no further records have been
filed. Id. at 3.
In his affidavits, Petitioner avers that while physical therapy was helpful, he has
lingering pain in his left shoulder. Ex. 8 at ¶ 4. This pain is intermittent and associated
with inadvertently sleeping on his left side, bearing too much weight on the shoulder, and
exercise (riding a stationary bike and light weights). Ex. 13 at ¶¶ 1, 3. He has “learned to
live with” the pain. Id. at ¶ 1. Petitioner avers that this shoulder pain is “different than
normal aches and pains I would expect from aging.” Id. Petitioner also avers that he
experienced significant shoulder pain while lifting heavy objects at work sites and that he
has declined many jobs since his injury. Ex. 8 at ¶ 5.7
As I informed the parties during the expedited hearing, the question in this case is
not whether Petitioner is entitled to any compensation for his pain and suffering, but rather
what amount of compensation is justified. This determination is not an exact science, but
more of an art. While I will consider the amounts proposed by the parties, each petitioner
deserves an examination of the specific facts in his or her case. Thus, while my award
may fall somewhere in the range between the parties’ proposed amounts, the result flows
from a specific analysis of Mr. Schmitt’s personal circumstances.
Upon review, Mr. Schmitt sought relatively prompt and concerted medical
attention, and his initial pain was consistently documented as 7-8 /10. However, he
managed that pain with over-the-counter medications. However, after surgery and just
four additional physical therapy sessions, he had significantly less pain and no
documented limitations. Mr. Schmitt’s assertion of ongoing pain and suffering beyond
7 Petitioner’s demand did not include any request for lost earnings.
6

Case 1:19-vv-00021-UNJ Document 54 Filed 09/30/21 Page 7 of 8
May 2018 is weakened by the gap in treatment. While I have recognized in prior decisions
that SIRVA can recur to some degree, here Respondent argued that Mr. Schmitt’s
shoulder pain upon returning to his orthopedic surgeon in May 2019 was more likely due
to a new, unrelated progression of his subscapularis tear. Respondent’s argument is
somewhat persuasive, but I find it unnecessary to make a formal determination on that
point and I shall instead balance out the weight I give to this occurrence in calculating
pain and suffering.
The increasing number of past reasoned opinions on SIRVA pain and suffering
should hopefully guide subsequent cases, either via informal settlement or in formal
briefing – and to that end both sides made some effort to invoke useful prior
determinations. Petitioner contended that his case is “on point” with Reed v. Sec’y of
Health & Human Servs., No. 16-1670V, 2019 WL 1222925 (Fed. Cl. Spec. Mstr. Feb. 1,
2019) (awarding $160,000.00 for past pain and suffering). See Pet. Brief at 11. But there
was persuasive evidence that even after surgery, Ms. Reed did not significantly recover,
she relied on prescription opioids and pain management after surgery, and her ongoing
shoulder injury impacted both her ability to work and to fulfill important family obligations.8
Accordingly, Reed’s award is too high under the circumstances.
Respondent conceded that the degree of necessary treatment of Mr. Schmitt’s
SIRVA – specifically, arthroscopic surgery – “counsels in favor of a higher award.”
Response at 8.9 Respondent then asserted that Mr. Schmitt’s severity and duration of
pain associated with his SIRVA were “moderate,” therefore warranting a “much lower
award than in… the vast majority of cases involving surgical treatment,” specifically in
Respondent’s view, $75,000.00. Response at 8. Respondent may be referring to SIRVA
surgery cases that were resolved by stipulation or proffer. However, my review did not
8 I have explained that these unique factors justified a higher pain and suffering award in several prior
cases, all of which were issued prior to the briefing in this case and in which two out of three petitioners
were represented by Ms. Durant’s firm. See Response at 6 (citing, e.g., Wilson v. Sec’y of Health & Human
Servs., No. 19-35V, 2021 WL 1530731, at *5 (Fed. Cl. Spec. Mstr. Mar. 18, 2021); Roberson v. Sec’y of
Health & Human Servs., No. 19-90V, 2020 WL 5512542, at *4 (Fed. Cl. Spec. Mstr. Aug. 7, 2020); Rafferty
v. Sec’y of Health & Human Servs., No. 17-1906V, 2020 WL 3495956, at *17 (Fed. Cl. Spec. Mstr. May 21,
2020). I hereby emphasize that Reed’s applicability is limited and there are numerous other opinions which
may offer more relevant guidance as to the appropriate quantum of damages.
9 At the expedited hearing, Ms. Gangi suggested that some individuals choose to undergo surgery and
other individuals with the same degree of pain may choose to manage it differently. In general, I have found
that most cases involving surgery – which is invasive and carries some risks including infection and adverse
responses to anesthesia – are more severe than cases not involving surgery. That does not preclude a
petitioner from establishing why he or she did not undergo surgery, but still sustained a severe injury.
7

Case 1:19-vv-00021-UNJ Document 54 Filed 09/30/21 Page 8 of 8
locate any SIRVA surgery case involving a reasoned determination of damages which
culminated in an award of less than $100,000.00 for past pain and suffering.10
Overall, I find that Mr. Schmitt is similar to past petitioners who suffered moderate
to severe initial pain and limited range of motion, sought medical attention and surgery
relatively promptly, had a good recovery, but for whom there was a significant gap in
treatment. See, e.g., Randazzo v. Sec’y of Health & Human Servs., No. 18-1513V, 2021
WL 829572 (Fed. Cl. Spec. Mstr. Feb. 1, 2021) (awarding $125,000.00 for past pain and
suffering); Hayes v. Sec’y of Health & Human Servs., No. 17-804V, 2021 WL 688628
(Fed. Cl. Spec. Mstr. Jan. 6, 2021) ($120,000.00); Stoliker v. Sec’y of Health & Human
Servs., No. 17-990V, 2020 WL 5512534 (Fed. Cl. Spec. Mstr. Aug. 7, 2020)
($120,000.00). In fact, Mr. Schmitt’s case involves a slightly shorter course and less
explanation for the gap in medical treatment. I therefore approve a somewhat lower award
than in these comparable cases.
IV. Conclusion
Based on the record as a whole and the parties’ arguments, I award Petitioner a
lump sum payment of $120,174.94 (representing $118,000.00 for actual pain and
suffering and $2,174.94 for actual out-of-pocket expenses). 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.11
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
10 At the expedited hearing, I stressed that it is more helpful for Respondent to offer comparisons to specific
past reasoned opinions within the Vaccine Program. Respondent referenced a recent case in which the
petitioner had an excellent recovery following surgery – likely Martin v. Sec’y of Health & Human Servs.,
No. 19-830V, 2021 WL 2350004 (Fed. Cl. Spec. Mstr. May 5, 2021) (awarding $100,000.00 for past pain
and suffering). While Respondent’s characterization of Mr. Martin’s post-surgical outcome is correct, that
individual’s 18-week delay in seeking medical attention and the consistent characterizations of his pain as
mild, even before surgery, supported an even lower amount than is awarded here.
11 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.
8