VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-01088
Package ID: USCOURTS-cofc-1_19-vv-01088
Petitioner: Chester Bircheat
Filed: 2019-07-29
Decided: 2021-07-16
Vaccine: influenza
Vaccination date: 2017-11-08
Condition: Guillain-Barre Syndrome (GBS)
Outcome: compensated
Award amount USD: 170558

AI-assisted case summary:
Chester Bircheat filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging that he suffered Guillain-Barre Syndrome (GBS) as a result of an influenza vaccination he received on November 8, 2017. The respondent conceded that Mr. Bircheat is entitled to compensation, agreeing that he suffered from GBS, satisfied the criteria set forth in the Vaccine Injury Table, and that there was no more likely alternative diagnosis or apparent alternative cause. The case proceeded to a damages determination, as the parties could not agree on the amount. Mr. Bircheat, a retiree with significant co-morbidities, presented with progressive weakness and numbness in his extremities approximately 27 days after his vaccination. He was hospitalized and treated with IVIG therapy, but experienced a severe injury with a difficult rehabilitation course, including the surgical insertion of a feeding tube due to dysphagia. He underwent extensive physical, occupational, and speech therapy. While his condition significantly improved over time, he reported increased pain and neuropathy even two years after his initial hospitalization. The court awarded Mr. Bircheat $170,000.00 for pain and suffering and $558.64 for Medicaid lien expenses, totaling $170,558.00. The court considered his comorbidities, noting that while they do not diminish the impact of the GBS, they are relevant as not all of his suffering could be attributed solely to the vaccine injury. The award was based on the severity and duration of his GBS symptoms, falling within the range of comparable GBS cases.

Theory of causation field:
Table

Public staged source text:

================================================================================
DOCUMENT 1: USCOURTS-cofc-1_19-vv-01088-0
Date issued/filed: 2020-09-02
Pages: 2
Docket text: PUBLIC ORDER/RULING (Originally filed: 07/30/2020) regarding 17 Ruling on Entitlement Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
--------------------------------------------------------------------------------
Case 1:19-vv-01088-UNJ Document 20 Filed 09/02/20 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1088V
UNPUBLISHED
CHESTER BIRCHEAT, Chief Special Master Corcoran
Petitioner, Filed: July 30, 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.
Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
petitioner.
James Vincent Lopez, U.S. Department of Justice, Washington, DC, for respondent.
RULING ON ENTITLEMENT1
On July 29, 2019, Chester Bircheat 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 a
result of an influenza (“flu”) vaccination he received on November 8, 2017. Petition at 1.
The case was assigned to the Special Processing Unit of the Office of Special Masters.
On July 29, 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 agrees that Petitioner suffered from GBS; that he has satisfied
the criteria set forth in the revised Vaccine Injury Table and the Qualifications and Aids to
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-01088-UNJ Document 20 Filed 09/02/20 Page 2 of 2
Interpretation, which affords him a presumption of vaccine causation; and that there is no
more likely alternative diagnosis and no apparent alternative cause. Id. at 7.
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

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_19-vv-01088-1
Date issued/filed: 2021-07-16
Pages: 8
Docket text: PUBLIC DECISION (Originally filed: 06/16/2021) regarding 39 DECISION of Special Master Signed by Judge Patricia E. Campbell-Smith. (sw) Service on parties made.
--------------------------------------------------------------------------------
Case 1:19-vv-01088-UNJ Document 45 Filed 07/16/21 Page 1 of 8
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1088V
UNPUBLISHED
CHESTER BIRCHEAT, Chief Special Master Corcoran
Petitioner, Filed: June 16, 2021
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Decision Awarding Damages; Pain
HUMAN SERVICES, and Suffering; Influenza (Flu)
Vaccine; Guillain-Barré syndrome
Respondent. (GBS)
Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
Petitioner.
James Vincent Lopez, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On July 29, 2019, Chester Bircheat filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”), alleging that he suffered Guillain Barré syndrome (“GBS”) as a result of
an influenza (“flu”) vaccination administered to him on November 8, 2017. Petition at 1.
The case was assigned to the Special Processing Unit of the Office of Special Masters.
Although entitlement was conceded, the parties could not agree on damages, so the
disputed component of actual pain and suffering was submitted to SPU Motions Day.
1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the decision will be available to anyone with access to the
internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact
medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy.
If, upon review, I agree that the identified material fits within this definition, I will redact such material from
public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).

Case 1:19-vv-01088-UNJ Document 45 Filed 07/16/21 Page 2 of 8
For the reasons described below, and after holding a brief hearing on damages in
this matter, I find that Petitioner is entitled compensation, and I award damages in the
amount $170,000.00, representing compensation for Petitioner’s actual pain and
suffering.
I. Relevant Procedural History
As noted above, the case was initiated in July 2019. On July 29, 2020, Respondent
filed a Rule 4(c) report in which he conceded that Petitioner was entitled to compensation
in this case. ECF No. 16. Accordingly, on July 30, 2020, a ruling on entitlement issued
finding Petitioner entitled to compensation for GBS. ECF No. 17. After attempting to
informally resolve the issue of damages for several months, the parties informed me in
January 2021 that they could not do so. ECF No. 26. I therefore provided the parties an
opportunity to file written briefs, and scheduled this matter for an expedited hearing and
ruling. ECF Nos. 27, 36.
The hearing was held on May 28, 2021, and the only disputed damages
component was pain and suffering.3 Petitioner requests that I award him $225,000.00 for
past pain and suffering. ECF Nos. 31, 35. Respondent proposes that I award the lesser
amount of $128,000.00 for actual pain and suffering. ECF No. 32. The parties agreed to
an award of $558.64 representing Medicaid lien expenses. ECF No. 35 at 1-2 n.1.
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 awarding such
expenses which-- (i) resulted from the vaccine-related injury for which petitioner seeks
compensation, (ii) were incurred by or on behalf of the person who suffered such injury,
and (iii) were for diagnosis, medical or other remedial care, rehabilitation . . . determined
to be reasonably necessary.” Section 15(a)(1)(B). The petitioner bears the burden of proof
with respect to each element of compensation requested. Brewer v. Sec’y of Health &
Human Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18,
1996).
There is no mathematic formula for assigning a monetary value to a person’s pain
and suffering and emotional distress. I.D. v. Sec’y of Health & Human Servs., No. 04-
3 The transcript of the May 28, 2021 Hearing in this case was not yet filed as of the date of this Decision
but is incorporated by reference herein. Leah Durant appeared on behalf of Petitioner, and James Lopez
appeared on behalf of Respondent.
2

Case 1:19-vv-01088-UNJ Document 45 Filed 07/16/21 Page 3 of 8
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)).
Prior pain and suffering awards in comparable cases also bear on the findings
reached herein. See, e.g., Doe 34 v. Sec’y of Health & Human Servs., 87 Fed. Cl. 758,
768 (2009) (finding that “there is nothing improper in the chief special master’s decision
to refer to damages for pain and suffering awarded in other cases as an aid in determining
the proper amount of damages in this case.”). And, of course, I may rely on my own
experience (along with my predecessor Chief Special Masters) adjudicating similar
claims.4 Hodges v. Sec’y of Health & Human Servs., 9 F.3d 958, 961 (Fed. Cir. 1993)
(noting that Congress contemplated the special masters would use their accumulated
expertise in the field of vaccine injuries to judge the merits of individual claims).
III. Appropriate Compensation in this Case
In this case, awareness of the injury is not disputed. The record reflects that at all
times, Petitioner was a competent adult with no impairments that would impact his
awareness of his injury. I thus analyze principally the severity and duration of Petitioner’s
injury.
In performing this analysis, I have reviewed the record as a whole to include the
medical records and affidavits filed and all assertions and argument made by the parties
in written documents and at the expedited hearing held on May 28, 2021. I also
considered prior awards for pain and suffering in both SPU and non-SPU GBS cases,
and rely upon my experience in adjudicating those cases.5 However, I ultimately base my
4 From July 2014 until September 2015, the SPU was overseen by former Chief Special Master Vowell. For
the next four years, until September 30, 2019, all SPU cases, including the majority of 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.
5 Statistical data for all GBS cases resolved in SPU by proffered amounts from inception through January
1, 2021 reveals the median amount awarded to be approximately $167,499.14. These awards have typically
ranged from approximately $128,072.42 to $269,933.00, representing cases between the first and third
quartiles.
3

Case 1:19-vv-01088-UNJ Document 45 Filed 07/16/21 Page 4 of 8
determination on the circumstances of this case.
Here, the record shows that Petitioner, a retiree with significant co-morbidities,6
presented on December 4, 2017 (approximately 27 days after this flu vaccination) to his
primary care physician with complaints of a four-day history of progressive weakness and
numbness in his extremities, and an inability to walk. Ex 2 at 17. He was admitted to the
hospital that same day and assessed with “possible acute inflammatory polyneuropathy”
or GBS “due recent inf[ection] or vaccination” after a December 6, 2017 nerve conduction
study demonstrated “severe demyelinating polyneuropathic findings.” Ex. 5 at 1911-12.
Petitioner was treated “empirically due to severe symptoms and weakness” and a
five-day course IVIG therapy commenced. Ex. 5 at 1912. He suffered a fairly severe injury
and had a difficult rehabilitation course. After seven days in the hospital, Petitioner was
discharged on December 11, 2017 to in-patient rehabilitation where he remained until
January 4, 2018. Ex. 11 at 4. It was noted that Petitioner had no symptom improvement
after completion of a five-day course of IVIG. Ex. 11 at 6, 35-36. On December 18, 2017
after experiencing severe dysphagia with aspiration Petitioner required the surgical
insertion of a jejunostomy feeding tube. Ex. 8 at 7-8; Ex. 11 at 6. During his in-patient
rehabilitation, Petitioner underwent physical, occupational, and speech therapy in an
effort to improve his mobility, independence in regard to conducting activities of daily
living, and safety. Ex. 11 at 6, 23. Petitioner was discharged from rehabilitation treatment
on January 4, 2018 to live at home with his niece. Ex. 11 at 4, 10.
Thereafter Petitioner was treated for his GBS (and other medical conditions)
regularly for more than two and a half years. Petitioner engaged in outpatient therapy for
approximately two months completing 21 physical therapy sessions, eight occupational
therapy sessions, and five speech therapy sessions. Ex. 4 at 514-15, 631, 690-93.
Unfortunately, even two years subsequent to his initial hospitalization in December 2019,
Petitioner reported to his primary care provider that he had “increased pain all over feel[s]
like walking on blisters,” and he was “worried” his GBS was returning due to his “severe
needle pain.” Ex. 18 at 17. At that time, Petitioner’s primary care physician’s assessment
of his condition included “neuropathy, severe, BLE [secondary to] Guillain Barre.” Id. at
16.
6 Petitioner received his vaccination (Ex 1; Ex. 16 at 1) while he was at an in-patient rehabilitation program
(from 11/7/17 – 11/20/17) recovering from severe pneumonia and acute hypoxemic respiratory failure
following a nine-day hospitalization (10/30/2017 – 11/7/2017). Ex. 3 at 1-2; Ex. 5 at 1-3. Petitioner’s
comorbidities included: chronic pain, chronic tremor, generalized weakness, depression, hypertension,
chronic obstructive pulmonary disease, chronic back problems, coronary artery disease, hiatal hernia, and
gastroesophageal reflux disease. Ex. 3 at 1, 5; Ex. 11 at 34. Prior to his GBS diagnosis Petitioner took
narcotic medications for his chronic neck and back pain. See generally Ex. 2. Additionally, Petitioner
suffered pre-vaccination symptoms in 2017 of numbness, paresthesia, “pins and needle” pain in his
extremities. Ex 2 at 18-26; Ex. 6 at 12.
4

Case 1:19-vv-01088-UNJ Document 45 Filed 07/16/21 Page 5 of 8
However, by August 5, 2020, Petitioner reported at a telehealth neurology
appointment that he was doing well, and that his “paresthesia and dysesthesias have
been more or less well controlled on the current medical regimen.” Ex. 19 at 6. He further
indicated that his activities of daily living and his quality of life were “not affected.” Id. He
remained on Neurontin in addition to other medications. Id. Shortly thereafter, on
September 4, 2020, Petitioner underwent EMG testing demonstrating “[m]ild
electrophysiologic evidence of nonspecific sensory and motor peripheral neuropathy of
the tested nerves, improved versus the April 4, 2018 study” and “[n]ormal EMG of the
lower extremities as tested.” Ex. 19 at 16. While Petitioner had not yet completely
recovered from his GBS, at that point (two years and nine months after his initial
hospitalization), I find that his GBS and related sequela had significantly improved. No
further treatment records have been filed.7
In making my determination, I have fully considered Petitioner’s own affidavit, as
well as a signed statement from his niece, which describe the pain experienced by
Petitioner over the course of his injury, as well as, the limitations in his exercise of daily
functions and physical activities attributed to his GBS. Both Petitioner and his niece report
that he has not returned to his prior level of functioning. Exs. 16, 21.
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, based upon the facts of the case. This
determination is not an exact science but more of an art. While it is tempting to “split the
difference” and award an amount halfway between the amounts proposed by the parties
(based upon the determination that the parties’ respective positions reasonably “frame”
high and low potential awards), each petitioner deserves an examination of the specific
facts in his or her case. Thus, while amounts ultimately awarded may end up falling
somewhere in the range between the awards proposed by both parties, this result flows
from a specific analysis of Petitioner’s personal circumstances.
Based upon the record as a whole, I find that the severity and duration of
Petitioner’s GBS symptoms warrant a significant pain and suffering award, but not quite
at the level requested by Petitioner.
In his brief, Respondent references three prior GBS damages decisions and
argues that Petitioner’s clinical course was less severe than the petitioners in those
cases. Rather, based on his review of other conceded (and presumptively proffered)
flu/GBS cases, Respondent deems $128,000.00 to be an appropriate award of pain and
suffering in this case. ECF No. 32 at 13-14 (citing Johnson v. Sec’y of Health & Human
7 The record does document a further neurology appointment on September 22, 2020 for cerebral
thrombosis with cerebral infraction. Ex. 19 at 3.
5

Case 1:19-vv-01088-UNJ Document 45 Filed 07/16/21 Page 6 of 8
Servs., No. 16-135V, 2018 WL 5024012 (Fed. Cl. Spec. Mstr. July, 20, 2018) (awarding
$180,000.00 for actual pain and suffering); Dillenbeck v. Sec’y of Health & Human Servs.,
No. 17-428V, 2019 WL 4072069 (Fed. Cl. Spec. Mstr. July 29, 2019) aff'd in relevant part
and remanded on other grounds 147 Fed. Cl. 131 (2020) (awarding $170,000.00 for past
pain and suffering); Fedewa v. Sec’y of Health & Human Servs., No. 17-1808V, 2020 WL
1915138 (Fed. Cl. Spec. Mstr. March 26, 2020) (awarding $180,000.00 for past pain and
suffering)).
Petitioner in reaction argues that the Dillenbeck and Johnson cases present “far
less severe fact patterns than the present case.” ECF No. 35 at 6. He has not, however,
offered comparable reasoned decisions of his own. Instead he cites to two cases that
were conceded and resolved via Proffer (resulting in pain and suffering awards of
$200,000.00 and $225,000) as agreed upon by the parties. ECF No. 31 at 13.
I reject the implied argument of both parties that the amounts awarded in proffered
cases provide more persuasive guidelines for the award to be issued in this matter than
reasoned decisions from the Court and special masters. As I have previously stated, a
proffer is simply Respondent’s assessment (as agreed to by Petitioner) of the appropriate
amount to be awarded, and thus a special master’s approval of a proffer is not akin to a
reasoned evaluation of damages, issued by a neutral judicial officer, that can be looked
to when evaluating the damages to be awarded – even if settled cases and proffers do
provide some evidence of the magnitude of awards in factually-similar actions.
Moving to the relevant facts, Petitioner argues that his comorbidities support a
higher award, as his other conditions were made worse and his suffering greater as a
result of his GBS, and notes “a general principle of tort law is that the defendant must
take his plaintiff as he finds him.” ECF No. 31 at 12. However, Respondent offers the
counter argument that Petitioner’s comorbidities support a lower award, as his pain and
suffering was not solely due to his GBS, as was true in cases cited by Respondent
involving previously-healthy individuals whose medical condition greatly worsened due to
vaccine injury. ECF No. 32 at 12-14.
I generally agree with Petitioner that the mere fact a claimant had pre-vaccination
comorbidities does not per se diminish the impact of injury on his life – especially one as
alarming and potentially life-altering as GBS – and therefore is not alone a reason for a
lower award. However, those comorbidities are still relevant to pain and suffering, since
their ongoing nature means that not all of his post-vaccination suffering can in fact be
attributed to the vaccine injury.
In addition, while Petitioner argues that his continued symptoms support an
increased award and “that there is no hope in sight for a full recovery”, ECF No. 31 at 12,
6

Case 1:19-vv-01088-UNJ Document 45 Filed 07/16/21 Page 7 of 8
the petitioner in Dillenbeck (who received less than what Petitioner requests herein)
similarly “did not feel like she had returned to a baseline level of health” even three years
after vaccination. Dillenbeck, 2019 WL 4072069, at *2. And unlike some petitioners,
whose GBS ends their working careers,8 Petitioner was retired. Even if Petitioner’s GBS
and related sequela had a considerable impact on his life enjoyment, the non-vaccine-
caused co-morbidities he was experiencing also affected his life. Finally, as pointed out
by Respondent at the expedited hearing, Petitioner did not require a life care plan to
provide for future medical care and needs related to his GBS – thus further highlighting
the degree to which his suffering, while real, is not associated with the need for continued
medical intervention.
I find the cases referenced by Respondent (Johnson, Fedewa, and Dillenbeck)
provide reasonable benchmarks for an award of pain and suffering in the instant case,
notwithstanding the real differences in the course of each petitioners’ injury. As I
explained previously to the parties during the expedited hearing, it is my view that GBS
pain and suffering awards generally should be higher than those awarded to petitioners
who have suffered a less frightening and physically-alarming injury, such as SIRVA. After
reviewing the record and specific facts in this case and considering the parties’ arguments
during the hearing, I find that $170,000.00 in compensation for past pain and suffering is
reasonable based on the facts and circumstances specific to this case. This sum exceeds
the amount that Respondent proposed, but is properly less than what Petitioner
requested, and fits the range of sums awarded in the three good comparable cases.
IV. Conclusion
For all of the reasons discussed above, and based on consideration of the record
as a whole, I find that $170,000.00 represents a fair and appropriate amount of
compensation for Petitioner’s past pain and suffering, and $558.64 as agreed to by the
parties for reimbursement of Petitioner’s Medicaid lien.
Accordingly, I award the following compensation:
a. A lump sum payment of $558.64, representing compensation for
satisfaction of a State of Alabama Medicaid lien, payable jointly to Petitioner
and
HMS
TPL Recovery Unit
4121 Carmichael Road, Suite 205
8 See, e.g., Dillenbeck, 2019 WL 4072069, at *14.
7

Case 1:19-vv-01088-UNJ Document 45 Filed 07/16/21 Page 8 of 8
Montgomery, AL 36106
Petitioner agrees to endorse this payment to the State; and
b. A lump sum of $170,000.00, representing compensation for Petitioner’s
actual pain and suffering, in the form of a check payable to Petitioner.
This amount represents compensation for all items of damages that would be
available under Section 15(a).
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
8