VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-01104
Package ID: USCOURTS-cofc-1_19-vv-01104
Petitioner: Edward Sand
Filed: 2020-09-21
Decided: 2021-10-08
Vaccine: influenza
Vaccination date: 2018-11-20
Condition: Guillain-Barre Syndrome (GBS)
Outcome: compensated
Award amount USD: 130000

AI-assisted case summary:
Edward Sand, a 61-year-old man, 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 vaccine administered on November 20, 2018. Approximately 18 months after the petition was filed, the Respondent conceded that Mr. Sand was entitled to compensation, finding that his GBS met the criteria of the Vaccine Injury Table. The parties were unable to resolve damages informally, and Mr. Sand requested $140,000.00 for past and future pain and suffering, while the Respondent argued for $55,000.00. Mr. Sand's medical history included hypertension, COPD, and chronic lumbar pain for which he had undergone surgery and received injections. He reported developing weakness, upper back pain, and numbness approximately two weeks after the flu vaccine. His symptoms were initially attributed to his chronic back issues and a potential pinched nerve, but after further evaluation, including EMG/NCV studies, he was diagnosed with GBS in March 2019. While Mr. Sand's GBS was considered on the milder end of the spectrum, avoiding severe complications like respiratory failure, he experienced significant pain, anxiety, and took leave from his job. He also reported residual numbness, weakness, and fatigue. The court awarded Mr. Sand $130,000.00 for past pain and suffering, balancing the seriousness of GBS with the specific circumstances of his case, including the lack of hospitalization and the intermingling of his GBS symptoms with pre-existing conditions.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_19-vv-01104-0
Date issued/filed: 2020-10-21
Pages: 2
Docket text: PUBLIC ORDER/RULING (Originally filed: 09/21/2020) regarding 23 Ruling on Entitlement Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
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Case 1:19-vv-01104-UNJ Document 25 Filed 10/21/20 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1104V
UNPUBLISHED
EDWARD SAND, Chief Special Master Corcoran
Petitioner, Filed: September 21, 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.
David John Carney, Green & Schafle LLC, Philadelphia, PA, for petitioner.
Sarah Christina Duncan, U.S. Department of Justice, Washington, DC, for respondent.
RULING ON ENTITLEMENT1
On July 30, 2019, Edward Sand 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”) vaccine administered to him on November 20, 2018. Petition
at 1. The case was assigned to the Special Processing Unit of the Office of Special
Masters.
On September 11, 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 has satisfied the criteria
set forth in the recently revised Vaccine Injury Table (‘Table’) and the Qualifications and
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-01104-UNJ Document 25 Filed 10/21/20 Page 2 of 2
Aids to Interpretation (‘QAI’), which afford [P]etitioner a presumption of causation if the
onset of GBS occurs between three and forty-two days after a seasonal flu vaccination
and there is no apparent alternative cause.” Id. at 5.
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-01104-1
Date issued/filed: 2021-10-08
Pages: 10
Docket text: PUBLIC DECISION (Originally filed: 08/31/202) regarding 39 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-01104-UNJ Document 45 Filed 10/08/21 Page 1 of 10
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1104V
UNPUBLISHED
EDWARD SAND, Chief Special Master Corcoran
Petitioner,
v. Filed: August 31, 2021
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Decision Awarding Damages; Pain
and Suffering; Influenza (Flu);
Respondent. Guillain-Barré Syndrome (GBS).
David John Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner.
Sarah Christina Duncan, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On July 30, 2019, Edward Sand 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 Guillain-Barré syndrome (“GBS”)
causally related to the influenza (“flu”) vaccine he received on November 20, 2018. See
Petition at Preamble; ¶¶ 3, 12. The case was assigned to the Special Processing Unit
(“SPU”) of the Office of Special Masters.
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-01104-UNJ Document 45 Filed 10/08/21 Page 2 of 10
For the reasons set forth below, I find that Petitioner is entitled to an award of
damages in the amount of $130,000.00 for his past pain and suffering.
I. Relevant Procedural History
Approximately 18 months after this case was initiated, on September 11, 2020,
Respondent conceded that Petitioner was entitled to compensation. Rule 4(c) Report
(ECF No. 22). I issued a ruling on entitlement on September 21, 2020. ECF No. 23. The
parties then attempted to informally resolve damages but were unsuccessful. ECF No.
29. Petitioner filed additional evidence and his brief requesting an award of $140,000.00
for past and future pain and suffering. ECF No. 32. Respondent countered that the record
supported no more than $55,000.00. ECF No.33. Petitioner filed a reply. ECF No. 35. The
matter now is ripe for adjudication.3
II. Relevant Medical History
Petitioner was a 61-year-old married father of three when he received the flu
vaccine at issue. He was employed full-time as a maintenance worker at a local school,
and owned and self-managed rental properties for additional income. See Ex. 4 at 6; Ex.
15 at ¶ 6. While Petitioner averred that prior to the vaccination, he was “healthy” and
“active,” his prior medical history included hypertension, chronic obstructive pulmonary
disease for which he was prescribed two inhalers, and osteoarthritis of the bilateral
glenohumeral joints. Ex. 1 at 2.
Petitioner also had a three-year history of worsening lumbar pain in his lower back
and legs, prompting a laminectomy on L4-5 and L5-S1 on March 19, 2018. Ex. 1 at 6; Ex.
3 at 6-18; Ex. 9 at 1-2.4 Nevertheless, the pain continued – rated at 9/10 – necessitating
steroid injections on May 8, 2018, and August 30, 2018. Ex. 6 at 2-3; Ex. 3 at 15. Fifteen
(15) days before vaccination, on November 5, 2018, Petitioner saw his neurosurgeon for
continued pain throughout his right leg which was worse when sitting and driving and
somewhat limited his walking. The neurosurgeon suspected that Petitioner had continued
L5 pathology that was pinching a nerve. Ex. 3 at 18-20.
3 I offered to schedule this case for the Motions Day in either August or September 2021. While Respondent
was amenable to either oral argument or a ruling on the record as it stood, Petitioner’s counsel requested
the latter due to scheduling conflicts. See Informal Communication (Non-PDF) entered July 12, 2021; ECF
Nos. 37-38.
4 Respondent states that Petitioner “underwent two decompressive surgeries in the past.” Response at 2.
This may not be correct. The neurosurgeon recorded: “His wife underwent 2 decompressive surgeries
which did not help and then had that level fused and got better. Does not want to have to go through 3
surgeries to get better like she did he says.” Ex. 3 at 6 (emphasis added).
2

Case 1:19-vv-01104-UNJ Document 45 Filed 10/08/21 Page 3 of 10
Petitioner received the flu vaccine on November 20, 2018. Ex. 1 at 3. He recalls
that “about two weeks” thereafter, he developed weakness throughout his body, severe
upper back pain, and numbness in his hands and feet. Ex. 2 at ¶ 10.
On December 14, 2018, Petitioner telephoned his neurosurgeon’s office to request
medication for significant pain – although the nature or location of pain was not recorded.
Ex. 12 at 400. A medical assistant reviewed the prior records and presumed that
Petitioner was experiencing “pinched nerve pain,” for which she wrote a prescription for
gabapentin 300mg, twice per day. Id. That afternoon, Petitioner underwent a repeat
lumbar spine MRI and was scheduled for a follow-up appointment with the neurosurgeon
to take place on December 24, 2018. Id. at 392-93.
On December 20, 2018, Petitioner presented to his primary care provider for the
sudden onset of thoracic back pain rated at 9/10, for which his old post-operative pain
medication (gabapentin, as noted above) delivered about 4 hours of relief. Ex. 1 at 11.
The primary care provider ordered an x-ray to evaluate for thoracic back pain and
prescribed a 7-day course of acetaminophen with codeine. Id.
On December 24, 2018, the neurosurgeon recorded that in addition to his chronic
lumbar pain, Petitioner had a two-week history of new “severe acute pain… in the mid-
scapular area,” followed by bilateral arm weakness and gait instability. Ex. 3 at 21. The
neurosurgeon felt that the “symptoms are not typical of Guyon [sic]-Barré” but were “very
concerning” for cervical pathology. Id. He wrote a new prescription for acetaminophen-
hydrocodone to take at night. Id.
Petitioner went on leave from his job on or about December 30, 2018. Ex. 12 at
302. On January 11, 2019, the neurosurgeon instructed him to stop taking
acetaminophen-hydrocodone because it was not effective, increase gabapentin from two
to three times per day, and consult with a neurologist. Ex. 3 at 25-27.
At the initial consult on January 14, 2019, the neurologist, Dr. Randall Bjork,
recorded Petitioner’s history that starting “around the Thanksgiving holiday,” he
developed new interscapular pain, numbness in his hands and feet, weakness (e.g.,
difficulty opening a bottle of water, climbing stairs, and rising from a chair), weight loss of
a few pounds, and constipation. Ex. 4 at 6. Dr. Bjork also observed fasciculations5 in all
four extremities, diminished reflexes in the lower extremities, and reduced sensation
5 A fasciculation is defined as “a small local contraction of muscles, visible through the skin, representing a
spontaneous discharge of a number of fibers innervated by a single motor nerve filament.” Dorland's
Medical Dictionary Online, at https://www.dorlandsonline.com (hereinafter “Dorland’s”).
3

Case 1:19-vv-01104-UNJ Document 45 Filed 10/08/21 Page 4 of 10
especially in the right upper extremity. Id. These symptoms were “disturbing” and
potentially representing amyotrophic lateral sclerosis (“ALS”).6 Id. at 6-8. Petitioner would
undergo EMG/NCV studies “when an appointment becomes available on a first
cancellation basis.” Id. at 8. The next day, the primary care provider noted that Petitioner
was “very concerned” that his symptoms represented ALS and prescribed another 7-day
course of acetaminophen-hydrocodone to treat his “severe,” “worsening” back pain. Ex.
1 at 14.
On January 30, 2019, Petitioner had continued symptoms, especially scapular
pain, and was not sure whether or not gabapentin was helpful. Ex. 3 at 28. Then on
February 13, 2019, at an initial physical therapy consult, he reported that at its nadir, the
pain was 10/10 and woke him up frequently at night. Ex. 12 at 304. But since the increase
in gabapentin, he had “steadily gotten better,” his pain never got much above 3/10, and
he was sleeping through the night. Id. The therapist could not detect Petitioner’s reported
neurological symptoms (numbness, tingling, and decreased dexterity in his hands). Id.
The therapist provided mobility exercises for Petitioner’s thoracic spine, as well as core
stabilization exercises for his lower back, to work on at home. Id. Petitioner was told to
follow up after completing his neurological evaluation if there was need for further
treatment of his spine. Id. However, on March 22, 2019, the physical therapist noted that
Petitioner had not followed up and formally discharged him from care. Id. at 227.
Approximately five months after vaccination and two months after Dr. Bjork
ordered EMG/NCV studies, on March 18, 2019, Petitioner finally secured an appointment
and underwent those studies. The recorded purpose was “development of diffuse
paresthesias, weakness, imbalance in November 2018, now mostly resolved.” Ex. 4 at
13. The findings were consistent with a “subacute demyelinating sensorimotor
polyneuropathy with signs of reinnervation” and a “possible superimposed right sciatic
mononeuropathy.” Id.
On March 25, 2019, Dr. Bjork reviewed the electrodiagnostic studies and
diagnosed Petitioner with GBS that was “resolving gradually now.” Ex. 10 at 10. Petitioner
was able to rise from his chair. Id. He demonstrated more active lower extremity reflexes
and fasciculations in the right interosseous nerve, which Dr. Bjork attributed to
remyelination. Id. Petitioner wondered whether to stop taking gabapentin because his
“quite troublesome” back pain had resolved. Id. The GBS symptoms were “receding from
6 Amyotrophic lateral sclerosis (“ALS”), also known as Lou Gehrig’s disease and Charcot syndrome, is
defined as “a motor neuron disease marked by progressive degeneration of the neurons that give rise to
the corticospinal tract and of the motor cells of the brainstem and spinal cord, resulting in a deficit of upper
and lower motor neurons; it usually ends fatally within 2 to 3 years.” Dorland’s.
4

Case 1:19-vv-01104-UNJ Document 45 Filed 10/08/21 Page 5 of 10
his primary attention” and he was “focusing more on his chronic right sciatica for which
[he] ha[d] seen [the neurosurgeon] in the past.” Id. In June 2019, Dr. Bjork recorded
further improvements from GBS. Ex. 10 at 14-15.
In August 2019, Dr. Bjork confirmed that Petitioner was making “a slow and steady
recovery” from GBS. Ex. 10 at 17. He demonstrated distal sensory loss of 50% in his
fingers and in a long-stocking distribution of the lower extremities, as well as “a bit” of
reduced sensation at the ankles, but: “Discrimination, however, was really quite good, in
that he was able to pick out the denomination of coins in his pockets.” Id. at 18. Dr. Bjork
did not observe any Babinski signs, fasciculations, weakness, or gait abnormality. Id. He
expected further recovery over time and recommended a follow up in two months. Id.
Nearly a year later, on June 30, 2020, Petitioner presented to a different
neurologist, Dr. Ryan Barmore, “to update his records” and to obtain “an updated report
for his insurance.” Ex. 14 at 2. Petitioner reported that he had been “doing very well in the
interim.” Id. However, he had “a residual burning sensation… about 6 inches in size”
without pain in his upper back, mild sensory symptoms in his hands and the balls of his
feet, and decreased stamina since the GBS onset. Id. Dr. Barmore observed these
symptoms on physical exam and counseled Petitioner on “fall and balance precautions
given concern for the possibility of sensory ataxia in low-light conditions.” Id.
In his affidavits, Petitioner recalls taking sick leave from December 2018 to about
mid-March 2019, at which point he returned to only “light duty work.” Upon his return and
continuing to the preparation of his supplemental affidavit in March 2021, he can no longer
work on ladders or any machines involving heights, struggles to perform his prior
responsibilities, and is reduced to working only a few hours a day to avoid over-exertion
or excessive fatigue. He has also hired someone to maintain his rental properties in his
stead. Ex. 2 at ¶ 18; Ex. 15 at ¶ 6.7 Petitioner avers that his residual GBS symptoms are
numbness in his fingertips and feet; jitters throughout his arms and legs; pain and burning
in the middle of his back; decreased stamina; slower movement; and use of an inhaler
twice a day to maintain a proper oxygen level. Ex. 15 at ¶ 5.
III. 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
7 In his supplemental affidavit, Petitioner avers that he took sick leave from “December 2020 until the middle
of March 2020.” Ex. 15 at ¶ 6 (emphasis added). Both years are clearly incorrect and understood to be
typographical errors.
5

Case 1:19-vv-01104-UNJ Document 45 Filed 10/08/21 Page 6 of 10
award not to exceed $250,000.” Section 15(a)(4). Additionally, a petitioner may recover
“actual unreimbursable expenses incurred before the date of judgment award such
expenses which (i) resulted from the vaccine-related injury for which petitioner seeks
compensation, (ii) were incurred by or on behalf of the person who suffered such injury,
and (iii) were for diagnosis, medical or other remedial care, rehabilitation . . . determined
to be reasonably necessary.” Section 15(a)(1)(B). The petitioner bears the burden of proof
with respect to each element of compensation requested. Brewer v. Sec’y of Health &
Human Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18,
1996).
There is no mathematic formula for assigning a monetary value to a person’s pain
and suffering and emotional distress. I.D. v. Sec’y of Health & Human Servs., No. 04-
1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013) (“[a]wards for
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.8 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).
8 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.
6

Case 1:19-vv-01104-UNJ Document 45 Filed 10/08/21 Page 7 of 10
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.
IV. Appropriate Compensation for Petitioner’s Pain and Suffering
In this case, awareness of the injury is not disputed. The record reflects that at all
times, Petitioner was a competent adult with no impairments that impacted his
awareness. Therefore, I analyze principally the severity and duration of his injury.
In requesting $140,000.00, Mr. Sand emphasizes my past recognition that: “GBS
is a serious injury, and Petitioner’s pain and suffering award should be calculated with
that in mind.” Motion at 18, citing W.B. v. Sec’y of Health & Human Servs., No. 18-1634V,
2020 WL 5509686, at *5 (Fed. Cl. Spec. Mstr. Aug, 7, 2020). Some individuals who
develop GBS have more significant symptoms; receive emergency medical attention,
hospitalization, intravenous immunoglobulin (“IVIg”) and/or plasmapheresis, physical
therapy; and have longer periods of severe disability.9 And Petitioner recognizes that in
comparison to those cases, he did not suffer “the most severe version of GBS.” Motion at
18. However, he suggests that his case is “substantially similar” to W.B., in which the
petitioner was hospitalized for one day, had plasmapheresis over two weeks, completed
two months of physical therapy, and his GBS largely resolved within one year except for
some residual fatigue on exertion. Id. at 14-15; W.B., 2020 WL 5509686 (awarding
$155,000.00).10
9 See also Ex. 16 [full citation infra at n. 12] at 1 (providing that GBS can lead to respiratory failure,
autonomic dysfunction, and an estimated mortality rate of 3-10% “even with the best medical care
available”).
10 Also instructive is Nelson, in which the petitioner developed progressive weakness, numbness, and
difficulty with breathing and swallowing, prompting a 5-day hospitalization with IVIg followed by a 5-day
inpatient rehabilitation course. The petitioner then exhibited a good recovery from GBS, without any
recurrence, and at least some of his later neurological symptoms were attributed to cervical radiculopathy.
Nelson v. Sec’y of Health & Human Servs., No.17-1747V, 2021 WL 754856 (Fed. Cl. Spec. Mstr. Jan. 13,
2021) (awarding $155,000.00).
7

Case 1:19-vv-01104-UNJ Document 45 Filed 10/08/21 Page 8 of 10
Respondent counters that the “the objective record” (referring only to the medical
records and not the affidavits) supports that Petitioner’s GBS and resulting sequelae are
mild when compared to other GBS claims including W.B. Response at 9. Respondent
emphasizes that Petitioner’s case consisted of only gabapentin and acetaminophen-
hydrocodone and did not involve hospitalization, respiratory compromise, IVIg or
plasmapheresis, or inpatient or outpatient rehabilitation or physical therapy. Id. at 10.
Respondent does not cite any reasoned opinions but avers that a review of past flu/GBS
claims – which were presumably resolved via joint stipulations between the parties or the
petitioners’ acceptance of a proffer representing Respondent’s valuation of their cases –
supports an award of $55,000.00 for Petitioner’s past pain and suffering. Id.
Petitioner objects to Respondent’s failure to identify any reasoned opinions
supporting his proposed award of $55,000.00 for a conceded GBS case. Reply at 3.11 He
also notes that Respondent’s effective position is that Petitioner’s pain and suffering from
GBS is less than the median award for conceded SIRVA claims resolved either by
stipulation or reasoned opinion. Id. at 7 (citing Randazzo v. Sec’y of Health & Human
Servs., No. 18-1513V, 2021 WL 829572, at *5 (Fed. Cl. Spec. Mstr. Feb. 1, 2021)).
Alongside his reply, Petitioner submitted a 2019 article12 which supports the
proposition that prompt treatment of GBS is preferred: “Clinical trials have demonstrated
a treatment effect for [IVIg] when started within 2 weeks of the onset of weakness and
plasma exchange when started within 4 weeks. Beyond these time periods, evidence on
efficacy is lacking.” Ex. 16 at 8. Petitioner suggests that his delayed diagnosis precluded
prompt treatment, which hindered his recovery from GBS. Furthermore, when his
neurologist reached a diagnosis of GBS five months after onset, the neurologist most
likely concluded that IVIg treatment would no longer be effective. Reply at 5. Therefore,
the absence of IVIg treatment does not demonstrate that his GBS was less severe and
should not lower the pain and suffering award. Id.
Petitioner maintains that he has suffered residual numbness, weakness, hand
tremors and fatigue for two and one-half years, which are likely to continue. Motion at 18;
Reply at 5. He submitted literature supporting that: “Fatigue, unrelated to residual motor
deficits, is found in 60-80% of patients with GBS and is often one of the most disabling
11 To wit, my independent review has not identified any such cases. The lowest GBS past pain and suffering
amount awarded to date as a result of a reasoned, published decision has been $155,000.00 -- in W.B.
and in Nelson, both cited herein.
12 S. E. Leonhard et al., Consensus Statement: Evidence-Based Guidelines – Diagnosis and Management
of Guillain-Barré syndrome in Ten Steps, 15 Nature 671 (2019) [Ex. 16].
8

Case 1:19-vv-01104-UNJ Document 45 Filed 10/08/21 Page 9 of 10
complaints.” Ex. 16 at 10. This is potentially attributable to “post-infectious fatigue,
dysautonomia, and psycho-sociological consequences of the disease.” Ex. 1713 at 7.
After reviewing the record as a whole and considering both parties’ arguments, I
conclude that while this case involves GBS, which is a serious injury, Mr. Sand’s particular
case of GBS was on the mild end of the spectrum. This conclusion is supported by his
choice to consult with established providers (his primary care provider, followed by his
neurosurgeon), then wait for a referral to a neurologist several weeks into the course,
rather than seeking emergency medical attention. Mr. Sand was fortunate to avoid severe
complications such as respiratory failure and autonomic dysfunction. By his own
admission, within about four months of GBS onset, the most disruptive symptom – the
acute pain in his upper back – largely resolved and he returned his focus to his chronic
lumbar pain.
In addition, Petitioner’s vaccine-caused GBS occurred in the midst of his grappling
with some facially-related symptoms. He was receiving treatment for neuropathic pain
right around the time his GBS manifested, and its comorbid existence made it difficult for
treaters to distinguish the true nature of his December 2018 symptoms. His chronic
lumbar pain and COPD may also partially explain his reports of decreased stamina even
after his GBS had initially resolved.
On the other hand, Respondent does not give sufficient credence to the
seriousness of GBS in general or the facts of this specific case. At the outset of Mr. Sand’s
injury, he consistently reported significant pain, rated at 9-10 /10, for which he consulted
three different providers and repeatedly reported that prescription pain medications did
not provide adequate relief. Mr. Sand was initially assessed with new thoracic back pain
(due to his prior history of lumbar back pain and presentation to a neurosurgeon), which
delayed his referral to a neurologist until at least one month into the course. The diagnosis
was further confounded by the neurologist’s apparent difficulty in scheduling and/or
insufficient resources for electrodiagnostic testing.
The record also reflects Petitioner’s anxiety while awaiting a definitive diagnosis,
especially in light of the differential which included a slower but ultimately fatal
neurodegenerative condition, ALS. Mr. Sand also took leave from his full-time job while
dealing with the acute pain. Finally, despite the one-year gap between his last encounter
with Dr. Bjork and follow-up with Dr. Barmore, both neurologists observed that Mr. Sand
was slowly and gradually improving from his GBS, but had some persisting, albeit mild,
sensory symptoms at the small of his back, hands, and feet. This is consistent with Mr.
13 J.M. de Vries et al., Fatigue in Neuromuscular Disorders: Focus on Guillain-Barré syndrome and Pompe
Disease, 67 Cell. Mol. Life Sci. 701 (2010) [Ex. 17].
9

Case 1:19-vv-01104-UNJ Document 45 Filed 10/08/21 Page 10 of 10
Sand’s submitted literature which suggests that an earlier diagnosis of GBS in his case
may have prompted treatment and a better recovery, and that GBS sequelae including
fatigue can persist for some time.
Based on the record before me, I conclude that the amount to be awarded for
actual pain and suffering in this case is close to what Petitioner requests, although slightly
less. Petitioner has far better substantiated his demand than Respondent, and the
number he seeks reasonably balances the seriousness of GBS generally and the limited
degree of pain and suffering in his specific case. A six-figure award is justified, given the
personal suffering imposed on Petitioner due to reasonable fear from the condition and
the toll it took on him professionally. However, I do give some weight to the complete lack
of a need for hospitalization, and also the fact that Petitioner’s comorbidities intermingled
with what was later seen in hindsight as his initial GBS presentation. I therefore find a fair
award in this case is $130,000.00.
V. Conclusion
I award Petitioner a lump sum payment of $130,000.00 for actual pain and
suffering. 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.14
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
14 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.
10