VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-01298
Package ID: USCOURTS-cofc-1_19-vv-01298
Petitioner: Allyson Lavigne
Filed: 2021-03-15
Decided: 2022-06-22
Vaccine: influenza
Vaccination date: 2018-10-16
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 199587

AI-assisted case summary:
Allyson Lavigne filed a petition for compensation under the National Vaccine Injury Compensation Program on August 27, 2019, alleging that she suffered a shoulder injury related to vaccine administration (SIRVA) resulting from an influenza vaccine she received on October 16, 2018. The respondent filed a Rule 4(c) report on March 8, 2021, conceding that Ms. Lavigne was entitled to compensation, acknowledging a Table SIRVA, and confirming that no other causes for her injury were identified and the statutory six-month sequela requirement was satisfied. A Ruling on Entitlement was issued on March 15, 2021. The parties were unable to informally resolve damages, leading to a briefing schedule and a motions hearing on April 29, 2022. Ms. Lavigne, then 27 years old, received the flu vaccine in her left deltoid on October 16, 2018. Two days later, on October 18, 2018, she presented to an orthopedist with pain in her left shoulder and difficulty moving her arm, receiving her first subdeltoid steroid injection. Her condition worsened, and on November 1, 2018, she reported increased pain and tenderness, with a noted "fibrotic reaction." She underwent her first surgery on November 2, 2018, for arthroscopy, manipulation under anesthesia, and resection of scar tissue fibrosis. Post-operative diagnoses included impingement syndrome, secondary fibrosis, and inflammation. Despite this, she continued to experience pain and received a second steroid injection on December 6, 2018, followed by a prescription for Celebrex. She received a third steroid injection on December 27, 2018, and a fourth on February 14, 2019, for persistent pain and tendonitis. An MRI on April 5, 2019, revealed synovitis, rotator cuff tendinosis, and mild bursitis. On April 22, 2019, she received a fifth steroid injection and began physical therapy (PT), which she attended from April 23 to May 17, 2019. On May 23, 2019, her orthopedist recommended a second surgery due to scar tissue maturation and irritation, which she underwent on May 31, 2019, for arthroscopic synovectomy and decompression of scar tissue. PT resumed from August 20 to September 12, 2019, after which she reported feeling better, able to return to exercise classes, and no longer experiencing constant pain or difficulty raising her arm. In January 2020, she presented with persistent pain, and in March 2020, received a sixth steroid injection. Due to the COVID-19 pandemic, she continued PT exercises at home, regaining mobility and experiencing significant resolution of constant pain, allowing her to participate in exercise programs and hobbies, though some modified movements were still required. Chief Special Master Brian H. Corcoran awarded Ms. Lavigne $198,000.00 for pain and suffering and $1,587.14 for past unreimbursable expenses, totaling $199,587.14. The decision noted that while her condition was complicated by scar tissue fibrosis, she had largely recovered by late 2019 and was able to resume some hobbies and exercise. Petitioner was represented by Leah V. Durant, and Respondent was represented by Alexa Roggenkamp.

Theory of causation field:
Petitioner Allyson Lavigne, vaccinated with an influenza vaccine on October 16, 2018, at age 27, alleged a shoulder injury related to vaccine administration (SIRVA). Respondent conceded entitlement, acknowledging a Table SIRVA. The medical history detailed significant shoulder pain, fibrotic reaction, two surgeries (November 2, 2018, and May 31, 2019), six subdeltoid steroid injections, multiple rounds of physical therapy, and prescription medications, complicated by scar tissue fibrosis. The public decision does not name specific medical experts or detail the mechanism of injury beyond the general classification of SIRVA as a Table injury. Chief Special Master Brian H. Corcoran awarded $198,000.00 for pain and suffering and $1,587.14 for past unreimbursable expenses, totaling $199,587.14, finding the award appropriate based on the severity and duration of the injury, including multiple surgeries and injections, while noting the petitioner's substantial recovery by late 2019. Petitioner was represented by Leah V. Durant, and Respondent by Alexa Roggenkamp.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_19-vv-01298-0
Date issued/filed: 2021-04-14
Pages: 2
Docket text: PUBLIC ORDER/RULING (Originally filed: 03/15/2021) regarding 20 Ruling on Entitlement Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
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Case 1:19-vv-01298-UNJ Document 22 Filed 04/14/21 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1298V
UNPUBLISHED
ALLYSON LAVIGNE, Chief Special Master Corcoran
Petitioner, Filed: March 15, 2021
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 V. Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for petitioner.
Alexa Roggenkamp, U.S. Department of Justice, Washington, DC, for respondent.
RULING ON ENTITLEMENT1
On August 27, 2019, Allyson Lavigne 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 she suffered injuries, including shoulder injury
related to vaccine administration (SIRVA), resulting from the adverse effects of an
influenza (flu) vaccination she received on October 16, 2018. Petition at 1. The case was
assigned to the Special Processing Unit of the Office of Special Masters.
On March 8, 2021, 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 concluded that petitioner suffered a Table SIRVA, no other
causes for Petitioner’s SIRVA were identified, and the statutory six-month sequela
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-01298-UNJ Document 22 Filed 04/14/21 Page 2 of 2
requirement has been satisfied. Id. at 3. Respondent further concluded that the Petitioner
has satisfied all legal prerequisites for compensation under the Vaccine Act Id.
Respondent further agrees that the scope of damages to be awarded is limited to
Petitioner’s SIRVA of her left upper extremity and its related sequelae only. 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-01298-1
Date issued/filed: 2022-06-22
Pages: 9
Docket text: PUBLIC DECISION (Originally filed: 05/12/2022) regarding 41 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-01298-UNJ Document 45 Filed 06/22/22 Page 1 of 9
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1298V
UNPUBLISHED
ALLYSON LAVIGNE, Chief Special Master Corcoran
Petitioner, Filed: May 12, 2022
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Decision Awarding Damages; Pain
HUMAN SERVICES, and Suffering; Influenza (Flu)
Vaccine; Shoulder Injury Related to
Respondent. Vaccine Administration (SIRVA)
Leah V. Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner.
Alexa Roggenkamp, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On August 27, 2019, Allyson Lavigne 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 she suffered a shoulder injury related to vaccine
administration (SIRVA) resulting from adverse effects of an influenza (flu) vaccination she
received on October 16, 2018. Petition at 1. The case was assigned to the Special
Processing Unit of the Office of Special Masters.
For the reasons described below, I find that Petitioner is entitled to an award of
damages in the amount of $199,587.14 - $198,000.00 for her actual pain and suffering,
and $1,587.14 for her past unreimbursable expenses.
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-01298-UNJ Document 45 Filed 06/22/22 Page 2 of 9
I. Relevant Procedural History
Approximately a year and a half after this case was initiated, on March 8, 2021,
Respondent filed his Rule 4(c) Report conceding that Petitioner was entitled to
compensation. ECF No. 19. A Ruling on Entitlement was issued on March 15, 2021. ECF
No. 20. The parties thereafter attempted to informally resolve damages but were
unsuccessful. ECF No. 26, 28. On December 27, 2021, I issued a scheduling order
regarding the briefing of disputed damages issues. ECF No. 31. The parties filed their
respective briefs (ECF Nos. 33 (“Br.”), 34 (“Opp.”), and 37 (“Resp.”)). The parties agreed
to argue their positions at a motions hearing, at which time I would decide the disputed
damages issues. ECF. No. 36. That hearing was held on April 29, 2022,3 and the case is
now ripe for a determination.
II. Relevant Medical History
A complete recitation of the facts can be found in the Petition, in Respondent’s
Rule 4(c) Report, and in the parties’ respective pre-hearing briefs.
In summary, at the time of vaccination, Ms. Lavigne was 27-year-old with a non-
contributory medical history. See, e.g., Ex. 2 at 5. Petitioner received a flu vaccine in her
left deltoid on October 16, 2018. Ex. 1 at 25, Ex. 1 at 1.
On October 18, 2018, Petitioner presented to an orthopedist for pain in the left
shoulder. Ex. 2 at 19. She was positive for joint pain and was having difficulty moving her
arm. Id. Petitioner was administered her first subdeltoid steroid injection. Id. Two weeks
later, on November 1, 2018, Petitioner returned to the orthopedist for a follow-up
appointment, reporting that her shoulder was getting worse, not better. Id. at 17. It was
noted that “[t]he injection worked for 4 or 5 days but the pain came back. The shoulder is
tender and irritated. She can’t do things with it as she would like . . . . She has tenderness
along the anterior edge of the acromion. The CA ligament is extremely tender. It is almost
like she has a fibrotic reaction.” Id. Petitioner was scheduled for surgery the following
day. Id.
Ms. Lavigne had surgery on November 2, 2018, including “[a]rthroscopy of
shoulder, left side, manipulation under general anesthesia, subacromial decompression
of a class II acromion to a class O. Significant scar tissue fibrosis resection, undersurface
subdeltoid bursa resection for secondary scar formation, shoulder, left side.” Ex. 6 at 7.
3 At the end of the hearing held on April 29, 2022, I issued an oral ruling from the bench on damages in this
case. That ruling is set forth fully in the transcript from the hearing. The transcript from the hearing is fully
incorporated into this Decision. ECF No. 40.
2

Case 1:19-vv-01298-UNJ Document 45 Filed 06/22/22 Page 3 of 9
Post-operative diagnoses were impingement syndrome, secondary fibrosis, and
inflammation. Id.
Ms. Lavigne continued to have problems with her shoulder post-operatively, and
on December 6, 2018, she was diagnosed with rotator cuff tendonitis despite the
debridement, previous fibrosis, and irritation of the shoulder. Ex. 2 at 13. Petitioner was
then administered her second subdeltoid steroid injection. Id.
Continuing to have shoulder pain and post-operative soreness, Petitioner was
administered her third subdeltoid steroid injection on December 27, 2018. Ex. 2 at 11. At
this visit, Petitioner was also prescribed Celebrex, a prescription anti-inflammatory drug.
Id. At a follow-up appointment three and a half months post-surgery, Ms. Lavigne still had
shoulder pain and tendonitis and was administered her fourth subdeltoid steroid injection
on February 14, 2019. Id. at 9.
By April 4, 2019, Petitioner’s orthopedist indicated that she was still having chronic
pain, trouble sleeping at night, trouble going behind her head, and irritation posteriorly.
Ex. 2 at 7. The orthopedist’s assessments were pain in the left shoulder and ankylosis.
Id. At that point, the orthopedist recommended an MRI, and Ms. Lavigne had an MRI on
April 5, 2019. Id. at 7, 23. The MRI revealed, “1. Synovitis with small-to-moderate-sized
joint effusion. No bone marrow edema or articular cartilage destruction to suggest an
aggressive infectious process. 2. Rotator cuff tendinosis and mild bursitis. 3. Incomplete
tat suppression versus probable reactive edema involving the distal clavicle and
acromion, with no acute fracture identified.” Id. at 23.
On April 22, 2019, Petitioner returned to her orthopedist for a six-month follow-up.
Ex. 2 at 5. Petitioner was still positive for joint pain. Id. Petitioner was administered her
fifth subdeltoid steroid injection and the orthopedist recommended commencing physical
therapy (PT). Id. On April 23, 2019, Petitioner received a PT evaluation, which was
positive for pain on all planes of motion of her left arm, and she had positive impingement
tests. Ex. 3 at 6-7.4 PT was recommended for two times per week for six weeks. Petitioner
received PT from April 23, 2019, through May 17, 2019. See id. at 1-26.
On May 23, 2019, Ms. Lavigne returned to her orthopedist, nearly seven months
post-surgery. Ex. 7 at 1. Petitioner was noted to have “progressively gotten worse
because scar tissue matured and has irritation.” Id. The orthopedist recommended a
second surgery. Id. On May 31, 2019, Petitioner had her second surgery, including
“[a]rthroscopic shoulder, left side, with intra-articular synovectomy, extraarticular
4 The Exhibit 3 PT records appear to have been mislabeled as Exhibit 4. However, Exhibit 3 was identified
in the Exhibit List as EW Motion Therapy and was filed after Exhibit 2 and before another exhibit also
labeled Exhibit 4; therefore, I will nevertheless refer to and cite to these PT records as Exhibit 3.
3

Case 1:19-vv-01298-UNJ Document 45 Filed 06/22/22 Page 4 of 9
subacromial synovectomy, bursectomy, decompression of scar tissue on the anterior
deltoid, lateral deltoid, and subdeltoid bursa.” Id. at 3. Post-operative diagnoses were
fibrosis and impingement syndrome. Id.
On August 20, 2019, Ms. Lavigne presented to her second PT evaluation with
decreased range of motion, strength, flexibility, joint mobility, soft tissue mobility, and
increased edema, pain, impairments with posture, body mechanics, and lifting
mechanics. Ex. 9 at 18. PT was recommended for two times per week for four weeks.
Petitioner received PT from August 20, 2019, through September 12, 2019. Ex. Id. at 1-
32. At discharge, Petitioner reported “feeling better” and that “she is doing good.” Id. at 7.
She also reported “that she has went back to her workout class and is doing good” and
“doesn't have constant pain and she can now raise her arm without issue.” Id.
On January 29, 2020, Ms. Lavigne presented to a Sports Medicine and
Orthopaedic Center. Ex. 10 at 1. It was noted that Petitioner’s left shoulder pain “was not
significantly improved after having multiple arthroscopies and subacromial corticosteroid
injection[s] . . . .” Id. Petitioner was noted to have “[t]enderness to palpation over the
anterior aspect of the shoulder in the biceps tendon groove and pain with active and
passive range of motion. Positive Speed's test and positive O'Brien's and Neer's test.” Id.
Petitioner began a trial of meloxicam, but only experienced mild improvement. Id. at 3-4.
On March 16, 2020, Petitioner was administered her fifth subdeltoid steroid injection
under ultrasound guidance. Id. at 5.
Due to the coronavirus Pandemic/COVID concerns, Petitioner explains, she has
not returned to be seen in-person for SIRVA treatment since March 2020. Ex. 11 at 1. But
she has continued to complete the recommended PT exercises at home, regaining much
of the mobility in her shoulder in the process. Id. Her constant and severe pain has since
largely resolved, and three years following the October 2018 flu shot, she is finally back
participating in an exercise program and can engage in some of the hobbies she enjoyed
prior to vaccination, though she still requires modified movements on some exercises due
to mobility pain. Id.
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
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
4

Case 1:19-vv-01298-UNJ Document 45 Filed 06/22/22 Page 5 of 9
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).
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 & Hum. 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 & Hum. 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 & 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 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 & Hum. 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 & Hum. 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).
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. Graves v. Sec’y of Health & Hum. Servs., 109 Fed. Cl. 579, 489-90 (2013). In
Graves, Judge Merrow 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.
Judge Merrow 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 590. Instead,
Judge Merrow 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
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.
5

Case 1:19-vv-01298-UNJ Document 45 Filed 06/22/22 Page 6 of 9
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, Petitioner’s awareness of her injury is not disputed, leaving only its
severity and duration to be considered. In determining appropriate compensation for
Petitioner’s pain and suffering, I have carefully reviewed and considered the complete
record in this case. I have also considered prior awards for pain and suffering in both SPU
and non-SPU SIRVA cases, and relied upon my experience adjudicating such cases.6
However, my determination is ultimately based upon the specific circumstances of this
case.
Petitioner requests an award of $225,000.00 in past pain and suffering. Br. at 1,7.
Petitioner argues that she “has undergone two surgeries and six painful steroid injections
in her left shoulder. The severity of [P]etitioner’s pain was so great . . . her orthopedic
surgeon had her on the operating table only 17 days later.” Id. at 10. Additionally, “the
need for a second surgery on her shoulder less than seven months later is further
evidence that [P]etitioner suffered a severely debilitating injury that could not be alleviated
by conservative treatment.” Id. Petitioner argues that it is indisputable that her injury was
severe as evidenced by her “two surgeries (three surgical procedures), six steroid
injections, multiple physical therapy sessions, multiple rounds of physical therapy,
prescription pain killers, and anti-inflammatories,” which did not fully eliminate her pain.
Id. at 11 (footnote omitted). Petitioner asserts that although “her condition is currently
better than it was at its worst,” the “duration of [P]etitioner’s injury has been long and will
likely continue for the rest of her life. At age 29, [P]etitioner will likely have many years
ahead of her in which to deal with the residual effects of SIRVA.” Id. at 12.
Petitioner looked to comparative guidance for similar SIRVA cases where multiple
surgeries were involved, including cases like Schoonover and Lawson.7 Petitioner cited
to several other cases that involved the issue of multiple surgeries, all awarding damages
6 Statistical data for all SIRVA cases resolved in SPU from inception through January 2020 as well as a
brief description of any substantive decisions can be found in the following decisions: Vinocur v. Sec’y of
Health & Hum. Servs., No. 17-0598V, 2020 WL 1161173 (Fed. Cl. Spec. Mstr. Jan. 31, 2020); Wilt v. Sec’y
of Health & Hum. Servs., No. 18-0446V, 2020 WL 1490757 (Fed. Cl. Spec. Mstr. Feb. 24, 2020); Smallwood
v. Sec’y of Health & Hum. Servs., No. 18-0291V, 2020 WL 2954958 (Fed. Cl. Spec. Mstr. Apr. 29, 2020).
7 Schoonover v. Sec’y of Health & Hum. Servs., No. 13-1324V, 2020 WL 5351341 (Fed. Cl. Spec. Mstr.
Aug. 5, 2020) (awarding $200,000.00 for past pain and suffering); Lawson v. Sec’y of HHS, No. 18-882V,
2021 WL 688560 (Fed. Cl. Spec. Mstr. Jan. 5, 2021) (awarding $205,000.00 for past pain and suffering).
6

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between $200,000.00 and $210,000.00. See Br. at 12-15. Petitioner argues that the
fibrosis complicated her course “so much more than the petitioners in the other cases and
more than justifies an award of $225,000.00.” Id. at 15.
In response, Respondent recommended a pain and suffering award of no more
than $157,500.00. Opp. at 1, 13. Respondent contends that during PT, “[P]etitioner
consistently rated her pain at 3 or 4 (though the records do not indicate the top of the
range of the pain scale) (see Ex. 3 at 9-21), and her range of motion was not significantly
limited, even on initial evaluation . . . . ” and “[s]he only attended seven appointments of
PT for this period.” Id. at 7-8; see, Ex. 9 at 26. Respondent also notes that “[b]y her own
admission, [P]etitioner’s symptoms largely resolved sometime between March 2020 and
November 2021.” Id. at 8. Otherwise, Petitioner consistently showed relatively mild
limitation of motion and rated her pain consistently between 3 and 4, her injury was
responsive to PT treatment, she showed good recovery after her surgeries, and her
symptoms resolved somewhere between one and half and three years after vaccination.
Thus, the scope of Petitioner’s pain and suffering would be appropriately compensated
by Respondent’s proposed award. Id. at 9.
Respondent asserts, in reaction, that Schoonover and Lawson are distinguishable
from the instant case and do not support Petitioner’s requested damages award. Opp. at
9. Respondent argues that “awarding damages cannot be reduced down to ‘two surgeries
equal approximately $200,000.00.’” Rather, Pruitt v. Sec’y of Health & Hum. Servs., No.
17-757V, 2020 WL 5292022 (Fed. Cl. Spec. Mstr. Oct. 29, 2021), which awarded the
petitioner $185,000.00 in pain and suffering, is most analogous to the facts of Petitioner’s
case here. Id. at 12. Even though it is higher than Respondent’s proposed award, Pruitt
demonstrates (in Respondent’s view) that “less severe SIRVA injuries, like [P]etitioner’s,
do not necessarily merit a $200,000.00 pain and suffering valuation,” despite the fact that
two surgeries were required. Id.
Pursuant to my oral ruling on April 29, 2022 (which is fully adopted herein), I find
that $198,000.00 represents a fair and appropriate amount of compensation for
Petitioner’s actual pain and suffering.
While no one specific case is completely analogous to the circumstances herein,
the cases cited by both Petitioner and Respondent are all instructive.8 Pruitt, the
comparable case offered by Respondent, is especially relevant - and it resulted in an
award well above the $157,500.00 Respondent proposes. Respondent has not provided
8 I acknowledge that none of the cases cited by Petitioner or Respondent are binding on this Decision. See
Nance v. Sec'y of of Health & Human Servs., No. 06–730V, 2010 WL 3291896 at *8 (Fed. Cl. Spec. Mstr.
July 30, 2010); Hanlon v. Sec'y of Health & Human Servs., 40 Fed. Cl. 625, 630 (1998) (“Special masters
are neither bound by their own decisions nor by cases from the Court of Federal Claims, except, of course,
in the same case on remand.”). These cases do, however, provide persuasive guidance.
7

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a compelling argument for why his preferred sum is appropriate.
In Pruitt the petitioner did require two surgeries, but there was a significant gap in
treatment, as well as a significant gap between her surgeries. Also, Pruitt only received
three steroid injections, and after her second surgery, there was no recommendation for
continued treatment “since her pain is not constant and does not seem to be interfering
with her life.” Pruitt, 2020 WL 5292022, at *2-3, 8. Additionally, there was some question
regarding whether Pruitt’s second surgery for a SLAP tear was a direct sequela of her
vaccination. Id. at 9. Thus, the facts of this case actually support a somewhat higher
award than was allowed in Pruitt.
This case is also somewhat similar to Schoonover – but the facts therein are also
sufficiently distinguishable to support a slightly lower award in this case. The Schoonover
petitioner reported constant pain, she had pain at rest, she often described pain with
activity as severe, with a rating of eight out of ten. Petitioner's pain also did not improve
following multiple steroid injections – or the two surgeries she experienced. Schoonover,
at *4. Ultimately, that petitioner underwent lengthy and significant medical and surgical
care and treatment and suffered episodes of severe pain and limited mobility. Id. at *5.
The Schoonover petitioner was therefore awarded $200,000 in past pain and suffering
and $1,200 per year for her life expectancy, reduced to net present value. Id. at *6.
In this case, we can infer that Ms. Lavigne was experiencing a significant enough
amount of pain to warrant an initial surgery less than three weeks after vaccination, and
a second surgery six months after that. This alone describes a more severe SIRVA than
what many Program claimants experience. However, the record is largely silent on the
severity of her pain specifically. Moreover, Ms. Lavigne did not undergo the numerous
rounds of PT over several years as did the petitioner in Schoonover.
There is no question that Petitioner’s SIRVA and the overall course she faced,
including the number of surgeries, the number of steroid injections, and the duration of
her injury, support a higher-than-normal award for pain and suffering in this case. Based
on the current records, in just over the course of a year and a half, Petitioner underwent
two surgeries, six steroid injections, two rounds of PT, and required prescription pain
medication and anti-inflammatories. Petitioner’s course was also further complicated by
the scar tissue fibrosis that was caused by the vaccination. See, e.g., Ex. 2 at 11; Ex. 6
at 7; Ex. 7 at 1, 4, 6. Nevertheless, the record establishes that she did have instances
documented in the record where she experienced some relief from her pain. See e.g., Ex.
4 at 17, 20; Ex. 7 at 4; Ex. 9 at 7. And by November 30, 2021, she reported “I am feeling
better” and that she is “finally back participating in an exercise program and can engage
in some of the hobbies [she] enjoyed prior to vaccination.” Ex. 11 at 1.
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Case 1:19-vv-01298-UNJ Document 45 Filed 06/22/22 Page 9 of 9
I acknowledge that Ms. Lavigne may still have some sequelae from her SIRVA,
but it appears that she largely recovered from the worst of her injury by 2019. Even
accounting for COVID, which I credit, there was not an on-going effort of Petitioner
seeking treatment. Thus, an award a bit lower than what was allowed in Schoonover is
most appropriate.
V. Conclusion
For all of the reasons discussed above, and based on consideration of the record
as a whole, I find that $198,000.00 represents a fair and appropriate amount of
compensation for Petitioner’s actual pain and suffering.9 I also find that Petitioner
is entitled to $1,587.14 in actual past unreimbursable expenses.
Accordingly, I award Petitioner a lump sum payment of $199,587.14 in the form
of a check payable to Petitioner. This amount represents compensation for all damages
that would be available under § 15(a).
The clerk of the court is directed to enter judgment in accordance with this Decision.10
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
9 Since this amount is being awarded for actual, rather than projected, pain and suffering, no reduction to
net present value is required. See § 15(f)(4)(A); Childers v. Sec’y of Health & Hum. Servs., No. 96-0194V,
1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health & Hum.
Servs., 32 F.3d 552 (Fed. Cir. 1994)).
10 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.
9