VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-01396
Package ID: USCOURTS-cofc-1_19-vv-01396
Petitioner: Michele Mulloy
Filed: 2019-09-12
Decided: 2023-03-24
Vaccine: influenza
Vaccination date: 2018-10-31
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 229388

AI-assisted case summary:
Michele Mulloy filed a petition for compensation under the National Vaccine Injury Compensation Program on September 12, 2019, alleging she suffered a shoulder injury related to vaccine administration (SIRVA) from an influenza vaccine received on October 31, 2018. At the time of vaccination, Ms. Mulloy was an active 60-year-old retiree who worked out daily and operated a paddle board business. She experienced pain in her right shoulder within days of the vaccination, which progressed and led to diagnoses of bursitis, impingement syndrome, adhesive capsulitis, and rotator cuff tears. Her treatment involved multiple medical evaluations, two surgeries, several steroid injections, and extensive physical therapy over several years. She also developed pain in her left shoulder, potentially due to overuse. Respondent conceded entitlement, finding her injury met the criteria for a Table injury. The parties could not agree on damages, leading to a decision awarding compensation. Chief Special Master Brian H. Corcoran issued a ruling on entitlement on May 5, 2021, and a decision awarding damages on March 24, 2023. The court awarded Ms. Mulloy $205,000.00 for past pain and suffering, $16,688.12 for future pain and suffering, and $7,699.94 for past unreimbursed medical expenses, totaling $229,388.06. The award for past unreimbursed expenses excluded costs for CBD oil and an in-home pool, but included turmeric expenses. The court considered prior SIRVA cases in determining the pain and suffering award, noting Ms. Mulloy's significant and prolonged suffering, multiple interventions, and impact on her active lifestyle. Petitioner was represented by Leah V. Durant and Respondent was represented by Lynn Christina Schlie and later Katherine Carr Esposito.

Theory of causation field:
Petitioner Michele Mulloy, age 60, received an influenza vaccine on October 31, 2018, and subsequently developed a shoulder injury related to vaccine administration (SIRVA). Respondent conceded entitlement, finding that Petitioner met the criteria for a Table injury, specifically noting no relevant prior history of shoulder pain, onset of pain and reduced range of motion within 48 hours of vaccination, symptoms limited to the vaccinated shoulder, and no other identified condition explaining the symptoms. The medical history detailed progressive right shoulder pain, diagnoses including bursitis, impingement syndrome, adhesive capsulitis, and rotator cuff tears, leading to two surgeries, multiple steroid injections, and extensive physical therapy. Petitioner also developed left shoulder pain. The Special Master awarded $205,000.00 for past pain and suffering, $16,688.12 for future pain and suffering (calculated as $900.00 per year discounted to present value over an estimated 22-year life expectancy using a multi-pronged discount rate), and $7,699.94 for past unreimbursed medical expenses, totaling $229,388.06. The decision was issued by Chief Special Master Brian H. Corcoran on March 24, 2023. Petitioner was represented by Leah V. Durant and Respondent by Katherine Carr Esposito.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_19-vv-01396-0
Date issued/filed: 2021-06-04
Pages: 2
Docket text: PUBLIC ORDER/RULING (Originally filed: 05/05/2021) regarding 27 Ruling on Entitlement Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
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Case 1:19-vv-01396-UNJ Document 30 Filed 06/04/21 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1396V
UNPUBLISHED
MICHELE MULLOY, Chief Special Master Corcoran
Petitioner, Filed: May 5, 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.
Lynn Christina Schlie, U.S. Department of Justice, Washington, DC, for respondent.
RULING ON ENTITLEMENT1
On September 12, 2019, Michele Mulloy 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 31, 2018. Petition at 1. The case was assigned to the Special
Processing Unit of the Office of Special Masters.
On April 22, 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 found that “[P]etitioner has satisfied the criteria set forth in the
Vaccine Injury Table (“Table”) and the Qualifications and Aids to Interpretation (“QAI”).
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-01396-UNJ Document 30 Filed 06/04/21 Page 2 of 2
That is, [P]etitioner had no relevant history of pain, inflammation, or dysfunction in her
right shoulder; her pain and reduced range of motion occurred within 48 hours of receipt
of an intramuscular vaccination; her symptoms were limited to the shoulder in which the
vaccine was administered; and no other condition or abnormality was identified to explain
her symptoms.” Id. at 10. Respondent further agrees that the scope of damages to be
awarded is limited to Petitioner’s left-sided SIRVA 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-01396-1
Date issued/filed: 2023-03-24
Pages: 15
Docket text: PUBLIC DECISION (Originally filed: 02/21/2023) regarding 54 DECISION of Special Master ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made.
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Case 1:19-vv-01396-UNJ Document 60 Filed 03/24/23 Page 1 of 15
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1396V
UNPUBLISHED
MICHELE MULLOY, Chief Special Master Corcoran
Petitioner, Filed: February 21, 2023
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.
Katherine Carr Esposito, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On September 12, 2019, Michele Mulloy 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 she suffered a shoulder injury related to vaccine
administration (SIRVA) resulting from adverse effects of an influenza (“flu”) vaccine she
received on October 31, 2018. Petition at 1. The case was assigned to the Special
Processing Unit of the Office of Special Masters (the “SPU”), and although entitlement
was conceded, the parties could not resolve damages on their own.
For the reasons described below, I find that Petitioner is entitled to an award of
damages in the amount of $229,388.06, representing $205,000.00 for past pain and
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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).

Case 1:19-vv-01396-UNJ Document 60 Filed 03/24/23 Page 2 of 15
suffering, $16,688.12 for future pain and suffering (based on an award of $900.00
per year, discounted to present value), and $7,699.94 for past unreimbursed
expenses.
I. Relevant Procedural History
Approximately a year and a half after this case was initiated, Respondent filed his
Rule 4(c) Report conceding that Petitioner was entitled to compensation. ECF No. 26. A
ruling on entitlement was thereafter issued on May 5, 2021 (ECF No. 27), and although
the parties attempted to informally resolve damages, they could not do so. ECF No. 39,
41. On June 1, 2022, I issued a scheduling order regarding the briefing of disputed
damages issues. ECF No. 44. The parties filed their respective briefs (ECF Nos. 46 (“Br.”),
47 (“Opp.”), and 50 (“Reply”)). The parties also agreed to argue their positions at a
Motions Day hearing, at which time I would decide the disputed damages issues. ECF.
No. 52. That hearing was held on January 27, 2023,3 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, the Rule 4(c) Report,
and the parties’ respective pre-hearing briefs. In summary, at the time of vaccination Ms.
Mulloy was an active 60-year-old retiree, who worked out daily and operated a paddle
board business, with a non-contributory medical history. See Ex. 36 at 1; Petition at 1.
Petitioner received a flu vaccine in her right arm4 on October 31, 2018. Ex. 1 at 1.
On November 5, 2018, Ms. Mulloy presented to urgent care with a chief complaint
of arm pain. Ex. 2 at 3. Petitioner reported that she “[h]ad flu vaccine [Wednesday]; ‘really
hurt’; pain did not go away . . . Sunday awoke & could not move right arm; has done ice
and heat; ‘side to side’ movement is worse.” Id. On exam, Petitioner had “full [range of
motion] ROM. Positive for impingement sign. Rotator cuff has full strength.” Id. at 4. The
assessment was “right shoulder pain, examines as bursitis, this may be inflammatory
secondary to Flu Vaccine?” Id. Petitioner was diagnosed with impingement syndrome of
right shoulder, prescribed Naproxen, given rehab exercises, and advised to follow up with
orthopedic if not improved. Id.
3 At the end of the hearing held on January 27, 2023, 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.
4The vaccine administration record indicates that Petitioner’s vaccination was administered in her left arm;
however, Respondent does not contest that the vaccination was administered in her right arm. See
Respondent’s Report at 2, 9-10; Opp. at 2. Thus, the site of Petitioner’s vaccination is not in dispute.
2

Case 1:19-vv-01396-UNJ Document 60 Filed 03/24/23 Page 3 of 15
The next day (November 6, 2018), Ms. Mulloy presented to an orthopedist, Dr.
Jeffrey Chase, with a chief complaint of right shoulder pain. Ex. 5 at 10. Petitioner reported
“immediate pain” after having a flu shot, and that four days later, she had increased pain
with use and intermittent shooting pain, not activity related. Id. Petitioner was assessed
as having “acute pain of right shoulder” and “contusion of right shoulder” that was deemed
“related to flu shot.” Id. at 12. Shoulder x-rays were ordered, and the orthopedist
recommended activity modification, ice, and time. Id.
On December 26, 2018, Ms. Mulloy received her first MRI of the right shoulder.
Ex. 4 at 9. The MRI revealed “1. supraspinatus tendinosis without rotator cuff tear,
2. Extensively thickened, edematous joint capsule consistent with adhesive capsulitis. 3.
Moderate subacromial subdeltoid bursitis.” Id. On January 3, 2019, Petitioner returned to
Dr. Chase to review her MRI. Ex. 10 at 1. Ms. Mulloy’s pain was assessed at 6/10, made
worse with movement and relieved with over-the-counter pain medication. Id. Petitioner
received her first steroid injection at this visit and was referred to physical therapy (PT).
Id. at 2-3; see also Ex. 6 at 5-6.
Ms. Mulloy received a physical therapy evaluation on January 8, 2019, with
diagnoses of adhesive capsulitis and bursitis and partial bicep tear. Ex. 6 at 7. Petitioner
rated her pain as 0-10 (sharp)/10, but prior to the steroid injection it was 4-5/10, at the
lowest. Id. Petitioner was noted to have a 20-40% limitation based on clinical assessment.
Id. at 8. In her first round of PT, Ms. Mulloy attended four sessions concluding on January
29, 2019, as she was leaving the area for several weeks. Id. at 10. Petitioner was
educated on a home exercise program (HEP). Id. Petitioner noted on January 22, 2019,
that her ROM had improved, but continued to complain of right shoulder pain and that
she felt like the cortisone injection had worn off. Id. at 10, 13.
On January 25, 2019, Ms. Mulloy presented to the Jordan-Young Institute for a
second opinion with Dr. Samuel Robinson, an orthopedic surgeon. Ex. 7 at 5-7.
Dr. Robinson and Ms. Mulloy discussed treatment options which included, observation,
behavior modifications, oral anti-inflammatory medication, physical therapy (with or
without corticosteroid injections), as well as the possibility of surgical intervention. Id. at
6-7. Petitioner was instructed to return in two months. Id. at 7. Petitioner also had an
unremarkable x-ray at this visit. Id. at 6. Two months later, on March 25, 2019, Petitioner
returned to Jordan-Young, for a follow-up with PA Linda Liebold. Id. at 8. At this
appointment, Petitioner indicated that she was interested in formal PT and another steroid
injection to assist with PT. Id. Petitioner received her second steroid injection and was
referred to PT. Id. at 8-10; Ex. 8 at 4.
Ms. Mulloy underwent a second PT evaluation on April 2, 2019. Ex. 8 at 5. At this
evaluation, Petitioner reported that she had not been able to swim or sleep on her
3

Case 1:19-vv-01396-UNJ Document 60 Filed 03/24/23 Page 4 of 15
stomach. Id. Petitioner rated her pain at 3/10 (aching) at best, and 10/10 (intense aching)
at worst. Id. Petitioner was assessed as having adhesive capsulitis of her right shoulder
due to decreased mobility of her right glenohumeral joint, impaired active and passive
range of motion, weakness, decreased function, and difficulty performing ADL’s. Id. at 6.
One of Petitioner’s long-term goals was to have less than 17% impairment and
demonstrate decreased functional disability, which was 26% at the time of evaluation. Id.
at 7. PT was recommended two times per week for six weeks. Id. At her last visit of PT
on May 1, 2019, Petitioner’s pain decreased to 0/10 at best, and 8/10 at worst, and her
active and passive range of motion significantly improved; however, her upper extremity
functional scale score indicated her impairment increased to 28%. Id. at 24-25. During
the second round of PT, Petitioner attended a total of nine sessions. Id. at 25.
On May 2, 2019, Ms. Mulloy returned to Jordan-Young, where PA Liebold indicated
that Petitioner was no longer making progress with PT. Ex. 7 at 11. Petitioner indicated
that she wanted to pursue another MRI scan and surgical planning. Id. On May 17, 2019,
Petitioner had a second MRI of her right shoulder, which revealed “1. Small partial bursal
sided supraspinatus tendon tear at the level of the lateral acromion with associated mild
subacromial/subdeltoid bursitis and mild supraspinatus and infraspinatus tendinosis. 2.
Mild subscapularis tendinosis. 3. Split tear involving the long head of the biceps tendon
in the bicipital groove. 4. Degenerative and SLAP tear extending into the anterior and
anterior inferior glenoid labrum.” Ex. 9 at 5-6.
On May 30, 2019, Ms. Mulloy returned to Dr. Robinson to review her MRI, and
indicated that she wanted to consider surgical intervention. Ex. 17 at 2-3. On July 25,
2019, Dr. Robinson performed right shoulder arthroscopy with extensive glenohumeral
joint debridement, subacromial decompression, distal clavicle resection, and rotator cuff
repair. Ex. 11 at 5. Following her surgery, Petitioner wore her arm in a sling for
approximately six weeks until September 9, 2019. Ex. 14 at 2. On September 9, 2019,
Petitioner returned to PA Liebold for a repeat evaluation of her right shoulder and was
prescribed the opioid Ultram. Id.
In the meantime, Ms. Mulloy received a third PT evaluation on August 9, 2019. Ex.
13 at 9. On evaluation, Petitioner’s pain was rated at 1/10 at best (aching and sore) and
10/10 at worst (intense aching and sharp pain), and she demonstrated an 89%
impairment. Id. By October 15, 2019, Petitioner’s pain decreased to 0/10 at best and 6/10
at worst, and her impairment decreased to 49%. Id. at 53-54. PA Liebold ordered
additional PT on November 4, 2019. Ex. 14 at 4; Ex. 13 at 1. At discharge on January 14,
2020, Petitioner’s pain was 0/10 at best and 6/10 (intense aching with lifting her arm, and
her impairment further decreased to 29%. Ex. 16 at 25-27. Petitioner attended a total of
44 sessions during her third round of PT. Id. at 25.
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Case 1:19-vv-01396-UNJ Document 60 Filed 03/24/23 Page 5 of 15
On January 20, 2020, Ms. Mulloy returned to PA Liebold where she stated,
“[Petitioner] is struggling with the shoulder a bit more than I would have hoped. She is
weak. She did have significant osteoarthritis at the time of surgery. Her cuff tissue was
quite poor at the time of surgery as well. I do have concern with regards to the healing of
the rotator cuff. I do think she is going to ultimately develop rotator cuff arthropathy and
require additional procedures.” Ex. 17 at 4.
On March 23, 2020, Ms. Mulloy underwent a magnetic resonance angiography
(MRA) (Petitioner’s third MRI) to evaluate the integrity of her previous shoulder repair. Ex.
21 at 4. The MRA revealed: “1. Status post supraspinatus/ infraspinatus repair with repeat
full-thickness tear from the anterior supraspinatus through mid infraspinatus tendons at
the enthesis, with up to 3.6 cm tendon retraction. Moderate supraspinatus and
infraspinatus muscle volume loss with mild fatty infiltration. 2. Complete long head of
biceps tendon tear at the biceps anchor. 3. Prior acromioplasty and distal clavicle
resection. 4. Advanced glenohumeral osteoarthritis with multifocal grade 4 glenohumeral
chondrosis.” Id. On March 27, 2020, Petitioner had a telehealth visit with Dr. Robinson,
where they discussed Petitioner having a total shoulder arthroplasty. Id. at 1. At that time,
Petitioner chose to proceed with conservative measures including behavioral
modifications and oral anti-inflammatories. Id.
On May 11, 2020, Ms. Mulloy followed up with again with PA Liebold, with
continued pain at night and when using her arm. Ex. 21 at 5. Petitioner was administered
her third steroid injection at this visit. Id.
On June 5, 2020, Ms. Mulloy presented to UNC Orthopaedics to see Dr. Robert
Creighton. Ex. 20 at 62. Dr. Creighton noted that Petitioner’s rotator cuff repair failed and
recommended a right shoulder arthroscopy revision repair versus treatment with reverse
shoulder arthroplasty. Id. On July 30, 2020, Dr. Creighton performed Petitioner’s second
right shoulder surgery, which included a right shoulder arthroscopy with rotator cuff repair
with Smith & Nephew patch, extensive debridement, and small subacromial
decompression. Id. at 73. Petitioner also received a peripheral nerve block at that time.
Id. at 23-24.
On August 10, 2020, Petitioner had a post-operative visit with Dr. Creighton. Ex.
20 at 68. Given Petitioner’s history of a failed rotator cuff repair, Dr. Creighton wanted to
be cautious with his approach to PT. Id. Dr. Creighton indicated that a total shoulder
replacement may be a possibility for Petitioner in the future, but explained that it was early
in Petitioner’s rehabilitation to make any definitive decisions. Id. On September 1, 2020,
Petitioner had another follow-up visit with Dr. Creighton. Ex. 26 at 1. Dr. Creighton stated,
“Overall she is doing better than she was prior to surgery but still having some limitation.
She has some issues doing things over the shoulder but is very functional below her
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Case 1:19-vv-01396-UNJ Document 60 Filed 03/24/23 Page 6 of 15
shoulder level is able to play golf and do many things she was not able to do prior to this
but certainly not back to normal. She is unable to throw or swim a freestyle stroke.” Id. at
1-2. Petitioner also had x-rays done at this visit. Id.
Between August 18, 2020, and April 25, 2022, Petitioner attended 82 post-
operative PT sessions. Ex. 24 at 15-34; Ex. 27 at 4-16; Ex. 28 at 2-18. On July 27, 2021,
Petitioner’s Quick Dash Disability score was 45.5%. Ex. 27 at 6. On August 31, 2021,
Petitioner’s physical therapist noted that Petitioner was getting frustrated with her deficits
in functional strength and with ADLs and the pain she experienced daily. Id. at 7. On
November 9, 2021, Petitioner’s physical therapist gave her professional opinion that
Petitioner would require a reverse total shoulder arthroplasty within the next five to ten
years or sooner, and that “heavy ADLs may never be part of [Ms. Mulloy’s] new normal,
especially if it requires [right] arm to move higher than shoulder height.” Id. at 11.
By April 25, 2022, Ms. Mulloy began to have left shoulder pain. Ex. 28 at 18. On
May 3, 2022, Petitioner was recertified for PT for two times per week for twelve weeks.
Ex. 34 at 2. Petitioner attended 14 PT sessions between May 3, 2022, and August 16,
2022. Id. at 3-16. On May 20, 2022, at Dr. Creighton’s recommendation, Petitioner
received a fourth MRI, this time of her left shoulder. Ex. 32 at 1; Ex. 33 at 1. Based on the
MRI, Dr. Creighton recommended a primary care sports evaluation, high-volume saline
injection, a corticosteroid injection, and then PT after the injection. Ex. 32 at 3. Petitioner
received her fourth steroid injection on June 14, 2022. Id. Petitioner has continued
receiving PT, through present, attending 17 additional PT sessions between August 19,
2022, and January 4, 2023. See Ex. 37.
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
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
6

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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).
The Graves decision 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, Graves assessed pain and suffering by looking to the record evidence, prior
pain and suffering awards within the Vaccine Program, and a survey of similar injury
claims outside of the Vaccine Program. Id. at 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.
Although Graves is not controlling of the outcome in this case, it emphasizes the need to
focus on what the petitioner in question should rightfully receive, all things being equal
(although it does not preclude consideration of what comparable other claimants
received).
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.
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IV. Appropriate Compensation in this Matter
A. Past Unreimbursed Expenses
Petitioner requests $19,274.55 in past unreimbursed expenses. Reply at 7.
Respondent, by contrast, proposes only reimbursing Petitioner a total of $4,124.27. Opp.
at 2. The disputed amounts represent “charges for an in-home pool, CBD and turmeric
powders, and a mileage charge for a telehealth visit.” Id. at 23. At the Motions Day
hearing, Petitioner’s counsel explained that Ms. Mulloy is “a very natural person. She
didn’t want to take medication, that is why she is on some of these therapeutic natural
things like CBD oil and turmeric oil and the pool.”
At the outset, I note that CBD (cannabidiol) oil may not be covered by the Vaccine
Program. On the federal level, cannabis remains illegal and may not legally be used for
medical or recreational purposes. See 21 U.S.C. § 301, et seq.6 Accordingly, the Vaccine
Program, a creation of federal law, cannot lawfully pay for cannabis-related treatments.
Regarding the in-home pool, there is no evidence in the record that the pool was
medically necessary, recommended, or required by any physician for Petitioner’s SIRVA.
Additionally, the fact that Petitioner previously had a pool undercuts her argument that
the pool was necessary specifically to treat her SIRVA. Accordingly, I find that expenses
related to the in-home pool are not compensable as part of damages.
I do find, however, that the turmeric was homeopathic and natural alternative to
traditional medication (such as the over-the-counter anti-inflammatories and opioids that
were recommended and prescribed by Petitioner’s treating providers). Therefore, I find
that associated expenses were reasonable and necessary pursuant to Section
15(a)(1)(A), and expenses related to the turmeric are compensable as part of damages.
At the hearing, the parties were instructed to forward an updated calculation for
Ms. Mulloy’s unreimbursed medical expenses in light of my oral ruling. The parties
reported that an award for unreimbursed expenses in the amount of $7,699.94 reflected
the sums that were undisputed or that I had deemed allowable. Accordingly, I find that
Petitioner is entitled to $7,699.94 for past unreimbursed medical expenses.
B. Past 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
6 Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L. No. 91-513, 84 Stat. 1236.
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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.
However, my determination is ultimately based upon the specific circumstances of this
case.
Ms. Mulloy requests an award of $225,000.00. Br. at 1. She argues that she “has
undergone two surgeries and three painful steroid injections in her right shoulder, none
of which cured her of her pain and suffering” Id. at 10. Petitioner emphasizes that she
experienced extreme pain immediately after the vaccination that prevented her from
sleeping, and there were only occasional nights when the pain in her shoulder did not
interrupt her sleep. Id. at 14. Petitioner also notes that within a few months of the
vaccination, her right shoulder had a clinical assessment of a 20-40% limitation. Id.
Petitioner argues that the severity of her SIRVA “necessitated extensive physical therapy
- four rounds and over 100 sessions - not including the home exercise program that
supplements [P]etitioner’s formal PT sessions.” Id.
In addition, despite extensive PT, Petitioner asserts that she “continues to
experience significant pain, weakness, and mobility limitations in her right shoulder” and
she is “now also suffering significant pain and debilitation in her other (left) shoulder.” Br.
at 14. Petitioner highlights the fact that her physical therapist concluded that she will
require a total right shoulder replacement in the future, a possibility also discussed by her
second orthopedic surgeon, Dr. Creighton. Id. at 14-15. Petitioner opined, “[w]hen two
surgeries, three steroid injections (to the right shoulder), prescription medications, and
more than 100 physical therapy sessions cannot eliminate her pain and return her to the
life she had prior to her flu vaccination, it is indisputable that [P]etitioner’s injury is very
severe . . . .” Id. at 15 (footnote omitted).
Petitioner looks to comparative guidance for similar SIRVA cases where multiple
surgeries were involved, including Schoonover, Lawson, and Meirndorf, and McDorman,
all awarding damages between $200,000.00 and $205,000.00.7 See Br. at 12-15.
Petitioner argues “[a]mong all those cases, Ms. Mulloy’s case is by far the most severe,”
as she “endured an extended period of pain and suffering that has neither been
significantly helped by multiple surgeries, steroid injections, and extensive PT, but
continues to be a painful part of her everyday existence.” Id. at 18.
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);
Meirndorf v. Sec'y of HHS, No. 19-1876V, 2022 WL 1055475 (Fed. Cl. Mar. 7, 2022) (awarding $200,000.00
for past pain and suffering); McDorman v. Sec’y of HHS, No. 18-804V, 2021 WL 5504698 (Fed. Cl. Apr. 5,
2021) (awarding $200,000.00 for past pain and suffering).
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In response, Respondent recommends a past pain and suffering award of
$170,000.00. Opp. at 2. Respondent devotes a significant portion of his response to a
discussion of the Vaccine Act’s statutory cap for pain and suffering damages awards.
Otherwise, Respondent notes that “[a]lthough on September 1, 2021, [P]etitioner was
reportedly not back to normal, she was deemed to be ‘very functional’ below the shoulder
level, she was able to play golf, and she was able to do many of the things she was not
able to do prior. . . . Records from as recently as May 26, 2022, seem to indicate that
[P]etitioner’s right shoulder condition was stable; [P]etitioner “state[d] that she is doing
better in regards to her right shoulder and feels that the additional physical therapy and
blood flow restriction has been helpful.” Opp. at 20 (citing Ex. 32 at 2, 4).
Respondent also noted that “[P]etitioner’s right shoulder x-ray of September 1,
2021, indicated the presence of moderate glenohumeral osteoarthrosis, a degenerative
age-related condition, which was not related to petitioner’s vaccination status.” Opp. at
20 (citing Ex. 26 at 3). Respondent also highlighted the statement by Petitioner’s physical
therapist that she “will require” additional surgery in the next five to ten years, while
probative, “this statement was made by [P]etitioner’s physical therapist, and not her
orthopedic physicians, who are silent in the records on the issue of a future surgery.
Accordingly, such statement is speculative at the present time.” Id. at 20-21 (citing Ex. 28
at 2).
In his brief, Respondent did not offer any comparable cases. However, at the
hearing he allowed that 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, was analogous to the facts of Petitioner’s case here. (Respondent
thus, in effect, increased his offer at that time, thereby acknowledging the initial sum was
a bit low).
Pruitt is useful as a starting point for determining damages, but ultimately is
somewhat distinguishable. Although the Pruitt petitioner required two surgeries, there was
a significant gap in treatment plus a gap between surgeries. Also, that claimant 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 her second surgery for a SLAP tear was a
direct sequela of her vaccination. Id. at 9.
The comparable cases offered by Petitioner, on the other hand, present facts
closer to Ms. Mulloy’s case. In Lawson, the petitioner underwent an unprecedented three
surgeries, seven steroid injections, four rounds of PT, six MRIs, and most recently started
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PRP injections. Lawson, 2021 WL 688560, at *5. That petitioner was fired from her job
following her SIRVA, after her first surgery she was unable to lift her arm above her head
without crying, she lived with a constant ache of about 2/10, and her pain increased
depending on her activity. Id. She was unable to go running, do certain exercise routines,
or lay on her stomach with her arms outstretched. Id. However, it was noted that her pain
had an intermittent character, and there were instances documented in the record where
she did experience some relief from her pain. Id. at *6. Also, it was ambiguous whether
her most recent surgical intervention was related to her SIRVA or something else. Id.
Respondent argues that the Lawson award of $205,000.00 “makes clear that [P]etitioner’s
demand for past pain and suffering alone (i.e., not including her future pain and suffering
demand) of $225,000.00, or $20,000.00 more than Ms. Lawson received, is not justified.”
Opp. at 21.
In Meirndorf, the petitioner underwent two surgeries, five laser treatments, two joint
injections, two shoulder MRI scans, and two separate arthroscopic surgeries over several
years. Meirndorf, 2022 WL 1055475, at *2. That claimant described her pain as constant,
worsening, and interfering with her ability to work (on the computer), and drive due to
discomfort. Id. Her condition had improved, however, by her final treatment session. Id.
at *3. The Meirndorf petitioner was the mother of two at the time of vaccination, and
detailed the limitations she experienced in her overall enjoyment of life, physical activities,
work duties, and exercise of daily functions attributable to her injuries. Id. Petitioner’s
injury had a severe effect on her mental state, and she became depressed, hopeless,
and angry, and she was awarded $200,000.00 in past pain and suffering. Id. at *3, 4.
The McDorman petitioner underwent a significant amount of treatment for her
injury for over two years, to include: multiple rounds of physical therapy (50 sessions), ten
steroid injections, an MRI scan, and two separate arthroscopic surgeries. McDorman,
2021 WL 5504698, at *2. While her reported pain levels varied significantly (at times
relatively high, but also fairly low on other occasions), the pain was persistent enough to
cause her to seek out, and receive, a significant amount of medical treatment. Id. at *3.
Respondent appears to concede that Petitioner’s reliance on McDorman, a case where
the petitioner was award $200,000.00, was particularly instructive, “as Ms. McDorman
also underwent two surgical procedures and developed pain in her opposing shoulder
due to overuse.” Id. (citing McDorman, 2021 WL 5504698 at *2, 4). Respondent, however,
distinguishes McDorman, noting that this petition er received ten steroid injections. Id.
In Schoonover, the petitioner reported constant pain, she had pain at rest, and she
often described pain with activity as severe, with a rating of eight out of ten. Schoonover,
2020 WL 5351341, at *4. Her pain did not improve following multiple steroid injections,
and she had two surgeries, but she continued to have pain, she underwent lengthy and
significant medical and surgical care and treatment and suffered episodes of severe pain
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and limited mobility. Id. at *4-5. This petitioner was awarded $200,000.00 in past pain and
suffering, and $1,200.00 per year for her life expectancy, reduced to net present value.
Id. at *6. Comparing Ms. Mulloy’s injury with that of the Petitioner in Schoonover,
Respondent argues that “[P]etitioner did experience at least some level of recovery, as
she is able to complete simple ADLs, can travel, and swim with a modified stroke,” unlike
Ms. Schoonover, who had “permanent limitations that significantly impacted her work,
and her planned ‘dream job’ as a transport respiratory therapist was no longer an option.”
Opp. at 21 (citing Schoonover, at *6).
While Ms. Mulloy was retired at the time of her injury, she describes in her affidavit
how her SIRVA has changed her life forever. Ms. Mulloy explains—
Prior to the shot I was an extremely fit and active person. I have trained for
and competed in triathlons, ½ marathons, marathons, and open ocean
stand up paddle races. My husband and I have been working out on a daily
basis since we were married 38 years ago. Fitness is a way of life for us.
We started and operated Outer Banks Stand Up Paddle for 11 years. My
ability to work out has been seriously curtailed and I can no longer
participate in activities that I love. My ongoing shoulder pain, now in both
shoulders, has affected not only my workouts, emotional state, social life
but my sleeping as well.
. . . .
Unlike Ms. Schoonover that lost her ‘dream job’ as a therapist, I have lost
the remainder of my life to enjoy the recreational activities that I had worked
so hard to achieve. Ms. Schoonover was also compensated with a 40%
permanent disability for her non-dominant arm. According to the VA, a
dominant arm as in my case, would receive a 10% higher value.
My loss includes sharing these recreational activities and other activities such as
pickleball with my three children and six grandchildren (ages 10, 7, 5, 2, 5 months
and 3 months). Right now, I have difficulty holding my youngest grandchildren for
any duration and can’t even consider lifting the older ones.
Ex. 36 at. 1-2.
Although none of the cases cited herein by either side are precisely on point, the
totality of evidence does suggest an award closer to what Petitioner requests is most
appropriate - although I agree with Respondent that $225,000.00 is not justified. In the
comparable cases cited, there are some ways in which the treatment those petitioners
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received was more extensive than the treatment Ms. Mulloy received – but I balance this
against Ms. Mulloy’s very difficult treatment course, especially considering the loss of
enjoyment of her active lifestyle, the disability of her shoulder, the amount of PT she has
had, the lengthy duration of her injury, and the constant nature of her pain, all of which
were, in some cases, far more extensive than that of the other petitioners.
Thus, and pursuant to my oral ruling on January 27, 2023 (which is fully adopted
herein), I find that $205,000.00 represents a fair and appropriate amount of
compensation for Petitioner’s past pain and suffering.
C. Future Pain and Suffering
Petitioner asserts that “because there appears to be no hope that even shoulder
replacement surgery will fully restore [her] to the fully independent and active woman she
was prior to the flu vaccination, [she] also seeks an award for future pain and suffering in
the amount of $1,500.00 per year for the remainder of [her] life.” Br. at 19. Respondent
agrees that a future pain and suffering component is appropriate in this case, but
proposes a one-time award of $7,500.00. Opp. at 2.
I am generally reluctant to award future pain and suffering in SIRVA cases, unless
there is compelling evidence in the medical record that a treating provider has confirmed
a permanent form of loss. Here, such evidence exists (as underscored by Respondent’s
rare concession that some amount of future pain and suffering is warranted in this case).
Ms. Mulloy has consistently had a functional disability/impairment of her shoulder
between 89% (shortly after surgery) at worst, and 26% at best, with the most recent Quick
Dash Disability/Symptom score of 45.5% on July 27, 2021. See Ex. 8 at 7, 24; Ex. 13 at
11, 54; Ex. 16 at 26; Ex. 27 at 6.
I do note that there is no statement in the record from a treating provider that Ms.
Mulloy has suffered a permanent disability. Nevertheless, Petitioner has made a good
argument for why she expects additional treatment in the future, including a possible third
surgery. Considering what is likely a permanent shoulder disability, and the high probably
that she will require additional treatment for her shoulder in the future, I award Petitioner
$900.00 per year for the remainder of her life, which accepting Petitioner’s calculation
over a 22-year period, comes out to $19,800.00.8
In keeping with Vaccine Program practice, however, I must next reduce this
8 The Social Security Administration (SSA) calculates life expectancy. Their life expectancy calculator can
be found at https://www.ssa.gov/OACT/population/longevity.html (last visited February 17, 2023).
According to SSA's life expectancy calculator, Ms. Mulloy has an additional life expectancy of 21.7 years.
She is expected to live to be 86.6 years old. Id.
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$19,800.00 figure to its net present value. See Section 15(f)(4)(A) (requiring that future
compensation awards be reduced to their net present value). The parties were instructed
to inform me of their proposed net discount rate. Petitioner recommended a one percent
net discount rate over the 22-year future period, while Respondent argues for a two
percent net discount rate.
Consistent with my reasoning in Dillenbeck, adopting a multiprong approach to
account for the fluctuating treasury interest rates of present day is appropriate for
determining the net discount rate in this case. See Dillenbeck v. Sec'y of Health & Hum.
Servs., No. 17-428V, 2019 WL 4072069, at *15 (Fed. Cl. July 29, 2019) (adopted a multi-
pronged approach in order to account for the unusually low treasury interest rates of
present day, utilizing a one percent net discount rate for the first fifteen years of this
award, followed by a two percent net discount rate for the remaining seven years). I will
do the same herein, and also utilize a one percent net discount rate for the first fifteen
years of the award, followed by a two percent net discount rate for the remaining seven
years. Applying this multi-pronged net discount rate, Petitioner's $19,800.00 award for
future pain and suffering will be $16,688.12.9
Conclusion
For all of the reasons discussed above and based on consideration of the record
as a whole, I find that $205,000.00 represents a fair and appropriate amount of
compensation for Ms. Mulloy’s past pain and suffering. I find that and award of
$900.00 per year, reduced to net present value of $16,688.12, is appropriate
compensation for future pain and suffering. I also find that Petitioner is entitled to
$7,699.94 for past unreimbursed medical expenses.
9 This figure was calculated in Microsoft Excel using the present value or “PV” function. The PV function
syntax is: PV (rate (r), number of payment periods (n), payment amount (PMT), future value (FV)
(optional), and type (optional)). In other words, PV = FV / (1+ r)n + PMT / r [1 – 1/ (1+ r)n]. In this case,
r = 0.01 (years 1-15) or 0.02 (years 16-22); PMT = $900.00; n = 1; FV is variable, and the “type” was not
used for these calculations.
Each year (22 years representing Petitioner’s expected future life expectancy) was calculated separately
(in an individual cell) using the same syntax, which resulted in the present value of the award for the
current year, and the future value of the award for the subsequent year. The first 15 payments (or years)
were calculated using a 1% discount rate, 1 payment period, $900.00 payment amount, with the future
value being the value of the previous year’s award. Beginning with payment/year 16, payments 16
through 22 were calculated using a 2% discount rate, 1 payment period, $900.00 payment amount, with
the future value being the value of the previous year’s award.
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Accordingly, I award Petitioner a lump sum payment of $229,388.06 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 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
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.
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