VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-00450
Package ID: USCOURTS-cofc-1_20-vv-00450
Petitioner: Sandra Merchant
Filed: 2020-04-17
Decided: 2022-11-07
Vaccine: influenza
Vaccination date: 2018-11-09
Condition: Guillain-Barre Syndrome (GBS)
Outcome: compensated
Award amount USD: 172874

AI-assisted case summary:
Sandra Merchant, formerly known as Sandra Gillingham, filed a petition for compensation under the National Vaccine Injury Compensation Program on April 17, 2020. She alleged that she suffered Guillain-Barre Syndrome (GBS) as a result of an influenza vaccination administered on November 9, 2018. The case was assigned to the Special Processing Unit. On January 11, 2021, the Respondent conceded that Petitioner's GBS was consistent with the Vaccine Injury Table for GBS following a seasonal flu vaccination, and that there was no evidence of an unrelated cause. The Respondent further agreed that Petitioner's symptoms fell within the 3 to 42-day window after vaccination and that her records showed sequelae of the injury for more than six months post-vaccination. Based on this concession, Chief Special Master Brian H. Corcoran issued a ruling on entitlement in Petitioner's favor on January 14, 2021. As the parties could not agree on damages, the matter proceeded to a damages hearing. Petitioner requested $200,000.00 for past pain and suffering, while Respondent proposed $95,000.00. The parties agreed on $1,473.24 for lost wages and $1,401.08 for unreimbursed expenses. The hearing was held on September 30, 2022. The public decision, issued on November 7, 2022, detailed Petitioner's clinical course. She presented on November 23, 2018, approximately two weeks after vaccination, with a five-day history of progressive weakness and numbness in her legs. She was admitted to the hospital, diagnosed with acute inflammatory demyelinating polyneuropathy (AIDP), and treated with IVIG therapy. She was discharged after one week with a prescription for a walker. Post-discharge, she continued to experience numbness, tingling, generalized weakness, and neck and upper back pain, requiring physical therapy. By May 28, 2019, she reported ongoing urinary incontinence, for which she was prescribed medication and received multiple Emsella treatments. The decision noted that Petitioner's GBS also caused her Hashimoto's disease to flare, leading to excessive fatigue. Petitioner's affidavit described the sale of her farm due to her inability to maintain it, distress from experiencing a severe injury away from home during a holiday with her son, difficulty parenting her autistic son, and delays in starting a new job. Chief Special Master Corcoran awarded Petitioner $170,000.00 for past pain and suffering, plus the agreed-upon amounts for lost wages and unreimbursed expenses, totaling $172,874.32. Petitioner was represented by Emily Beth Ashe of Anapol Weiss, and Respondent was represented by Mallori Browne Openchowski of the U.S. Department of Justice. Chief Special Master Brian H. Corcoran issued the final decision.

Theory of causation field:
Petitioner Sandra Merchant alleged that an influenza vaccine received on November 9, 2018, caused Guillain-Barre Syndrome (GBS). Respondent conceded that Petitioner's GBS was a Table injury, consistent with the Vaccine Injury Table for GBS following a seasonal flu vaccination, with symptom onset between 3 and 42 days post-vaccination. Respondent also conceded that there was no preponderance of evidence of an unrelated cause and that Petitioner suffered sequelae for more than six months. Petitioner was awarded compensation based on this concession. The damages award, issued by Chief Special Master Brian H. Corcoran on November 7, 2022, totaled $172,874.32, including $170,000.00 for pain and suffering, $1,473.24 for lost wages, and $1,401.08 for unreimbursed expenses. Petitioner was represented by Emily Beth Ashe and Respondent by Mallori Browne Openchowski.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_20-vv-00450-0
Date issued/filed: 2021-03-02
Pages: 2
Docket text: PUBLIC ORDER/RULING (Originally filed: 01/14/2021) regarding 22 Ruling on Entitlement Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
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Case 1:20-vv-00450-UNJ Document 29 Filed 03/02/21 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-450V
UNPUBLISHED
SANDRA GILLINGHAM, Chief Special Master Corcoran
Petitioner, Filed: January 14, 2021
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.
Greg Spizer, Anapol Weiss, Philadelphia, PA, for petitioner.
Mallori Browne Openchowski, U.S. Department of Justice, Washington, DC, for
respondent.
RULING ON ENTITLEMENT1
On April 17, 2020, Sandra Gillingham 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 Guillain-Barre Syndrome (“GBS”) as a
result of her November 9, 2018 influneza (“flu”) vaccination. Petition at 1. The case was
assigned to the Special Processing Unit of the Office of Special Masters.
On January 11, 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 “has concluded that petitioner’s alleged GBS is consistent
with the Vaccine Injury Table for GBS following the seasonal flu vaccination she received
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 1:20-vv-00450-UNJ Document 29 Filed 03/02/21 Page 2 of 2
on November 9, 2018. DICP [Division of Injury Compensation Programs, Department of
Health and Human Services] found that the onset of petitioner’s symptoms fell within 3 to
42 days after vaccination.” Id. at 4 (footnote omitted). Respondent further agrees that
there is not a preponderance of medical evidence demonstrating that
petitioner’s GBS was due to a factor unrelated to the flu vaccine. Further,
petitioner’s records show that she suffered the sequela of her injury for more
than six months after vaccination. Based on the medical records outlined
above, petitioner has met the statutory requirements for entitlement to
compensation. See 42 U.S.C. § 300aa-13(a)(1)(B); 42 U.S.C. § 300aa-
11(c)(1)(D). 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_20-vv-00450-1
Date issued/filed: 2022-11-07
Pages: 8
Docket text: PUBLIC DECISION (Originally filed: 10/07/2022) regarding 64 DECISION of Special Master Signed by Chief Special Master Brian H. Corcoran. (nh) Service on parties made.
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Case 1:20-vv-00450-UNJ Document 67 Filed 11/07/22 Page 1 of 8
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-450V
UNPUBLISHED
SANDRA MERCHANT, Chief Special Master Corcoran
Petitioner, Filed: October 7, 2022
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Decision Awarding Damages; Pain
HUMAN SERVICES, and Suffering; Influenza (Flu)
Vaccine; Guillain-Barré syndrome
Respondent. (GBS)
Emily Beth Ashe, Anapol Weiss, Philadelphia, PA , for Petitioner.
Mallori Browne Openchowski, U.S. Department of Justice, Washington, DC, for
Respondent.
DECISION AWARDING DAMAGES1
On April 17, 2020 Sandra Merchant (formerly Gillingham) filed a petition for
compensation under the National Vaccine Injury Compensation Program, 42 U.S.C.
§300aa-10, et seq.2 (the “Vaccine Act”), alleging that she experienced Guillain Barré
syndrome (“GBS”) as a result of an influenza (“flu”) vaccination administered on
November 9, 2018. Petition at 1. The case was assigned to the Special Processing Unit
of the Office of Special Masters. Although entitlement was conceded, the parties could
not agree on damages, so the disputed component of actual pain and suffering was
submitted to SPU Motions Day.
1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the decision will be available to anyone with access to the
internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact
medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy.
If, upon review, I agree that the identified material fits within this definition, I will redact such material from
public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).

Case 1:20-vv-00450-UNJ Document 67 Filed 11/07/22 Page 2 of 8
For the reasons described below, and after holding a brief hearing on damages in
this matter, I find that Petitioner should receive damages in the amount of $170,000.00,
representing compensation for Petitioner’s actual pain and suffering, plus $1,473.24 in
lost wages and unreimbursed expenses of $1,401.08 (agreed to by the parties).
I. Relevant Procedural History
As noted above, the case was initiated in April 2020. On January 11, 2021,
Respondent filed a Rule 4(c) report in which he conceded that Petitioner was entitled to
compensation in this case. ECF No. 21. Accordingly, on January 14, 2021, I issued a
ruling on entitlement in Petitioner’s favor. ECF No. 22. After attempting to informally
resolve the issue of damages for over a year, the parties informed me in May 2022 that
they could not do so. ECF No. 48. I therefore provided the parties an opportunity to file
written briefs, and scheduled this matter for an expedited hearing and ruling. ECF Nos.
48, 61, Hearing Order (Non-PDF) filed September 21, 2022.
The hearing was held on September 30, 2022, and the only disputed damages
component was pain and suffering.3 Petitioner requests that I award her $200,000.00 for
past pain and suffering. ECF Nos. 56, 60. Respondent proposes that I award the lesser
amount of $95,000.00 for actual pain and suffering. ECF No. 58. The parties agreed to
an award of $1,473.24 in lost wages and unreimbursed expenses of $1,401.08. ECF No.
58 at 1, n.1.
II. Legal Standard
Compensation awarded pursuant to the Vaccine Act shall include “[f]or actual and
projected pain and suffering and emotional distress from the vaccine-related injury, an
award not to exceed $250,000.” Section 15(a)(4). Additionally, a petitioner may recover
“actual unreimbursable expenses incurred before the date of judgment awarding such
expenses which-- (i) resulted from the vaccine-related injury for which petitioner seeks
compensation, (ii) were incurred by or on behalf of the person who suffered such injury,
and (iii) were for diagnosis, medical or other remedial care, rehabilitation . . . determined
to be reasonably necessary.” Section 15(a)(1)(B). The petitioner bears the burden of proof
with respect to each element of compensation requested. Brewer v. Sec’y of Health &
Human Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18,
1996).
There is no mathematic formula for assigning a monetary value to a person’s pain
and suffering and emotional distress. I.D. v. Sec’y of Health & Human Servs., No. 04-
3 The transcript of the September 30, 2022 Hearing in this case was not yet filed as of the date of this
Decision but is incorporated by reference herein.
2

Case 1:20-vv-00450-UNJ Document 67 Filed 11/07/22 Page 3 of 8
1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013) (“[a]wards for
emotional distress are inherently subjective and cannot be determined by using a
mathematical formula”); Stansfield v. Sec’y of Health & Human Servs., No. 93-0172V,
1996 WL 300594, at *3 (Fed. Cl. Spec. Mstr. May 22, 1996) (“the assessment of pain and
suffering is inherently a subjective evaluation”). Factors to be considered when
determining an award for pain and suffering include: 1) awareness of the injury; 2) severity
of the injury; and 3) duration of the suffering. I.D., 2013 WL 2448125, at *9 (quoting
McAllister v. Sec’y of Health & Human Servs., No 91-1037V, 1993 WL 777030, at *3 (Fed.
Cl. Spec. Mstr. Mar. 26, 1993), vacated and remanded on other grounds, 70 F.3d 1240
(Fed. Cir. 1995)).
Prior pain and suffering awards in comparable cases also bear on the findings
reached herein. See, e.g., Doe 34 v. Sec’y of Health & Human Servs., 87 Fed. Cl. 758,
768 (2009) (finding that “there is nothing improper in the chief special master’s decision
to refer to damages for pain and suffering awarded in other cases as an aid in determining
the proper amount of damages in this case.”). And, of course, I may rely on my own
experience (along with my predecessor Chief Special Masters) adjudicating similar
claims.4 Hodges v. Sec’y of Health & Human Servs., 9 F.3d 958, 961 (Fed. Cir. 1993)
(noting that Congress contemplated the special masters would use their accumulated
expertise in the field of vaccine injuries to judge the merits of individual claims).
III. Appropriate Compensation in this Case
In this case, awareness of the injury is not disputed. The record reflects that at all
times, Petitioner was a competent adult with no impairments that would impact her
awareness of his injury. I thus analyze principally the severity and duration of Petitioner’s
injury.
In performing this analysis, I have reviewed the record as a whole to include the
medical records and affidavits filed and all assertions and argument made by the parties
in written documents and at the expedited hearing held on September 30, 2022. I also
considered prior awards for pain and suffering in both SPU and non-SPU GBS cases,
and rely upon my experience in adjudicating those cases.5 However, I ultimately base my
4 From July 2014 until September 2015, the SPU was overseen by former Chief Special Master Vowell. For
the next four years, until September 30, 2019, all SPU cases, including the majority of SIRVA claims, were
assigned to former Chief Special Master Dorsey, now Special Master Dorsey. In early October 2019, the
majority of SPU cases were reassigned to me as the current Chief Special Master.
5 Statistical data for all GBS cases resolved in SPU by proffered amounts from inception through July 1,
2022 reveals the median amount awarded to be approximately $ 171,248.72. These awards have typically
ranged from approximately $129,751.58 to $250,000.00, representing cases between the first and third
quartiles.
3

Case 1:20-vv-00450-UNJ Document 67 Filed 11/07/22 Page 4 of 8
determination on the circumstances of this case.
Here, the record shows that Petitioner, a 57-year-old Montana resident visiting
Oregon for the Thanksgiving holiday with her 12-year-old son, presented on November
23, 2018 (approximately two weeks after her flu vaccination) to urgent care. Petitioner
reported a five-day history of progressive weakness and numbness in her legs. Ex 2 at 3.
Petitioner’s presentation was “concerning enough” for her to be sent immediately to the
hospital emergency department (“ED”). Id. at 4. Petitioner’s attending physician at the ED
noted that her condition was “consistent with demyelinating disease process and likely
Guillain-Barre syndrome.” Ex. 3 at 3. She was admitted to the hospital and on November
24, 2018, underwent a lumbar puncture which revealed elevated protein. Ex. 3 at 8, 13-
14, 117.6 Petitioner was treated at the hospital with a five-day course of IVIG therapy. Ex.
3 at 8. She was subsequently discharged from the hospital after one full week in stable
condition with a diagnosis of acute inflammatory demyelinating polyneuropathy (“AIDP”),
and provided a prescription to obtain a walker with wheels. Id.; Ex. 4.
Petitioner was evaluated post-discharge by her primary care provider on
December 13, 2018. At this time, she reported that she continued to have symptoms of
numbness and tingling. Ex. 5 at 245. She was assessed with GBS and generalized
weakness and was referred to physical therapy. Id. at 246. Petitioner began physical
therapy on December 19, 2018, reporting at this time that she suffered “generalized
weakness throughout her upper and lower extremities,” however her lower extremities
were most impacted and she noted that her knees would “give way” if she attempted to
knell causing her to fall to the ground. Ex. 6 at 8. Petitioner also discussed that she was
not able to sleep well, her head felt “heavy,” she had a pain rating of 5/10, and she had
neck and upper back pain. Id. Petitioner reported she was taking Tylenol which
temporarily helped. Id. On exam, Petitioner was found to have “decreased range of
motion throughout the cervical spine” and “weakness noted throughout her lower
extremities and core.” Id. at 9. Other problems included an “inability to do her day-to-day
activities without pain” and an “inability to sleep.” Id. However, her potential to reach her
rehabilitation goals was found to be “good.” Id.
Ultimately, Petitioner completed five physical therapy sessions over the course of
approximately one month. At her final physical therapy session on January 17, 2019,
Petitioner noted her neck was “doing better” and that she had been able to engage in
swimming (a low impact exercise) “at least two times a week.” Ex. 6 at 4. Her physical
therapist instructed her in an independent physical therapy program which she tolerated
“well.” Id. Subsequently, Petitioner was evaluated by her primary care provider on May
28, 2019. Ex. 8 at 6. Her GBS and related hospitalization were discussed, and Petitioner
6 Petitioner had undergone a cervical and lumbar MRI the prior day, November 23, 2018, which revealed
“no significant mass effect or spinal lesion other than some mild chronic findings.” Ex. 3 at 2.
4

Case 1:20-vv-00450-UNJ Document 67 Filed 11/07/22 Page 5 of 8
indicated that she had suffered urinary incontinence since her diagnosis. Id. Petitioner
was provided a prescription for Detrol for her urinary incontinence, it was also noted that
Petitioner’s GBS may have caused her Hashimoto’s disease to flare causing excessive
fatigue. Id.
Petitioner has continued to treat for her GBS sequela, albeit intermittently, for over
three and a half years since her diagnosis. While she has made a good recovery in
general, her GBS has caused her to require ongoing treatment for urinary incontinence.
Ex. 17 at 2, 4-5 (primary care record from February 2, 2022 discussing that Petitioner still
had ongoing, although not severe, GBS related issues). In addition to taking the
medication Detrol (tolterodine), Petitioner has required numerous and ongoing Emsella7
treatments to manage her incontinence. Between October 3, 2019, and May 11, 2022,
Petitioner has required a total of eleven Emsella treatments to manage her incontinence
related to her GBS. Ex. 17 at 2, 4-5; Ex. 9 at 5; Ex. 15 at 1; Ex. 18 at 1; Ex. 19 at 1; Ex.
20 at 1.
In making my determination, I have fully considered Petitioner’s sworn affidavit,
filed July 1, 2022, which describes the pain experienced by Petitioner over the course of
her injury, as well as the limitations in her exercise of daily functions and physical activities
attributed to her GBS. Ex. 21. That affidavit also describes personal circumstances that
magnified the suffering and emotional distress she experienced as a result of her GBS.
In particular, Petitioner has stated that before her injury, she owned (with her
former husband) a small farm with animals, which she states she was forced to sell in
2020 as she could no longer maintain it following her injury. Ex. 21, ¶¶14, 18. Petitioner
has also filed a Warranty Deed evidencing this sale. Ex. 24. Petitioner describes the
additional personal stress of experiencing the onset of a severe injury away from her
home over a Thanksgiving holiday with her minor child. Id., ¶11. She was delayed
returning home, and experienced travel complications as a result of her injury. Id., ¶¶12-
13. Petitioner’s affidavit also details the unique distress she experienced as the result of
not being able to fully parent her autistic son, who was unable to fully comprehend the
nature of her injury while it was unfolding (especially at the time of its onset). Id., ¶15.
Additionally, as a result of her GBS, Petitioner was delayed in starting a new job which
later impacted her eligibility for unemployment benefits after she was furloughed due to
the Covid-19 Pandemic. Id., ¶16. Finally, Petitioner in her affidavit discusses how her
urinary incontinence has changed her life, requiring her to plan activities around bathroom
access and wear pads as a safety measure. Id., ¶20.
7 Emsella is a “chair [that] uses electromagnetic stimulation to strengthen the pelvic floor muscles for the
patient to gain more control and prevent frequent urination.” https://406medspa.com/services/pelvic-floor-
tightening/ (last visited October 6, 2022). This is the website for Allure Aesthetics the clinic at which
Petitioner received Emsella treatments. See, e.g., Ex. 9.
5

Case 1:20-vv-00450-UNJ Document 67 Filed 11/07/22 Page 6 of 8
As I informed the parties during the expedited hearing, the question in this case is
not whether Petitioner is entitled to any compensation for his pain and suffering, but rather
what amount of compensation is justified, based upon the facts of the case. This
determination is not an exact science but more of an art. While it is tempting to “split the
difference” and award an amount halfway between the amounts proposed by the parties
(based upon the determination that the parties’ respective positions reasonably “frame”
high and low potential awards), each petitioner deserves an examination of the specific
facts in his or her case. Thus, while amounts ultimately awarded may end up falling
somewhere in the range between the awards proposed by both parties, this result flows
from a specific analysis of Petitioner’s personal circumstances.
Based upon the record as a whole, I find that the severity and duration of
Petitioner’s GBS symptoms warrant a significant pain and suffering award, although not
quite at the level requested by Petitioner.
In her brief, Petitioner cites four prior GBS damages decisions, but argues that that
her clinical course was more severe than the petitioners in those cases. ECF No. 56 at
8-9 (citing Johnson v. Sec’y of Health & Human Servs., No. 16-1356V, 2018 WL 5024012
(Fed. Cl. Spec. Mstr. July, 20, 2018) (awarding $180,000.00 for actual pain and suffering);
Presley v. Sec'y of Health & Hum Servs., No. 17-1888V, 2020 WL 1898856 (Fed. Cl.
Spec. Mstr. March 23, 2020) (awarding $180,000.00 for past pain and suffering); Devlin
v. Sec'y of Health & Hum Servs., No. 19-0191V, 2020 WL 5512505 (Fed. Cl. Spec. Mstr.
Aug. 7, 2020) (awarding $180,000.00 for past pain and suffering); and Gross v. Sec'y of
Health & Hum Servs., No. 19-0835V, 2021 WL 2666685 (Fed. Cl. Spec. Mstr. March 11,
2021), review denied, 154 Fed. Cl. 109 (2021) (awarding $160,000.00 for past pain and
suffering).8
Respondent in reaction argues that Petitioner’s injury was less severe than any of
the cases cited by Petitioner. ECF No. 58 at 9. However, in his brief Respondent cites
no comparable case, but instead states he “has reviewed and conceded a number of
flu/GBS cases and considers $95,000.00 to be an appropriate award given the facts of
this case when compared to other more severely injured petitioners.” Id.9
8 Petitioner mistakenly indicates in her brief that the Petitioner was awarded $180,000 for past pain and
suffering. ECF No. 56 at 9.
9 Respondent did offer a comparable case, for the first time, at the September 2022 hearing. Shankar v.
Sec'y of Health & Hum. Servs., No. 19-1382V, 2022 WL 2196407 (Fed. Cl. Spec. Mstr. May 5, 2022)
(awarding $135,000.00 for past pain and suffering). While I appreciate Respondent’s effort to locate a
reasonable comparable, and it does have some bearing on resolution of this matter, the failure to include it
in prior briefing makes it difficult to give it significant weight. Additionally, I note that this comparable
represents a significantly higher award than Respondent suggests is appropriate to award in this case, and
6

Case 1:20-vv-00450-UNJ Document 67 Filed 11/07/22 Page 7 of 8
I reject the implied argument of Respondent that the amounts awarded in proffered
cases provide more persuasive guidelines for the award to be issued in this matter than
reasoned decisions from the Court and special masters. As I have previously stated, a
proffer is simply Respondent’s assessment (as agreed to by Petitioner) of the appropriate
amount to be awarded, and thus a special master’s approval of a proffer is not akin to a
reasoned evaluation of damages, issued by a neutral judicial officer, that can be looked
to when evaluating the damages to be awarded – even if settled cases and proffers do
provide some evidence of the magnitude of awards in factually-similar actions.
I find the cases referenced by Petitioner (Johnson, Presley, Devlin, and Gross) and
the single case cited by Respondent at oral argument (Shankar) all provide reasonable
benchmarks for an award of pain and suffering in the instant case. The severity and
duration of the Shankar petitioner’s GBS was, however, milder than the injury
experienced by Ms. Merchant. While there were some gaps in Ms. Merchant’s treatment,
these gaps in treatment were not as significant as Respondent argued,10 and were at
least partially explained by the Covid-19 Pandemic. And although the medical records
support Respondent’s argument that Ms. Merchant’s urinary incontinence is well-
managed, urinary incontinence is facially a significant consequence of a vaccine injury,
and thus supports a larger award than even what was allowed in Shankar (which itself
exceeds Respondent’s preferred damages sum by $40,000.00).
The pain and suffering awards in Petitioner’s comparables (Johnson, Devlin, and
Presley) are, by contrast, slightly too high to fit the circumstances of this case, since those
petitioners generally appear to have suffered more severe courses of GBS. Better
comparable results are to be found in Francesco v. Sec'y of Health & Hum Servs., No.
18-1622V, 2020 WL 6705564 (Fed. Cl. Spec. Mstr. Oct. 15, 2020) (awarding $165,000.00
for past pain and suffering) and Robinson v. Sec'y of Health & Hum Servs., No. 18-0088V,
2020 WL 5820967 (Fed. Cl. Spec. Mstr. Aug. 27, 2020) (awarding $160,000.00 for past
pain and suffering). However, some upward adjustment from these results is appropriate.
While the Francesco and Robinson petitioners both engaged in more post-hospitalization
physical therapy, the total duration of Petitioner’s injury (at more than three-and-half
years) was longer. Additionally, I find that the personal circumstances Ms. Merchant
experienced following her GBS merits a higher award that what was awarded in those
cases.
therefore to some extent only offers further reason to consider Respondent’s proposed damages figure as
unsupported.
10 For example, Respondent argues that there is a two-year gap in Petitioner’s treatment between February
2020 and February 2022. ECF No. 58 at 8. But Petitioner was seen by her primary care provider in May
2020 (Ex. 14 at 7-8 – noting urinary incontinence) and received two Emsella treatments in 2021 (Ex. 15 at
1) and one Emsella treatment in January 2022 (Ex.19 at 1).
7

Case 1:20-vv-00450-UNJ Document 67 Filed 11/07/22 Page 8 of 8
As I explained previously to the parties during the expedited hearing, it is my view
that GBS pain and suffering awards generally should be higher than those awarded to
petitioners who have suffered a less frightening and physically-alarming injury, such as
SIRVA. After reviewing the record and specific facts in this case, and considering the
parties’ arguments during the hearing, I find that $170,000.00 in compensation for past
pain and suffering is reasonable based on the facts and circumstances specific to this
case. This sum exceeds the amount that Respondent proposed, but is properly less than
what Petitioner requested, and fits the range of sums awarded in the reasonably good
comparable cases offered by the parties.
IV. Conclusion
For all of the reasons discussed above, and based on consideration of the record
as a whole, I award Petitioner a lump sum payment of $172,874.32 (representing an
award of $170,000.00 for Petitioner’s past pain and suffering, 1,473.24 in lost wages
and unreimbursed expenses of $1,401.08) in the form of a check payable to
Petitioner.
This amount represents compensation for all items of damages that would be
available under Section 15(a). The Clerk of the Court is directed to enter judgment in
accordance with this Decision.11
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
11 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
8