VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-00491
Package ID: USCOURTS-cofc-1_20-vv-00491
Petitioner: Steven Corwin
Filed: 2020-04-23
Decided: 2024-12-20
Vaccine: influenza
Vaccination date: 2018-10-30
Condition: Guillain-Barré Syndrome (GBS)
Outcome: compensated
Award amount USD: 180000

AI-assisted case summary:
Steven Corwin, a 67-year-old retired police officer, filed a petition for compensation under the National Vaccine Injury Compensation Program on April 23, 2020. He alleged that an influenza vaccine he received on October 30, 2018, caused him to develop Guillain-Barré Syndrome (GBS), which is listed on the Vaccine Injury Table. Respondent filed a report on August 12, 2021, recommending that compensation be awarded and conceding that Petitioner satisfied the criteria for a Table injury, specifically GBS and its related sequelae. Special Master Herbrina Sanders issued a Ruling on Entitlement on October 29, 2021, finding Petitioner entitled to compensation, and the case proceeded to the damages phase. The parties were unable to agree on an amount for pain and suffering. Petitioner's medical history included joint disease, gastroesophageal reflux disease, hypertension, hyperlipidemia, and a long-standing history of back and hip pain. A few days after vaccination, Petitioner began experiencing pain, numbness, and gait problems. He was hospitalized on November 5, 2018, where he was diagnosed with GBS. His condition initially worsened, requiring transfer to the ICU, but improved after two rounds of intravenous immunoglobulin (IVIG) treatment. He was discharged from the hospital on November 15, 2018, and transferred to inpatient rehabilitation, from which he was discharged on December 3, 2018. Following discharge, Petitioner experienced residual weakness, numbness, and significant back and hip pain, which he attributed to his GBS and immobility. His medical records indicate he underwent lumbar spine surgery on May 15, 2019, for low back pain and numbness, and a left total hip arthroplasty on August 5, 2019, due to hip pain and difficulty ambulating. Petitioner stated that prior to vaccination, he was healthy and enjoyed an active lifestyle, including surfing, hiking, and bike riding. He alleged that his GBS and subsequent immobility led to severe incontinence, lower back pain requiring surgery, and hip replacement surgery. He reported ongoing numbness in his legs and lower back, unsteadiness when walking, and nocturnal leg spasms. He also noted frequent urinary tract infections (UTIs) since his GBS onset. Petitioner sought $200,000.00 for past pain and suffering, citing his hospitalization, IVIG treatment, rehabilitation, ongoing symptoms, and inability to enjoy his retirement activities. He compared his case to others with similar awards. Respondent argued that Petitioner's GBS course was less severe than many in the Program, noting he never lost the ability to walk and his treatment was typical. Respondent suggested an award of $130,000.00 for pain and suffering, arguing that Petitioner's chronic orthopedic issues overshadowed his GBS sequelae by six and a half months post-vaccination. Special Master Herbrina D. S. Young reviewed the evidence, including Petitioner's medical records, his affidavit, and his damages declaration. She considered the severity and duration of Petitioner's suffering, his pre-existing conditions, and the impact of the GBS on his life, including his inability to participate in recreational activities. Special Master Young found that Petitioner had full awareness of his suffering, and that while his GBS was not among the most severe, it had lasting effects. She noted that Petitioner required forearm crutches, wheelchair assistance at an airport, and continued to struggle with gait issues and self-catheterization. She also found that Petitioner's pre-existing conditions did not affect his mobility prior to vaccination and that his GBS significantly worsened his condition, leading to surgeries. On December 20, 2024, Special Master Young awarded Steven Corwin $180,000.00 for past pain and suffering.

Theory of causation field:
Steven Corwin, age 67, received an influenza vaccine on October 30, 2018. He alleged that this vaccine caused Guillain-Barré Syndrome (GBS), a condition listed on the Vaccine Injury Table. Petitioner's petition was filed on April 23, 2020. Respondent conceded entitlement to compensation for GBS and its sequelae. The case proceeded to the damages phase, where Special Master Herbrina D. S. Young awarded Petitioner $180,000.00 for past pain and suffering on December 20, 2024. The public decision does not detail the specific mechanism of causation or name any medical experts. The theory of causation is based on GBS being a Table injury.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_20-vv-00491-0
Date issued/filed: 2021-12-03
Pages: 2
Docket text: PUBLIC ORDER/RULING (Originally filed: 10/29/2021) regarding 23 Ruling on Entitlement. Signed by Special Master Herbrina Sanders. (rig) Service on parties made.
--------------------------------------------------------------------------------
Case 1:20-vv-00491-UNJ Document 24 Filed 12/03/21 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: October 29, 2021
* * * * * * * * * * * * * * * * * * * * * * * * *
STEVEN CORWIN, * No. 20-491V
*
Petitioner, * Special Master Sanders
v. *
*
SECRETARY OF HEALTH * Ruling on Entitlement; Influenza
AND HUMAN SERVICES, * (“Flu”) Vaccine; Guillain-Barré
* Syndrome (“GBS”)
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * * *
Theodore J. Hong, Maglio Christopher & Toale, Seattle, WA, for Petitioner.
Jennifer L. Reynaud, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT1
On April 23, 2020, Steven Corwin (“Petitioner”) filed a petition for compensation under
the National Vaccine Injury Compensation Program2 (“Vaccine Program” or “Program”). 42
U.S.C. § 300aa-10 to 34 (2012). Petitioner alleged that the influenza (“flu”) vaccine he received
on October 30, 2018, caused him to develop Guillain-Barré Syndrome (“GBS”), a Table injury.
See Pet., ECF No. 1.
On August 12, 2021, Respondent filed his report pursuant to Vaccine Rule 4(c). Resp’t’s
Report, ECF No. 22. Respondent “recommend[ed] that compensation be awarded.” Id. at 1. He
stated that his “position [is] that [P]etitioner has satisfied the criteria set forth in the Vaccine Injury
Table (‘Table’) and the Qualifications and Aids to Interpretation (‘QAI’).” Id. at 7. Respondent
specified that “[t]he scope of damages to be awarded is limited to [P]etitioner’s GBS and its related
sequelae only.” Id.
A special master may determine whether a petitioner is entitled to compensation based
upon the record. A hearing is not required. §300aa-13; Vaccine Rule 8(d). In light of Respondent’s
1 This Ruling shall be posted 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), a party has 14 days to identify and move to delete medical or other information
that satisfies the criteria in § 300aa-12(d)(4)(B). Further, consistent with the rule requirement, a motion for redaction
must include a proposed redacted ruling. If, upon review, the I agree that the identified material fits within the
requirements of that provision, such material will be deleted from public access.
2 National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755 (“the Vaccine Act” or “Act”).
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-00491-UNJ Document 24 Filed 12/03/21 Page 2 of 2
concession and a review of the record, I find that Petitioner is entitled to compensation. This matter
shall now proceed to the damages phase.
IT IS SO ORDERED.
s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master
2

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_20-vv-00491-1
Date issued/filed: 2024-12-20
Pages: 9
Docket text: PUBLIC DECISION (Originally filed: 11/22/2024) regarding 47 DECISION of Special Master. Signed by Special Master Herbrina D S Young. (krt) Service on parties made.
--------------------------------------------------------------------------------
Case 1:20-vv-00491-UNJ Document 48 Filed 12/20/24 Page 1 of 9
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: November 22, 2024
* * * * * * * * * * * * * * * *
STEVEN CORWIN, * No. 20-491V
*
Petitioner, * Special Master Young
*
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * *
Jessi Carin Huff, Mctlaw, Mercer Island, WA, for Petitioner.
Jennifer Leigh Reynaud, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On April 23, 2020, Steven Corwin (“Petitioner”) filed a petition for compensation under
the National Vaccine Injury Compensation Program (“Vaccine Program” or “Program”). 42
U.S.C. § 300aa-10 to 34 (2018). Petitioner alleged that the influenza (“flu”) vaccine he received
on October 30, 2018, caused him to develop Guillain-Barré Syndrome (“GBS”), a Table injury.
Pet., ECF No. 1. On August 12, 2021, Respondent filed his report pursuant to Vaccine Rule 4(c)
and “recommend[ed] that compensation be awarded.” Resp’t’s Report at 1 ECF No. 22.
Respondent specified that “[t]he scope of damages to be awarded is limited to [P]etitioner’s GBS
and its related sequelae only.” Id. The case proceeded to damages, but the parties remain unable
to agree on an amount, which consists entirely of pain and suffering. For the reasons discussed
below, and after considering the entire record and argument from the parties, I find that Petitioner
is entitled to a total pain and suffering award of $180,000.00.
I. Procedural History
Petitioner filed his first batch of medical records, an affidavit, and a statement of
completion on May 4, 2020. Pet’r’s Exs. 1–15, ECF Nos. 6–7. He filed additional medical records
1This Decision will be posted on the United States Court of Federal Claims’ website, in accordance with
the E-Government Act of 2002, 44 U.S.C. § 3501 note (2018) (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), a party has 14 days to identify and move to delete
medical or other information that satisfies the criteria in § 300aa-12(d)(4)(B). Further, consistent with the
rule requirement, a motion for redaction must include a proposed redacted Decision. If, upon review, I agree
that the identified material fits within the requirements of that provision, such material will be deleted from
public access.

Case 1:20-vv-00491-UNJ Document 48 Filed 12/20/24 Page 2 of 9
on October 28, 2020. Pet’r’s Exs. 16–17, ECF No. 13. On January 27, April 30, and May 20,
2021, Petitioner filed three separate sets of medical records. Pet’r’s Exs. 19–24, ECF Nos. 17–
18, 20. Respondent filed his Rule 4(c) Report on August 12, 2021, and conceded entitlement,
limited to Petitioner’s GBS injury. Resp’t’s report. I issued a Ruling on Entitlement on October
29, 2021, and the case entered the damages phase. ECF Nos. 23, 25. Petitioner filed updated
medical records and a statement of completion on January 3, 2022. Pet’r’s Exs. 25–29, ECF No.
27. On August 18, 2022, Petitioner filed a declaration regarding pain and suffering. Pet’r’s Ex.
30, ECF No. 24. After remaining in damages discussions for over a year, Petitioner filed a motion
for ruling on the record with respect to damages on April 7, 2023. Pet’r’s Mot., ECF No. 42.
Respondent filed his response on June 12, 2023, and Petitioner replied on June 28, 2023. Resp’t’s
Response, ECF No. 45; Pet’r’s Reply, ECF No. 46. This matter is now ripe for adjudication on
the issue of damages.
II. Medical History
Petitioner was a 67-year-old retired police officer when he received a flu vaccine at the
office of his primary care provider (“PCP”), Michael Braun, M.D., on October 30, 2018. Pet’r’s
Ex. 3 at 4–5. His medical history was significant for joint disease, gastroesophageal reflux
disease, hypertension, and hyperlipidemia. Pet’r’s Ex. 16 at 3–4. Petitioner’s medical records also
indicated a decades-long history of back pain and chronic hip pain. See, e.g., Pet’r’s Exs. 3, 5, 17.
A few days after his vaccination, on November 3 or 4, 2018, Petitioner began experiencing
pain, numbness, and gait problems. See Pet’r’s Ex. 2 at 27, 35, 39. On November 5, 2018,
Petitioner presented to the emergency department (“ED”) at Wilcox Memorial Hospital with leg
pain, numbness, and weakness that he said began one or two days earlier. Pet’r’s Ex. 13 at 2.
Petitioner had a wide-based, ataxic gait. Id. On examination, neurologist Surendra Rao, M.D.,
noted hyperreflexia, but reduced ankle reflexes, and added Petitioner’s “symptoms [were]
consistent with [GBS] except that his reflexes [were] still intact,” but “this may be because it
[was] early in the course of the disease.” Pet’r’s Ex. 2 at 43; Pet’r’s Ex. 16 at 37–40. Petitioner
was admitted to the hospital. Pet’r’s Ex. 16 at 7, 13, 24–25, 45.
Over the course of eight days, Petitioner had two rounds of intravenous immunoglobulin
(“IVIG”) treatment. Id. at 7. His clinical course and elevated protein in his cerebral spinal fluid
was consistent with a diagnosis of GBS. Pet’r’s Ex. 2 at 46; Pet’r’s Ex. 17 at 17. Three days into
his hospitalization, on November 8, 2018, Petitioner’s overall condition worsened, and he was
transferred to the intensive care unit (“ICU”) as a precaution. Pet’r’s Ex. 13 at 34, 43; Pet’r’s Ex.
16 at 4. He had numbness in his legs and needed help transferring from the seated to standing
position. Pet’r’s Ex. 2 at 17. After Petitioner’s second round of IVIG, however, his condition
significantly improved. Pet’r’s Ex. 13 at 54. When Dr. Rao evaluated Petitioner for the last time
on November 14, 2018, Petitioner had symmetrical hyperreflexia, but absent ankle reflexes. Id.
at 65. His leg weakness and gait had improved. Id. at 65. On November 15, 2018, after ten days
in the hospital, Petitioner was transferred to inpatient rehabilitation. Id. at 70. Petitioner was
discharged to his home on December 3, 2018, after roughly two weeks at the Rehabilitation
Hospital of the Pacific. Pet’r’s Ex. 4 at 2–7. He could ambulate 300 feet with forearm crutches
and relied on over-the-counter pain medication. Id. at 7.
On December 5, 2018, Petitioner followed up with Dr. Braun. Pet’r’s Ex. 3 at 2–3.
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Petitioner reported residual weakness and numbness in his legs and increased back pain. Id. He
also reported that he “fe[lt] like the low back pain [was] hindering his recovery as he [was] having
sig[nificant] pain in the lower back with ambulation.” Id. at 2. Dr. Braun prescribed prednisone
and Percocet, then referred Petitioner to Hawaii Sports and Balance Center (“HSBC”) for
physical therapy (“PT”) and advised that he follow-up with Dr. Rao. Id. at 3. Petitioner began PT
at HSBC on December 6, 2018. Pet’r’s Ex. 5 at 38–47. At the initial evaluation, the therapist
noted that Petitioner had a history of chronic back and hip pain. Id. at 44. Petitioner attended PT
regularly, and by January 16, 2018, his ability to walk had improved, but he was hindered by his
back pain. Id. at 1–16. On January 29, 2019, Petitioner presented to orthopedic surgeon, Kenneth
T. Kaan, M.D., at the Spine Care Center of Hawaii for chronic back pain that was intermittent,
but severe. Pet’r’s Ex. 17 at 3. Petitioner reported that his GBS required him to sit or lay down,
which caused numbness, tingling, and disabling pain in his legs. Id. Dr. Kaan recommended
conservative treatment with PT, leaving surgery as an option if his low back pain did not improve.
Id.
Petitioner followed up with Dr. Kaan on February 26, 2019, with continued low back
pain. Id. at 9. X-rays showed L3-L4 spondylolisthesis. Id. Dr. Kaan recommended an L3-L4
fusion and lumbar lordosis. Id. By the end of February 2019, Petitioner’s physical therapist noted
that Petitioner showed “improvement in gait mechanics.” Pet’r’s Ex. 5 at 34. Approximately three
weeks later, on March 21, 2019, Petitioner presented to Dr. Braun reporting continued weakness.
Pet’r’s Ex. 8 at 7–8. On examination, Dr. Braun observed that Petitioner could walk slowly
without assistance. Id. at 7. Dr. Braun’s assessment was persistent weakness after flu vaccination
and GBS, as well as recurrent urinary tract infections (“UTIs”). Id.
Petitioner next saw Dr. Braun on May 13, 2019, for a preoperation physical in anticipation
of his upcoming lumbar spine surgery. Id. at 3–4. Petitioner reported recurrent UTIs, and
persistent paresthesia and back pain that radiated down both his legs. Id. Dr. Braun noted that he
was able to ambulate independently but had a slow gait, and had “gradually improving[,] but
residual weakness after having [GBS] in November 2018.” Id. On May 15, 2019, Petitioner
underwent lumbar spine surgery “for low back pain, numbness and tingling in his lower
extremities bilaterally.” Pet’r’s Ex. 22 at 8. He was prescribed Oxycodone and Celebrex and was
discharged on May 18, 2019. Id. at 8–9. Petitioner followed up with Dr. Braun less than one week
later, on May 23, 2019, reporting that his balance and leg weakness had improved since surgery.
Pet’r’s Ex. 8 at 2–3. He had postoperative pain that was reportedly adequately controlled with
prescription medication. Id. Dr. Braun observed Petitioner was “[a]mbulating slowly but
independently.” Id. at 2.
Around one month later, on June 25, 2019, Petitioner saw Dr. Kaan. Pet’r’s Ex. 17 at 14.
He reported that his back pain had improved, but he had numbness in his legs. Id. Dr. Kaan opined
that P etitioner “apparently need[ed] a total hip [replacement] and ha[d] difficulty with
ambulating.” Id. Petitioner presented to orthopedic surgeon Derek Johnson, D.O., on July 10,
2019. Pet’r’s Ex. 16 at 81. Petitioner reported that on January 8, 2019, “he was stepping off of a
curb and his hip gave out.” Id. Petitioner reported two other similar episodes and described “deep
aching pain in the hip which [was] aggravated by prolonged standing and walking.” Id. He noted
that PT had not helped. Id. Dr. Johnson recommended that Petitioner undergo hip replacement
surgery. Id. at 84. Petitioner underwent a left total hip arthroplasty on August 5, 2019. Pet’r’s Ex.
9 at 66; Pet’r’s Ex. 16 at 86. The next day, he was able to ambulate with the help of a rolling-
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Case 1:20-vv-00491-UNJ Document 48 Filed 12/20/24 Page 4 of 9
walker and was discharged. Pet’r’s Ex. 9 at 66. Petitioner presented for an initial PT evaluation
on August 9, 2019. Pet’r’s Ex. 12 at 32. Petitioner described his lower back as “a little better than
it was,” but it was still moderate to severe, especially when bending. Id. He also reported ongoing
numbness and weakness. Id. The therapist thought that Petitioner “would benefit from PT,” and
recommended two sessions per week for six weeks. Id. at 33, 38. Petitioner followed up with Dr.
Braun on September 23, 2019, reporting persistent paresthesia, numbness, and weakness in both
legs, as well as urinary retention. Pet’r’s Ex. 11 at 4. A PT record dated September 27, 2019,
noted Petitioner’s statement “that today [was] the best his low back ha[d] felt so far.” Pet’r’s Ex.
12 at 80.
Petitioner presented to urgent care in late October 2019, reporting dysuria, testicular pain
and swelling, and frequent UTIs. Pet’r’s Ex. 11 at 2; Pet’r’s Ex. 14 at 3. He reported that he had
frequent UTIs since his flu vaccine and GBS. Pet’r’s Ex. 14 at 3. He was prescribed medication
for a bacterial infection and told to present to the ED if he did not improve within 24 hours. Id.
at 4. A few days later, on November 5, 2019, Petitioner returned to Dr. Rao for a follow-up.
Pet’r’s Ex. 20 at 15. Dr. Rao observed Petitioner to have normal strength and that his lower back
pain had significantly improved after surgery. Id. at 21. The primary diagnosis was “[s]pinal
stenosis of lumbar region with neurogenic claudication.” Id. at 15. He was prescribed Flexeril
and Toradol and instructed to follow up with Dr. Kaan. Id. at 21, 24, 25. Petitioner returned to
Dr. Kaan on November 12, 2019. Pet’r’s Ex. 17 at 19. He reported that he still had some back
pain, but his leg pain had resolved. Id. The plan was for Petitioner to continue with PT and follow
up in three months. Id. A recertification note from PT on November 19, 2019, indicated that
during a trip to Greece a few weeks prior, Petitioner was able to walk in the airport, “but walking
long distances for multiple days in a row was very taxing on his endurance and low back.” Pet’r’s
Ex. 12 at 49. In a progress note dated December 24, 2019, the physical therapist wrote that
Petitioner was noticing improvement in his mobility, but he thought that his lower back pain and
GBS were impairing his progress. Id. at 42. Petitioner returned to Dr. Braun on May 21, 2020,
reporting that his leg weakness had improved, and he could ambulate independently. Pet’r’s Ex.
18 at 2. Petitioner’s most recently filed medical records indicated that he continued to experience
hip problems throughout 2020 and into 2021 and that he continued to attend PT. See Pet’r’s Ex.
12 at 58–78; Pet’r’s Exs. 23–24.
III. Petitioner’s Statements
a. Affidavit
Petitioner filed an affidavit with his first batch of medical records on May 4, 2020. Pet’r’s
Ex. 6. He noted that prior to his vaccination he “was healthy and independent with all of [his]
functional abilities.” Id. at ¶4. Petitioner noted that he had retired from a very active career as a
police officer and had relocated with his wife to Hawaii to enjoy a life of surfing, hiking, and bike
riding. Id. In particular, Petitioner described his life-long love for surfing and his routine of surfing
“three to four times a week at a nearby beach just five minutes from [his] home – each session
last[ing] two to three hours.” Id. at ¶ 5.
Initially, Petitioner thought his post-vaccination pain was due to a pinched nerve and did
not seek treatment. Id. at ¶ 7. However, he “became concerned” when his online research suggested
a possible stroke, and he “told [his] wife that [they] need[ed] to go [to] the hospital.” Id. at ¶ 9. At
4

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the hospital, Petitioner was diagnosed with GBS and stated that during his ICU stay, he “was
basically paralyzed from [his] waist down.” Id. at ¶ 11. He described himself as “very anxious”
about his potential for recovery. Id.
During Petitioner’s rehabilitation, he “suffer[ed] paralysis for one month – mostly
bedbound and in a wheelchair.” Id. at ¶ 15. Even after regaining his mobility, Petitioner developed
“severe incontinence” and continued to use catheters “three times a day at home.” Id. at ¶ 18. He
also noted that he “developed severe lower back pain, which a specialist determined was a result
from being bedridden for weeks” while hospitalized. Id. at ¶ 16. Petitioner attributed his need for
back and hip replacement surgeries in 2019 to his GBS immobility. Id. at ¶ 16-17.
Currently, he suffers from “numbness in both of [his] legs from [his] feet up through [his]
thighs and into [his] lower back.” Id. at ¶ 16. Petitioner does not require an assistive walking
device, but he is unsteady on his feet and noted that “[s]tanding on one leg is virtually impossible.”
Id. at ¶ 18. He is also unable to sleep in the same bed as his wife due to “nocturnal leg spasms that
disrupt [his] sleep and hers.” Id. at ¶ 19. Petitioner’s wife has assumed responsibility for many
household activities that used to be Petitioner’s responsibility, such as taking out the trash and
cooking. Id. at ¶ 20. They are unable to enjoy the recreational activities together that precipitated
their move to Hawaii. Id. at ¶ 21.
b. Damages Declaration
Petitioner filed a statement he described as an “update regarding [his] current physical status”
during the damages phase of this litigation. Pet’r’s Ex. 30 at ¶ 1. He stated that he has
“experienced virtually little to no change in [his] balance and mobility impairments.” Id.
Petitioner cannot run and likens his walking gait as “tight and rigid,” as if intoxicated. Id. Even
walking at a slow pace, Petitioner is exhausted after short distances and experiences constant pain
except when sitting or lying down. Id. at ¶ 2. After fifty years of surfing, Petitioner is “unable to
participate in any form of water or athletic activity.” Id. at ¶ 5. He must watch from the beach and
is now extremely devastated by his inability to engage in the types of extreme physical activity
that have dominated his life, (bull-riding, motocross, semi-pro football). Id. at ¶ 10. Petitioner
noted that he and his wife are considering moving back to the mainland, due to the high cost of
Hawaii living and his inability to fully enjoy island life. Id. at ¶ 13.
IV. Arguments Regarding Damages
a. Petitioner’s Argument
In Petitioner’s motion for damages, he requested an award for past pain and suffering in
the amount of $200,000.00.2 Pet’r’s Mot. at 31. Petitioner focused on several factors for
consideration, including his ten-day hospitalization, eight rounds of IVIG, 18 days of inpatient
rehabilitation, two months of PT, daily catheter use, and inability to enjoy his retirement. Id. at
22–29. He compiled a chart and compared his circumstances to other petitioners in the Program
who were awarded pain and suffering amounts of approximately $180,000.00. Id. at 22; see
Devlin v. Sec’y of Health & Hum. Servs., No. 19-191V, 2020 WL 5512505 (Fed. Cl. Spec. Mstr.
2 Petitioner did not request an award of future pain and suffering.
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August 7, 2020) (awarding $180,000.00 in past pain and suffering); Fedewa v. Sec’y of Health &
Hum. Servs., No. 17-1808V, 2020 WL 1915138 (Fed. Cl. Spec. Mstr. March 26, 2020) (awarding
$180,000.00 in 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
actual pain and suffering); Dillenbeck v. Sec’y of Health & Hum. Servs., No. 17-428V, 2019 WL
4072069 (Fed. Cl. Spec. Mstr. July 29, 2019) (awarding $170,000.00 in past pain and suffering
and $10,857.15 for future pain and suffering); Johnson v. Sec’y of Health & Hum. Servs., No. 16-
1356V (awarding $180,000.00 for actual pain and suffering). Petitioner also highlighted his
career in public service and active lifestyle prior to vaccination. Pet’r’s Mot. at 29–30.
In his reply to Respondent, Petitioner argued that “the records support the fact that
Petitioner’s GBS exacerbated his hip and back pain to the point of needing surgery. Additionally,
the records repeatedly reference his ongoing GBS symptoms – separate and apart from any
residual symptoms from his hip and back surgery.” Pet’r’s Reply at 1. Petitioner noted that “[h]e
did not require any treatment for his back pain and did not report having any additional pain in
the [eight] months leading up to his GBS diagnosis.” Id. at 2. Prior to his vaccination, Petitioner
stated that he was able “to engage in his daily activities including surfing three to four times per
week.” Id. at 3. The medical records indicated that his lower back pain “increased during his
recent hospitalization.” Id. at 3 (citing Pet’r’s Ex. 3 at 2–3). Petitioner argued that “but for his
vaccine injury, Petitioner’s low back pain would not have risen to the level of a need for surgery
at [that] time.” Id. He further noted in a January 29, 2019 record that Petitioner “had a bout of
[GBS] where he required sitting and lying down and he had lower extremity paralysis. As a result,
this pain got much worse and is now disabling.” Id. at 4 (citing Pet’r’s Ex. 17 at 3). Petitioner
reiterated that he suffers from gait urinary retention issues as a direct result of his GBS. Id. at 5,
8.
Petitioner detailed his trip to Italy with his wife in 2019 to provide further context to the
effect of his injuries on his life. Id. at 6. He disputed the PT note that incorrectly stated his trip
was to Greece and mischaracterized his mobility at the airport. Id. He noted that he “required
wheelchair assistance through the airport.” Id. He was unable to participate in “[m]any of the
prepaid tours and hikes,” due to “walking challenges that Petitioner could not overcome due to
his gait disturbances and ongoing pain.” Id. His trip was further interrupted by “a painful UTI
with fever, that made him so uncomfortable he did not leave his room for the final [five] days
that they were in Italy.” Id. Petitioner did not suffer from “urinary retention issues or frequent
UTIs prior to his GBS onset.” Id.
b. Respondent’s Argument
Respondent included in his response a case-specific analysis with respect to pain and
suffering. Resp’t’s Response at 10–13. He noted that GBS cases can “run the spectrum from cases
involving severe sequelae requiring life care plans to . . . complete[] recover[y] shortly after the
six-month minimum duration of symptomatology required to qualify for compensation under the
Act.” Id. at 10. On comparison, Petitioner “demonstrate[s] a somewhat less severe course of GBS
than often seen in the Program, comparatively speaking.” Id. Respondent did not characterize
Petitioner’s hospitalization and inpatient rehabilitation as lengthy and noted that Petitioner “never
lost the ability to walk.” Id. Petitioner’s course of treatment was described as “fairly typical,
primarily involving IVIG therapy and PT, [without] any complication.” Id. Respondent argued
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that “[b]y six and a half months after his vaccination, petitioner’s chronic orthopedic issues
overshadowed petitioner’s GBS residua.” Id. Consequently, Respondent submitted that “an
award of $130,000.00 for pain and suffering is just and fair compensation.” Id. at 11.
With respect to the cases that Petitioner cited, Respondent noted that none of them had
received the $200,000.00 amount requested in this case. Id. He identified distinguishing features
such as “more extensive treatment,” the “inability to work for months,” and “objective evidence
of ongoing neurologic deficits,” as evidence that “[P]etitioner’s reliance on these cases is
misplaced.” Id. at 13. Instead, Respondent cited a case where the petitioner had other relevant
chronic conditions and was able to “ambulate without assistance” seven months post-symptom
onset. Castellanos v. Sec’y of Health & Hum. Servs., No. 19-1710V, 2022 WL 1482497 (Fed. Cl.
Spec. Mstr. Mar. 30, 2022) (awarding $125,000.00 for actual pain and suffering). Respondent
cited a second case wherein the petitioner was hospitalized and following inpatient rehabilitation,
suffered from ambulation difficulties requiring a wheelchair or wheeled walker before improving
to “nearly full strength within three months of initial presentation.” Weil v. Sec’y of Health &
Hum. Servs., No. 21-831V, 2023 WL 1778281 (Fed. Cl. Spec. Mstr. Jan. 6, 2023) (awarding
$140,000.00 in actual pain and suffering).
V. Legal Standard
Compensation awarded pursuant to the Vaccine Act may include an award “[f]or actual
and projected pain and suffering and emotional distress from the vaccine-related injury, . . . not
to exceed $250,000.” § 15(a)(4). There is no precise 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) (“Awards 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) (“[T]he 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)).
A special master may also look to prior pain and suffering awards to aid in the resolution
of the appropriate amount of compensation for pain and suffering in each 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, a special master may rely on his or her own experience adjudicating similar claims.
Hodges v. Sec’y of Health & Hum. Servs., 9 F.3d 958, 961 (Fed. Cir. 1993) (noting that Congress
contemplated that special masters would use their accumulated expertise in the field of vaccine
injuries to judge the merits of individual claims). Importantly, however, it must also be stressed
that pain and suffering is not determined based on a continuum. See Graves v. Sec’y of Health &
Hum. Servs., 109 Fed. Cl. 579 (2013).
In Graves, Judge Merrow rejected the special master’s approach of awarding
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compensation for pain and suffering based on a spectrum from $0.00 to the statutory $250,000.00
cap, criticizing this as constituting “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, he found that pain and suffering
should be assessed 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, applying
the statutory cap only thereafter. Id. at 595.
VI. Compensation Factors
a. Awareness of Suffering
In this case, neither party has raised, and the record does not indicate that Petitioner’s
awareness of suffering is in dispute. Based on the evidence and circumstances of this case, I find
that Petitioner had full awareness of his suffering.
b. Severity and Duration of Pain and Suffering
Petitioner asserts that his injury is more severe than other Program cases, wherein the
petitioners received awards approximating $180,00.00. Regarding severity, during the course of
his treatment, Petitioner underwent a ten-day hospitalization, eight rounds of IVIG, and 18 days
of inpatient rehabilitation. This degree of acute treatment is certainly comparable to the cases that
Petitioner has identified. Respondent’s assertion that Petitioner never lost the ability to walk is a
technicality that ignores Petitioner’s need for forearm crutches to walk 300 feet one-month post
vaccination. Petitioner also presented unrebutted evidence that in 2019, he required wheelchair
assistance to navigate the airport. Petitioner also engaged in outpatient rehabilitation but
continues to struggle with gait issues and self-catharizes two to three times per day.
Despite Petitioner’s timely and comprehensive treatment, he was unable to do many
activities he previously enjoyed, because he ultimately lost much of his mobility and energy.
Respondent argues that Petitioner’s course was “somewhat less severe” when compared to other
cases that Petitioner identified. Resp’t’s Resp. at 10. Of note, Petitioner was similar in age at the
time of vaccination to these other petitioners. However, the nature of Petitioner’s career allowed
him to retire fairly young. It also required some degree of fitness, and Petitioner made substantial
life changes during his retirement geared toward active recreation. His pain and suffering should
not be mitigated, because he did not suffer from the “[in]ability to work for months.” Id. at 12.
That type of loss is best considered pursuant to lost wages. Instead, Petitioner lost the ability to
engage in the activities he had worked so hard to enjoy. This is an appropriate measure of pain
and suffering.
Respondent further argues that Petitioner’s relevant injury spanned a much shorter
timeframe because Petitioner’s continuing mobility issues are the result of pre-existing “chronic
orthopedic issues.” Id. at 10. Respondent also maintains that despite Petitioner’s claims of
wheelchair use, he “never lost the ability to walk.” Id. Respondent does not associate Petitioner’s
back and hip surgeries in 2019 with his GBS. This argument, however, is inconsistent with the
opinions of Petitioner’s treaters. In May 2019, Dr. Braun noted that Petitioner was mobile but had
a slow gait and had “gradually improved but [with] residual weakness after having [GBS] in
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November 2018.” Pet’r’s Ex. 8 at 5. Petitioner’s medical records consistently document mobility
issues and his gradual improvement, but continued complaints of difficulty balancing and walking.
Petitioner has presented preponderant evidence that any pre-existing condition that he has was
controlled and did not affect his mobility prior to his vaccination. His treaters noted a significant
worsening post vaccination, and there is preponderant evidence that Petitioner’s fall on January 8,
2019, was a direct result of his gait issues. Likewise, any surgeries or treatment required thereafter
to treat injuries resulting from the fall would also be directly related to his gait limitations, although
perhaps not singularly causal.
VII. Conclusion
Respondent is correct that Petitioner has not presented evidence consistent with some of
the most severe consequences of GBS. Due to the individual circumstances and facts of each
case, I have not relied on any single decision or used any other claim as the basis for an award
ceiling or floor. However, there is preponderant evidence that Petitioner has not experienced a
complete recovery, and his GBS will have lasting effects on his health. Petitioner has established
that his case is analogous to those that he has cited in his filings.
After a careful and comprehensive review of the facts of this case and in consideration of
all the arguments presented by both parties along with the relevant caselaw, I find that
$180,000.00 in compensation for pain and suffering is reasonable in this case. 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.3
IT IS SO ORDERED.
s/Herbrina D. S. Young
Herbrina D. S. Young
Special Master
3 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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