Elizabeth Merwitz v. HHS - Influenza, right shoulder injury related to vaccine administration (SIRVA) (2022)
Case summary [AI summaries can sometimes make mistakes]
Elizabeth Merwitz filed a petition for compensation under the National Vaccine Injury Compensation Program on September 3, 2020, alleging she suffered a right shoulder injury related to vaccine administration (SIRVA) after receiving an influenza vaccine on December 27, 2018. The case was assigned to the Special Processing Unit.
Respondent initially contested entitlement, arguing that the onset of pain was not within 48 hours and that range of motion was not limited. The Special Master, Brian H.
Corcoran, found that Petitioner was entitled to compensation. Petitioner's counsel was Amy A.
Senerth of Muller Brazil, LLP, and Respondent's counsel was Christine Mary Becer of the U.S. Department of Justice.
The Special Master determined that Petitioner satisfied the criteria for a Table SIRVA injury, including pain onset within 48 hours of vaccination and some mild limitations in range of motion, even though she delayed seeking treatment for three months. Causation was presumed because the injury was a Table injury.
The case proceeded to damages. Petitioner sought $75,000 for pain and suffering, citing cases with awards ranging from $60,000 to $70,000.
Respondent recommended $32,500. The Special Master considered the duration and severity of the injury, noting it lasted approximately eight months with mild to moderate pain and some range of motion limitations.
The injury involved tendinitis and mild to moderate subacromial and subdeltoid bursitis, with an MRI showing no joint effusion or rotator cuff tear. Petitioner received a steroid injection, took Meloxicam, and attended physical therapy.
Comparing the case to prior awards, particularly the Rayborn case where $55,000 was awarded, the Special Master awarded Ms. Merwitz $50,000 for pain and suffering on November 14, 2022.
This award was a lump sum payment, and since it was for actual pain and suffering, no reduction to net present value was required. The Special Master directed the Clerk of the Court to enter judgment.
Theory of causation
Petitioner Elizabeth Merwitz, age 31, received an influenza vaccine on December 27, 2018, and subsequently developed a right shoulder injury related to vaccine administration (SIRVA). The petition was filed on September 3, 2020. Respondent contested entitlement, arguing that Petitioner failed to establish pain onset within 48 hours and demonstrated no limitations in range of motion (ROM). The Special Master, Brian H. Corcoran, found that Petitioner satisfied the criteria for a Table SIRVA injury. Medical records indicated Petitioner reported immediate sharp pain after the flu shot and that the pain never went away, supporting onset within 48 hours, despite a three-month delay in seeking treatment. While initial exams showed full ROM, subsequent physical therapy evaluations from May to June 2019 showed mild limitations in active ROM (e.g., 160 degrees of flexion), with a physical therapy goal to return full ROM. The Special Master found this mild limitation sufficient to meet the Table criteria. No other condition or abnormality explained the symptoms. Causation was presumed as SIRVA is a Table injury. The injury lasted approximately eight months, from late December 2018 to early August 2019, with mild to moderate pain. Petitioner sought $75,000 for pain and suffering, while Respondent recommended $32,500. The Special Master awarded $50,000 for pain and suffering, comparing the case to prior awards, particularly Rayborn, which involved a similar duration of injury and age of petitioner, though Rayborn had more significant ROM limitations. The award was issued on November 14, 2022. Attorneys for Petitioner were Amy A. Senerth and for Respondent was Christine Mary Becer.
Source PDFs
USCOURTS-cofc-1_20-vv-01141