VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01166
Package ID: USCOURTS-cofc-1_20-vv-01166
Petitioner: Patricia Horton
Filed: 2020-09-09
Decided: 2022-05-04
Vaccine: influenza
Vaccination date: 2018-11-09
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 60372

AI-assisted case summary:
Patricia Horton filed a petition for compensation under the National Vaccine Injury Compensation Program on September 9, 2020, alleging a Shoulder Injury Related to Vaccine Administration (SIRVA) after receiving an influenza vaccine on November 9, 2018. She asserted that her injury met the Table definition for SIRVA. The respondent, Secretary of Health and Human Services, filed a Rule 4(c) report on September 15, 2021, conceding that Ms. Horton's alleged injury was consistent with SIRVA of the left arm and met the requirements of a Table injury claim. The respondent further agreed that Ms. Horton had satisfied all legal prerequisites for compensation. Chief Special Master Brian H. Corcoran issued a Ruling on Entitlement on September 15, 2021, finding Ms. Horton entitled to compensation. The parties were unable to resolve damages informally, leading to a Decision Awarding Damages issued by Chief Special Master Corcoran on May 4, 2022. Ms. Horton sought $90,000.00 for pain and suffering, while the respondent argued for $52,500.00. The parties agreed on $372.40 for past unreimbursed medical expenses. Ms. Horton's injury, which occurred at age 60, involved moderate SIRVA, treated with medication, a single cortisone injection, and eight physical therapy sessions over approximately eight months. Medical records indicated pain varying from three to eight on a ten-point scale and moderate limitations in range of motion initially, improving over the course of therapy. A cortisone injection in July 2019 appeared to alleviate her pain, and she sought no further treatment. The decision noted uncertainty regarding the exact cause of a complete rotator cuff tear found on MRI, but found this irrelevant to the SIRVA compensation as there was no evidence it was symptomatic prior to vaccination. Chief Special Master Corcoran found Ms. Horton's injury to be moderate and resolved after approximately eight months. Comparing her case to prior SIRVA decisions, particularly Dagen, Berberich, and Saha, the Special Master determined that Ms. Horton's pain and suffering award should align with the $60,000.00 awarded in Berberich and Saha. The final award totaled $60,372.40, consisting of $60,000.00 for pain and suffering and $372.40 for past unreimbursed expenses, to be paid as a lump sum. Petitioner was represented by Amy A. Senerth of Muller Brazil, LLP, and Respondent was represented by Zoe Wade of the U.S. Department of Justice.

Theory of causation field:
Petitioner Patricia Horton, age 60, received an influenza vaccine on November 9, 2018, and subsequently developed Shoulder Injury Related to Vaccine Administration (SIRVA). The respondent conceded that the injury was consistent with SIRVA and met the Table definition for compensation. The case proceeded to damages. Chief Special Master Brian H. Corcoran awarded $60,000.00 for pain and suffering and $372.40 for past unreimbursed expenses, totaling $60,372.40. The injury was characterized as moderate, resolving after approximately eight months with a cortisone injection and eight physical therapy sessions. The public decision does not detail the specific mechanism of injury or name any medical experts. The theory of causation relied on the Table definition for SIRVA, which was conceded by the respondent. Petitioner was represented by Amy A. Senerth, and Respondent by Zoe Wade.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_20-vv-01166-0
Date issued/filed: 2021-10-20
Pages: 2
Docket text: PUBLIC ORDER/RULING (Originally filed: 09/15/2021) regarding 16 Ruling on Entitlement Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
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Case 1:20-vv-01166-UNJ Document 18 Filed 10/20/21 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1166V
UNPUBLISHED
PATRICIA HORTON, Chief Special Master Corcoran
Petitioner, Filed: September 15, 2021
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Ruling on Entitlement; Concession;
HUMAN SERVICES, Table Injury; Influenza (Flu) Vaccine;
Shoulder Injury Related to Vaccine
Respondent. Administration (SIRVA)
Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Zoe Wade, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT1
On September 9, 2020, Patricia Horton 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”), which meets the Table definition for SIRVA, after receiving the
influenza vaccine on November 9, 2018. Petition at 1, ¶ 2. Petitioner further alleges she
received the vaccine in the United States, that she suffered the residual effects of her
SIRVA for more than six months, and that neither she nor any other party has filed a civil
action or received compensation for her SIRVA. Petition at ¶¶ 2, 11-13. The case was
assigned to the Special Processing Unit of the Office of Special Masters.
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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).

Case 1:20-vv-01166-UNJ Document 18 Filed 10/20/21 Page 2 of 2
On September 15, 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 [P]etitioner’s alleged injury is
consistent with SIRVA of the left arm and that it meets the requirements of a Table injury
claim for SIRVA stemming from the flu vaccination on November 9, 2018.” Id. at 3.
Respondent further agrees that “based on the record as it now stands, [P]etitioner has
satisfied all legal prerequisites for compensation under the Act.” Id. at 4.
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-01166-1
Date issued/filed: 2022-05-04
Pages: 10
Docket text: PUBLIC DECISION (Originally filed: 03/25/2022) regarding 32 DECISION of Special Master Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
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Case 1:20-vv-01166-UNJ Document 36 Filed 05/04/22 Page 1 of 10
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1166V
UNPUBLISHED
PATRICIA HORTON, Chief Special Master Corcoran
Petitioner, Filed: March 25, 2022
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Decision Awarding Damages; Pain
HUMAN SERVICES, and Suffering; Influenza (Flu)
Vaccine; Shoulder Injury Related to
Respondent. Vaccine Administration (SIRVA)
Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Zoe Wade, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On September 9, 2020, Patricia Horton 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”), which meets the Table definition for SIRVA, after receiving the
influenza vaccine on November 9, 2018. Petition at 1, ¶ 2. The case was assigned to the
Special Processing Unit of the Office of Special Masters. Although a ruling on entitlement
in Petitioner’s favor was issued in September 2021, the parties have been unable to
resolve damages on their own.
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-01166-UNJ Document 36 Filed 05/04/22 Page 2 of 10
For the reasons described below, I find that Petitioner is entitled to an award of
damages in the amount $60,372.40, representing compensation in the amounts of
$60,000.00 for actual pain and suffering and $372.40 for past unreimbursed
expenses.
I. Relevant Procedural History
Along with the Petition, Ms. Horton filed the medical records and affidavit required
under the Vaccine Act. Exhibits 1-10, filed Sept. 9, 2020, ECF No. 1; see Section 11(c).
On March 4, 2021, Respondent indicated that he had identified no outstanding medical
records or factual issues which could be addressed while awaiting the HHS review. ECF
No. 12. Petitioner forwarded her demand and supporting documentation to Respondent
on June 15, 2021. ECF No. 14.
On September 15, 2021, Respondent filed his Rule 4(c) Report conceding
Petitioner was entitled to compensation, and I issued a Ruling on Entitlement the same
day. ECF Nos. 15-16. For approximately four months thereafter, the parties attempted to
informally resolve the issue of damages. See, e.g., Status Report, filed Nov. 21, 2021,
ECF No. 20. On December 21, 2021, they informed me that Petitioner had rejected
Respondent’s proffer. ECF No. 21.
During the subsequent three-month period, Petitioner filed declarations from her
family, work supervisor, friends and herself. Exhibits 11-16, ECF Nos. 22-24, 26-28.3 On
February 22-23, 2022, the parties filed their briefs regarding the appropriate amount of
damages, and Petitioner provided a list of her unreimbursed medical expenses. ECF Nos.
29-30; Exhibit 17, ECF No. 31. Neither party filed a responsive brief by the March 17,
2022 deadline. The matter is now ripe for adjudication.
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 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
3 All declarations indicated the signatories understood the statement would be filed into the record of
Petitioner’s vaccine claim. Exhibits 11-16. However, they were not signed under penalty of perjury as
required by 28 U.S.C.A. § 1746. Id.
2

Case 1:20-vv-01166-UNJ Document 36 Filed 05/04/22 Page 3 of 10
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
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.4 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. In Graves, Judge Merow rejected a special master’s approach of awarding
compensation for pain and suffering based on a spectrum from $0.00 to the statutory
$250,000.00 cap. Graves v. Sec’y of Health & Hum. Servs., 109 Fed. Cl. 579 (Fed. Cl.
2013). Judge Merow maintained that 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.” Id. at 590. Instead, Judge Merow
assessed pain and suffering by looking to the record evidence, prior pain and suffering
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.
3

Case 1:20-vv-01166-UNJ Document 36 Filed 05/04/22 Page 4 of 10
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.
III. Prior SIRVA Compensation Within SPU5
A. Data Regarding Compensation in SPU SIRVA Cases
SIRVA cases have an extensive history of informal resolution within the SPU. As
of January 1, 2022, 2,371 SPU SIRVA cases have resolved since the inception of SPU
on July 1, 2014. Compensation was awarded in 2,306 of these cases, with the remaining
65 cases dismissed.
Of the compensated cases, 1,339 SPU SIRVA cases involved a prior ruling that
petitioner was entitled to compensation. In only 88 of these cases was the amount of
damages determined by a special master in a reasoned decision. As I have previously
stated, the written decisions setting forth such determinations, prepared by neutral judicial
officers (the special masters themselves), provide the most reliable precedent setting
forth what similarly-situated claimants should also receive.6
1,223 of this subset of post-entitlement determination, compensation-awarding
cases, were the product of informal settlement - cases via proffer and 28 cases via
stipulation. Although all proposed amounts denote an agreement reached by the parties,
those presented by stipulation derive more from compromise than any formal agreement
or acknowledgment by Respondent that the settlement sum itself is a fair measure of
damages. Of course, even though any such informally-resolved case must still be
approved by a special master, these determinations do not provide the same judicial
guidance or insight obtained from a reasoned decision. But given the aggregate number
of such cases, these determinations nevertheless “provide some evidence of the kinds of
awards received overall in comparable cases.” Sakovits, 2020 WL 3729420, at *4
(emphasis in original).
5 All figures included in this decision are derived from a review of the decisions awarding compensation
within the SPU. All decisions reviewed are, or will be, available publicly. All figures and calculations cited
are approximate.
6 See, e.g., Sakovits v. Sec’y of Health & Hum. Servs., No. 17-1028V, 2020 WL 3729420, at *4 (Fed. Cl.
Spec. Mstr. June 4, 2020) (discussing the difference between cases in which damages are agreed upon by
the parties and cases in which damages are determined by a special master).
4

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The remaining 967 compensated SIRVA cases were resolved via stipulated
agreement of the parties without a prior ruling on entitlement. These agreements are often
described as “litigative risk” settlements, and thus represent a reduced percentage of the
compensation which otherwise would be awarded. Due to the complexity of these
settlement discussions, many which involve multiple competing factors, these awards do
not constitute a reliable gauge of the appropriate amount of compensation to be awarded
in other SPU SIRVA cases.
The data for all groups described above reflect the expected differences in
outcome, summarized as follows:
Damages Proffered Stipulated Stipulated7
Decisions by Damages Damages Agreement
Special Master
Total Cases 88 1,223 28 967
Lowest $40,757.91 $25,000.00 $45,000.00 $5,000.00
1st Quartile $70,950.73 $70,000.00 $90,000.00 $42,500.00
Median $95,974.09 $90,000.00 $122,886.42 $60,390.00
3rd Quartile $125,269.46 $116,662.57 $161,001.79 $88,051.88
Largest $265,034.87 $1,845,047.00 $1,500,000.00 $550,000.00
B. Pain and Suffering Awards in Reasoned Decisions
In the 88 SPU SIRVA cases which required a reasoned damages decision,
compensation for a petitioner’s actual or past pain and suffering varied from $40,000.00
to $210,000.00, with $94,000.00 as the median amount. Only five of these cases involved
an award for future pain and suffering, with yearly awards ranging from $250.00 to
$1,500.00.8
In cases with lower awards for past pain and suffering, many petitioners commonly
demonstrated only mild to moderate levels of pain throughout their injury course. This
lack of significant pain is often evidenced by a delay in seeking treatment – over six
months in one case. In cases with more significant initial pain, petitioners experienced
this greater pain for three months or less. All petitioners displayed only mild to moderate
limitations in range of motion (“ROM”), and MRI imaging showed evidence of mild to
moderate pathologies such as tendinosis, bursitis, or edema. Many petitioners suffered
7 Two awards were for an annuity only, the exact amounts which were not determined at the time of
judgment.
8 Additionally, a first-year future pain and suffering award of $10,000.00 was made in one case. Dhanoa v.
Sec’y of Health & Hum. Servs., No. 15-1011V, 2018 WL 1221922 (Fed. Cl. Spec. Mstr. Feb. 1, 2018).
5

Case 1:20-vv-01166-UNJ Document 36 Filed 05/04/22 Page 6 of 10
from unrelated conditions to which a portion of their pain and suffering could be attributed.
These SIRVAs usually resolved after one to two cortisone injections and two months or
less of physical therapy (“PT”). None required surgery. The duration of the injury ranged
from six to 30 months, with most petitioners averaging approximately nine months of pain.
Although some petitioners asserted residual pain, the prognosis in these cases was
positive. Only one petitioner provided evidence of an ongoing SIRVA, and it was expected
to resolve within the subsequent year.
Cases with higher awards for past pain and suffering involved petitioners who
suffered more significant levels of pain and SIRVAs of longer duration. Most of these
petitioners subjectively rated their pain within the upper half of a ten-point pain scale and
sought treatment of their SIRVAs more immediately, often within 30 days of vaccination.
All experienced moderate to severe limitations in range of motion. MRI imaging showed
more significant findings, with the majority showing evidence of partial tearing. Surgery or
significant conservative treatment, up to 95 PT sessions over a duration of more than two
years and multiple cortisone injections, was required in these cases. In four cases,
petitioners provided sufficient evidence of permanent injuries to warrant yearly
compensation for future or projected pain and suffering.
IV. Appropriate Compensation for Petitioner’s Pain and Suffering
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 her injury. Therefore, I analyze principally the severity and duration of
Petitioner’s injury.
In performing this analysis, I have reviewed the record as a whole, including all
medical records, declarations, affidavits, and all other filed evidence, plus the parties’
briefs and other pleadings. I also have taken into account prior awards for pain and
suffering in both SPU and non-SPU SIRVA cases, and rely upon my experience
adjudicating these cases. However, I base my ultimate determination on the specific
circumstances of this case.
A. The Parties’ Arguments
The parties agree Petitioner should be awarded $372.40 for past unreimbursed
medical expenses. Petitioner’s Brief in Support of a Damages Decision (“Brief”) at 1, 10,
ECF No. 30; Respondent’s Brief on Damages (“Opp.”) at 1, 7, ECF No. 29. Thus, the only
area of disagreement is regarding the amount of compensation which should be awarded
for Petitioner’s pain and suffering. Petitioner seeks $90,000.00 for her pain and suffering,
and Respondent argues for an award of $52,500.00. Id.
6

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The parties further agree that Petitioner’s SIRVA lasted approximately eight
months and required treatment consisting of medication, a single steroid injection, and
eight physical therapy PT sessions. Brief at 8; Opp. at 1. However, in briefing, Petitioner
characterized her injury as severe (Brief at 8), while Respondent described it as “a
relatively minor SIRVA injury” (Opp. at 3).
When arguing for the greater award she seeks, Petitioner emphasized that her
shoulder pain prompted her to seek treatment within twelve days9 of vaccination, caused
her orthopedist to propose surgery as a potential treatment option, and interfered with her
abilities to play tennis and basketball and to fulfill her duties as a tennis assistant.10 Brief
at 8-9. The declarations Petitioner provided, from herself and others, detailed limitations
and difficulties she experienced from vaccination through the spring of 2019.11 All
declarants represented that Petitioner continues to experience some milder symptoms of
her injury.12
Petitioner compared the facts and circumstances in her case favorably with the
experiences of the petitioner in Marino, who received $75,000.00 for her past pain and
suffering.13 Brief at 5-7. Specifically, she asserted that her difficulties playing tennis and
working equate to those suffered by the Marino petitioner, but maintained that her award
should be greater due to the delayed and lower amount of treatment pursued by the
Marino petitioner. Id. at 7; see Marino, 2018 WL 2224736, at *7-9.
Respondent, by contrast, accentuated the improvement in pain levels and limited
ROM Petitioner exhibited by her last PT session in late April 2019, her ability to work
throughout her injury and to resume her full duties thereafter, and the uncertainty
expressed in some medical records regarding the etiology of her complete rotator cuff
tear. Opp. at 4-5, 5 n.2. As a comparison, he proposed that the facts and circumstances
9 Although Petitioner describes the time between vaccination and the initial treatment of her SIRVA injury
as twelve days, the medical records reveal it was fourteen days. Exhibit 2 at 62-78.
10 There is evidence in the medical records that Petitioner may also work as a dental hygienist. E.g., Exhibit
3 at 17. Whether this information is accurate is unclear.
11 Exhibit 11 at ¶ 2 (statement from Petitioner’s daughter); Exhibit 12 at ¶ 2 (statement from Petitioner’s
work supervisor); Exhibit 13 at ¶¶ 1-7 (statement from a male family member or possibly Petitioner’s ex-
husband); Exhibit 14 at ¶¶ 4, 9-10, 12 (statement from Petitioner); Exhibit 15 at ¶¶ 3-4 (statement from
Petitioner’s friend); Exhibit 16 at ¶¶ 4-6 (statement from Petitioner’s friend).
12 Exhibit 11 at ¶ 3; Exhibit 12 at ¶ 3; Exhibit 13 at ¶ 8; Exhibit 14 at ¶¶ 5-6, 11; Exhibit 15 at ¶ 5; Exhibit 16
at ¶ 8.
13 Marino v. Sec’y of Health & Hum. Servs., No.16-0622V, 2018 WL 2224736 (Fed. Cl. Spec. Mstr. Mar.
26, 2018) (awarding $75,000.00 for actual pain and suffering).
7

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experienced by the Dagen petitioner, who received the lesser sum of $65,000.00 for her
pain and suffering, provide a better comparison.14 Opp. at 5-7. However, he maintained
that Petitioner’s award should be even less than that awarded to the Dagen petitioner. Id.
at 7. To support this assertion, Respondent cited the greater severity of the Dagen
petitioner’s pain and limited ROM, the initial worsening then slow improvement of her
condition - including the fleeting relief the Dagen petitioner obtained from the cortisone
injection she received, the greater certainty involving the causal link between the Dagen
petitioner’s vaccination and SIRVA injury, and the Dagen petitioner’s younger age and
more difficult circumstances - raising a school age child. Id. at 6-7; see Dagen, 2019 WL
7187335, at *9.
B. Analysis
A thorough review of the medical records reveals that Ms. Horton, who was 60
years old at the time of vaccination, suffered a moderate SIRVA injury which improved
during eight PT sessions over a four-month period and resolved after a cortisone injection
approximately eight months post-vaccination. At her initial PT session on January 9,
2019, Petitioner described pain which varied from three to eight on a scale of ten and
exhibited moderate limitations in her ROM. Exhibit 4 at 1. By her fourth PT session on
February 1, 2019, Petitioner reported improved motion and pain which “[wa]sn’t as bad.”
Id. at 9. Approximately three weeks later, she indicated that her motion had appeared to
plateau, but she was “[s]o much better than she was a month ago.” Id. at 13. At her last
two PT sessions on March 25 and April 22, 2019, Petitioner complained primarily of pain.
Id. at 15, 17. On April 22, she reported that her “[m]otion [is] really doing pretty well but
[it] still hurts when she gets up in the morning.” Id. at 17. She was discharged from PT on
May 20, 2019. Id. at 22.
When discussing the results of a recent MRI during an orthopedic appointment on
June 14, 2019 (Exhibit 3 at 11), Petitioner initially declined a cortisone injection, but
consented to and was administered a cortisone injection when she returned to the
orthopedist on July 22, 2019 (id. at 8). It appears that the injection successfully alleviated
Petitioner’s pain as she did not seek further treatment.
Respondent argues that Petitioner’s pain and suffering award should be less than
requested because the etiology of her complete rotator cuff tear was unclear. However,
there is no evidence to suggest that the tear was symptomatic prior to Petitioner’s receipt
of the flu vaccine. As I have previously discussed, many SIRVA injuries involve patients
with “prior conditions such as rotator cuff tears which became symptomatic following
improper vaccine injection.” Lesher v. Sec’y of Health & Hum. Servs., No. 17-1076V, 2020
14 Dagen v. Sec’y Health & Hum. Servs., No. 18-0442V, 2019 WL 7187335 (Fed. Cl. Spec. Mstr. Nov. 6,
2019) (awarding $65,000.00 for actual pain and suffering).
8

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WL 4522381, at *12 (Fed. Cl. Spec. Mstr. July 2, 2020) (citing S. Atanasoff et al., Shoulder
injury related to vaccine administration (SIRVA), 28 Vaccine 8049 (2010)). Thus, I do not
find the uncertainty regarding the exact cause of the rotator cuff tear to be relevant when
computing the amount to be awarded for pain and suffering clearly attributable to
Petitioner’s SIRVA injury. As discussed below, it is relevant when determining if the
current pain Petitioner maintains she is suffering is related to her injury.
I otherwise find Respondent’s characterization of Petitioner’s injury to be accurate.
And the case he provides – Dagen – offers a compelling and helpful comparison when
determining the appropriate pain and suffering award. Like the Petitioner in this case, the
Dagen petitioner suffered a SIRVA injury which prompted her to seek treatment within
two weeks of vaccination and which resolved within seven months after a cortisone
injection and two rounds of PT - totaling 16 individual sessions and spanning 1.5 months
for each round. However, the Dagen petitioner suffered worsening pain after one month
of PT, experienced only four days of pain relief following her cortisone injection, and
reported only 80 percent improvement at seven months post-vaccination. Dagen, 2019
WL 7187335, at *9. Thus, Petitioner’s pain and suffering award should be slightly lower
than that granted the Dagen petitioner.
I do not find the case proposed by Petitioner to be a helpful comparison. Although
arguably less severe than the SIRVA Petitioner suffered, the Marino petitioner’s SIRVA
lasted approximately 29 months – between three to four times longer than Petitioner’s
SIRVA. In her brief, Petitioner fails to address this substantial difference, and I find the
difference in duration renders the comparison ineffective.
Petitioner otherwise argues that she continues to suffer mild pain and weakness
in her left shoulder, and has provided statements from family members and friends
supporting her assertion. See supra note 12. However, she acknowledges in her brief
that the duration of her SIRVA injury was approximately eight months. Brief at 8. And she
has failed to provide medical records or other persuasive evidence linking these current
symptoms to her earlier SIRVA injury. The declarations, for example, lack vital information
regarding the timing of the later symptoms described. In fact, the witness statements tend
to reinforce the conclusion that Petitioner’s symptoms had greatly improved throughout
the spring and summer of 2019. See, e.g., Exhibit 15 at 4 (indicating Petitioner joined a
gym with her friend in spring 2019); Exhibit 16 at 7 (describing Petitioner’s ability to play
basketball and stating that “[i]t wasn’t until June of 2019 that Patti was able to perform at
her usually level of play”). Furthermore, the complete rotator cuff tear previously viewed
on Petitioner’s MRI - which never repaired, and was characterized as having an unknown
etiology by her orthopedist - provides a credible explanation for any current pain that was
not persuasively distinguished by Petitioner.
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Case 1:20-vv-01166-UNJ Document 36 Filed 05/04/22 Page 10 of 10
After reviewing other comparable cases, I find the facts and circumstances of
Petitioner’s case best align with those suffered by the petitioners in Berberich and Saha,
who received pain and suffering awards of $60,000.00.15 These petitioners suffered
moderate SIRVAs which improved after two to three months and then resolved within
seven to eleven months – after less PT than Petitioner experienced, but featuring more
cortisone injections. Berberich, 2021 WL 4823551, at *7-8; Saha, 2021 WL 3028060, at
*1. I thus find that Petitioner should receive the same pain and suffering award of
$60,000.00.
V. Conclusion
For all of the reasons discussed above and based on consideration of the record
as a whole, I find that $60,00.00 represents a fair and appropriate amount of
compensation for Petitioner’s actual pain and suffering.16 I also find that Petitioner
is entitled to $372.40 in actual unreimbursable expenses.
Based on the record as a whole and arguments of the parties, I award a lump
sum payment of $60,372.40 in the form of a check payable to Petitioner. This amount
represents compensation for all damages that would be available under Section 15(a).
The Clerk of the Court is directed to enter judgment in accordance with this
Decision.17
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
15 Berberich v. Sec’y Health & Hum. Servs., No. 20-0010V, 2021 WL 4823551 (Fed. Cl. Spec. Mstr. Sept.
14, 2021) (awarding $60,000.00 for actual pain and suffering); Saha v. Sec’y Health & Hum. Servs., No.
20-0178V, 2021 WL 3028060 (Fed. Cl. Spec. Mstr. June 17, 2021) (awarding $60,000.00 for actual pain
and suffering).
16 Since this amount is being awarded for actual, rather than projected, pain and suffering, no reduction to
net present value is required. See Section 15(f)(4)(A); Childers v. Sec’y of Health & Hum. Servs., No. 96-
0194V, 1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health &
Hum. Servs., 32 F.3d 552 (Fed. Cir. 1994)).
17 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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