VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01905 Package ID: USCOURTS-cofc-1_20-vv-01905 Petitioner: Linda Timberlake Filed: 2020-12-18 Decided: 2025-03-24 Vaccine: influenza Vaccination date: 2019-09-05 Condition: left shoulder injury related to vaccine administration (SIRVA) Outcome: compensated Award amount USD: 108607.1 AI-assisted case summary: On December 18, 2020, Linda Timberlake filed a petition alleging that an influenza vaccine administered on September 5, 2019 caused a left shoulder injury related to vaccine administration. She was identified as a competent adult petitioner. Ms. Timberlake delayed formal medical care for more than two months, but the entitlement record accepted that shoulder pain began within forty-eight hours. On November 14, 2019, her primary care provider noted tenderness and pain, and later orthopedic care documented continued throbbing pain. A February 2020 MRI showed no full-thickness tear but did show tendinosis, adhesive capsulitis findings, degenerative AC joint change, and a small infraspinatus tear. On March 24, 2020, she underwent arthroscopic debridement, decompression/acromioplasty, rotator cuff repair, and distal clavicle excision, followed by physical therapy and improvement by that summer. Chief Special Master Brian H. Corcoran found entitlement on April 23, 2024. The damages decision considered both vaccine-related SIRVA and non-vaccine degenerative shoulder pathology. On March 24, 2025, the Chief Special Master awarded $108,607.10, consisting of $107,000.00 for actual pain and suffering and $1,607.10 for actual unreimbursable expenses. Theory of causation field: Influenza vaccine September 5, 2019 causing left SIRVA; adult exact age not stated. COMPENSATED. Pain onset accepted within 48 hours despite first care >2 months later. Key evidence: November 14, 2019 tenderness/pain; January 2020 orthopedic complaints; February 2020 MRI with tendinosis/adhesive capsulitis/degenerative changes/small tear; March 24, 2020 arthroscopic surgery and PT. Entitlement April 23, 2024; damages March 24, 2025. Award $108,607.10 = $107,000.00 pain/suffering + $1,607.10 expenses. CSM Corcoran. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_20-vv-01905-0 Date issued/filed: 2024-05-24 Pages: 11 Docket text: PUBLIC ORDER/RULING (Originally filed: 04/23/2024) regarding 34 Ruling on Entitlement, Signed by Chief Special Master Brian H. Corcoran. (ppa) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01905-UNJ Document 36 Filed 05/24/24 Page 1 of 11 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1905V LINDA TIMBERLAKE, Chief Special Master Corcoran Petitioner, v. Filed: April 23, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for Petitioner. Meghan Murphy, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT1 On December 18, 2020, Linda Timberlake 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 left shoulder injury related to vaccine administration (“SIRVA”), a defined Table Injury, after receiving an influenza (“flu”) vaccine on September 5, 2019. Petition at 1, ¶ 2. The parties dispute Petitioner’s success in establishing the pain onset needed for a Table SIRVA. For the reasons discussed below, I find that the onset of Petitioner’s left 1 Because this Ruling contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, 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 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 (2018). Case 1:20-vv-01905-UNJ Document 36 Filed 05/24/24 Page 2 of 11 shoulder pain occurred within 48 hours of vaccination, and she has satisfied the other requirements of a compensable Table SIRVA injury. Petitioner is thus entitled to compensation under the Vaccine Act. I. Relevant Procedural History Along with the Petition, Ms. Timberlake filed some of the medical records required under the Vaccine Act. Exhibits 1-5, filed Dec. 18, 2020, ECF No. 1. Over the subsequent five-month period, she filed the remaining medical records and a signed statement.3 Exhibits 6-7, filed Jan. 27, 2021, ECF No. 8; Exhibit 8, filed May 10, 2021, ECF No. 9. On September 14, 2021, the case was activated and assigned to the “Special Processing Unit” (OSM’s adjudicatory system for resolution of cases deemed likely to settle). ECF No. 12. On October 20, 2022, Respondent stated he was willing to engage in settlement discussions. ECF No. 20. Over the subsequent eight-month period, the parties attempted to reach an informal resolution, but ultimately could not do so, and therefore I set a deadline for Respondent’s Rule 4(c) Report. Status Report, filed Aug. 2, 2023, ECF No. 30. On October 23, 2023, Respondent filed his Rule 4(c) Report, opposing compensation in this case. ECF No. 33. Emphasizing the over two-month delay before Petitioner sought treatment for her left shoulder pain, Respondent insists “the contemporaneous medical records do not demonstrate that there is preponderant evidence of onset of pain within 48 hours of vaccination.” Id. at 5. Respondent raises no other issue and asks that I “find that this case is not appropriate for compensation under the Vaccine Act.” Id. at 6. II. Finding of Fact Regarding Onset At issue is whether Petitioner’s first symptom or manifestation of onset after vaccine administration (specifically pain) occurred within 48 hours as set forth in the Vaccine Injury Table and Qualifications and Aids to Interpretation (“QAI”) for a Table SIRVA. 42 C.F.R. § 100.3(a) XIV.B. (influenza vaccination); 42 C.F.R. § 100.3(c)(10)(ii) (required onset for pain listed in the QAI). 3 Petitioner’s statement was not signed under penalty of perjury as required by 28 U.S.C.A. § 1746. Exhibit 8. 2 Case 1:20-vv-01905-UNJ Document 36 Filed 05/24/24 Page 3 of 11 A. Authority Pursuant to Vaccine Act Section 13(a)(1)(A), a petitioner must prove, by a preponderance of the evidence, the matters required in the petition by Vaccine Act Section 11(c)(1). A special master must consider, but is not bound by, any diagnosis, conclusion, judgment, test result, report, or summary concerning the nature, causation, and aggravation of petitioner’s injury or illness that is contained in a medical record. Section 13(b)(1). “Medical records, in general, warrant consideration as trustworthy evidence. The records contain information supplied to or by health professionals to facilitate diagnosis and treatment of medical conditions. With proper treatment hanging in the balance, accuracy has an extra premium. These records are also generally contemporaneous to the medical events.” Cucuras v. Sec’y of Health & Hum. Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993). Accordingly, where medical records are clear, consistent, and complete, they should be afforded substantial weight. Lowrie v. Sec’y of Health & Hum. Servs., No. 03- 1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, this rule does not always apply. “Written records which are, themselves, inconsistent, should be accorded less deference than those which are internally consistent.” Murphy v. Sec’y of Health & Hum. Servs., No. 90-882V, 1991 WL 74931, *4 (Fed. Cl. Spec. Mstr. April 25, 1991), quoted with approval in decision denying review, 23 Cl. Ct. 726, 733 (1991), aff'd per curiam, 968 F.2d 1226 (Fed.Cir.1992)). And the Federal Circuit recently “reject[ed] as incorrect the presumption that medical records are accurate and complete as to all the patient’s physical conditions.” Kirby v. Sec’y of Health & Hum. Servs., 997 F.3d 1378, 1383 (Fed. Cir. 2021). The United States Court of Federal Claims has outlined four possible explanations for inconsistencies between contemporaneously created medical records and later testimony: (1) a person’s failure to recount to the medical professional everything that happened during the relevant time period; (2) the medical professional’s failure to document everything reported to her or him; (3) a person’s faulty recollection of the events when presenting testimony; or (4) a person’s purposeful recounting of symptoms that did not exist. La Londe v. Sec’y of Health & Hum. Servs., 110 Fed. Cl. 184, 203-04 (2013), aff’d, 746 F.3d 1335 (Fed. Cir. 2014). The Court has also said that medical records may be outweighed by testimony that is given later in time that is “consistent, clear, cogent, and compelling.” Camery v. Sec’y of Health & Hum. Servs., 42 Fed. Cl. 381, 391 (1998) (citing Blutstein v. Sec’y of Health & Hum. Servs., No. 90-2808, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998). The credibility of the individual offering such fact testimony must also be determined. 3 Case 1:20-vv-01905-UNJ Document 36 Filed 05/24/24 Page 4 of 11 Andreu v. Sec’y of Health & Hum. Servs., 569 F.3d 1367, 1379 (Fed. Cir. 2009); Bradley v. Sec’y of Health & Hum. Servs., 991 F.2d 1570, 1575 (Fed. Cir. 1993). A special master may find that the first symptom or manifestation of onset of an injury occurred “within the time period described in the Vaccine Injury Table even though the occurrence of such symptom or manifestation was not recorded or was incorrectly recorded as having occurred outside such period.” Section 13(b)(2). “Such a finding may be made only upon demonstration by a preponderance of the evidence that the onset [of the injury] . . . did in fact occur within the time period described in the Vaccine Injury Table.” Id. The special master is obligated to fully consider and compare the medical records, testimony, and all other “relevant and reliable evidence contained in the record.” La Londe, 110 Fed. Cl. at 204 (citing Section 12(d)(3); Vaccine Rule 8); see also Burns v. Sec’y of Health & Hum. Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (holding that it is within the special master’s discretion to determine whether to afford greater weight to medical records or to other evidence, such as oral testimony surrounding the events in question that was given at a later date, provided that such determination is rational). B. Analysis I make the onset finding after a complete review of the record to include all medical records, affidavits or declarations, and additional evidence filed. Specifically, I base the findings on the following evidence: • Prior to vaccination, Petitioner suffered from type 2 diabetes, high blood pressure, high cholesterol, arthritis, and common illnesses. Exhibit 1 at 6; Exhibit 5; Exhibit 7 at 7-52. • On September 5, 2019, Petitioner received the flu vaccine intramuscularly in her left deltoid at an appointment with her endocrinologist for treatment of her diabetes. Exhibit 1 at 5; Exhibit 6 at 4. • Approximately two months later (on November 8, 2019), Petitioner visited her primary care provider (“PCP”), complaining of constant pain which worsened with movement since receiving a flu vaccine at her September 5th endocrinology appointment. Exhibit 7 at 53. Upon examination, she exhibited tenderness and pain but normal range of motion (“ROM”). Id. at 55. Her PCP diagnosed her with acute left shoulder pain, prescribed 4 Case 1:20-vv-01905-UNJ Document 36 Filed 05/24/24 Page 5 of 11 Naproxen,4 and referred her to occupational/physical therapy (“OT/PT”). Id. at 56. He stressed that Petitioner should return if her pain continued. Id. • On November 20, 2019, Petitioner attended her first OT session for “left shoulder and upper arm pain [that] began after getting a flu shot at her doctors [sic] office.” Exhibit 2 at 5. Reporting that her pain had not decreased and “[wa]s now interfering with reaching, lifting, and sleeping” (id.), Petitioner was assessed as exhibiting decreased strength and ROM and increased pain and edema (id. at 7). It was recommended that she attend additional OT sessions. Id. at 8. • The next day, on November 21, 2019, Petitioner visited her PCP for a pap smear. Exhibit 7 at 60. There is no mention of her left shoulder pain in the record from this visit. Id. at 60-65. • Petitioner’s condition improved while attending four more OT sessions and performing home exercises during December. Exhibit 2 at 9-41. By December 12, 2019, she demonstrated an increased ROM and less pain. Id. at 36. However, additional OT was recommended. Id. at 36-37. • On December 19, 2019, Petitioner returned to her PCP, for treatment of her diabetes and left shoulder pain. Exhibit 7 at 69. Again, it was noted that her left shoulder pain began after her flu vaccine on September 5, 2019. Id. at this visit, Petitioner was observed as having pain, tenderness, and decreased ROM and strength. Id. at 71. She was prescribed prednisone and referred to an orthopedic surgeon. Id. at 72. • When Petitioner presented to the orthopedist on January 2, 2020, she reported improvement with PT, but also was experiencing continued constant, throbbing, and aching pain that radiated down her upper arm to her elbow. Exhibit 3 at 7. Although Petitioner’s inflammation had improved after taking the prescribed prednisone, her discomfort continued. Id. • At this orthopedic visit, Petitioner again described her pain as beginning after her flu vaccine. Id. at 7, 10. Although she identified the date of vaccination (September 5, 2019) as the symptom onset date, one entry specifies that her left shoulder pain started the day after vaccination. Compare id. at 10 with id. at 7. 4 Naproxen is “a nonsteroidal anti-inflammatory drug that is . . . used to treat pain, inflammation, osteoarthritis, rheumatoid arthritis,” and other conditions. DORLAND’S ILLUSTRATED MEDICAL DICTIONARY (“DORLAND’S”) at 1232 (32th ed. 2012). 5 Case 1:20-vv-01905-UNJ Document 36 Filed 05/24/24 Page 6 of 11 • X-rays taken that day revealed a “[w]ell-maintained glenohumeral space with small inferior humeral osteophyte [and] AC arthritis with a superior bone spurs [sic].” Id. at 9. And the orthopedist observed some tenderness and mild limitations in ROM, but normal strength. Id. at 8. • Stating that the examination findings were “suggestive of impingement/bursitis,” the orthopedist expressed hesitancy to administer a cortisone injection so soon after Petitioner completed her course of steroids. Exhibit 7 at 9. He instructed Petitioner to continue PT and resume taking Naproxen for her pain, adding that he would recommend an ultrasound (to check for a swollen subacromial bursa) or MRI (to check for internal derangement) if Petitioner’s symptoms continued. Id. He opined that the latter condition was “low” on his list of differential diagnoses. Id. • In January 2020, Petitioner attended four additional OT sessions. Exhibit 2 at 42-69. At the last of these sessions, on January 30, 2020, Petitioner recalled “2 incidents causing increased left shoulder pain over the last week” – when she pulled herself in a van using her left arm and when she moved suddenly when splattered by grease while frying bacon. Id. at 63. • On February 6, 2020, Petitioner returned to her orthopedist, reporting improvement in her ROM but continued left shoulder pain. Exhibit 3 at 13. The orthopedist ordered an MRI. Id. at 14. • Performed on February 16, 2020, the MRI revealed no full-thickness rotator cuff tear, a small interstitial tear of the infraspinatus tendon, mild supraspinatus and long head biceps tendinosis, findings consistent with adhesive capsulitis, moderate to severe acromioclavicular degenerative joint disease with active inflammation, a nondisplaced superior chondrolabral junction tear without paralabral cyst. Exhibit 3 at 42. • A few days later, on February 19, 2020, Petitioner returned to the orthopedist to discuss the result of the MRI. Exhibit 3 at 17-21. The medical record from this visit contains a detailed history of Petitioner’s symptoms and treatment that again included a report that her left shoulder pain started in September 2019, after a flu vaccine. Id. at 17. The orthopedist stated, “I think that there is a possibility that the flu injection caused some subacromial bursitis [but] I cannot say that this caused the labrum or rotator cuff partial tears.” Id. at 17-18. He recommended Petitioner undergo arthroscopic surgery, and she agreed. Id. at 18. 6 Case 1:20-vv-01905-UNJ Document 36 Filed 05/24/24 Page 7 of 11 • Almost one month later, on March 16, 2020, Petitioner attended a pre-op visit with her PCP, reporting only some heightened anxiety due to the worldwide COVID Pandemic. Exhibit 7 at 74. Petitioner was determined to be medically stable and able to undergo the planned surgery. Id. at 77. • On March 24, 2020, Petitioner underwent arthroscopic surgery which included extensive debridement, subacromial decompression with partial acromioplasty, rotator cuff repair, and excision of the distal clavicle. Exhibit 4 at 6. • One week after her surgery, Petitioner attended her first post-surgical visit with her orthopedist. Exhibit 3 at 26. She reported that she was doing well, taking Norco5 for her pain, performing her home exercises, and would attend her first post-surgical PT session the next day. Id. at 28. • At the initial PT evaluation, performed on April 2, 2020, Petitioner reported that her surgery went well; that she was applying ice, performing her home exercises, and wearing her sling during the day and at night; and that her pain was well controlled6 despite having finished her prescribed Norco that day. Exhibit 2 at 70. This record includes a description of Petitioner’s surgery, stating that it was “secondary to shoulder injury following flu vaccine in September 2019.” Id. • At her next PT session on April 6, 2020, Petitioner reported pain at a level of three out of ten, adding that she had requested a refill of the prescribed Norco. Exhibit 2 at 79. By her fourth PT session on April 13, 2020, Petitioner reported that she had no pain at rest and had not needed pain medication, either prescribed or over the counter. Id. at 92. • On May 7, 2020, Petitioner had a telephonic appointment with her PCP for follow-up of her rotator cuff surgery, anxiety, and diabetes. Exhibit 7 at 80. She noted that PT was going well, and her ROM was improving. Id. • Petitioner was discharged from PT on July 27, 2020, after 17 sessions. Exhibit 2 at 177. At that time, she was experiencing full strength and only minimal pain and tightness at the extremes of her ROM. Id. 5 Norco is the “trademark for combinations preparations of hydrocodone bitartrate and acetaminophen.” DORLAND’S at 1290 6 Rating her pain as ranging from zero to five, Petitioner reported no pain at this visit. Exhibit 2 at 70. 7 Case 1:20-vv-01905-UNJ Document 36 Filed 05/24/24 Page 8 of 11 • Petitioner was seen by her orthopedist one more time on July 30, 2020. Exhibit 3 at 36. She reported that she was doing well, and that her pain was controlled. Noting that Petitioner had been an excellent patient and worked hard in PT sessions, the orthopedist instructed her to continue her home exercises and return on an as needed basis. Id. • On November 17, 2020, Petitioner participated in a telephonic appointment with PCP. Exhibit 7 at 83-87. There is no mention of any left shoulder pain or other issues in the medical record from this visit. Id. • In her declaration signed on April 29, 2021 (but not notarized or signed under penalty of perjury), Petitioner addressed the basic requirements of Section 11(c). Exhibit 8. Regarding her pain onset, she stated that she “noticed the pain right after [she] got vaccinated . . . [and] made an appointment because the pain wouldn’t go away.” Id. at ¶ 3. Petitioner insists she was “in unbearable pain from the time [she] had [her] vaccination until [she] recovered from surgery.” Id. The record as a whole supports Petitioner’s description of left shoulder pain beginning within 48 hours of vaccination. In multiple post-vaccination medical records, Petitioner consistently reported pain that began upon vaccination. Exhibit 7 at 52; Exhibit 2 at 5; Exhibit 7 at 69; Exhibit 3 at 7, 10; Exhibit 3 at 17 (in chronologic order). When she first visited her orthopedist, she provided detailed information related to the onset of her left shoulder pain, placing onset within 48 hours of vaccination.7 Without fail, Petitioner attributed her injury to the flu vaccine she received in September 2019. Id. And her orthopedist opined that he believed at least some of the subacromial bursitis, seen on the MRI, was vaccine caused. Exhibit 3 at 17-18. Furthermore, there is a dearth of evidence supporting a different onset or cause. While these close-in-time histories were based upon information provided by Petitioner, they still should be afforded greater weight than more current representations, as they were uttered contemporaneously with Petitioner’s injury for the purposes of obtaining medical care. The Federal Circuit has stated that “[m]edical records, in general, warrant consideration as trustworthy evidence . . . [as they] contain information supplied 7 At this orthopedic visit, Petitioner identified her pain onset as occurring on September 5, 2019, stating that “pain started when she got flu shot.” Exhibit 3 at 10 (emphasis added). Although this same medical record contains an entry placing onset the day after vaccination (id. at 7), that slightly differing account still supports onset within 48 hours. 8 Case 1:20-vv-01905-UNJ Document 36 Filed 05/24/24 Page 9 of 11 to or by health professionals to facilitate diagnosis and treatment of medical conditions.” Cucuras, 993 F.2d at 1528 (emphasis added). Thus, the Circuit has instructed that information provided by Petitioner to a treater and contained in a contemporaneous record deserves weight, and should not be considered subjective merely because it came from a patient, rather than physician. Although Petitioner delayed seeking treatment for two months and three days, the delay does not provide the strong evidence that Respondent contends. It is often common for a SIRVA petitioner to delay treatment, thinking his/her injury will resolve on its own. Additionally, Petitioner was not seen during this 64-day period for any other illness or medical condition. Such intervening treatment evidence can in many cases either corroborate a petitioner’s claim or undermine it – but it is totally absent here. Furthermore, at least one Accordingly, I find there is preponderant evidence to establish the onset of Petitioner’s pain occurred within 48 hours of vaccination. III. Additional Requirements for Entitlement A. Legal Standards In addition to requirements concerning the vaccination received, the pain onset and duration of petitioner’s injury (discussed above in Section II), and the lack of other award or settlement,8 a petitioner must establish that she suffered an injury meeting the Table criteria, in which case causation is presumed, or an injury shown to be caused-in- fact by the vaccination she received. Section 11(c)(1)(C). The most recent version of the Table, which can be found at 42 C.F.R. § 100.3, identifies the vaccines covered under the Program, the corresponding injuries, and the time period in which the particular injuries must occur after vaccination. Section 14(a). Pursuant to the Vaccine Injury Table, a SIRVA is compensable if it manifests within 48 hours of the administration of a flu vaccine. 42 C.F. R. § 100.3(a)(VIX)(B). The criteria establishing a SIRVA under the accompanying QAI are as follows: 8 In summary, a petitioner must establish that he received a vaccine covered by the Program, administered either in the United States and its territories or in another geographical area but qualifying for a limited exception; suffered the residual effects of his injury for more than six months, died from his injury, or underwent a surgical intervention during an inpatient hospitalization; and has not filed a civil suit or collected an award or settlement for her injury. See Section 11(c)(1)(A)(B)(D)(E). 9 Case 1:20-vv-01905-UNJ Document 36 Filed 05/24/24 Page 10 of 11 Shoulder injury related to vaccine administration (SIRVA). SIRVA manifests as shoulder pain and limited range of motion occurring after the administration of a vaccine intended for intramuscular administration in the upper arm. These symptoms are thought to occur as a result of unintended injection of vaccine antigen or trauma from the needle into and around the underlying bursa of the shoulder resulting in an inflammatory reaction. SIRVA is caused by an injury to the musculoskeletal structures of the shoulder (e.g. tendons, ligaments, bursae, etc.). SIRVA is not a neurological injury and abnormalities on neurological examination or nerve conduction studies (NCS) and/or electromyographic (EMG) studies would not support SIRVA as a diagnosis (even if the condition causing the neurological abnormality is not known). A vaccine recipient shall be considered to have suffered SIRVA if such recipient manifests all of the following: (i) No history of pain, inflammation or dysfunction of the affected shoulder prior to intramuscular vaccine administration that would explain the alleged signs, symptoms, examination findings, and/or diagnostic studies occurring after vaccine injection; (ii) Pain occurs within the specified time frame; (iii) Pain and reduced range of motion are limited to the shoulder in which the intramuscular vaccine was administered; and (iv) No other condition or abnormality is present that would explain the patient’s symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy, brachial neuritis, mononeuropathies, or any other neuropathy). 42 C.F.R. § 100.3(c)(10) (2017). B. Analysis As I have determined in this ruling, the record supports a finding that Petitioner suffered pain within 48 hours of vaccination. See supra Section II; 42 C.F.R. § 100.3(c)(10)(ii) (second QAI criterion). Respondent has stated no further objections to compensation, and I find Petitioner has otherwise satisfied all criteria for a Table SIRVA injury following receipt of the flu vaccine. There is no evidence of prior left shoulder pain, inflammation, or dysfunction or an alternative cause for Petitioner’s symptoms. See 42 C.F.R. § 100.3(c)(10)(i), (iv) (first and fourth QAI criteria). And Petitioner exhibited pain and limitations in ROM solely in her left, injured shoulder. E.g., Exhibit 7 at 55 (first PCP 10 Case 1:20-vv-01905-UNJ Document 36 Filed 05/24/24 Page 11 of 11 visit on November 8, 2019); Exhibit 3 at 7-8 (first orthopedic visit on January 2, 2020); see 42 C.F.R. § 100.3(c)(10)(iii) (third QAI criterion). Because Petitioner has satisfied the requirements of a Table SIRVA, she need not prove causation. Section 11(c)(1)(C). However, she must satisfy the other requirements of Section 11(c) regarding the vaccination received, the duration and severity of her injury, and the lack of other award or settlement. Section 11(c)(A), (B), and (D). Respondent does not dispute that Petitioner has satisfied these requirements in this case, and the overall record contains preponderant evidence which fulfills these additional requirements. IV. Appropriate Amount of Compensation Although I have found Petitioner entitled to compensation, I do not expect the amount awarded for Petitioner’s past pain and suffering to be great. As her orthopedist opined, some of the left shoulder conditions seen on the MRI and then repaired during surgery were not necessarily vaccine-related. Exhibit 3 at 17-18; Exhibit 4 at 6. The mere existence of an underlying, but previously asymptomatic, condition or abnormality does not defeat entitlement, but would be relevant when ascertaining the appropriate compensation. Conclusion Based on the entire record in this case, I find that Petitioner has provided preponderant evidence satisfying all requirements for a Table SIRVA, and all Vaccine Act requirements for both Table and non-Table claims. Petitioner is entitled to compensation in this case. IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 11 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_20-vv-01905-1 Date issued/filed: 2025-03-06 Pages: 12 Docket text: PUBLIC DECISION (Originally filed: 02/19/2025) regarding 48 DECISION of Special Master. Signed by Chief Special Master Brian H. Corcoran. (kle) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01905-UNJ Document 49 Filed 03/06/25 Page 1 of 12 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1905V LINDA TIMBERLAKE, Chief Special Master Corcoran Petitioner, v. Filed: February 19, 2025 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for Petitioner. Meghan Murphy, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On December 18, 2020, Linda Timberlake filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petitioner alleged that she suffered a left shoulder injury related to vaccine administration (“SIRVA”), a defined Table Injury, after receiving an influenza (“flu”) vaccine on September 5, 2019. Petition at 1, ¶ 2. After I determined Petitioner was entitled to compensation in a substantive entitlement ruling, the parties were unable to resolve damages on their own,3 so I ordered briefing on the matter. 1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, 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), 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 (2018). 3 Almost five months after I determined Petitioner was entitled to compensation, the parties informed me that they had reached an impasse in their damages discussions and requested that I set a briefing schedule. Status Report, filed Sept. 17, 2024, ECF No. 40. . Case 1:20-vv-01905-UNJ Document 49 Filed 03/06/25 Page 2 of 12 For the reasons set forth below, I find that Petitioner is entitled to an award of damages in the amount of $108,607.10, representing $107,000.00 for actual pain and suffering, plus $1,607.10 for past unreimbursable expenses. I. Legal Standard Compensation awarded pursuant to the Vaccine Act shall include “[f]or actual and projected pain and suffering and emotional distress from the vaccine-related injury, an award not to exceed $250,000.” Section 15(a)(4). Additionally, a petitioner may recover “actual unreimbursable expenses incurred before the date of judgment award such expenses which (i) resulted from the vaccine-related injury for which petitioner seeks compensation, (ii) were incurred by or on behalf of the person who suffered such injury, and (iii) were for diagnosis, medical or other remedial care, rehabilitation . . . determined to be reasonably necessary.” Section 15(a)(1)(B). The petitioner bears the burden of proof with respect to each element of compensation requested. Brewer v. Sec’y of Health & Hum. Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18, 1996). There is no mathematic formula for assigning a monetary value to a person’s pain and suffering and emotional distress. I.D. v. Sec’y of Health & Hum. Servs., No. 04-1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013) (“[a]wards for emotional 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. 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). 2 Case 1:20-vv-01905-UNJ Document 49 Filed 03/06/25 Page 3 of 12 Although pain and suffering in the past was often determined based on a continuum, as Respondent argues, that practice was cast into doubt by a Court of Federal Claims decision several years ago. Graves v. Sec’y of Health & Hum. Servs., 109 Fed. Cl. 579 (Fed. Cl. 2013). Graves maintained that to do so resulted in “the forcing of all suffering awards into a global comparative scale in which the individual petitioner’s suffering is compared to the most extreme cases and reduced accordingly.” Id. at 590. Instead, Graves assessed pain and suffering by looking to the record evidence, prior pain and suffering awards within the Vaccine Program, and a survey of similar injury claims outside of the Vaccine Program. Id. at 595. Under this approach, the statutory cap merely cuts off higher pain and suffering awards – it does not shrink the magnitude of all possible awards as falling within a spectrum that ends at the cap. Although Graves is not controlling of the outcome in this case, it provides reasoned guidance in calculating pain and suffering awards – and properly emphasizes the importance in each case of basing damages on the specific injured party’s circumstances. II. Prior SIRVA Compensation Within SPU4 A. Data Regarding Compensation in SPU SIRVA Cases SIRVA cases have an extensive history of informal resolution within the SPU. As of January 1, 2025, 4,545 SPU SIRVA cases have resolved since the inception of SPU ten years before. Compensation has been awarded in the vast majority of cases (4,397), with the remaining 148 cases dismissed. 2,506 of the compensated SPU SIRVA cases were the result of a ruling that the petitioner was entitled to compensation (as opposed to an informal settlement), and therefore reflect full compensation.5 In only 270 of these cases, however, was the amount of damages determined by a special master in a reasoned decision.6 As I have previously 4 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. 5 The remaining 1,891 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. Because multiple competing factors may cause the parties to settle a case (with some having little to do with the merits of an underlying claim), these awards from settled cases do not constitute a reliable gauge of the appropriate amount of compensation to be awarded in other SPU SIRVA cases. 6 The rest of these cases resulting in damages after concession were either reflective of a proffer by Respondent (2,206 cases) or stipulation (30 cases). Although all proposed amounts denote some form of agreement reached by the parties, those presented by stipulation derive more from compromise than instances in which Respondent formally acknowledges that the settlement sum itself is a fair measure of damages. 3 Case 1:20-vv-01905-UNJ Document 49 Filed 03/06/25 Page 4 of 12 stated, the written decisions setting forth such determinations, prepared by neutral judicial officers (the special masters themselves), provide the most reliable guidance in deciding what similarly-situated claimants should also receive.7 The data for all categories of damages decisions described above reflect the expected differences in outcome, summarized as follows: Damages Proffered Stipulated Stipulated8 Decisions by Damages Damages Agreement Special Master Total Cases 270 2,206 30 1,891 Lowest $30,000.00 $5,000.00 $45,000.00 $1,500.00 1st Quartile $67,305.16 $60,000.00 $90,000.00 $32,500.00 Median $89,500.00 $80,000.00 $122,866.42 $50,000.00 3rd Quartile $125,000.00 $107,987.07 $162,000.60 $75,000.00 Largest $1,569,302.82 $1,845,047.00 $1,500,000.00 $550,000.00 B. Pain and Suffering Awards in Reasoned Decisions In the 270 SPU SIRVA cases in which damages were the result of a reasoned decision, compensation for a petitioner’s actual or past pain and suffering varied from $30,000.00 to $215,000.00, with $87,000.00 as the median amount. Only ten of these cases involved an award for future pain and suffering, with yearly awards ranging from $250.00 to $1,500.00.9 In one of these cases, the future pain and suffering award was limited by the statutory pain and suffering cap.10 7 Of course, even though all independently-settled damages issues (whether by stipulation/settlement or proffer) must still be approved by a special master, such 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 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). 8 Two awards were for an annuity only, the exact amounts which were not determined at the time of judgment. 9 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). 10 Joyce v. Sec’y of Health & Hum. Servs., No. 20-1882V, 2024 WL 1235409, at *2 (Fed. Cl. Spec. Mstr. Feb. 20, 2024) (applying the $250,000.00 statutory cap for actual and future pain and suffering set forth in Section 15(a)(4) before reducing the future award to net present value as required by Section 15(f)(4)(A)); see Youngblood v. Sec’y of Health & Hum. Servs., 32 F.3d 552, 554-55 (Fed. Cir.1994) (requiring the 4 Case 1:20-vv-01905-UNJ Document 49 Filed 03/06/25 Page 5 of 12 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 usually experienced this greater pain for three months or less. Most 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 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. Except in one case involving very mild pain levels, the duration of the SIRVA 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. 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 133 PT sessions - occasionally spanning several years, and multiple cortisone injections, were required in these cases. In nine cases, petitioners provided sufficient evidence of permanent injuries to warrant yearly compensation for future or projected pain and suffering. III. Relevant Medical History Prior to vaccination, Petitioner suffered from diabetes and arthritis with noted specific conditions – a herniated disc and left shoulder pain, included in all primary care provider (“PCP”) prior medical records as follows: • Arthritis herniated disc , It shoulder pain Ex. 7 at 8, 23, 32. This diagnosis can also be found in the post-vaccination PCP medical application of the statutory cap before any projected pain and suffering award is reduced to net present value). 5 Case 1:20-vv-01905-UNJ Document 49 Filed 03/06/25 Page 6 of 12 records as well. Id. at 53, 60, 80, 83. Although Petitioner received the flu vaccine in question on September 5, 2019, she did not complain of left shoulder pain until a PCP visit on November 8, 2019, approximately two months later. Ex. 7 at 53. At that visit, Petitioner also received follow- up care for her diabetes, high cholesterol, and palpitations and anxiety – all of which appeared to be well-controlled with medication. Id. at 53, 56. Under the discussion section of the record related to palpitations, it was noted that she was taking Propranolol,11 an anti-anxiety medication. Ex. 7 at 53. When first seeking treatment, Petitioner described her left shoulder pain, which she attributed to the flu vaccine she received two months earlier, as constant, and worse with movement. Ex. 7 at 53. The PCP prescribed Naproxen12 and referred her to PT. Id. at 56. At her first PT session on November 20, 2019, Petitioner stated that her pain level varied from four to seven out of ten, estimating that her current pain was four. Ex. 2 at 5. Although she reported improved motion in later sessions (e.g., id. at 14), her pain levels remained consistent (id. at 21, 28). After four PT sessions, she returned to her PCP, complaining that PT was not helping. Ex. 7 at 69. In response, the PCP prescribed 14- days of oral steroid (Prednisone) and referred her to an orthopedic surgeon. Id. at 72. When seen by the orthopedic surgeon on January 2, 2020, Petitioner recounted that the Prednisone “helped a lot with inflammation, but discomfort is still there.” Ex. 3 at 7. X-rays showed “AC arthritis with a [sic] superior bone spurs” and a small inferior osteophyte in the glenohumeral space. Id. at 9. Assessing Petitioner as suffering from shoulder impingement, acute left shoulder pain, subacromial bursitis of the left shoulder joint, and arthritis of the acromioclavicular joint, the orthopedic surgeon expressed reluctance to administer a steroid injection so close to the course of orals steroids, especially since Petitioner suffered from diabetes. He opined that Petitioner’s arthritis, sometimes associated with subacromial impingement, would not explain her symptoms. Noting that Petitioner had made improvements in strength and movement, he recommended that she continue PT, and return within a month or two if her symptoms continued. Id. 11 Propranolol is “a nonselective beta-adrenergic blocking agent that . . . decreases cardiac rate and output, reduces blood pressure, and is effective in the prophylaxis of migraine.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY (“DORLAND’S”) at 1527 (32th ed. 2012). 12 Naproxen is “a non-steroidal anti-inflammatory drug that is . . . used in the treatment of pain, inflammation, osteoarthritis, rheumatoid arthritis, gout,” and other conditions. DORLAND’S at 1232. 6 Case 1:20-vv-01905-UNJ Document 49 Filed 03/06/25 Page 7 of 12 After attending five additional PT sessions, Petitioner returned to the orthopedic surgeon in early February 2020, reporting improvements in motion, but continued pain. Ex. 3 at 13. On February 16, 2020, she underwent an MRI which revealed “an intrasubstance infraspinatus rotator cuff tendon tear and some tendinitis and also a question of a small superior labral tear and some AC joint primary osteoarthritis and some subacromial bursitis.” Id. at 17; see id. at 42 (for MRI report). Noting that he “had a thorough conversation with [Petitioner] . . . about her pathology” (id. at 17), he opined that “there is a possibility that the flu injection caused some subacromial bursitis [but he] cannot say that this caused the labrum or rotator cuff partial tears” (id. at 17-18). Observing that Petitioner had experienced her pain for approximately five months, and had taken anti-inflammatory medication and attended PT, the surgeon recommended arthroscopic surgery. Id. at 18. At her pre-operative surgical appointment on March 16, 2020, Petitioner reported heightened anxiety due to concerns related to the COVID pandemic and upcoming surgery. Ex. 10 at 61. She was prescribed new anxiety medication – Hydroxyzine.13 Id. at 64. Performed on March 24, 2020, the arthroscopic surgery included debridement with chondroplasty14 and synovectomy15 of the glenohumeral joint, subacromial decompression with partial acromioplasty,16 rotator cuff repair (labral tears) with one swivel lock anchor, and excision of distal clavicle. Ex. 10 at 74-75 (filed previously at Ex. 4 at 6-7); see also Ex. 3 at 26. Post-surgery, diagnoses of multiple labral tears and synovitis17 of the glenohumeral joint were added to the prior diagnoses: injury of muscle and tendons of the rotator cuff, acromioclavicular joint arthritis, and impingement syndrome. Ex. 10 at 75. From early-April through late-July 2020, Petitioner showed significant improvement from 16 PT sessions. At her first sessions on April 2, 2020, she estimated that her pain level ranged from zero to five. Ex. 2 at 70. Reporting that she had finished 13 Hydroxyzine is “a piperazine derivative with central nervous system depressant, antispasmodic, antihistaminic, and antifibrillatory actions.” DORLAND’S at 884. 14 Chondroplasty is the “repair of lacerated or displaced cartilage. DORLAND’S at 353. 15 Synovectomy is “excision of a synovial membrane, as of that lining the capsule of the knee joint, performed in treatment of rheumatoid arthritis of the knee, or of the synovial sheath of a tendon.” DORLAND’S at 1855. 16 Acromioplasty is “the surgical removal of an anterior spur of the acromion o relieve mechanical compression of the rotator cuff during movement of the glenohumeral joint. DORLAND’S at 20. 17 Synovitis is “the inflammation of the synovium, . . . usually painful, particularly on motion.” DORLAND’S at 1856. 7 Case 1:20-vv-01905-UNJ Document 49 Filed 03/06/25 Page 8 of 12 taking her pain medication (Norco)18 that day and had no pain currently, she volunteered that she “does not think she will need to re-fill the prescription.” Id. By her third PT session on April 8, 2020, she again reported no current pain and an ability to sleep through the night. Id. at 86. At her last PT session on July 27, 2020, Petitioner “stated she has some soreness but overall is feeling good.” Id. at 176. When seen by the orthopedic surgeon on July 30, 2020, Petitioner was noted to be “doing well” with controlled pain. Ex. 3 at 36. She was instructed to return on an as- needed basis. Id. IV. The Parties’ Arguments Petitioner asserts that she is entitled to a past pain and suffering award of $125,000.00, plus $1,808.88 for past unreimbursed expenses. Petitioner’s Brief in Support of Damages (“Brief”), filed Nov. 15, 2024, at 1, ECF 46. Maintaining that her SIRVA “resulted in severe pain and limited range of motion” (id. at 6), she emphasizes the surgery she underwent in late March 2020, during the worldwide COVID Pandemic, her continued difficulty performing tasks requiring upper body strength and flexibility for the two months post-surgery, and the negative effect on her work as a substitute teacher (id. at 7-8). Along with her damages brief, Petitioner filed a list of unreimbursed expenses, more detailed surgical records, and a cursory document regarding her employment as a substitute teacher. Exs. 9-11, filed Nov. 13, 2024, ECF Nos. 43-45. At a pre-operative visit on March 16, 2020, Petitioner complained of “some increased anxiety with the stress over the coronavirus outbreak” and requested medication to combat her increased anxiety. Ex. 10 at 61. The documentation related to Petitioner’s employment provides her full and half-day rates, further explaining that “[s]he does not have a set schedule, [s]he is called when needed, [and] [w]e do not keep a log when a sub says not able to come in.” Ex. 11. Petitioner favorably compares the facts and circumstances in her case to those of the petitioners in Drake, Randazzo, and Olson19 - decisions featuring pain and suffering awards ranging from $125,000.00 to $128,000.00. Brief at 9-12. Emphasizing similarities 18 Norco is “trademark for combination preparations of hydrocodone bitartrate and acetaminophen. DORLAND’S at 1290. Hydrocodone is “a semisynthetic opioid analgesic derived from codeine but having more powerful sedative and analgesic effects. DORLAND’S at 878. 19 Drake v. Sec’y of Health & Hum. Servs., No. 18-1747V, 2020 WL 4674105 (Fed. Cl. Spec. Mstr. July 7, 2020) (awarding $125,000.00 for past pain and suffering); Randazzo v. Sec’y of Health & Hum. Servs., No. 18-1513V, 2021 WL 829572 (Fed. Cl. Spec. Mstr. Feb. 1, 2021) (awarding $125,000.00 for past pain and suffering); Olson v. Sec’y of Health & Hum. Servs., No. 21-0408, 2024 WL 1521634 (Fed. Cl. Spec. Mstr. Mar. 4, 2024 (awarding $128,000.00 for past pain and suffering). 8 Case 1:20-vv-01905-UNJ Document 49 Filed 03/06/25 Page 9 of 12 in treatment – limited to conservative measures initially and then arthroscopic surgery within a year of vaccination, and good improvement but ongoing symptoms post-surgery - she insists that she suffered analogous symptom severity and duration. Id. Respondent counters that Petitioner should be awarded $75,000.00 for pain and suffering. Respondent’s Brief in Support on Damages (“Opp.”) at 1. While acknowledging that Petitioner’s SIRVA required surgical intervention, he maintains that Petitioner “experienced a mild-to-moderate SIRVA and had an excellent recovery ten months after vaccination.” Id. at 5. To support the lower award, he emphasizes Petitioner’s more than two-month delay in seeking treatment – resulting in only nine months of active treatment; “excellent recovery by mid-July 2020, ten months after she first sought treatment” (id. at 6); and multiple unrelated conditions identified on the MRI and repaired during surgery (id. at 6-7). He notes that I previously determined that these other conditions “were ‘not necessarily vaccine-related’ and were thus ‘relevant when ascertaining the appropriate compensation.’” Id. at 7 (quoting Timberlake v. Sec’y of Health & Hum. Servs., No. 20- 1905V, 2024 WL 2698873, at *7 (Fed. Cl. Spec. Mstr. Apr. 23, 2024)). As comparable cases, Respondent proposes Hunt and Sheldon,20 in which $95,000.00 and $97,500.00, respectively, were awarded. Opp. at 10-11. Emphasizing that these petitioners underwent more active treatment and longer SIRVA duration, as well as the Hunt petitioner’s pursuit of treatment only three weeks post-vaccination, he argues that Petitioner’s award should be lower. Id. at 7-8. He also distinguishes the cases cited by Petitioner, stressing the lack of treatment delay and greater symptom severity in therein. Id. 8-10. Regarding the amount of past expenses, Respondent opposes $201.78 identified as a collection fee. Opp. at 10; see Ex. 9 at 1-2 (surgical costs with this additional amount included on the first page summary). He argues that such an expense is not compensable under the Vaccine Act as it was not for any of the purposes listed in Section 15(a)(1)(B)(iii)). Opp. at 10. He agrees, however, that Petitioner should be awarded the remaining $1,607.10 in expenses. Id. V. Appropriate Compensation A. Pain and Suffering In this case, awareness of the injury is not disputed. The record reflects that at all 20 Hunt v. Sec’y of Health & Hum. Servs., No. 19-1003V, 2022 WL 2826662 (Fed. Cl. Spec. Mstr. June 16, 2022)’ Shelton v. Sec’y of Health & Hum. Servs., No. 19-0279V, 2021 WL 2550093 (Fed. Cl. Spec. Mstr. May 21, 2021). 9 Case 1:20-vv-01905-UNJ Document 49 Filed 03/06/25 Page 10 of 12 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. When performing this analysis, I review the record as a whole to include the filed medical records, affidavits, and sworn declarations and all assertions made by the parties in written documents. I consider 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 determination on the circumstances of this case. A thorough review of the medical records reveals that Ms. Timberlake suffered a SIRVA injury that did not prompt her to seek medical treatment until more than two months after the vaccination. Although her pain levels were moderate, she obtained improvement in strength and ROM, albeit not pain, during nine PT sessions. Almost seven months post- vaccination, she underwent arthroscopic surgery, and gained good symptom relief thereafter. During 16 post-surgical PT sessions, she consistently reported a lack of pain and required pain medication for less than three weeks post-surgery. Additionally, there is significant evidence showing that at least some of Petitioner’s symptoms and need for surgery were due to conditions unrelated to the flu vaccine she received, but due instead to preexisting arthritis and labral tears. And medical records from September 2017, list back issues and left shoulder pain related to arthritis. Furthermore, although it did not prevent Petitioner from satisfying the requirements for entitlement, her more than two-month delay provides evidence that her initial symptoms were not significant. The Hunt case cited by Respondent is a good comparable case21 – due to similarities in overall duration and post-surgery recovery, but there are differences which show a greater pain and suffering award is warranted in this case. Although the Hunt petitioner pursued treatment only 18-days post-vaccination, she reported lower initial pain levels and experienced some periods of complete relief, for example, after receiving several cortisone injections. Hunt, 2022 WL 2826662, at *8-9. In contrast, prior to surgery, Petitioner reported consistent, moderate pain, that appeared to be unaffected by PT, and reduced only slightly by oral steroids. Most importantly, Respondent failed to successfully explain why the award in this case should be at approximately $20,000.00 less than what 21 In contrast, the Shelton case offers a poor comparison as the both the initial treatment delay and overall injury duration were more than twice that in this case. Shelton, 2021 WL 2550093, at *7-8. Other than the fact that both cases involved arthroscopic surgery, there are few similarities between Shelton and Petitioner’s case. And I have previously discussed the lack of helpful guidance provided by Shelton for most other cases, given its unique facts. See, e.g., Gray v. Sec’y of Health & Hum. Servs., No. 20-1708, 2022 WL 6957013, at *6 (Fed. Cl. Spec. Mstr. Sept. 12, 2022). 10 Case 1:20-vv-01905-UNJ Document 49 Filed 03/06/25 Page 11 of 12 was awarded in either cited case - Hunt or Shelton. Although Petitioner proposes an amount aligned with the pain and suffering amounts awarded in the comparable cases she cites, she similarly ignores significant factors which dictate a different (this time lower) award. In all cases, the petitioners reported more significant initial pain levels and pursued treatment within 30 days of vaccination. Drake, 2020 WL 4674105, at *2; Randazzo, 2021 WL 829572, at *2; Olson, 2024 WL 1521634, at *2. Additionally, the duration of the Olson petitioner’s initial, more severe symptoms was much longer as she did not undergo surgery until 18-months post- vaccination. Olson, 2024 WL 1521634, at *2. And the Drake petitioner experienced severe limitations in his ROM, and continued symptoms even after surgery. Drake, 2020 WL 4674105, at *2-3. Instead, Double, Slugo, and Gray22 – involving awards ranging from $105,000.00 to $110,000.00 - offer better guidance. The Double and Gray petitioners also delayed seeking treatment until approximately 50 days post-vaccination. Double, 2024 WL 3648398, at *3; Gray, 2022 WL 6957013, at *6. And the Slugo and Double petitioners similarly suffered from other conditions addressed during surgery. Petitioner’s facts and circumstances most closely resembles those experienced by the Double petitioner, who received an award of $105,000.00. Accounting for slight differences in duration and initial symptom severity, I will award a slightly higher amount to Petitioner - $107,000.00. B. Unreimbursed Expenses Regarding the amount of out-of-pocket expenses, I agree that the $201.78 paid by Petitioner for collection fees should not be reimbursed. This payment does not meet the requirements of Section 15(a)(1)(A)(iii), because it was not needed to diagnosis or treat Petitioner’s symptoms. All other requested expenses will be awarded. Conclusion For all of the reasons discussed above and based on consideration of the record as a whole, I find that $107,000.00 represents a fair and appropriate amount of 22 Double v. Sec’y of Health & Hum. Servs., No. 21-0682V, 2024 WL 3648398 (Fed. Cl. Spec. Mstr. June 27, 2024) (awarding $105,000.00 for past pain and suffering); Slugo v. Sec’y of Health & Hum. Servs., No. 19-0635V, 2022 WL 627782 (Fed. Cl. Spec. Mstr. Jan. 31, 2022) (awarding $108,000.00 for past pain and suffering); Gray, 2022 WL 6957013 (awarding $110,000.00 for past pain and suffering). 11 Case 1:20-vv-01905-UNJ Document 49 Filed 03/06/25 Page 12 of 12 compensation for Petitioner’s actual pain and suffering.23 I also find that Petitioner is entitled to $1,607.10 in actual unreimbursable expenses. Based on the record as a whole and arguments of the parties, I award Petitioner a lump sum payment of $108,607.10 to be paid through an ACH deposit to Petitioner’s counsel’s IOLTA account for prompt disbursement to Petitioner. This amount represents compensation for all damages that would be available under Section 15(a). The Clerk of Court is directed to enter judgment in accordance with the Decision.24 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 23 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)). 24 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. 12 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_20-vv-01905-2 Date issued/filed: 2025-03-24 Pages: 12 Docket text: PUBLIC DECISION (Originally filed: 02/19/2025) regarding 48 DECISION of Special Master Signed by Chief Special Master Brian H. Corcoran. (ppa) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-01905-UNJ Document 53 Filed 03/24/25 Page 1 of 12 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1905V LINDA TIMBERLAKE, Chief Special Master Corcoran Petitioner, v. Filed: February 19, 2025 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for Petitioner. Meghan Murphy, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On December 18, 2020, Linda Timberlake filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petitioner alleged that she suffered a left shoulder injury related to vaccine administration (“SIRVA”), a defined Table Injury, after receiving an influenza (“flu”) vaccine on September 5, 2019. Petition at 1, ¶ 2. After I determined Petitioner was entitled to compensation in a substantive entitlement ruling, the parties were unable to resolve damages on their own,3 so I ordered briefing on the matter. 1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, 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), 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 (2018). 3 Almost five months after I determined Petitioner was entitled to compensation, the parties informed me that they had reached an impasse in their damages discussions and requested that I set a briefing schedule. Status Report, filed Sept. 17, 2024, ECF No. 40. . Case 1:20-vv-01905-UNJ Document 53 Filed 03/24/25 Page 2 of 12 For the reasons set forth below, I find that Petitioner is entitled to an award of damages in the amount of $108,607.10, representing $107,000.00 for actual pain and suffering, plus $1,607.10 for past unreimbursable expenses. I. Legal Standard Compensation awarded pursuant to the Vaccine Act shall include “[f]or actual and projected pain and suffering and emotional distress from the vaccine-related injury, an award not to exceed $250,000.” Section 15(a)(4). Additionally, a petitioner may recover “actual unreimbursable expenses incurred before the date of judgment award such expenses which (i) resulted from the vaccine-related injury for which petitioner seeks compensation, (ii) were incurred by or on behalf of the person who suffered such injury, and (iii) were for diagnosis, medical or other remedial care, rehabilitation . . . determined to be reasonably necessary.” Section 15(a)(1)(B). The petitioner bears the burden of proof with respect to each element of compensation requested. Brewer v. Sec’y of Health & Hum. Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18, 1996). There is no mathematic formula for assigning a monetary value to a person’s pain and suffering and emotional distress. I.D. v. Sec’y of Health & Hum. Servs., No. 04-1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013) (“[a]wards for emotional 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. 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). 2 Case 1:20-vv-01905-UNJ Document 53 Filed 03/24/25 Page 3 of 12 Although pain and suffering in the past was often determined based on a continuum, as Respondent argues, that practice was cast into doubt by a Court of Federal Claims decision several years ago. Graves v. Sec’y of Health & Hum. Servs., 109 Fed. Cl. 579 (Fed. Cl. 2013). Graves maintained that to do so resulted in “the forcing of all suffering awards into a global comparative scale in which the individual petitioner’s suffering is compared to the most extreme cases and reduced accordingly.” Id. at 590. Instead, Graves assessed pain and suffering by looking to the record evidence, prior pain and suffering awards within the Vaccine Program, and a survey of similar injury claims outside of the Vaccine Program. Id. at 595. Under this approach, the statutory cap merely cuts off higher pain and suffering awards – it does not shrink the magnitude of all possible awards as falling within a spectrum that ends at the cap. Although Graves is not controlling of the outcome in this case, it provides reasoned guidance in calculating pain and suffering awards – and properly emphasizes the importance in each case of basing damages on the specific injured party’s circumstances. II. Prior SIRVA Compensation Within SPU4 A. Data Regarding Compensation in SPU SIRVA Cases SIRVA cases have an extensive history of informal resolution within the SPU. As of January 1, 2025, 4,545 SPU SIRVA cases have resolved since the inception of SPU ten years before. Compensation has been awarded in the vast majority of cases (4,397), with the remaining 148 cases dismissed. 2,506 of the compensated SPU SIRVA cases were the result of a ruling that the petitioner was entitled to compensation (as opposed to an informal settlement), and therefore reflect full compensation.5 In only 270 of these cases, however, was the amount of damages determined by a special master in a reasoned decision.6 As I have previously 4 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. 5 The remaining 1,891 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. Because multiple competing factors may cause the parties to settle a case (with some having little to do with the merits of an underlying claim), these awards from settled cases do not constitute a reliable gauge of the appropriate amount of compensation to be awarded in other SPU SIRVA cases. 6 The rest of these cases resulting in damages after concession were either reflective of a proffer by Respondent (2,206 cases) or stipulation (30 cases). Although all proposed amounts denote some form of agreement reached by the parties, those presented by stipulation derive more from compromise than instances in which Respondent formally acknowledges that the settlement sum itself is a fair measure of damages. 3 Case 1:20-vv-01905-UNJ Document 53 Filed 03/24/25 Page 4 of 12 stated, the written decisions setting forth such determinations, prepared by neutral judicial officers (the special masters themselves), provide the most reliable guidance in deciding what similarly-situated claimants should also receive.7 The data for all categories of damages decisions described above reflect the expected differences in outcome, summarized as follows: Damages Proffered Stipulated Stipulated8 Decisions by Damages Damages Agreement Special Master Total Cases 270 2,206 30 1,891 Lowest $30,000.00 $5,000.00 $45,000.00 $1,500.00 1st Quartile $67,305.16 $60,000.00 $90,000.00 $32,500.00 Median $89,500.00 $80,000.00 $122,866.42 $50,000.00 3rd Quartile $125,000.00 $107,987.07 $162,000.60 $75,000.00 Largest $1,569,302.82 $1,845,047.00 $1,500,000.00 $550,000.00 B. Pain and Suffering Awards in Reasoned Decisions In the 270 SPU SIRVA cases in which damages were the result of a reasoned decision, compensation for a petitioner’s actual or past pain and suffering varied from $30,000.00 to $215,000.00, with $87,000.00 as the median amount. Only ten of these cases involved an award for future pain and suffering, with yearly awards ranging from $250.00 to $1,500.00.9 In one of these cases, the future pain and suffering award was limited by the statutory pain and suffering cap.10 7 Of course, even though all independently-settled damages issues (whether by stipulation/settlement or proffer) must still be approved by a special master, such 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 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). 8 Two awards were for an annuity only, the exact amounts which were not determined at the time of judgment. 9 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). 10 Joyce v. Sec’y of Health & Hum. Servs., No. 20-1882V, 2024 WL 1235409, at *2 (Fed. Cl. Spec. Mstr. Feb. 20, 2024) (applying the $250,000.00 statutory cap for actual and future pain and suffering set forth in Section 15(a)(4) before reducing the future award to net present value as required by Section 15(f)(4)(A)); see Youngblood v. Sec’y of Health & Hum. Servs., 32 F.3d 552, 554-55 (Fed. Cir.1994) (requiring the 4 Case 1:20-vv-01905-UNJ Document 53 Filed 03/24/25 Page 5 of 12 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 usually experienced this greater pain for three months or less. Most 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 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. Except in one case involving very mild pain levels, the duration of the SIRVA 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. 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 133 PT sessions - occasionally spanning several years, and multiple cortisone injections, were required in these cases. In nine cases, petitioners provided sufficient evidence of permanent injuries to warrant yearly compensation for future or projected pain and suffering. III. Relevant Medical History Prior to vaccination, Petitioner suffered from diabetes and arthritis with noted specific conditions – a herniated disc and left shoulder pain, included in all primary care provider (“PCP”) prior medical records as follows: • Arthritis herniated disc , It shoulder pain Ex. 7 at 8, 23, 32. This diagnosis can also be found in the post-vaccination PCP medical application of the statutory cap before any projected pain and suffering award is reduced to net present value). 5 Case 1:20-vv-01905-UNJ Document 53 Filed 03/24/25 Page 6 of 12 records as well. Id. at 53, 60, 80, 83. Although Petitioner received the flu vaccine in question on September 5, 2019, she did not complain of left shoulder pain until a PCP visit on November 8, 2019, approximately two months later. Ex. 7 at 53. At that visit, Petitioner also received follow- up care for her diabetes, high cholesterol, and palpitations and anxiety – all of which appeared to be well-controlled with medication. Id. at 53, 56. Under the discussion section of the record related to palpitations, it was noted that she was taking Propranolol,11 an anti-anxiety medication. Ex. 7 at 53. When first seeking treatment, Petitioner described her left shoulder pain, which she attributed to the flu vaccine she received two months earlier, as constant, and worse with movement. Ex. 7 at 53. The PCP prescribed Naproxen12 and referred her to PT. Id. at 56. At her first PT session on November 20, 2019, Petitioner stated that her pain level varied from four to seven out of ten, estimating that her current pain was four. Ex. 2 at 5. Although she reported improved motion in later sessions (e.g., id. at 14), her pain levels remained consistent (id. at 21, 28). After four PT sessions, she returned to her PCP, complaining that PT was not helping. Ex. 7 at 69. In response, the PCP prescribed 14- days of oral steroid (Prednisone) and referred her to an orthopedic surgeon. Id. at 72. When seen by the orthopedic surgeon on January 2, 2020, Petitioner recounted that the Prednisone “helped a lot with inflammation, but discomfort is still there.” Ex. 3 at 7. X-rays showed “AC arthritis with a [sic] superior bone spurs” and a small inferior osteophyte in the glenohumeral space. Id. at 9. Assessing Petitioner as suffering from shoulder impingement, acute left shoulder pain, subacromial bursitis of the left shoulder joint, and arthritis of the acromioclavicular joint, the orthopedic surgeon expressed reluctance to administer a steroid injection so close to the course of orals steroids, especially since Petitioner suffered from diabetes. He opined that Petitioner’s arthritis, sometimes associated with subacromial impingement, would not explain her symptoms. Noting that Petitioner had made improvements in strength and movement, he recommended that she continue PT, and return within a month or two if her symptoms continued. Id. 11 Propranolol is “a nonselective beta-adrenergic blocking agent that . . . decreases cardiac rate and output, reduces blood pressure, and is effective in the prophylaxis of migraine.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY (“DORLAND’S”) at 1527 (32th ed. 2012). 12 Naproxen is “a non-steroidal anti-inflammatory drug that is . . . used in the treatment of pain, inflammation, osteoarthritis, rheumatoid arthritis, gout,” and other conditions. DORLAND’S at 1232. 6 Case 1:20-vv-01905-UNJ Document 53 Filed 03/24/25 Page 7 of 12 After attending five additional PT sessions, Petitioner returned to the orthopedic surgeon in early February 2020, reporting improvements in motion, but continued pain. Ex. 3 at 13. On February 16, 2020, she underwent an MRI which revealed “an intrasubstance infraspinatus rotator cuff tendon tear and some tendinitis and also a question of a small superior labral tear and some AC joint primary osteoarthritis and some subacromial bursitis.” Id. at 17; see id. at 42 (for MRI report). Noting that he “had a thorough conversation with [Petitioner] . . . about her pathology” (id. at 17), he opined that “there is a possibility that the flu injection caused some subacromial bursitis [but he] cannot say that this caused the labrum or rotator cuff partial tears” (id. at 17-18). Observing that Petitioner had experienced her pain for approximately five months, and had taken anti-inflammatory medication and attended PT, the surgeon recommended arthroscopic surgery. Id. at 18. At her pre-operative surgical appointment on March 16, 2020, Petitioner reported heightened anxiety due to concerns related to the COVID pandemic and upcoming surgery. Ex. 10 at 61. She was prescribed new anxiety medication – Hydroxyzine.13 Id. at 64. Performed on March 24, 2020, the arthroscopic surgery included debridement with chondroplasty14 and synovectomy15 of the glenohumeral joint, subacromial decompression with partial acromioplasty,16 rotator cuff repair (labral tears) with one swivel lock anchor, and excision of distal clavicle. Ex. 10 at 74-75 (filed previously at Ex. 4 at 6-7); see also Ex. 3 at 26. Post-surgery, diagnoses of multiple labral tears and synovitis17 of the glenohumeral joint were added to the prior diagnoses: injury of muscle and tendons of the rotator cuff, acromioclavicular joint arthritis, and impingement syndrome. Ex. 10 at 75. From early-April through late-July 2020, Petitioner showed significant improvement from 16 PT sessions. At her first sessions on April 2, 2020, she estimated that her pain level ranged from zero to five. Ex. 2 at 70. Reporting that she had finished 13 Hydroxyzine is “a piperazine derivative with central nervous system depressant, antispasmodic, antihistaminic, and antifibrillatory actions.” DORLAND’S at 884. 14 Chondroplasty is the “repair of lacerated or displaced cartilage. DORLAND’S at 353. 15 Synovectomy is “excision of a synovial membrane, as of that lining the capsule of the knee joint, performed in treatment of rheumatoid arthritis of the knee, or of the synovial sheath of a tendon.” DORLAND’S at 1855. 16 Acromioplasty is “the surgical removal of an anterior spur of the acromion o relieve mechanical compression of the rotator cuff during movement of the glenohumeral joint. DORLAND’S at 20. 17 Synovitis is “the inflammation of the synovium, . . . usually painful, particularly on motion.” DORLAND’S at 1856. 7 Case 1:20-vv-01905-UNJ Document 53 Filed 03/24/25 Page 8 of 12 taking her pain medication (Norco)18 that day and had no pain currently, she volunteered that she “does not think she will need to re-fill the prescription.” Id. By her third PT session on April 8, 2020, she again reported no current pain and an ability to sleep through the night. Id. at 86. At her last PT session on July 27, 2020, Petitioner “stated she has some soreness but overall is feeling good.” Id. at 176. When seen by the orthopedic surgeon on July 30, 2020, Petitioner was noted to be “doing well” with controlled pain. Ex. 3 at 36. She was instructed to return on an as- needed basis. Id. IV. The Parties’ Arguments Petitioner asserts that she is entitled to a past pain and suffering award of $125,000.00, plus $1,808.88 for past unreimbursed expenses. Petitioner’s Brief in Support of Damages (“Brief”), filed Nov. 15, 2024, at 1, ECF 46. Maintaining that her SIRVA “resulted in severe pain and limited range of motion” (id. at 6), she emphasizes the surgery she underwent in late March 2020, during the worldwide COVID Pandemic, her continued difficulty performing tasks requiring upper body strength and flexibility for the two months post-surgery, and the negative effect on her work as a substitute teacher (id. at 7-8). Along with her damages brief, Petitioner filed a list of unreimbursed expenses, more detailed surgical records, and a cursory document regarding her employment as a substitute teacher. Exs. 9-11, filed Nov. 13, 2024, ECF Nos. 43-45. At a pre-operative visit on March 16, 2020, Petitioner complained of “some increased anxiety with the stress over the coronavirus outbreak” and requested medication to combat her increased anxiety. Ex. 10 at 61. The documentation related to Petitioner’s employment provides her full and half-day rates, further explaining that “[s]he does not have a set schedule, [s]he is called when needed, [and] [w]e do not keep a log when a sub says not able to come in.” Ex. 11. Petitioner favorably compares the facts and circumstances in her case to those of the petitioners in Drake, Randazzo, and Olson19 - decisions featuring pain and suffering awards ranging from $125,000.00 to $128,000.00. Brief at 9-12. Emphasizing similarities 18 Norco is “trademark for combination preparations of hydrocodone bitartrate and acetaminophen. DORLAND’S at 1290. Hydrocodone is “a semisynthetic opioid analgesic derived from codeine but having more powerful sedative and analgesic effects. DORLAND’S at 878. 19 Drake v. Sec’y of Health & Hum. Servs., No. 18-1747V, 2020 WL 4674105 (Fed. Cl. Spec. Mstr. July 7, 2020) (awarding $125,000.00 for past pain and suffering); Randazzo v. Sec’y of Health & Hum. Servs., No. 18-1513V, 2021 WL 829572 (Fed. Cl. Spec. Mstr. Feb. 1, 2021) (awarding $125,000.00 for past pain and suffering); Olson v. Sec’y of Health & Hum. Servs., No. 21-0408, 2024 WL 1521634 (Fed. Cl. Spec. Mstr. Mar. 4, 2024 (awarding $128,000.00 for past pain and suffering). 8 Case 1:20-vv-01905-UNJ Document 53 Filed 03/24/25 Page 9 of 12 in treatment – limited to conservative measures initially and then arthroscopic surgery within a year of vaccination, and good improvement but ongoing symptoms post-surgery - she insists that she suffered analogous symptom severity and duration. Id. Respondent counters that Petitioner should be awarded $75,000.00 for pain and suffering. Respondent’s Brief in Support on Damages (“Opp.”) at 1. While acknowledging that Petitioner’s SIRVA required surgical intervention, he maintains that Petitioner “experienced a mild-to-moderate SIRVA and had an excellent recovery ten months after vaccination.” Id. at 5. To support the lower award, he emphasizes Petitioner’s more than two-month delay in seeking treatment – resulting in only nine months of active treatment; “excellent recovery by mid-July 2020, ten months after she first sought treatment” (id. at 6); and multiple unrelated conditions identified on the MRI and repaired during surgery (id. at 6-7). He notes that I previously determined that these other conditions “were ‘not necessarily vaccine-related’ and were thus ‘relevant when ascertaining the appropriate compensation.’” Id. at 7 (quoting Timberlake v. Sec’y of Health & Hum. Servs., No. 20- 1905V, 2024 WL 2698873, at *7 (Fed. Cl. Spec. Mstr. Apr. 23, 2024)). As comparable cases, Respondent proposes Hunt and Sheldon,20 in which $95,000.00 and $97,500.00, respectively, were awarded. Opp. at 10-11. Emphasizing that these petitioners underwent more active treatment and longer SIRVA duration, as well as the Hunt petitioner’s pursuit of treatment only three weeks post-vaccination, he argues that Petitioner’s award should be lower. Id. at 7-8. He also distinguishes the cases cited by Petitioner, stressing the lack of treatment delay and greater symptom severity in therein. Id. 8-10. Regarding the amount of past expenses, Respondent opposes $201.78 identified as a collection fee. Opp. at 10; see Ex. 9 at 1-2 (surgical costs with this additional amount included on the first page summary). He argues that such an expense is not compensable under the Vaccine Act as it was not for any of the purposes listed in Section 15(a)(1)(B)(iii)). Opp. at 10. He agrees, however, that Petitioner should be awarded the remaining $1,607.10 in expenses. Id. V. Appropriate Compensation A. Pain and Suffering In this case, awareness of the injury is not disputed. The record reflects that at all 20 Hunt v. Sec’y of Health & Hum. Servs., No. 19-1003V, 2022 WL 2826662 (Fed. Cl. Spec. Mstr. June 16, 2022)’ Shelton v. Sec’y of Health & Hum. Servs., No. 19-0279V, 2021 WL 2550093 (Fed. Cl. Spec. Mstr. May 21, 2021). 9 Case 1:20-vv-01905-UNJ Document 53 Filed 03/24/25 Page 10 of 12 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. When performing this analysis, I review the record as a whole to include the filed medical records, affidavits, and sworn declarations and all assertions made by the parties in written documents. I consider 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 determination on the circumstances of this case. A thorough review of the medical records reveals that Ms. Timberlake suffered a SIRVA injury that did not prompt her to seek medical treatment until more than two months after the vaccination. Although her pain levels were moderate, she obtained improvement in strength and ROM, albeit not pain, during nine PT sessions. Almost seven months post- vaccination, she underwent arthroscopic surgery, and gained good symptom relief thereafter. During 16 post-surgical PT sessions, she consistently reported a lack of pain and required pain medication for less than three weeks post-surgery. Additionally, there is significant evidence showing that at least some of Petitioner’s symptoms and need for surgery were due to conditions unrelated to the flu vaccine she received, but due instead to preexisting arthritis and labral tears. And medical records from September 2017, list back issues and left shoulder pain related to arthritis. Furthermore, although it did not prevent Petitioner from satisfying the requirements for entitlement, her more than two-month delay provides evidence that her initial symptoms were not significant. The Hunt case cited by Respondent is a good comparable case21 – due to similarities in overall duration and post-surgery recovery, but there are differences which show a greater pain and suffering award is warranted in this case. Although the Hunt petitioner pursued treatment only 18-days post-vaccination, she reported lower initial pain levels and experienced some periods of complete relief, for example, after receiving several cortisone injections. Hunt, 2022 WL 2826662, at *8-9. In contrast, prior to surgery, Petitioner reported consistent, moderate pain, that appeared to be unaffected by PT, and reduced only slightly by oral steroids. Most importantly, Respondent failed to successfully explain why the award in this case should be at approximately $20,000.00 less than what 21 In contrast, the Shelton case offers a poor comparison as the both the initial treatment delay and overall injury duration were more than twice that in this case. Shelton, 2021 WL 2550093, at *7-8. Other than the fact that both cases involved arthroscopic surgery, there are few similarities between Shelton and Petitioner’s case. And I have previously discussed the lack of helpful guidance provided by Shelton for most other cases, given its unique facts. See, e.g., Gray v. Sec’y of Health & Hum. Servs., No. 20-1708, 2022 WL 6957013, at *6 (Fed. Cl. Spec. Mstr. Sept. 12, 2022). 10 Case 1:20-vv-01905-UNJ Document 53 Filed 03/24/25 Page 11 of 12 was awarded in either cited case - Hunt or Shelton. Although Petitioner proposes an amount aligned with the pain and suffering amounts awarded in the comparable cases she cites, she similarly ignores significant factors which dictate a different (this time lower) award. In all cases, the petitioners reported more significant initial pain levels and pursued treatment within 30 days of vaccination. Drake, 2020 WL 4674105, at *2; Randazzo, 2021 WL 829572, at *2; Olson, 2024 WL 1521634, at *2. Additionally, the duration of the Olson petitioner’s initial, more severe symptoms was much longer as she did not undergo surgery until 18-months post- vaccination. Olson, 2024 WL 1521634, at *2. And the Drake petitioner experienced severe limitations in his ROM, and continued symptoms even after surgery. Drake, 2020 WL 4674105, at *2-3. Instead, Double, Slugo, and Gray22 – involving awards ranging from $105,000.00 to $110,000.00 - offer better guidance. The Double and Gray petitioners also delayed seeking treatment until approximately 50 days post-vaccination. Double, 2024 WL 3648398, at *3; Gray, 2022 WL 6957013, at *6. And the Slugo and Double petitioners similarly suffered from other conditions addressed during surgery. Petitioner’s facts and circumstances most closely resembles those experienced by the Double petitioner, who received an award of $105,000.00. Accounting for slight differences in duration and initial symptom severity, I will award a slightly higher amount to Petitioner - $107,000.00. B. Unreimbursed Expenses Regarding the amount of out-of-pocket expenses, I agree that the $201.78 paid by Petitioner for collection fees should not be reimbursed. This payment does not meet the requirements of Section 15(a)(1)(A)(iii), because it was not needed to diagnosis or treat Petitioner’s symptoms. All other requested expenses will be awarded. Conclusion For all of the reasons discussed above and based on consideration of the record as a whole, I find that $107,000.00 represents a fair and appropriate amount of 22 Double v. Sec’y of Health & Hum. Servs., No. 21-0682V, 2024 WL 3648398 (Fed. Cl. Spec. Mstr. June 27, 2024) (awarding $105,000.00 for past pain and suffering); Slugo v. Sec’y of Health & Hum. Servs., No. 19-0635V, 2022 WL 627782 (Fed. Cl. Spec. Mstr. Jan. 31, 2022) (awarding $108,000.00 for past pain and suffering); Gray, 2022 WL 6957013 (awarding $110,000.00 for past pain and suffering). 11 Case 1:20-vv-01905-UNJ Document 53 Filed 03/24/25 Page 12 of 12 compensation for Petitioner’s actual pain and suffering.23 I also find that Petitioner is entitled to $1,607.10 in actual unreimbursable expenses. Based on the record as a whole and arguments of the parties, I award Petitioner a lump sum payment of $108,607.10 to be paid through an ACH deposit to Petitioner’s counsel’s IOLTA account for prompt disbursement to Petitioner. This amount represents compensation for all damages that would be available under Section 15(a). The Clerk of Court is directed to enter judgment in accordance with the Decision.24 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 23 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)). 24 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. 12 ================================================================================ DOCUMENT 4: USCOURTS-cofc-1_20-vv-01905-cl-extra-11224907 Date issued/filed: 2025-12-15 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10758322 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1905V LINDA TIMBERLAKE, Chief Special Master Corcoran Petitioner, Filed: November 12, 2025 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for Petitioner. Meghan Murphy, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS 1 On December 18, 2020, Linda Timberlake filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the “Vaccine Act”). Petitioner alleged that she suffered a shoulder injury related to vaccine administration following an influenza vaccine she received on September 5, 2019. Petition, ECF No. 1. On April 23, 2024, I issued a ruling on entitlement finding Petitioner 1Because this Decision contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, 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), 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 (2018). entitled to compensation. ECF No. 34. On February 19, 2025, I issued a decision awarding compensation to Petitioner, following briefing by the parties. ECF No. 48. Petitioner has now filed a motion for attorney’s fees and costs, requesting an award of $31,728.95 (representing $31,076.40 in fees plus $652.55 in costs). Application for Attorneys’ Fees and Costs (“Motion”) filed July 21, 2025, ECF No. 54. Furthermore, counsel for Petitioner represents that no personal out-of-pocket expenses were incurred by the Petitioner. ECF No. 54 at 2. Respondent reacted to the motion on July 25, 2025, indicating that he is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case but deferring resolution of the amount to be awarded to my discretion. Respondent’s Response to Motion at 2-3, 3 n.2, ECF No. 55. Petitioner filed no reply thereafter. I have reviewed the billing records submitted with Petitioner’s request. The rates requested for work performed through 2025 are reasonable and consistent with our prior determinations and will therefore be adopted. Regarding the time billed, I note this case required additional briefing regarding damages. See Petitioner’s Brief in Support of Damages, filed Nov. 15, 2024, ECF No. 46. Petitioner’s counsel expended approximately 17.40 hours drafting the brief. ECF No. 54 at 14-17. I find this amount of time to be reasonable and will award the attorney’s fees requested. And all time billed to the matter was also reasonably incurred. Furthermore, Petitioner has provided supporting documentation for all claimed costs. ECF No. 54 at 20-27. Respondent offered no specific objection to the rates or amounts sought. I find the requested costs reasonable and hereby award them in full. The Vaccine Act permits an award of reasonable attorney’s fees and costs for successful claimants. Section 15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. Petitioner is awarded attorneys’ fees and costs in the total amount of $31,728.95 (representing $31,076.40 in fees plus $652.55 in costs) to be paid through an ACH deposit to petitioner’s counsel’s IOLTA account for prompt disbursement. In the absence of a timely-filed motion for review (see Appendix B to the Rules of the Court), the Clerk of Court shall enter judgment in accordance with this decision. 3 3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their right to seek review. 2 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 3